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01/30/2013

The Press Democrat: Federal judge to rule on oyster farm’s bid to stay open

Federal judge to rule on oyster farm’s bid to stay open

 

By GUY KOVNER
Published: Friday, January 25, 2013

OAKLAND — A federal judge Friday heard arguments but delayed a decision on a bid by Drakes Bay Oyster Co. to avert a government-ordered shutdown while the company’s legal challenge is resolved.

U.S. District Judge Yvonne Gonzalez Rogers conducted the hearing before a packed courtroom while a crowd of more than 50 people was left standing in front of the federal courthouse in downtown Oakland.

Kevin Lunny, operator of the embattled oyster farm in the 2,500-acre Drakes Estero in Point Reyes National Seashore, is fighting Interior Secretary Ken Salazar’s decision Nov. 29 denying renewal of the operation’s federal permit.

The judge did not indicate when she would rule on the request for an injunction but seemed to cast doubt on the oyster company’s case when she questioned whether the court has jurisdiction in the matter.

“Now, it’s waiting time,” Lunny said in the federal building courtyard after the hearing.

Drakes Bay Oyster Co. plants and harvests 8 million oysters — worth about $1.5 million a year — from the estero, a five-fingered estuary in the national seashore in Marin County.

The judge did not say when she would issue a decision, said Lunny and his attorney, Amber Abbasi, of the Washington, D.C.-based nonprofit group Cause of Action.

Lunny, who was born and raised on a ranch next to the estero, said he was “absolutely hopeful” of a favorable decision. “This is a matter of law. Our attorneys did a beautiful job.”

Sen. Dianne Feinstein’s legislation in 2009 gave Salazar sole discretion to renew the oyster farm’s permit, issued 40 years ago to a previous owner of the oyster farm, which Lunny acquired in 2004.

Four days after Salazar’s decision, Lunny filed the lawsuit alleging it violated federal environmental rules and was based on faulty science.

But without a stay of the Feb. 28 deadline to shut down, Lunny said his enterprise, which employs 31 full-time workers, will be lost.

If he is forced to lay off the staff, remove their housing and kill 19 million oysters in the estero, “there’s no recovering this business,” he said.

Lunny said he is already scaling back the operation, harvesting oysters but no longer planting oyster larvae in the estero’s clear, cold water.

“It’s hard to look at what could happen here,” Lunny said. “It could devastate a small community.”

The prolonged battle over Drakes Bay Oyster Co. pits supporters of West Marin County agriculture, who fear that Salazar’s decision foretells the loss of permits for onshore ranches in the national seashore, versus wilderness advocates who insist that all human activity must be removed from the estero based on its congressional designation as a wilderness area.

Abbasi said she thought the judge “seemed very interested in the irreparable harm,” referring to Lunny’s claim that an ultimate victory in court would do no good if he has to shut down in a matter of weeks.

Abbasi said Judge Rogers’ decision on Lunny’s request to stay in business could be appealed.

Lawyers for Salazar said in court papers that his decision was not subject to environmental rules and that the “allegations of scientific misconduct are baseless.”

Salazar’s decision was “based on the incompatibility of commercial activities in wilderness and not on … data that was asserted to be flawed.”

Lunny’s loss of business was “a foreseeable consequence” of buying the oyster farm in 2004.

Lunny noted Friday that oysters have been harvested from Drakes Estero since 1934.

 

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01/30/2013

The Recorder: Passions Run High in Bivalve Battle

Read the full story here. The Recorder

“Leading the legal fistfight is Cause of Action, a libertarian advocacy group with ties to Tea Party politics. The Washington, D.C., group represents the oyster company pro bono and has also been leading an aggressive public relations campaign.

A preliminary hurdle for the lawyers will be persuading Gonzalez Rogers she can take up the case under the Administrative Procedure Act, which provides an avenue for judicial review of some executive decisions. Also at issue is a provision of the Interior Department’s 2010 appropriations bill, authorizing a new 10-year permit to be issued to Drakes Bay Oyster Co. “notwithstanding any other provision of law.”

