In addition to the Federal case, Drakes Bay Oyster Farm is involved in a lawsuit against the California Coastal Commission. The Commission’s enforcement staff has falsely claimed that Drakes Bay Oyster Farm causes pollution and environmental harm. The Commission agreed to process a permit once the Park Service finished its environmental review, but although that review was completed in November 2012, the Commission is still not processing the permit.
A hearing is scheduled for March 11, 2014.
On February 14, the legal team for Drakes Bay Oyster Farm filed a motion that makes it clear that the Commission’s enforcement actions have violated the family’s due-process rights.
The motion argues:
“Agency action must be invalidated when the accused does not receive a fair trial (or administrative hearing), or when the agency’s decision is not supported by the evidence. Here Drakes Bay Oyster Company did not receive a fair trial, and the decision of the California Coastal Commission is not supported by the evidence. The Commission’s decision should be invalidated.
Drakes Bay did not get a fair trial for two reasons. First, the Commission refused even to consider the expert opinions, declarations, and documentary evidence submitted by Drakes Bay on February 4, 2013, three days before the hearing. Instead of considering this evidence—due process requires an agency to consider evidence offered in a quasi-judicial hearing—the Commission voted to exclude the evidence from the record. As a matter of law, an accused does not receive a fair trial when the agency refuses to consider any of the expert testimony submitted in support of the accused. Drakes Bay therefore did not receive a fair trial as a matter of law.
Second, Drakes Bay did not get a fair trial because the Commission’s hearing procedure did not allow Drakes Bay to cross-examine Commission witnesses. Here the decision turned on complex factual questions about whether the farm is environmentally beneficial, as established by the expert testimony submitted by Drakes Bay, or environmentally harmful, as asserted by the three lawyers who made the staff presentation. The three lawyers made many assertions about ultimate facts, but they hid the truly relevant facts: which staff conducted the investigation, what qualifications they had, what methods they used, whether they were concealing exculpatory evidence, what evidence they collected, and how they bridged the analytical gap from the raw data to the ultimate conclusions.
‘Cross-examination is the greatest legal engine ever invented for the discovery of truth.’ (Manufactured Home Communities, Inc. v. County of San Luis Obispo (2008) 167 Cal.App.4th 705, 712, citation and quotation marks omitted.) Here, because the three lawyers did not disclose the underlying facts, cross-examination was essential to the search for truth.
The Commission’s findings, which were drafted by one of the three lawyers, are not supported by the evidence, because the three lawyers provided no evidence. What lawyers say is not evidence.
Although the Commission’s report occasionally cites to studies from elsewhere, these citations say nothing about Drakes Estero, where the oyster farm is located. Drakes Bay, in comparison, submitted expert testimony that relied on local data and studies from Drakes Estero. This evidence established that the oyster farm does no harm, and that it provides an environmental benefit. There is no evidence to the contrary.”
For details about the allegations made by the Coastal Commission, the scientific evidence that refutes those allegations, and the actions taken by the Commission’s enforcement staff to exclude that exculpatory evidence, read the full text of the document, here.