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Foss v. National Marine Fisheries Serv.

ELR Citation: 29 ELR 20330
Nos. 97-36097, 161 F.3d 584/(9th Cir., 11/25/1998)

The court holds that an individual who applied for an individual fishing quota (IFQ) permit for halibut and sablefish 45 days after the application deadline was not denied due process when his application was rejected. The individual argued that he was denied due process because the National Marine Fisheries Service (NMFS) deprived him of entitlement to an IFQ permit without actual notice. The court first holds that the individual has a protectible property interest in receiving the IFQ permit. The regulations establishing entitlement to the permit are mandatory in nature. The court then holds, however, that NMFS' extensive notice and review procedures were constitutionally sufficient. Although the individual has a substantial private-property interest in receiving the permit, the notification and appeal procedures were more than adequate, and the risk of erroneous deprivation of the permit was virtually nil. Furthermore, NMFS has a strong interest in maintaining its procedures, and the importance of a fixed application period cannot be underestimated. The court next holds that the permit program's fixed deadline, without regard to actual notice, is not arbitrary and capricious. The court also holds that the district court propoerly rejected the individual's equitable tolling claim based on misinformation received by an NMFS representative. The individual cannot establish that the misinformation was wrongful conduct. In addition, the individual cannot credibly argue that his choice to live in the South Pacific without informing NMFS of his new address was an extraordinary circumstance beyond his control that prevented a timely filing. Last, the court holds that the NMFS rule establishing the permit deadline does not violate the Administrative Procedure Act.

Counsel for Plaintiff
Wayne Mitchell
Harris & Hull
1420 5th Ave., Ste. 2650, Seattle, WA 98101

Counsel for Defendants
M. Alice Thurston
Environment and Natural Resources Division
U.S. Department of Justice, Washington, DC 20530
(202) 514-2000