by Lauren Bernadett, 01/27/2014
This article continues the story of Drakes Bay Oyster Company’s fight to stay open. An earlier article detailing the history of Drakes Bay and the district court and Ninth Circuit opinions on the matter can be found here.
The struggle surrounding Drakes Bay Oyster Company (DBOC) continues. The Ninth Circuit denied DBOC’s request for a rehearing en banc, but DBOC says that it plans to take its case to the Supreme Court. Due to an order granted by the Ninth Circuit, DBOC will continue operating for ninety days while it waits to see if the Supreme Court takes its case.
The Ninth Circuit’s Decision and DBOC’s Petition for Rehearing En Banc
On September 3, 2013, the Ninth Circuit Court of Appeals affirmed the district court’s decision to deny DBOC’s request for a preliminary injunction. The preliminary injunction, if granted, would have enjoined the U.S. Secretary of the Interior’s decision to let DBOC’s operating permits expire without granting a ten-year special use permit. This would have allowed the commercial oyster company to continue operating instead of having to take steps to shut down.
However, the Ninth Circuit panel was not unanimous in its decision. Judge Watford issued a strong dissent explaining why he would grant DBOC’s request for a preliminary injunction. Most compellingly, he detailed how the Secretary misinterpreted the Wilderness Act and the Point Reyes Wilderness Act. The Secretary’s misinterpretation led him to believe that the acts prohibited DBOC’s continued operation when they actually did not. This misinterpretation was carried out in the National Park Service’s communications with Kevin Lunny, owner of DBOC, in 2004 when the agency notified Lunny that the oyster farm area would need to be converted to wilderness status as soon as the farm could be eliminated. Judge Watford stated that the government’s actions and decision to let the special use permit lapse were based on misinterpretations of the acts and contrary to the legislative history of the Point Reyes Wilderness Act.
Judge Watford’s dissent gave DBOC new hope for success. The company petitioned the Ninth Circuit for a rehearing en banc on October 18, 2013. A rehearing en banc typically means that the case is reheard by the entire bench, and the en banc opinion can overturn the original decision made by the three-judge panel. However, the Ninth Circuit bench, at twenty-nine active judgeships, is so large that Ninth Circuit en banc courts consist of the Chief Judge and ten randomly chosen additional judges.
A practice guide for appellate lawyers in the Ninth Circuit states that “[a] petition for rehearing en banc is appropriate when the panel’s decision generates significant legal issues that warrant the attention of a larger number of members of the court.” In 2013, the Ninth Circuit granted only fifteen requests for rehearings en banc…
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