Frontier Fishing Corp. v. National Marine Fisheries Service , 2 F. App'x 64 ( 2001 )

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-2244
FRONTIER FISHING CORPORATION,
Plaintiff, Appellant,
v.
NATIONAL MARINE FISHERIES SERVICE,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Lynch, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lipez, Circuit Judge.
Jeffrey T. Angley, with whom Phillips & Angley was on brief,
for appellant.
John A. Bryson, Attorney, with whom Lois J. Schiffer,
Assistant Attorney General, Charles R. Shockey, Attorney, and
Gene S. Martin, Jr., Office of Regional Counsel, National
Oceanographic and Atmospheric Administration, were on brief, for
appellee.
March 16, 2001
BOWNES, Senior Circuit Judge. The plaintiff, Frontier
Fishing Corporation ("Frontier"), brought suit in the United
States District Court for the District of Massachusetts claiming
that the action of the defendant, the National Marine Fisheries
Service ("NMFS"), was arbitrary, capricious, an abuse of
discretion, otherwise not in accordance with law, or without
observance of its own procedure. The district court granted
summary judgment in favor of the defendant and the plaintiff
appeals. For the reasons set forth below, we find that the
plaintiff's claim is without merit and we affirm the district
court.
I. BACKGROUND
Frontier is the owner of the fishing vessel F/V
Settler. The NMFS issues and regulates fishing permits pursuant
to the Magnuson-Stevens Fishery Conservation and Management Act,
16 U.S.C. § 1801. The NMFS issued two permits to Frontier for
the F/V Settler: a full-time limited access scallop permit and
a full-time multispecies fleet-days-at-sea fishing permit.
These permits were renewed annually from 1994 until 1997.
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On May 28, 1997, Patricia A. Kurkul of the NMFS wrote
a letter to Frontier explaining that the F/V Settler's
"multispecies limited access permit was issued in error" because
of amendments made to the NMFS' regulations which effectively
precluded the F/V Settler from holding dual permits. The NMFS
offered Frontier the option of choosing one of the two permits.
The letter indicated that if Frontier did not make a choice, the
NMFS would cancel the multispecies limited access permit.
On August 8, 1997, Frontier wrote a letter to Dr.
Andrew Rosenberg, Regional Director of the NMFS, requesting
reconsideration of the agency's determination that the issuance
of both permits was an error. On September 9, 1997, Kurkul
responded to Frontier's letter to Rosenberg. In essence, this
letter informed Frontier that the agency's decision to terminate
one of the permits would stand, but Frontier would have the
right to present its claim to a hearing officer for further
review. The letter concluded: "A NMFS Hearing Officer will
contact you so that you may present evidence that your vessel
used a scallop dredge and a multispecies otter trawl in 1988,
1989 or 1990."1
1 This would enable the F/V Settler to hold both permits
simultaneously because it would be classified as a "combination
vessel." See 50 C.F.R. § 648.2 (1997).
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Joel G. MacDonald, Regional Counsel for the NMFS, was
selected to serve as the hearing officer. Frontier made a
written submission to him and submitted documentary evidence.
On January 12, 1998, MacDonald prepared a written recommendation
for the regional director which was favorable to Frontier: he
recommended that the F/V Settler be given a dual permit, finding
that it met the criteria for a combination vessel permit.
Regional Director Rosenberg noted on MacDonald's recommendation
that he did not concur. Frontier did not receive a copy of
MacDonald's recommendation.
On March 23, 1998, Rosenberg wrote to Frontier
indicating that he had not yet reached a final decision, but
that he did not expect to grant its request. Rosenberg offered
various other options to Frontier and indicated that Frontier
had thirty days to select one of the options. Frontier,
however, persisted that it be granted combination status. On
May 6, 1998, Rosenberg issued his final decision. He denied
Frontier's appeal, and determined that the F/V Settler did not
meet the criteria for a combination vessel permit. He found
that the vessel was eligible only for a full-time scallop
permit.
Frontier sought judicial review in the district court,
alleging that the NMFS did not follow its own appeal procedure
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and that the issuance of only one permit "was arbitrary,
capricious, an abuse of discretion and otherwise not in
accordance with the law." Both parties moved for summary
judgment. The district court found that "Frontier's claim that
NMFS failed to comply substantially with [its] procedure for
review of permit denials is without merit." (Footnote omitted).
In a well-reasoned decision, the district court entered judgment
in favor of the NMFS, holding that "[n]o substantial error in
the process is apparent, and there is consequently no basis for
overturning the agency's lawfully arrived at determination."
Frontier now appeals the district court's decision, and persists
with its claim that the agency failed to follow its own appeal
procedure.
II. DISCUSSION
We review the grant of summary judgment de novo.
Assoc. Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 109 (1st
Cir. 1997). In reviewing an agency's determination, we apply
the same standards as the district court. Id. We give great
deference to the agency and cannot substitute our judgment for
that of the agency, even if we disagree. Id. In fact, we can
only set aside an agency's action if it is "arbitrary,
capricious, or otherwise contrary to law." Id. (citing 5 U.S.C.
§ 706(2)(A)-(D)).
