F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

D R A K E S B A Y O Y S T E R C O M P A

N Y ; K E V I N L U N N Y , Plaintiffs-Appellants

,

v

.

S A L L Y J E W E L L , in her official capacity as Secretary
, U.S. Department of the I

nterior; U.S. D E P A R T M E N T O F T H E I

N T E R I O R ; U.S. N A T I O N A L P A R K S E R V I C E ; J O N A T H A N B

. J A R

V I S , in his official capacity as Director, U.S. National Park Service, Defendants-Appellees

. N o. 13-15227

D.C. No. 4:12-cv-06134- YGR

ORDER AND AMENDED OPI NI ON

A ppeal from the United States District Court for the Northern District of California Y vonne Gonz a lez Rog ers, District J udg e, Presiding

Arg ued and Submitted May 14, 2013—San F rancisco, California

F iled September 3, 2013 A mended J anuary

14, 2014D R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 2

B efore: M. Marg a

ret McKeown and Paul J . W atford, Circuit J udg es, and Alg enon L . Marbley , District J udg e. *

Opinion by

J udg e McKeown; Dissent by

J udg e W atford

SUMMARY * *

Environm ental Law / P relim inary Injunction

The panel affirmed the d ist r i c t c ourt’s order d eny ing a preliminary injunction challeng i ng the Secretary of the I n t e r ior’s discretionary d ecision to let Drakes B a y Oy ster Company ’s permit for commercial oy ster far m ing at Point Rey es National Seashore ex pire on its own terms.

Drakes B ay soug h t a preliminary injunction, arg uing that the Sec r etary ’s decision to let the permit ex pire violated the

a u t h o r i za tion in the Department of the I nterior Appropriatio n s Act (“Section 124”), the N ational Environmental Policy Act, and v arious federal reg ulations. The pane l h eld that it h ad jurisdiction to review whether the Secretary violated any leg al mandate c ontained in Section 1 2 4 or elsewhere, but that it lac k ed jurisdiction to r eview the Secretary ’s ultimate discretionary d ecision whether to issue a new p e rmit. The panel held that Drakes B ay was not likely to su c c eed in

* T h e H o n o r ab le A lg en o n L

. Marb ley

, District J u d g e f or th e U .S. District Co u

rt f o r th e So u th ern District o f Oh i o , sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.D R A K E S B A Y O Y S T E R C O

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. J E W E L L 3

proving that the Secretary violated con stitutional, statutory , reg ulatory

, or other leg a l mandates or restrictions. The panel further h eld that D rakes B ay was not entitled to a preliminary injunction not only because it failed to raise a s e r i o us q u e stion a

bout the Secretary ’s decision, but also because i t had n ot shown that the ba l an ce o f e quities weig hed in its favor.

J udg e W atford dissented because he wo u l d hold that Drakes B a

y w as likely to prevail on it s c l a i m that the Secretary ’ s decision was ar b i t rary , capricious, or otherwise not in a ccordance with law. J udg e Watford would hold that injunctive relief p reserving the status quo should have been
g ranted.

COUNSEL

A m b e r D. A bbasi (arg

ued), Cause of A ction, W ashing ton, D.C.; J ohn B riscoe, L awrence S. B az el, and Pe t er S. Prows, B riscoe I v ester & B a z el L L P, San F rancisco, California; S. W a y ne Rosenbaum a

n d R y an W aterman, Stoel Rives L L P, San Dieg o, California; Z achary Walton, SSL L aw F irm L L P, San F rancisco, California, for Plaintiffs-Appellants.

J

. David Gunter I I (arg

ued) Trial Attorney
, U nited S t at e s Department of J ustice, W ashing ton, D.C.; I g nacia S. Moreno, Assistant Attorney

General, Stephen M. Macfarlane, J o seph T. Mathews, E. B arrett A twood, and Charles Shockey

, Trial Attorney s, United States D epartment o f J ustice, Sacramento, California, for Defendants-Appellees.D R A K E S B A Y O Y S T E R C O

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. J E W E L L 4

J udith L

. Teichman, San F rancisco, Califo rnia, f or Amici Curiae Alice W aters, Tomales B ay O y ster Company
, Hay e s Street Grill, Marin County A g ricultural Commissioner, Stacy Carlsen, the California Fa r m B ureau F ederation, the Marin County F arm B ureau, the Sonoma County F arm B ureau, F ood Democracy Now, Marin Org anic, and the Alliance F o r L ocal Sustainable Ag riculture.

Trent W

. Orr and Georg e M. Torg un, Earthjustice, San F rancisco, California, for Amici Curiae Environmental Action Committee o f W est Marin, National Parks Conservation Association, N atural R e sources Defense Council, Save Our Seashore, and t he Coalition of National Park Service Retirees.

ORDER

The opinion filed o n September 3, 2013, appearing at 729 F .3d 967, is hereby amended. An amended opinion is filed concurrently w ith this order.

W ith these amendments, J udg e McKeown voted to deny the petition f

or re h earing en banc and J udg e Marbley so recommends. J udg e W atford voted to g rant the petition.

Amicus Curiae Catherine Ruc k e r ’s request for judicial notice in support of h er brief o pposing the petition for rehearing en banc is DENIED

.

The full court h as been advised o f the petition for rehearing en b anc and no judg e has re q u e s t e d a vote on whether to rehear the matter en banc. F ed. R. App. P. 35.D R A K E S B A Y O Y S T E R C O

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The petition for rehearing en b anc is DEN I E D

. N o further petitions for e n b anc or panel rehearing shall be permitted.

OP INION

McKEOW

N, Circuit J udg e:

This appeal, which pits an oy ster farm, oy ster lovers a nd well-known “foodies” ag a inst environmentalists alig ned with the federal g overnment, has g enerated considerable attention in the San F rancisco B ay area. 1 Drakes B ay Oy ster Company (“Drakes B a

y ”) challeng es the Secretary of the I n t erior’s discretionary decision to let Drakes B ay ’s permit for commercial o y ster farming ex pire according to its terms. The permit, which allowed farming within Point Rey e s Nat i o n al S e a shore, was set to lapse in November 2012. Drakes Ba y

r e q u e s t e d an ex tension p ursuant to a Cong ressional e nactm e n t that provided, in relevant part, “notwithstanding an y o ther provision of law, the Secretary of the I nterior is a uthoriz ed to issue a special use permit with the same terms and conditions

as the ex isting authoriz a tion.” Departmen t o f the I nterior

1 T h e p an el ap p reciates th e am icu s b rief in g f iled b y su p p o rters o f

b o th sid es. A lice W aters, T o m ales B ay Oy ster Co m pan y , Hay es Street Grill, th e Calif o rn ia Farm

B u reau Fed eratio n , th e Marin Co u n ty Farm B u reau , th e So n o m a Co u n ty Farm B u reau , F oo d Dem ocracy No w , Marin Org an ic,

an d th e A llian ce Fo r L ocal Su stain ab le A g ricu ltu re f iled an am ici cu riae b rief in s u p po rt o f Drak es B ay

. T h e En v iro n m en tal A ctio n Co m m ittee of W est Marin

, N atio n al P ark s Co n serv atio n A sso ciatio n , Natu ral Reso u rces Def en se C o u n cil, Sav e Ou r Seash ore, an d t h e Co alitio n o f Natio n al P ark Serv ice Retirees fi l e d an am ici cu riae brief in su p p o rt o f th e f

ed eral
p arties.D R A K E S B A Y O Y S T E R C O

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Appropriations Act, Pub. L

. No. 111-88, § 1 2 4
, 1 23 Stat. 2904, 2932 (2 0 0 9 ) (“Section 1 24”). After the Secretary declined to ex tend the permit, Drakes B ay soug ht a preliminary

injunction, arg uing that the Secretary ’s decision violated the authoriz ation i n Section 124, the National Environmen t a l Policy Act (“NEPA”), 42 U.S.C. § 4321 et
seq. , and various federal reg ulations.

W e have jurisdiction to conside r w h ether the Secretary violated “constituti onal, statutory , reg ulatory or other leg al mandate s o r restrictions,” Ness Inv. Corp. v. U.S. Dep’t of Agr., Forest Serv.
, 512 F

. 2d 706, 715 (9th Cir. 1975), and we

a g ree with the district court that Drakes B ay is n o t li k e l y t o succeed i n p r o v ing any such violations here. Throug h Section 124, Cong ress authoriz ed, but did n o t r e quire, the Secretary to ex tend the permit. Cong ress left the decision to g rant o r deny an ex tension to the Se c r e tary ’s discretion, without im p o s ing a

ny mandatory considerations. The Secretary clearly understood he was a uthor i z e d to issue the permit; h e did not misinterpret the sco p e of his discretion under Section 124. I n an effort to i n f orm his decision, the Secretary undertook a NEPA review, althoug h he believed he was not oblig ated to do so. Nonetheless, any asserted errors in the NEPA review were harmless.

B e c a u se Cong ress committed the substance of the Secretary ’ s decision to his discretion, we cannot review “the making of an informed judg ment b y t h e a g e ncy .” Id. I n letting t h e permit lapse, the Secretary emphasiz ed the importance of the long

- term e n vironmental i m p a ct o f the decision on Drakes Este r o, which is located in an area desig nated as potential wilderness. He a lso underscored that,

w h e n Drakes B ay purchased the p roperty in 2005, it d i d s o with ey e s wide open to the fact that the permit acquired fromD R A K E S B A Y O Y S T E R C O

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its predecessor owner w as set to ex pire just seven y e ars later, in 2012. Drakes B ay ’s disag reem en t with the value judg ments made by the Secretary is not a leg itimate basis on which to set a side the decision. Once we determine, a s we have, that the Secretary did not violate any statutory mandate, i t i s not our province to intercede in his discretionary decision. W e, ther e f

o re , affirm the district court’s order deny ing a preliminary

injunction.

B A C K G R O U N D

I. T H E P O I N T R E Y E S N A T I O N A L S E A S H O R E

Cong r ess established the Point Rey es National Seashore ( “Point Rey es”) in 1962 “in order to save and preserve , f o r purposes of public recreation, benefit, an d inspiration, a portion of the diminishing seashore of the United States that remains undeveloped.” Act of Sept. 1 3
, 1962, Pub. L

. No. 87-657, 76 Stat. 5 3 8, 538. The area is located in Marin County
, California, and ex hibits ex ceptional biodiversity

. Point Rey es is home to Drakes Estero
, a s eries of estuarial bay s.

