FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DRAKES BAY OYSTER COMPANY;

KEVIN LUNNY,

Plaintiffs-Appellants,

v.

SALLY JEWELL, in her official

capacity as Secretary, U.S.

Department of the Interior; U.S.

DEPARTMENT OF THE INTERIOR; U.S.

NATIONAL PARK SERVICE;

JONATHAN B. JARVIS, in his official

capacity as Director, U.S. National

Park Service,

Defendants-Appellees.

No. 13-15227

D.C. No.

4:12-cv-06134-

YGR

ORDER AND

AMENDED

OPINION

Appeal from the United States District Court

for the Northern District of California

Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted

May 14, 2013—San Francisco, California

Filed September 3, 2013

Amended January 14, 2014
2 DRAKES BAY OYSTER CO. V. JEWELL

Before: M. Margaret McKeown and Paul J. Watford,

Circuit Judges, and Algenon L. Marbley, District Judge.*

Opinion by Judge McKeown;

Dissent by Judge Watford

SUMMARY**

Environmental Law / Preliminary Injunction

The panel affirmed the district court’s order denying a

preliminary injunction challenging the Secretary of the

Interior’s discretionary decision to let Drakes Bay Oyster

Company’s permit for commercial oyster farming at Point

Reyes National Seashore expire on its own terms.

Drakes Bay sought a preliminary injunction, arguing that

the Secretary’s decision to let the permit expire violated the

authorization in the Department of the Interior Appropriations

Act (“Section 124”), the National Environmental Policy Act,

and various federal regulations. The panel held that it had

jurisdiction to review whether the Secretaryviolated anylegal

mandate contained in Section 124 or elsewhere, but that it

lacked jurisdiction to review the Secretary’s ultimate

discretionary 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.
DRAKES BAY OYSTER CO. V. JEWELL 3

proving that the Secretary violated constitutional, statutory,

regulatory, or other legal mandates or restrictions. The panel

further held that Drakes Bay was not entitled to a preliminary

injunction not only because it failed to raise a serious

question about the Secretary’s decision, but also because it

had not shown that the balance of equities weighed in its

favor.

Judge Watford dissented because he would hold that

Drakes Bay was likely to prevail on its claim that the

Secretary’s decision was arbitrary, capricious, or otherwise

not in accordance with law. Judge Watford would hold that

injunctive relief preserving the status quo should have been

granted.

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 States

Department of Justice, Washington, D.C.; Ignacia S. Moreno,

Assistant Attorney General, Stephen M. Macfarlane, Joseph

T. Mathews, E. Barrett Atwood, and Charles Shockey, Trial

Attorneys, United States Department of Justice, Sacramento,

California, for Defendants-Appellees.
4 DRAKES BAY OYSTER CO. V. JEWELL

Judith L. Teichman, San Francisco, California, for Amici

Curiae Alice Waters, Tomales Bay Oyster Company, Hayes

Street Grill, Marin CountyAgricultural Commissioner, Stacy

Carlsen, the California Farm Bureau Federation, the Marin

County Farm Bureau, the Sonoma County Farm Bureau,

Food Democracy Now, Marin Organic, and the Alliance For

Local Sustainable Agriculture.

Trent W. Orr and George M. Torgun, Earthjustice, San

Francisco, California, for Amici Curiae Environmental

Action Committee of West Marin, National Parks

Conservation Association, Natural Resources Defense

Council, Save Our Seashore, and the Coalition of National

Park Service Retirees.

ORDER

The opinion filed on September 3, 2013, appearing at

729 F.3d 967, is hereby amended. An amended opinion is

filed concurrently with this order.

With these amendments, Judge McKeown voted to deny

the petition for rehearing en banc and Judge Marbley so

recommends. Judge Watford voted to grant the petition.

Amicus Curiae Catherine Rucker’s request for judicial

notice in support of her brief opposing the petition for

rehearing en banc is DENIED.

The full court has been advised of the petition for

rehearing en banc and no judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35. 
DRAKES BAY OYSTER CO. V. JEWELL 5

The petition for rehearing en banc is DENIED. No

further petitions for en banc or panel rehearing shall be

permitted.

OPINION

McKEOWN, Circuit Judge:

This appeal, which pits an oyster farm, oyster lovers and

well-known “foodies” against environmentalists aligned with

the federal government, has generated considerable attention

in the San Francisco Bay area.1 Drakes Bay Oyster Company

(“Drakes Bay”) challenges the Secretary of the Interior’s

discretionary decision to let Drakes Bay’s permit for

commercial oyster farming expire according to its terms. The

permit, which allowed farming within Point Reyes National

Seashore, was set to lapse in November 2012. Drakes Bay

requested an extension pursuant to a Congressional enactment

that provided, in relevant part, “notwithstanding any other

provision of law, the Secretary of the Interior is authorized to

issue a special use permit with the same terms and conditions

as the existing authorization.” Department of the Interior

 

1

 The panel appreciates the amicus briefing filed by supporters of both

sides. Alice Waters, Tomales Bay Oyster Company, Hayes Street Grill,

the California Farm Bureau Federation, the Marin County Farm Bureau,

the Sonoma County FarmBureau, Food Democracy Now, Marin Organic,

and the Alliance For Local Sustainable Agriculture filed an amici curiae

brief in support of Drakes Bay. The Environmental Action Committee of

West Marin, National Parks Conservation Association, Natural Resources

Defense Council, Save Our Seashore, and the Coalition of National Park

Service Retirees filed an amici curiae brief in support of the federal

parties.
6 DRAKES BAY OYSTER CO. V. JEWELL

Appropriations Act, Pub. L. No. 111-88, § 124, 123 Stat.

2904, 2932 (2009) (“Section 124”). After the Secretary

declined to extend the permit, Drakes Bay sought a

preliminary injunction, arguing that the Secretary’s decision

violated the authorization in Section 124, the National

Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et

seq., and various federal regulations.

We have jurisdiction to consider whether the Secretary

violated “constitutional, statutory, regulatory or other legal

mandates or restrictions,” Ness Inv. Corp. v. U.S. Dep’t of

Agr., Forest Serv., 512 F.2d 706, 715 (9th Cir. 1975), and we

agree with the district court that Drakes Bay is not likely to

succeed in proving any such violations here. Through

Section 124, Congress authorized, but did not require, the

Secretary to extend the permit. Congress left the decision to

grant or deny an extension to the Secretary’s discretion,

without imposing any mandatory considerations. The

Secretary clearly understood he was authorized to issue the

permit; he did not misinterpret the scope of his discretion

under Section 124. In an effort to inform his decision, the

Secretary undertook a NEPA review, although he believed he

was not obligated to do so. Nonetheless, any asserted errors

in the NEPA review were harmless.

Because Congress committed the substance of the

Secretary’s decision to his discretion, we cannot review “the

making of an informed judgment by the agency.” Id. In

letting the permit lapse, the Secretary emphasized the

importance of the long-term environmental impact of the

decision on Drakes Estero, which is located in an area

designated as potential wilderness. He also underscored that,

when Drakes Bay purchased the property in 2005, it did so

with eyes wide open to the fact that the permit acquired from
DRAKES BAY OYSTER CO. V. JEWELL 7

its predecessor owner was set to expire just seven years later,

in 2012. Drakes Bay’s disagreement with the value

judgments made by the Secretary is not a legitimate basis on

which to set aside the decision. Once we determine, as we

have, that the Secretary did not violate any statutorymandate,

it is not our province to intercede in his discretionary

decision. We, therefore, affirm the district court’s order

denying a preliminary injunction.

BACKGROUND

I. THE POINT REYES NATIONAL SEASHORE

Congress established the Point Reyes National Seashore

(“Point Reyes”) in 1962 “in order to save and preserve, for

purposes of public recreation, benefit, and inspiration, a

portion of the diminishing seashore of the United States that

remains undeveloped.” Act of Sept. 13, 1962, Pub. L. No.

87-657, 76 Stat. 538, 538. The area is located in Marin

County, California, and exhibits exceptional biodiversity. 

Point Reyes is home to Drakes Estero, a series of estuarial

bays.

The enabling legislation for Point Reyes gave the

Secretaryof the Interior administrative authority over the area

and directed him to acquire lands, waters, and other property

and interests within the seashore. Id. at § 3(a), 76 Stat. at

539–40. In 1965, the State of California conveyed to the

United States “all of the tide and submerged lands or other

lands” within Point Reyes, reserving certain minerals rights

to itself and reserving the right to fish to Californians. 1965

Cal. Stat. 2604–2605, § 1–3.
8 DRAKES BAY OYSTER CO. V. JEWELL

In the Point Reyes Wilderness Act of 1976, Congress

designated certain areas within the seashore as “wilderness”

under the Wilderness Act of 1964. Pub. L. No. 94–544, 90

Stat. 2515. The Wilderness Act “established a National

Wilderness Preservation System to be composed of federally

owned areas designated by Congress as ‘wilderness areas.’” 

16 U.S.C. § 1131(a). Such areas are to “be administered for

the use and enjoyment of the American people in such

manner as will leave them unimpaired for future use and

enjoyment as wilderness, and so as to provide for the

protection of these areas [and] the preservation of their

wilderness character.” Id. Accordingly, subject to statutory

exceptions and existing private rights, the Act provides that

“there shall be no commercial enterprise . . . within any

wilderness area.” 16 U.S.C. § 1133(c).

The Point Reyes Wilderness Act designated other areas,

including Drakes Estero, as “potential wilderness.” Pub. L.

No. 94–544, 90 Stat. 2515. Congress considered designating

Drakes Estero as “wilderness,” but declined to do so. The

legislative history reflects that Congress took into account the

Department of the Interior’s position that commercial oyster

farming operations taking place in Drakes Estero, as well as

California’s reserved rights and special use permits relating

to the pastoral zone, rendered the area “inconsistent with

wilderness” at the time. H.R. Rep. No. 94-1680, at 5–6

(1976), reprinted in 1976 U.S.C.C.A.N. 5593, 5597. 

