Ninth Circuit considering whether to grant en banc review in Drakes Bay Oyster case

The San Francisco-based federal appeals court that upheld an Obama administration decision not to renew a permit allowing oyster farming at Point Reyes National Seashore is considering whether to re-hear the case.

In an order released Tuesday, the judges who wrote the Sept. 3 opinion asked the U.S. Department of Justice to inform the court whether it thinks en banc review is appropriate. The court set a Dec. 2 deadline for the Obama administration's brief.

The case involves a clash between a 1970s decision by Congress to designate an estuary called Drakes Estero, the likely site of the first landing by Europeans in California in 1579, as a potential addition to the National Wilderness Preservation System and a shellfish farm that has been in operation for about eight decades. 

Former secretary of the interior Ken Salazar announced in Nov. 2012 that a 40-year lease allowing use of about 1,100 acres located in the western half of the estuary for shellfish harvesting would not be renewed.

If the Interior Department's decision not to renew the lease and accompanying special use permit is upheld, then the Drakes Estero acreage used by Drakes Bay Oyster Co., as well as about 1,600 additional acres, will become part of the first marine wilderness area on the west coast.

En banc review, or reconsideration of a three-judge panel's opinion by a larger group of judges, is conducted in the U.S. Court of Appeals for the Ninth Circuit by 11 judges. According to the court's rules, the judges who would sit on such a panel are chosen at random by a member of the clerk of court's staff.

Federal law authorizes appeals courts to grant en banc review if the case is of "exceptional importance" or if the decision by the panel of three circuit judges is in conflict with a decision by another three-judge panel.

In the Drakes Bay case, the permit holder argues that an amendment to a 2009 law authorizes perpetual operation of the oyster farm, despite the 1976 statute.

The case is Drakes Bay Oyster Co. v. Jewell, No. 13-15227.