By Marc Matheson
On Tuesday, September 9, I attended my first court hearing on the Drakes Bay Oyster Company issue. What follows is a hybrid essay of fact and personal perspective.
I have, until recently avoided the conflict of this ongoing community conversation. My concern, rather, has been the effect that the often times bitter and angry debate has had on our neighborhood and our friendships. This article provides both a first-hand report from this week’s ruling as well as my subjective opinion.
It was an interesting excursion into downtown Oakland on a busy weekday. I passed through the security checkpoint of the Federal Building, named for former African American mayor Ronald Dellums.
Upstairs, outside Courtroom 1, gathered several dozen Anglo men in suits, many of them lawyers; a handful of ladies, many also in suits and among them several women of color; a few familiar faces from Point Reyes National Seashore, in civilian clothes; and a passel of sundry West Mariners, whose faces I know and whose hands I shook in greeting regardless of their affiliation on this debate.
Yvonne Gonzalez-Rogers, the judge of the United States District Court for the Northern District of California who ruled on Tuesday and had ruled on this case in early 2013, was born Maria Yvonne Gonzalez in 1965 in Houston, Texas. She was appointed to her current post by President Obama, and had earlier been a judge of Alameda County Superior Court, appointed by Governor Schwarzenegger.
She is the first Latina to serve on that court.
The case before Her Honor was a request for a preliminary injunction filed by a group of businesses, individuals and advocates to set aside the Interior Department’s decision to let the special use permit expire on its own terms for the Drakes Bay Oyster Company that operated in Drakes Estero wilderness.
The suit had been filed in mid-July by Tomales Bay Oyster Company; Saltwater Oyster Depot, in Inverness; Osteria Stellina and Café Reyes, in Point Reyes Station; Hayes Street Grill in San Francisco; the Alliance for Local Sustainable Agriculture; and individuals Margaret Grade, Loretta Murphy, Jeffrey Creque and Patricia Unterman.
Judge Gonzalez-Rogers began the hearing with some clear and unambiguous language: “What you are asking is extraordinary and rarely given. I am concerned, as this looks like a repeat of the February 2013 case over which I presided and which ultimately proceeded to the U.S. Supreme Court.”
(For anyone unaware of this ongoing fight, Drakes Bay Oyster Company had sued the Interior Department in December 2012, after former Interior Secretary Ken Salazar decided to let the 40-year lease expire on its own terms. The effect has been that the temporary emergency injunction put in place by the 9th Circuit in February 2013 was lifted and the Department of the Interior set in motion a timeline for the company to remove its oyster operation from Drakes Estero).
On June 30th of this year, the U.S. Supreme Court denied the petition for review filed by the Drakes Bay Oyster Company, affirming the 9th Circuit Court of Appeal’s denial of the Company’s preliminary injunction lawsuit.)
“All of these issues were vetted years ago,” Judge Gonzalez-Rogers continued. Your lawsuit, “strains credulity. There is no indication that it has any reality. I have wondered whether Rule 11 sanctions aren’t appropriate given the complete lack of merit of your claims,” said the judge.
(Rule 11 of the Federal Rules of Civil Procedure, which govern civil lawsuits in United States federal court provides for fines or punishment against attorneys and clients who file lawsuits based on frivolous arguments and that lack of factual investigation.)
For those legal beagles who relish precise language, Judge Gonzalez-Rogers unpacked her decision by emphasizing that a preliminary injunction is an “extraordinary” remedy, repeating that word several times, and which could only be granted if the plaintiffs satisfied each and every one of four required tests: (1) that they had a strong likelihood of prevailing on the merits of their claims (i.e., that they could convince the court that federal government had violated some law); (2) that they would suffer “irreparable harm” if the injunction were not granted; (3) that balancing the harms to plaintiffs from denying an injunction against the harms to the National Park Service’s interests of granting the injunction favored granting the injunction; and (4) that an injunction would be in the public interest.
On the issue of whether the plaintiffs had standing to bring claims seeking relief for DBOC, which was not a participant in July’s lawsuit, Her Honor invited attorney Stuart Gross to explain why they had standing…but she frequently interrupted him, saying that he was wrong, he wasn’t convincing her, and so forth. He made arguments about the Coastal Zone Management Act and then the National Aquaculture Act, but no headway with the judge.
Judge Gonzalez-Rogers made clear that in denying the motion for an injunction, she found that the plaintiffs had not met a single one of the four tests for an injunction, noting with regard to the balance of harms and the public interest that she’d already ruled on those in denying DBOC the injunction it sought in early 2013.
“Your proposition is nonsensical. It makes no sense. A permit has lapsed. It has lapsed. The only relief is to issue a permit,” the judge said.
“Your motion is denied. Not only do I have doubts about the sustainability of this cause of action, but the law is clear that a reduction in the supply of a product can’t constitute irreparable harm because a monetary remedy is possible; as this court has indicated in other rulings, there is no fundamental difference here with the issues raised [in February 2013;] this motion is incredibly untimely. It is not as if parties who brought this action didn’t know it was happening; these issues have been debated in public and in the courts for years. I don’t know if you’re corresponding with Drakes Bay Oyster Co. or what is your strategy for bringing this kind of action so late in game, and I understand your claim that it only became an issue after the Supreme Court ruled, but I find that to be unpersuasive. The motion for a preliminary injunction is denied.”
The judge then said that she assumed the federal government would be bringing a motion to dismiss (i.e., to toss the case out for failure to state any viable legal claims and because the plaintiffs lacked standing to bring these claims). The government attorney replied that that was their intention.
Two amicus “friend of the court” briefs were filed in this case, but the court accepted only one; the other was rejected by the court. The amicus brief submitted by the Environmental Action Committee of West Marin and other environmental organizations was filed by attorneys at Earth Justice and was accepted by the court. The brief argued that the “Plaintiffs now, at the eleventh hour, rehash the same arguments this Court and the Ninth Circuit found unavailing in Drakes Bay, while utterly ignoring the environmental harms that are resulting from continued operation of the oyster farm and the public interests in favor of securing wilderness protection for Drakes Estero. Further, the speculative economic harms they assert are not harms cognizable for the purposes of granting an injunction.”
EAC’s amicus brief included two new court declarations explaining the harm to Drakes Estero from continued operations as evidenced by the underwater video footage taken by Richard James (available online at the You Tube channel, Coastodian.)
The amicus brief filed by Judy Teichman on behalf of Phyllis Faber, Robin Carpenter, Laura Watt and others was rejected by the court and not considered credible. The attorneys for the federal government opposed the amicus brief because it made “the same arguments as Plaintiffs and used similar authorities to support their identical interests,” did not “provide unique information or perspective to the Court,” and because the amicus applicants [Faber, Carpenter] “are “friends of the plaintiffs” and not “friends of the court,”” resulting in “a highly partisan attempt to influence the Court to find in favor or Plaintiffs by repeating the same arguments advanced in Plaintiffs’ motion for preliminary injunction.”
The judge apparently agreed with the federal attorneys reasoning since she rejected the Teichman brief.
And here’s where my personal perspective and concern for community goodwill come in. While nothing in this long legal battle and community controversy might have been predicted, one hopes that this latest chapter will close the book, finally, on the divisiveness and heated, personal acrimony that has strained West Marin residents – and others – and poisoned the common well of amity and collegiality.
The special permit issued to Drakes Bay Oyster Co. to operate within Point Reyes National Seashore expired almost two years ago. The federal court and Supreme Court have upheld that expiration. It’s truly time to let go of this fight, heal the community wounds, and heal our marine wilderness at Drakes Estero.