By Dan Carlin
Following back-to-back losses in the Northern District of California and before a three-judge panel of the Ninth Circuit Court of Appeals, Drakes Bay Oyster Company (DBOC) has submitted its final petition to the Ninth Circuit, hoping it can block the Secretary of Interior’s November 2012 decision to let the oyster operation’s forty-year lease in Drakes Estero expire on its own terms. DBOC’s appeal likely will, and should, fail.
The oyster company’s petition for rehearing en banc to the Ninth Circuit, supported by an amicus brief filed by the Sacramento-based Pacific Legal Foundation (PLF), rehashes its unsuccessful arguments presented before the district court and the Ninth Circuit panel. Ultimately, it fails to show why rehearing en banc—an exceptional and rarely-invoked federal court procedure in which all judges on the circuit reconsider a previous panel decision—should be granted in this case.
Under Federal and Ninth Circuit rules, en banc rehearing is “disfavored,” and may only be invoked in one of three circumstances: (1) when en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; (2) the proceeding involves a question of exceptional importance; or (3) when the opinion of a panel directly conflicts with an existing opinion by another court of appeals and substantially affects a rule of national application in which there is an overriding need for national uniformity.
Having failed at oral argument to convince the court on the existence of a circuit split, appellants now focus on the latter two prongs, targeting the panel majority’s reference to an allegedly flawed, 1995 Endangered Species Act (ESA) case, Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir.). PLF’s devotes most of its brief to the claim that Douglas County was wrongly decided, that it conflicts with decisions of other circuits, and thus must be reversed along with the decision in DBOC v. Jewell. The Ninth Circuit would be wrong to do so.
Accepting the unconvincing premise that Douglas County was “essential” to the panel’s opinion and thus provides a hook for reversal (a claim that the Department of Justice’s reply brief thoroughly dismantles), PLF has conflated legal issues in a way that suits its agenda, but that would make for terrible jurisprudence if accepted by the court. PLF’s amicus brief states: “[w]hether NEPA applies to major federal actions which affect the quality of the human environment is a question of exceptional importance, under the ESA as well as in the context of permit renewal for existing activities on public lands.” The brief’s awkward language begs the question it means to ask, i.e. to which federal actions does NEPA apply? This is indeed a complex and important question that Circuit courts and the Supreme Court have addressed over decades of NEPA jurisprudence and numerous rules. But for PLF to now argue that the Ninth Circuit or the Supreme Court should use DBOC v. Jewell, a narrow and highly fact-specific dispute, to definitively address that question verges on the absurd.
DBOC v. Jewell is not even the appropriate case with which to review Douglas County—assuming such review is warranted—much less the broad applicability of NEPA. Douglas County was an ESA case about critical habitat designation; any legitimate discussion about overturning it should be done in the context of an ESA question. The panel majority in DBOC v. Jewell only analogized the facts in that case to the ESA analysis in Douglas County. The Douglas County opinion was “persuasive,” but the factual scenario quite distinct. To seek a sweeping review of NEPA’s applicability to agency decisions under the ESA along with decisions regarding “permit renewal for existing activities on public lands” highlights the ambition of PLF’s legal assault.
For PLF and its allies (including another Koch Brothers-supported advocacy group, Cause of Action, who were initially DBOC’s pro bono counsel), this appeal is about much more than oyster farming in Drakes Estero. Earlier this year, Sen. David Vitter (R-LA) introduced a bill—focused primarily on expediting construction of the Keystone XL Pipeline—that would have permanently denied Drakes Estero full wilderness protection, and granted DBOC a new operating permit for at least 10 years. It seems that oil and gas interests, eyeing offshore opportunities in federal waters, have latched onto this otherwise simple contract dispute as a means of rolling back federal public lands protections to expand their exploitation activities into those areas.