Congress specified in separate legislation that the “potential

wilderness additions” in Point Reyes “shall . . . be designated

wilderness” by “publication in the Federal Register of a

notice by the Secretary of the Interior that all uses thereon

prohibited by the Wilderness Act . . . have ceased.” Act of

Oct. 20, 1976, Pub. L. No. 94-567, § 3, 90 Stat. 2692.
DRAKES BAY OYSTER CO. V. JEWELL 9

II. DRAKES BAY OYSTER COMPANY’S OPERATIONS

Oyster farming has a long history in Drakes Estero, dating

to the 1930s. Charles Johnson started the Johnson Oyster

Company in Drakes Estero in the 1950s. His oyster farm was

in operation on a five-acre parcel of land on the shore of the

estero when Congress created the Point Reyes National

Seashore. In 1972, Johnson sold his five acres to the United

States, electing to retain a forty-year reservation of use and

occupancy (“RUO”). The RUO provided that, “[u]pon

expiration of the reserved term, a special use permit may be

issued for the continued occupancy of the property for the

herein described purposes.” (Emphasis added.) It added that,

“[a]ny permit for continued use will be issued in accordance

with National Park Service [“NPS”] regulations in effect at

the time the reservation expires.” In late 2004, Drakes Bay

agreed to purchase the assets of the Johnson Oyster

Company. The RUO was transferred along with the

purchase. The forty-year RUO ended on November 30, 2012.

When it purchased the farm, Drakes Bay was well aware

that the reservation would expire in 2012, and received

multiple confirmations of this limitation. The acquisition

documents specifically referenced “that certain Reservation

of Possession Lease dated 10/12/1972, entered into by Seller

and the National Park Service.” In January 2005, the

National Park Service wrote to Kevin Lunny, an owner of

Drakes Bay, highlighting “the issue of the potential

wilderness designation.” The Park Service told Lunny that it

wanted to make sure he was aware of the Interior

Department’s legal position “[b]efore [he] closed escrow on

the purchase” of Johnson’s farm. The Park Service

accordingly sent Lunny a memorandum from the

Department’s Solicitor. Notably, the Solicitor disagreed with
10 DRAKES BAY OYSTER CO. V. JEWELL

the proposition previously expressed in the House Report

accompanying the Point Reyes Wilderness Act that

California’s retained fishing and mineral rights were

inconsistent with wilderness designation. The Solicitor

concluded, “the Park Service is mandated by the Wilderness

Act, the Point Reyes Wilderness Act and its Management

Policies to convert potential wilderness, i.e. the Johnson

Oyster Company tract and the adjoining Estero, to wilderness

status as soon as the non conforming use can be eliminated.” 

In March 2005, the Park Service reiterated its guidance

regarding the Drakes Bay’s purchase of the Johnson property. 

It specifically informed Lunny, “Regarding the 2012

expiration date and the potential wilderness, based on our

legal review, no new permits will be issued after that date.”

III. SECTION 124 AND THE SECRETARY’S DECISION

Several years later, in 2009, Congress addressed the

Department of the Interior’s authority to issue Drakes Bay a

new permit in appropriations legislation. The Senate

appropriations committee proposed a provision requiring the

Secretary to issue a special use permit for an additional ten

years. H.R. 2996, 111th Cong. § 120(a) (as reported in

Senate, July 7, 2009) (providing “the Secretary of the Interior

shall extend the existing authorization . . .”) (emphasis

added). The Senate rejected this mandate, and amended the

language to provide that the Secretary“is authorized to issue”

the permit, rather than required to do so. 155 Cong. Rec.

S9769-03, S9773 (daily ed. Sept. 24, 2009).

The law as enacted provides:

Prior to the expiration on November 30, 2012

of the Drakes Bay Oyster Company’s
DRAKES BAY OYSTER CO. V. JEWELL 11

Reservation of Use and Occupancy and

associated special use permit (“existing

authorization”) within Drakes Estero at Point

Reyes NationalSeashore, notwithstanding any

other provision of law, the Secretary of the

Interior is authorized to issue a special use

permit with the same terms and conditions as

the existing authorization, except as provided

herein, for a period of 10 years from

November 30, 2012. Provided, That such

extended authorization is subject to annual

payments to the United States based on the

fair market value of the use of the Federal

property for the duration of such renewal. 

The Secretary shall take into consideration

recommendations of the National Academyof

Sciences [“NAS”] Report pertaining to

shellfish mariculture in Point Reyes National

Seashore before modifying any terms and

conditions of the extended authorization. 

Nothing in this section shall be construed to

have any application to any location other

than Point Reyes National Seashore; nor shall

anything in this section be cited as precedent

for management of any potential wilderness

outside the Seashore.

123 Stat. at 2932. The House Conference Report reflected

that the final language “provid[ed] the Secretary discretion to

issue a special use permit. . . .” 155 Cong. Rec. H11871-06

(daily ed. October 28, 2009) (emphasis added).

The NAS report that Section 124 referenced, “Shellfish

Mariculture in Drakes Estero, Point Reyes National Seashore,
12 DRAKES BAY OYSTER CO. V. JEWELL

California,” was prepared in 2009, in light of “the approach

of the 2012 expiration date” of the permit, in order “to help

clarify the scientific issues raised with regard to the shellfish

mariculture activities in Drakes Estero.” The report

highlighted that there was “limited scientific literature”

available and that there was evidence that oyster farming had

both negative and positive effects on the environment. The

report explained: “The ultimate decision to permit or prohibit

shellfish farming in Drakes Estero necessarily requires value

judgments and tradeoffs that can be informed, but not

resolved, by science.”

Drakes Bay sent letters to the Secretary in July 2010

requesting that he exercise his authority under Section 124 to

issue a permit extension. Park Service staff met with Lunny

soon after to discuss a draft schedule to complete a NEPA

process. The Department, through the Park Service, then

formally began to prepare an Environmental Impact

Statement (“EIS”) in an effort “to engage the public and

evaluate the effects of continuing the commercial operation

within the national seashore” and “ to inform the decision of

whether a new special use permit should be issued.” Drakes

Bay Oyster Company Special Use Permit, 75 Fed. Reg.

65,373 (Oct. 22, 2010).2

The Park Service issued a draft EIS (“DEIS”) for public

comment in September 2011. Drakes Bay submitted

2

In the final EIS, the Department stated that Section 124 did not require

compliance with NEPA because that provision gave the Secretary

authorization to make the permit decision “notwithstanding any other

provision of law.” Nevertheless, the Department “determined that it is

helpful to generally follow the procedures of NEPA.” The Secretary

reiterated this position in his decision.
DRAKES BAY OYSTER CO. V. JEWELL 13

comments criticizing much of the draft, along with a data

quality complaint.3 Congress expressed “concerns relating to

the validity of the science underlying the DEIS” and therefore

“direct[ed] the National Academy of Sciences to assess the

data, analysis, and conclusions in the DEIS in order to ensure

there is a solid scientific foundation for the Final

Environmental Impact Statement expected in mid-2012.” 

H.R. Conf. Rep. No. 112-331, at 1057 (Dec. 15, 2011),

reprinted in 2011 U.S.C.C.A.N. 605, 788.

The NAS released its report in August 2012. The report

noted several instances where the DEIS “lack[ed] assessment

of the level of uncertainty associated with the scientific

information on which conclusions were based.” But the

report concluded that the available research did not admit of

certainty:

The scientific literature on Drakes Estero is

not extensive and research on the potential

impacts of shellfish mariculture on the Estero

is even sparser . . . . Consequently, for most

of the resource categories the committee

found that there is a moderate or high level of

uncertainty associated with impact

assessments in the DEIS.

The final EIS, issued on November 20, 2012, responded to

the NAS review. The EIS revised the definitions of the

intensity of impacts to wildlife and wildlife habitats, clarified

the assumptions underlying those conclusions, and added

discussion of the uncertainty of scientific data.

 

3

 Drakes Bay’s data quality complaint is not before us in this appeal.
14 DRAKES BAY OYSTER CO. V. JEWELL

The Secretary issued his decision on November 29, 2012,

directing the Park Service to let the permit expire according

to its terms. He explained that his decision was “based on

matters of law and policy,” including the “explicit terms of

the 1972 conveyance from the Johnson Oyster Company to

the United States” and “the policies of NPS concerning

commercial use within a unit of the National Park System and

nonconforming uses within potential or designated

wilderness, as well as specific wilderness legislation for Point

Reyes National Seashore.” He recognized that Section 124

“grant[ed] [him] the authority to issue a new SUP,” but

elected to effectuate Park Service policies and the principles

he discerned in wilderness legislation.

In his decision, the Secretary recognized the “scientific

uncertainty” and “lack of consensus in the record regarding

the precise nature and scope of the impacts that [Drakes

Bay’s] operations have” on wilderness and other resources. 

Generally, he found that the impact statements supported the

proposition that letting the permit expire “would result in

long-term beneficial impacts to the estero’s natural

environment.” But he explained that the draft and final EIS

were “not material to the legal and policy factors that provide

the central basis” for his decision, though they were “helpful”

in that they informed him regarding the “complexities,

subtleties, and uncertainties of this matter.” He disclaimed

reliance on “the data that was asserted to be flawed,” and

noted that his decision was “based on the incompatibility of

commercial activities in wilderness.”

In accordance with his decision, the Secretarydirected the

Park Service to publish a notice in the Federal Register

announcing the conversion of Drakes Estero from potential to

designated wilderness. This litigation followed. Drakes Bay
DRAKES BAY OYSTER CO. V. JEWELL 15

sued the Secretary, seeking a declaratory judgment that his

decision violated the Administrative Procedure Act (“APA”),

5 U.S.C. § 551 et seq., an order that the Secretary direct the

Park Service to issue a new ten-year permit, and,

alternatively, an order vacating and remanding for a new

decision. Drakes Bay moved for a preliminary injunction to

avoid having to cease its operations pending suit, as it had

been given ninety days to remove its property from the estero.

