Drakes Bay Oyster Company v. Sally Jewell

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DRAKES BAY OYSTER COMPANY; No. 13-15227
KEVIN LUNNY,
Plaintiffs-Appellants, D.C. No.
4:12-cv-06134-
v. YGR

SALLY JEWELL, in her official ORDER AND
capacity as Secretary, U.S. AMENDED
Department of the Interior; U.S. OPINION
DEPARTMENT OF THE INTERIOR; U.S.
NATIONAL PARK SERVICE;
JONATHAN B. JARVIS, in his official
capacity as Director, U.S. National
Park Service,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted
May 14, 2013—San Francisco, California

Filed September 3, 2013
Amended January 14, 2014
2 DRAKES BAY OYSTER CO. V. JEWELL

Before: M. Margaret McKeown and Paul J. Watford,
Circuit Judges, and Algenon L. Marbley, District Judge.*

Opinion by Judge McKeown;
Dissent by Judge Watford

SUMMARY**

Environmental Law / Preliminary Injunction

The panel affirmed the district court’s order denying a
preliminary injunction challenging the Secretary of the
Interior’s discretionary decision to let Drakes Bay Oyster
Company’s permit for commercial oyster farming at Point
Reyes National Seashore expire on its own terms.

Drakes Bay sought a preliminary injunction, arguing that
the Secretary’s decision to let the permit expire violated the
authorization in the Department of the Interior Appropriations
Act (“Section 124”), the National Environmental Policy Act,
and various federal regulations. The panel held that it had
jurisdiction to review whether the Secretary violated any legal
mandate contained in Section 124 or elsewhere, but that it
lacked jurisdiction to review the Secretary’s ultimate
discretionary decision whether to issue a new permit. The
panel held that Drakes Bay was not likely to succeed in

*
The Honorable Algenon L. Marbley, District Judge for the U.S.
District Court for the Southern District of Ohio, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 DRAKES BAY OYSTER CO. V. JEWELL 3

proving that the Secretary violated constitutional, statutory,
regulatory, or other legal mandates or restrictions. The panel
further held that Drakes Bay was not entitled to a preliminary
injunction not only because it failed to raise a serious
question about the Secretary’s decision, but also because it
had not shown that the balance of equities weighed in its
favor.

Judge Watford dissented because he would hold that
Drakes Bay was likely to prevail on its claim that the
Secretary’s decision was arbitrary, capricious, or otherwise
not in accordance with law. Judge Watford would hold that
injunctive relief preserving the status quo should have been
granted.

COUNSEL

Amber D. Abbasi (argued), Cause of Action, Washington,
D.C.; John Briscoe, Lawrence S. Bazel, and Peter S. Prows,
Briscoe Ivester & Bazel LLP, San Francisco, California; S.
Wayne Rosenbaum and Ryan Waterman, Stoel Rives LLP,
San Diego, California; Zachary Walton, SSL Law Firm LLP,
San Francisco, California, for Plaintiffs-Appellants.

J. David Gunter II (argued) Trial Attorney, United States
Department of Justice, Washington, D.C.; Ignacia S. Moreno,
Assistant Attorney General, Stephen M. Macfarlane, Joseph
T. Mathews, E. Barrett Atwood, and Charles Shockey, Trial
Attorneys, United States Department of Justice, Sacramento,
California, for Defendants-Appellees.
4 DRAKES BAY OYSTER CO. V. JEWELL

Judith L. Teichman, San Francisco, California, for Amici
Curiae Alice Waters, Tomales Bay Oyster Company, Hayes
Street Grill, Marin County Agricultural Commissioner, Stacy
Carlsen, the California Farm Bureau Federation, the Marin
County Farm Bureau, the Sonoma County Farm Bureau,
Food Democracy Now, Marin Organic, and the Alliance For
Local Sustainable Agriculture.

Trent W. Orr and George M. Torgun, Earthjustice, San
Francisco, California, for Amici Curiae Environmental
Action Committee of West Marin, National Parks
Conservation Association, Natural Resources Defense
Council, Save Our Seashore, and the Coalition of National
Park Service Retirees.

ORDER

The opinion filed on September 3, 2013, appearing at
729 F.3d 967, is hereby amended. An amended opinion is
filed concurrently with this order.

With these amendments, Judge McKeown voted to deny
the petition for rehearing en banc and Judge Marbley so
recommends. Judge Watford voted to grant the petition.

Amicus Curiae Catherine Rucker’s request for judicial
notice in support of her brief opposing the petition for
rehearing en banc is DENIED.

The full court has been advised of the petition for
rehearing en banc and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
 DRAKES BAY OYSTER CO. V. JEWELL 5

The petition for rehearing en banc is DENIED. No
further petitions for en banc or panel rehearing shall be
permitted.

OPINION

McKEOWN, Circuit Judge:

This appeal, which pits an oyster farm, oyster lovers and
well-known “foodies” against environmentalists aligned with
the federal government, has generated considerable attention
in the San Francisco Bay area.1 Drakes Bay Oyster Company
(“Drakes Bay”) challenges the Secretary of the Interior’s
discretionary decision to let Drakes Bay’s permit for
commercial oyster farming expire according to its terms. The
permit, which allowed farming within Point Reyes National
Seashore, was set to lapse in November 2012. Drakes Bay
requested an extension pursuant to a Congressional enactment
that provided, in relevant part, “notwithstanding any other
provision of law, the Secretary of the Interior is authorized to
issue a special use permit with the same terms and conditions
as the existing authorization.” Department of the Interior

1
The panel appreciates the amicus briefing filed by supporters of both
sides. Alice Waters, Tomales Bay Oyster Company, Hayes Street Grill,
the California Farm Bureau Federation, the Marin County Farm Bureau,
the Sonoma County Farm Bureau, Food Democracy Now, Marin Organic,
and the Alliance For Local Sustainable Agriculture filed an amici curiae
brief in support of Drakes Bay. The Environmental Action Committee of
West Marin, National Parks Conservation Association, Natural Resources
Defense Council, Save Our Seashore, and the Coalition of National Park
Service Retirees filed an amici curiae brief in support of the federal
parties.
6 DRAKES BAY OYSTER CO. V. JEWELL

Appropriations Act, Pub. L. No. 111-88, § 124, 123 Stat.
2904, 2932 (2009) (“Section 124”). After the Secretary
declined to extend the permit, Drakes Bay sought a
preliminary injunction, arguing that the Secretary’s decision
violated the authorization in Section 124, the National
Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et
seq., and various federal regulations.

We have jurisdiction to consider whether the Secretary
violated “constitutional, statutory, regulatory or other legal
mandates or restrictions,” Ness Inv. Corp. v. U.S. Dep’t of
Agr., Forest Serv., 512 F.2d 706, 715 (9th Cir. 1975), and we
agree with the district court that Drakes Bay is not likely to
succeed in proving any such violations here. Through
Section 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. The
Secretary clearly understood he was authorized to issue the
permit; he did not misinterpret the scope of his discretion
under Section 124. In an effort to inform his decision, the
Secretary undertook a NEPA review, although he believed he
was not obligated to do so. Nonetheless, any asserted errors
in the NEPA review were harmless.

Because Congress committed the substance of the
Secretary’s decision to his discretion, we cannot review “the
making of an informed judgment by the agency.” Id. In
letting the permit lapse, the Secretary emphasized the
importance of the long-term environmental impact of the
decision on Drakes Estero, which is located in an area
designated as potential wilderness. He also underscored that,
when Drakes Bay purchased the property in 2005, it did so
with eyes wide open to the fact that the permit acquired from
 DRAKES BAY OYSTER CO. V. JEWELL 7

its predecessor owner was set to expire just seven years later,
in 2012. Drakes Bay’s disagreement with the value
judgments made by the Secretary is not a legitimate basis on
which to set aside the decision. Once we determine, as we
have, that the Secretary did not violate any statutory mandate,
it is not our province to intercede in his discretionary
decision. We, therefore, affirm the district court’s order
denying a preliminary injunction.

BACKGROUND

I. THE POINT REYES NATIONAL SEASHORE

Congress established the Point Reyes National Seashore
(“Point Reyes”) in 1962 “in order to save and preserve, for
purposes of public recreation, benefit, and inspiration, a
portion of the diminishing seashore of the United States that
remains undeveloped.” Act of Sept. 13, 1962, Pub. L. No.
87-657, 76 Stat. 538, 538. The area is located in Marin
County, California, and exhibits exceptional biodiversity.
Point Reyes is home to Drakes Estero, a series of estuarial
bays.

The enabling legislation for Point Reyes gave the
Secretary of the Interior administrative authority over the area
and directed him to acquire lands, waters, and other property
and interests within the seashore. Id. at § 3(a), 76 Stat. at
539–40. In 1965, the State of California conveyed to the
United States “all of the tide and submerged lands or other
lands” within Point Reyes, reserving certain minerals rights
to itself and reserving the right to fish to Californians. 1965
Cal. Stat. 2604–2605, § 1–3.
8 DRAKES BAY OYSTER CO. V. JEWELL

In the Point Reyes Wilderness Act of 1976, Congress
designated certain areas within the seashore as “wilderness”
under the Wilderness Act of 1964. Pub. L. No. 94–544, 90
Stat. 2515. The Wilderness Act “established a National
Wilderness Preservation System to be composed of federally
owned areas designated by Congress as ‘wilderness areas.’”
16 U.S.C. § 1131(a). Such areas are to “be administered for
the use and enjoyment of the American people in such
manner as will leave them unimpaired for future use and
enjoyment as wilderness, and so as to provide for the
protection of these areas [and] the preservation of their
wilderness character.” Id. Accordingly, subject to statutory
exceptions and existing private rights, the Act provides that
“there shall be no commercial enterprise . . . within any
wilderness area.” 16 U.S.C. § 1133(c).