The government claims in court filings that since Interior Secretary Kenneth Salazar took no action and simply allowed an existing lease to expire, the decision is unreviewable. For the same reason, Justice Department lawyers argue the Interior Department was exempt from compliance with the National Environmental Policy Act, or NEPA.

Amber Abbasi, the company’s lead lawyer at Cause of Action, calls those assertions “ridiculous.” Salazar took action when he denied the oyster farm’s application for a new permit, Abbasi said. What’s more, Abbasi adds, the Interior Department and National Park Service did not follow mandated standards under NEPA, which requires an environmental impact study and public comment prior to federal action.

“Congress doesn’t want the federal agencies to be able to get away with something like this,” Abbasi said. What her group wants is to preserve the status quo so the oyster farm can survive to fight its case in court. If Lunny doesn’t win his injunction, the farm is done, Abbasi said. “That’s the kind of injury that can’t possibly be compensated…”

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01/30/2013

Washington Free Beacon: Hoping for Relief – Embattled oyster company heads to court hoping for stay on government’s decision to kill it

Read the full story here. The Washington Free Beacon

The Drakes Bay Oyster Company produces about 40 percent of California’s oysters, said Amber Abbasi, chief counsel of Regulatory Affairs for Cause of Action.

Cause of Action, a government watchdog group, is representing Drakes Bay Oyster Company in the lawsuit. Abbasi also noted that the company is the last oyster cannery left in California, which means that the employees who lose their jobs would have difficulty finding employment due to their specialized skill set. The company has provided housing for many employees who would lose not only their jobs but also their homes if the government succeeds in shutting down the business.

“If the judge doesn’t grant this injunction, the business will be lost,” regardless of the outcome, said Abbasi….

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01/30/2013

CoA Takes Action Against DNC, Sebelius Aide for breaking the law

Cause of Action filed a complaint before the Federal Election Commission (FEC) today alleging that the Democratic National Committee (DNC) and Andrew Tobias, treasurer of the DNC,  violated the Federal Election Campaign Act (FECA) and FEC regulations when they reimbursed the Department of Health and Human Services for Secretary Kathleen Sebelius’ 2012 Hatch Act violation.

In September, the Office of Special Counsel (OSC) found Sebelius guilty of violating the Hatch Act, but claimed that the DNC’s reimbursement meant that the “issue had been resolved.”  Cause of Action has found that the DNC failed to properly disclose its reimbursements as independent expenditures, therefore violating FECA.

Cause of Action’s investigation also raises the question as to whether Sebelius’ use of her official capacity to support President Obama’s re-election was paid for by a loan from the United States, later reimbursed by the DNC, but nevertheless in potential violation of 18 U.S.C. § 595.

Cause of Action is also filing a complaint with OSC requesting an investigation into Sebelius’s aide, AJ Pearlman. The complaint states that though Pearlman’s expenses were reimbursed, she was never investigated for potential violations of the law – including a violation of the Hatch Act.

Please see these important documents below:

FEC complaint against the DNC 

FEC complaint exhibits

OSC complaint against AJ Pearlman

 Full Press Release

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01/30/2013

Wednesday, January 30, 2013 Morning News

Coverage of our Drakes Bay Oyster Company lawsuit against the Department of the Interior and National Park Service continues. Listen as Owner Kevin Lunny details the fight on KALW San Francisco:

Drakes Bay Oyster Company, an oyster farm in the Point Reyes National Seashore, is at the center of a nationwide debate over what it means to preserve wilderness. When the national seashore was created, the oyster farm got a 40 year lease to operate on the park land. That lease expired at the end of 2012, and Interior Secretary Ken Salazar refused to renew it.