The enabling leg islation f or Point Rey es gave the Secretary of the I nterior administrative authority over the area and directed him to acquire lands, w aters, and other property and interests w ithin the seashore. Id. a t § 3(a), 76 Stat. at 539–40. I n 1965, the State of California convey e d to the United States “all of the tide a n d submerg ed lands or other lands” within Point Rey es, reserving certain mineral s rig hts to itself and reserving the rig ht to fish to Californians. 1965 Cal. Stat. 2604–2605, § 1–3.D R A K E S B A Y O Y S T E R C O

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I n the Point Rey es W ilderness Act of 1976, C ong ress desig nated certain areas w ithin the seashore as “wilderness” under the W ilderness A c t of 1964. Pub. L

. No. 94–544, 90 Stat. 2515. The W ilde rness Act “established a National W ilderness Preservation Sy stem to be composed of federally owned a reas d esig nated by Cong ress a s ‘wilderness ar ea s

. ’” 16 U.S.C. § 1131(a). Such a reas are to “be administered for
t he use and enjoy

ment of the American people i n s u c h

manner a s will leave them unimpaired for future u s e a nd enjoy ment as wilderness, a n d s o as to provide f o r the protection of these areas [ and ] the preservation of their wilderness character.” Id. According ly , subject to statutory

ex c e ptions and ex isting private righ t s , the Act provides that “there shall be no commercial ent e r p r i s e

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

The Point Rey e s W ilderness Act d e s i gn a ted other areas, including Drakes Estero, as “potential wilderness.” P u b

. L

. No. 94–544, 90 Stat. 2 515. Cong ress c onsidered desig nating Drakes Estero as “wilderness,” but dec l i n e d to do so. The leg islative history reflects that Cong ress took into account the Department o f the I nterior’s position that commercial oy ster farming operations taking place in Drakes Estero, as well a s California’s reserv e d r ig hts and special use p ermits relating
to the pastoral z one, r endered th e a re a “inconsistent with wilderness” at the time. H.R. Rep. No. 94-1680, at 5–6 (1976), r eprinted in 1 976 U.S.C.C.A.N. 5593, 5597. Cong r ess specified in separate leg islation t hat the “potential wilderness a dditions” in Point Rey es “shall

. . . be desig nated wilderness” by “ p u b l ication in the F e deral Reg ister of a notice by the Secretary of the I nterior that all uses thereon prohibited by the W ilderness A ct

. . . hav e c eased.” Act o f Oct. 20, 1976, Pub. L . No. 94-567, § 3, 90 Stat. 2692.D R A K E S B A Y O Y S T E R C O

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II. D R A K E S B A Y O Y S T E R C O M P A N Y ’ S O P E R A T I O N S

Oy ster farming has a long history in Drakes Estero, dating
to the 1 9 30s. Charles J o h n s o n started the J ohnson Oy ster Company in Drakes Estero in the 1950s. His oy ster farm was in operation on a five-acre parcel of land on the shore of the

e s t e ro when Cong ress created the Point Rey es N ationa l Seashore. I n 1972, J ohnson sold his five acres to the United States, electing to retain a f o r t y

- y ear reservation o f use a nd

oc c u p ancy (“RUO”). T he RUO provided that, “ [ u] pon

ex p iration of the reserved t e r m , a special use permit may be issued for the continued occupancy of the prop e rty for the herein described purposes.” (Emphasis a dded.) I t added that, “[ a] ny permit for continued use will be issued in accordance with National Park Service [ “NPS”] r eg ulations in e ffe c t at th e t i m e the reservation ex pires.” I n late 2004, Drakes B ay ag reed to purchase the assets of the J ohnson Oy ster Comp a n y

. The RUO was transferred along with the purchase. T he forty -y ear RUO ended on November 30, 2012.

W h en it purchased the farm, Drakes B ay was well a ware th at the r eservation would ex pire in 2012, and received multiple c onfirmations of this limitation. The acquisition documents specifically refe r e n ced “that certain Reservation of Possession L ease dated 1 0/12/1972, entered into by Seller and the Nat i o n al P ark Service.” I n J anuary 2005, the National Park Service wrote t o Kevin L unny , a n owner o f Drakes Bay
, hig hlig hting “the issue of the potential wilderness d esig nation.” The Park Service told L u nny that it wanted to make sure he was aware of the I n t e r i o r Department’s leg al position “[ b] efore [ h e] closed escrow on the purchase” of J ohnson’s f arm. The Park Service according ly s ent L unny a memorandum from the Department’s Solicitor. Notably

, the Solicitor disag reed withD R A K E S B A Y O Y S T E R C O

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the proposition previously ex pressed in t h e House Report
accompany

ing the Point Rey es W ildern e s s Act that California’s retained fishing and mineral r ig hts were inconsistent with wilderness desig nation. T h e Sol i citor concluded, “the Park Service is mandated by the W ilderness Act, the P o i n t R ey es W ilderness Act and its Manag ement Policies to c onvert potential wilderness, i.e. the J ohnson Oy ster Company tract and the a djoining Estero, to wilderness
status as soon as the non conforming use can b e eliminated.” I n March 2 005, the Park Service reiterated its g uidance
reg arding the Drakes B a

y ’s purchase of the J ohnson property

. I t specifically informed L unny , “R eg arding the 2012

ex p iration date a

nd the potential wilderness, b a sed o n our leg al review, no new permits will be issued after that date.”

III. S E C T I O N 124 A N D T H E S E C R E T A R Y ’ S D E C I S I O N

S e veral y ears later, in 2009, Cong ress addressed the Department of the I nterior’s authority to issue Drakes B ay a

new permit in appropriations leg islation. The Senate appropriations committee proposed a provision r equiring the Secretary to issue a special use p ermit f or an additional ten
y ears. H

. R

. 2 9 96, 111th Cong

. § 1 20(a) (as reported in Senate, J uly 7, 2009) ( providing “the Secretary of the I nterior shall ex tend the ex isting authoriz a tion

. . . ” ) ( emphasis added). The Senate r ejected this mandate, and a mended the lang uag e to provide that the Secretary “is authoriz ed to issue” the permit, rather than r equir e d t o d o so. 155 Cong

. Rec. S9769-03, S9773 (daily

ed. Sept. 24, 2009).

The law as enacted provides:

Prior to the ex piration on November 3 0, 2012 of the Drakes B a

y Oy ster Company ’sD R A K E S B A Y O Y S T E R C O

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Reser v ation of Use and Occupancy a nd associated special use permit (“ ex isting authoriz ation”) within D rakes Estero at Point Rey es National S e a s h o r e , n o t w i thstanding any

o t h er p rovision of law, the Secretary of t h e I nterior is authoriz ed to issue a special use permit with the same terms and c onditions a s the ex isting authoriz ation, ex cept as provided herein, for a p eriod of 10 y ears f rom November 30, 2012

. Provided

, That such

e x tended authoriz a tion is subject to annual
pay ments t o the United States based on the fair market value of the use o f the F ederal property for the duration of such renewal. The Secretary shall take into co n sideration recommendations of the National Academy o f Sciences [“NAS”] Report per taining to shellfish mariculture in Point Rey es National Seashore before modify ing any terms a n d conditions of the ex tended authoriz ation. Nothing in this section shall b e cons trued to have any a

p plication to an y l o cation other than Point Rey es National Seashore; nor shall
any thing in this secti on be cited as precedent for manag e ment of any potential wil d e r ness outside the Seashore.

123 Stat. at 2932. The H ouse Conference Report r e f lected that the final lang uag e “provid[ ed] the Secretary d iscretion to issue a special use p ermit.

. . .” 155 Cong

. Rec. H 1 1 871-06 (daily ed. October 28, 2009) (emphasis added).

The NAS report that Section 124 refer e n ced, “Shellfish Mariculture in Drakes Estero, Point Rey e s National Seashore,D R A K E S B A Y O Y S T E R C O

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California,” was p repared in 2 0 09, in lig ht of “the approach of the 2012 ex piration date” of the permit, in orde r “ t o h e lp clarify the scientific issues raised with reg ard to the shellfish mariculture activities in Dr a kes Estero.” The report hig hlig hted that there was “limited scientific litera t ure” available and that there was evidence that oy ster farming h ad both neg ative and positive effects on the environment. The report ex plained: “The u ltimate decision to permit or prohibit shellfish farming in Drakes E stero necessarily requires value judg ments and tradeoffs th at can be informed, but not resolved, by

science.”

D rakes B ay sent letters to the Secretary in J u ly 2010 requesting that he e x ercise his authority u nder Section 124 to issue a p ermit ex tension. Park Service staff met with L unny

soon a fter to discuss a draft sched u le to complete a N EPA
process. The Department, throug h the Park Service, then formally beg a

n to p repare an Environ m e ntal I mpact Statement (“EI S”) in an e f fort “to eng ag e the public a nd evaluate the effects of continuing the c o m m ercial operation within the national seashore” and “ to inform the decision o f whether a new special u se permit should be issued.” Drakes B ay Oy ster Company Speci a l Use Permit, 7 5 F ed. Reg

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

The Park Service issued a draft EI S (“DEI S”) for public
comment in September 2011. Dra k es B ay submitted

2 In th e f in al EIS, th e Dep artm en t stated th at S ectio n 1 2 4 d id n o t req u ire

co m plian ce w i th NEP A b ecau se th at p ro v isio n g av e th e Secretary

au th orizatio n to m ak e th e p erm it d ec i s i o n “ n o tw ith stan d in g an y o th er p ro v isio n o f law .” Nev erth eless, th e Dep artm en t “ determ in ed th a t i t is h elp f u l to g en erally f

o llo w t h e p ro ced u

res o f NEP A .” T h e Secretary reiterated th is p o sitio n

in h is d ecisio n

.D R A K E S B A Y O Y S T E R C O

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comments c riticiz ing much of the draft, along with a data quality complaint. 3 Cong ress ex pressed “concerns relating to the validity of the science underly ing the DEI S” a nd therefore

“ d irect[ ed] the National Academy of Sciences to assess t h e data, analy sis, and conclusions in the DEI S in order to ensure there is a solid scienti f i c foundation for the F inal Environmental I mpact Statement ex p ected in mid-2012.” H.R. Con f

. R e p

. 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 Aug ust 2012. The report noted several instances where the DEI S “lack[ ed] a ssessment of the level of uncertainty associated with t h e scientific information o n w hich conclusions were based.” B ut the report concluded that the available research did not admit of certainty :

The scientific literat u r e on D rakes Estero is
not ex tensive and research on the potential impacts of shellfish mariculture on the Estero is e ven sparser

. . . . Consequently

, for most of the resou rce categ ories the committee found that there is a moderate or hig h level o f

u n c e r t a i n t y a s s o c i a t e d w i t h i m p a c t assessments in the DEI S.

The fin a l E I S, issued on November 20, 2012, responded to the NAS review. T he EI S revised t h e definitions of the intensity of impacts to wildlife and wildlife habitats, c larified the assumptions underly ing those c o nclusions, and added discussion of the uncertainty of scientific data.

3 Drak es B ay ’ s d ata q u ality co m p lain t is n o t b ef

o re u s in th is ap p eal.D R A K E S B A Y O Y S T E R C O

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. J E W E L L 14

The Secretary issued his decision on November 2 9, 2012, directing the Park Service to let the p ermit ex pire a c c ording
to its terms. He ex plained tha t h i s d ecision was “based on matters of law and policy

, ” including the “ex p licit terms o f the 1 9 7 2 convey ance from the J ohnson Oy ster Company to the United States” and “the policies of NPS concerning commercial u se within a unit of the National Park Sy stem a nd nonconforming u ses within potential or desig nated wilderness, as well as specific wilderness leg islation f o r Point Rey es N ational Seashore.” He r ecog n iz ed that Section 124 “gr a nt[ ed] [ him] the authority to issue a new SUP,” but elected to effectuate Park Service policies and the principles he discerned in wilderness leg islation.

I n h is decision, the Secretary rec o gn i z ed the “scientific uncertainty ” and “lack of consensus in the record r e g arding the precise nature and scope of t h e i m p a cts that [ Drakes B ay ’s] operations have” on wilderness an d other resources. Generally

, he found that the impact statements supported the proposition that letting the permit ex pire “would result in long -term beneficial impacts to the estero’s natural environment.” B ut he ex plained t h a t the draft and final E I S

were “not material to the leg al and policy factors that provide the central basis” for his decision, thoug h they were “helpful” in that they informed him reg arding t h e “complex ities, subtl e ties, and uncertainties of this matter.” He disclaimed reliance on “ the data that was asserted to be flawed,” a nd

no t e d that his decision was “based on the incompatibility o f commercial activities in wilderness.”

I n accordance with his d ecision, the Secretary directed the Park Service to publis h a notice in the F ederal Reg ister announcing the conversion of Drakes Estero from p otential to desig nated w ilderness. This litig ation followed. Drakes B ayD R A K E S B A Y O Y S T E R C O

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sued the Secretary
, seeking a declara t o r y judg ment that his decision violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq

. , a

n order that the Secretary direct the Park Service to issue a new ten-y ear permit

, a nd,

a l t ernatively

, an order vacating and remanding for a n e w decision. Drakes B ay

moved for a preliminary

injunction to avoid having to cease its operations p ending su i t , a s i t h ad been g iven ninety day s to remove its property from the estero.

