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“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…”