There is more trouble at the Department of the Interior this week. Assistant Secretary Tony Babauta, an Obama Appointee, has resigned following an investigation into his official travel. More from the Washington Post:

A Department of Interior official whose official travel and other conduct was being investigated has resigned. Tony Babauta, the Assistant Interior Secretary for Insular Areas, is leaving the agency Feb. 1, a spokesman tells the Loop, though Babauta has been on administrative leave since Nov. 17 while the investigation was pending. President Obama named Babauta, a native of Guam, to the position in 2009. He was tasked with overseeing U.S. territories including Guam, American Samoa, and the Northern Mariana Islands. 

Ray LaHood announced that he will vacate his position as Secretary of the Department of Transportation after four years in the position. The Washington Times has this story:

President Obama is losing another trusted member of his Cabinet with the announcement Tuesday that Transportation Secretary Ray LaHood is leaving the administration. Mr. LaHood, 67, the last Republican still serving in Mr. Obama’s Cabinet, said he will stay on until a successor is confirmed by the Senate. The president has not yet announced a nominee.

There’s a new watchdog in town this week as the SEC names a new Inspector General.

More interesting reads:

Federal Computer Week – Groups call for stronger FOIA

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01/30/2013

Cause of Action Files FEC Complaint against DNC

FOR IMMEDIATE RELEASE                                                                                                 CONTACT:      

JANUARY 30, 2013                                                                                Mary Beth Hutchins, 202-400-2721

Jamie Morris, 202-499-2425

 

Cause of Action Files FEC Complaint Against Democratic National Committee For Failing to Properly Disclose its Reimbursements for Kathleen Sebelius’ Improper Political Activity

 

Request also made to Office of Special Counsel to investigate Hatch Act violation by Sebelius aide

 

 

WASHINGTON – Cause of Action (CoA), a government accountability organization, filed a complaint before the Federal Election Commission (FEC) today against the Democratic National Committee (DNC) and specifically against Andrew Tobias both individually and in his capacity as Treasurer of the DNC for violating the Federal Election Campaign Act (FECA) and FEC regulations when reimbursing the Department of Health and Human Services for Secretary Kathleen Sebelius’ 2012 Hatch Act violation.

In September, the Office of Special Counsel (OSC) found Sebelius guilty of violating the Hatch Act, but claimed that the DNC’s reimbursement meant that the “issue has been resolved.”  Cause of Action has found that the DNC failed to properly disclose its reimbursements as independent expenditures, therefore violating FECA.

“While the President gave Secretary Sebelius a pass on the most high-profile Hatch Act violation in history, what has come to light in our investigation is that the reimbursement for her campaigning wasn’t properly filed by the DNC,” explained Cause of Action’s Executive Director, Dan Epstein. “While HHS sought reimbursement from the DNC prior to the OSC’s Hatch Act investigation being complete, the DNC attempted to classify these payments as operating expenditures, and failed to report them accurately on multiple months’ reports. The FEC has an obligation to investigate and take appropriate measures to enforce their own rules as well as FECA.”

Moreover, Cause of Action’s investigation raises the question as to whether Sebelius’ use of her official capacity to support President Obama’s re-election was paid for by a loan from the United States, later reimbursed by the DNC, but nevertheless in potential violation of 18 U.S.C. § 595.

Cause of Action is also filing a complaint with OSC requesting an investigation into Sebelius’s aide AJ Pearlman, for whom the DNC also reimbursed expenses to HHS, yet no investigation into Pearlman’s potential violation of the law was conducted.

According to internal documents procured by Cause of Action through Freedom of Information Act requests, the following facts came to light about the February 25, 2012 event at which Secretary Sebelius campaigned for President Obama and Walter Dalton’s candidacy for Governor of North Carolina:

  • March 2012 – DNC fails to report to the FEC any contribution, debt, or other obligation from HHS for relevant reporting period.

 

  • Apr. 12, 2012 – DNC issues check to HHS for $1,003.69 and reported the expense under the category of “Other Federal Operating Expenditure” in their FEC report.

 

  • Jul. 9, 2012 – OSC interviews Sebelius about HRC gala for investigation.

 

  • Jul. 18, 2012 – OSC advises HHS that there were additional costs associated with Sebelius’ attendance at the gala and needed to be reimbursed to the Treasury.