Th e district court determined that it did not have jurisdiction to review the S e c retary ’s decision because “the
stat u t o ry contex t affords complete d iscretion” and “Section 124 p rovides the Court with ‘no meaning ful standard’ for the Court to apply in reviewing the Decision not to issue a New SUP.” T he court went on to provide an alternate rationale for denial: “the Court does not find that Plaintiffs ca n show a likelihood of success under a Sectio n 706(2) standard [ arbitrary

, capricious, an abuse of discretion, or otherwise not in accordance with law under the APA] .” Fi n al l y , the court held that “[ o] n balance, and c ombining t h e r e quirement o f both the e quities and the public int erest more broadly

, the Court does not find these elements weig h in favor o f g ranting a preliminary

injunction.” 4

4 A m o tio n s p an el g ran t ed Drak es B ay ’ s em erg en cy m o t i o n fo r an in j u n ctio n p en d in g ap p eal “ b ecau se th ere are serio u s leg al q u estio n s an d th e b alan ce o f h ard sh ip s tip s s h arp l y i n ap p ellan ts’ f av or.” W ith th e b en ef it o f f u ll b rief in g an d arg u m en t, w e n eed n o t d ef er to th e m o t i o n p an el’ s n ecessarily ex p ed ited d ecisio n

. Un ited S ta tes v. H o u ser , 8 0 4 F.2 d 5 6 5 , 5 6 8 (9 th

Cir. 1 9 8 6 ).D R A K E S B A Y O Y S T E R C O

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. J E W E L L 16

A N A L Y S I S

I. J U R I S D I C T I O N A N D T H E S C O P E O F T H E “N O T W I T H S T A N D I N G ” C L A U S E

As a threshold matter, we address jurisdiction. On this point, we disag ree 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 o f subject
matter jurisdiction under the APA). W e do have jurisdiction
to review whether the Secretary v iolated any le g al mandate contained in Section 124 or els e w h e re. However, we ag r ee with the district court that we lack jurisdiction to review the Secretary ’ s u l timate discretionary decision whether to issue a new permit.

The g overnment arg ues that we lack jurisdiction to r eview
any of Drakes B ay ’s claims b ecause, unde r S ec tion 124, the Secretary ’ s decision was “committed to ag ency discretion b y law.” 5 U.S.C. § 701(a)(2). T h is n ar r o w ex ception to the presumption of judicial review of ag ency a c tion under the APA applies “ if the statute is drawn so that a court would have no meaning ful st a n d a r d a g ainst which to judg e the
ag ency ’s ex ercise o f discretion.” Heckler v. Chaney

, 470 U.S. 8 21, 830 (1985); see also W ebster v. Doe
, 486 U.S. 592, 599 (1988) (characteriz ing the e x c e ption a s for circumstances where there is “no law to apply ” ) ( i n ternal quotation marks and citation o m i tted). B ut even where the substance or result of a d e c i s i o n is committed fully to an ag ency ’s discretion, “a federal c ourt has jurisdiction to r eview
ag ency action for abuse o f discretion when the alleg ed abuse of discretion involves violat i o n by the ag ency o f constitutional, statutory , reg ulatory or o ther leg al mandates o r restrictions.” Ness Inv

. C o r p

. , 512 F

. 2d at 715. I n suchD R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 17

circumstances, a federal court lacks only jurisdiction to review an alleg ed abuse o f discretion reg arding “the making of an informed judg ment by the ag ency .” Id.

Here, as in Ness Inv. Corp.
, “[ t] he secretary is ‘authoriz ed,’ not requi r e d

, t o issue” a p ermit, and there a re “no statutory re s trictions or definitions prescribing precise qualifications” for issuance. Id. Conseq uently we may review only whether the Secr etary followed whatever leg al restrictions applied to his d ecision-making p rocess. The parties ag ree that the Ness framework applies, but d isag ree on whether any “mandates or r estrictions,” id.

, e x ist. Drakes Ba y i n terprets Section 124, NEPA, and various federal
reg ulations as imposing leg al restrictions on the Secretary
, but it contends that t hese requirements apply only to a de ci s i o n to deny an ex tension, n ot to a decision g ranting an

ex tensi on. The Secretary contends that the “notwithstanding ” clause of Section 1 24 s weeps a way any statutes a

nd
reg ulations that mig ht otherwise appl y to a p ermit application. Neither side has it quite right.

As a g eneral m a t t er, “notwithstanding ” clauses nullify conflicting provisions of law. S e e United States v. Novak

, 476 F

. 3d 1041, 1046 (9th Cir. 2007) (en banc) (“The Supreme Court has indicated as a ge n eral proposition that statutory ‘notwithstanding ’ clauses broadly sweep aside potentially conflicting laws.”). B e fore Cong ress passed Section 124, the Department’s Solicitor had issued a series o f o p i n ions holding that the W ilderness Act, the Point Rey es W ilderness A ct, a nd Park Service manag ement policies leg ally p r ohibited any

ex tension of the permit. Section 124’s “notwithst a n d i ng ” cla u s e trumps any law that purports to prohibit o r preclude the Secretary from e x tending the permit, as such a law would

“ conflict” with Section 1 24’s authoriz ation. Thus w e m a yD R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 18

review whether the Secretary misunderstood his authority to issue a permit and the closely r elated question of whether he mistake nly interpreted other statutory provisions a s placing a leg al restriction on his authority . As the g overnment itself acknowledg es, if Section 1 2 4 provides restrictions on the Secretary ’ s ex ercise o f d i s c r etion, then we have jurisdiction to review compliance with those limits.

The Secretary ’s d ecision is als o subject to applicable procedural constraints. “[ W] hen two statutes are capable o f

co-ex istence, it is the d

u ty of the courts

. . . to reg ard each a s effective.” Morton v. Mancari
, 4 1 7 U.S. 5 3 5, 551 (1974). T hus, w e have jurisdiction to consider the applicability o f NEPA and other pr ocedures that do not conflict with the authoriz ation in Section 124.

Procedural constraints that do not confli c t with the authoriz ation would apply to the Secretary ’s d e c i sion
reg ardless of whether he g ranted or den i e d the permit. W e reject Drakes B ay ’s anomalous position that the Secretary h ad “unfettered a

uthority to issue the permit,” while his “discretion to deny [Drakes B ay ] a [permit] [ was] bounded b y NEPA and other applicable law.” Drakes B a y points to the fact that Section 124 say s that “ n o twithstanding a ny other provision of law, the Secretary of the I nterior is a uthoriz ed to i s s u e a special use permit,” rather than that he is authoriz ed
to “issue or deny ” one. F r o m that lang uag e, Drakes B ay

ex trapolates that Section 124 “was enacted to make it easy to i s s u e t he permit.” The statute does not dictate such a o n e

way ratchet. I ndeed, if Con gr ess had so wanted to make it
easy or automatic for D rakes B ay , one w o n ders why it rejected the proposal that would have simply requir e d the Secretary to issue a new permit. The ultimate leg islation was

a move away f

rom, not toward, Drakes B ay ’s favored r esult.D R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 19

A natural reading of the authoriz ation to i s s u e a p ermit implies authoriz ation not to issue o ne, and we see no reason
to inte rp r e t the “notwithstanding ” clause as apply ing to o ne outcome but not the ot h er. See Confederated Salish and Kootenai Tribes v. United States
, 343 F .3d 1193, 1196

– 9 7 (9th Cir. 2003) (interpreting the word “ authoriz ed” to mean both the power to g rant or deny a request for the Secretary to take land in trust for a tribe). Section 124 was enacted as part of appropriations leg islation, g ranting the Secretary authority
to act, without providing a ny statement of Cong ress’s view on that decision one way or the other.

Drakes B a

y ’s e f fort to read into this short appropriations provisio n a preference f or issuance of the permit is unavailing

, a s is the dissent’s a t t e m p t t o do so b ased on leg islative history from d ec a des earlier. The dissent misunde r s t a n ds the sig nificance o f the leg islative history o f the Point Rey es W ilderness Act of 19 76, which focuses on the notion that Cong r ess at that time view e d o y ster farming as desirable and consistent with wilderness desig n ation.

The dissent stacks leg islative history from one enactment to another, over decades, w hen Sect i o n 1 2 4 itself does not make the link. “Ex t ri n s i c materials have a role in statutory interpre t a t ion only to the ex tent they shed a reliable lig ht on the enacting Legislature’s understanding of otherwise ambig uous terms.” Exxon Mobil Corp. v. Allapattah Servs., Inc.
, 545 U.S. 546, 5 68 (2005) (emphasis added). Reg ardless of the accuracy of the dissent’s re citation of the leg islative history o f the 1976 Act, the dissent’s c itation to cong ressional
sta t e m ents in support o f desig nating Drakes Estero a s wilderness in 1 976 do not reliably r eflect t h a t the Cong ress th at enacted Section 124 was of the dissent’s view that Drakes B ay ’ s o p erations were “not an ‘obstacle’ toD R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 20

converting Drakes Estero to wildernes s s t a t us.” Dissent at 46. The dis s e n t ’ s position w ould rewrite the clause to something like “n o t withstanding the D epartment’s p olicy view that o y ster farming c an be incompatible with wilderness desig nation.” The dissent cites n o thing f rom the tex t, or even the leg islative history

, of Sect i o n 1 24 to support this interpretation. Even Drakes B ay did not arg ue t h i s position
or urg e us to g o this far afield. 5

Here, where Section 124 merely g rants authority to t a k e

an a ction, the “notwithstanding ” c lause targ ets laws that “potentially conflict[ ] ” with that authority

. Novak

, 476 F .3d
at 10 4 6

. Given the Department’s o pinions in 2005 that wilderness leg islation prevented any ex ercise of authority to

ex tend the permit, the notwithstan d i n g clause has a clear function—to convey that pri o r l eg islation should not be deemed a leg al barrier. 6 T he dissent c o n f u s e s actual o r

5 T h e d issen t’ s co n clu s io n th at “ [c]o n t in u ed op eratio n o f th e oy ster f arm is f u l ly co n s isten t w ith th e W ild ern ess A ct,” Dissen t at 4 6
, i s p articu larly
p u zzlin g g iv en

th at Drak es B ay itself arg u ed th at w ild ern ess d esig n atio n

o f Drak es Estero w as n o t p o ssib le w h i le th e o y s t e r f

arm ’ s co m

m ercial

a c t i v i t i es co n tin

u ed

. Mo reo v er, th ere are a v ariety o f P ark Serv i ce

m an ag em en t criteria t h a t i n fo rm th e q u estio n o f w h at k in d s o f activ ities

are “ co n sist e n t” w ith w ild ern ess d esig n atio n u n d er th e W ild ern ess A ct. T h e d i ssen t’ s relian ce on d ecad es- o ld l e g islativ e p ro n o u n cem en ts ab o u t th e J o h n so n o y ster f

arm f or t h e p ro p o sitio n th at S ectio n 12 4 w as in ten ded
to f o reclo se th e Secretary f

ro m co n sid erin g h is d ep artm en t’ s o w n p o licies

w ith reg ard to Drak es Bay stretch es ev en th e m ost lib eral u se o f leg islativ e h isto ry to th e b reak in g p o in t. “ [U]n en acted ap p ro v als, b elief s, an d d esires

are n o t law s.” Pu erto Rico Dep ’t o f Co nsu mer Affa irs v. Isla Petro l eu m Co rp

. , 4 8 5 U.S. 4 9 5, 5 0 1 (1 9 8 8 ).

6 T h is f u n ctio n is m ean i n g f

u l reg ard l e s s o f w

h eth er co n f

lictin g law s actu ally prev en ted th e Secretary f ro m issu in g a p erm it, a q u es t io n th e d issen t w o u ld an sw er in t

h e n eg ativ e, Dissen t at 4 6
, b u t w h i ch w e s im

p ly h av e n o o ccasio n to p ass o n h ere. T h e D ep artm en t’ s leg al p o sitio n raisedD R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 21

potential leg al impediments to the Secretary ’s authority with policy considerations that mig ht l e a d the Department not to

ex tend Drakes B ay ’s permit. Section 124 does not prescribe

c o nsiderations on which the Secretary may or may not r e l y , it say s nothing about the crit eria for wilderness desig nation and say s n othing about whether oy ster f arming is consistent with w ilderness d esig nation. A s the Supreme Court has admonished, “courts have n o authority to enforce a principle
g l e a n e d solely from leg islative history that has no statutory reference point.” Shannon v

. United States
, 512 U.S. 573, 584 (1994) (internal quotation marks and alteration omitted). Had Cong ress wanted to ex p ress a view o n whether the Secre t ar y should c o nsider the D epartment’s policies on wilderness o r other criteria, it would have said so. 7 I t did not, but rather g ave the Secretary the discretion to decide.

