The Public’s Property Rights in Drakes Bay

There’s a risk, when coming to an issue that’s been festering for years, of missing some of the nuance that make the issue so difficult. But I’m finding that the Drakes Bay Oyster Co. dispute is much clearer without any extra local-colorful details. When the 9th Circuit denied an injunction this week, it seemed to me to be the most obvious result to the most simple of problems.

At the very basic, the case it most understandable. In 1972 the United States purchased the site for permanent protection, which was conferred as part of the Point Reyes Wilderness Act in 1976. To ease the transition, the U.S. granted a 40-year lease to the ongoing oyster company business. In 2004 — more than 32 years into a 40 year lease — a new owner takes over, undoubtedly aware of the pending expiration date.

As the Court describes it:

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 its predecessor owner was set to expire just seven years later, in 2012.

Now, a whole lot of other stuff happened, and a lot of other law was invoked (dealt with by the majority opinion in 37 pdf pages), but none of it changed the fundamental legal nature of the problem. When the U.S. declined to renew the lease, at the discretion of the Secretary of the Interior, consistent with a wilderness designation by Congress in 1976, it shouldn’t have been to anyone’s surprise.  And certainly not to anyone’s property rights expectation. As a general rule of property, leases are up when leases are up.

Cross-posted at Coastal Conservation Network.