*4 MсKEOWN, Circuit Judge: appeal, This pits which oyster farm, lovers and well-known “foodies” against aligned environmentalists with the federal government, generated has consid- erable attention in the San Francisco Bay Before: M. MARGARET McKEOWN area.1 Drakes Bay Oyster Company WATFORD, and PAUL J. Judges, (“Drakes Circuit Bay”) challenges *5 MARBLEY, and ALGENON L. District discretionary Interior’s decision to Judge.* let Drakes Bay’s permit for commercial farming expire according to its
ORDER terms. permit, The which farming allowed Seashore, within Point Reyes National 3, The opinion September 2013, filed on set to lapse in November 2012. Drakes appearing hereby is Bay requested an extension pursuant to a An amended. opinion amended is filed Congressional enactment that provided, in concurrently with this order. relevant part, any “notwithstanding other amendments, With these Judge provision law, of the of the Inte- deny McKeown voted the petition for rior is authorized to special issue a use rehearing en Judge banc and Marbley so permit with the same terms and conditions recommends. Judge voted to Watford as the existing Depart- authorization.” petition. the grant Act, ment the Interior Appropriations Amicus Curiae Catherine Rucker’s re- 111-88, § No. Pub.L. 123 Stat. judicial for quest notice support of her (2009) (“Section 124”). the After Sec- opposing petition brief rehearing for retary permit, declined extend the banc is en DENIED. Bay sought a preliminary injunc- The full court has tion, been arguing advised Secretary’s decision for petition rehearing en banc and no violated authorization in Section tp judge has requested a vote on whether Policy Act Environmental National. * Algenon Now, The Marbley, Honorable racy L. Organic, District Marin and the Alliance Judge for the U.S. District Court for the Agriculture For Local Sustainable filed an Ohio, Southern by designa- District of sitting support amici curiae Bay. brief tion. The Environmental Action of West Committee panel Marin, 1. The appreciates briefing the amicus National Parks Conservation Associa- by supporters filed tion, of both sides. Alice Wa- Council, Natural Resources Defense ters, Bay Oyster Tómales Company, Hayes Seashore, Save Our and the of Na- Coalition Grill, Street eration, the California Farm Bureau Fed- tional Park Service Retirees filed amici Bureau, County the Marin Farm support curiae parties. brief in of the federal Bureau, Sonoma County Farm Democ- Food deny- order fore, court’s the district and affirm seq., et
(“NEPA”), 42 U.S.C. injunction. preliminary a ing regulations. federal various wheth- to consider jurisdiction haveWe Background “constitutional, Secretary violated er the Reyes National legal man- Seashore The or other regulatory I. Point statutory, restrictions,” Corp. v. Inv. Ness or dates Point Congress established Serv., 512 F.2d Agr., Forest Dep’t U.S. (“Point Reyes”) in 1962 Seashore National (9th Cir.1975), agree with and we 706, 715 pur- preserve, to save and “in order is court the district recreation, benefit, in- public poses any such viola- proving likely to succeed diminishing sea- portion spiration, 124, Con- Through Section here. tions remains States that shore of United authorized, require, but did not 13, 1962, gress Sept. Act of undeveloped.” permit. Secretary to extend 87-657, 538. The 76 Stat. Pub.L. No. deny an exten- grant decision County, left the Califor- in Marin area located discretion, without to the biodiversity. sion nia, exceptional and exhibits mandatory Estero, considerations. imposing to Drakes Reyes is home he was clearly understood bays. of estuarial series he did not permit; to issue authorized for Point enabling legislation of his discretion misinterpret scope adminis- Secretary of the Interior gave In an to inform effort Section under direct- authority over the area and trative decision, Secretary undertook his waters, lands, other acquire him to ed review, believed he although he NEPA the seashore. and interests within property Nonetheless, to do so. obligated was not 3(a), at 539-40. §at 76 Stat. Id. *6 in the review errors NEPA any asserted the conveyed to of California the State harmless. were and sub- of the tide “all United States Point other lands” within merged the sub- Congress committed lands Because rights to Reyes, reserving certain minerals to his decision of the stance fish to reserving right the to itself and discretion, making “the cannot review we 2604-2605, Stat. 1965 Cal. Californians. by agency.” the judgment of an informed § 1-3. the Secre- permit lapse, the letting Id. In importance the
tary emphasized Act of Wilderness impact of the de- environmental long-term areas 1976, designated certain Congress Estero, is located Drakes which cision on under seashore as “wilderness” within the designated potential as wilder- in area No. Act of 1964. Pub.L. the Wilderness that, when He also underscored ness. Aсt 94-544, Stat. 2515. Wilderness property Bay purchased Drakes Preser- “established National Wilderness 2005, eyes open to the federally it did so with wide composed be System vation pre- acquired from its as by Congress fact designated owned areas ” 1131(a). just § sev- expire owner was set 16 U.S.C. decessor areas.’ ‘wilderness later, Drakes for the years 2012. to “be administered en areas are Such judgments people American enjoyment the value disagreement with use and unim- legitimate leave by is not as will them such manner made as enjoyment the decision. future use and paired to set aside basis on which have, wilderness, for the determine, provide so as to we we as Once preser- areas any statutory [and] of these protection not violate Secretary did character.” Id. wilderness to intercede vation their mandate, province it not our excep- subject statutory We, Accordingly, there- discretionary decision. in his existing that, tions and private rights, the Act “[a]ny permit for continued use will provides that “there shall be no commer- be issued in accordance with National Park enterprise cial ... within wilderness Service regulations in [“NPS”] effect at 1133(c). area.” 16 U.S.C. the time .the expires.” reservation In late 2004, Bay agreed purchase The Point desig- Wilderness Act assets of the Oyster Johnson Company. areas, other including nated Drakes Este- The RUO was transferred along with the ro, “potential wilderness.” Pub.L. No. purchase. The RUO ended on forty-year 94-544, Congress 90 Stat. 2515. consid- November 2012. designating ered Drakes Estero as “wil- derness,” but declined so. legis- to do purchased farm, When it history lative reflects took Bay was well aware that the reservation into account the Department of the Interi- expire would and received multiple position or’s commercial farm- confirmations of this limitation. The ac- ing operations taking place in quisition documents specifically referenced Estero, as well as California’s reserved “that certain Reservation of Possession rights special use permits relating to 10/12/1972, Lease dated by entered into zone, pastoral rendered the area “in- Seller and the National Park Service.” In consistent with wilderness” the time. January the National Park Service 94-1680, (1976), No. H.R.Rep. at 5-6 re- wrote to Kevin Lunny, an owner of Drakes printed in 1976 Bay, U.S.C.C.A.N. highlighting “the poten- issue of the Congress specified separate legislation tial wilderness designation.” The Park “potential wilderness additions” in Lunny Service told that wanted to make Point Reyes “shall ... designated be wil- sure he was aware of the Depart- Interior by “publication derness” in the Federal legal ment’s position “[b]efore [he] closed Register of a notice by Secretary of on purchase” escrow of Johnson’s the Interior that all thereon prohibit- uses The Park farm. accordingly Service sent ed Act ... Wilderness have Lunny a memorandum from Depart- ceased.” Act of Oct. Pub.L. No. Notably, ment’s Solicitor. the Solicitor 94-567, 3,§ 90 Stat. 2692. disagreed with the proposition previously expressed in the House Report accompa- *7 Bay Oyster Company’s Opеra- II. DRakes nying Reyes the Point Act Wilderness tions California’s retained fishing and mineral