Supreme Court Amicus Briefs Support DBOC

In an impressive show of support, four strong amicus briefs have been filed
with the U.S. Supreme Court in support of Drakes Bay Oyster Company’s petition
to have its case heard. The briefs show that farmers, environmentalists, scientists,
chefs, agriculturalists, conservationists, and historic preservationists all support
the historic oyster farm.

At stake is whether the government, in making countless everyday decisions,
can be taken to court when it abuses its power, misinterprets the law, or misrepresents
science. The U.S. Court of Appeals for the Ninth Circuit held that a federal
court does not have jurisdiction to review a discretionary agency decision for
abuse of discretion. Drakes Bay Oyster Company petitioned the U.S. Supreme
Court on April 14, 2014 for a writ of certiorari to review that judgment.
Because Drakes Bay showed that there is a “reasonable probability” that the
Supreme Court will take this case and a “significant possibility” that the oyster
farm will win, the Ninth Circuit has allowed Drakes Bay to remain open while it
takes its case to the Supreme Court.

The amicus briefs filed in support of Drakes Bay make compelling arguments
for why the Supreme Court should take the case.

And the very fact that there are so many amicus briefs is a positive indicator
for the oyster farm. A 2008 study published in the Georgetown Law Journal
showed that amicus briefs make a big difference. With no amicus briefs filed in
support, the odds of certiorari being grants were around 2 percent. With at least
one amicus brief filed in support, the odds of certiorari being granted were around
20 percent If, as in this case, there are at least four amicus briefs filed in support
of the petition, the odds jump much higher, to 56 percent. This means that the
oyster farm may have a better than even chance of having the Supreme Court take
its case.

This story provides a detailed report of one of the briefs, that of William T.
Bagley et al. Future stories will discuss the other three briefs, filed by the Monte
Wolfe Association, by the Pacific Legal Foundation and the California Cattlemen’s
Association, and by Dr. Corey Goodman and Dr. Paul Houser.
Elder environmentalists and farm-to-table chefs support aquaculture
Former California Assemblyman William T. Bagley and former Congressman
Paul Norton “Pete” McCloskey (co-author of the Endangered Species Act and cochair
of the first Earth Day) are two of the elder environmentalists joining the
brief filed by San Francisco lawyers Judith Teichman and Alexander D. Calhoun.
The brief underscores the overwhelming support for the oyster farm in the West
Marin community and beyond. As the brief points out, “The oyster farm is a small
presence in the Seashore’s marine wilderness but a large presence in California
and a critical source of fresh shellfish for the Bay Area.”

Additional elder environmentalists joining the brief are Phyllis Faber, noted
wetland biologist and co-founder of the Marin Agricultural Land Trust, and the
Tomales Bay Association, a 50-year old West Marin County environmental organization.
Tomales Bay Association supports DBOC as “a critical component of ongoing
habitat restoration projects for Threatened & Endangered species,
especially native oyster restoration projects in SF Bay and elsewhere in the State.”
Emphasizing the importance of DBOC shellfish to the menus of the farm-totable
restaurants in the Bay Area, the brief is also joined by a number of distinguished
chefs and restaurants: Patricia Unterman, chef-owner of the Hayes Street
Grill, a San Francisco Civic Center restaurant that has specialized in fish since
opening in 1979; Sheryl Cahill of Station House Café in Point Reyes Station, celebrating
its 40th anniversary, where oyster stew is a signature dish; Christian
Caizzo of Osteria Stellina, Point Reyes Station, an Italian restaurant “with an unwavering
commitment to local organic products” that serves DBOC oysters raw
and on pizza; and Luc Chamberland, whose Saltwater Oyster Depot in Inverness
features oysters shucked “moments after they leave the bay.”

Producers in California and around the country are unable to meet the growing
demand for shellfish. On behalf of the Hayes Street Grill, and the many Bay Area
restaurants, including other amici, amicus Patricia Unterman confirms “The loss
of oysters produced by DBOC would have a devastating impact on our mission,
our menu, and the expectations and pleasure of our customers. We cannot replace
the fresh, local, shucked oysters from DBOC.”

Survival of the oyster farm is vital to the survival of the ranches
The brief argues for the support and development of innovative, ecologically
sound and sustainable agriculture practices, and points out that the fate of the
oyster farm is entwined with the fate of the ranches here. “Survival of the oyster
farm is vital to the survival of the ranches in the seashore,” the brief states, and
the ranches in the Seashore are an essential component of agriculture in Marin
and Sonoma counties.”

Amicus Dr. Stephanie Larson, Livestock and Range Manager and Director of
the UCCE, Sonoma County, develops and implements projects that integrate dairy
and livestock production with rangeland management in Sonoma and Marin. She
has extensive experience working with Seashore ranchers to develop individual
ranch plans, which address water quality issues in the Drakes Estero watershed.
Dr. Larson is concerned that despite these efforts the ranches in the Drakes Estero
watershed may be held responsible for declining water quality in the Estero and
required to take additional cost prohibitive measures if the filter feeding oysters
are removed from Drakes Estero.

Underlining the importance to the oyster farm to the future of agriculture, the
brief is also joined by a many agriculturalists and agriculture organizations in addition
to Dr. Larson:
• The Sea Grant program of Scripps Institution of Oceanography, UC San
Diego, which promotes the wise use of coastal and marine resources and sustainable
aquaculture development
• Mike and Sally Gale, Owners of Marin ranch where they raise apples and
grass fed beef;
• Peter Martinelli, a third-generation Marin farmer
• West Marin Compost Coalition, a group of individuals working to divert all
organic wastes from landfill disposal to composting for the benefit of Marin
farms, gardens and ranches
• Agricultural Institute of Marin, a nonprofit corporation that operates Certified
Farmers’ Markets in Marin, Alameda and San Francisco
• Alliance for Local Sustainable Agriculture, an unincorporated association of
“environmentalists supporting and promoting local sustainable agriculture
through education, research, conflict resolution and advocacy”
• California Farm Bureau Federation and Marin and Sonoma County Farm Bureaus,
nonprofit membership corporations whose purpose is, respectively, to protect
and promote agricultural interests in the State and in their Counties and to
find solutions to the problems of their farms and rural communities
• Marin Organic: Founded in 2001 by “a passionate group of farmers, ranchers
and agricultural advisors to put Marin County on the map as a committed organic
county,” Marin Organic fosters a “direct relationship between organic producers,
restaurants, and consumers” to strengthen commitment and support for local organic
farms, such as DBOC.

To learn more about the interests of these amici and their arguments for the
continuation of Drakes Bay Oyster Farm, read the brief at:
http://savedrakesbay.com/core/wp-content/uploads/2014/05/cert-amicus-brief-
Bagley-et-al-final.pdf