Today, Drakes Bay Oyster Company filed its reply to the government’s brief opposing the oyster farm’s petition to have the U.S. Supreme Court hear the case.
Drakes Bay petitioned the high court on April 14, 2014 for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in its case against the government.
The Supreme Court could decide whether to take this case as early as the end of this month.
At stake is whether the government, in making countless everyday decisions, can be taken to court when it abuses its power. The Ninth Circuit held last fall that a federal court does not have jurisdiction to review a discretionary agency decision for abuse of discretion.
The government filed a brief on May 27, 2014 opposing the oyster farm’s petition.
The brief filed today points out the weaknesses of the government’s opposition brief. Drakes Bay has argued that the high court should take the case to resolve “the mother of all circuit splits.” A circuit split is an issue on which two or more circuits in the U.S. court of appeals system have given different interpretations of federal law.
The splits in this case are on three critical issues: jurisdiction to review agency actions for abuse of discretion, applicability of the National Environmental Policy Act (NEPA), and prejudicial error under the Administrative Procedure Act (APA).
The government’s brief does not dispute the existence of these splits, that these splits affect a fundamental issue of administrative law, or that the issue is of national importance.
Because Drakes Bay showed that there is a “reasonable probability” that the Supreme Court will take this case and a “significant possibility” that the oyster farm will win, the Ninth Circuit has allowed Drakes Bay to remain open while it takes its case to the Supreme Court.
Here is a link to the DBOC Reply Brief in the U.S. Supreme Court.