The district court determined that it did not have

jurisdiction to review the Secretary’s decision because “the

statutory context affords complete discretion” and “Section

124 provides the Court with ‘no meaningful standard’ for the

Court to apply in reviewing the Decision not to issue a New

SUP.” The court went on to provide an alternate rationale for

denial: “the Court does not find that Plaintiffs can show a

likelihood of success under a Section 706(2) standard

[arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law under the APA].” Finally, the court

held that “[o]n balance, and combining the requirement of

both the equities and the public interest more broadly, the

Court does not find these elements weigh in favor of granting

a preliminary injunction.”4

4 A motions panel granted Drakes Bay’s emergency motion for an

injunction pending appeal “because there are serious legal questions and

the balance of hardships tips sharply in appellants’ favor.” With the

benefit of full briefing and argument, we need not defer to the motion

panel’s necessarily expedited decision. United States v. Houser, 804 F.2d

565, 568 (9th Cir. 1986).
16 DRAKES BAY OYSTER CO. V. JEWELL

ANALYSIS

I. JURISDICTION AND THE SCOPE OF THE

“NOTWITHSTANDING” CLAUSE

As a threshold matter, we address jurisdiction. On this

point, we disagree in part with the district court. See Oregon

Natural Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 979

n.1 (9th Cir. 2006) (reviewing de novo the question of subject

matter jurisdiction under the APA). We do have jurisdiction

to review whether the Secretary violated any legal mandate

contained in Section 124 or elsewhere. However, we agree

with the district court that we lack jurisdiction to review the

Secretary’s ultimate discretionary decision whether to issue

a new permit.

The government argues that we lack jurisdiction to review

any of Drakes Bay’s claims because, under Section 124, the

Secretary’s decision was “committed to agency discretion by

law.” 5 U.S.C. § 701(a)(2). This narrow exception to the

presumption of judicial review of agency action under the

APA applies “if the statute is drawn so that a court would

have no meaningful standard against which to judge the

agency’s exercise of discretion.” Heckler v. Chaney,

470 U.S. 821, 830 (1985); see also Webster v. Doe, 486 U.S.

592, 599 (1988) (characterizing the exception as for

circumstances where there is “no law to apply”) (internal

quotation marks and citation omitted). But even where the

substance or result of a decision is committed fully to an

agency’s discretion, “a federal court has jurisdiction to review

agency action for abuse of discretion when the alleged abuse

of discretion involves violation by the agency of

constitutional, statutory, regulatory or other legal mandates or

restrictions.” Ness Inv. Corp., 512 F.2d at 715. In such
DRAKES BAY OYSTER CO. V. JEWELL 17

circumstances, a federal court lacks only jurisdiction to

review an alleged abuse of discretion regarding “the making

of an informed judgment by the agency.” Id.

Here, as in Ness Inv. Corp., “[t]he secretary is

‘authorized,’ not required, to issue” a permit, and there are

“no statutory restrictions or definitions prescribing precise

qualifications” for issuance. Id. Consequently we may

review only whether the Secretary followed whatever legal

restrictions applied to his decision-making process. The

parties agree that the Nessframework applies, but disagree on

whether any “mandates or restrictions,” id., exist. Drakes

Bay interprets Section 124, NEPA, and various federal

regulations as imposing legal restrictions on the Secretary,

but it contends that these requirements apply only to a

decision to deny an extension, not to a decision granting an

extension. The Secretarycontends that the “notwithstanding”

clause of Section 124 sweeps away any statutes and

regulations that might otherwise apply to a permit

application. Neither side has it quite right.

As a general matter, “notwithstanding” clauses nullify

conflicting provisions of law. See United States v. Novak,

476 F.3d 1041, 1046 (9th Cir. 2007) (en banc) (“The Supreme

Court has indicated as a general proposition that statutory

‘notwithstanding’ clauses broadly sweep aside potentially

conflicting laws.”). Before Congress passed Section 124, the

Department’s Solicitor had issued a series of opinions holding

that the Wilderness Act, the Point Reyes Wilderness Act, and

Park Service management policies legally prohibited any

extension of the permit. Section 124’s “notwithstanding”

clause trumps any law that purports to prohibit or preclude

the Secretary from extending the permit, as such a law would

“conflict” with Section 124’s authorization. Thus we may
18 DRAKES BAY OYSTER CO. V. JEWELL

review whether the Secretary misunderstood his authority to

issue a permit and the closely related question of whether he

mistakenly interpreted other statutory provisions as placing

a legal restriction on his authority. As the government itself

acknowledges, if Section 124 provides restrictions on the

Secretary’s exercise of discretion, then we have jurisdiction

to review compliance with those limits.

The Secretary’s decision is also subject to applicable

procedural constraints. “[W]hen two statutes are capable of

co-existence, it is the duty of the courts . . . to regard each as

effective.” Morton v. Mancari, 417 U.S. 535, 551 (1974). 

Thus, we have jurisdiction to consider the applicability of

NEPA and other procedures that do not conflict with the

authorization in Section 124.

Procedural constraints that do not conflict with the

authorization would apply to the Secretary’s decision

regardless of whether he granted or denied the permit. We

reject Drakes Bay’s anomalous position that the Secretaryhad

“unfettered authority to issue the permit,” while his

“discretion to deny [Drakes Bay] a [permit] [was] bounded by

NEPA and other applicable law.” Drakes Bay points to the

fact that Section 124 says that “notwithstanding any other

provision of law, the Secretary of the Interior is authorized to

issue a special use permit,” rather than that he is authorized

to “issue or deny” one. From that language, Drakes Bay

extrapolates that Section 124 “was enacted to make it easy to

issue the permit.” The statute does not dictate such a oneway ratchet. Indeed, if Congress had so wanted to make it

easy or automatic for Drakes Bay, one wonders why it

rejected the proposal that would have simply required the

Secretary to issue a new permit. The ultimate legislation was

a move away from, not toward, Drakes Bay’s favored result.
DRAKES BAY OYSTER CO. V. JEWELL 19

A natural reading of the authorization to issue a permit

implies authorization not to issue one, and we see no reason

to interpret the “notwithstanding” clause as applying to one

outcome but not the other. See Confederated Salish and

Kootenai Tribes v. United States, 343 F.3d 1193, 1196–97

(9th Cir. 2003) (interpreting the word “authorized” to mean

both the power to grant or deny a request for the Secretary to

take land in trust for a tribe). Section 124 was enacted as part

of appropriations legislation, granting the Secretary authority

to act, without providing any statement of Congress’s view on

that decision one way or the other.

Drakes Bay’s effort to read into this short appropriations

provision a preference for issuance of the permit is

unavailing, as is the dissent’s attempt to do so based on

legislative history from decades earlier. The dissent

misunderstands the significance of the legislative history of

the Point Reyes Wilderness Act of 1976, which focuses on

the notion that Congress at that time viewed oyster farming

as desirable and consistent with wilderness designation.

The dissent stacks legislative history from one enactment

to another, over decades, when Section 124 itself does not

make the link. “Extrinsic materials have a role in statutory

interpretation only to the extent they shed a reliable light on

the enacting Legislature’s understanding of otherwise

ambiguous terms.” Exxon Mobil Corp. v. Allapattah Servs.,

Inc., 545 U.S. 546, 568 (2005) (emphasis added). Regardless

of the accuracy of the dissent’s recitation of the legislative

history of the 1976 Act, the dissent’s citation to congressional

statements in support of designating Drakes Estero as

wilderness in 1976 do not reliably reflect that the Congress

that enacted Section 124 was of the dissent’s view that

Drakes Bay’s operations were “not an ‘obstacle’ to
20 DRAKES BAY OYSTER CO. V. JEWELL

converting Drakes Estero to wilderness status.” Dissent at

46. The dissent’s position would rewrite the clause to

something like “notwithstanding the Department’s policy

view that oyster farming can be incompatible with wilderness

designation.” The dissent cites nothing from the text, or even

the legislative history, of Section 124 to support this

interpretation. Even Drakes Bay did not argue this position

or urge us to go this far afield.5

Here, where Section 124 merely grants authority to take

an action, the “notwithstanding” clause targets laws that

“potentially conflict[]” with that authority. Novak, 476 F.3d

at 1046. Given the Department’s opinions in 2005 that

wilderness legislation prevented any exercise of authority to

extend the permit, the notwithstanding clause has a clear

function—to convey that prior legislation should not be

deemed a legal barrier.6 The dissent confuses actual or

5 The dissent’s conclusion that “[c]ontinued operation of the oyster farm

is fully consistent with the Wilderness Act,” Dissent at 46, is particularly

puzzling given that Drakes Bay itself argued that wilderness designation

of Drakes Estero was not possible while the oyster farm’s commercial

activities continued. Moreover, there are a variety of Park Service

management criteria that inform the question of what kinds of activities

are “consistent” with wilderness designation under the Wilderness Act. 

The dissent’s reliance on decades-old legislative pronouncements about

the Johnson oyster farm for the proposition that Section 124 was intended

to foreclose the Secretary from considering his department’s own policies

with regard to Drakes Bay stretches even the most liberal use oflegislative

history to the breaking point. “[U]nenacted approvals, beliefs, and desires

are not laws.” Puerto Rico Dep’t of Consumer Affairs v. Isla Petroleum

Corp., 485 U.S. 495, 501 (1988).

6 This function is meaningful regardless of whether conflicting laws

actually prevented the Secretary from issuing a permit, a question the

dissent would answer in the negative, Dissent at 46, but which we simply

have no occasion to pass on here. The Department’s legal position raised
DRAKES BAY OYSTER CO. V. JEWELL 21

potential legal impediments to the Secretary’s authority with

policy considerations that might lead the Department not to

extend Drakes Bay’s permit. Section 124 does not prescribe

considerations on which the Secretary may or may not rely,

it says nothing about the criteria for wilderness designation

and says nothing about whether oyster farming is consistent

with wilderness designation. As the Supreme Court has

admonished, “courts have no authority to enforce a principle

gleaned solely from legislative history that has no statutory

reference point.” Shannon v. United States, 512 U.S. 573,

584 (1994) (internal quotation marks and alteration omitted). 