Oyster farming long has a history in rights were inconsistent with wilderness Estero, to the dating designation. concluded, 1930s. The Solicitor “the Charles Johnson Oys- started the Johnson Park is Service mandated the Wilder- Company ter in Act, Drakes Estero in the ness the Point Reyes Wilderness Act 1950s. His farm was in operation Management and its Policies to convert a parcel on five-acre of land on the potential wilderness, shore Oys- i.e. the Johnson of the Congress estero when created the Company ter tract and the adjoining Este- Reyes 1972, Point National ro, Seashore. In to wilderness status as soon as the non Johnson sold his five acres to the conforming United use can be eliminated.” States, electing to a forty-year 2005, retain res- the Park March Service reiterated (“RUO”). ervation of occupancy use and guidance its regarding the Drakes provided that, The RUO “[u]pon expiration purchase property. the Johnson It spe- term, reserved special permit a use cifically Lunny, “Regarding informed may be issued for the continued occupancy 2012 expiration date potential and the wil- property for derness, herein review, described legal based on our no new added.) purposes.” (Emphasis It permits added will be after that issued date.” Point any location other than tion to De- 124 and the III. Section Seashore; any- nor shall Reyes National cision prece- be cited thing in this section 2009, later, in years Several any management potеntial for dent of the Interi- addressed the Seashore. wilderness outside Bay a new authority to issue Drakes or’s The House Conference 2932. 123 Stat. legislation. appropriations permit language the final Report reflected proposed committee appropriations Senate to is- Secretary discretion “provid[ed] the Secretary to is- requiring provision a Cong. special permit-” use sue for an additional permit use special sue a 28, (daily ed. H11871-06 October Rec. Cong. 111th H.R. years. ten added). 2009) (emphasis (as Senate, 120(a) July reported In- 2009) Secretary “the refer- (providing that Section 124 report The NAS existing authoriza- enced, extend the in Drakes terior shall Mariculture “Shellfish added). ”) Seashore, The Senate (emphasis Estero, ... tion National mandate, and amended rejected California,” light this prepared Secretary “is provide expiration language approach of the of “the rather permit, help to issue” “to permit, authorized in order date” of the Cong. Rec. required to do so. re- than issues raised with clarify the scientific 2009). S9769-03, (daily Sept. ed. S9773 shellfish mariculture activities gard to the report highlight- in Drakes Estero.” The provides: enacted law as “limited scientific litera- that there was ed November expiration on Prior to and that there was ture” available evidence Oyster Compa- Bay the Drakes 2012 of negative and oyster farming had both Occupancy of Use and ny’s Reservation environment. The on the positive effects (“ex- special permit use and assоciated “The ultimate decision report explained: authorization”) within isting farming in prohibit shellfish at Point Sea- Estero National necessarily requires value Drakes Estero shore, notwithstanding provi- other be in- and tradeoffs can judgments law, Interior sion formed, resolved, by science.” but special per- use to issue authorized letters to the conditions sent the same terms mit that he authorization, July requesting exercise except as existing as the issue a herein, authority under years of 10 his Section period provided Provided, Park Service staff met permit extension. from November discuss a draft Lunny soon after to authorization is sub- with such extended That process. a NEPA complete schedule to payments annual the United ject to through the Ser- Department, of The Park on the fair value States based market *8 vice, to formally began prepare property for the then use of the Federal the (“EIS”) Impact The Environmental Statement of such renewal. Secre- duration public the and engage in an effort “to take into recom- tary shall consideration continuing com- Academy of the effects of the the evaluate National mendations within the national sea- operation to mercial Report pertaining [“NAS”] Sciences the decision of “to inform mariculture in Point Na- shore” and shellfish permit use should modifying any special a new before whether Seashore tional Bay Oyster Company extended be issued.” Drakes and conditions of the terms Permit, 65,373 Fed.Reg. Nothing Special this section in Usе authorization. 2010).2 (Oct. 22, any applica- be construed have shall EIS, require compliance with 124 did not Department stated that Section 2. In the final the Park The Service issued EIS vice draft to let the expire according to (“DEIS”) public for comment Septem- in its terms. explained that He his decision ber com- was submitted “based on matters law policy,” and draft, criticizing ments much of the along including “explicit the terms of the 1972 with quality complaint.3 Congress conveyance a data Oyster from Johnson Com- expressed relating “concerns pany the validi- to the United States” and “the poli- ty of the underlying science the DEIS” cies of NPS concerning commercial use and “directed] therefore National within a unit System National Park Academy data, of Sciences to assess the and nonconforming uses within potential analysis, and conclusions in the wilderness, DEIS in or designated as well specif- order to ensure there ais solid scientific ic legislation wilderness for foundation the Final Environmental National Seashore.” He recognized that Impact expected Statement in mid-2012.” 124 “grant[ed] Section the authority [him] 112-381, (Dec. Rep. H.R. No. SUP,” Conf. at 1057 to issue a new but elected to effec- 15, 2011), reprinted U.S.C.C.A.N. tuate Park policies Service and the princi- 605, 788. ples he discerned legislation. wilderness report NAS released its August decision, In his recog- report 2012. The noted several instances nized the “scientific uncertainty” and “lack where the DEIS “lack[ed] assessment of of consensus in the record regarding the uncertainty the level of with precise associated nature scope and of the impacts scientific information on which conclusions Bay’s] [Drakes operations have” on were based.” But the report concluded wilderness other and resources. General- that the available research did not admit of ly, he found the impact statements certainty: supported proposition letting permit expire
The scientific literature on “would in long-term Este- result ro impacts is not extensive and beneficial research on the to the estero’s natural potential impacts of shellfish environment.” But explained mariculture he on sparser.... the Estero is even draft and Con- final EIS were “not material to sequently, for most of the legal resource cate- policy provide factors that gories the committee found decision, that there is the central basis” for his though high moderate or level of uncertainty they “helpful” were they informed impact associated assessments him regarding “complexities, subtle- the DEIS. ties, and uncertainties of this matter.” He disclaimed reliance on “the data that was EIS, The final issued on November flawed,” asserted to be noted that his responded to the NAS review. The decision was on “based the incompatibility EIS revised the definitions of intensity of commercial activities in wilderness.” habitats, impacts wildlife and wildlife assumptions clarified those underlying decision, In accordance with his the Sec- conclusions, and added discussion retary Park directed the Service to publish uncertainty of scientific data. a notice in Register the Federal announc- issued his decision ing on No- the conversion of Drakes Estero from 29, 2012, directing vember potential Park Ser- designated wilderness. This *9 provision gave because that procedures NEPA the Secre- of NEPA.” The reiterat- tary position authorization to the ed make deci- this in his decision. “notwithstanding any sion provision other of Nevertheless, law.” the “deter- 3. quality complaint Drakes data is not helpful that it mined is to generally appeal. follow the before us in this 1082 subject of question novo the viewing the de Bay sued Drakes followed.