The Point Reyes Wilderness Act designated other areas,
including Drakes Estero, as “potential wilderness.” Pub. L.
No. 94–544, 90 Stat. 2515. Congress considered designating
Drakes Estero as “wilderness,” but declined to do so. The
legislative history reflects that Congress took into account the
Department of the Interior’s position that commercial oyster
farming operations taking place in Drakes Estero, as well as
California’s reserved rights and special use permits relating
to the pastoral zone, rendered the area “inconsistent with
wilderness” at the time. H.R. Rep. No. 94-1680, at 5–6
(1976), reprinted in 1976 U.S.C.C.A.N. 5593, 5597.
Congress specified in separate legislation that the “potential
wilderness additions” in Point Reyes “shall . . . be designated
wilderness” by “publication in the Federal Register of a
notice by the Secretary of the Interior that all uses thereon
prohibited by the Wilderness Act . . . have ceased.” Act of
Oct. 20, 1976, Pub. L. No. 94-567, § 3, 90 Stat. 2692.
 DRAKES BAY OYSTER CO. V. JEWELL 9

II. DRAKES BAY OYSTER COMPANY’S OPERATIONS

Oyster farming has a long history in Drakes Estero, dating
to the 1930s. Charles Johnson started the Johnson Oyster
Company in Drakes Estero in the 1950s. His oyster farm was
in operation on a five-acre parcel of land on the shore of the
estero when Congress created the Point Reyes National
Seashore. In 1972, Johnson sold his five acres to the United
States, electing to retain a forty-year reservation of use and
occupancy (“RUO”). The RUO provided that, “[u]pon
expiration of the reserved term, a special use permit may be
issued for the continued occupancy of the property for the
herein described purposes.” (Emphasis added.) It added that,
“[a]ny permit for continued use will be issued in accordance
with National Park Service [“NPS”] regulations in effect at
the time the reservation expires.” In late 2004, Drakes Bay
agreed to purchase the assets of the Johnson Oyster
Company. The RUO was transferred along with the
purchase. The forty-year RUO ended on November 30, 2012.

When it purchased the farm, Drakes Bay was well aware
that the reservation would expire in 2012, and received
multiple confirmations of this limitation. The acquisition
documents specifically referenced “that certain Reservation
of Possession Lease dated 10/12/1972, entered into by Seller
and the National Park Service.” In January 2005, the
National Park Service wrote to Kevin Lunny, an owner of
Drakes Bay, highlighting “the issue of the potential
wilderness designation.” The Park Service told Lunny that it
wanted to make sure he was aware of the Interior
Department’s legal position “[b]efore [he] closed escrow on
the purchase” of Johnson’s farm. The Park Service
accordingly sent Lunny a memorandum from the
Department’s Solicitor. Notably, the Solicitor disagreed with
10 DRAKES BAY OYSTER CO. V. JEWELL

the proposition previously expressed in the House Report
accompanying the Point Reyes Wilderness Act that
California’s retained fishing and mineral rights were
inconsistent with wilderness designation. The Solicitor
concluded, “the Park Service is mandated by the Wilderness
Act, the Point Reyes Wilderness Act and its Management
Policies to convert potential wilderness, i.e. the Johnson
Oyster Company tract and the adjoining Estero, to wilderness
status as soon as the non conforming use can be eliminated.”
In March 2005, the Park Service reiterated its guidance
regarding the Drakes Bay’s purchase of the Johnson property.
It specifically informed Lunny, “Regarding the 2012
expiration date and the potential wilderness, based on our
legal review, no new permits will be issued after that date.”

III. SECTION 124 AND THE SECRETARY’S DECISION

Several years later, in 2009, Congress addressed the
Department of the Interior’s authority to issue Drakes Bay a
new permit in appropriations legislation. The Senate
appropriations committee proposed a provision requiring the
Secretary to issue a special use permit for an additional ten
years. H.R. 2996, 111th Cong. § 120(a) (as reported in
Senate, July 7, 2009) (providing “the Secretary of the Interior
shall extend the existing authorization . . .”) (emphasis
added). The Senate rejected this mandate, and amended the
language to provide that the Secretary “is authorized to issue”
the permit, rather than required to do so. 155 Cong. Rec.
S9769-03, S9773 (daily ed. Sept. 24, 2009).

The law as enacted provides:

Prior to the expiration on November 30, 2012
of the Drakes Bay Oyster Company’s
 DRAKES BAY OYSTER CO. V. JEWELL 11

Reservation of Use and Occupancy and
associated special use permit (“existing
authorization”) within Drakes Estero at Point
Reyes National Seashore, notwithstanding any
other provision of law, the Secretary of the
Interior is authorized to issue a special use
permit with the same terms and conditions as
the existing authorization, except as provided
herein, for a period of 10 years from
November 30, 2012. Provided, That such
extended authorization is subject to annual
payments to the United States based on the
fair market value of the use of the Federal
property for the duration of such renewal.
The Secretary shall take into consideration
recommendations of the National Academy of
Sciences [“NAS”] Report pertaining to
shellfish mariculture in Point Reyes National
Seashore before modifying any terms and
conditions of the extended authorization.
Nothing in this section shall be construed to
have any application to any location other
than Point Reyes National Seashore; nor shall
anything in this section be cited as precedent
for management of any potential wilderness
outside the Seashore.

123 Stat. at 2932. The House Conference Report reflected
that the final language “provid[ed] the Secretary discretion to
issue a special use permit. . . .” 155 Cong. Rec. H11871-06
(daily ed. October 28, 2009) (emphasis added).

The NAS report that Section 124 referenced, “Shellfish
Mariculture in Drakes Estero, Point Reyes National Seashore,
12 DRAKES BAY OYSTER CO. V. JEWELL

California,” was prepared in 2009, in light of “the approach
of the 2012 expiration date” of the permit, in order “to help
clarify the scientific issues raised with regard to the shellfish
mariculture activities in Drakes Estero.” The report
highlighted that there was “limited scientific literature”
available and that there was evidence that oyster farming had
both negative and positive effects on the environment. The
report explained: “The ultimate decision to permit or prohibit
shellfish farming in Drakes Estero necessarily requires value
judgments and tradeoffs that can be informed, but not
resolved, by science.”

Drakes Bay sent letters to the Secretary in July 2010
requesting that he exercise his authority under Section 124 to
issue a permit extension. Park Service staff met with Lunny
soon after to discuss a draft schedule to complete a NEPA
process. The Department, through the Park Service, then
formally began to prepare an Environmental Impact
Statement (“EIS”) in an effort “to engage the public and
evaluate the effects of continuing the commercial operation
within the national seashore” and “ to inform the decision of
whether a new special use permit should be issued.” Drakes
Bay Oyster Company Special Use Permit, 75 Fed. Reg.
65,373 (Oct. 22, 2010).2

The Park Service issued a draft EIS (“DEIS”) for public
comment in September 2011. Drakes Bay submitted

2
In the final EIS, the Department stated that Section 124 did not require
compliance with NEPA because that provision gave the Secretary
authorization to make the permit decision “notwithstanding any other
provision of law.” Nevertheless, the Department “determined that it is
helpful to generally follow the procedures of NEPA.” The Secretary
reiterated this position in his decision.
 DRAKES BAY OYSTER CO. V. JEWELL 13

comments criticizing much of the draft, along with a data
quality complaint.3 Congress expressed “concerns relating to
the validity of the science underlying the DEIS” and therefore
“direct[ed] the National Academy of Sciences to assess the
data, analysis, and conclusions in the DEIS in order to ensure
there is a solid scientific foundation for the Final
Environmental Impact Statement expected in mid-2012.”
H.R. Conf. Rep. No. 112-331, at 1057 (Dec. 15, 2011),
reprinted in 2011 U.S.C.C.A.N. 605, 788.

The NAS released its report in August 2012. The report
noted several instances where the DEIS “lack[ed] assessment
of the level of uncertainty associated with the scientific
information on which conclusions were based.” But the
report concluded that the available research did not admit of
certainty:

The scientific literature on Drakes Estero is
not extensive and research on the potential
impacts of shellfish mariculture on the Estero
is even sparser . . . . Consequently, for most
of the resource categories the committee
found that there is a moderate or high level of
uncertainty associated with impact
assessments in the DEIS.

The final EIS, issued on November 20, 2012, responded to
the NAS review. The EIS revised the definitions of the
intensity of impacts to wildlife and wildlife habitats, clarified
the assumptions underlying those conclusions, and added
discussion of the uncertainty of scientific data.

3
Drakes Bay’s data quality complaint is not before us in this appeal.
14 DRAKES BAY OYSTER CO. V. JEWELL

The Secretary issued his decision on November 29, 2012,
directing the Park Service to let the permit expire according
to its terms. He explained that his decision was “based on
matters of law and policy,” including the “explicit terms of
the 1972 conveyance from the Johnson Oyster Company to
the United States” and “the policies of NPS concerning
commercial use within a unit of the National Park System and
nonconforming uses within potential or designated
wilderness, as well as specific wilderness legislation for Point
Reyes National Seashore.” He recognized that Section 124
“grant[ed] [him] the authority to issue a new SUP,” but
elected to effectuate Park Service policies and the principles
he discerned in wilderness legislation.

In his decision, the Secretary recognized the “scientific
uncertainty” and “lack of consensus in the record regarding
the precise nature and scope of the impacts that [Drakes
Bay’s] operations have” on wilderness and other resources.
Generally, he found that the impact statements supported the
proposition that letting the permit expire “would result in
long-term beneficial impacts to the estero’s natural
environment.” But he explained that the draft and final EIS
were “not material to the legal and policy factors that provide
the central basis” for his decision, though they were “helpful”
in that they informed him regarding the “complexities,
subtleties, and uncertainties of this matter.” He disclaimed
reliance on “the data that was asserted to be flawed,” and
noted that his decision was “based on the incompatibility of
commercial activities in wilderness.”

