ELR Citation: 43 ELR 20404
No(s). 13-15227 (9th Cir. Sep 3, 2013)

The Ninth Circuit affirmed a lower court decision denying a commercial oyster farm's motion for a preliminarily injunction challenging the DOI Secretary's discretionary decision to let the farm's permit for farming at Point Reyes National Seashore expire on its own terms. The farm requested an extension of its permit under §124 of the Department of the Interior Appropriations Act, but the Secretary declined to extend it. The farm argued that the Secretary's decision to let the permit expire violated §124, NEPA, and various federal regulations. But the farm is not likely to succeed in proving any such violations here. Through §124, Congress authorized, but did not require, the Secretary to extend the permit. Congress left the decision to grant or deny an extension to the Secretary’s discretion, without imposing any mandatory considerations. Because Congress committed the substance of the Secretary's decision to his discretion, the court cannot review "the making of an informed judgment by the agency." Here, in letting the permit lapse, the Secretary emphasized the importance of the long-term environmental impact of the decision on the estuary, which is located in an area designated as potential wilderness. He also underscored that, when the farm purchased the property in 2005, it did so with eyes wide open to the fact that the permit acquired from its predecessor owner was set to expire just seven years later, in 2012. In addition, regardless of whether the Secretary was required to conduct a NEPA review, the Secretary conducted one anyway and any claimed deficiencies are harmless. Accordingly, because the Secretary did not violate any statutory mandate, the court may not intercede in his discretionary decision. The court, therefore, affirmed the lower court's order denying a preliminary injunction.