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.

Salazar orders trigger of wilderness protection at Point Reyes National Seashore

A scenic estuary within California's Point Reyes National Seashore that is thought to be the site of 16th century explorer Francis Drake's landing in North America, and the locus for a long controversy over commercial oyster harvesting operations within the preserve, is set to become part of a designated wilderness area.

Interior secretary Ken Salazar announced Thursday that he has directed the National Park Service to decline  a renewal of Drakes Bay Oyster Company's long-term operating lease. The company, which has been harvesting oysters since 1972, will no longer be authorized to do so.

The decision triggers 1976 legislation that designates Drakes Estero as protected wilderness and ends commercial activities on about 1,000 acres of federal land and waters.

I believe it is the right decision for Point Reyes National Seashore and for future generations who will enjoy this treasured landscape," Salazar said.

Drakes Estero is known for its large seal population, as well as its status as California's most plentiful source of oysters. Environmentalists and supporters of the oyster farm have engaged in a long-running battle about the commercial harvesting of that resource within the preserve.

In 2009 Congress enacted legislation granting Salazar discretion to decide whether to renew permission to operate there for another ten years or to terminate the existing authorization.

The oyster harvesting operation began in 1938, according to a recent NPS environmental impact statement that examined the potential consequences of allowing it to continue. In 1972, ten years after Point Reyes National Seashore was established, NPS entered into a forty-year lease with Drakes Bay Oyster Company's corporate predecessor. That lease, called a "reservation of use and occupancy," expires today along with a required permit.

Salazar's memorandum to NPS director Jon Jarvis noted that continued commercial use of resources within the national seashore violates agency policy and would be inconsistent with Congress' decision to restore wilderness qualities to Drakes Estero. 

Drakes Bay Oyster Company will have 90 days in which to remove its property from the preserve. The government will provide employees with job re-training and relocation assistance.

Drakes Estero Wilderness is the only marine wilderness on the nation's west coast outside of Alaska. The designation of the area as part of the federal wilderness preservation system applies to about 8 square miles of the 31 square mile-size watershed.