Meanwhile, PLF’s brief seems focused specifically on dismantling NEPA. Its brief revives, in updated and more sophisticated form, PLF’s old argument that NEPA review should be required for even the most ecologically-beneficial conservation measures taken by public agencies. If courts adopted such a position, whenever a public agency sought to extend protection to federal lands, or deny a permit, or restrict some harmful activity, it might need to conduct NEPA review. The practical effect could be to dissuade agencies from such proactive, environmentally-beneficial measures, knowing it would entail a lengthy and expensive NEPA process. PLF’s extreme position has been rejected by a number of District and Circuit Courts, including the Ninth in Douglas County, and the Ninth Circuit should decline to review its sound, prior decisions in both Douglas County and in DBOC v. Jewell.
PLF first presented this argument, curiously, in another shellfish-related legal battle, Pacific Legal Foundation v. Andrus, 657 F.2d 829 (6th Cir. 1981). In that case, PLF claimed that the listing of river mussels under the Endangered Species Act (ESA) was subject to NEPA. The endangered status of the mussels was the primary roadblock to construction of two dams on the Duck River in Tennessee. The Sixth Circuit rejected PLF’s argument, because, among other reasons, the purpose of NEPA and ESA are in alignment—to protect and preserve ecological values and resources—and allowing NEPA to obstruct the agency’s conservation efforts would subvert the purpose of both statutes. 657 F.2d 829, 837.
This rationale, the court noted, explained why NEPA does not apply to promulgation of air quality standards under the Clean Air Act or to various actions under the Clean Water Act. Id. It would undermine the purpose of NEPA, the court reasoned, if the statute could be used to block improvements in air and water quality, or delay the listing of a species that might disappear while the slow wheels of government turned. Id.
In Douglas County, the case PLF claims should be reversed, a Ninth Circuit panel reaffirmed this sound reasoning, holding that NEPA did not apply to designation of critical habitat for the Northern Spotted Owl.
In DBOC v. Jewell, PLF again seeks to use NEPA, the so-called “environmental Magna Carta” to block environmental protection measures taken by the federal government. As the Sixth Circuit did, the Ninth Circuit should reject PLF’s argument. The decision to deny extension of DBOC’s lease was fully within the Secretary of Interior’s discretion under Sec. 124, and as the panel majority pointed out, it is “essentially a conservation measure” intended to extend wilderness protections to an area of rare ecological richness, thus NEPA should not apply.
Of course, the Secretary actually did prepare an environmental impact statement (EIS) pursuant to NEPA when considering whether to grant a new 10-year Special Use Permit to DBOC. The National Park Service spent more than two years collecting data and public input, and ultimately issued a thorough, more than 700-page Draft EIS and subsequently a Final EIS. PLF and DBOC argue that the resulting document was flawed and merited review by the court, but failed to identify any fundamental errors or gaps in the document. The Ninth Circuit panel did not dismiss the possibility that NEPA applied. But it looked at DBOC’s NEPA claims and found no basis for reversing the Secretary’s decision—any asserted data quality issues or procedural errors were, the court said, “harmless.”
In taking on the DBOC case, a seemingly narrow and obscure legal dispute, PLF appears to be aiming for a fundamental review of NEPA by either the Ninth Circuit or, more likely, the U.S. Supreme Court. But its arguments should go no further than this petition. It has updated and refined its old anti-NEPA arguments, framing its concerns with the Secretary of Interior’s decision as grounded in environmental values but its anti-environment objectives are clear. On its website, PLF points out that “the underwater racks on which the oysters are grown would have to be removed, and that process—requiring barges or heavy equipment—could result in disturbance to the sea bed and the shoreline… Further, the oysters themselves have a positive impact on the Bay’s ecosystem, by filtering water.”