litigation APA). under the We jurisdiction matter declaratory judgment seeking a Secretary, the jurisdiction to review whether do have the Administra- violated that his decision any legal mandate con- (“APA”), Secretary violated 5 U.S.C. Act tive Procedure 124 elsewhere. How- in tained Section an order seq., § 551 et court ever, agree with the district a ten- we to issue new direct the Park Service the Secre- jurisdiction to review an order we lack and, alternatively, year permit, discretionary decision tary’s ultimate for a new deci- remanding vacating and permit. a new whether to issue preliminary Bay moved for sion. op- having to cease its to avoid injunction argues that we government suit, given as it had been pending erations to review of jurisdiction lack from property its ninety days to remove 124, because, under Section Bay’s claims the estero. “committed to Secretary’s decision was that it did court determined The district 5 by law.” U.S.C. agenсy discretion to review the Secre- jurisdiction have not 701(a)(2). to the exception This narrow statutory con- “the tary’s decision because agency of judicial of review presumption and complete discretion” text affords APA “if the stat applies under the action ‘no provides 124 Court “Section no that a court would have ute drawn so ap- for the Court meaningful standard’ against which meaningful standard the Decision not to issue ply reviewing exercise of discretion.” judge agency’s pro- went on to a New The court SUP.” 470 105 Chaney, v. U.S. Heckler for denial: “the an alternate rationale vide (1985); see also L.Ed.2d S.Ct. Plaintiffs can not find that Court does Doe, 592, 599, 108 486 U.S. v. Webster a Sec- likelihood of success under show a (1988) (charac L.Ed.2d 632 S.Ct. 706(2) [arbitrary, capricious, tion standard for circumstances terizing exception as discretion, or otherwise not an abuse of (internal apply”) is “no law to where there Fi- APA].” accordance with law under omitted). and citation quotation marks balance, nally, “[o]n court held that of the substance or result But even where of both combining requirement fully agency’s to an is committed decision interest more equities public and the discretion, jurisdiction court has “a federal not find these broadly, the Court does of agency action for abuse dis to review granting pre- weigh favor of elements abuse of discre alleged cretion when the liminary injunction.”4 agency tion involves violation constitutional, statutory, regulatory or oth Analysis Ness legal mandates or restrictions.” er Scope cir F.2d аt such Corp., Inv. 715. I. and the Jurisdiction “Notwithstanding” cumstances, only ju lacks a federal court Clause alleged an abuse risdiction to review matter, we address As a threshold making “the regarding discretion disagree we jurisdiction. point, On this Id. judgment by agency.” informed Oregon court. See part with district Serv., Here, secre- Corp., “[t]he in Ness Inv. Forest Natural Desert Ass’n v. U.S. (9th Cir.2006) (re- ‘authorized,’ required, to issue” tary is n. 1 465 F.3d argument, Bay's briefing we need not defer granted full panel A motions injunction pending necessarily expedited emergency panel’s motion for an to the motion legal ques Houser, appeal are serious "because there United States decision. sharp hardships tips 1986). tions and balance (9th Cir. the benefit of ly appellants' favor.” With *10 and permit, statutory there are “no re- strictions on the Secretary’s exercise of discretion, strictions or precise definitions then prescribing jurisdiction we have to qualifications” for issuance. compliance Id. Conse- review with those limits. quently may only we review whether the The Secretary’s decision is also Secretary legal followed whatever restric- subject applicable to procedural con to applied decision-making tions his pro- “[Wjhen straints. two capa statutes are parties agree cess. The the Ness co-existence, ble of it duty is the applies, framework disagree but wheth- on regard courts ... to each as effective.” restrictions,” id., er any “mandates or ex- Mancari, Morton v. 535, 551, 417 U.S. Bay interprets ist. Drakes Section (1974). S.Ct. Thus, L.Ed.2d 290 NEPA, regulations and various federal as jurisdiction we have to consider the appli imposing legal restrictions on the Secre- cability of NEPA and procedures other tary, but it require- contends that these that do not conflict with the authorization only ments to apply deny a decision to an in Section 124. extension, not to granting a decision Procedural constraints that do not con- Secretary extension. The contends that flict with the authorization apply would “notwithstanding” clause of Section the Secretary’s decision regardless 124 sweeps away any statutes regula- and granted whether he permit. denied the might tions that apply per- otherwise ato reject We Drakes Bay’s anomalous posi- application. mit Neither side it quite has tion that had “unfettered right. authority permit,” to issue the while his general matter,
aAs “notwith deny “discretion to Bay] [Drakes a [per- standing” nullify clauses conflicting provi mit] [was] bounded NEPA and other Novak, sions of applicable law. See United Bay States v. points law.” to the Cir.2007) (en fact that says Section 124 that “notwith- banc) (“The standing any law, Supreme provision other Court has indicated Secretary of as a the Interior is general proposition authorized to statutory a special permit,” issue use rather ‘notwithstanding’ than clauses broadly sweep that he is laws.”). authorized to “issue or deny” potentially aside conflicting Be one. From language, fore Congress passed Section the De extrapolates that Section 124 “was enacted partment’s Solicitor had issued a series of to make it easy permit.” to issue the opinions holding Act, that the Wilderness statute does not dictate a one-way such Act, the Point Wilderness and Park Indeed, ratchet. if Congress- had so want- management Service policies legally pro ed to make it easy or automatic for Drakes any hibited extension permit. Sec Bay, rejected one why wonders the pro- tion 124’s “notwithstanding” trumps clause posal simply that would have required the purports law prohibit or pre Secretary to permit. issue a new clude the extending from from, legislation away ultimate was a move permit, such a law as would “conflict” toward, not favored result. Section 124’s authorization. may Thus we review whether the Secretary misunder A natural reading of the authorization authority stood his permit to issue a issue a implies authorization related closely question of whether he one, issue we see no reason to inter- mistakenly interpreted statutory other pret “notwithstanding” ap- clause as provisions placing legal restriction on plying to one outcome but not the other. authority. his government As the itself ac See Salish and Kootenai Confederated knowledges, if States, Section 124 provides re Tribes United
1084 Cir.2003) the dissent’s recitation accuracy of of (interpreting
1196-97 Act, history of the 1976 legislative power both the of to mean “authorized” word congressional citation to the Secre- the dissent’s request for deny or a grant to tribe). designating of support for a in trust statements tary to take land in 1976 do part appro- of as wilderness еnacted Drakes Estero 124 was Section that granting reliably Congress Secre- legislation, not reflect priations act, providing without tary authority to 124 of the dissent’s Section enacted that view on Congress’s Bay’s operations statement were that Drakes view the other. way one or converting decision to “not an ‘obstacle’ at Dissent to wilderness status.” Estero into this to read effort position would rewrite 1097. The dissent’s prefer- a provision appropriations short something to like “notwithstand the clause is unavail- ence for issuance oys that policy view ing Department’s so attempt to do ing, as is the dissent’s incompatible with wil farming can be ter history from decades legislative based on cites The dissent designation.” derness misunderstands earlier. The dissent text, legisla or even the nothing from the history of the legislative significance 1976, support this history, of Section Act of which tive Wilderness Bay at Even Drakes did interpretation. the notion focuses on far oyster farming urge go as desirable us to this position time viewed this argue designation. with wilderness and consistent afield.5 Here, merely grants where Section legislative histo
The dissent stacks
action, the “notwith-
authority to take an
another,
over
ry from one enactment
targets
“poten-
laws that
standing” clause
decades,
124 itself does not
when Section
authority.
tially
with that
conflict[ ]”
materials have
the link. “Extrinsic
make
Novak,
at 1046.
the De-
Given
only to
statutory interpretation
a role
that wilder-
opinions in 2005
partment’s
on the
they
light
shed a reliable
the extent
any exercise оf
legislation prevented
ness
understanding of
Legislature’s
enacting
the not-
authority
permit,
to extend
ambiguous terms.” Exxon Mo
otherwise
clear
func-
Servs., Inc.,
withstanding clause has a
Corp. Allapattah
bil
convey
prior
legislation
2611,
tion—to
162 L.Ed.2d
125 S.Ct.
U.S.
added).
legal
a
barrier.6
(2005)
not be deemed
Regardless
should
(emphasis
"[cjontinued
breaking point.
history
"[U]ne-
tive
conclusion that
5. The dissent's
beliefs,
are not
approvals,
and desires
oyster
fully
nacted
operation
farm is
consistent
Act,”
Dep’t Consumer
laws.” Puerto Rico
Wilderness
Dissent
with the
Affairs
Corp.,
U.S.
