Posted on 02/25/2013 8:40:45 PM PST by smoothsailing
BY:
February 25, 2013 5:58 pm
The Drakes Bay Oyster Company won a preliminary injunction from the Ninth Circuit Court of Appeals, suspending a decision by the Department of the Interior to close the oyster farm until the case can be further litigated, Cause of Action announced Monday.
Secretary of the interior Ken Salazar decided last year not to renew the oyster company’s special use permit to operate on federally owned land. The land has been designated a wildlife preserve.
The company would have had to close and leave the property on the Drakes Bay Estero in Northern California by the end of February without the injunction. Employees who live on the farm would have lost their housing and the premature oysters in the bay would have been lost.
“Appellants’ emergency motion for an injunction pending appeal is granted because there are serious legal questions and the balance of hardships tips sharply in appellants’ favor,” the three-judge panel wrote in its decision.
“We are grateful that the Ninth Circuit has chosen to allow Drakes Bay Oyster Company to continue operating and recognized the hardships that would have resulted from shutting down the farm before its case could be heard,” said Amber Abbasi, chief counsel for regulatory affairs at Cause of Action, in a statement. Cause of Action is a nonprofit government watchdog group based in Washington, D.C.
The company is alleging that the Department of the Interior failed to follow procedural and data quality regulations when making its decision.
A Department of the Interior spokesman said the department does not comment on ongoing litigation.
©2013 All Rights Reserved
WOW! Oysters 1 Feds 0 This is great news. I’ve eaten many dozens of these oysters!
That reminded me of a Clinton era shenanigan.
Unelected left-wing fanatics are obviously the ones who are after Drake's Bay Oyster Company, et al.
Though not the same this may be germane. Roberta Achtenberg of Clinton's HUD launched investigations of citizens of Berkeley, Calif. who had opposed HUD proposals with letter-writing, pamphleteering or other forms of peaceful protest. Achtenberg ordered the protesters to turn over diaries, phone messages and other personal papers. She threatened to fine the protesters $50,000.
If memory serves a federal judge cleared the way for bureaucrats and Ms Achtenberg herself, personally, to be held accountable and open to legal action. Again if memory serves Ms Achtenberg hightailed it back to San Francisco leaving her "brilliant" federal career behind.
I did not read much of the document but I do recall reading that the decisions left bureaucrats open to be personally responsible for their actions on the job and they could be sued as individuals. I believe the higher court agrees.
My point: I have no training in law.. I do wonder however if the courts' opinion matters vis-a-vis a citizens rights against bureaucracy lies and wrong-doing (the Drake's Bay Oyster Company decision).
For example the court wrote, "When government officials violate citizens' clearly established First Amendment rights, however, we will not apply the doctrine of qualified immunity to defeat a remedy of damages to which the citizens are entitled under Bivens." I did not research Bivens. para #92
It’s very good news! And the Ninth Circuit actually got something right for a change. That’s amazing in itself!
Thanks for posting. I’ve been following this case and thought the Oyster Co had already been thrown off the land.
This is good news indeed, hopefully the oysters will prevail.
I don’t know about all the legal stuff, but it would be fun to see Salazar and Holder held personally accountable for terrorizing Drake’s Bay Oyster Company.
:o)
In a battle of wits between Salazar and an Oyster, I’ll bet on the oyster any day.
Salazar has established himself as a tiny Napoleon, complete with a Napoleonic/Hitlerian complex, and a nasty disposition to boot.
What the hell is happening to Colorado? Too many of their top politicians, mayors, etc. are hardcore left and stupid too.
The reason Bivens (Lawsuit / Action) was an important decision, is before the Bivens decision, almost all federal courts would grant 12(b)6, Motion(s) to Dismiss (your case) "FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED." Put in layperson terms, Yes you were injured (not physically injured, but through some Constitutional depredation) but because the government official has "Qualified Immunity," there is no remedy to make you whole.
Bivens and some other (well known) lawsuits changed the "Qualified Immunity," landscape so to speak. Still a BIG HURDLE 12(b)6, Motion(s) to Dismiss to over come, i.e., make some type of mistake in your Pleadings and the judge will grant the 12(b)6, Motion(s) to Dismiss. You get just ONE BITE @ the apple, make a boo-boo, your toast, can you say Motion Granted (to dismiss).
http://supreme.justia.com/cases/federal/us/403/388/case.html
U.S. Supreme Court Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics No. 301
Argued January 12, 1971
Decided June 21, 1971
403 U.S. 388
CERTIORARI TO THE UNITED SATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Syllabus
Petitioner's complaint alleged that respondent agents of the Federal Bureau of Narcotics, acting under color of federal authority, made a warrantless entry of his apartment, searched the apartment, and arrested him on narcotics charges. All of the acts were alleged to have been done without probable cause. Petitioner's suit to recover damages from the agents was dismissed by the District Court on the alternative grounds (1) that it failed to state a federal cause of action and (2) that respondents were immune from suit by virtue of their official position. The Court of Appeals affirmed on the first ground alone.
Held:
1. Petitioner's complaint states a federal cause of action under the Fourth Amendment for which damages are recoverable upon proof of injuries resulting from the federal agents' violation of that Amendment. Pp. 403 U. S. 390-397.
2. The Court does not reach the immunity question, which was not passed on by the Court of Appeals. Pp. 403 U. S. 397-398.
409 F.2d 718, reversed and remanded.
BRENNAN, J., delivered the opinion of the Court, in which DOUGLAS, STEWART, WHITE, and MARSHALL, JJ., joined. HARLAN, J., filed an opinion concurring in the judgment, post, p. 403 U. S. 398. BURGER, C.J., post, p. 403 U. S. 411. BLACK, J., post, p. 403 U. S. 427, and BLACKMUN, J., post, p. 403 U. S. 430, filed dissenting opinions.
Page 403 U. S. 389p
Hmmmm. Wonder if the loss of individual immunity might be applied in the Reese case?
Thank you for providing the details about Bivens.
Sorry took so long to answer your “Thank you.”
I’m just glad to add my two cents so people can do with it what they feel appropriate. :-)
Can you say Thank you [to] Randall Claude "Randy" Weaver (born January 3, 1948)[1] was caught in the deadly confrontation with U.S. federal agents at Ruby Ridge, Idaho, in 1992.
A BRAVE local prosecutor [Denise Woodbury, Boundary County, Idaho, prosecutor] charged some of the "Fed's" in this / that case {Randy Weaver}, everyone in the legal profession thought the women prosecutor who brought the charges was to put it mildly, stock raving mad, the opponent who ran for office used this against her & won. She [Denise Woodbury] lost at the local level in court, but the 9th Circuit on appeal upheld the fact the {this is from memory} "Complaining Witness" who lie's on a complaint, looses their "Qualified Immunity Status."
Just one of the few times the 9th Circuit Circus, got it right. For those who don't know the 9th Circuit holds the distinction as one of the most overturned circuit(s) by the U.S. Supreme Court.
Hope this Tid-Bit of information is helpful to someone involved in the Reese case.
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