W e now turn to consideration of the Secretary ’s decision.

II. P R E L I M I N A R

Y I N J U N C T I O N N O T W A R R A N T E D

I n seeking a preliminary injuncti o n , D r akes B ay must establish “that [ it] is likely to succeed on the merits, that [ it] is likely to suffer i r r e p a rable harm in the absence o f

a “ p o t en tia l [] co n f

lict[],” No va k

, 4 7 6 F.3 d at 1 0 4 6 ( e m p h asis ad d ed ),
reg ard in g th e Dep ar t m e n t’ s au t h o rity

, an d th e “ n o tw ith stan d in g clau se”

m ad e clear th at “ oth er p ro v isio n s o f law ” w ere n o t an im

p ed i m en t

.

7 In d eed

, th e on ly co n sid eratio n th at Co n g ress ad d ressed in Sectio n 1 2 4

w as th at “ [t]h e Secretary sh all tak e i n to co n sid eratio n reco m m en d atio n s

o f th e Natio n al Acad em y o f Scien ces Rep o rt p ertain in g to sh ellf ish

m aricu l tu re in P o in t Rey es Natio n al Seash o re b ef o re mo d ifyin g an y term s

a n d co n d itio n s of th e ex ten d ed au th orizatio n .” (Em p h asis ad de d

. ) As

m o d if icatio n o f t h e p erm i t is n o t at issu e h ere, th is p ro v isio n is n o t relev an t.D R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 22

preliminary relief, that the balance of e q uities tips in [ its] favor, and that an injunction is in the public interest.” W inter

v. Natural Res. Def. Council, Inc.
, 5 55 U.S. 7, 20 (2008). W e have held that a “likel i h o o d ” o f success per se is not an absolute requirement. Alli a n c e for the W ild Rockies v

. C ottrell

, 632 F .3d 1127, 1131–32 (9th Cir. 2011). R a t h e r, “‘serious questions g oing to the meri t s ’ and a hardship balance that tips sharply toward the plaintiff can s u p p o rt issuance of an injunction, assuming the other two elements o f the W inter t es t a re also met.” I d. at 1132. W e r e view for abuse o f d i s cretion the district court’s determination that Drak e s B a

y did not meet its burden under this test. FTC v

. E n f o r m a N a t u ral Products, Inc.
, 362 F

. 3d 1204, 1211–12 (9th Cir. 2004).

Drakes B ay contends that the Secretary misinterpreted his authority under Section 124 in that he mi s t a k enly believed that g ranting a permit ex tension would violate o ther laws, that he failed to comply with NEPA, and that he f ailed to comply with federal rulemaking procedures. Accor d i n g to Drakes B ay , these errors render the Secretary ’s decision “arbitrary

, ca pricious, an a

buse of discretion, or otherwise not in accorda n c e with law.” 5 U.S.C. § 706(2)(A). Here, the likelihood of success on the merit s o f these claims is too remote to justify the ex traordinary r emedy of a preliminary injunction. I n lig ht of our conclusion a bout the merits, we address only in passing the remaining preliminary injunction factors.D R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 23

A. L I K E L I H O O D O F S U C C E S S O N T H E M E R I T S

1. The Im port of

Section 124

The Secretary ’ s decision did not violate any statutory mandate, particularly the provision that g ave him di s c r etion
to g rant the permit despite any prior conflicting law. The key portion of Section 124 p rov ides as follows: “Prior to the

ex p iratio n o n November 30, 2012 of the Drakes B ay Oy ster Company ’s Reservation of U se a nd Occupancy a n d associated special use permit (“ex isting authoriz ation”)

w ithin Drakes Estero at Point Rey es National Seashor e, notwithstanding any

other provision of law, the Secretary of the I nterior is authoriz ed to issue a special u s e permit

. . . . ” Section 1 2 4 put the Se c r e t a ry on notice that he was not hamstrung by o ther law should he d e t e r mine a p ermit

ex tension was appropriate. The section left h im free to consider wilderness values and the competing interests underly ing a commercial operation in an ar e a s e t a side as a natural seashore.

Th e n a r r ow q

uestion that we have jurisdiction to r eview is w hether the Secretary misinterpreted his authority under Section 124. The record le a v e s n o d o ubt that the answer is

no.

As the Secretary e x plaine d

, “SEC. 124 g rants me the authority and discretion to issue [ Drakes B ay ] a new special

use p ermit, but it does not direct me to do so.” The Secretary repeated this understanding multiple times through out the decision, noting

, for ex a mple, that Section 124 “d o e s n o t dictate a result or constrain my discretion in this matter,” a nd that it “g rants me the authority to issue a new SUP.”D R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 24

Drakes B ay ’s view that the Secretary violated Section 124
rests on a misinterpretation of t h a t p rovision a nd a misapprehension of the S ec retary ’ s reasoning

. Drakes B ay first arg ues that the statute was intended to “make it easy ” to i ssue the permit. As we e x plained above, this approa c h i s wishful thinking

, since the statute say s nothing of the kind. I ndeed, Cong ress first c onsidered w h e ther to mandate issuance of the permit but backed o ff that a p p roach a nd ultimately left the decision to the Secretary ’s discretion

. I n the end, Cong ress did nothing more than let the Secretary know his hands were not tied.

Drakes B ay nex t arg ues that the Secretary erroneously concluded t h at ex tending the permit would “violate” applicable wilderness leg islation. According to Drakes B ay , because Section 124 authoriz ed the Secreta r y to e x tend the permit “notwithstanding any other provision of law,” the Secretary was “prohibit[ ed]

. . . from rely ing on a violation o f other law as a reason to justify a permit denial.”

Drakes B ay ’s reading of the d ecis i o n is not tenable. Taken as a whole, the decision refle c ts that the Secretary

ex p licitly recog niz ed that ex tending the permit wou ld be lawful and that he was not leg ally c o nstrained by other laws.

The Secretary elected to let the permit ex pire not to avoid “violating ” a

ny law, as Drakes Ba y p osits, but because the Secretary weig hed and balanced c o m peting concerns about the environment and the value o f a q uaculture. He chose to g ive weig ht to the p olicies underly ing wilderness leg islation, taking into account consideration of environmental impacts: “I n addition to considering th e [ Drafted Environmental I mpact St a t e m e n t a

nd F inal Environmental I mpact Statement]
, I g ave great weight to matters of public policy,D R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 25

p a r t i c u larly the public policy inherent in the 1976 act o f Cong r e s s that identified Drakes Estero a s potential wilderness.” (Emphasis added).

Dra k e s B ay seiz e s on a sing le sentence in a summary o f

reasons as evidence that the Secretary thoug ht ex tending the permit would “violate

. . . specific wilderness leg islation.” At the beg inning of the decision, the summary i n c ludes o ne sentence that

, read in isolation, raises an ambig uity : “The continuation of the [ D rakes B ay ] operation would violate the policies o f NPS concerning commercial use withi n a unit o f
t h e National Park Sy stem and nonconforming uses with i n potential or d e s ig nated wilderness, a s well as specific wilderness legislation for Point Rey es N atio n a l Seashore.” (Emphasis a dded). However, reading the sentence in c ontex t of the full decision, it is obvious t h e S ecretary did not erroneously c onsider himself boun d by any provision o f wilderness leg islation. I n reviewing the ag ency ’s d e c i s i on,

we must uphold even “a decision of less than ideal clarity ” so long as “the ag ency ’s path may reasonably b e d iscerned.” FCC v. F ox Television Stations
, 556 U.S. 502, 5 13–14 (2009) (internal quotation marks omitted).

The Secretary ’s reliance on policy considerati o n s a nd C o n g ressional intent is evident throug hout the decision. Recounting the factual a

nd leg al backg round, f

o r ex ample, the Secretary c ited the House o f Representatives committee report accompany

ing the Point Rey es W ilderness A ct, which stated:

As is well e s t a b lished, it is the intention that those lands and waters desig nated as potential wilderness additions will be essentia lly
manag ed as wilderness, to the e x tent possible,D R A K E S B A Y O Y S T E R C O

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. J E W E L L 26

with efforts to steadily continue to remove all obstacles to the e ventual conversion of these lands and waters to wilderness status.

H.R. Rep. No. 94-1680 at 3

. Th e Secretary returned to this committee report in his conclusion, ex plaining that:

My dec i s ion honors Cong ress’s direction to “steadi l y continue to remove a ll obstacles to the eventual conversion o f these lands a nd waters to wilderness status” and thus ensures that these precious resources a r e preserved for
t h e e njoy ment of future g enerations of th e American public

, for whom Point Rey e s National Seashore was created.

As ex pressed in his decision, his choice was consistent with the d raft and final environmental im p a c t statements that “support the proposition that the removal of [ Drakes B ay ’s] commercial o perations in the estero would result in long -term beneficial impacts to the estero’s natural environment.”

Drakes B ay s u ggests that referencing even the Cong r essional “intent” or policies underly ing the Point Rey e s W ilderness Act runs afoul of Section 124. B ut as Drakes B ay itself acknowledg es, the “most n atur a l

, common-sense reading ” of the notwithstanding clause is “notwithstanding
any law that would otherwise legally preclude issuance of a [ special use permit]

, the Secretary h a s t h e authority to issue

a SUP.” I t is abundantly clear that t he Secretary recog niz ed his authority under Section 124 and did not believe he was leg ally bound by any statute to deny the permit. B ut the
po l i cy that underlies the 1976 Act and other wilderness leg islation is just that—an ex pression of public policy

. TheseD R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 27

e x pressions neither “leg ally p r eclude” nor leg ally mandat e

ex tension, a n d they are not “other provision[ s] of law” that

a r e swept aside b y Section 1 24’s “notwithstanding ” clau s e. Statements in committee reports do not carry the force o f law. See Lincoln v. Vigil

, 508 U

. S

. 182, 192–93 (1993). “Cong ress’s ‘authoritative statement is the statutory tex t, not the leg islative history .’” Chamber of Commerce of U .S. v

. W hiting

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

, 545 U.S. at 568).

The Secretary ’s i n c orporation of the policies underly ing

w ilderness leg islation, and of Cong ressional intent a s

ex p ressed in the House committee report, was a matter of his discretion. The Secretary n oted c o r r e c tly that “SEC. 124

. . . d o es n o t prescribe the factors on which I must base my decision.” Section 124 “pr o v i d e s the court no w a y to second-g uess the w eig ht or p riority to be assig ned” to th e se factors. Ctr. for Auto Safety v. Dole

, 846 F .2d 1 5 32, 1535 (D.C. Cir. 1988) (concluding that a g en c y d e cision to deny petition f o r enforcement was not reviewable w here the
g overning reg ulations provided no standards to enable judicial review). The choice was the Secretary ’s to make. 8

8 T h e dissen t’ s p o sitio n t h at t h e ag en cy “ relied o n f

acto r s w h ich Co n g ress h as n o t in ten d ed it to co n sid er,” Dissen t at 4 9
, is n o t su p p orted b y t h e reco rd

. Un d er th e def

eren tial arb itrary an d cap ricio u s stan d ard

, w e

u p h o l d ag en cy actio n f

o r w h ich a ratio n al ex p lan atio n is g iv en , p articu larly w

h e r e t h e ag en cy “ acted w ith in th e sp h ere o f its ex p ertise.” McFa rla n d v. Kemp th o rn e , 5 4 5 F.3 d 11 0 6
, 1 1 1 3 (9 th Cir. 2 0 0 8 ). T h e Secretary ’ s d ecisio n relied in g en eral o n “ Co n g ress’ s d i rectio n ” to rem ov e

“ ob stacles” to w i ld ern ess d esig n atio n

. Wh ile th e W ild ern ess A ct b an s

co m m ercial en terp rise w ith in w ild ern ess areas “ su b j ect to ex istin g p riv ate rig h ts,” 1 6 U.S.C. § 1 13 3 (c), P ark Serv ice p o l icies in f o rm w h eth er

w ild ern ess d esig n atio n is ap p ro p riate in th e f irst in stan ce. Co n trary t o th e d issen t’ s ch aracterizatio n , th e 1 9 7 6 leg islatio n d id n o t in v o k e a cry stal b all

an d p ass j u d g m en t o n th e co m patib ility o f o y ster f

arm in g in Drak es EsteroD R A K E S B A Y O Y S T E R C O

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. J E W E L L 28

2. Drakes Bay’s Other Statutory Argum ents

As Section 124 a f

fords n o basis for us to r eview the substance of the Secretary ’s decision, we have no measuring stick ag ainst which to judg e Drakes B ay ’s various claims that the Secretary ’s policy determination was mistaken. To the

ex tent the Secretary ’s decision can b e evaluate d a gainst the statutory requirements cite d b y D rakes B ay , Drakes B ay is unlikely to prevail in showing the decision was arbitrary a nd capricious, an abuse o f discretion, or in violation of any law.