Bay
v. Isla Petroleum
given
particularly puzzling
that Drakes
(1988).
1350,
Occupancy and
authorization”)
to Drakes
According
legislation.
within
derness
(“existing
mit
National
124 authorized the
Section
Bay,
because
Drakes Estero
provi-
other
Seashore, notwithstanding
“notwith-
Secretary to extend
Interior is
law,
law,”
sion of
standing any
provision
other
*13
per-
use
special
to issue
rely-
authorized
...
from
Secretary
“prohibit[ed]
was
Secretary on
put
the
...”
mit.
Section
as a reason
of other law
ing on a violation
by other
hamstrung
notice that was not
he
justify permit
denial.”
exten-
permit
he determine
law should
Bay’s reading of the decision
Drakes
him
The section left
appropriate.
sion
whole,
as a
the deci-
Taken
not tenable.
the
values and
wilderness
free to consider
Secretary explicitly
that the
sion reflects
underlying a commer-
interests
competing
extending
permit
the
recognized
aside as a
in an area set
operation
cial
legally
was not
lawful and that he
would be
natural seashore.
by other laws.
constrained
juris-
have
that we
question
narrow
.The
permit
let the
Secretary elected to
. The
the
is whether
diction to review
law,
“violating” any
as
not to avoid
expire
authority under Section
misinterpreted his
but because the Secre-
Bay posits,
Drakes
no doubt that the
124. The record leaves
con-
competing
and
tary weighed
balanced
no.
answer is
and the value
the environment
cerns about
Secretary explained, “SEC.
theAs
weight to
give
He chose to
aquaculture.
of
authority and discretion
grants me the
legisla-
underlying wilderness
'policies
Bay]
special
per-
a new
use
[Drakes
issue
tion,
of
taking into account consideration
mit,
me to do so.”
it does not direct
but
impacts: “In addition
environmental
understanding
this
Secretary repeated
Environmental
considering
[Drafted
decision,
throughout
multiple times
and Final Environmen-
Impact Statement
that Section 124 “does
noting,
example,
Statement], gave great weight
I
Impact
tal
my
a result or constrain
discre-
not dictate
public policy, particularly
to- matters of
matter,”
“grants
that it
me
tion in this
and
act
policy inherent in the 1976
public
authority
issue a new SUP.”
Drakes Estero
Congress
of
that identified
Bay’s view that
Drakes
(Emphasis add-
potential
wilderness.”
on a misinter-
violated Section
rests
ed).
provision
misappre-
of that
and a
pretation
Bay
single
seizes on a
sen
Drakes
reasoning.
Secretary’s
hension of
summary
reasons as evidence
tence in a
Bay
argues that the statute
first
extending the
Secretary thought
easy”
“make it
to issue the
was intended to
above,
specific
...
wilder
ap- permit
this
would “violate
permit.
explained
As we
is n wishful
beginning
since the stat-
At
of the
proach
thinking,
legislation.”
ness
n
Indeed,
kind.
says nothing
decision,
ute
summary
includes one sen
man-
whether to
Congress
that,
isolation,
first considered
raises an am
tence
read
backed off
date issuance of the
but
[Drakes
“The continuation
biguity:
ultimately left the deci-
approach
policies
violate the
Bay] operation would
In the
discretion.
sion to
within
concerning commercial use
NPS
end,
more than let
nothing
did
Park
System
a unit of the National
Secretary know his hands were
nonconforming
potential
uses within
tied.
wilderness,
specific
as well as
designated
legislation for Point
Na
wilderness
that the Secre-
Bay
argues
next
added).
(Emphasis
extending
tional Seashore.”
tary erroneously concluded
However, reading
impacts
the sentence in context
ficial
to .the estero’s natural envi-
decision,
full
is obvious the Secre-
ronment.”
tary
erroneously
did not
consider himself
Bay suggests
that refer
by any
provision
legis-
bound
wilderness
encing even the Congressional “intent” or
decision,
reviewing
agency’s
lation.
policies underlying
the Point
Wil
uphold
we must
even “a decision of less
derness Act runs afoul of Section 124. But
clarity”
long
than ideal
so
agency’s
as “the
as Drakes
itself acknowledges, the
path may reasonably be discerned.” FCC
natural,
“most
reading”
common-sense
Stations,
v. Fox Television
556 U.S.
the notwithstanding clause is “notwith
513-14,
129 S.Ct.
The policy reliance on con- permit], the Secretary has authority the to siderations and Congressional intent is evi- issue SUP.” It is abundantly clear that throughout dent the Recounting decision. Secretary the recognized authority his un legal the factual and background, for ex- der Section 124 and did not beliеve he was ample, Secretary the cited the House of legally by any bound deny statute to the Representatives report committee accom- permit. policy But the that underlies the Act, panying the Point Wilderness 1976 Act and legislation other wilderness which stated: just expression is that —an public policy. of established,
As is well
it is the intention
expressions
These
“legally pre
neither
that those
designated
lands and waters
legally
extension,
clude” nor
mandate
and
potential
wilderness additions will be
they are not “other provision[s] of law”
wilderness,
essentially managed as
to
swept
that are
by
aside
Section 124’s “not
the extent possible, with efforts to stead- withstanding” clause. Statements in com
ily continue to remove all obstacles to
reports
carry
mittee
do not
the force of
the eventual conversion of these lands
law.
Vigil,
See Lincoln v.
508 U.S.
and waters to wilderness status.
192-93,
113 S.Ct.
lands and waters to wilderness status”
Secretary’s incorporation
pol-
precious
and thus ensures that
these
underlying
icies
legislation,
wilderness
preserved
resources are
for the enjoy-
Congressional
expressed
intent as
generations
ment of future
of the Ameri-
report,
House committee
was a matter of
public,
can
for whom Point
Na-
his discretion. The
noted cor-
tional Seashore was created.
rectly that
124 ...
pre-
“SEC.
does not
expressed
decision,
As
his
his choice
my
scribe the factors on which I must base
was consistent with the draft and final
“provides
decision.” Section 124
the court
impact
way
environmental
statements
that
to second-guess
weight
pri-
no
“support
proposition
ority
assigned”
removal
to be
to these factors. Ctr.
Bay’s]
Dole,
commercial
operations
Safety
[Drakes
Auto
(D.C.Cir.1988)
long-term
the estero would result in
(concluding
agen-
bene-
fishing
mineral
fornia’s
retained
for enforce-
deny petition
cy decision to
Although
gov-
rights.
where the
renewable
ment was not
past,
in the
adopted
Interior
this view
no standards
regulations provided
erning
review).
posi-
deemed that
Department has since
choice
was
judicial
to enable
Act itself
inaccurate. The
tion
Wilderness
Secretary’s make.8
mineral or
provides that retained
nowhere
Statutory
Bay’s Other
2. Drakes
designa-
wilderness
fishing rights preclude
Arguments
likely
Bay
Drakes
is not
to succeed
tion.9
Secretary’s current
theory
on its
124 affords no basis for
As Section
en-
permit’s expiration
position
Secre
the substance
us
review
—that
designation despite re-
decision,
measuring
ables wilderness
have no
stick
tary’s
we
fishing rights
Bay’s vari
tained mineral and
judge Drakes
against which to
—amount-
“legal error.”