Had Congress wanted to express a view on whether the

Secretary should consider the Department’s policies on

wilderness or other criteria, it would have said so.7It did not,

but rather gave the Secretary the discretion to decide.

We now turn to consideration of the Secretary’s decision.

II. PRELIMINARY INJUNCTION NOT WARRANTED

In seeking a preliminary injunction, Drakes Bay must

establish “that [it] is likely to succeed on the merits, that [it]

is likely to suffer irreparable harm in the absence of

a “potential[] conflict[],” Novak, 476 F.3d at 1046 (emphasis added),

regarding the Department’s authority, and the “notwithstanding clause”

made clear that “other provisions of law” were not an impediment.

7

Indeed, the only consideration that Congress addressed in Section 124

was that “[t]he Secretary shall take into consideration recommendations

of the National Academy of Sciences Report pertaining to shellfish

mariculture in Point Reyes National Seashore before modifying any terms

and conditions of the extended authorization.” (Emphasis added.) As

modification of the permit is not at issue here, this provision is not

relevant.
22 DRAKES BAY OYSTER CO. V. JEWELL

preliminary relief, that the balance of equities tips in [its]

favor, and that an injunction is in the public interest.” Winter

v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). We

have held that a “likelihood” of success per se is not an

absolute requirement. Alliance for the Wild Rockies v.

Cottrell, 632 F.3d 1127, 1131–32 (9th Cir. 2011). Rather,

“‘serious questions going to the merits’ and a hardship

balance that tips sharply toward the plaintiff can support

issuance of an injunction, assuming the other two elements of

the Winter test are also met.” Id. at 1132. We review for

abuse of discretion the district court’s determination that

Drakes Bay did not meet its burden under this test. FTC v.

EnformaNatural Products, Inc., 362 F.3d 1204, 1211–12 (9th

Cir. 2004).

Drakes Bay contends that the Secretarymisinterpreted his

authority under Section 124 in that he mistakenly believed

that granting a permit extension would violate other laws, that

he failed to comply with NEPA, and that he failed to comply

with federal rulemaking procedures. According to Drakes

Bay, these errors render the Secretary’s decision “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A). Here, the

likelihood of success on the merits of these claims is too

remote to justify the extraordinary remedy of a preliminary

injunction. In light of our conclusion about the merits, we

address only in passing the remaining preliminary injunction

factors.
DRAKES BAY OYSTER CO. V. JEWELL 23

A. LIKELIHOOD OF SUCCESS ON THE MERITS

1. The Import of Section 124

The Secretary’s decision did not violate any statutory

mandate, particularly the provision that gave him discretion

to grant the permit despite any prior conflicting law. The key

portion of Section 124 provides as follows: “Prior to the

expiration on November 30, 2012 of the Drakes Bay Oyster

Company’s Reservation of Use and Occupancy and

associated special use permit (“existing authorization”)

within Drakes Estero at Point Reyes National Seashore,

notwithstanding any other provision of law, the Secretary of

the Interior is authorized to issue a special use permit . . . .” 

Section 124 put the Secretary on notice that he was not

hamstrung by other law should he determine a permit

extension was appropriate. The section left him free to

consider wilderness values and the competing interests

underlying a commercial operation in an area set aside as a

natural seashore.

The narrow question that we have jurisdiction to review

is whether the Secretary misinterpreted his authority under

Section 124. The record leaves no doubt that the answer is

no.

As the Secretary explained, “SEC. 124 grants me the

authority and discretion to issue [Drakes Bay] a new special

use permit, but it does not direct me to do so.” The Secretary

repeated this understanding multiple times throughout the

decision, noting, for example, that Section 124 “does not

dictate a result or constrain my discretion in this matter,” and

that it “grants me the authority to issue a new SUP.”
24 DRAKES BAY OYSTER CO. V. JEWELL

Drakes Bay’s view that the Secretaryviolated Section 124

rests on a misinterpretation of that provision and a

misapprehension of the Secretary’s reasoning. Drakes Bay

first argues that the statute was intended to “make it easy” to

issue the permit. As we explained above, this approach is

wishful thinking, since the statute says nothing of the kind. 

Indeed, Congress first considered whether to mandate

issuance of the permit but backed off that approach and

ultimately left the decision to the Secretary’s discretion. In

the end, Congress did nothing more than let the Secretary

know his hands were not tied.

Drakes Bay next argues that the Secretary erroneously

concluded that extending the permit would “violate”

applicable wilderness legislation. According to Drakes Bay,

because Section 124 authorized the Secretary to extend the

permit “notwithstanding any other provision of law,” the

Secretary was “prohibit[ed] . . . from relying on a violation of

other law as a reason to justify a permit denial.”

Drakes Bay’s reading of the decision is not tenable. 

Taken as a whole, the decision reflects that the Secretary

explicitly recognized that extending the permit would be

lawful and that he was not legally constrained by other laws.

The Secretary elected to let the permit expire not to avoid

“violating” any law, as Drakes Bay posits, but because the

Secretary weighed and balanced competing concerns about

the environment and the value of aquaculture. He chose to

give weight to the policies underlying wilderness legislation,

taking into account consideration of environmental impacts:

“In addition to considering the [Drafted Environmental

Impact Statement and Final Environmental Impact

Statement], I gave great weight to matters of public policy,
DRAKES BAY OYSTER CO. V. JEWELL 25

particularly the public policy inherent in the 1976 act of

Congress that identified Drakes Estero as potential

wilderness.” (Emphasis added).

Drakes Bay seizes on a single sentence in a summary of

reasons as evidence that the Secretary thought extending the

permit would “violate . . . specific wilderness legislation.” At

the beginning of the decision, the summary includes one

sentence that, read in isolation, raises an ambiguity: “The

continuation of the [Drakes Bay] operation would violate the

policies of NPS concerning commercial use within a unit of

the National Park System and nonconforming uses within

potential or designated wilderness, as well as specific

wilderness legislation for Point Reyes National Seashore.” 

(Emphasis added). However, reading the sentence in context

of the full decision, it is obvious the Secretary did not

erroneously consider himself bound by any provision of

wilderness legislation. In reviewing the agency’s decision,

we must uphold even “a decision of less than ideal clarity” so

long as “the agency’s path may reasonably be discerned.” 

FCC v. Fox Television Stations, 556 U.S. 502, 513–14 (2009)

(internal quotation marks omitted).

The Secretary’s reliance on policy considerations and

Congressional intent is evident throughout the decision. 

Recounting the factual and legal background, for example,

the Secretary cited the House of Representatives committee

report accompanying the Point Reyes Wilderness Act, which

stated:

As is well established, it is the intention that

those lands and waters designated as potential

wilderness additions will be essentially

managed as wilderness, to the extent possible,
26 DRAKES BAY OYSTER CO. V. JEWELL

with efforts to steadily continue to remove all

obstacles to the eventual conversion of these

lands and waters to wilderness status.

H.R. Rep. No. 94-1680 at 3. The Secretary returned to this

committee report in his conclusion, explaining that:

My decision honors Congress’s direction to

“steadily continue to remove all obstacles to

the eventual conversion of these lands and

waters to wilderness status” and thus ensures

that these precious resources are preserved for

the enjoyment of future generations of the

American public, for whom Point Reyes

National Seashore was created.

As expressed in his decision, his choice was consistent with

the draft and final environmental impact statements that

“support the proposition that the removal of [Drakes Bay’s]

commercial operations in the estero would result in long-term

beneficial impacts to the estero’s natural environment.”

Drakes Bay suggests that referencing even the

Congressional “intent” or policies underlying the Point Reyes

Wilderness Act runs afoul of Section 124. But as Drakes Bay

itself acknowledges, the “most natural, common-sense

reading” of the notwithstanding clause is “notwithstanding

any law that would otherwise legally preclude issuance of a

[special use permit], the Secretary has the authority to issue

a SUP.” It is abundantly clear that the Secretary recognized

his authority under Section 124 and did not believe he was

legally bound by any statute to deny the permit. But the

policy that underlies the 1976 Act and other wilderness

legislation is just that—an expression of public policy. These
DRAKES BAY OYSTER CO. V. JEWELL 27

expressions neither “legally preclude” nor legally mandate

extension, and they are not “other provision[s] of law” that

are swept aside by Section 124’s “notwithstanding” clause. 

Statements in committee reports do not carry the force of law. 

See Lincoln v. Vigil, 508 U.S. 182, 192–93 (1993). 

“Congress’s ‘authoritative statement is the statutory text, not

the legislative history.’” Chamber of Commerce of U.S. v.

Whiting, 131 S. Ct. 1968, 1980 (2011) (quoting Exxon Mobil,

545 U.S. at 568).

The Secretary’s incorporation of the policies underlying

wilderness legislation, and of Congressional intent as

expressed in the House committee report, was a matter of his

discretion. The Secretary noted correctly that “SEC. 124

. . . does not prescribe the factors on which I must base my

decision.” Section 124 “provides the court no way to

second-guess the weight or priority to be assigned” to these

factors. Ctr. for Auto Safety v. Dole, 846 F.2d 1532, 1535

(D.C. Cir. 1988) (concluding that agency decision to deny

petition for enforcement was not reviewable where the

governing regulations provided no standards to enable

judicial review). The choice was the Secretary’s to make.8

8 The dissent’s position that the agency “relied on factors which

Congress has not intended it to consider,” Dissent at 49, is not supported

by the record. Under the deferential arbitrary and capricious standard, we

uphold agency action for which a rational explanation is given,

particularly where the agency “acted within the sphere of its expertise.” 