Drakes B a

y arg u es that the Secretary violated the law b y directing that Drakes E stero be d esig nated as wilderness, because s u c h a desig nation was n ot possible under the W ildern e s s A c t in lig ht of California’s r etained mineral a nd fishing r ig hts. Althoug h the D e p a r t ment of the I nterior adopted this view in the p a st, t h e Department has since deemed that position inaccurate. The W ildern e ss A ct itself nowhere provides that retained mineral or fishing rig hts preclude wilderness d esig nation. 9 Drakes B ay is not likely to

w ith w ild ern ess so m e th irty p lu s y ears later w h en th e reserv atio n o f u s e

w o u ld ex p ire. In d eed

, t

h in g s ch an g e. T h e Secretary
, d raw in g o n th e ag en cy ex p ertise am assed in t h e d ecad es sin ce t

h e 1 9 7 0 s, co n clu d ed th at

co n tin u ed o y ster f

arm in g w as i n co n sisten t w ith w ild ern ess criteria an d th e Dep artm en t’ s p o licies. T h e Secretary ’ s d ecisio n th at rem o v in g th e f arm

w o u ld f u rth er C o n g ress’ s earlier ex p ressed g o al o f m o v in g to w ard

w ild ern ess d esig n atio n w a s ratio n al an d w ith in h is au th o rity u n der Sectio n 1 2 4

.

9 No tab l y , th e State o f Calif orn ia tak es th e p o sitio n th at its retain ed rig h ts, in c l u d i n g th e state co n stitu tio n al rig h t to f

ish

, d o n o t co v er aq u acu ltu re. T h e Calif

o rn ia Dep artm en t o f Fish an d Gam e criticized an d rej ected “ b rief

, g en eral, an d co n clu so ry ” co m m u n icatio n s it m ad e d ecad es earlier th at su g g ested th e o y ster f arm w as co v ered b y th e “ rig h t to f ish ”

reserv atio n

. A t presen t , th e state h as issu ed w ater b o tto m leases to Drak esD R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 29

succeed on its th e ory that the Secretary ’ s current position—that the permit’s ex piration enables wilderness d e s i g n a t i o n d e s p i t e r e t a i n e d m i n e r a l a n d f i s h i n g rig hts—amounted to “leg al error.”

Drakes B a

y also believes that wilderness desig nation was improper in lig ht of the “historic farming communit y ” t h at remains on D rakes Estero. However, a 1978 a mendment to the leg islation e stablishing Point Rey es specifically authoriz es the Park Service to lease p r operty used for “ag ricultural, r anching

, o r d a i r y ing purposes.” A ct of Nov. 10, 1978, Pub. L

. N o. 95-625, § 3 18, 92 Stat. 3467, 3487. The Secretary ’s decision considered these uses a “compatible activity ” within a wilderness area. Drakes B ay has not demonstrated how such a determination violates any restriction on the Secretary ’s authority

.

On a related note, Drakes B ay c h arg e s that, in recounting
t he statutory history

, the Secretary e r red in stating that the 1978 amend m e n t did not permit him to issue leases for mariculture. Drakes B ay ’s effort to shoehorn itself into an “ag ricultural purpose” is unavail i ng

. Cong ress limited the Secretary ’ s leasing author i t y to “lands” in Section 318(b) o f the 1 978 A ct, r ather than to the “ lands, waters, a nd

s u b m e r g ed lands” described in Section 318(a) of the same statu t e

. Id. I t is reasonable to a ssume this distinction is meaning ful and reasonable for the Secretary to state that the Ac t d id not authoriz e mariculture leases. Even if the Secretary misinterpreted this earlier l a w, he plainly

B ay f o r its co m m ercial op eratio n s, b u t h as m ad e clear th at th e u se o f th ose leases p ast 2 0 12 “ is ex pressly co n tin g en t u p o n [Drak es B ay ’ s] co m

p lian ce

w ith th e 1 9 72 g ran t reserv atio n an d

, af ter its ex p iratio n , w ith an

y sp ecial

u se p erm it” th at th e f

ed eral g o v ern m en t “ m ay

issu e in its d iscretio n .”D R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 30

understood that Section 1 2 4 did authoriz e him to issue Drakes B ay a permit f

or mariculture. I n sum, the Secretary neither

v iolated any statutory mandate n or did he misapprehend h i s authority under the various statutes raised by Drakes B ay

.

3. Com pliance w ith NEP A

W e nex t a ddress the applicability of NEPA to the Secretary ’ s decision. Under NEPA, an ag ency is r equired to prepare an environmental i m p a ct statement (“EI S”) for “major F ederal actions sig nificantly affecting th e quality o f the human environment.” 42 U .S.C. § 4332(2) ( C )

. The
g overnment urg es that its decision to let Drakes B a y ’s p ermit

ex p ire is not a “ major F ederal action[ ] ,” but rather is inaction that does not implicate NEPA. Drakes B ay responds that the
term “major F ederal action s ” includes failures to act, 40 C.F .R. § 1508.18, and that NE P A a p plies to decisions concerning whether to issue a permit. 1 0

Here, the Secretary ’ s decision to let Drakes B ay ’s p ermit

ex p ire according to its terms effectively “ denied” D rakes B ay

10 Drak es Bay arg u es th at w e can n o t co n sid er th e g o v ern m en t’ s in actio n arg u m en t b ecau se t

h e Secretary d id n o t rely o n th at p o s i t io n in h is d ecisio n

. W e d isag r e e

. “ T h e ratio n ale b eh in d th e Ch en ery I Co u rt’ s ref u sal t o accep t b elated j u stif icatio n s fo r ag en cy actio n n o t p rev io u sly asserted d u rin g th e ag en cy ’ s o w n p ro ceed in g s d oes n o t ap p ly in th is case. Ch en ery I w as p rem ised o n t h e p o licy th at co u rts sh o u ld n o t su b stitu te th eir j u d g m en t f

o r th at o f th e ag en cy w

h en rev iew in g a ‘ d eterm in atio n of
p o licy o r ju d

gmen t wh i c h t h e a g en cy a lo n e i s a u th o rized to ma ke an d

w h ich it h as n o t m ad e.’ ” Lo uis v. U.S

. Dep ’t o f La b o r , 4 1 9 F.3 d 9 7 0
, 9 7 7

– 7 8 (9 th Cir. 2 0 0 5 ) (q u o tin g S EC v. Ch en ery Co rp

. , 3 1 8 U.S. 80
, 8 8 (1 9 4 3)) (em

p h asis ad d ed ). T h e “ p o l i c y o r j u d g m en t” call h ere w as th e Secretary ’ s su

b stan t iv e d ecisio n w

h eth er to g ran t th e p erm it. W e are n o t

co n strain ed in co n sid er i n g arg u m en t s co n cern in g th e ap p licab ility of NEP A

.D R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 31

a permit. W e have held that “if a federal permit is a prerequ i s i te for a project with adverse impact on the environment, issuance of that permit does constitute ma j o r federal action.” Ramsey v

. Kantor
, 96 F .3d 434, 444 ( 9th Cir. 1 9 96) ( emphasis added). B u t we have never h eld failu r e t o g rant a permit to the s a m e standard, and for g ood reason. I f
ag e n cies were required to produce an EI S every time they denied someone a l i c e n s e , the sy stem would g rind to a halt. Our case law makes clear that not every denial of a r equest to act is a “major F ederal action.” W e have held, for ex ample, that no EI S was required when the federal g overnment denied

a request to e x ercise its reg ulatory authority to stop a state’s
prog r am killing wildlife. S tate of Alaska v. Andrus

, 591 F .2d 537, 541 (9th Cir. 1979).

D ra kes B ay sug g ested a t oral arg ument that t h e Secreta r y ’s decision differs f rom ty p ical inaction because it

e f f e cted a c hang e in the status quo, namely

, the cessation of commercial operations that had previous l y been authoriz ed. W e are skeptical that the decision to a l l o w t h e permit to

ex p ire after f

orty y ears, and thus to move toward desig nating Drakes Estero as wilderness, is a major action “sig nificantly

a ffecting the quality of the human environment” to w h i c h NEPA applies

. 4 2 U

. S.C. § 4 332(2)(C). “The purpose o f NEPA is to ‘provide a mechanism to enhance or improve the environment a n d prevent further irreparable d amag e.’” Douglas County v. Babbitt

, 4 8 F .3d 1495, 1505 (9th Cir. 1995) ( quoting Pacific Legal Foundation v. Andrus

, 657 F .2d 829, 837 (6th Cir. 1981)).

The Secretary ’s d ec i s i o n is essentially an environmental conservation effort, which has not trig g ered NEPA in the
pa s t

. F or ex ample, in Douglas County
, we held NEPA did
not apply to critical habitat desig nation u n der the Endang eredD R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 32

Species A ct (“ESA ” ) b ecause it was “an action that prevent[ ed] human interference with the envi ronment” a nd “because the ESA furthers the goals of NEPA without demanding an EI S.” Id

. a t 1 505, 1506 (emphasis added). B ecause removing the oy ster farm is a step toward restoring the “natural, untouched phy sical e n vironment” a nd would prevent subsequent human interference in Drakes E stero, id.
at 1505, the reasoning o f Douglas County is persuasive h ere. The Secretary ’s decision to allow the p e r m i t to ex pire, just like the desig nation under the ESA, “protects the enviro n ment from ex actly the k ind o f h u m an impacts that NEPA is desig ned to foreclose.” Id. at 1507. 1 1

Drakes B ay a l s o a r gued that removal of the oy ster farm implicates NEPA be ca u s e it has “ adverse environmental consequences.” Althoug h the f inal EI S did note that removal mig ht cause certain short-term h arms, such a s no i se

11 Drak es B ay n o ted at oral arg u m en t th at w e h av e reco g n ized a circu i t sp lit o n th e q u estio n o f “ w h eth er sig n if

ican t b en eficia l ef

f ects alo n e w ou ld trig g er an EIS” an d co n clu d ed in d i c t a t h a t req u irin g an EIS i n th ose circu m s tan ces w as “ co n sisten t w ith th e w eig h t o f circu it au t h o rity an d h as th e v irtu e o f ref

lectin g th e p lain lan g u ag e o f th e statu te.” Hu ma ne S o ciety

o f U.S

. v. Lo cke

, 6 2 6 F .3 d 1 0 4 0
, 10 5 6 n .9 (9 th Cir. 2 0 1 0 ) (citin g cases) (em p h asis ad d ed ). T h e au th ority c i t e d is n o t p ersu asiv e h ere, h o w ev er, b ecau se n o n e of t

h o s e c ases ad dressed en v iro n m en tal co n serv atio n ef f o rts. T h e cases in s tead d ealt w ith m aj o r f ed eral co n stru ctio n p ro

j ects t o w h ich NEP A ap p lied i n o rd er to ev alu ate th e p o sitiv e ef f ects asserted

. S

ee S ierra Clu b v. Fro eh lke

, 8 1 6 F.2 d 2 0 5
, 2 1 1 n .3 (5 th Cir. 1 9 8 7 ) (m aj o r f ed eral

w ater p ro j ect o f A rm

y Co rp s o f En g in eers); Na t ’l W ild life Fed ’n v. Ma rsh

, 7 2 1 F.2 d 7 67
, 7 8 3 (1 1 t h C i r

. 1 9 8 3 ) (co n stru ctio n o f m an

- m ad e lak e); En vtl. Def. Fu n d v. Ma rsh

, 6 5 1 F.2 d 9 8 3
, 9 9 3 (5 th Cir. 19 8 1) (m aj or

n av ig atio n al p ro

j ect); see a lso Na tu ra l Res. Def. C o u n cil, In c. v. Herrin g to n , 7 6 8 F.2 d 1 35 5
, 1 4 31 (D.C

. Cir. 1 9 8 5 ) (ad d ressin g en erg y

ef f icien cy stan d ard s f

o r h o u s eh o l d ap p lian ces an d n o tin g i n d i c t a t h a t

“ bo th b en ef

icial an d ad v erse ef

f ects o n th e en v i ro n m en t can b e sig n if ican t

w ith in th e m ean in g o f

NEP A ”).D R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 33

associa ted w ith heavy machinery needed to remove Drakes B ay ’s struct ures, such relatively minor harms do not b y themselves “sig nificantly affect[ ] ” the environment in such a way as to implicate NEPA. 4 2 U.S.C. § 4332(2)(C). W e a re “reluctant

. . . to make NEPA more of a n obstructionist tactic
to p revent environmental protection than it may already have become.” Douglas Co u n t y , 48 F .3d at 1508 (internal quotation marks omitted).