 

  • Jul. 23, 2012 – HHS requests reimbursement from DNC for additional $1,500 travel costs for Sec. Sebelius’s aide.

 

  • Aug. 2, 2012 – DNC again reports payment expense under category of “Other Federal Operating Expenditure.”

The FEC complaint can be found here and the OSC complaint can be found here.

 

About Cause of Action:

Cause of Action is a nonprofit, nonpartisan organization that uses investigative, legal, and communications tools to educate the public on how government accountability and transparency protects taxpayer interests and economic opportunity. For more information, visit www.causeofaction.org.

 

To schedule an interview with Cause of Action’s Executive Director Dan Epstein, contact Mary Beth Hutchins,  202-400-2721 or Jamie Morris, jamie.morris@causeofaction.org.

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01/29/2013

E&E Publishing: 2 companies sue, alleging politics steered green energy loans

2 companies sue, alleging politics steered green energy loans

 

John McArdle, E&E reporter, Published: Friday, January 11, 2013

Two electric-vehicle companies sued the Department of Energy yesterday for allegedly doling out billions of dollars in green energy loans to companies with political connections to the Obama administration.

XP Vehicles Inc. and Limnia Inc., which sought and didn’t receive funding through DOE’s Advanced Technology Vehicles Manufacturing (ATVM) loan program, also charged in U.S. District Court and Federal Claims Court filings yesterday that DOE leaked patented intellectual property to favored companies.

The companies are seeking a combined $675 million in damages through the suits, which also name as defendants Energy Secretary Steven Chu and the head of DOE’s ATVM program.

The filings come after nearly two years of congressional inquiries into DOE’s loan program. Those investigations focused primarily on the now-bankrupt Solyndra LLC solar energy company but also looked into the agency’s Loan Program Office and billions of dollars in other loans.

In response to the lawsuits, DOE maintained the stance taken through the congressional probes, which were led by Republicans on the House Energy and Commerce and House Oversight and Government Reform committees.

“While the Department does not comment on pending or potential litigation, multiple investigations spanning almost two years and involving millions of pages of documents show that decisions made on the Department’s loan program were made solely on the merits after careful review by the Department’s technical experts,” DOE spokesman Damien LaVera said in an email.

In 2008 and 2009, Limnia and XP Vehicles applied for $55 million in funding through the ATVM program for two projects. Limnia sought $15 million to develop a new advanced vehicle energy storage system, and XP Vehicles sought $40 million to help produce a new gasless SUV-style vehicle that cost less than $20,000 and replaced metal doors and body panels with polymer plastics and a lightweight alloy frame.

But the companies say they were passed over in favor of competitors, including Tesla Motors Inc. and Fisker Automotive Inc., companies with deep-pocketed investors, some of which have connections to the Obama administration. Combined, Fisker and Tesla received nearly a billion dollars in ATVM loans in early 2010.

“Because DOE’s ‘merit review’ criteria and process were so opaque, the taxpayer-funded ATVM Loan Program and [loan guarantee program] became cash cows for government cronies,” the companies argued in one filing. “Politics and political pressure infected these programs, shaping, in whole or in part, the judgment of DOE’s ultimate decision makers.”

In addition, the companies argued that some of their legally protected trade secrets ended up in the hands of other ATVM loan applicants.

An attorney representing the companies in the case is Dan Epstein, a former congressional staffer who now works as executive director of the watchdog group Cause of Action.

Epstein, who had worked for House Oversight and Government Reform Chairman Darrell Issa (R-Calif.), has been involved in a number of efforts to combat what he decries as government overreach in his current endeavor.

Last year, Epstein’s group took on the Interior Department in a long-standing controversy over whether the agency should allow a California oyster farm to continue operating in a potential wilderness area. The group has also battled the Department of Energy’s energy efficiency standards, questioned political campaigning by government official and taken the Food and Drug Administration to task for ordering a man to stop the “manufacture” of his own sperm (Greenwire, Nov. 14, 2012).

 

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