Secretary’s policy de
ed to
ous claims
mistaken. To the extent
termination was
that wilder-
Bay also believes
Secretary’s decision can be evaluated
light
designation
improper
ness
statutory requirements
cited
against
farming community”
re-
the “historic
unlikely
Bay,
However, a
Drakes Estero.
mains on
showing the
was arbi
prevail
decision
establishing
*15
legislation
to the
amendment
capricious, an abuse of discre
trary and
the
specifically
authorizes
tion,
any
or in violation
law.
property
to lease
used for
Park Service
dairying pur-
Secretary
“agricultural,
ranching, or
Bay argues that
the
Drakes
10, 1978,
Act
Pub.L. No.
directing
poses.”
that Drakes
of Nov.
violated the law
wilderness,
95-625,
§
The
92 Stat.
3487.
designated as
be-
Estero be
Secretary’s
these uses
possible
was not
decision considered
designation
cause such a
“compatible activity”
a
within a wilderness
light
Act
of Cali-
under the Wilderness
agency
oyster farming
inconsistent with
position
the
“re
tinued
8. The dissent's
poli
has not in
Department’s
lied on factors which
and the
wilderness criteria
consider,”
to
Dissent at
is not
tended it
Secretary’s
removing
The
decision that
cies.
supported by
Under the deferen
the record.
Congress's earlier ex
the farm would further
standard,
arbitrary
capricious
up we
and
tial
moving
pressed goal of
toward wilderness
expla
agency action for which a rational
hold
designation
his au
was rational and within
agency
given, particularly where the
nation is
thority under Section 124.
sphere
expertise.”
"acted within the
of its
Kempthorne,
McFarland v.
Notably,
takes the
the State of California
(9th Cir.2008).
Secretary’s decision
rights, including
position that its retained
the
general
"Congrеss’s direction” to
on
relied
fish,
right
constitutional
do not cover
state
designation.
"obstacles” to wilderness
remove
aquaculture.
The California
Act bans commercial
While the Wilderness
"brief,
rejected
Game criticized and
Fish and
"subject
enterprise within wilderness areas
general,
conclusory” communications it
and
1133(c),
rights,”
§
existing private
16 U.S.C.
suggested
oys-
decades earlier that
made
policies
whether wilder
Park Service
inform
"right
by the
to fish”
ter farm was covered
designation
appropriate in the first
is
ness
present,
has issued
reservation. At
the state
Contrary
character
instance.
ization,
to the dissent's
Bay for its
water bottom leases to Drakes
legislation did not invoke a
the 1976
operations,
made clear
commercial
but has
judgment
compa
crystal
pass
and
on the
ball
past 2012 "is
that the use of those leases
oyster farming
tibility in Drakes Estero
expressly contingent upon
Bay’s]
[Drakes
thirty plus years
with wilderness some
later
compliance
grant
with the 1972
reservation
expire.
when the reservation of use would
and,
any special
expiration, with
use
Indeed,
after its
things change.
Secretary, draw
"may
permit”
government
the federal
ing
agency expertise
amassed in
on
1970s,
issue in its discretion.”
concluded that con
decades since
Bay
“major
action[],”
has not demonstrated
area. Drakes
Federal
but rather
is
any
a
violates
re-
how such
determination
inaction
implicate
that does not
NEPA.
Secretary’s authority.
on the
striction
Bay responds
Drakes
“major
that the term
act,
Federal actions” includes failures to
note,
Bay charges
a
Drakes
On related
1508.18,
C.F.R.
and that NEPA applies
that,
recounting
statutory history,
concerning
decisions
whether to
a
issue
Secretary
stating
erred in
permit.10
permit
amendment did not
him to
issue leases for mariculture. Drakes
Here,
decision to let
“agricul-
effort to
itself into an
shoehorn
Bay’s permit
expire according to
tural purpose”
unavailing. Congress
effectively
its terms
“denied”
Bay
Secretary’s leasing authority
limited the
to a permit.
have held that “if
We
a federal
318(b)
Act,
“lands”
Section
of the 1978
permit
prerequisite
is a
for
project
“lands, waters,
rather than to the
and sub-
impact
environment,
adverse
on the
issu-
318(a)
merged lands”
described
Section
permit
ance of that
major
does constitute
of the same
It
statute.
Id.
is reasonable to federal,
Kantor,
Ramsey
action.”
this
meaningful
assume
distinction is
Cir.1996)
(emphasis
for
Secretary
reasonable
to state that
added). But we have never held failure to
Act
did not authorize mariculture leas- grant
permit
standard,
to the same
Even if
misinterpreted
es.
good
for
reason.
If agencies were re-
law,
plainly
earlier
he
this
understood that
quired
produce
every
they
EIS
time
Section 124 did
him
authorize
to issue
license,
system
denied someone a
mariculture.
grind
would
to a halt. Our case law makes
sum,
neither violated
clear that
every
denial of a request to
statutory mandate nor did
misappre-
he
“major
act is a
Federal action.” We have
authority
hend his
under the various stat-
*16
held, for example, that no EIS was re-
by
Bay.
raised
utes
Drakes
quired
government
when the federal
de-
request
nied a
regulatory
to exercise its
Compliance
3.
NEPA
with
authority to stop
program killing
a state’s
applicability
We next address the
Andrus,
wildlife. State
Alaska v.
591
Secretary’s
of NEPA to the
decision. Un
537,
(9th Cir.1979).
F.2d
541
NEPA,
agency
required
der
an
is
pre
to
Bay suggested
Drakes
at
ar
oral
pare
impact
an environmental
statement
(“EIS”)
gument
Secretary’s
decision dif
“major
for
signifi
Federal actions
typical
fers from
inaction because it effect
cantly affecting
quality
of the human
4332(2)(C).
change
quo, namely,
§
42
ed a
the status
environment.”
U.S.C.
The
cessation
government urges
operations
that its decision to
of commercial
Bay’s permit expire
let Drakes
a
previously
is not
had
been authorized.
areWe
Bay argues
agency
Drakes
that we cannot con-
ment which the
alone is
to
authorized
”
government's
argument
sider the
inaction
make and
it has not made.’
v.
which
Louis
Secretary
rely
because the
did not
on that
Labor,
Dep’t
U.S.
419 F.3d
977-78
position
disagree.
in his decision. We
"The
(9th Cir.2005) (quoting
Chenery Corp.,
v.
SEC
Chenery
rationale
I
behind
Court’s refus-
80, 88,
318 U.S.
63 S.Ct.
skeptical
kind of human im-
exactly
ment from
forty years, and
expire after
designed
that-
is
to foreclose.”
pacts
NEPA
designating Drakes
move toward
thus to
Id. at 1507.11
wilderness,
major
action
Estero as
quality
affecting
“significantly
argued
also
that re
ap-
to which NEPA
human environment”
oyster
implicates
farm
NEPA
moval of the
4332(2)(C).
pur-
§
“The
plies. 42 U.S.C.
it
environmental con
because
has “adverse
‘provide
a mechanism
of NEPA is
pose
the final EIS did
sequences.” Although
the environment
improve
to enhance or
might
removal
cause certain
note
”
damage.’
irreparable
further
prevent
harms,
as noise associated
short-term
such
Babbitt,
County v.
Douglas
heavy machinery
needed
remove
Cir.1995)
(9th
Legal
(quoting
Pacific
structures,
relatively
such
Andrus,
Foundation
“signifi
minor harms do not
themselves
Cir.1981)).
cantly
the environment in such a
affeet[ ]”
way
implicate
as to
NEPA.
U.S.C.
essentially an
Secretary’s decision is
4332(2)(C).
:..