Ultimately

, we n eed not resolve whether N EPA compliance w as required bec a use, even if it was, the Secreta r y c onducted an adequate N EPA review process a nd
any c laimed deficiencies are without consequence. The
g overnment produced a leng thy EI S, which the Secretary considered and found “ helpful.” Althoug h the Secretary acknowledg es that c ompliance w i th NEPA was less than perfect, D rakes B ay is unlikely to succeed in showing that the

errors were prejudicial. Relief is available u n d e r the APA

o n ly for “prejudicial error.” 5 U.S.C. § 706; see als o N a t ’ l Ass’n of H

ome Builders v. Defenders of W ildlife

, 551 U.S. 644, 659 (2007) (“I n a dministrative l a w , a s in federal civil and criminal litig ation, there is a h a r m l ess error r ule.”) (internal quotation marks and citation omitted).

Drakes B ay points to “technical” violations, specifically

, the Secretary ’s failu r e t o publish the EI S more than thirty day s before he made his decision and the Secretary ’ s framing the ex tension denial in the form o f a Decision Memorandum rather than a Record of Decision. Drakes B a y has shown no prejudice f

rom these claimed violations. See Nat’l F orest Pre s

. G rp. v. Butz
, 485 F .2d 408, 412 (9th Cir. 1 973) (declining to r everse w here NEPA timing and E I S

r e q uirements were not strictly followed but the ag ency “did consider environmental factors” and the “sterile ex ercise” o fD R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 34

forcing ag ency to reconsider “would serve no u s eful purpose”); see also City o f Sausalito v. O’Neill

, 3 86 F

. 3d 1186, 1220 (9th Cir. 2 0 0 4 ) ( d eclining to reverse based on violation o f deadline f

or ESA biolog ical assessment where no harm was shown).

Drakes B a

y puts considerable stock in its claims that the final EI S was based on f

lawed science and that the absence o f the thirty -day comment perio d d enied it an opportunity to fully a ir its c ritique, specifically with reg ar d t o conclusions
reg arding the “soundscape” of the estero. 1 2 No t h i n g in the record sug g ests that Drakes B ay was prejudic e d b y any shortcoming s in the final soundscape data. Drakes B ay sent the Secretary its scientific critique before he issued his decision. The Sec retary specifically referenced that communication a

nd stated that he did n ot r e l y o n the “data that was asserted to be flawed.” T h e S ecretary was w ell

12 Drak es B ay h ad su

b m itted p rev io u s criticism s ab ou t th e so u n d scap e

an aly sis, an d related im

p acts on h arb o r seals, in its d ata q u ality co m p lain t reg ard in g th e d raf

t EIS. A lth o u g h Drak es B ay d i d n ot raise th e issu e i n its b rief s, at o ral arg u m en t it o b

j ected th at th e S e c r e t ary d id n o t ad eq u ately

r e s p o n d t o ex p ert co m

m en ts to th e DEIS. In g en eral, “ o n ap p eal,
arg u m en ts n o t raised b y a p arty in its o p en in g b rief are d eem ed w aiv ed .” S mith v. Ma rsh

, 19 4 F

. 3 d 1 0 4 5
, 1 0 5 2 (9 th Cir. 1 9 9 9 ). Reg ard less, w e

co n clu d e th e resp o n se t o th e DEIS w as ad eq u ate. T h e Co n g ressio n ally

m an d ated NA S rep o rt t

h at criticized elem en ts o f th e DEIS, in clu d i n g o n th ese s u b j ects, w as b ro u g h t to th e Secretary ’ s atten tio n

. T h e NA S rep o rt

em p h asized t h at th e scien tif

ic literatu re o n Drak es Estero w as sim p ly “ n o t

ex ten siv e” an d t

h at research o n t h e im

p act o f o y ster f

arm in g w as “ ev en sp arser.” T h e tak e- aw ay w as th at im p act assessm en ts f

o r th e s o u n d scap e

an d h arb o r seal s w e r e “ co n sid ered to h av e a h ig h lev el o f u n certain t y .” T h e f in al EIS resp o n d ed to th e N A S critiq u e a n d a l s o ad d ressed th e scien t if ic d isp u tes. In p articu lar, it ad d ed “ a d iscu ssio n on th e stren g th of th e u n d erly in g scien tif

ic d at a” t o ad d ress th e NA S’ s co n cern s ab o u t scien t if ic u n certain ty

.D R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 35

aware of the controversies on the specific topics that Drakes B ay criticiz es and his statement was unambig uous that th e y did not c arry weig ht in his decision. Drakes B a y ’s sug g estion that the Secretary could not have made the informed decision that N EPA requires without resolving all controversies about the data is unsound. NE P A requires only that a n E I S “contain[ ] a reasonably thoroug h discussion of the sig nificant aspects o f t

h e p r o b a b l e e nvironmental consequences.” Seattle Audubon Soc. v. Espy
, 998 F .2d 699, 703 (9th Cir. 1 993) (internal quotation marks and c itation omitted). Drakes B ay is not likely to succeed in showing that the fi n a l E I S was inadequate, even assuming NEPA compliance was required.

4. F ederal Register Notice

I n lig ht of the determination to let the permit ex p i r e , t h e Secretary directed the National Park Service to “ p u b l i sh in the F ederal Reg ister the notice announcing the conversion o f Drakes Estero from potential to desig nated w ilderness.” Drakes B ay a

rg ues that the subsequently published notice was false because Drakes B ay ’s continued c o m mercial activities (under the 90-day period the decision allowed to w r a p u p operations) and California’s retained fish ing a nd mineral rig hts p recluded wilderness status. Drakes B a y also arg ues that the notice w a s i s s u ed in violation of formal rulemaking
reg ulations.

Drakes B ay lacks standing to challeng e the publication o f the notice. I ts claimed injury arises f r om the Secretary ’s decision to let its permit ex pire, n ot t h e d e sig nation in the notice. Drakes B ay

cannot continue its operations without a
p e r m it, r eg ardless of how the estero is desig nated. W e disag ree with Drakes B ay ’ s p osition that it has standing because “it will be n ecessary to v acate the unlawful notice inD R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 36

order for [ Drakes B ay ’s] injuries to b e ultimately r edressed.” B ecause Drakes B ay is not injured b y the notice, it may not challeng e the notice’s purporte d falsity or the Secretary ’s compliance with rulemaking procedures. 1 3

B. W E I G

H I N G T H E E Q U I T I E S

Drakes B ay is not entitled to a preliminary injunction not only because it failed to raise a ser ious question about the Secretary ’ s decision, but also b ec a use it has not shown that the balance o f e q u i t ies weig hs in its favor. Alliance for the W ild Rockies

, 632 F .3d at 1132. The district court found that, althoug h Drakes B ay satisfied the irreparable harm prong o f the preliminary injunction a naly sis, neither the public interest

nor the equities were in its favor. W hen the g overnment is a party , these last two factors merg e. Nken v. Holder

, 556 U.S. 418, 435 (2009). Our review o f the court’s find i n g s is for abuse of discretion, and we see none here.

13 T o th e ex ten t th at Drak es B ay arg u es th at th e Secretary ’ s decisio n w as

so m eh o w tain ted b y t

h e in stru ctio n th at th e P ark Serv ice p u b lish th e

n o tice, th e ch allen g e still f ails b ecau se th e in s tru ctio n w as in acco rd an ce

w ith th e l aw

. T h e n o tice w as n o t f alse b ecau s e, as w e e x p lain ed ab o v e, Drak es Estero co u l d b e d esig n ated “ w ild er n e s s” desp ite Calif o rn ia’ s

r e s erv ed rig h ts. No r is th e p resen ce o f t em p o rary n o n

- w ild ern e s s

co n d itio n s an o b stacle b ecau se P ark Serv ice p o licy

p erm its a w i ld ern ess d esi g n a t io n w

h en “ w i ld ern ess ch aracter co u ld b e

. . . resto red t h ro u g h
ap p ro p riate m an ag em en t actio n s.” In a d d i tio n , alth o u g h g en eral
reg u latio n s req u ire ru lem ak in g f o r certain u se term in at i o n s, 3 6 C .F.R. § 1 .5 (b ), t h e m ore sp ecif ic sectio n o f 19 7 6 leg islatio n pro v id ed th at

c o n v ersio n to w ild ern ess w ou ld b e au to m atic “ u p o n p u b licatio n i n th e Fed e r a l Reg ister o f a n o tice b y t h e Secretary o f th e In terio r t h at all

u ses t h ereo n p ro h ib ited b y t

h e W i ld er n e s s Ac t

. . . h av e ceased .” 9 0 Stat. 2 6 9 2

.D R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 37

The district court reasonably f ound that the public interest does not weig h in fav o r o f injunctive relief. T h e public benefits both from the e njoy ment of protected wilderness a nd of l o c a l oy sters, and the court f ound no basis upon which to weig h these respective va l u es. T his factor does not tip to Drakes B a

y

.
Recog niz ing that D rakes B ay bears the burden in its quest for a preliminary injunction, the court’s consideration of other equitable factors was also reasonable. Drakes B ay purchased the o y ster farm with f ull disclosure, knowing that the

rese r v a t i o n of use and occupancy was set to e x pire in 2012. The Department repeat e dly w arned the company that it did
not plan to issue a n ew permit. A l t h o u gh the p r ospect o f closing down a busines s i s a serious hardship, the only reasonable ex pectation Drak e s Ba y could h ave had at the outset was that such a closure was very likely , if not certain. Closure r emained a distinct possibility even after the passag e of Section 124. Drakes B ay arg ued to the district cou r t that it had “every reason to hope” for ex tension. B ut when parties “‘anticipate[ ] a pro forma result’ in permitt i n g a pplications, they b ecome ‘l a r g ely responsible for their own harm.’” Sierra Club v. U.S. Army Corps of Eng’rs
, 645 F .3d 9 7 8, 997 ( 8 t h C ir. 2011) (quoting Davis v. M ineta
, 302 F .3d 110 4
, 1 116 (10th Cir. 2002)). W e see n o reason to disturb the court’s f inding that t h e company ’s “refusal to hear the
messag e” was an equitable factor weig hing ag ainst it.