In accordance with his decision, the Secretary directed the
Park Service to publish a notice in the Federal Register
announcing the conversion of Drakes Estero from potential to
designated wilderness. This litigation followed. Drakes Bay
 DRAKES BAY OYSTER CO. V. JEWELL 15

sued the Secretary, seeking a declaratory judgment that his
decision violated the Administrative Procedure Act (“APA”),
5 U.S.C. § 551 et seq., an order that the Secretary direct the
Park Service to issue a new ten-year permit, and,
alternatively, an order vacating and remanding for a new
decision. Drakes Bay moved for a preliminary injunction to
avoid having to cease its operations pending suit, as it had
been given ninety days to remove its property from the estero.

The district court determined that it did not have
jurisdiction to review the Secretary’s decision because “the
statutory context affords complete discretion” and “Section
124 provides the Court with ‘no meaningful standard’ for the
Court to apply in reviewing the Decision not to issue a New
SUP.” The court went on to provide an alternate rationale for
denial: “the Court does not find that Plaintiffs can show a
likelihood of success under a Section 706(2) standard
[arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law under the APA].” Finally, the court
held that “[o]n balance, and combining the requirement of
both the equities and the public interest more broadly, the
Court does not find these elements weigh in favor of granting
a preliminary injunction.”4

4
A motions panel granted Drakes Bay’s emergency motion for an
injunction pending appeal “because there are serious legal questions and
the balance of hardships tips sharply in appellants’ favor.” With the
benefit of full briefing and argument, we need not defer to the motion
panel’s necessarily expedited decision. United States v. Houser, 804 F.2d
565, 568 (9th Cir. 1986).
16 DRAKES BAY OYSTER CO. V. JEWELL

ANALYSIS

I. J URISDICTION AND THE S COPE OF THE
“NOTWITHSTANDING” CLAUSE

As a threshold matter, we address jurisdiction. On this
point, we disagree in part with the district court. See Oregon
Natural Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 979
n.1 (9th Cir. 2006) (reviewing de novo the question of subject
matter jurisdiction under the APA). We do have jurisdiction
to review whether the Secretary violated any legal mandate
contained in Section 124 or elsewhere. However, we agree
with the district court that we lack jurisdiction to review the
Secretary’s ultimate discretionary decision whether to issue
a new permit.

The government argues that we lack jurisdiction to review
any of Drakes Bay’s claims because, under Section 124, the
Secretary’s decision was “committed to agency discretion by
law.” 5 U.S.C. § 701(a)(2). This narrow exception to the
presumption of judicial review of agency action under the
APA applies “if the statute is drawn so that a court would
have no meaningful standard against which to judge the
agency’s exercise of discretion.” Heckler v. Chaney,
470 U.S. 821, 830 (1985); see also Webster v. Doe, 486 U.S.
592, 599 (1988) (characterizing the exception as for
circumstances where there is “no law to apply”) (internal
quotation marks and citation omitted). But even where the
substance or result of a decision is committed fully to an
agency’s discretion, “a federal court has jurisdiction to review
agency action for abuse of discretion when the alleged abuse
of discretion involves violation by the agency of
constitutional, statutory, regulatory or other legal mandates or
restrictions.” Ness Inv. Corp., 512 F.2d at 715. In such
 DRAKES BAY OYSTER CO. V. JEWELL 17

circumstances, a federal court lacks only jurisdiction to
review an alleged abuse of discretion regarding “the making
of an informed judgment by the agency.” Id.

Here, as in Ness Inv. Corp., “[t]he secretary is
‘authorized,’ not required, to issue” a permit, and there are
“no statutory restrictions or definitions prescribing precise
qualifications” for issuance. Id. Consequently we may
review only whether the Secretary followed whatever legal
restrictions applied to his decision-making process. The
parties agree that the Ness framework applies, but disagree on
whether any “mandates or restrictions,” id., exist. Drakes
Bay interprets Section 124, NEPA, and various federal
regulations as imposing legal restrictions on the Secretary,
but it contends that these requirements apply only to a
decision to deny an extension, not to a decision granting an
extension. The Secretary contends that the “notwithstanding”
clause of Section 124 sweeps away any statutes and
regulations that might otherwise apply to a permit
application. Neither side has it quite right.

As a general matter, “notwithstanding” clauses nullify
conflicting provisions of law. See United States v. Novak,
476 F.3d 1041, 1046 (9th Cir. 2007) (en banc) (“The Supreme
Court has indicated as a general proposition that statutory
‘notwithstanding’ clauses broadly sweep aside potentially
conflicting laws.”). Before Congress passed Section 124, the
Department’s Solicitor had issued a series of opinions holding
that the Wilderness Act, the Point Reyes Wilderness Act, and
Park Service management policies legally prohibited any
extension of the permit. Section 124’s “notwithstanding”
clause trumps any law that purports to prohibit or preclude
the Secretary from extending the permit, as such a law would
“conflict” with Section 124’s authorization. Thus we may
18 DRAKES BAY OYSTER CO. V. JEWELL

review whether the Secretary misunderstood his authority to
issue a permit and the closely related question of whether he
mistakenly interpreted other statutory provisions as placing
a legal restriction on his authority. As the government itself
acknowledges, if Section 124 provides restrictions on the
Secretary’s exercise of discretion, then we have jurisdiction
to review compliance with those limits.

The Secretary’s decision is also subject to applicable
procedural constraints. “[W]hen two statutes are capable of
co-existence, it is the duty of the courts . . . to regard each as
effective.” Morton v. Mancari, 417 U.S. 535, 551 (1974).
Thus, we have jurisdiction to consider the applicability of
NEPA and other procedures that do not conflict with the
authorization in Section 124.

Procedural constraints that do not conflict with the
authorization would apply to the Secretary’s decision
regardless of whether he granted or denied the permit. We
reject Drakes Bay’s anomalous position that the Secretary had
“unfettered authority to issue the permit,” while his
“discretion to deny [Drakes Bay] a [permit] [was] bounded by
NEPA and other applicable law.” Drakes Bay points to the
fact that Section 124 says that “notwithstanding any other
provision of law, the Secretary of the Interior is authorized to
issue a special use permit,” rather than that he is authorized
to “issue or deny” one. From that language, Drakes Bay
extrapolates that Section 124 “was enacted to make it easy to
issue the permit.” The statute does not dictate such a one-
way ratchet. Indeed, if Congress had so wanted to make it
easy or automatic for Drakes Bay, one wonders why it
rejected the proposal that would have simply required the
Secretary to issue a new permit. The ultimate legislation was
a move away from, not toward, Drakes Bay’s favored result.
 DRAKES BAY OYSTER CO. V. JEWELL 19

A natural reading of the authorization to issue a permit
implies authorization not to issue one, and we see no reason
to interpret the “notwithstanding” clause as applying to one
outcome but not the other. See Confederated Salish and
Kootenai Tribes v. United States, 343 F.3d 1193, 1196–97
(9th Cir. 2003) (interpreting the word “authorized” to mean
both the power to grant or deny a request for the Secretary to
take land in trust for a tribe). Section 124 was enacted as part
of appropriations legislation, granting the Secretary authority
to act, without providing any statement of Congress’s view on
that decision one way or the other.

Drakes Bay’s effort to read into this short appropriations
provision a preference for issuance of the permit is
unavailing, as is the dissent’s attempt to do so based on
legislative history from decades earlier. The dissent
misunderstands the significance of the legislative history of
the Point Reyes Wilderness Act of 1976, which focuses on
the notion that Congress at that time viewed oyster farming
as desirable and consistent with wilderness designation.

The dissent stacks legislative history from one enactment
to another, over decades, when Section 124 itself does not
make the link. “Extrinsic materials have a role in statutory
interpretation only to the extent they shed a reliable light on
the enacting Legislature’s understanding of otherwise
ambiguous terms.” Exxon Mobil Corp. v. Allapattah Servs.,
Inc., 545 U.S. 546, 568 (2005) (emphasis added). Regardless
of the accuracy of the dissent’s recitation of the legislative
history of the 1976 Act, the dissent’s citation to congressional
statements in support of designating Drakes Estero as
wilderness in 1976 do not reliably reflect that the Congress
that enacted Section 124 was of the dissent’s view that
Drakes Bay’s operations were “not an ‘obstacle’ to
20 DRAKES BAY OYSTER CO. V. JEWELL

converting Drakes Estero to wilderness status.” Dissent at
46. The dissent’s position would rewrite the clause to
something like “notwithstanding the Department’s policy
view that oyster farming can be incompatible with wilderness
designation.” The dissent cites nothing from the text, or even
the legislative history, of Section 124 to support this
interpretation. Even Drakes Bay did not argue this position
or urge us to go this far afield.5

Here, where Section 124 merely grants authority to take
an action, the “notwithstanding” clause targets laws that
“potentially conflict[]” with that authority. Novak, 476 F.3d
at 1046. Given the Department’s opinions in 2005 that
wilderness legislation prevented any exercise of authority to
extend the permit, the notwithstanding clause has a clear
function—to convey that prior legislation should not be
deemed a legal barrier.6 The dissent confuses actual or

5
The dissent’s conclusion that “[c]ontinued operation of the oyster farm
is fully consistent with the Wilderness Act,” Dissent at 46, is particularly
puzzling given that Drakes Bay itself argued that wilderness designation
of Drakes Estero was not possible while the oyster farm’s commercial
activities continued. Moreover, there are a variety of Park Service
management criteria that inform the question of what kinds of activities
are “consistent” with wilderness designation under the Wilderness Act.
The dissent’s reliance on decades-old legislative pronouncements about
the Johnson oyster farm for the proposition that Section 124 was intended
to foreclose the Secretary from considering his department’s own policies
with regard to Drakes Bay stretches even the most liberal use of legislative
history to the breaking point. “[U]nenacted approvals, beliefs, and desires
are not laws.” Puerto Rico Dep’t of Consumer Affairs v. Isla Petroleum
Corp., 485 U.S. 495, 501 (1988).
6
This function is meaningful regardless of whether conflicting laws
actually prevented the Secretary from issuing a permit, a question the
dissent would answer in the negative, Dissent at 46, but which we simply
have no occasion to pass on here. The Department’s legal position raised
 DRAKES BAY OYSTER CO. V. JEWELL 21

potential legal impediments to the Secretary’s authority with
policy considerations that might lead the Department not to
extend Drakes Bay’s permit. Section 124 does not prescribe
considerations on which the Secretary may or may not rely,
it says nothing about the criteria for wilderness designation
and says nothing about whether oyster farming is consistent
with wilderness designation. As the Supreme Court has
admonished, “courts have no authority to enforce a principle
gleaned solely from legislative history that has no statutory
reference point.” Shannon v. United States, 512 U.S. 573,
584 (1994) (internal quotation marks and alteration omitted).
Had Congress wanted to express a view on whether the
Secretary should consider the Department’s policies on
wilderness or other criteria, it would have said so.7 It did not,
but rather gave the Secretary the discretion to decide.