McFarland v. Kempthorne, 545 F.3d 1106, 1113 (9th Cir. 2008). The

Secretary’s decision relied in general on “Congress’s direction” to remove

“obstacles” to wilderness designation. While the Wilderness Act bans

commercial enterprise within wilderness areas “subject to existing private

rights,” 16 U.S.C. § 1133(c), Park Service policies inform whether

wilderness designation is appropriate in the first instance. Contrary to the

dissent’s characterization, the 1976 legislation did not invoke a crystal ball

and pass judgment on the compatibility of oyster farming in Drakes Estero
28 DRAKES BAY OYSTER CO. V. JEWELL

2. Drakes Bay’s Other Statutory Arguments

As Section 124 affords no basis for us to review the

substance of the Secretary’s decision, we have no measuring

stick against which to judge Drakes Bay’s various claims that

the Secretary’s policy determination was mistaken. To the

extent the Secretary’s decision can be evaluated against the

statutory requirements cited by Drakes Bay, Drakes Bay is

unlikely to prevail in showing the decision was arbitrary and

capricious, an abuse of discretion, or in violation of any law.

Drakes Bay argues that the Secretary violated the law by

directing that Drakes Estero be designated as wilderness,

because such a designation was not possible under the

Wilderness Act in light of California’s retained mineral and

fishing rights. Although the Department of the Interior

adopted this view in the past, the Department has since

deemed that position inaccurate. The Wilderness Act itself

nowhere provides that retained mineral or fishing rights

preclude wilderness designation.9 Drakes Bay is not likely to

with wilderness some thirty plus years later when the reservation of use

would expire. Indeed, things change. The Secretary, drawing on the

agency expertise amassed in the decades since the 1970s, concluded that

continued oyster farming was inconsistent with wilderness criteria and the

Department’s policies. The Secretary’s decision that removing the farm

would further Congress’s earlier expressed goal of moving toward

wilderness designation was rational and within his authority under

Section 124.

9 Notably, the State of California takes the position that its retained

rights, including the state constitutional right to fish, do not cover

aquaculture. The California Department of Fish and Game criticized and

rejected “brief, general, and conclusory” communications it made decades

earlier that suggested the oyster farm was covered by the “right to fish”

reservation. At present, the state has issued water bottom leases to Drakes
DRAKES BAY OYSTER CO. V. JEWELL 29

succeed on its theory that the Secretary’s current

position—that the permit’s expiration enables wilderness

designation despite retained mineral and fishing

rights—amounted to “legal error.”

Drakes Bay also believes that wilderness designation was

improper in light of the “historic farming community” that

remains on Drakes Estero. However, a 1978 amendment to

the legislation establishing Point Reyes specifically

authorizes the Park Service to lease property used for

“agricultural, ranching, or dairying purposes.” Act of Nov.

10, 1978, Pub. L. No. 95-625, § 318, 92 Stat. 3467, 3487. 

The Secretary’s decision considered these uses a “compatible

activity” within a wilderness area. Drakes Bay has not

demonstrated how such a determination violates any

restriction on the Secretary’s authority.

On a related note, Drakes Bay charges that, in recounting

the statutory history, the Secretary erred in stating that the

1978 amendment did not permit him to issue leases for

mariculture. Drakes Bay’s effort to shoehorn itself into an

“agricultural purpose” is unavailing. Congress limited the

Secretary’s leasing authority to “lands” in Section 318(b) of

the 1978 Act, rather than to the “lands, waters, and

submerged lands” described in Section 318(a) of the same

statute. Id. It is reasonable to assume this distinction is

meaningful and reasonable for the Secretary to state that the

Act did not authorize mariculture leases. Even if the

Secretary misinterpreted this earlier law, he plainly

Bay for its commercial operations, but has made clear that the use of those

leases past 2012 “is expressly contingent upon [Drakes Bay’s] compliance

with the 1972 grant reservation and, after its expiration, with any special

use permit” that the federal government “may issue in its discretion.”
30 DRAKES BAY OYSTER CO. V. JEWELL

understood that Section 124 did authorize him to issue Drakes

Bay a permit for mariculture. In sum, the Secretary neither

violated any statutory mandate nor did he misapprehend his

authority under the various statutes raised by Drakes Bay.

3. Compliance with NEPA

We next address the applicability of NEPA to the

Secretary’s decision. Under NEPA, an agency is required to

prepare an environmental impact statement (“EIS”) for

“major Federal actions significantly affecting the quality of

the human environment.” 42 U.S.C. § 4332(2)(C). The

government urges that its decision to let Drakes Bay’s permit

expire is not a “major Federal action[],” but rather is inaction

that does not implicate NEPA. Drakes Bay responds that the

term “major Federal actions” includes failures to act,

40 C.F.R. § 1508.18, and that NEPA applies to decisions

concerning whether to issue a permit.10

Here, the Secretary’s decision to let Drakes Bay’s permit

expire according to its terms effectively “denied” Drakes Bay

10 Drakes Bay argues that we cannot consider the government’s inaction

argument because the Secretary did not rely on that position in his

decision. We disagree. “The rationale behind the Chenery I Court’s

refusal to accept belated justifications for agency action not previously

asserted during the agency’s own proceedings does not apply in this case. 

Chenery I was premised on the policy that courts should not substitute

their judgment for that of the agency when reviewing a ‘determination of

policy or judgment which the agency alone is authorized to make and

which it has not made.’” Louis v. U.S. Dep’t of Labor, 419 F.3d 970,

977–78 (9th Cir. 2005) (quoting SEC v. Chenery Corp., 318 U.S. 80, 88

(1943)) (emphasis added). The “policy or judgment” call here was the

Secretary’s substantive decision whether to grant the permit. We are not

constrained in considering arguments concerning the applicability of

NEPA.
DRAKES BAY OYSTER CO. V. JEWELL 31

a permit. We have held that “if a federal permit is a

prerequisite for a project with adverse impact on the

environment, issuance of that permit does constitute major

federal action.” Ramsey v. Kantor, 96 F.3d 434, 444 (9th Cir.

1996) (emphasis added). But we have never held failure to

grant a permit to the same standard, and for good reason. If

agencies were required to produce an EIS every time they

denied someone a license, the system would grind to a halt. 

Our case law makes clear that not every denial of a request to

act is a “major Federal action.” We have held, for example,

that no EIS was required when the federal government denied

a request to exercise its regulatory authority to stop a state’s

program killing wildlife. State of Alaska v. Andrus, 591 F.2d

537, 541 (9th Cir. 1979).

Drakes Bay suggested at oral argument that the

Secretary’s decision differs from typical inaction because it

effected a change in the status quo, namely, the cessation of

commercial operations that had previously been authorized. 

We are skeptical that the decision to allow the permit to

expire after forty years, and thus to move toward designating

Drakes Estero as wilderness, is a major action “significantly

affecting the quality of the human environment” to which

NEPA applies. 42 U.S.C. § 4332(2)(C). “The purpose of

NEPA is to ‘provide a mechanism to enhance or improve the

environment and prevent further irreparable damage.’” 

Douglas County v. Babbitt, 48 F.3d 1495, 1505 (9th Cir.

1995) (quoting Pacific Legal Foundation v. Andrus, 657 F.2d

829, 837 (6th Cir. 1981)).

The Secretary’s decision is essentially an environmental

conservation effort, which has not triggered NEPA in the

past. For example, in Douglas County, we held NEPA did

not apply to critical habitat designation under the Endangered
32 DRAKES BAY OYSTER CO. V. JEWELL

Species Act (“ESA”) because it was “an action that

prevent[ed] human interference with the environment” and

“because the ESA furthers the goals of NEPA without

demanding an EIS.” Id. at 1505, 1506 (emphasis added). 

Because removing the oyster farm is a step toward restoring

the “natural, untouched physical environment” and would

prevent subsequent human interference in Drakes Estero, id.

at 1505, the reasoning of Douglas County is persuasive here. 

The Secretary’s decision to allow the permit to expire, just

like the designation under the ESA, “protects the environment

from exactly the kind of human impacts that NEPA is

designed to foreclose.” Id. at 1507.11

Drakes Bay also argued that removal of the oyster farm

implicates NEPA because it has “adverse environmental

consequences.” Although the final EIS did note that removal

might cause certain short-term harms, such as noise

 

11 Drakes Bay noted at oral argument that we have recognized a circuit

split on the question of “whether significant beneficial effects alone would

trigger an EIS” and concluded in dicta that requiring an EIS in those

circumstances was “consistent with the weight of circuit authority and has

the virtue of reflecting the plain language of the statute.” Humane Society

of U.S. v. Locke, 626 F.3d 1040, 1056 n.9 (9th Cir. 2010) (citing cases)

(emphasis added). The authority cited is not persuasive here, however,

because none ofthose cases addressed environmental conservation efforts. 

The cases instead dealt with major federal construction projects to which

NEPAapplied in order to evaluate the positive effects asserted. See Sierra

Club v. Froehlke, 816 F.2d 205, 211 n.3 (5th Cir. 1987) (major federal

water project of ArmyCorps ofEngineers); Nat’l Wildlife Fed’n v. Marsh,

721 F.2d 767, 783 (11th Cir. 1983) (construction of man-made lake);

Envtl. Def. Fund v. Marsh, 651 F.2d 983, 993 (5th Cir. 1981) (major

navigational project); see also Natural Res. Def. Council, Inc. v.

Herrington, 768 F.2d 1355, 1431 (D.C. Cir. 1985) (addressing energyefficiency standards for household appliances and noting in dicta that

“both beneficial and adverse effects on the environment can be significant

within the meaning of NEPA”).
DRAKES BAY OYSTER CO. V. JEWELL 33

associated with heavy machinery needed to remove Drakes

Bay’s structures, such relatively minor harms do not by

themselves “significantly affect[]” the environment in such a

way as to implicate NEPA. 42 U.S.C. § 4332(2)(C). We are

“reluctant . . . to make NEPA more of an obstructionist tactic

to prevent environmental protection than it may already have

become.” Douglas County, 48 F.3d at 1508 (internal

quotation marks omitted).

