An Unjust Oyster Ouster

Gov’t refuses to renew permits for oyster company, prompting lawsuit

Drakes Bay Oyster Co. / AP
December 6, 2012

A California oyster company is suing the Department of the Interior for failing to extend its permit for using federal lands, arguing that the government violated the law and its constitutional rights.

The decision to deny the permit is a victory for environmental groups that have sought to make the area a wilderness. Lawyers for Drakes Bay Oyster Company filed the complaint on Monday.

"This is a real illustration of an agency that’s not following the law and how it’s hurting a family business," said Amber Abbasi, a lawyer at the nonprofit government watchdog group Cause of Action. Cause of Action is representing the company.

The complaint describes Drakes Bay Oyster Company as a "small, environmentally sustainable, family-owned oyster farm with thirty-one full-time employees." The company produces about 40 percent of California’s oysters.

The lawsuit accuses the Department of the Interior of violating the National Environmental Policy Act, the Data Quality Act, the Administrative Procedure Act, and the Takings and Due Process clauses of the Constitution’s Fifth Amendment.

A major issue in the suit is the amount of power that Section 124 of the 2010 appropriations bill grants to the secretary of the interior, according to Abbasi.

The National Park Service (NPS) and the oyster company were arguing whether the NPS could renew the permit before the appropriations bill passed. Section 124 was introduced specifically to resolve the dispute in favor of the Drakes Bay Oyster Company, assuring them that the National Parks Service could in fact renew the license regardless of what older laws said, Abbasi said.

The bill specifically states, "Notwithstanding any other provision of law, the secretary of the interior is authorized to issue a special use permit with the same terms and conditions as the existing authorization."

Abbasi contended that secretary of the interior Ken Salazar seized the "notwithstanding any other provision of law" and used it to bypass other laws that he should have followed.

The Department of the Interior defended Salazar’s decision.

"The secretary made his decision after careful consideration of the applicable law and policy," said Blake Androff, deputy director of communications for the department, in an email.

Salazar personally visited the Bay Area company before making his decision, an Interior statement announcing the decision said.

"After careful consideration of the applicable law and policy, I have directed the National Park Service to allow the permit for the Drakes Bay Oyster Company to expire at the end of its current term and to return the Drakes Estero to the state of wilderness that Congress designated for it in 1976," Salazar said in the statement.

Abbasi said that Salazar relied on faulty data produced by the NPS while making his decision. There are specific requirements for the permitting process and "the National Park Service started out following these requirements and then at a certain point ceased to do so," she argued.

She noted that Cause of Action filed a "data quality complaint" on behalf of Drakes Bay Oyster Company earlier this year.

"The department will carefully review the complaint and any related materials that may be filed," Androff said. "The department does not comment on litigation."