We now turn to consideration of the Secretary’s decision.

II. PRELIMINARY INJUNCTION NOT WARRANTED

In seeking a preliminary injunction, Drakes Bay must
establish “that [it] is likely to succeed on the merits, that [it]
is likely to suffer irreparable harm in the absence of

a “potential[] conflict[],” Novak, 476 F.3d at 1046 (emphasis added),
regarding the Department’s authority, and the “notwithstanding clause”
made clear that “other provisions of law” were not an impediment.
7
Indeed, the only consideration that Congress addressed in Section 124
was that “[t]he Secretary shall take into consideration recommendations
of the National Academy of Sciences Report pertaining to shellfish
mariculture in Point Reyes National Seashore before modifying any terms
and conditions of the extended authorization.” (Emphasis added.) As
modification of the permit is not at issue here, this provision is not
relevant.
22 DRAKES BAY OYSTER CO. V. JEWELL

preliminary relief, that the balance of equities tips in [its]
favor, and that an injunction is in the public interest.” Winter
v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). We
have held that a “likelihood” of success per se is not an
absolute requirement. Alliance for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1131–32 (9th Cir. 2011). Rather,
“‘serious questions going to the merits’ and a hardship
balance that tips sharply toward the plaintiff can support
issuance of an injunction, assuming the other two elements of
the Winter test are also met.” Id. at 1132. We review for
abuse of discretion the district court’s determination that
Drakes Bay did not meet its burden under this test. FTC v.
Enforma Natural Products, Inc., 362 F.3d 1204, 1211–12 (9th
Cir. 2004).

Drakes Bay contends that the Secretary misinterpreted his
authority under Section 124 in that he mistakenly believed
that granting a permit extension would violate other laws, that
he failed to comply with NEPA, and that he failed to comply
with federal rulemaking procedures. According to Drakes
Bay, these errors render the Secretary’s decision “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). Here, the
likelihood of success on the merits of these claims is too
remote to justify the extraordinary remedy of a preliminary
injunction. In light of our conclusion about the merits, we
address only in passing the remaining preliminary injunction
factors.
 DRAKES BAY OYSTER CO. V. JEWELL 23

A. LIKELIHOOD OF SUCCESS ON THE MERITS

1. The Import of Section 124

The Secretary’s decision did not violate any statutory
mandate, particularly the provision that gave him discretion
to grant the permit despite any prior conflicting law. The key
portion of Section 124 provides as follows: “Prior to the
expiration on November 30, 2012 of the Drakes Bay Oyster
Company’s Reservation of Use and Occupancy and
associated special use permit (“existing authorization”)
within Drakes Estero at Point Reyes National Seashore,
notwithstanding any other provision of law, the Secretary of
the Interior is authorized to issue a special use permit . . . .”
Section 124 put the Secretary on notice that he was not
hamstrung by other law should he determine a permit
extension was appropriate. The section left him free to
consider wilderness values and the competing interests
underlying a commercial operation in an area set aside as a
natural seashore.

The narrow question that we have jurisdiction to review
is whether the Secretary misinterpreted his authority under
Section 124. The record leaves no doubt that the answer is
no.

As the Secretary explained, “SEC. 124 grants me the
authority and discretion to issue [Drakes Bay] a new special
use permit, but it does not direct me to do so.” The Secretary
repeated this understanding multiple times throughout the
decision, noting, for example, that Section 124 “does not
dictate a result or constrain my discretion in this matter,” and
that it “grants me the authority to issue a new SUP.”
24 DRAKES BAY OYSTER CO. V. JEWELL

Drakes Bay’s view that the Secretary violated Section 124
rests on a misinterpretation of that provision and a
misapprehension of the Secretary’s reasoning. Drakes Bay
first argues that the statute was intended to “make it easy” to
issue the permit. As we explained above, this approach is
wishful thinking, since the statute says nothing of the kind.
Indeed, Congress first considered whether to mandate
issuance of the permit but backed off that approach and
ultimately left the decision to the Secretary’s discretion. In
the end, Congress did nothing more than let the Secretary
know his hands were not tied.

Drakes Bay next argues that the Secretary erroneously
concluded that extending the permit would “violate”
applicable wilderness legislation. According to Drakes Bay,
because Section 124 authorized the Secretary to extend the
permit “notwithstanding any other provision of law,” the
Secretary was “prohibit[ed] . . . from relying on a violation of
other law as a reason to justify a permit denial.”

Drakes Bay’s reading of the decision is not tenable.
Taken as a whole, the decision reflects that the Secretary
explicitly recognized that extending the permit would be
lawful and that he was not legally constrained by other laws.

The Secretary elected to let the permit expire not to avoid
“violating” any law, as Drakes Bay posits, but because the
Secretary weighed and balanced competing concerns about
the environment and the value of aquaculture. He chose to
give weight to the policies underlying wilderness legislation,
taking into account consideration of environmental impacts:
“In addition to considering the [Drafted Environmental
Impact Statement and Final Environmental Impact
Statement], I gave great weight to matters of public policy,
 DRAKES BAY OYSTER CO. V. JEWELL 25

particularly the public policy inherent in the 1976 act of
Congress that identified Drakes Estero as potential
wilderness.” (Emphasis added).

Drakes Bay seizes on a single sentence in a summary of
reasons as evidence that the Secretary thought extending the
permit would “violate . . . specific wilderness legislation.” At
the beginning of the decision, the summary includes one
sentence that, read in isolation, raises an ambiguity: “The
continuation of the [Drakes Bay] operation would violate the
policies of NPS concerning commercial use within a unit of
the National Park System and nonconforming uses within
potential or designated wilderness, as well as specific
wilderness legislation for Point Reyes National Seashore.”
(Emphasis added). However, reading the sentence in context
of the full decision, it is obvious the Secretary did not
erroneously consider himself bound by any provision of
wilderness legislation. In reviewing the agency’s decision,
we must uphold even “a decision of less than ideal clarity” so
long as “the agency’s path may reasonably be discerned.”
FCC v. Fox Television Stations, 556 U.S. 502, 513–14 (2009)
(internal quotation marks omitted).

The Secretary’s reliance on policy considerations and
Congressional intent is evident throughout the decision.
Recounting the factual and legal background, for example,
the Secretary cited the House of Representatives committee
report accompanying the Point Reyes Wilderness Act, which
stated:

As is well established, it is the intention that
those lands and waters designated as potential
wilderness additions will be essentially
managed as wilderness, to the extent possible,
26 DRAKES BAY OYSTER CO. V. JEWELL

with efforts to steadily continue to remove all
obstacles to the eventual conversion of these
lands and waters to wilderness status.

H.R. Rep. No. 94-1680 at 3. The Secretary returned to this
committee report in his conclusion, explaining that:

My decision honors Congress’s direction to
“steadily continue to remove all obstacles to
the eventual conversion of these lands and
waters to wilderness status” and thus ensures
that these precious resources are preserved for
the enjoyment of future generations of the
American public, for whom Point Reyes
National Seashore was created.

As expressed in his decision, his choice was consistent with
the draft and final environmental impact statements that
“support the proposition that the removal of [Drakes Bay’s]
commercial operations in the estero would result in long-term
beneficial impacts to the estero’s natural environment.”

Drakes Bay suggests that referencing even the
Congressional “intent” or policies underlying the Point Reyes
Wilderness Act runs afoul of Section 124. But as Drakes Bay
itself acknowledges, the “most natural, common-sense
reading” of the notwithstanding clause is “notwithstanding
any law that would otherwise legally preclude issuance of a
[special use permit], the Secretary has the authority to issue
a SUP.” It is abundantly clear that the Secretary recognized
his authority under Section 124 and did not believe he was
legally bound by any statute to deny the permit. But the
policy that underlies the 1976 Act and other wilderness
legislation is just that—an expression of public policy. These
 DRAKES BAY OYSTER CO. V. JEWELL 27

expressions neither “legally preclude” nor legally mandate
extension, and they are not “other provision[s] of law” that
are swept aside by Section 124’s “notwithstanding” clause.
Statements in committee reports do not carry the force of law.
See Lincoln v. Vigil, 508 U.S. 182, 192–93 (1993).
“Congress’s ‘authoritative statement is the statutory text, not
the legislative history.’” Chamber of Commerce of U.S. v.
Whiting, 131 S. Ct. 1968, 1980 (2011) (quoting Exxon Mobil,
545 U.S. at 568).

