Hoping for Relief

Embattled oyster company heads to court hoping for stay on government’s decision to kill it

Drakes Bay Oyster Company / AP
January 25, 2013

The Drakes Bay Oyster Company heads to court on Friday seeking a preliminary injunction against the secretary of the interior’s decision to terminate the company’s permit to operate on federal land.

The company will have to close down and move all of its property off the land by the end of February if the secretary’s decision stands. He made his decision on Nov. 29, 2012, and gave the company 90 days to shut down and leave.

A preliminary injunction against the secretary’s decision will allow the company to continue to operate until the case can proceed to a full trial.

The Drakes Bay Oyster Company produces about 40 percent of California’s oysters, said Amber Abbasi, chief counsel of Regulatory Affairs for Cause of Action.

Cause of Action, a government watchdog group, is representing Drakes Bay Oyster Company in the lawsuit.

Abbasi also noted that the company is the last oyster cannery left in California, which means that the employees who lose their jobs would have difficulty finding employment due to their specialized skill set.

The company has provided housing for many employees who would lose not only their jobs but also their homes if the government succeeds in shutting down the business.

"If the judge doesn’t grant this injunction, the business will be lost," regardless of the outcome, said Abbasi.

At issue in the lawsuit is whether a clause in the 2010 appropriations bill exempts the secretary from following the law.

The clause, found in Section 124 of the bill, 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" to the Drakes Bay Oyster Company.

Secretary of the Interior Ken Salazar interpreted the phrase "notwithstanding any other provision of law" to allow him to bypass the legal requirements that constrain his decision-making process.

"SEC. 124 does not require me (or the NPS [National Park System]) to prepare a DEIS [Draft Environmental Impact Study] or an FEIS [Final Environmental Impact Study] or otherwise to comply with the National Environmental Policy Act of 1969 (NEPA) or any other law. The ‘notwithstanding any other provision of law’ language in SEC. 124 expressly exempts my decision from any substantive or procedural legal requirements," Salazar wrote in his decision memorandum.

However, the Drakes Bay Oyster Company believes the secretary is misreading the section and consequently violated several laws when making his decision to allow the company’s special use permit to expire at the end of last year.

"Our chief argument is that the government did not follow the law in making its decision," Abbasi said.

Abbasi said that Salazar failed to follow the Administrative Procedures Act, the Data Quality Act, as well as NEPA.

She said the company is also arguing that the government is violating its Constitutional rights by taking property "without just compensation."

The company owns leases to the bottom of the water where it grows oysters until 2029. Evicting the company from the land by the water would render these leases ineffective.

"The value of those leases is essentially being taken away if they have to shut down without getting the full value of the leases," Abbasi said.

Current law requires that the government use accurate data when making decisions, Abbasi said.

However, she added, the government relied on flawed data on the environmental impact when making its decision not to renew the company’s lease.

"If you take out the flawed data and don’t rely on the flawed data, you are left with nothing," Abbasi said. "He wasn’t weighing the environmental impact like he was supposed to," she said, referring to the secretary.

The Department of the Interior also failed to follow administrative requirements when making its decision, according to the filed complaint, ultimately causing it to post a false notice in the Federal Register, Abbasi said.

The Department of the Interior defended the secretary’s decision.

"The secretary made his decision after careful consideration of the applicable law and policy, but the Department does not comment on litigation," wrote Department of the Interior spokesman Blake Androff in an email.

He provided the press release and decision memorandum for additional information on the merits of the case.

He said the Justice Department would be representing the Department of the Interior in the case. The Department of Justice did not return a request for comment.

Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California will hear the arguments for the preliminary injunction.