Wilderness Act intended for Drakes Bay Oyster Company to stay.

Marin Voice: Oysters in the wilderness

Marin News

By Jim Linford
Guest op-ed column

Posted:   10/10/2013 08:00:00 PM PDT

Jim Linford

THOSE OF US who have followed the Drakes Bay Oyster Co. case understand that the three-judge decision handed down at the beginning of September went against the oyster farm by 2-1.
But it is not well understood that the judges did all agree on a very important fact: When Congress designated the wilderness in the Point Reyes National Seashore in 1976, it thought the oyster farm to be compatible with wilderness and expected the farm to remain indefinitely.
The dissent fully develops this understanding of the original congressional intent, and the majority acknowledges "the accuracy of the dissent's recitation of the legislative history of the 1976 Act."
Here is the puzzle: All three judges agreed that Congress intended the oyster farm to be compatible with wilderness. And yet two of them upheld the secretary's decision to close down the oyster farm based on his misunderstanding that Congress supposedly thought the oyster farm to be incompatible with wilderness.
How could that happen?
First, the majority thought that the secretary's decision did not have to pay attention to congressional intent because of recent special legislation regarding the Drakes Bay oyster case. And second, since (former) counsel for the oyster farm shared the secretary's misunderstanding, the oysters-in-the-wilderness approach was never properly presented and did not really need to be considered.
The dissent disagreed and attributed the misunderstanding to the secretary's legal counsel.
How pristine does wilderness need to be?
In the 2010 Wilderness Watch case, the Ninth Circuit rejected a narrow understanding of the Wilderness Act, one that would preserve the wilderness in a museum diorama, one that we might observe only from a safe distance, behind a brass railing and a thick glass window.
Rather, it is the act's intent to assure that the wilderness be preserved as wilderness and made accessible to people, "devoted to the public purposes of recreational, scenic, scientific, educational, conservation and historical use."
Although the Wilderness Act generally precludes commercial activities, it specifically allows for the continuation of animal grazing rights that pre-existed the wilderness designation (and, I would argue, for bivalve as well as bovine grazing).
Given this provision and the continuation of grazing within the Point Reyes National Seashore, it is no surprise that in 1976 Congress expected the oyster farm to remain in operation.
The Drakes Bay oyster farm case was not fully developed when presented to the district court and court of appeals. I hope that the Court of Appeals allows it to develop properly by granting the request for an en banc rehearing.
On a more personal level, a rehearing could also permit the correction of an odd misunderstanding at the beginning of the opinion:
"This appeal ... pits an oyster farm, oyster lovers and well-known 'foodies' against environmentalists aligned with the federal government."
If we have learned anything at all from the public debate over this matter, it is that there are "environmentalists" on both sides.
Certainly those of us who support sustainable agriculture (a "conservation use" of the seashore) see it as an environmentalist cause.
It would be helpful for the court to acknowledge that fact.
Jim Linford of Marinwood is a semi-retired appellate attorney and an active member of the California Bar.