The Secretary’s incorporation of the policies underlying
wilderness legislation, and of Congressional intent as
expressed in the House committee report, was a matter of his
discretion. The Secretary noted correctly that “SEC. 124
. . . does not prescribe the factors on which I must base my
decision.” Section 124 “provides the court no way to
second-guess the weight or priority to be assigned” to these
factors. Ctr. for Auto Safety v. Dole, 846 F.2d 1532, 1535
(D.C. Cir. 1988) (concluding that agency decision to deny
petition for enforcement was not reviewable where the
governing regulations provided no standards to enable
judicial review). The choice was the Secretary’s to make.8

8
The dissent’s position that the agency “relied on factors which
Congress has not intended it to consider,” Dissent at 49, is not supported
by the record. Under the deferential arbitrary and capricious standard, we
uphold agency action for which a rational explanation is given,
particularly where the agency “acted within the sphere of its expertise.”
McFarland v. Kempthorne, 545 F.3d 1106, 1113 (9th Cir. 2008). The
Secretary’s decision relied in general on “Congress’s direction” to remove
“obstacles” to wilderness designation. While the Wilderness Act bans
commercial enterprise within wilderness areas “subject to existing private
rights,” 16 U.S.C. § 1133(c), Park Service policies inform whether
wilderness designation is appropriate in the first instance. Contrary to the
dissent’s characterization, the 1976 legislation did not invoke a crystal ball
and pass judgment on the compatibility of oyster farming in Drakes Estero
28 DRAKES BAY OYSTER CO. V. JEWELL

2. Drakes Bay’s Other Statutory Arguments

As Section 124 affords no basis for us to review the
substance of the Secretary’s decision, we have no measuring
stick against which to judge Drakes Bay’s various claims that
the Secretary’s policy determination was mistaken. To the
extent the Secretary’s decision can be evaluated against the
statutory requirements cited by Drakes Bay, Drakes Bay is
unlikely to prevail in showing the decision was arbitrary and
capricious, an abuse of discretion, or in violation of any law.

Drakes Bay argues that the Secretary violated the law by
directing that Drakes Estero be designated as wilderness,
because such a designation was not possible under the
Wilderness Act in light of California’s retained mineral and
fishing rights. Although the Department of the Interior
adopted this view in the past, the Department has since
deemed that position inaccurate. The Wilderness Act itself
nowhere provides that retained mineral or fishing rights
preclude wilderness designation.9 Drakes Bay is not likely to

with wilderness some thirty plus years later when the reservation of use
would expire. Indeed, things change. The Secretary, drawing on the
agency expertise amassed in the decades since the 1970s, concluded that
continued oyster farming was inconsistent with wilderness criteria and the
Department’s policies. The Secretary’s decision that removing the farm
would further Congress’s earlier expressed goal of moving toward
wilderness designation was rational and within his authority under
Section 124.
9
Notably, the State of California takes the position that its retained
rights, including the state constitutional right to fish, do not cover
aquaculture. The California Department of Fish and Game criticized and
rejected “brief, general, and conclusory” communications it made decades
earlier that suggested the oyster farm was covered by the “right to fish”
reservation. At present, the state has issued water bottom leases to Drakes
 DRAKES BAY OYSTER CO. V. JEWELL 29

succeed on its theory that the Secretary’s current
position—that the permit’s expiration enables wilderness
designation despite retained mineral and fishing
rights—amounted to “legal error.”

Drakes Bay also believes that wilderness designation was
improper in light of the “historic farming community” that
remains on Drakes Estero. However, a 1978 amendment to
the legislation establishing Point Reyes specifically
authorizes the Park Service to lease property used for
“agricultural, ranching, or dairying purposes.” Act of Nov.
10, 1978, Pub. L. No. 95-625, § 318, 92 Stat. 3467, 3487.
The Secretary’s decision considered these uses a “compatible
activity” within a wilderness area. Drakes Bay has not
demonstrated how such a determination violates any
restriction on the Secretary’s authority.

On a related note, Drakes Bay charges that, in recounting
the statutory history, the Secretary erred in stating that the
1978 amendment did not permit him to issue leases for
mariculture. Drakes Bay’s effort to shoehorn itself into an
“agricultural purpose” is unavailing. Congress limited the
Secretary’s leasing authority to “lands” in Section 318(b) of
the 1978 Act, rather than to the “lands, waters, and
submerged lands” described in Section 318(a) of the same
statute. Id. It is reasonable to assume this distinction is
meaningful and reasonable for the Secretary to state that the
Act did not authorize mariculture leases. Even if the
Secretary misinterpreted this earlier law, he plainly

Bay for its commercial operations, but has made clear that the use of those
leases past 2012 “is expressly contingent upon [Drakes Bay’s] compliance
with the 1972 grant reservation and, after its expiration, with any special
use permit” that the federal government “may issue in its discretion.”
30 DRAKES BAY OYSTER CO. V. JEWELL

understood that Section 124 did authorize him to issue Drakes
Bay a permit for mariculture. In sum, the Secretary neither
violated any statutory mandate nor did he misapprehend his
authority under the various statutes raised by Drakes Bay.

3. Compliance with NEPA

We next address the applicability of NEPA to the
Secretary’s decision. Under NEPA, an agency is required to
prepare an environmental impact statement (“EIS”) for
“major Federal actions significantly affecting the quality of
the human environment.” 42 U.S.C. § 4332(2)(C). The
government urges that its decision to let Drakes Bay’s permit
expire is not a “major Federal action[],” but rather is inaction
that does not implicate NEPA. Drakes Bay responds that the
term “major Federal actions” includes failures to act,
40 C.F.R. § 1508.18, and that NEPA applies to decisions
concerning whether to issue a permit.10

Here, the Secretary’s decision to let Drakes Bay’s permit
expire according to its terms effectively “denied” Drakes Bay

10
Drakes Bay argues that we cannot consider the government’s inaction
argument because the Secretary did not rely on that position in his
decision. We disagree. “The rationale behind the Chenery I Court’s
refusal to accept belated justifications for agency action not previously
asserted during the agency’s own proceedings does not apply in this case.
Chenery I was premised on the policy that courts should not substitute
their judgment for that of the agency when reviewing a ‘determination of
policy or judgment which the agency alone is authorized to make and
which it has not made.’” Louis v. U.S. Dep’t of Labor, 419 F.3d 970,
977–78 (9th Cir. 2005) (quoting SEC v. Chenery Corp., 318 U.S. 80, 88
(1943)) (emphasis added). The “policy or judgment” call here was the
Secretary’s substantive decision whether to grant the permit. We are not
constrained in considering arguments concerning the applicability of
NEPA.
 DRAKES BAY OYSTER CO. V. JEWELL 31

a permit. We have held that “if a federal permit is a
prerequisite for a project with adverse impact on the
environment, issuance of that permit does constitute major
federal action.” Ramsey v. Kantor, 96 F.3d 434, 444 (9th Cir.
1996) (emphasis added). But we have never held failure to
grant a permit to the same standard, and for good reason. If
agencies were required to produce an EIS every time they
denied someone a license, the system would grind to a halt.
Our case law makes clear that not every denial of a request to
act is a “major Federal action.” We have held, for example,
that no EIS was required when the federal government denied
a request to exercise its regulatory authority to stop a state’s
program killing wildlife. State of Alaska v. Andrus, 591 F.2d
537, 541 (9th Cir. 1979).

Drakes Bay suggested at oral argument that the
Secretary’s decision differs from typical inaction because it
effected a change in the status quo, namely, the cessation of
commercial operations that had previously been authorized.
We are skeptical that the decision to allow the permit to
expire after forty years, and thus to move toward designating
Drakes Estero as wilderness, is a major action “significantly
affecting the quality of the human environment” to which
NEPA applies. 42 U.S.C. § 4332(2)(C). “The purpose of
NEPA is to ‘provide a mechanism to enhance or improve the
environment and prevent further irreparable damage.’”
Douglas County v. Babbitt, 48 F.3d 1495, 1505 (9th Cir.
1995) (quoting Pacific Legal Foundation v. Andrus, 657 F.2d
829, 837 (6th Cir. 1981)).

The Secretary’s decision is essentially an environmental
conservation effort, which has not triggered NEPA in the
past. For example, in Douglas County, we held NEPA did
not apply to critical habitat designation under the Endangered
32 DRAKES BAY OYSTER CO. V. JEWELL

Species Act (“ESA”) because it was “an action that
prevent[ed] human interference with the environment” and
“because the ESA furthers the goals of NEPA without
demanding an EIS.” Id. at 1505, 1506 (emphasis added).
Because removing the oyster farm is a step toward restoring
the “natural, untouched physical environment” and would
prevent subsequent human interference in Drakes Estero, id.
at 1505, the reasoning of Douglas County is persuasive here.
The Secretary’s decision to allow the permit to expire, just
like the designation under the ESA, “protects the environment
from exactly the kind of human impacts that NEPA is
designed to foreclose.” Id. at 1507.11

Drakes Bay also argued that removal of the oyster farm
implicates NEPA because it has “adverse environmental
consequences.” Although the final EIS did note that removal
might cause certain short-term harms, such as noise

11
Drakes Bay noted at oral argument that we have recognized a circuit
split on the question of “whether significant beneficial effects alone would
trigger an EIS” and concluded in dicta that requiring an EIS in those
circumstances was “consistent with the weight of circuit authority and has
the virtue of reflecting the plain language of the statute.” Humane Society
of U.S. v. Locke, 626 F.3d 1040, 1056 n.9 (9th Cir. 2010) (citing cases)
(emphasis added). The authority cited is not persuasive here, however,
because none of those cases addressed environmental conservation efforts.
The cases instead dealt with major federal construction projects to which
NEPA applied in order to evaluate the positive effects asserted. See Sierra
Club v. Froehlke, 816 F.2d 205, 211 n.3 (5th Cir. 1987) (major federal
water project of Army Corps of Engineers); Nat’l Wildlife Fed’n v. Marsh,
721 F.2d 767, 783 (11th Cir. 1983) (construction of man-made lake);
Envtl. Def. Fund v. Marsh, 651 F.2d 983, 993 (5th Cir. 1981) (major
navigational project); see also Natural Res. Def. Council, Inc. v.
Herrington, 768 F.2d 1355, 1431 (D.C. Cir. 1985) (addressing energy-
efficiency standards for household appliances and noting in dicta that
“both beneficial and adverse effects on the environment can be significant
within the meaning of NEPA”).
 DRAKES BAY OYSTER CO. V. JEWELL 33

associated with heavy machinery needed to remove Drakes
Bay’s structures, such relatively minor harms do not by
themselves “significantly affect[]” the environment in such a
way as to implicate NEPA. 42 U.S.C. § 4332(2)(C). We are
“reluctant . . . to make NEPA more of an obstructionist tactic
to prevent environmental protection than it may already have
become.” Douglas County, 48 F.3d at 1508 (internal
quotation marks omitted).