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Frontier argues that the NMFS did not follow its own
appeal procedure 2 and, therefore, its action was arbitrary,
capricious and contrary to law. The appeal procedure is set
forth in 50 C.F.R. § 648.4(a)(1)(H)(2) (1997):
The Regional Administrator will appoint a
designee who will make the initial decision
on the appeal. The appellant may request
review of the initial decision by the
Regional Administrator by so requesting in
writing within 30 days of the notice of the
initial decision. If the appellant does not
request a review of the initial decision
within 30 days, the initial decision shall
become the final administrative action of
the Department of Commerce. Such review
will be conducted by a hearing officer
appointed by the Regional Administrator.
The hearing officer shall make findings and
a recommendation to the Regional
Administrator [whi]ch shall be advisory
2 The right to appeal the denial of a permit is created
by 50 C.F.R. § 648.4(a)(1)(H)(1) (1997):
Any applicant eligible to apply for an
initial limited access multispecies hook-
gear permit who is denied such permit may
appeal the denial to the Regional
Administrator within 30 days of the notice
of denial. Any such appeal must be based on
one or more of the following grounds, must
be in writing, and must state the grounds
for the appeal:
(i) The information used by the
Regional Administrator was based on mistaken
or incorrect data.
(ii) The applicant was prevented by
circumstances beyond his/her control from
meeting relevant criteria.
(iii) The applicant has new or
additional information.
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only. Upon receiving the findings and a
recommendation, the Regional Administrator
will issue a final decision on the appeal.
The Regional Administrator's decision is the
final administrative action of the
Department of Commerce.
Frontier claims that the NMFS failed to substantially comply
with this procedure. This argument is without merit.
Frontier mischaracterizes the "initial decision" as the
recommendation of the hearing officer and argues that because
Frontier was satisfied with that "decision," and did not appeal
it further, that "decision" became the final agency action.
Frontier makes much of the fact that it never received a copy of
MacDonald's report. Frontier, however, was not entitled to it.
The recommendation of MacDonald was an internal memorandum
written to Regional Director Rosenberg. In fact, the NMFS
denied Frontier's request for that document on the grounds that
it fell within an exemption to the Freedom of Information Act
("FOIA"). See 5 U.S.C. § 552(b)(5).3 MacDonald, as the
3 Frontier, pursuant to the FOIA, requested "[a]ll
decisions and/or recommendations made by Joel MacDonald,
Esquire, hearing officer for the National Marine Fisheries
Service related to the appeal by the Frontier Fishing
Corporation of the limited access multispecies and scallop
combination status for the F/V Settler." The NMFS denied the
request by letter to plaintiff's counsel, and stated, in
pertinent part:
This information is protected from
disclosure under 5 U.S.C. § 552(b)(5). This
FOIA exemption protects predecisional
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appointed hearing officer, did exactly what was specified by the
regulation: he made "findings and a recommendation to the
Regional Administrator." This recommendation was advisory only;
it was not a "decision" of the agency.
A proper characterization of the appeal procedure used
by the agency is as follows: The sequence of events began on May
28, 1997, when Kurkal, on behalf of the NMFS, wrote a letter to
Frontier indicating that the F/V Settler's "multispecies limited
access permit was issued in error" and it could no longer hold
two permits simultaneously. The NMFS invited Frontier to choose
which permit (scallop or multispecies) it wished to hold. The
letter concluded that if no selection was made within thirty
days, the NMFS would cancel the limited access multispecies
permit. This letter, in effect, served as the denial of the
dual permits.
documents that are part of the deliberative
process. This deliberative process
privilege is intended to prevent injury to
the quality of agency decision making. Mr.
MacDonald's recommendation to the Regional
Administrator regarding the disposition of
the appeal involving the F/V Settler was
made as part of the deliberative process
outlined in 50 C.F.R. § 648.4 and was
formulated prior to the agency's decision on
this appeal. Thus, it falls within this
exemption.
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Frontier was unsatisfied with this "denial" of the dual
permits and initiated the appeal process. Frontier wrote a
letter to the Regional Director of the NMFS on August 8, 1997,
and requested review of that decision. Kurkal, on behalf of the
NMFS, responded to Frontier. This was the "initial decision"
made by a "designee" of the Regional Administrator. The letter
begins: "This responds to your recent letter to Dr. Rosenberg
[the Regional Administrator] concerning your limited access
multispecies permit." The logical inference is that Kurkul was
writing as the "designee" of the Regional Administrator. She
indicated that she reviewed the record, but reached the same
result. This "initial decision on the appeal" made by a
"designee" of the Regional Administrator concluded: "A NMFS
Hearing Officer will contact you so that you may present
evidence [to bolster your claim]."
Following the language of the regulations, the appeal
process continued: Frontier requested review of the initial
decision of the agency. Review was conducted by hearing officer
MacDonald. He made findings and a recommendation to the
Regional Administrator. The memorandum was advisory only and
could not be characterized as a "decision" of the agency.
Upon receiving the findings and recommendation of the
hearing officer, the Regional Administrator issued a final
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decision on the appeal. He disagreed with the recommendation of
the hearing officer, as was within his discretion, and denied
Frontier's appeal. This decision became the final
administrative action of the Department of Commerce.
III. CONCLUSION
We hold that the NMFS did follow its own appeal
procedure. We find no error in the process used by the NMFS and
hold that its decision was in accordance with law, and was not
arbitrary, capricious, or an abuse of discretion. Therefore, we
find no reason to set aside the agency's decision and hold that
the district court's decision is affirmed. No costs to either
party.
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