A F F I R M E D

.D R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 38

W A TF ORD, Circuit J udg e, dissenting :

The majority states that, by enacting § 124, “Cong ress did nothing more than let the Secretary know his hands were not tied.” Maj. o p. at 24. I think Cong ress, b y including the “notwithstanding ” clause in § 124, intended to do more than that. I n particular, it soug ht to o verride the Department of the I nterior’s misinterpretation of the Point Rey es W ilderness Act, Pub. L . No. 94-544, 90 Stat. 2515 (1976).

The D epartment had co n c l u d ed, in 2005, that the A ct barred issuance of a special use permit authoriz ing continued operation of Drakes B a

y Oy ster Company ’s oy ster farm. The Department thoug ht Cong ress had “mandated” that result b y desig nating Drakes Estero, where the oy ster farm is located,

as a “potential wilderness a d d ition” in the Point Rey e s W ilderness Act. The Act’s leg islative history m a k e s clear, however, that by divining such a man d a t e , the Department simply misinterpreted the Act’s provisions and misconstrued Cong r ess’s intent. The Department’s misinterpretation of the Point Rey e s W ildern e s s Act prompted Cong ress to enact § 124 in 2009. I n my view, by inclu d ing a n otwithstanding cla u se in § 124, Cong ress attempted to supersede the Department’s erroneous interpretation of the Act.

I n the 2012 d ecision challeng ed here, the Secretary nonetheless d enied Drakes B a y ’s permit request b a sed primarily on the very same misinterpretation of the Point Rey es W ilderness Act that Cong ress thoug ht it h ad overridden. As a result, I think Drakes B ay is likely to prevail on its claim that the Secretary ’s decision is arbitrary

, capricious, or otherwise not in accordance w ith law

. S ee 5 U.S.C. § 706(2)(A). B e cause the other preliminary injunction f

actors a l s o w eig h in Drakes B ay ’s favor,D R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 39

injunctive relief p reserving the status quo should have been
g ranted here.

I

To ex plain why I think the I nterior Department (and later the Secretary

) m i s i n terpreted the Point Rey es W ilderness Act,

a fairly detailed discussion of the A c t ’ s leg islative history is
necessary

.

The events leading up t o p assag e of the Point Rey e s W ilderness A ct beg in in 1962, when Cong ress authoriz ed

c r e a t ion o f the Point Rey es National Seashore a nd appropriated funds for land acquisition within the Seashore’s desig nated boundaries. Act of Sept. 13, 19 6 2
, P u b

. L

. No. 87-657, 76 Stat. 538 (1962). As part of that process, in 1965, the State of California convey ed ownership of the submerg ed lands and coastal tidelands within the Seashore’s boundaries to the federal g overnment. S ee Act of J uly

9, 1965, ch. 983, § 1, 1965 Cal. Stat. 2604, 2604. Those lands included Drakes Estero. The convey ance reserved certain mineral and fishing rig hts, which allowed the State t o “p ro s pect for, mine, a nd remove [ mineral] deposits from the lands,” and “reserved to the people o f t h e s t a te the rig ht to fish in the waters underly ing the lands.” Id. §§ 2–3, 1 965 Cal. Stat. at 2605. At the time of the State’s convey ance, oy ster f a r ming was already a w ell-established f ix ture in Drakes Estero, with roots dating back to the 1930s.

I n 1 973, the President recommended that C o n g ress pre s e rve 10,600 acres within the Point Rey es National Seashore as “wilderness,” under the terms of the W ilderness Act o f 1 964, Pub. L

. N o. 8 8 -577, § 3(c), 78 Stat. 890, 892 ( 1964). Members of California’s cong ressional deleg a t i o nD R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 40

found that recommendation woefully inadequate, and soon thereafter introduced identical bills in the House a nd Senate desig nating far larg er a

reas of the Seashore as wilderness. I n the House, Cong ressman J ohn B urton introduced H.R. 8002, 94th Cong

. ( 1975); in the Senate, S e n a t o r J ohn Tunney introduced S. 2472, 94th Cong

. (1975). H.R. 8002 is the b ill that eventually

became the Point Rey e s W ilderness Act.

As o rig inally proposed, H.R. 8002 and S. 2472 w o uld have desig nated more than thirty -eig ht thousand a cres a s wilderness. I n c l u ded within that d esig nation was Drakes Estero, as well as m o s t of the other submerg ed lands a nd
coast a l t i d e lands convey e d by California in 1965. The
sponsors of H .R. 8 0 02 an d S

. 2472 were w ell aware of the
oy ster farm in Drakes Ester o

. T h e y nonetheless included Drakes Estero w ithin the wilderness desig nation because they did not view the farm’s operations as incompatib l e with the area’s wilderness status. Commenting on the Senate bill, Senator Tunney left n o doubt on that score, dec l a ring

, “Established private rig hts o f landown ers and leaseholders will continue to be respected and p ro t e c t e d

. The ex isting
ag ricultural and aquacultural uses can continue.” W ilderness Additions—National Park S y stem: Hearings Before the Subcomm. on Parks and Recreation o f the S. Comm. on I n t e r ior and Insular Affairs

, 94th Cong

. 271 (1976 ) [ hereinafter Senate Hearing ].

During hearing s on H.R. 8002 and S. 2472, various c ivic, environmental, and conservation g roup s supported Drakes Estero’s desig nation a s wilderness. They ex plained in detail why ne i t h e r the State’s r eserved mineral and fishing rig hts

nor the oy ster farm precluded such a desig nation. N o o ne advocatin g Drakes Estero’s d esig nation as wilderness
sug g ested that the oy ste r f a r m needed to be removed beforeD R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 41

t h e area could become wilderness. See id. at 324–3 3
, 3 4 4 –61; H.R. 7198, H.R. 8002, et al., To Designate Certa i n Lands in the Point R ey e

s National Seashore, California as W ilderness: Hearing Before Subcomm. on Nat’l Parks and Recreation of the H. Comm. on Interior and Insular Affairs

, 94th Cong

. (1976) [ hereinafter H o u se Hearing ]
, prepared
sta t e ments of J im Eaton, W illiam J

. Duddleson, Ms. Ray ePag e, and F rank C. B oerg er.

Th e comments Cong ress r eceived from those who were

a d v o c a t i n g D rakes Estero’s desig n ation as wildern e s s s t r e s s e d

a common theme: that the oy ster farm was a ben eficial preex isting use that should be allowed to continue notwithstanding the a

r ea’s d esig nation as wi l d e r ness. F o r

ex a mple, a representative from the W ilderness Society stated: “W ithin Drakes Estero the o y ster culture activity

, wh ich is under lease, has a minimal environmental and vis u al intrusion. I ts continuation is permissible as a pre-ex isting non-conforming use a

nd is not a deterrent for inclusion of the federally owned submerg ed lands of the E st e ro in wildern e ss.” House Hearing
, prepared statement of Ms. Ray e-Pag e, at 6. The Chairman of the Golden Gate National Recreation Area Citiz ens’ Advisory Commission noted t hat the oy ster-farming operations “presently carried on within the seashore ex isted prior to its establishment as a park and have since been c onsidered d esirable by b oth the public and park
manag ers.” Senate Hearing
, at 361. He th er e fore recommended that specific p rovision be made to allow such operations “ to continue u nrestrained by wilderness desig nation.” Id. Others observed, e choing the comments o f Senator Tunney
, tha t t he proposed House and Senate bills

a l ready provided for that. See H ouse Hearing
, prepa r e d
statement of W illiam J

. Duddleson, at 3–4 (“H.R. 8002 would allow continued use and o perat i o n of J ohnson’s Oy sterD R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 42

Company at Drakes Estero, as a p re-ex isting non-conforming use.”); Senate Hearing
, at 3 57 (“S. 2 472 wou l d al low the continued use and operation o f J ohnson’s Oy ster Company in Drakes Estero.”). A l ocal state assembly man succinctly summed it up t h i s wa y : “F inally

, I believe every o ne concerned supports the continued o peration of oy ster farming in D r akes Estero as a non-conforming use.” S enate Hearing
, at 356.

The view ex pressed by these speakers—that continued operation of the oy ster farm w as f ully compat i ble with Drakes E s tero’s desig nation as w ilderness

— was not some wild-ey ed notion. I t was firmly g rounded in the tex t of the W ilderness A ct itself. The Act ge n e rally bans commercial enterprise within w ilderness a reas, but does so “subje c t to

ex isting private rig h ts.” 16 U.S.C. § 1133(c). Drakes B ay ’s predecessor, the J ohnson Oy ster Comp any , had ex isting private rig hts in the form o f water-bottom le a s e s i s sued b y California that pre-dated both the passag e of the W ilderness Act and creation of the Point Rey es National Seashore. The Act also g enerally prohibits the use of motorboats within wilderness areas, see id.

, but the Secretary of Ag riculture may permit continued u se of motorboats when, as here, such use has “already become es t ablished.” Id. § 1133(d)(1). To the

ex tent there is a n y ambig uity in these provisions, the Act’s leg islative history makes clear that Cong ress believed the new wilderness-preservation s y stem w ould not affect the

ec o n omic arrang ements of business e nterprises “ because

ex isting private r ig hts a

n d established uses ar e permitted to continue.” S. Rep. No. 88-109, at 2 (1963).

The only party opposed to desi gn ating Drakes Estero a s wilderness was the Department of the I nterior. At first, the Department took the position that none of the submerg edD R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 43

lands and coastal tidelands convey e d by California in 1965 could be desig nated as wilderness, b ecause the State’s reserved mineral and fishing rig hts were “inconsistent with wilderness.” House Hearing
, letter from J ohn Ky l, Assistant Secretary of the I nterior, at 3. W hen the Department’s view

came u nder a t t a c k by those who arg u ed that the State’s

r e s e rved rig hts were not in any way inconsistent wit h wilderne ss, see, e.g. , Senate Hearing
, at 327–28, the Department backpedaled. I t proposed placing most of the lands subject to the State’s reserved rig hts into a new leg islative classification—“potential wilderness addition”— which it had developed in connection with similar wilderness proposals. S

ee House Hearing
, at 11–12; id.

, letter from J ohn Ky l, Assi stant Secretary of the I nterior, at 1. That desig nation was int e n d ed to encompass “lands which a re essentially of wilderness character, but retain sufficient nonconforming structures, activities, uses o r private rig hts so as
to preclude immediate wilderness classification.” S. Rep. No. 94-1357, at 3 (1976).

F our areas subject to the State’s r eserv e d rig hts w e re at is s u e : the c oastal tidelands, L imantour E stero, Abbotts L ag oon, and D rakes Estero. The orig inal version o f H .R. 8002 d esig nated all four areas as wilderness, not just potential wilderness additi o n s

. B ut in the spirit of compromise, Cong r essman B urton, th e sponsor o f H.R. 8002, ag r eed to amend the bill by desig n ating those areas a s pote n tial wilderness addi tions, r a ther than as wilderness. See House Hearing
, prepared statement o f Rep. J ohn B urton, at 2

. I n doing so, he mad e clear that all four areas were being desig nated as potential wi l d erness additions due to California’s reserved mineral and fishing rig hts. See id. He noted that, “[ a] s ‘potential wilderness,’ these areas would be desig nated as wilderness effective when the State ceeds [ sic ]D R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 44

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

so amended, H.R. 8002 was enacte d a s the Point Rey e s W ilderness Act in 1976.

F as t f orward now to 2005. Shortly b efore Drakes B ay ’s purchase of the oy ster farm closed, the Park Service reiterated its view that, based on a l e ga l a n aly sis performed by the I nterior Department, no n e w p ermits authoriz ing oy ster farming in Drakes Estero could be issued. The Department’s leg al analy sis concluded—biz a r r ely

, g iven the leg islative history recounted above—that by desig n ating Drakes Estero

as a potential wilderness addition in the Po i n t Rey e s W ilderness Act, Cong ress h ad “mandated” elimination o f the
oy ster farm. The Department never identified any thing in the
tex t o f the Act to support that view; it cited only a passag e from the House Report accom pany ing H.R. 8002. B ut that
passag e “is in no way anchored in the tex t of th e statute,” Shannon v

. United States
, 512 U.S. 5 73, 583–84 (1994), a nd thus provides no support for the Department’s interpretation of the Act.