We are '“reluctant
effort,
conservation
which
environmental
tac
make NEPA more of
obstructionist
past.
in the
For
triggered
has not
NEPA
protection
prevent'
tic to
environmental
County,
we held
example,
Douglas
may already
Doug
than it
have become.”
to critical habitat
apply
NEPA did not
(internal
County,
quo
F.3d at 1508
las
Endangered Species
designation under the
omitted).
marks
tation
(“ESA”)
“an action that
Act
because was
interference with the
prevented] human
Ultimately,
need not resolve whether
we
“because the ESA
environment” and'
because,
required
compliance
NEPA
fur-
NEPA without demand-
goals
thers the
was,
even if it
conducted an
EIS;”
(emphasis
ing an
Id. at
adequate
process
NEPA review
added).
removing
Because
claimed deficiencies are without conse-
restoring
toward
the “natu-
step
farm is
quence.
produced
government
ral,
physical environment” and
EIS,
untouched
lengthy
which the
consid-
subsequent human interfer-
prevent
Although
would
“helpful.”
ered and found
Estero,
the Secretary acknowledges
compliance
ence
id.
*17
County
persuasive
of
is
reasoning Douglas
perfect,
with NEPA was less than
Drakes
Bay
unlikely
showing
to allow
that
Secretary’s
here. The
decision
succeed
designa-
prejudicial.
errors were
Relief is
permit
expire, just
like
Bay
argument
positive
11. Drakes
noted at oral
effects asserted. See Sierra Club v.
Froehlke,
205,
recognized
split
(5th
we
a circuit
on the
have
816 F.2d
211 n. 3
Cir.
question
significant
ef
1987)
of "whether
(major
project
Army
federal water
of
beneficial
trigger
EIS” and con
fects alone would
an
Engineers);
Corps
Nat’l
Fed'n
of
v.
Wildlife
requiring
cluded in dicta that
an EIS in those
Marsh,
767,
(11th Cir.1983)
F.2d
783
721
was
"consistent with the
circumstances
(construction
lake);
of man-made
Envtl. Def.
weight
authority and has the virtue
of circuit
Marsh,
983,
(5th
Fund v.
651 F.2d
993
Cir.
reflecting
plain language
of the stat
1981) (major navigational project); see also
Locke,
Society
v.
ute.” Humane
U.S.
Council,
Herrington,
Natural
Inc. v.
Res. Def.
1040,
(9th Cir.2010) (citing
1056 n. 9
F.3d
cases)
(D.C.Cir.1985) (address
added).
(emphasis
authority cited
The
ing energy-efficiency standards for household
however,
here,
persuasive
is not
because none
appliances
noting
in dicta that "both ben
of those cases addressed environmental con
eficial and adverse effects on the environment
efforts.
instead dealt
servation
The cases
meaning
significant
be
within the
can
major
projects
federal construction
with
NEPA”).
applied
which NEPA
in order to evaluate the
only
“prejudi-
under the APA
opportunity
fully
available
denied
air its
706;
error.” 5
see also Nat’l
critique, specifically
cial
U.S.C.
regard
to conclu-
Home Builders v.
Ass’n
regarding
sions
the “soundscape” of the
Defenders of
Wildlife, 551 U.S.
127 S.Ct.
Nothing
estero.12
in the
suggests
record
(2007) (“In
WATFORD, Judge, dissenting: Circuit that, majority by enacting states explain why To I think the Interior De- 124, “Congress nothing § did more than (and partment Secretary) later the misin- let the know his hands were not Act, terpreted Reyes the Point Wilderness I Maj. op. Congress, tied.” at 1086. think fairly detailed discussion of the Act’s “notwithstanding” by including the clause legislative history necessary. §in more than that. intended to do leading up passage The events of the to override the particular, sought Reyes in begin Point Wilderness Act misinterpre- Department of Interior’s Congress when authorized creation of the Act, Reyes tation of the Point Wilderness Reyes ap- Point National Seashore and (1976). 94-544, Pub.L. No. 90 Stat. 2515 propriated acquisition funds for land with- concluded, Department had designated boundaries. Seashore’s Act of a special barred issuance 13, 1962, 87-657, Sept. Act of Pub.L. No. authorizing operation continued use (1962). of that part pro- 76 Stat. 538 As Bay Oyster Company’s oyster of Drakes cess, the State of California con- thought Congress farm. The veyed ownership submerged lands by designating had “mandated” that result within the and coastal tidelands Seashore’s Estero, farm is where government. boundaries to the federal located, a “potential wilderness addi- 9, 1965, 983, 1,§ July See Act of ch. Act. tion” Wilderness Cal. Stat. 2604. Those lands includ- clear, legislative history The Act’s makes conveyance however, mandate, ed Drakes Estero. The re- by divining such fishing rights, served certain mineral and Department simply misinterpreted for, provisions “prospect Act’s and misconstrued Con- which allowed State gress’s Department’s intent. The misin- mine, deposits from and remove [mineral] terpretation of the Point Wilderness lands,” people to the and “reserved § Congress Act to enact 124 in prompted in the waters right the state the fish view, my by including 2009. In a notwith- 2-3, §§ underlying the lands.” Id. standing clause in at- At Cal. Stat. at 2605. the time tempted supersede Department’s conveyance, oyster farming was al- State’s interpretation erroneous of the Act. ready a well-established fixture Drakes Estero, here, dating roots back to the challenged
In the 2012 decision nonetheless denied Drakes 1930s. *20 why 1973, plained detail neither the State’s In the President recommended 10,600 fishing rights acres within reserved mineral and nor the preserve Congress oyster precluded designation. Seashore as “wil- farm such a Reyes the Point National derness,” advocating desig- terms of the Wilder- Estero’s under the No one Drakes 88-577, 1964, Pub.L. No. suggested ness Act of nation as wilderness (1964). 3(c), Members oyster 78 Stat. farm needed to be removed before congressional delegatiоn id. California’s the area could become wilderness. See woefully 324-33, 344-61; inad- found that recommendation H.R. H.R. thereafter introduced equate, al., and soon Designate To Certain Lands in the et Seashore, bills in the House and Senate identical National Califor- larger far areas of the Sea- designating Hearing Sub- nia as Wilderness: Before House, as wilderness. Con- shore comm. on Nat’l Parks and Recreation of Comm, Burton introduced H.R. gressman John the H. on Interior and Insular (1975); Senate, in the Cong. 94th (1976) Affairs, Cong. 94th [hereinafter Tunney introduced S. Senator John ], Hearing prepared House statements of (1975). H.R. 8002 is the bill Cong. 94th Eaton, Duddleson, Jim William Ms. J. eventually became the Point Raye-Page, Boerger. and Frank C. Wilderness Act. The comments from received H.R. originally proposed,
