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FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

D

RAKES

B

AY

O

YSTER

C

OMPANY

;K

EVIN

L

UNNY

,

Plaintiffs-Appellants

,v.S

ALLY

J

EWELL

, in her officialcapacity as Secretary, U.S.Department of the Interior; U.S.D

EPARTMENT OF THE

I

NTERIOR

;

U.S. N

ATIONAL

P

ARK

S

ERVICE

;J

ONATHAN

B.

J

ARVIS

, in his officialcapacity as Director, U.S. NationalPark Service,

Defendants-Appellees

. No. 13-15227D.C. No.4:12-cv-06134-YGR ORDER ANDAMENDEDOPINIONAppeal from the United States District Courtfor the Northern District of CaliforniaYvonne Gonzalez Rogers, District Judge, PresidingArgued and SubmittedMay 14, 2013—San Francisco, CaliforniaFiled September 3, 2013Amended January 14, 2014

Case: 13-15227 01/14/2014 ID: 8936488 DktEntry: 100 Page: 1 of 51

D

RAKES

B

AY

O

YSTER

C

O

.

V

.

J

EWELL

2Before: M. Margaret McKeown and Paul J. Watford,Circuit Judges, and Algenon L. Marbley, District Judge.

*

Opinion by Judge McKeown;Dissent by Judge Watford

SUMMARY

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Environmental Law / Preliminary Injunction

The panel affirmed the district court’s order denying a preliminary injunction challenging the Secretary of theInterior’s discretionary decision to let Drakes Bay Oyster Company’s permit for commercial oyster farming at PointReyes National Seashore expire on its own terms.Drakes Bay sought a preliminary injunction, arguing thatthe Secretary’s decision to let the permit expire violated theauthorization in the Department of the Interior AppropriationsAct (“Section 124”), the National Environmental Policy Act,and various federal regulations. The panel held that it had jurisdiction to review whether the Secretary violated any legalmandate contained in Section 124 or elsewhere, but that itlacked jurisdiction to review the Secretary’s ultimatediscretionary decision whether to issue a new permit. The panel held that Drakes Bay was not likely to succeed in

*

The Honorable Algenon L. Marbley, District Judge for the U.S.District Court for the Southern District of Ohio, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.


D

RAKES

B

AY

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YSTER

C

O

.

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.

J

EWELL

3 proving that the Secretary violated constitutional, statutory,regulatory, or other legal mandates or restrictions. The panelfurther held that Drakes Bay was not entitled to a preliminaryinjunction not only because it failed to raise a seriousquestion about the Secretary’s decision, but also because ithad not shown that the balance of equities weighed in itsfavor.Judge Watford dissented because he would hold thatDrakes Bay was likely to prevail on its claim that theSecretary’s decision was arbitrary, capricious, or otherwisenot in accordance with law. Judge Watford would hold thatinjunctive relief preserving the status quo should have beengranted.

COUNSEL

Amber D. Abbasi (argued), Cause of Action, Washington,D.C.; John Briscoe, Lawrence S. Bazel, and Peter S. Prows,Briscoe Ivester & Bazel LLP, San Francisco, California; S.Wayne Rosenbaum and Ryan Waterman, Stoel Rives LLP,San Diego, California; Zachary Walton, SSL Law Firm LLP,San Francisco, California, for Plaintiffs-Appellants.J. David Gunter II (argued) Trial Attorney, United StatesDepartment of Justice, Washington, D.C.; Ignacia S. Moreno,Assistant Attorney General, Stephen M. Macfarlane, JosephT. Mathews, E. Barrett Atwood, and Charles Shockey, TrialAttorneys, United States Department of Justice, Sacramento,California, for Defendants-Appellees.
