The Ninth Circuit issued its opinion in Drakes Bay Oyster Company v. Sally Jewell on Tuesday, affirming the district court’s decision to not grant a preliminary injunction against the National Park Service keeping the Drakes Bay Oyster Company, located in Drakes Bay, part of the Point Reyes National Seashore, open while the company litigated the Secretary of the Interior’s decision to let a long-running lease between the Park Service and Drakes Bay Oyster Company expire. Drakes Bay Oyster Company has indicated it will appeal the decision to an 11-member panel of the Ninth Circuit, but this decision by the Ninth Circuit certainly is a blow to the efforts to keep the oyster farm open.

The Ninth Circuit opinion contains a good summary of the history of this matter, and is worth a skim for people not familiar with the issues. Drakes Bay Oyster Company has found itself in the middle of a broader fight involving commercial activities in wilderness areas, and, in my opinion, is an unfortunate victim of that fight. They are a unique operation inasmuch as they were operating within a nationally-designated seashore, and have done so since before the seashore was designated. In many ways, the current owner got swept up in a broader discussion and debate on the place of commercial operations in National Park Service-managed lands, and in the local and national efforts to convert the Point Reyes National Seashore into a Wilderness Area. As a native Californian, and as someone that frequented all parts of the California coast growing up, I’m disappointed that the Drakes Bay Oyster Company has gotten swept up in these politics, as I see preservation of DBOC as an important part of preserving the historic fabric of California, and I am convinced that DBOC could have continued to operate in harmony with the ecology of Drakes Estero and the Point Reyes National Seashore.

With that commentary out of the way, there are a few points made in the Ninth Circuit decision that are worth thinking through. First, the Ninth Circuit found it had jurisdiction over the National Park Service to review compliance with statutory mandates of any type, overruling the district court that found it lacked such jurisdiction. This is relevant because Congress passed a law in 2009 (Section 124 of Public Law 111-88) clarifying that the Department of Interior had the authority to extend DBOC’s special use permit “notwithstanding any other provision of law,” which the Ninth Circuit viewed as a statutory mandate potentially reviewable by a court. Although the Ninth Circuit concluded it had jurisdiction to review compliance with statutory mandates, it also noted that it could only do so when Congress had provided a “meaningful standard” against which to judge an agency’s exercise of discretion. After going through a detailed legal analysis of the meaning of the word “notwithstanding” in Section 124, the Ninth Circuit concluded that Congress had not provided such a meaningful standard or “measuring stick,” as the court put it, against which to judge the Secretary of the Interior’s decision to let DBOC’s permit lapse. Accordingly, the Ninth Circuit declined to review that decision, and in so doing, also concluded that the preliminary injunction sought by DBOC to let it continue operating was not warranted. The court’s analysis could have stopped here, but it didn’t, as the court went on to address other issues, such as the National Environmental Policy Act (“NEPA”) compliance, raised by DBOC’s attorneys.

The discussion on NEPA compliance raises some interesting questions.

The NPS prepared a Environmental Impact Statement under NEPA in order to inform its decision whether to extend the permit. Presumably, the EIS was originally prepared because there was a chance that it would issue a new permit to DBOC. But, the Ninth Circuit concluded that NEPA compliance in this matter was not needed–because letting a permit expire on its own terms was not a “a major federal action significantly affecting the quality of the human environment,” and was instead an “environmental conservation effort,” which the court concluded doesn’t require an EIS under existing Ninth Circuit caselaw. Just as the Ninth Circuit could have ended its analysis with a conclusion that the Secretary of the Interior’s decision was not reviewable by a court because of a lack of a meaningful standard prescribed by Congress to review that decision, the Ninth Circuit could have ended its NEPA discussion with this conclusion. Instead, the Ninth Circuit went on to conclude that the EIS prepared by the Park Service was not deficient, despite errors in the EIS with respect to impacts to harbor seals and acoustic impacts. The Ninth Circuit waved away these concerns noting that the Secretary of the Interior claimed he did not “rely on the data that was asserted to be flawed,” concluding that, as a result, these errors were without consequence.

This line of logic seems to open a door for agencies conducting NEPA review to sidestep particularly controversial or poorly-known scientific and factual issues that are addressed in an EIS. Taken to its logical conclusion, one may anticipate decisionmakers waving aside such portions in decision documents, in much the same way that the Secretary of the Interior stated–in response to DBOC’s concerns regarding the EIS–that he did not rely on those portions of the EIS in making his decision. This seems to me to be piecemealing the EIS, and seems contrary to the intent of NEPA to inform decisionmakers regarding major federal actions and the impacts of those actions on the environment.

Finally, the problem with the Ninth Circuit passing on the validity of the EIS–with no real need to do so–is that now the EIS can be said to have undergone judicial review. It was a highly controversial document, even involving the remarkable step of being peer-reviewed by the National Academy of Sciences. Just as judicial decisions are stacked as precedent in the legal arena, Environmental Impact Statements often become precedent for future projects, with this particular EIS now becoming a hurdle that future shellfish growers may have to overcome in permitting their own projects.

We haven’t heard the last on this. DBOC has 45 days to appeal to an en banc panel of the Ninth Circuit. I’ll update you if that appeal is accepted, and will continue to track this matter.