Even taken on its own terms, however, the passag e from
t h e House Report does not support the Departmen t ’s interpretation. The passag e states in full : “ As is w ell established, it i s the intention that those lands and waters desig nated as potential wilderness a d d i t ions w ill be essentially manag ed as wilderness, to the ex tent p o s s ible, with efforts to stea d ily continue to remove all obstacles to the eventual conversion of these lands a nd waters to wilderness
status .” H.R. R ep. No. 94-1680, at 3 (1976) (emphasis added). B ut the oy ster farm was not an “obstacle” to Drakes Estero’s conversion to wilderness status, and no one i n Co n g ress e ver ex pressed that v iew. To the contrary , a s discussed above, all indications are that Cong ress viewed theD R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 45

oy ster farm as a beneficial, pre-ex isting us e whose continuation was fully

compatible with wilderness status.

I I

W ith that backg round in m i n d, we can n ow turn to the legal issue at the heart o f this a p peal, which is how to construe § 124.

Every one appears to ag r ee that the Park Service ’s conclusion in 2005 that it was leg ally prohib i t e d from
g ranting Drakes B ay a special use permit prompted Cong ress to e nact § 1 24. I f a ll Cong r ess had wanted to do was “let the Secretary k

now his hands w er e not tied,” as the majority asserts, § 124 could simply have stated, as it does, that “the Secretary of the I nterior is a u thoriz ed to issue a special use permit

. . . .” Act of Oct. 30, 2009, Pu b

. L

. No

. 1 11-88, § 124, 123 Stat. 2904, 2932. B ut Cong ress went further and added a notwithstanding c lause, so that the statute as enacted reads, “ n otwithstanding any other provision of law

, the Secretary of the I nterior is authoriz ed to is s u e a special use permit

. . . .” Id. (emphasis added). Our task is to determine what effect Cong ress intended the notwithstanding clause to have.

Given the h i s t orical backdrop ag a inst which § 124 was enacted, I think Cong ress intended the clause to override the I nterior Department’s misinter p r etation of the Point Rey e s W ildernes s Act. Reading the c lause in that fashion is consistent with the way courts have ty pica l ly construed notwithstanding clauses. The Supreme Court has he l d that the use o f such a clause “clearly sig nals the drafter’s intention that the provisions of the ‘notwithstanding ’ section o verride conflicting provisions o f any other section.” Cisneros v

.D R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 46

Alpine Ridge Grp.
, 508 U.S. 10, 1 8 (1993). And we have said that the basic function o f such clauses is to “sweep aside” a nd “supers e d e ” any potentially conflicting laws. United States

v. Novak

, 476 F .3d 1041, 1046 (9th Cir. 2007) (en b a nc); S tudent Loan Fund of I

daho, Inc. v

. U.S. Dep’t of Edu c

. , 272 F .3d 1155, 1166 (9th Cir. 20 0 1 )

. A n otwithstanding clause often tar ge t s t h ose laws that were the “leg al sticking point” f or the action Cong r ess intends to auth oriz e

. Miccosukee Tribe of Indians o f Fla. v

. U.S. Army Corps of Eng’rs , 619 F .3d 1289, 1301 n.19 (11th Cir. 2010).

I n this case, no c o n fl icting laws actually prevented the Secretary from issuing a permit t o D ra kes B a y

. Continued operation of the oy ster f arm is f u l l y consistent with the W ildern ess Act, and the f arm’s e x istence is therefore not an “obstacle” to converting Drakes Estero to wilderness status a s d i r ected by the Point Rey es Wilderness Act. I nstead, it w a s the I nterior Department’s misinterpr e tation of the Point Rey es W ilderness Act that proved to be t h e “leg a l sticking point” here. I think the best reading of the n o t wi t h standing clause is that Cong ress meant to “ov e r r i de” (“sweep aside,” “supersede”) that misinterpretation of the law when it enacted § 124. Alpine Ridge G rp. , 508 U.S. at 18; Novak

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

I f y ou a ccept what I have said so far, only two questions remain. The f

irst is whether Cong ress, having overridden the Department ’ s m i s i n t e r

p re t ation of the Point Rey e s W ilderness Act, nonetheless authoriz ed the Secretary to rely

on that misinterpretation as a basis for deny ing Drakes B a y a permit. I cannot see an y r e ason why we would construe § 124 in that fashion. Un d e r t h e Administrative Procedure Ac t ( A P A), if an ag e ncy b ases its decision on a leg ally

erroneous interpretation of the controlling statute, its decisionD R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 47

will be deemed arbit r a ry , capricious, or otherwise not in accordance w i t h l a w

. See Safe A ir for Everyone v. EPA
, 488 F

. 3 d 1088, 10 9 1
, 1101 (9th Cir. 2007) (involving an

er r o n e o us 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 a ssume that Cong ress authoriz ed the Secretary to base his decision on

a misinterpretation of the Point Rey es W ilderness Act. W ith the clause, adopting any such construction of § 124 would be entirely indefensible.

The second (and admittedly closer) question is w heth er the Secretar

y in fact based his decision on the misinterpret a t i o n of the Act that Cong ress intended to

o v e r ride b y enacting § 1 2 4. The majority sug g ests tha t t h e Secretary based his decision i n stead on the I nterior Department’s own policies, see Maj. o p. a t 20 & n.5, 27–28 n.8, but I do not think the Secretar y ’ s w ritten decision deny ing the permit supports that view. Th e S e c r etary ’s decision states that he g ave “g reat weig ht” to what he called “the p u blic policy inherent in the 1976 act of Cong ress that id e n t ified Drakes Estero as potential wilderness.” The Secretary read that A ct as ex p ressi ng Cong ress’s intention that all “obstacles” to converting Drakes Estero to wilderness

s t atus should b e removed. B u t he erroneously deemed the
oy ster farm to be such a n obstacle (“DB OC’ s commercial operati o n s are the only use p reventing the conversion o f Drakes Estero to d esig nated wilderness”), because he erroneously assum ed that the o y ster farm’s continued operation w as “prohibited by the W ilderness Act.” That in
turn led him to conclude— ag ain erroneo u sly

— that his decision to eliminate the oy ster farm “effectuate[ d] ” Cong r ess’s intent as ex p ressed in the Point Rey es W ilderness Act.D R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 48

These are precise l y t h e same errors of statutory interpretation the I n t e r i o r Department made back in 2005. They a re precisely the same e rrors that prompted Cong ress to enact § 124 in the first place. And, in my view, they a r e precisely the same errors Cong r ess attempted to supersede b y inserting t h e notwithstanding clause. Contrary to the majority ’s assertion, the Secretary h ad no authority to rely on this misinterpretation of “Cong r ess’s earlier e x pressed g oal” because the n otwithstanding clause eliminated any such authority

. See Maj. op. at 27–28 n.8.

W h at does the majority o f fer in response to this analy sis? Some h and waving

, to be sure, but nothing o f any substance. Most telling ly

, the majority n e v er attempts to arg u e that the I nterior Department’s i n t erpretation of the Point Rey e s W ilderness Act was correct

. Nor c o u l d i t make that
arg ument with a straig ht face g iven the Act’s clear leg islative history

, w hich the majority never a ttempts to a d d r ess, much less refute. The majority thus h as no e x planat i o n f o r Cong r ess’s inclusion of the n otwithstan d i n g clause in § 124 other than the one I have o ffered: that it was included to override the Department’s misinterpretation o f t h e Point Rey es Wilderness Act. T he majority c l a i ms that the clause “has a clear function—to convey that prior leg islation should
not b e deemed a l ega l b a r r ier” to permit issuance. See Maj.
op. at 20. B ut that reading of the clause supports my position because the Secret a r y did treat “prior leg islation”—namely

, th e P o int Rey es W ilderness Act—as a “leg al b arrier” to permit issuance. As I have arg ued, that is ex a ctly what t he notwithstanding clause was intended to prohibit.

The majority al s o c laims that I have not a ccorded the Se cretary ’s decision the deference it is owed under the arbitrary and capricious standard, which requires us to g iveD R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 49

due reg ard to an ag ency ’s ex e rcise of d iscretion w ithin its sphere of ex pertise. See Maj. op. at 27–28 n.8. B ut I am not arg uing here that the Secretary ’ s decision must be set aside because it reflects fau l ty weig hing of permissible p olicy fac t o r s

. W e would have n o authority to second g uess a decision of that order

. W h a t I am say ing

, instead, is that § 124’s notwithstanding clause p recluded the Secretary from basing his decision on the very misinterpretation of the Point Rey es Wilderness Act that Cong ress intended to override. A decision will normally be d eemed arbitrary and capricious if

an a g e n c y “has relied on factors which Cong ress has not intended it to consider.” M otor Vehicle M

frs. Ass’n v

. State Farm Mut. A uto. Ins. C o

. , 4 63 U.S. 29, 43 (1983). That, unfortunately , is just what the Secretary did.

I n short, I would hold that D rakes B a y is likely to prevail

on the merits of its APA claim. The Secretary ’s misinterpretation of the Point Rey es W ilderness Act, and his mistaken view that deny ing the permit r e q u est effectuated C o n g ress’s intent, w ere “fundamental” to his d ecision, rendering the decision “ arbitrary

, c apricious, or otherwise not in accordance with law.” Safe Air for Everyone
, 488 F .3d at 1101 (internal quotation marks omitted).

I I I

L ike the majority

, I w ill n ot spend much time addressing the remain i n g preliminary injunction factors—irreparable harm, balance of the equities, and the public interest. S ee W inter v. Natural Res. Def. Council, Inc.
, 555 U. S

. 7
, 2 0 (2008). Considered tog ether, those factors tip in D rakes B ay ’s favor.D R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 50

Drakes B ay will suff

e r irreparable injury to its business and real-pro p erty rig hts if a preliminary injunction is erroneously d enied. S

ee, e.g. , Sundance Land Corp. v. Cmty. First Fed. Sav. & Loan A s s ’ n , 8 40 F

. 2d 653, 661 ( 9th Cir. 198 8 ) ; Am. Passage Media Corp. v. Cass Commc’ns, Inc.
, 750 F

. 2d 1 470, 1474 ( 9th Cir. 1985). The loss o f “ an ong oing business representing many y ears 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 b alance of equities favors Drakes B a y

. The majority concludes o therwise by noting that Drakes B ay knew when it acquired the oy ster farm that its permit would ex pire in 2012. Maj. o p

. at 37. B ut that is not the relevant consideration. Rather, the controlling consideration is that the harm Drakes B ay will suffer from the erroneous denial o f a preliminary injunction far outweig h s the harm the g overnment will suffer from an erroneous g rant of such relief. See Alliance f o r t h e W ild R ockies v

. Cottrell

, 632 F .3d 112 7
, 1 1 3 7 –38 (9th Cir. 2011); Scotts Co. v. United Indus. Corp.

, 315 F .3d 264, 284 (4th Cir. 2002); Am. H

osp. Supply Corp. v. Hosp. Prods. Ltd.

, 780 F .2d 589, 593 (7th Cir. 1986); Roso-Li n o , 7 49 F .2d at 126. T he g overnment will suffer only modest harm if oy ster farming ’s eig h ty -y ear h i s t o ry in the E stero c ontinues a bit long er. B ut if a preliminary injunction is erroneously denied, Drakes B ay ’s b usiness will be destroy ed. That is all Drakes B ay must show to demonstrate that the balance o f equities tips in its favor here.

F inally

, the public interest f avors neither side. A s the dis t r ict court observed, federal judg e s are ill equipped to weig h the adverse environmental consequences of deny ing a preliminary injunction ag ainst the consequences o f g rant i n gD R A K E S B A Y O Y S T E R C O

. V

. J E W E L L 51

such relief, or the relative interests in access to Drakes B ay ’s
oy sters as opposed to u n e n cumbered w ilderness. I t is the equities that c arry the d ay in this c a se, se e N k e n v. H older

, 556 U.S. 418, 435 (2009) (when the United States is a party , equities and the public i n t e r est merg e), and the equities strong ly favor Drakes B a

y

.