Ultimately, we need not resolve whether NEPA

compliance was required because, even if it was, the

Secretary conducted an adequate NEPA review process and

any claimed deficiencies are without consequence. The

government produced a lengthy EIS, which the Secretary

considered and found “helpful.” Although the Secretary

acknowledges that compliance with NEPA was less than

perfect, Drakes Bay is unlikely to succeed in showing that the

errors were prejudicial. Relief is available under the APA

only for “prejudicial error.” 5 U.S.C. § 706; see also Nat’l

Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S.

644, 659 (2007) (“In administrative law, as in federal civil

and criminal litigation, there is a harmless error rule.”)

(internal quotation marks and citation omitted).

Drakes Bay points to “technical” violations, specifically,

the Secretary’s failure to publish the EIS more than thirty

days before he made his decision and the Secretary’s framing

the extension denial in the form of a Decision Memorandum

rather than a Record of Decision. Drakes Bay has shown no 

prejudice from these claimed violations. See Nat’l Forest

Pres. Grp. v. Butz, 485 F.2d 408, 412 (9th Cir. 1973)

(declining to reverse where NEPA timing and EIS

requirements were not strictly followed but the agency “did

consider environmental factors” and the “sterile exercise” of
34 DRAKES BAY OYSTER CO. V. JEWELL

forcing agency to reconsider “would serve no useful

purpose”); see also City of Sausalito v. O’Neill, 386 F.3d

1186, 1220 (9th Cir. 2004) (declining to reverse based on

violation of deadline for ESA biological assessment where no

harm was shown).

Drakes Bay puts considerable stock in its claims that the

final EIS was based on flawed science and that the absence of

the thirty-day comment period denied it an opportunity to

fully air its critique, specifically with regard to conclusions

regarding the “soundscape” of the estero.12 Nothing in the

record suggests that Drakes Bay was prejudiced by any

shortcomings in the final soundscape data. Drakes Bay sent

the Secretary its scientific critique before he issued his

decision. The Secretary specifically referenced that

communication and stated that he did not rely on the “data

that was asserted to be flawed.” The Secretary was well

 

12 Drakes Bay had submitted previous criticisms about the soundscape

analysis, and related impacts on harbor seals, in its data quality complaint

regarding the draft EIS. Although Drakes Bay did not raise the issue in its

briefs, at oral argument it objected that the Secretary did not adequately

respond to expert comments to the DEIS. In general, “on appeal,

arguments not raised by a party in its opening brief are deemed waived.” 

Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). Regardless, we

conclude the response to the DEIS was adequate. The Congressionallymandated NAS report that criticized elements of the DEIS, including on

these subjects, was brought to the Secretary’s attention. The NAS report

emphasized that the scientific literature on Drakes Estero was simply “not

extensive” and that research on the impact of oyster farming was “even

sparser.” The take-away was that impact assessments for the soundscape

and harbor seals were “considered to have a high level of uncertainty.” 

The final EIS responded to the NAS critique and also addressed the

scientific disputes. In particular, it added “a discussion on the strength of

the underlying scientific data” to address the NAS’s concerns about

scientific uncertainty.
DRAKES BAY OYSTER CO. V. JEWELL 35

aware of the controversies on the specific topics that Drakes

Bay criticizes and his statement was unambiguous that they

did not carryweight in his decision. Drakes Bay’s suggestion

that the Secretary could not have made the informed decision

that NEPA requires without resolving all controversies about

the data is unsound. NEPA requires only that an EIS

“contain[] a reasonablythorough discussion of the significant

aspects ofthe probable environmental consequences.” Seattle

Audubon Soc. v. Espy, 998 F.2d 699, 703 (9th Cir. 1993)

(internal quotation marks and citation omitted). Drakes Bay

is not likely to succeed in showing that the final EIS was

inadequate, even assuming NEPA compliance was required.

4. Federal Register Notice

In light of the determination to let the permit expire, the

Secretary directed the National Park Service to “publish in

the Federal Register the notice announcing the conversion of

Drakes Estero from potential to designated wilderness.” 

Drakes Bayargues that the subsequentlypublished notice was

false because Drakes Bay’s continued commercial activities

(under the 90-day period the decision allowed to wrap up

operations) and California’s retained fishing and mineral

rights precluded wilderness status. Drakes Bay also argues

that the notice was issued in violation of formal rulemaking

regulations.

Drakes Bay lacks standing to challenge the publication of

the notice. Its claimed injury arises from the Secretary’s

decision to let its permit expire, not the designation in the

notice. Drakes Bay cannot continue its operations without a

permit, regardless of how the estero is designated. We

disagree with Drakes Bay’s position that it has standing

because “it will be necessary to vacate the unlawful notice in
36 DRAKES BAY OYSTER CO. V. JEWELL

order for [Drakes Bay’s] injuries to be ultimately redressed.” 

Because Drakes Bay is not injured by the notice, it may not

challenge the notice’s purported falsity or the Secretary’s

compliance with rulemaking procedures.13

B. WEIGHING THE EQUITIES

Drakes Bay is not entitled to a preliminary injunction not

only because it failed to raise a serious question about the

Secretary’s decision, but also because it has not shown that

the balance of equities weighs in its favor. Alliance for the

Wild Rockies, 632 F.3d at 1132. The district court found that,

although Drakes Bay satisfied the irreparable harm prong of

the preliminary injunction analysis, neither the public interest

nor the equities were in its favor. When the government is a

party, these last two factors merge. Nken v. Holder, 556 U.S.

418, 435 (2009). Our review of the court’s findings is for

abuse of discretion, and we see none here.

13 To the extent that Drakes Bay argues that the Secretary’s decision was

somehow tainted by the instruction that the Park Service publish the

notice, the challenge still fails because the instruction was in accordance

with the law. The notice was not false because, as we explained above,

Drakes Estero could be designated “wilderness” despite California’s

reserved rights. Nor is the presence of temporary non-wilderness

conditions an obstacle because Park Service policy permits a wilderness

designation when “wilderness character could be . . . restored through

appropriate management actions.” In addition, although general

regulations require rulemaking for certain use terminations, 36 C.F.R.

§ 1.5(b), the more specific section of 1976 legislation provided that

conversion to wilderness would be automatic “upon publication in

the Federal Register of a notice by the Secretary of the Interior that all

uses thereon prohibited by the Wilderness Act . . . have ceased.” 

90 Stat. 2692.
DRAKES BAY OYSTER CO. V. JEWELL 37

The district court reasonably found that the public interest

does not weigh in favor of injunctive relief. The public

benefits both from the enjoyment of protected wilderness and

of local oysters, and the court found no basis upon which to

weigh these respective values. This factor does not tip to

Drakes Bay.

Recognizing that Drakes Bay bears the burden in its quest

for a preliminaryinjunction, the court’s consideration of other

equitable factors was also reasonable. Drakes Bay purchased

the oyster farm with full disclosure, knowing that the

reservation of use and occupancy was set to expire in 2012. 

The Department repeatedly warned the company that it did

not plan to issue a new permit. Although the prospect of

closing down a business is a serious hardship, the only

reasonable expectation Drakes Bay could have had at the

outset was that such a closure was very likely, if not certain. 

Closure remained a distinct possibility even after the passage

of Section 124. Drakes Bay argued to the district court that

it had “every reason to hope” for extension. But when parties

“‘anticipate[] a pro forma result’ in permitting applications,

they become ‘largely responsible for their own harm.’” 

Sierra Club v. U.S. Army Corps of Eng’rs, 645 F.3d 978, 997

(8th Cir. 2011) (quoting Davis v. Mineta, 302 F.3d 1104,

1116 (10th Cir. 2002)). We see no reason to disturb the

court’s finding that the company’s “refusal to hear the

message” was an equitable factor weighing against it.

AFFIRMED.
38 DRAKES BAY OYSTER CO. V. JEWELL

WATFORD, Circuit Judge, dissenting:

The majority states that, by enacting § 124, “Congress did

nothing more than let the Secretary know his hands were not

tied.” Maj. op. at 24. I think Congress, by including the

“notwithstanding” clause in § 124, intended to do more than

that. In particular, it sought to override the Department of the

Interior’s misinterpretation of the Point Reyes Wilderness

Act, Pub. L. No. 94-544, 90 Stat. 2515 (1976).

The Department had concluded, in 2005, that the Act

barred issuance of a special use permit authorizing continued

operation of Drakes Bay Oyster Company’s oyster farm. The

Department thought Congress had “mandated” that result by

designating Drakes Estero, where the oyster farm is located,

as a “potential wilderness addition” in the Point Reyes

Wilderness Act. The Act’s legislative history makes clear,

however, that by divining such a mandate, the Department

simply misinterpreted the Act’s provisions and misconstrued

Congress’s intent. The Department’s misinterpretation of the

Point Reyes Wilderness Act prompted Congress to enact

§ 124 in 2009. In my view, by including a notwithstanding

clause in § 124, Congress attempted to supersede the

Department’s erroneous interpretation of the Act.

In the 2012 decision challenged here, the Secretary

nonetheless denied Drakes Bay’s permit request based

primarily on the very same misinterpretation of the Point

Reyes Wilderness Act that Congress thought it had

overridden. As a result, I think Drakes Bay is likely to

prevail on its claim that the Secretary’s decision is arbitrary,

capricious, or otherwise not in accordance with law. See

5 U.S.C. § 706(2)(A). Because the other preliminary

injunction factors also weigh in Drakes Bay’s favor,
DRAKES BAY OYSTER CO. V. JEWELL 39

injunctive relief preserving the status quo should have been

granted here.

I

To explain why I think the Interior Department (and later

the Secretary) misinterpreted the Point Reyes Wilderness Act,

a fairly detailed discussion of the Act’s legislative history is

necessary.

The events leading up to passage of the Point Reyes

Wilderness Act begin in 1962, when Congress authorized

creation of the Point Reyes National Seashore and

appropriated funds for land acquisition within the Seashore’s

designated boundaries. Act of Sept. 13, 1962, Pub. L. No.

