Tuesday, September 03, 2013

Drakes Bay v. Jewell (9th Cir. - Sept. 3, 2013)

Maybe you only care about this opinion if you're a "foodie" who likes local oysters from Marin County.

By the way, if so, you're out of luck.  Because the Drakes Bay Oyster Company is going away.  No more oyster farming in the Point Reyes National Seashore.  Drakes Bay had its forty-year lease from the U.S. (after selling the property therto), and it expired in 2012.  End of story.  The Secretary won't extend its permit, the district court won't issue a preliminary injunction, and the Ninth Circuit won't reverse.  Done.

The case is interesting -- to me at least (a non-Northern Californian who doesn't eat oysters) -- due to the lineup of the panel.  Judge McKeown writes the majority opinion.  Judge Watford dissents.

Similar, but by no means coextensive, sentiments.  Starkly different results.

On the merits, I think that both sides make darn good points.  I very slightly think that I'd side with Judge McKeown.  But that's a very slight preference.  I might well be wrong.  (As might she.)

But I think that Judge Watford's probably wrong that the Secretary of the Interior thought she was "bound" by the Congressional statute at issue, and hence that his decision was arbitrary.  It's a close question -- really close -- primarily (in my view) because the Secretary's decision is a classic example of obfuscatory legalege.  I think that the Secretary didn't feel compelled by the Act, but instead wrote a decision that wiffle-waffled and raised a ton of points and then just basically did what she wanted to do.  Which, I might add, she's entitled to do.  The closest Judge Watford can come to proving that the Secretary thought he was "bound" was when the Secretary said she gave "great weight" to a particular Congressional statute -- a statute that Congress later said the Secretary was free to ignore.  But the Secretary expressly gave "great weight" only to the "policy" behind that Act; that policy being the general desire for wildnerness lands to remain wild (rather than farmed).  I think the Secretary of the Interior internalizes that policy anyway.  You've just got some lawyer writing up all the reasons s/he can think of why a decision should come out a certain way, and it's a classic move to say that one of the reasons you're doing X -- which you totally want to do anyway -- is because you're "motivated" by a policy that's not merely your own naked preference but rather something that's "manifested" elsewhere.  And the policy here is manifested in that prior statute.  Yes, that statute's not dispositive.  But when the Secretary said there's an underlying policy, she's right.  She decided not to renew the permit because the Secretary of the Interior wanted a National Seashore to be "wild".  Shocking, I know.  She supported this decision by referring to a congressional policy preference -- one that does indeed exist -- that says that most wildnerness lands should indeed be wild.  It's true that that's not dispositive for the permit here, because Congress later expressly said that it's up to the Secretary to extend this particular permit or not.  (Thank you, lobbyists for Drakes Bay Oyster Co.)  But when she said "no, thanks, no permit," my gut tells me that was because she just didn't want to extend it.  Not because she actually felt "bound" -- as Judge Watford thinks -- by a "policy" preference articulated by a general (but not controlling) statute.

But I readily concede I might be wrong.  It's too bad that administrative decisions are often written in a confusing, overly legal manner.  Government officials do so precisely to avoid challenges to their decisions -- or at least successful ones -- but sometimes doing so is counterproductive.  As here.  It is also too bad we can't simply ask the Secretary what she meant.  But we can't.  And even if we could, I have little doubt that she wouldn't change her mind.  Fallacy of sunk costs, etc.

But my bet's that if we could peer into her soul, the Secretary here made the decision on the merits, and not on a mistake of law.  So her decision stands.

But just like the Secretary might perhaps have been wrong, so too for me.

God knows I've been wrong before.

But my bet's she's right.