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Foss v. National Marine Fisheries Service



In 1993, the Secretary of Commerce instituted an Individual Fishing Quota (IFQ) program in an effort to control overfishing of halibut and sablefish resources and to create “a stable market for transferable fishing rights.”[1] The plaintiff, a commercial fisherman whose permit application was rejected because it was submitted forty-five days past the regulatory deadline, brought this case against the National Marine Fisheries Service (NMFS), claiming that NMFS violated his procedural due process rights by not providing him with actual notice of the IFQ program. The plaintiff also claimed that NMFS had violated the Administrative Procedure Act (APA)[2] by arbitrarily and capriciously adopting a fixed application deadline without providing actual notice and by not providing an adequate opportunity for notice and comment before promulgating its application deadline. Finally, the plaintiff argued that the court should equitably toll the application deadline for the plaintiff because an employee of the International Pacific Halibut Commission (IPHC) had informed him that NMFS had proposed establishment of the IFQ program but that nothing was imminent, when in fact at that time the final rules establishing the IFQ program were only eleven months from final publication.

The Ninth Circuit first held that for purposes of the Due Process Clause of the Fifth Amendment, the applicant held a protectable property interest in receiving a permit. NMFS’s regulations require the agency to grant an IFQ permit to any qualified person who meets objective and explicit regulatory criteria. All applicants who have previously fished for halibut or sablefish during specified years are automatically entitled to quota shares of the allowable catch provided that they comply with the program’s procedural requirements. Finally, an IFQ permit can be sold, transferred, leased, inherited, or divided as marital property in a dissolution.

Next, the Ninth Circuit held that NMFS had not violated the applicant’s procedural due process rights. The court applied the Matthews v. Eldridge[3] balancing test and determined that NMFS’s notification and appeals processes were both constitutionally sound. Under the first factor of the test, the plaintiff clearly had a valuable private property interest in receiving the permit. Under the second factor, the risk of an erroneous deprivation of the plaintiff’s interest was low. NMFS set the application period so that it would fall during months when the commercial fishing fleet was not active. NMFS also published formal notices in the Federal Register; sent applications to thousands of potential applicants and resent applications that were returned undelivered; and publicized the IFQ program and its deadlines in industry magazines, news releases, paid advertisements, public service announcements, and information workshops. Additionally, NMFS’s appeals procedure, which allowed the applicant a thorough review of his claim, was more than adequate. Under the third factor of the Matthews balancing test, NMFS’s procedures, especially its strict application deadline, served its compelling interest in establishing a fixed pool with a stable market value. An actual notice requirement would have placed an unwarranted burden on NMFS.

The Ninth Circuit also held that NMFS had not violated the Administrative Procedure Act. NMFS had not acted arbitrarily and capriciously by adopting the 180-day regulatory application period without actual notice, because there was a rational connection between the agency’s procedures and its objectives. Additionally, NMFS provided an adequate opportunity for notice and comment when it published its proposed rule eleven months before adopting its final rules and thirteen months before publishing its application period. After the proposed rules were published, more than seventeen pages of public comments and responses were published in the Federal Register. NMFS’s rule announcing the application period complied with the APA because it was in character with the original proposed rules and was a logical outgrowth of the public comments the agency received.

Finally, NMFS properly rejected the appellant’s application because it violated the IFQ’s regulatory deadline. Equitable tolling should be sparingly used against the government and would not have been appropriate in this situation. The IPHC employee who had informed the plaintiff that the program was not imminent was at worst guilty of excusable neglect, not wrongful conduct. Neither was the plaintiff’s change of residence an extraordinary circumstance beyond his control that hindered him from submitting his application in a timely fashion.

[1] 50 C.F.R. pt. 679 (1998); see also Pacific Halibut Fisheries; Groundfish of the Gulf of Alaska; Groundfish of the Bering Sea and Aleutian Islands; Limited Access Management of Fisheries off Alaska, 57 Fed. Reg. 57,130 (Dec. 2, 1992); Pacific Halibut Fisheries; Groundfish of the Gulf of Alaska; Groundfish of the Bering Sea and Aleutian Islands; Limited Access Management of Fisheries off Alaska, 58 Fed. Reg. 59,375(Nov. 9, 1993).

[2] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994 & Supp. III 1997).

[3] Matthews v. Eldridge, 424 U.S. 319, 335 (1976).

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