Ultimately, we need not resolve whether NEPA
compliance was required because, even if it was, the
Secretary conducted an adequate NEPA review process and
any claimed deficiencies are without consequence. The
government produced a lengthy EIS, which the Secretary
considered and found “helpful.” Although the Secretary
acknowledges that compliance with NEPA was less than
perfect, Drakes Bay is unlikely to succeed in showing that the
errors were prejudicial. Relief is available under the APA
only for “prejudicial error.” 5 U.S.C. § 706; see also Nat’l
Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S.
644, 659 (2007) (“In administrative law, as in federal civil
and criminal litigation, there is a harmless error rule.”)
(internal quotation marks and citation omitted).

Drakes Bay points to “technical” violations, specifically,
the Secretary’s failure to publish the EIS more than thirty
days before he made his decision and the Secretary’s framing
the extension denial in the form of a Decision Memorandum
rather than a Record of Decision. Drakes Bay has shown no
prejudice from these claimed violations. See Nat’l Forest
Pres. Grp. v. Butz, 485 F.2d 408, 412 (9th Cir. 1973)
(declining to reverse where NEPA timing and EIS
requirements were not strictly followed but the agency “did
consider environmental factors” and the “sterile exercise” of
34 DRAKES BAY OYSTER CO. V. JEWELL

forcing agency to reconsider “would serve no useful
purpose”); see also City of Sausalito v. O’Neill, 386 F.3d
1186, 1220 (9th Cir. 2004) (declining to reverse based on
violation of deadline for ESA biological assessment where no
harm was shown).

Drakes Bay puts considerable stock in its claims that the
final EIS was based on flawed science and that the absence of
the thirty-day comment period denied it an opportunity to
fully air its critique, specifically with regard to conclusions
regarding the “soundscape” of the estero.12 Nothing in the
record suggests that Drakes Bay was prejudiced by any
shortcomings in the final soundscape data. Drakes Bay sent
the Secretary its scientific critique before he issued his
decision. The Secretary specifically referenced that
communication and stated that he did not rely on the “data
that was asserted to be flawed.” The Secretary was well

12
Drakes Bay had submitted previous criticisms about the soundscape
analysis, and related impacts on harbor seals, in its data quality complaint
regarding the draft EIS. Although Drakes Bay did not raise the issue in its
briefs, at oral argument it objected that the Secretary did not adequately
respond to expert comments to the DEIS. In general, “on appeal,
arguments not raised by a party in its opening brief are deemed waived.”
Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). Regardless, we
conclude the response to the DEIS was adequate. The Congressionally-
mandated NAS report that criticized elements of the DEIS, including on
these subjects, was brought to the Secretary’s attention. The NAS report
emphasized that the scientific literature on Drakes Estero was simply “not
extensive” and that research on the impact of oyster farming was “even
sparser.” The take-away was that impact assessments for the soundscape
and harbor seals were “considered to have a high level of uncertainty.”
The final EIS responded to the NAS critique and also addressed the
scientific disputes. In particular, it added “a discussion on the strength of
the underlying scientific data” to address the NAS’s concerns about
scientific uncertainty.
 DRAKES BAY OYSTER CO. V. JEWELL 35

aware of the controversies on the specific topics that Drakes
Bay criticizes and his statement was unambiguous that they
did not carry weight in his decision. Drakes Bay’s suggestion
that the Secretary could not have made the informed decision
that NEPA requires without resolving all controversies about
the data is unsound. NEPA requires only that an EIS
“contain[] a reasonably thorough discussion of the significant
aspects of the probable environmental consequences.” Seattle
Audubon Soc. v. Espy, 998 F.2d 699, 703 (9th Cir. 1993)
(internal quotation marks and citation omitted). Drakes Bay
is not likely to succeed in showing that the final EIS was
inadequate, even assuming NEPA compliance was required.

4. Federal Register Notice

In light of the determination to let the permit expire, the
Secretary directed the National Park Service to “publish in
the Federal Register the notice announcing the conversion of
Drakes Estero from potential to designated wilderness.”
Drakes Bay argues that the subsequently published notice was
false because Drakes Bay’s continued commercial activities
(under the 90-day period the decision allowed to wrap up
operations) and California’s retained fishing and mineral
rights precluded wilderness status. Drakes Bay also argues
that the notice was issued in violation of formal rulemaking
regulations.

Drakes Bay lacks standing to challenge the publication of
the notice. Its claimed injury arises from the Secretary’s
decision to let its permit expire, not the designation in the
notice. Drakes Bay cannot continue its operations without a
permit, regardless of how the estero is designated. We
disagree with Drakes Bay’s position that it has standing
because “it will be necessary to vacate the unlawful notice in
36 DRAKES BAY OYSTER CO. V. JEWELL

order for [Drakes Bay’s] injuries to be ultimately redressed.”
Because Drakes Bay is not injured by the notice, it may not
challenge the notice’s purported falsity or the Secretary’s
compliance with rulemaking procedures.13

B. WEIGHING THE EQUITIES

Drakes Bay is not entitled to a preliminary injunction not
only because it failed to raise a serious question about the
Secretary’s decision, but also because it has not shown that
the balance of equities weighs in its favor. Alliance for the
Wild Rockies, 632 F.3d at 1132. The district court found that,
although Drakes Bay satisfied the irreparable harm prong of
the preliminary injunction analysis, neither the public interest
nor the equities were in its favor. When the government is a
party, these last two factors merge. Nken v. Holder, 556 U.S.
418, 435 (2009). Our review of the court’s findings is for
abuse of discretion, and we see none here.

13
To the extent that Drakes Bay argues that the Secretary’s decision was
somehow tainted by the instruction that the Park Service publish the
notice, the challenge still fails because the instruction was in accordance
with the law. The notice was not false because, as we explained above,
Drakes Estero could be designated “wilderness” despite California’s
reserved rights. Nor is the presence of temporary non-wilderness
conditions an obstacle because Park Service policy permits a wilderness
designation when “wilderness character could be . . . restored through
appropriate management actions.” In addition, although general
regulations require rulemaking for certain use terminations, 36 C.F.R.
§ 1.5(b), the more specific section of 1976 legislation provided that
conversion to wilderness would be automatic “upon publication in
the Federal Register of a notice by the Secretary of the Interior that all
uses thereon prohibited by the Wilderness Act . . . have ceased.”
90 Stat. 2692.
 DRAKES BAY OYSTER CO. V. JEWELL 37

The district court reasonably found that the public interest
does not weigh in favor of injunctive relief. The public
benefits both from the enjoyment of protected wilderness and
of local oysters, and the court found no basis upon which to
weigh these respective values. This factor does not tip to
Drakes Bay.

Recognizing that Drakes Bay bears the burden in its quest
for a preliminary injunction, the court’s consideration of other
equitable factors was also reasonable. Drakes Bay purchased
the oyster farm with full disclosure, knowing that the
reservation of use and occupancy was set to expire in 2012.
The Department repeatedly warned the company that it did
not plan to issue a new permit. Although the prospect of
closing down a business is a serious hardship, the only
reasonable expectation Drakes Bay could have had at the
outset was that such a closure was very likely, if not certain.
Closure remained a distinct possibility even after the passage
of Section 124. Drakes Bay argued to the district court that
it had “every reason to hope” for extension. But when parties
“‘anticipate[] a pro forma result’ in permitting applications,
they become ‘largely responsible for their own harm.’”
Sierra Club v. U.S. Army Corps of Eng’rs, 645 F.3d 978, 997
(8th Cir. 2011) (quoting Davis v. Mineta, 302 F.3d 1104,
1116 (10th Cir. 2002)). We see no reason to disturb the
court’s finding that the company’s “refusal to hear the
message” was an equitable factor weighing against it.

AFFIRMED.
38 DRAKES BAY OYSTER CO. V. JEWELL

WATFORD, Circuit Judge, dissenting:

The majority states that, by enacting § 124, “Congress did
nothing more than let the Secretary know his hands were not
tied.” Maj. op. at 24. I think Congress, by including the
“notwithstanding” clause in § 124, intended to do more than
that. In particular, it sought to override the Department of the
Interior’s misinterpretation of the Point Reyes Wilderness
Act, Pub. L. No. 94-544, 90 Stat. 2515 (1976).

The Department had concluded, in 2005, that the Act
barred issuance of a special use permit authorizing continued
operation of Drakes Bay Oyster Company’s oyster farm. The
Department thought Congress had “mandated” that result by
designating Drakes Estero, where the oyster farm is located,
as a “potential wilderness addition” in the Point Reyes
Wilderness Act. The Act’s legislative history makes clear,
however, that by divining such a mandate, the Department
simply misinterpreted the Act’s provisions and misconstrued
Congress’s intent. The Department’s misinterpretation of the
Point Reyes Wilderness Act prompted Congress to enact
§ 124 in 2009. In my view, by including a notwithstanding
clause in § 124, Congress attempted to supersede the
Department’s erroneous interpretation of the Act.

In the 2012 decision challenged here, the Secretary
nonetheless denied Drakes Bay’s permit request based
primarily on the very same misinterpretation of the Point
Reyes Wilderness Act that Congress thought it had
overridden. As a result, I think Drakes Bay is likely to
prevail on its claim that the Secretary’s decision is arbitrary,
capricious, or otherwise not in accordance with law. See
5 U.S.C. § 706(2)(A). Because the other preliminary
injunction factors also weigh in Drakes Bay’s favor,
 DRAKES BAY OYSTER CO. V. JEWELL 39

injunctive relief preserving the status quo should have been
granted here.

I

To explain why I think the Interior Department (and later
the Secretary) misinterpreted the Point Reyes Wilderness Act,
a fairly detailed discussion of the Act’s legislative history is
necessary.

