Appeals Court Orders Drakes Bay Oyster Company to Close

The ruling by the Ninth Circuit also means that the creation of the first marine wilderness on the West Coast can go forward as planned.

California wilderness areas have taken a beating over the past few weeks as the monstrous Rim Fire destroyed pristine forests near and in Yosemite National Park. But not all of this week’s news was bad for the environment. On Tuesday morning, the Ninth Circuit Court of Appeals issued a much-awaited decision, ruling that the creation of the first marine wilderness on the West Coast can move forward as planned.

The 2-1 opinion by a federal appellate panel in San Francisco denied a request by a controversial oyster farm to delay creation of the marine wilderness for at least ten years so that it could remain open at Point Reyes National Seashore. Attorneys for Drakes Bay Oyster Company had argued that then-Interior Secretary Ken Salazar made legal errors last November when he declined the oyster farm’s request to renew its lease.

The appeals court found that Salazar was well within his legal rights. Moreover, the court noted that Kevin Lunny, the owner of Drakes Bay Oyster Company, knew that when he bought the oyster farm in 2005 the National Park Service had no intention of renewing the oyster farm’s permit to operate when it expired in 2012. The court also noted that the Interior “Department repeatedly warned the company that it did not plan to issue a new permit.”

The case also had significant political and environmental ramifications. Over the past year, conservative groups have championed the oyster farm’s cause in an effort to expand the rights of private businesses that operate on public land. For a time, the oyster farm was represented in court by a legal nonprofit, Cause of Action, that has ties to the Koch Brothers. And even though that group later bowed out of the case, the oyster farm was still backed by right-wing organizations.

“The court ruling affirms that our national parks will be safe from privatization schemes, and that special places like Drakes Estero will rise above attempts to hijack Americans’ wilderness,” Neal Desai, associate director of the Pacific Region for the National Parks Conservation Association, said in a statement.

In fact, the appellate court handed environmentalists a total victory. The oyster farm had argued that the federal government was required to conduct a comprehensive environmental report when the company requested that its lease be renewed. And while the National Park Service did conduct such a report in this case, a legal ruling requiring it to do so in all cases would have been a big win for business interests. The reason is that environmental reviews are expensive and time-consuming. The Ninth Circuit recognized that fact. “If agencies were required to produce an [Environmental Impact Statement] every time they denied someone a license, the system would grind to a halt,” the court stated.

The court also dismissed claims by the oyster farm that the park service’s environmental review was riddled with errors. The court noted that Salazar had stated that his decision was not based on the environmental review, but rather on “law and policy.” It’s long been the policy of the park service to not renew leases of so-called “nonconforming uses” (like an oyster farm) on public lands that have been designated by Congress as potential wilderness — meaning that they are to become fully protected wilderness once the commercial enterprises operating on them cease to exist. Congress made that designation of Drakes Estero in 1976.

The appellate court also dismissed a claim by Drakes Bay Oyster Company that a 2009 law authored by US Senator Dianne Feinstein — a strong backer of the oyster farm — should have been interpreted as “making it easy” to renew the oyster farm’s lease, while making it difficult to let it expire. The court noted that Feinstein’s original legislation had ordered Salazar to renew the lease, and that her Congressional colleagues had changed her language to give Salazar complete discretion over whether to renew it or not.

The oyster farm and its backers are expected to either appeal the case to the full Ninth Circuit or to the US Supreme Court. But environmentalists expressed confidence Tuesday that the ruling by the three-judge panel will be upheld. “This is a very strong majority opinion,” said Amy Trainer, executive director of the Environmental Action Committee of West Marin. “It’s a super-solid decision.”

Is the New Bridge Safe?

The new eastern span of the Bay Bridge opened Monday night after more than a decade of construction — and nearly 24 years after the Loma Prieta earthquake knocked down a section of the old bridge. Caltrans, however, is not done working on the new $6.4 billion structure; crews must still complete a seismic repair for a section of the bridge where 32 giant steel rods snapped earlier this year. That work isn’t expected to be completed until December.

And even when the work is done, some UC Berkeley engineering experts question whether the new span will be able to withstand a major quake — or even whether it will be safer than the old bridge. Cal professor of civil and environmental engineering Abolhassan Astaneh-Asl, who has long been a critic of the new bridge’s single-tower design, told California Magazine that considering the span’s “2,300 faulty anchor bolts, the cracked welds, the corroded tendons in the girders, the basic flawed design — there’s no doubt in my mind that the old bridge is much, much safer than the new bridge.”

Caltrans and other bridge experts maintain that Astaneh-Asl is wrong and that the new bridge is far safer than the old one — even with its many problems. But, in truth, we won’t know for sure until the next Big One hits. If the new bridge holds up, then many of the construction errors, mishaps, and scandals over the past decade likely will be forgotten. And if it doesn’t, it not only will be disastrous for Bay Area commuters, but also will represent a black eye for Caltrans and for the State of California.


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