First of all, these concerns were reviewed in the Final EIS and found to be of negligible weight because any disturbance created in removing the pressure-treated wood racks and oyster gear would be temporary. Meanwhile, according to DBOC owner Kevin Lunny, the oyster operation “typically operates two or three motor boats and two unmotorized barges approximately 12 trips per day, 8 hours per day combined.” While removing the oyster-growing infrastructure would create a temporary, relatively minor impact on the ecosystem, granting an extension of the operating permit on its original terms would allow this kind of non-stop disturbance to continue for a decade. Likewise, the Final EIS found that removing the oysters might create some “highly-localized, short-term” negative impacts on eelgrass because the oysters provide some benefits associated with nutrient cycling and water filtration, but that the overall long term impacts of removal would be beneficial.” In any case, PLF fails to make its desired, highly dubious point that restoring Drakes Estero to full wilderness would somehow be environmentally pernicious.
Throughout this litigation, DBOC and its supporters have sought to harness any argument available to block the Secretary’s decision—challenging the science behind the EIS with hired industry consultants rather than peer-reviewed research; alleging a “vendetta” against them by the Department of Interior when their court declarations admit that NPS gave them written notice on at least two occasions at the beginning of the lease that it would not be renewed; and mistakenly claiming that the intent of Sec. 124 was to “make it easy” for the Secretary to grant another 10-year Special Use Permit. Now that those arguments have failed, Drakes Bay Oyster Company and Pacific Legal Foundation are hoping to reverse an 18-year old Endangered Species Act decision, and somehow topple the case like a set of dominoes. But at every step of its argument for reversal, DBOC and PLF are on the wrong side of the law, and the Ninth Circuit panel’s well-reasoned opinion should and will remain undisturbed.
 Dan Carlin is a 2013 graduate of the Berkeley Law, where he was President of the Environmental Law Society. He is co-author of the Ecology Law Currents article “Will the Wilderness Act Be Diluted in Drakes Estero?” and has blogged about the DBOC case on Legal Planet.
 As a large circuit with 29 judges, an en banc court at the Ninth Circuit typically consists of “only” 11 judges.
 Slip Op. 31, FN 11. The majority remarked that the asserted split within the Ninth Circuit concerned cases of significantly different factual background (i.e. major construction projects, not conservation efforts), and thus presented a distinct issue from the one at bar.
 Brief amicus curiae of Pacific Legal Foundation, California Cattlemen’s Association, and Building Industry Association of the Bay Area in Support of Plaintiff-Appellant’s Petition For Rehearing en banc and Reversal, Drakes Bay Oyster Company and Kevin Lunny v. Sally Jewell at 4. Filed: 10/25/13.
 PLF Brief at 5.
 Slip Op. 31.
 See, e.g., National Ass’n of Property Owners v. U.S., 499 F.Supp. 1223, 1265 (D.Minn.1980), aff’d, State of Minnesota v. Block, 660 F.2d 1240 (8th Cir.1981); Pacific Legal Foundation v. Andrus, 657 F.2d 829 (6th Cir. 1981).
 In that case, PLF sued the Fish & Wildlife Service (FWS) for listing seven species of mussels in Tennessee’s Duck River under the Endangered Species Act, a decision that delayed the construction of a dam, but ultimately was resolved when the mussels were relocated to another hospitable streambed.
 Slip Op. 31
 National Park Service. Draft Environmental Impact Statement, Drakes Bay Oyster Company Special Use Permit. September 2011
 DBOC filed data quality complaints regarding issues with EIS including soundscape analysis, but failed to show any meaningful problems with the document.
 Slip Op. at 5.
 National Park Service. Final Environmental Impact Statement, Drakes Bay Oyster Company Special Use Permit at xxviii. November 2012.
 Id at 124.
 Id at 332.
 Appellant’s Petition for Rehearing en banc, Drakes Bay Oyster Company and Kevin Lunny v. Sally Jewell at 1. Filed: 10/18/2013
 Appellant’s Opening Brief On Preliminary Injunction Appeal. Drakes Bay Oyster Company and Kevin Lunny v. Kenneth Salazar at 19. Filed: 3/6/2013.