87-657, 76 Stat. 538 (1962). As part of that process, in 1965,

the State of California conveyed ownership of the submerged

lands and coastal tidelands within the Seashore’s boundaries

to the federal government. See Act of July 9, 1965, ch. 983,

§ 1, 1965 Cal. Stat. 2604, 2604. Those lands included Drakes

Estero. The conveyance reserved certain mineral and fishing

rights, which allowed the State to “prospect for, mine, and

remove [mineral] deposits from the lands,” and “reserved to

the people of the state the right to fish in the waters

underlying the lands.” Id. §§ 2–3, 1965 Cal. Stat. at 2605. At

the time of the State’s conveyance, oyster farming was

alreadya well-established fixture in Drakes Estero, with roots

dating back to the 1930s.

In 1973, the President recommended that Congress

preserve 10,600 acres within the Point Reyes National

Seashore as “wilderness,” under the terms of the Wilderness

Act of 1964, Pub. L. No. 88-577, § 3(c), 78 Stat. 890, 892

(1964). Members of California’s congressional delegation
40 DRAKES BAY OYSTER CO. V. JEWELL

found that recommendation woefully inadequate, and soon

thereafter introduced identical bills in the House and Senate

designating far larger areas of the Seashore as wilderness. In

the House, Congressman John Burton introduced H.R. 8002,

94th Cong. (1975); in the Senate, Senator John Tunney

introduced S. 2472, 94th Cong. (1975). H.R. 8002 is the bill

that eventually became the Point Reyes Wilderness Act.

As originally proposed, H.R. 8002 and S. 2472 would

have designated more than thirty-eight thousand acres as

wilderness. Included within that designation was Drakes

Estero, as well as most of the other submerged lands and

coastal tidelands conveyed by California in 1965. The

sponsors of H.R. 8002 and S. 2472 were well aware of the

oyster farm in Drakes Estero. They nonetheless included

Drakes Estero within the wilderness designation because they

did not view the farm’s operations as incompatible with the

area’s wilderness status. Commenting on the Senate bill,

Senator Tunney left no doubt on that score, declaring,

“Established private rights of landowners and leaseholders

will continue to be respected and protected. The existing

agricultural and aquacultural uses can continue.” Wilderness

Additions—National Park System: Hearings Before the

Subcomm. on Parks and Recreation of the S. Comm. on

Interior and Insular Affairs, 94th Cong. 271 (1976)

[hereinafter Senate Hearing].

During hearings on H.R. 8002 and S. 2472, various civic,

environmental, and conservation groups supported Drakes

Estero’s designation as wilderness. They explained in detail

why neither the State’s reserved mineral and fishing rights

nor the oyster farm precluded such a designation. No one

advocating Drakes Estero’s designation as wilderness

suggested that the oyster farm needed to be removed before
DRAKES BAY OYSTER CO. V. JEWELL 41

the area could become wilderness. See id. at 324–33,

344–61; H.R. 7198, H.R. 8002, et al., To Designate Certain

Lands in the Point Reyes National Seashore, California as

Wilderness: Hearing Before Subcomm. on Nat’l Parks and

Recreation of the H. Comm. on Interior and Insular Affairs,

94th Cong. (1976) [hereinafter House Hearing], prepared

statements of Jim Eaton, William J. Duddleson, Ms. RayePage, and Frank C. Boerger.

The comments Congress received from those who were

advocatingDrakes Estero’s designation as wildernessstressed

a common theme: that the oyster farm was a beneficial preexisting use that should be allowed to continue

notwithstanding the area’s designation as wilderness. For

example, a representative from the Wilderness Societystated: 

“Within Drakes Estero the oyster culture activity, which is

under lease, has a minimal environmental and visual

intrusion. Its continuation is permissible as a pre-existing

non-conforming use and is not a deterrent for inclusion of the

federally owned submerged lands of the Estero in

wilderness.” House Hearing, prepared statement of Ms.

Raye-Page, at 6. The Chairman of the Golden Gate National

Recreation Area Citizens’ Advisory Commission noted that

the oyster-farming operations “presentlycarried on within the

seashore existed prior to its establishment as a park and have

since been considered desirable by both the public and park

managers.” Senate Hearing, at 361. He therefore

recommended that specific provision be made to allow such

operations “to continue unrestrained by wilderness

designation.” Id. Others observed, echoing the comments of

Senator Tunney, that the proposed House and Senate bills

already provided for that. See House Hearing, prepared

statement of William J. Duddleson, at 3–4 (“H.R. 8002 would

allow continued use and operation of Johnson’s Oyster
42 DRAKES BAY OYSTER CO. V. JEWELL

Company at Drakes Estero, as a pre-existing non-conforming

use.”); Senate Hearing, at 357 (“S. 2472 would allow the

continued use and operation of Johnson’s Oyster Company in

Drakes Estero.”). A local state assemblyman succinctly

summed it up this way: “Finally, I believe everyone

concerned supports the continued operation of oyster farming

in Drakes Estero as a non-conforming use.” Senate Hearing,

at 356.

The view expressed by these speakers—that continued

operation of the oyster farm was fully compatible with

Drakes Estero’s designation as wilderness —was not some

wild-eyed notion. It was firmly grounded in the text of the

Wilderness Act itself. The Act generally bans commercial

enterprise within wilderness areas, but does so “subject to

existing private rights.” 16 U.S.C. § 1133(c). Drakes Bay’s

predecessor, the Johnson Oyster Company, had existing

private rights in the form of water-bottom leases issued by

California that pre-dated both the passage of the Wilderness

Act and creation of the Point Reyes National Seashore. The

Act also generally prohibits the use of motorboats within

wilderness areas, see id., but the Secretaryof Agriculture may

permit continued use of motorboats when, as here, such use

has “already become established.” Id. § 1133(d)(1). To the

extent there is any ambiguity in these provisions, the Act’s

legislative historymakes clear that Congress believed the new

wilderness-preservation system would not affect the

economic arrangements of business enterprises “because

existing private rights and established uses are permitted to

continue.” S. Rep. No. 88-109, at 2 (1963).

The only party opposed to designating Drakes Estero as

wilderness was the Department of the Interior. At first, the

Department took the position that none of the submerged
DRAKES BAY OYSTER CO. V. JEWELL 43

lands and coastal tidelands conveyed by California in 1965

could be designated as wilderness, because the State’s

reserved mineral and fishing rights were “inconsistent with

wilderness.” House Hearing, letter from John Kyl, Assistant

Secretary of the Interior, at 3. When the Department’s view

came under attack by those who argued that the State’s

reserved rights were not in any way inconsistent with

wilderness, see, e.g., Senate Hearing, at 327–28, the

Department backpedaled. It proposed placing most of the

lands subject to the State’s reserved rights into a new

legislative classification—“potential wilderness addition”—

which it had developed in connection with similar wilderness

proposals. See House Hearing, at 11–12; id., letter from John

Kyl, Assistant Secretary of the Interior, at 1. That

designation was intended to encompass “lands which are

essentially of wilderness character, but retain sufficient nonconforming structures, activities, uses or private rights so as

to preclude immediate wilderness classification.” S. Rep. No.

94-1357, at 3 (1976).

Four areas subject to the State’s reserved rights were at

issue: the coastal tidelands, Limantour Estero, Abbotts

Lagoon, and Drakes Estero. The original version of H.R.

8002 designated all four areas as wilderness, not just potential

wilderness additions. But in the spirit of compromise,

Congressman Burton, the sponsor of H.R. 8002, agreed to

amend the bill by designating those areas as potential

wilderness additions, rather than as wilderness. See House

Hearing, prepared statement of Rep. John Burton, at 2. In

doing so, he made clear that all four areas were being

designated as potential wilderness additions due to

California’s reserved mineral and fishing rights. See id. He

noted that, “[a]s ‘potential wilderness,’ these areas would be

designated as wilderness effective when the State ceeds [sic]
44 DRAKES BAY OYSTER CO. V. JEWELL

these rights to the United States.” Id. (emphasis added). As

so amended, H.R. 8002 was enacted as the Point Reyes

Wilderness Act in 1976.

Fast forward now to 2005. Shortly before Drakes Bay’s

purchase of the oyster farm closed, the Park Service reiterated

its view that, based on a legal analysis performed by the

Interior Department, no new permits authorizing oyster

farming in Drakes Estero could be issued. The Department’s

legal analysis concluded—bizarrely, given the legislative

history recounted above—that by designating Drakes Estero

as a potential wilderness addition in the Point Reyes

Wilderness Act, Congress had “mandated” elimination of the

oyster farm. The Department never identified anything in the

text of the Act to support that view; it cited only a passage

from the House Report accompanying H.R. 8002. But that

passage “is in no way anchored in the text of the statute,”

Shannon v. United States, 512 U.S. 573, 583–84 (1994), and

thus provides no support for the Department’s interpretation

of the Act.

Even taken on its own terms, however, the passage from

the House Report does not support the Department’s

interpretation. The passage states in full: “As is well

established, it is the intention that those lands and waters

designated as potential wilderness additions will be

essentiallymanaged as wilderness, to the extent possible, with

efforts to steadily continue to remove all obstacles to the

eventual conversion of these lands and waters to wilderness

status.” H.R. Rep. No. 94-1680, at 3 (1976) (emphasis

added). But the oyster farm was not an “obstacle” to Drakes

Estero’s conversion to wilderness status, and no one in

Congress ever expressed that view. To the contrary, as

discussed above, all indications are that Congress viewed the
DRAKES BAY OYSTER CO. V. JEWELL 45

oyster farm as a beneficial, pre-existing use whose

continuation was fully compatible with wilderness status.

II

With that background in mind, we can now turn to the

legal issue at the heart of this appeal, which is how to

construe § 124.