The events leading up to passage of the Point Reyes
Wilderness Act begin in 1962, when Congress authorized
creation of the Point Reyes National Seashore and
appropriated funds for land acquisition within the Seashore’s
designated boundaries. Act of Sept. 13, 1962, Pub. L. No.
87-657, 76 Stat. 538 (1962). As part of that process, in 1965,
the State of California conveyed ownership of the submerged
lands and coastal tidelands within the Seashore’s boundaries
to the federal government. See Act of July 9, 1965, ch. 983,
§ 1, 1965 Cal. Stat. 2604, 2604. Those lands included Drakes
Estero. The conveyance reserved certain mineral and fishing
rights, which allowed the State to “prospect for, mine, and
remove [mineral] deposits from the lands,” and “reserved to
the people of the state the right to fish in the waters
underlying the lands.” Id. §§ 2–3, 1965 Cal. Stat. at 2605. At
the time of the State’s conveyance, oyster farming was
already a well-established fixture in Drakes Estero, with roots
dating back to the 1930s.

In 1973, the President recommended that Congress
preserve 10,600 acres within the Point Reyes National
Seashore as “wilderness,” under the terms of the Wilderness
Act of 1964, Pub. L. No. 88-577, § 3(c), 78 Stat. 890, 892
(1964). Members of California’s congressional delegation
40 DRAKES BAY OYSTER CO. V. JEWELL

found that recommendation woefully inadequate, and soon
thereafter introduced identical bills in the House and Senate
designating far larger areas of the Seashore as wilderness. In
the House, Congressman John Burton introduced H.R. 8002,
94th Cong. (1975); in the Senate, Senator John Tunney
introduced S. 2472, 94th Cong. (1975). H.R. 8002 is the bill
that eventually became the Point Reyes Wilderness Act.

As originally proposed, H.R. 8002 and S. 2472 would
have designated more than thirty-eight thousand acres as
wilderness. Included within that designation was Drakes
Estero, as well as most of the other submerged lands and
coastal tidelands conveyed by California in 1965. The
sponsors of H.R. 8002 and S. 2472 were well aware of the
oyster farm in Drakes Estero. They nonetheless included
Drakes Estero within the wilderness designation because they
did not view the farm’s operations as incompatible with the
area’s wilderness status. Commenting on the Senate bill,
Senator Tunney left no doubt on that score, declaring,
“Established private rights of landowners and leaseholders
will continue to be respected and protected. The existing
agricultural and aquacultural uses can continue.” Wilderness
Additions—National Park System: Hearings Before the
Subcomm. on Parks and Recreation of the S. Comm. on
Interior and Insular Affairs, 94th Cong. 271 (1976)
[hereinafter Senate Hearing].

During hearings on H.R. 8002 and S. 2472, various civic,
environmental, and conservation groups supported Drakes
Estero’s designation as wilderness. They explained in detail
why neither the State’s reserved mineral and fishing rights
nor the oyster farm precluded such a designation. No one
advocating Drakes Estero’s designation as wilderness
suggested that the oyster farm needed to be removed before
 DRAKES BAY OYSTER CO. V. JEWELL 41

the area could become wilderness. See id. at 324–33,
344–61; H.R. 7198, H.R. 8002, et al., To Designate Certain
Lands in the Point Reyes National Seashore, California as
Wilderness: Hearing Before Subcomm. on Nat’l Parks and
Recreation of the H. Comm. on Interior and Insular Affairs,
94th Cong. (1976) [hereinafter House Hearing], prepared
statements of Jim Eaton, William J. Duddleson, Ms. Raye-
Page, and Frank C. Boerger.

The comments Congress received from those who were
advocating Drakes Estero’s designation as wilderness stressed
a common theme: that the oyster farm was a beneficial pre-
existing use that should be allowed to continue
notwithstanding the area’s designation as wilderness. For
example, a representative from the Wilderness Society stated:
“Within Drakes Estero the oyster culture activity, which is
under lease, has a minimal environmental and visual
intrusion. Its continuation is permissible as a pre-existing
non-conforming use and is not a deterrent for inclusion of the
federally owned submerged lands of the Estero in
wilderness.” House Hearing, prepared statement of Ms.
Raye-Page, at 6. The Chairman of the Golden Gate National
Recreation Area Citizens’ Advisory Commission noted that
the oyster-farming operations “presently carried on within the
seashore existed prior to its establishment as a park and have
since been considered desirable by both the public and park
managers.” Senate Hearing, at 361. He therefore
recommended that specific provision be made to allow such
operations “to continue unrestrained by wilderness
designation.” Id. Others observed, echoing the comments of
Senator Tunney, that the proposed House and Senate bills
already provided for that. See House Hearing, prepared
statement of William J. Duddleson, at 3–4 (“H.R. 8002 would
allow continued use and operation of Johnson’s Oyster
42 DRAKES BAY OYSTER CO. V. JEWELL

Company at Drakes Estero, as a pre-existing non-conforming
use.”); Senate Hearing, at 357 (“S. 2472 would allow the
continued use and operation of Johnson’s Oyster Company in
Drakes Estero.”). A local state assemblyman succinctly
summed it up this way: “Finally, I believe everyone
concerned supports the continued operation of oyster farming
in Drakes Estero as a non-conforming use.” Senate Hearing,
at 356.

The view expressed by these speakers—that continued
operation of the oyster farm was fully compatible with
Drakes Estero’s designation as wilderness —was not some
wild-eyed notion. It was firmly grounded in the text of the
Wilderness Act itself. The Act generally bans commercial
enterprise within wilderness areas, but does so “subject to
existing private rights.” 16 U.S.C. § 1133(c). Drakes Bay’s
predecessor, the Johnson Oyster Company, had existing
private rights in the form of water-bottom leases issued by
California that pre-dated both the passage of the Wilderness
Act and creation of the Point Reyes National Seashore. The
Act also generally prohibits the use of motorboats within
wilderness areas, see id., but the Secretary of Agriculture may
permit continued use of motorboats when, as here, such use
has “already become established.” Id. § 1133(d)(1). To the
extent there is any ambiguity in these provisions, the Act’s
legislative history makes clear that Congress believed the new
wilderness-preservation system would not affect the
economic arrangements of business enterprises “because
existing private rights and established uses are permitted to
continue.” S. Rep. No. 88-109, at 2 (1963).

The only party opposed to designating Drakes Estero as
wilderness was the Department of the Interior. At first, the
Department took the position that none of the submerged
 DRAKES BAY OYSTER CO. V. JEWELL 43

lands and coastal tidelands conveyed by California in 1965
could be designated as wilderness, because the State’s
reserved mineral and fishing rights were “inconsistent with
wilderness.” House Hearing, letter from John Kyl, Assistant
Secretary of the Interior, at 3. When the Department’s view
came under attack by those who argued that the State’s
reserved rights were not in any way inconsistent with
wilderness, see, e.g., Senate Hearing, at 327–28, the
Department backpedaled. It proposed placing most of the
lands subject to the State’s reserved rights into a new
legislative classification—“potential wilderness addition”—
which it had developed in connection with similar wilderness
proposals. See House Hearing, at 11–12; id., letter from John
Kyl, Assistant Secretary of the Interior, at 1. That
designation was intended to encompass “lands which are
essentially of wilderness character, but retain sufficient non-
conforming structures, activities, uses or private rights so as
to preclude immediate wilderness classification.” S. Rep. No.
94-1357, at 3 (1976).

Four areas subject to the State’s reserved rights were at
issue: the coastal tidelands, Limantour Estero, Abbotts
Lagoon, and Drakes Estero. The original version of H.R.
8002 designated all four areas as wilderness, not just potential
wilderness additions. But in the spirit of compromise,
Congressman Burton, the sponsor of H.R. 8002, agreed to
amend the bill by designating those areas as potential
wilderness additions, rather than as wilderness. See House
Hearing, prepared statement of Rep. John Burton, at 2. In
doing so, he made clear that all four areas were being
designated as potential wilderness additions due to
California’s reserved mineral and fishing rights. See id. He
noted that, “[a]s ‘potential wilderness,’ these areas would be
designated as wilderness effective when the State ceeds [sic]
44 DRAKES BAY OYSTER CO. V. JEWELL

these rights to the United States.” Id. (emphasis added). As
so amended, H.R. 8002 was enacted as the Point Reyes
Wilderness Act in 1976.

Fast forward now to 2005. Shortly before Drakes Bay’s
purchase of the oyster farm closed, the Park Service reiterated
its view that, based on a legal analysis performed by the
Interior Department, no new permits authorizing oyster
farming in Drakes Estero could be issued. The Department’s
legal analysis concluded—bizarrely, given the legislative
history recounted above—that by designating Drakes Estero
as a potential wilderness addition in the Point Reyes
Wilderness Act, Congress had “mandated” elimination of the
oyster farm. The Department never identified anything in the
text of the Act to support that view; it cited only a passage
from the House Report accompanying H.R. 8002. But that
passage “is in no way anchored in the text of the statute,”
Shannon v. United States, 512 U.S. 573, 583–84 (1994), and
thus provides no support for the Department’s interpretation
of the Act.

Even taken on its own terms, however, the passage from
the House Report does not support the Department’s
interpretation. The passage states in full: “As is well
established, it is the intention that those lands and waters
designated as potential wilderness additions will be
essentially managed as wilderness, to the extent possible, with
efforts to steadily continue to remove all obstacles to the
eventual conversion of these lands and waters to wilderness
status.” H.R. Rep. No. 94-1680, at 3 (1976) (emphasis
added). But the oyster farm was not an “obstacle” to Drakes
Estero’s conversion to wilderness status, and no one in
Congress ever expressed that view. To the contrary, as
discussed above, all indications are that Congress viewed the
 DRAKES BAY OYSTER CO. V. JEWELL 45

oyster farm as a beneficial, pre-existing use whose
continuation was fully compatible with wilderness status.

II

With that background in mind, we can now turn to the
legal issue at the heart of this appeal, which is how to
construe § 124.