As 8002 and S. advocating those who were Este- designated have more than would designation ro’s as wilderness stressed a thirty-eight thousand acres as wilderness. oyster common theme: farm was designation within that Included preexisting a beneficial use that be should Estero, as well as most of notwithstanding allowed to continue submerged lands and other coastal tide- designation area’s as wilderness. For ex- conveyed by lands California 1965. The ample, representative from the Wilder- sponsors of H.R. 8002 and S. were Society ness stated: ‘Within Drakes Este- oyster well aware of the farm in Drakes activity, ro the culture which is They Estero. nonetheless included lease, under has a minimal environmental Estero within the wilderness des- and visual intrusion. Its continuation is ignation they because did view the permissible pre-existing as non-conform- incompatible operations farm’s with the ing use and is not a deterrent for inclusion Commenting area’s wilderness status. on federally submerged owned lands of bill, Tunney the Senate Senator left no Estero in wilderness.” House Hear- score, declaring, doubt on that “Estab- ing, prepared Raye- statement of Ms. private rights lished of landowners and Page, at The Chairman of the Golden respected leaseholders will continue to be National Gate Recreation Area Citizens’ protected. existing agricultural Advisory oys- noted that Commission aquacultural uses can continue.” Wil- ter-farming operations “presently carried Sys- derness Additions —National Park prior on within the seashore existed to its Hearings tem: on Subcomm. Before park establishment as a and have since Comm, Parks and Recreation the S. on by pub- been considered desirable both the Affairs, Cong. Interior and Insular 94th park managers.” Hearing, lic and Senate (1976) Hearing Senate [hereinafter ]. at 361. He therefore recommended that specific provision be made to allow such During hearings on H.R. 8002 and S. civic, environmental, operations “to continue various and con- unrestrained groups supported designation.” servation Drakes Este- wilderness Id. Others ob- served, designation They echoing ro’s as wilderness. the comments of Senator ex- *21 only party opposed designating proposed House and Sen- Tunney, that Estero as wilderness was the De- for that. See already provided ate bills first, partment of the Interior. At Hearing, prеpared statement House position took the that none of (“H.R. Duddleson, at 3-4 J. William submerged lands and coastal tidelands operation use and would allow continued in conveyed by California 1965 could be Company at Drakes Oyster Johnson’s wilderness, designated because the as Estero, non-conforming a pre-existing as fishing rights State’s reserved mineral (“S. use.”); at 357 Hearing, Senate were “inconsistent with wilderness.” opera- use and allow the continued would Hearing, Kyi, letter from John As- House Company in Oyster tion of Johnson’s Interior, Secretary at sistant of the Estero.”). assembly- A local state Department’s When the view came under way: succinctly up summed it this man by argued attack those who “Finally, everyone I concerned believe in rights any State’s reserved were not operation oyster continued supports the wilderness, see, way e.g., inconsistent with as a non-con- farming Drakes Estero 327-28, Hearing, Depart- Senate Hearing, at 356. forming use.” Senate backpedaled. proposed placing ment It expressed by speakers— The view these subject most of the lands to the State’s operation of the that continued rights legislative reserved into a new clas- fully compatible with Drakes farm was “potential wilderness addi- sification— designation as wilderness —was Estero’s developed tion”—which had connec- wild-eyed firmly notion. It was not some proposals. tion with similar wilderness in the text of the Act grounded Wilderness id, 11-12; Hearing, at letter See House generally Act bans commercial itself. The Kyi, Assistant from John areas, but entеrprise Interior, within wilderness designation at 1. That was intend- “subject existing private rights.” does so encompass ed to “lands which are essen- 1133(c). character, Bay’s prede- § tially 16 U.S.C. of wilderness but retain cessor, structures, Oyster Company, nonconforming activi- the Johnson had sufficient ties, rights pre- as to private uses or so existing private rights the form of wa- immediate wilderness classification.” clude leases issued California that ter-bottom (1976). 94-1357, at 3 S.Rep. No. passage both the pre-dated Wilder- the Point ness Act and creation of subject Four to the State’s re- areas generally National Seashore. The Act also the coastal rights served were at issue: the use of motorboats within wil- prohibits Estero, tidelands, Limantour Abbotts La- id, areas, but the derness see original goon, and Drakes Estero. may continued use of Agriculture all four designated of H.R. 8002 version when, here, as such use has motorboats wilderness, just wil- potential as areas Id “already become established.” spirit additions. But derness 1133(d)(1). there To the extent Burton, Congressman compromise, Act’s ambiguity provisions, these agreed to amend the sponsor of H.R. legislative history makes clear that potential Con- by designating bill those areas as wilderness-preser- additions, gress believed the new than as wil- wilderness rather system Hearing, prepared vation would not affect the econom- derness. See House Burton, enterprises at 2. In arrangements Rep. ic of business statement of John so, all areas existing private rights doing and estab- he made clear that four “becаuse potential wilder- permitted being designated are to continue.” were lished uses (1963). 88-109, due to California’s reserved at 2 ness additions S.Rep. No. *22 fishing rights. Congress expressed See id. He and no one in ever mineral and that, wilderness,’ ‘potential contrary, noted “[a]s that view. To the as discussed designated areas would be as wilder- above, these Congress all indications are that ceeds ness when State [sic] oyster beneficial, pre- viewed the farm as a effective rights these United States.” Id. existing fully use whose continuation was added). amended, (emphasis As so H.R. compatible with wilderness status. Reyes 8002 was enacted as the Point Wil- Act in 1976. II
derness
Shortly
Fast forward now to 2005.
be-
mind,
background
With that
in
we can
Bay’s purchase
oyster
fore Drakes
of the
legal
now turn to the
issue at the
of
heart
closed,
farm
the Park Service reiterated
appeal,
this
which is how to construe
that,
analysis
legal
its view
based on a
§ 124.
performed by
Department,
the Interior
no
Everyone appears
agree
permits authorizing oyster farming
new
in Park
Service’s conclusion
2005 that
Drakes Estero could be issued. The De-
legally prohibited
was
from granting
partment’s legal analysis concluded—bi-
Bay special
permit prompted
a
use
zarrely, given
legislative history
re-
Congress
§
Congress
to enact
124. If all
counted
designating
above—that
had wanted to do
“let the Secretary
Estero
a potential
as
wilderness
tied,”
know his hands were not
as the
addition
the Point
Wilderness
asserts,
majority
§ 124
simply
could
have
Act, Congress had “mandated” elimination
stated,
does,
as it
that “the
of
oyster
of the
farm. The
nev-
the Interior is authorized to issue a special
anything
er identified
text
of the Act
permit....”
30, 2009,
use
Act of Oct.
view;
to support
only
pas-
it cited
111-88,
§
Pub.L. No.
123 Stat.
sage
Report accompany-
from the House
2932. But Congress went further and
ing
passage
H.R. 8002. But that
“is in no
clause,
a notwithstanding
added
so that
statute,”
