Lunnys Did *Not* Have Full Disclosure From Park Service Before it Purchased Oyster Farm FILES FOR EN BANC

EXCERPTS FROM THE DBOC BRIEF TO THE NINTH CIRCUIT (Rehearing Petition)

First Paragraph of DBOC Brief

“Before it became obsessed with destroying the only oyster farm in Point Reyes National Seashore, the National Park Service had for many decades supported the oyster farm, as did local environmental groups and the community at large. The oyster farm and the surrounding cattle ranches provide the agricultural heritage the Seashore was created to protect. When Congress was considering legislation that became the 1976 Point Reyes Wilderness Act (“1976 Act”), wilderness proponents “stressed a common theme: that the oyster farm was a beneficial pre-existing use that should be allowed to continue notwithstanding the area’s designation as wilderness.” (Op. 40 (Watford, J., dissenting).) To this day, modern environmentalists and proponents of sustainable agriculture praise Drakes Bay as a superb example of how people can produce high-quality food in harmony with the environment.”

Park Service Sustained Vendetta Against Drakes Bay

“Since 2005, for reasons that remain a mystery, the Park Service has changed position and sustained a vendetta against the oyster farm. The Park Service has been reprimanded by the National Academy of Sciences, which in 2009 found that the Park Service had “selectively presented, over-interpreted, and misrepresented the available scientific information”, and by the Solicitor’s Office of the Department of the Interior, which in 2011 found “bias” and “misconduct” in the evaluation of harbor-seal data.”

Footnote # 6 (Excerpt) – Secretary Salazar Admitted – DBOC Not Told Farm to Shut Down, Renewal Clause Not to be Honored

“Although, as the Secretary recognized, Drakes Bay received the Park Service’s legal analysis only after it purchased the oyster farm (ER 120, see ER 180, ¶64), the majority mistakenly asserted that “Drakes Bay purchased the oyster farm with full disclosure” and that “the only reasonable expectation Drakes Bay could have had at the outset was that such a closure was very likely”. (Op. 36-37.) This mistake controlled the majority’s review of the equities.”

 Park Service Reprimanded by the National Academy of Sciences and the Department of the Interior’s Office of the Solicitor

“Here a federal agency has behaved so badly that it has been reprimanded by the National Academy of Sciences and the Solicitor’s Office for misconduct, and by Congress for misinterpreting the law. Despite these reprimands, the agency continued to make false scientific statements and insist on the very misinterpretation Congress overrode. Courts should provide a remedy whenever an agency bases its action on false statements and acts in disobedience of a Congressional directive. And yet the majority held that courts lack jurisdiction to determine whether this type of agency action was arbitrary, capricious, or an abuse of discretion. This holding is wrong. Congress could not have intended to allow an agency to disobey a statute, or to base permit decisions on false statements, and yet be immune from judicial review. Nor could Congress have intended that a court would have jurisdiction to review an agency’s discretionary decision for everything except abuse of discretion. En banc rehearing is needed.”

Park Service Misconduct Raises Significant Legal Principle – Is the Park Service Above the Law and Beyond Accountability

“The decision could potentially prohibit courts from considering whether agencies were arbitrary and capricious or abused their discretion in countless decisions granting or denying ordinary permits.”