Everyone appears to agree that the Park Service’s

conclusion in 2005 that it was legally prohibited from

granting Drakes Bay a special use permit prompted Congress

to enact § 124. If all Congress had wanted to do was “let the

Secretary know his hands were not tied,” as the majority

asserts, § 124 could simply have stated, as it does, that “the

Secretary of the Interior is authorized to issue a special use

permit . . . .” Act of Oct. 30, 2009, Pub. L. No. 111-88,

§ 124, 123 Stat. 2904, 2932. But Congress went further and

added a notwithstanding clause, so that the statute as enacted

reads, “notwithstanding any other provision of law, the

Secretary of the Interior is authorized to issue a special use

permit . . . .” Id. (emphasis added). Our task is to determine

what effect Congress intended the notwithstanding clause to

have.

Given the historical backdrop against which § 124 was

enacted, I think Congress intended the clause to override the

Interior Department’s misinterpretation of the Point Reyes

Wilderness Act. Reading the clause in that fashion is

consistent with the way courts have typically construed

notwithstanding clauses. The Supreme Court has held that

the use of such a clause “clearly signals the drafter’s intention

that the provisions of the ‘notwithstanding’ section override

conflicting provisions of any other section.” Cisneros v.
46 DRAKES BAY OYSTER CO. V. JEWELL

Alpine Ridge Grp., 508 U.S. 10, 18 (1993). And we have said

that the basic function of such clauses is to “sweep aside” and

“supersede” any potentially conflicting laws. United States

v. Novak, 476 F.3d 1041, 1046 (9th Cir. 2007) (en banc);

Student Loan Fund of Idaho, Inc. v. U.S. Dep’t of Educ.,

272 F.3d 1155, 1166 (9th Cir. 2001). A notwithstanding

clause often targets those laws that were the “legal sticking

point” for the action Congress intends to authorize. 

Miccosukee Tribe of Indians of Fla. v. U.S. Army Corps of

Eng’rs, 619 F.3d 1289, 1301 n.19 (11th Cir. 2010).

In this case, no conflicting laws actually prevented the

Secretary from issuing a permit to Drakes Bay. Continued

operation of the oyster farm is fully consistent with the

Wilderness Act, and the farm’s existence is therefore not an

“obstacle” to convertingDrakes Estero to wilderness status as

directed by the Point Reyes Wilderness Act. Instead, it was

the Interior Department’s misinterpretation of the Point

Reyes Wilderness Act that proved to be the “legal sticking

point” here. I think the best reading of the notwithstanding

clause is that Congress meant to “override” (“sweep aside,”

“supersede”) that misinterpretation of the law when it enacted

§ 124. Alpine Ridge Grp., 508 U.S. at 18; Novak, 476 F.3d at

1046; Student Loan Fund, 272 F.3d at 1166.

If you accept what I have said so far, only two questions

remain. The first is whether Congress, having overridden the

Department’s misinterpretation of the Point Reyes

Wilderness Act, nonetheless authorized the Secretary to rely

on that misinterpretation as a basis for denying Drakes Bay a

permit. I cannot see any reason why we would construe

§ 124 in that fashion. Under the Administrative Procedure

Act (APA), if an agency bases its decision on a legally

erroneous interpretation of the controlling statute, its decision
DRAKES BAY OYSTER CO. V. JEWELL 47

will be deemed arbitrary, capricious, or otherwise not in

accordance with law. See Safe Air for Everyone v. EPA,

488 F.3d 1088, 1091, 1101 (9th Cir. 2007) (involving an

erroneous interpretation of a state implementation plan that

had the force and effect of federal law). Thus, even without

the notwithstanding clause, it would make no sense to assume

that Congress authorized the Secretary to base his decision on

a misinterpretation of the Point Reyes Wilderness Act. With

the clause, adopting any such construction of § 124 would be

entirely indefensible.

The second (and admittedly closer) question is whether

the Secretary in fact based his decision on the

misinterpretation of the Act that Congress intended to

override by enacting § 124. The majority suggests that the

Secretary based his decision instead on the Interior

Department’s own policies, see Maj. op. at 20 & n.5, 27–28

n.8, but I do not think the Secretary’s written decision

denying the permit supports that view. The Secretary’s

decision states that he gave “great weight” to what he called

“the public policy inherent in the 1976 act of Congress that

identified Drakes Estero as potential wilderness.” The

Secretary read that Act as expressing Congress’s intention

that all “obstacles” to converting Drakes Estero to wilderness

status should be removed. But he erroneously deemed the

oyster farm to be such an obstacle (“DBOC’s commercial

operations are the only use preventing the conversion of

Drakes Estero to designated wilderness”), because he

erroneously assumed that the oyster farm’s continued

operation was “prohibited by the Wilderness Act.” That in

turn led him to conclude— again erroneously—that his

decision to eliminate the oyster farm “effectuate[d]”

Congress’s intent as expressed in the Point Reyes Wilderness

Act.
48 DRAKES BAY OYSTER CO. V. JEWELL

These are precisely the same errors of statutory

interpretation the Interior Department made back in 2005. 

They are precisely the same errors that prompted Congress to

enact § 124 in the first place. And, in my view, they are

precisely the same errors Congress attempted to supersede by

inserting the notwithstanding clause. Contrary to the

majority’s assertion, the Secretary had no authority to rely on

this misinterpretation of “Congress’s earlier expressed goal”

because the notwithstanding clause eliminated any such

authority. See Maj. op. at 27–28 n.8.

What does the majority offer in response to this analysis?

Some hand waving, to be sure, but nothing of any substance. 

Most tellingly, the majority never attempts to argue that the

Interior Department’s interpretation of the Point Reyes

Wilderness Act was correct. Nor could it make that

argument with a straight face given the Act’s clear legislative

history, which the majority never attempts to address, much

less refute. The majority thus has no explanation for

Congress’s inclusion of the notwithstanding clause in § 124

other than the one I have offered: that it was included to

override the Department’s misinterpretation of the Point

Reyes Wilderness Act. The majority claims that the clause

“has a clear function—to convey that prior legislation should

not be deemed a legal barrier” to permit issuance. See Maj.

op. at 20. But that reading of the clause supports my position

because the Secretary did treat “prior legislation”—namely,

the Point Reyes Wilderness Act—as a “legal barrier” to

permit issuance. As I have argued, that is exactly what the

notwithstanding clause was intended to prohibit.

The majority also claims that I have not accorded the

Secretary’s decision the deference it is owed under the

arbitrary and capricious standard, which requires us to give
DRAKES BAY OYSTER CO. V. JEWELL 49

due regard to an agency’s exercise of discretion within its

sphere of expertise. See Maj. op. at 27–28 n.8. But I am not

arguing here that the Secretary’s decision must be set aside

because it reflects faulty weighing of permissible policy

factors. We would have no authority to second guess a

decision of that order. What I am saying, instead, is that

§ 124’s notwithstanding clause precluded the Secretary from

basing his decision on the very misinterpretation of the Point

Reyes Wilderness Act that Congress intended to override. A

decision will normally be deemed arbitrary and capricious if

an agency “has relied on factors which Congress has not

intended it to consider.” Motor Vehicle Mfrs. Ass’n v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). That,

unfortunately, is just what the Secretary did.

In short, I would hold that Drakes Bay is likely to prevail

on the merits of its APA claim. The Secretary’s

misinterpretation of the Point Reyes Wilderness Act, and his

mistaken view that denying the permit request effectuated

Congress’s intent, were “fundamental” to his decision,

rendering the decision “arbitrary, capricious, or otherwise not

in accordance with law.” Safe Air for Everyone, 488 F.3d at

1101 (internal quotation marks omitted).

III

Like the majority, I will not spend much time addressing

the remaining preliminary injunction factors—irreparable

harm, balance of the equities, and the public interest. See

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20

(2008). Considered together, those factors tip in Drakes

Bay’s favor.
50 DRAKES BAY OYSTER CO. V. JEWELL

Drakes Bay will suffer irreparable injury to its business

and real-property rights if a preliminary injunction is

erroneously denied. See, e.g., Sundance Land Corp. v. Cmty.

First Fed. Sav. & Loan Ass’n, 840 F.2d 653, 661 (9th Cir.

1988); Am. Passage Media Corp. v. Cass Commc’ns, Inc.,

750 F.2d 1470, 1474 (9th Cir. 1985). The loss of “an ongoing

business representing many years of effort and the livelihood

of its [owners] constitutes irreparable harm.” Roso-Lino

Beverage Distribs., Inc. v. Coca-Cola Bottling Co., 749 F.2d

124, 125–26 (2d Cir. 1984) (per curiam).

The balance of equities favors Drakes Bay. The majority

concludes otherwise by noting that Drakes Bay knew when it

acquired the oyster farm that its permit would expire in 2012. 

Maj. op. at 37. But that is not the relevant consideration. 

Rather, the controlling consideration is that the harm Drakes

Bay will suffer from the erroneous denial of a preliminary

injunction far outweighs the harm the government will suffer

from an erroneous grant of such relief. See Alliance for the

Wild Rockies v. Cottrell, 632 F.3d 1127, 1137–38 (9th Cir.

2011); Scotts Co. v. United Indus. Corp., 315 F.3d 264, 284

(4th Cir. 2002); Am. Hosp. Supply Corp. v. Hosp. Prods. Ltd.,

780 F.2d 589, 593 (7th Cir. 1986); Roso-Lino, 749 F.2d at

126. The government will suffer only modest harm if oyster

farming’s eighty-year history in the Estero continues a bit

longer. But if a preliminary injunction is erroneously denied,

Drakes Bay’s business will be destroyed. That is all Drakes

Bay must show to demonstrate that the balance of equities

tips in its favor here.

Finally, the public interest favors neither side. As the

district court observed, federal judges are ill equipped to

weigh the adverse environmental consequences of denying a

preliminary injunction against the consequences of granting
DRAKES BAY OYSTER CO. V. JEWELL 51

such relief, or the relative interests in access to Drakes Bay’s

oysters as opposed to unencumbered wilderness. It is the

equities that carry the day in this case, see Nken v. Holder,

556 U.S. 418, 435 (2009) (when the United States is a party,

equities and the public interest merge), and the equities

strongly favor Drakes Bay.