way anchored in the text of the
reads,
the statute as enacted
“notwith-
States,
Shannon v. United
512 U.S.
law,
standing any
provision
other
of
583-84,
114 S.Ct.
well it is the intention that intended the clause to override the Interi- designated those lands and waters po- Department’s misinterpretation of the tential wilderness additions will be essen- Reading Wilderness Act. tially wilderness, managed as to the extent clause that fashion is consistent with the possible, with steadily continue efforts way typically courts have construed not- to remove all obstacles to the eventual withstanding Supreme clauses. The Court conversion these lands and waters to has held that use such a clause wilderness H.R.Rep. status.” No. 94- (1976), “clearly signals the drafter’s intentiоn that at 3 1976 U.S.C.C.A.N. 5593 added). provisions (emphasis ‘notwithstanding’ at 5595 But sec- farm was conflicting provisions not an “obstacle” to Drakes tion override status, Estero’s conversion to wilderness other section.” Alpine Ridge Cisneros v. statute, 10, 18, pretation controlling its de 113 S.Ct. 508 U.S. Grp., (1993). arbitrary, capricious, will be deemed And we have said cision L.Ed.2d 572 is to function of such clauses or otherwise not accordance law. that the basic EPA, any poten “supersede” Everyone aside” and See Air “sweep Safe (9th Cir.2007) (in 1088, 1091, States v. tially conflicting laws. United (9th Cir.2007) Novak, 1041, 1046 volving interpretation erroneous Idaho, (en banc); Fund Student Loan implementation plan state that had the *23 of Educ., law). 272 F.3d Dep’t Thus, Inc. U.S. force of and effect federal Cir.2001). (9th notwithstanding A clause, notwithstanding even without the laws that were targets clause often those would make no sense to assume that Con for the action “legal sticking point” the gress Secretary authorized the to base his to authorize. Miccosuk Congress intends misinterpretation decision on a of the Army Fla. v. U.S. ee Tribe Indians Reyes Act. Point Wilderness With of of 1289, 1301 n. 19 Corps Eng’rs, 619 F.3d clause, adopting any such construction of Cir.2010). entirely § 124 be indefensible. would case, conflicting actually no laws this (and closer) admittedly The second Secretary issuing from prevented question Secretary is whether the in fact Bay. opera- to Drakes Continued based his on the misinterpretation decision oyster fully farm is consistent tion of Congress of the Act that intended to over- Act, and the farm’s with the Wilderness § by enacting majority ride 124. The to existence is therefоre not an “obstacle” suggests Secretary based his de- converting Drakes Estero to wilderness Depart- the Interior cision instead on by Reyes as directed the Point Wil- status Maj. op. see at 1084- policies, ment’s own Instead, Act. it was the Interior derness n.5, 8,n. but I do not think the 85 & misinterpretation Department’s denying the Secretary’s written decision proved Act that Reyes Point Wilderness permit supports that view. The Secre- I think “legal sticking point” be the here. tary’s gave “great states that he decision reading notwithstanding the best weight” public poli- to what he called “the Congress clause is that meant to “over- cy Congress inherent in the 1976 act of aside,” (“sweep “supersede”) ride” potential Drakes Estero as that identified law it enact- misinterpretation of the when that Act Secretary wilderness.” The read Alpine Ridge Grp., § 124. at ed U.S. Congress’s intention that all expressing as Novak, 1898; at 113 S.Ct. Drakes Estero converting “obstacles” to Fund, 1046; at Student Loan to wilderness status should be removed. erroneously oyster But he deemed (“DBOC’s farm to such an obstacle be far, you accept If what I have said so only use operations commercial are the only questions two remain. The first is Drakes Este- preventing the conversion of having Congress, whether overridden wilderness”), because he designated ro to Department’s misinterpretation oyster erroneously assumed that Act, Reyes nonetheless Point Wilderness “prohibit- operation farm’s continued Secretary rely on that authorized the That in turn by ed the Wilderness Act.” denying misinterpretation as а basis for erroneously— again led him to any I cannot see permit. conclude— that his decision to eliminate § why construe 124 in reason we would Congress’s intent “effectuate[d]” farm Administrative that fashion. Under the in the Point Wilderness (APA), expressed agency Act if an bases Procedure inter Act. legally on a erroneous its decision precisely give regard agency’s are the same errors of due to an
These
exercise of
interpretation the Interior De-
statutory
sphere
expertise.
discretion within its
They
in 2005.
partment
Maj.
made back
are
n.
I
op.
See
8. But
am not
precisely
prompted
same errors that
arguing
here
decision
§ 124 in
Congress
place.
to enact
the first
faulty
must be set aside because it reflects
And,
view,
my
they
precisely
are
the weighing
permissible policy
factors.
Congress attempted
super-
same errors
authority
We would have no
to second
inserting
notwithstanding
sede
guess a decision of that order. What I am
Contrary
majority’s
instead,
clause.
to the
asser-
saying,
is that
124’s notwith-
tion,
authority
rely
had no
standing
precluded
clause
on
misinterpretation
“Congress’s
this
basing
very
from
his decision on the
misin-
expressed goal”
earlier
because the not-
terpretation
of the Wilderness
withstanding
clause eliminated
such
Act that
A
intended to override.
*24
authority.
Maj. op.
See
n.
normally
1088 8.
arbitrary
decision will
be deemed
capricious
agency
if an
“has relied on
majority
What does the
offer in re-
factors which
has not
it
intended
sponse
analysis?
to this
Some hand wav-
to consider.” Motor Vehicle
Ass’n v.
Mfrs.
sure,
ing,
nothing
to be
but
sub-
Co.,
State Farm Mut. Auto. Ins.
463 U.S.
tellingly,
majority
stance. Most
never
29, 43,
77
S.Ct.
L.Ed.2d 443
attempts
argue
the Interior De-
(1983). That, unfortunately,
just
is
what
partment’s
interpretation
of the Point
did.
Reyes Wilderness Act was correct. Nor
short,
could it make that
I
argument
Bay
with a
would hold that Drakes
straight
given
likely
face
is
legisla-
prevail
the Act’s clear
on the merits of its APA
history,
majority
Secretary’s
tive
which
claim. The
misinterpretation
never at-
address,
Act,
tempts
much
of the Point
less refute. The
Wilderness
and his
majority
explanation
thus has no
mistaken view that denying
permit
for Con-
gress’s
intent,
request
Congress’s
inclusion of the
effectuated
notwithstanding
were
decision,
§in
clause
124 other than
I
“fundamental” to
rendering
the one have
his
offered:
that it
“arbitrary, capricious,
was included to
the decision
override
or oth-
Department’s
misinterpretation of the
erwise not
accordance with law.” Safe
(inter-
Point Reyes
Everyone,
Act.
Air
majority
Wilderness
The
should not be
legal
deemed a
barrier” to
permit
Maj.
issuance.
op.
See
at 1084-85.
majority,
Like the
I will not spend much
But that reading of the
supports my
clause
time addressing
remaining preliminary
position
because the
did treat
injunction
harm,
irreparable
bal
factors —
“prior
legislation” namely,
the Point
equities,
ance of the
public
and the
inter
—
“legal
Wilderness Act—as a
barri-
est. See Winter v. Natural Res. Def.
permit
er” to
I
argued,
issuance. As have
Council, Inc.,
7, 20,
555 U.S.
129 S.Ct.
exactly
is
what
notwithstanding
(2008).
years of effort irreparable harm.” constitutes
[owners] Distribs., Inc. v. Beverage
Roso-Lino Co., 124, 125- Bottling
Coca-Cola curiam). (2d Cir.1984) (per equities
The balance of
favors
HARO;
Balentine;
Patricia
John G.
Bay.
majority
concludes otherwise
McNutt; Troy Hall,
Jack
it ac-
Bay
that Drakes
knew when
noting
Plaintiffs-Appellees,
its
quired
farm
Maj. op. at 1092-93.
expire
would
in 2012.
consideration.
But that is not the relevant
SEBELIUS, Secretary of the
Kathleen
Rather,
controlling
consideration
Department of Health
United States
from
will suffer
that the harm
Services, Defendant-Ap-
and Human
*25
in-
preliminary
the erroneous denial of a
pellant.
junction
outweighs
gov-
.the harm the
far
from an erroneous
ernment will suffer
No. 11-16606.
Alliance
grant of such relief. See
Appeals,
United States Court of
Cottrell,
1127,
F.3d
Rockies v.
Wild
Ninth Circuit.
(9th Cir.2011); Scotts Co. v. Unit-
1137-38
(4th
F.3d
Corp.,
Indus.
ed
Argued Dec.
2012.
Cir.2002);
Hosp. Supply Corp.
Am.
Feb.
2013.
Submitted
Ltd.,
Hosp. Prods.
Roso-Lino,
Cir.1986);
ry in the Estero continues a injunction is errone- preliminary
But if a denied,
ously business will destroyed. That is all Drakes
be that the balance
must show to demonstrate equities tips in its favor here.
Finally, public interest favors nei- observed, court
ther side. As the district judges equipped weigh are ill
federal consequences of
the adverse environmental injunction against
denying preliminary relief, granting such consequences
or the relative interests access Bay’s oysters opposed to unen- equities It
cumbered wilderness. ease, Nken v. carry day in this see