Everyone appears to agree that the Park Service’s
conclusion in 2005 that it was legally prohibited from
granting Drakes Bay a special use permit prompted Congress
to enact § 124. If all Congress had wanted to do was “let the
Secretary know his hands were not tied,” as the majority
asserts, § 124 could simply have stated, as it does, that “the
Secretary of the Interior is authorized to issue a special use
permit . . . .” Act of Oct. 30, 2009, Pub. L. No. 111-88,
§ 124, 123 Stat. 2904, 2932. But Congress went further and
added a notwithstanding clause, so that the statute as enacted
reads, “notwithstanding any other provision of law, the
Secretary of the Interior is authorized to issue a special use
permit . . . .” Id. (emphasis added). Our task is to determine
what effect Congress intended the notwithstanding clause to
have.

Given the historical backdrop against which § 124 was
enacted, I think Congress intended the clause to override the
Interior Department’s misinterpretation of the Point Reyes
Wilderness Act. Reading the clause in that fashion is
consistent with the way courts have typically construed
notwithstanding clauses. The Supreme Court has held that
the use of such a clause “clearly signals the drafter’s intention
that the provisions of the ‘notwithstanding’ section override
conflicting provisions of any other section.” Cisneros v.
46 DRAKES BAY OYSTER CO. V. JEWELL

Alpine Ridge Grp., 508 U.S. 10, 18 (1993). And we have said
that the basic function of such clauses is to “sweep aside” and
“supersede” any potentially conflicting laws. United States
v. Novak, 476 F.3d 1041, 1046 (9th Cir. 2007) (en banc);
Student Loan Fund of Idaho, Inc. v. U.S. Dep’t of Educ.,
272 F.3d 1155, 1166 (9th Cir. 2001). A notwithstanding
clause often targets those laws that were the “legal sticking
point” for the action Congress intends to authorize.
Miccosukee Tribe of Indians of Fla. v. U.S. Army Corps of
Eng’rs, 619 F.3d 1289, 1301 n.19 (11th Cir. 2010).

In this case, no conflicting laws actually prevented the
Secretary from issuing a permit to Drakes Bay. Continued
operation of the oyster farm is fully consistent with the
Wilderness Act, and the farm’s existence is therefore not an
“obstacle” to converting Drakes Estero to wilderness status as
directed by the Point Reyes Wilderness Act. Instead, it was
the Interior Department’s misinterpretation of the Point
Reyes Wilderness Act that proved to be the “legal sticking
point” here. I think the best reading of the notwithstanding
clause is that Congress meant to “override” (“sweep aside,”
“supersede”) that misinterpretation of the law when it enacted
§ 124. Alpine Ridge Grp., 508 U.S. at 18; Novak, 476 F.3d at
1046; Student Loan Fund, 272 F.3d at 1166.

If you accept what I have said so far, only two questions
remain. The first is whether Congress, having overridden the
Department’s misinterpretation of the Point Reyes
Wilderness Act, nonetheless authorized the Secretary to rely
on that misinterpretation as a basis for denying Drakes Bay a
permit. I cannot see any reason why we would construe
§ 124 in that fashion. Under the Administrative Procedure
Act (APA), if an agency bases its decision on a legally
erroneous interpretation of the controlling statute, its decision
 DRAKES BAY OYSTER CO. V. JEWELL 47

will be deemed arbitrary, capricious, or otherwise not in
accordance with law. See Safe Air for Everyone v. EPA,
488 F.3d 1088, 1091, 1101 (9th Cir. 2007) (involving an
erroneous interpretation of a state implementation plan that
had the force and effect of federal law). Thus, even without
the notwithstanding clause, it would make no sense to assume
that Congress authorized the Secretary to base his decision on
a misinterpretation of the Point Reyes Wilderness Act. With
the clause, adopting any such construction of § 124 would be
entirely indefensible.

The second (and admittedly closer) question is whether
the Secretary in fact based his decision on the
misinterpretation of the Act that Congress intended to
override by enacting § 124. The majority suggests that the
Secretary based his decision instead on the Interior
Department’s own policies, see Maj. op. at 20 & n.5, 27–28
n.8, but I do not think the Secretary’s written decision
denying the permit supports that view. The Secretary’s
decision states that he gave “great weight” to what he called
“the public policy inherent in the 1976 act of Congress that
identified Drakes Estero as potential wilderness.” The
Secretary read that Act as expressing Congress’s intention
that all “obstacles” to converting Drakes Estero to wilderness
status should be removed. But he erroneously deemed the
oyster farm to be such an obstacle (“DBOC’s commercial
operations are the only use preventing the conversion of
Drakes Estero to designated wilderness”), because he
erroneously assumed that the oyster farm’s continued
operation was “prohibited by the Wilderness Act.” That in
turn led him to conclude— again erroneously—that his
decision to eliminate the oyster farm “effectuate[d]”
Congress’s intent as expressed in the Point Reyes Wilderness
Act.
48 DRAKES BAY OYSTER CO. V. JEWELL

These are precisely the same errors of statutory
interpretation the Interior Department made back in 2005.
They are precisely the same errors that prompted Congress to
enact § 124 in the first place. And, in my view, they are
precisely the same errors Congress attempted to supersede by
inserting the notwithstanding clause. Contrary to the
majority’s assertion, the Secretary had no authority to rely on
this misinterpretation of “Congress’s earlier expressed goal”
because the notwithstanding clause eliminated any such
authority. See Maj. op. at 27–28 n.8.

What does the majority offer in response to this analysis?
Some hand waving, to be sure, but nothing of any substance.
Most tellingly, the majority never attempts to argue that the
Interior Department’s interpretation of the Point Reyes
Wilderness Act was correct. Nor could it make that
argument with a straight face given the Act’s clear legislative
history, which the majority never attempts to address, much
less refute. The majority thus has no explanation for
Congress’s inclusion of the notwithstanding clause in § 124
other than the one I have offered: that it was included to
override the Department’s misinterpretation of the Point
Reyes Wilderness Act. The majority claims that the clause
“has a clear function—to convey that prior legislation should
not be deemed a legal barrier” to permit issuance. See Maj.
op. at 20. But that reading of the clause supports my position
because the Secretary did treat “prior legislation”—namely,
the Point Reyes Wilderness Act—as a “legal barrier” to
permit issuance. As I have argued, that is exactly what the
notwithstanding clause was intended to prohibit.

The majority also claims that I have not accorded the
Secretary’s decision the deference it is owed under the
arbitrary and capricious standard, which requires us to give
 DRAKES BAY OYSTER CO. V. JEWELL 49

due regard to an agency’s exercise of discretion within its
sphere of expertise. See Maj. op. at 27–28 n.8. But I am not
arguing here that the Secretary’s decision must be set aside
because it reflects faulty weighing of permissible policy
factors. We would have no authority to second guess a
decision of that order. What I am saying, instead, is that
§ 124’s notwithstanding clause precluded the Secretary from
basing his decision on the very misinterpretation of the Point
Reyes Wilderness Act that Congress intended to override. A
decision will normally be deemed arbitrary and capricious if
an agency “has relied on factors which Congress has not
intended it to consider.” Motor Vehicle Mfrs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). That,
unfortunately, is just what the Secretary did.

In short, I would hold that Drakes Bay is likely to prevail
on the merits of its APA claim. The Secretary’s
misinterpretation of the Point Reyes Wilderness Act, and his
mistaken view that denying the permit request effectuated
Congress’s intent, were “fundamental” to his decision,
rendering the decision “arbitrary, capricious, or otherwise not
in accordance with law.” Safe Air for Everyone, 488 F.3d at
1101 (internal quotation marks omitted).

III

Like the majority, I will not spend much time addressing
the remaining preliminary injunction factors—irreparable
harm, balance of the equities, and the public interest. See
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20
(2008). Considered together, those factors tip in Drakes
Bay’s favor.
50 DRAKES BAY OYSTER CO. V. JEWELL

Drakes Bay will suffer irreparable injury to its business
and real-property rights if a preliminary injunction is
erroneously denied. See, e.g., Sundance Land Corp. v. Cmty.
First Fed. Sav. & Loan Ass’n, 840 F.2d 653, 661 (9th Cir.
1988); Am. Passage Media Corp. v. Cass Commc’ns, Inc.,
750 F.2d 1470, 1474 (9th Cir. 1985). The loss of “an ongoing
business representing many years of effort and the livelihood
of its [owners] constitutes irreparable harm.” Roso-Lino
Beverage Distribs., Inc. v. Coca-Cola Bottling Co., 749 F.2d
124, 125–26 (2d Cir. 1984) (per curiam).

The balance of equities favors Drakes Bay. The majority
concludes otherwise by noting that Drakes Bay knew when it
acquired the oyster farm that its permit would expire in 2012.
Maj. op. at 37. But that is not the relevant consideration.
Rather, the controlling consideration is that the harm Drakes
Bay will suffer from the erroneous denial of a preliminary
injunction far outweighs the harm the government will suffer
from an erroneous grant of such relief. See Alliance for the
Wild Rockies v. Cottrell, 632 F.3d 1127, 1137–38 (9th Cir.
2011); Scotts Co. v. United Indus. Corp., 315 F.3d 264, 284
(4th Cir. 2002); Am. Hosp. Supply Corp. v. Hosp. Prods. Ltd.,
780 F.2d 589, 593 (7th Cir. 1986); Roso-Lino, 749 F.2d at
126. The government will suffer only modest harm if oyster
farming’s eighty-year history in the Estero continues a bit
longer. But if a preliminary injunction is erroneously denied,
Drakes Bay’s business will be destroyed. That is all Drakes
Bay must show to demonstrate that the balance of equities
tips in its favor here.

Finally, the public interest favors neither side. As the
district court observed, federal judges are ill equipped to
weigh the adverse environmental consequences of denying a
preliminary injunction against the consequences of granting
 DRAKES BAY OYSTER CO. V. JEWELL 51

such relief, or the relative interests in access to Drakes Bay’s
oysters as opposed to unencumbered wilderness. It is the
equities that carry the day in this case, see Nken v. Holder,
556 U.S. 418, 435 (2009) (when the United States is a party,
equities and the public interest merge), and the equities
strongly favor Drakes Bay.