Westcott v. United States Department of the Interior ( 2010 )

FILED
NOT FOR PUBLICATION AUG 17 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DANIEL H. WESTCOTT, Jr., No. 06-35451
Plaintiff - Appellant, D.C. Nos. CV-03-00009-J-JWS
CV-03-00010-JWS
v.
UNITED STATES DEPARTMENT OF MEMORANDUM *
THE INTERIOR, National Park Service,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Argued and Submitted July 28, 2010
Anchorage, Alaska
Before: SCHROEDER, O’SCANNLAIN and CLIFTON, Circuit Judges.
Plaintiff-Appellant Daniel Westcott appeals the district court’s entry of
summary judgment in favor of Defendant-Appellee National Park Service (“NPS”)
in Westcott’s action under the Administrative Procedure Act (“APA”) challenging
the NPS’s distribution of funds as part of the Glacier Bay Commercial Fishing
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Compensation Program. See Pub. L. No. 106-31, § 501(b), 113 Stat. 57, 72-73
(1999) (codified at 16 U.S.C. § 410hh-4 note). Westcott contends that he should
have received over $256,000 based on the original estimates in the compensation
plan of the amount of funding to be allocated to Dungeness crab crew members, as
determined by an estimate of the number of claims that would be submitted in this
category. The $15,000 he received represented his proportional share of the total
amount of funds allocated to his category after all claims had been submitted. It in
fact roughly equaled the total amount he had earned in the three seasons he worked
on his parents’ Dungeness crab fishing boat.
The district court found that the NPS’s reallocation of funds did not require
the State of Alaska’s additional concurrence. This factual finding is supported by
the record and is not clearly erroneous. The record indeed reflects the State did not
object to that allocation.
The NPS did not violate the APA when it reallocated funds within the
compensation plan without first providing notice and an opportunity for public
comment. There was no substantive rulemaking requiring such procedures. The
allocation of funds was an interpretive rule. See 5 U.S.C. § 553(b)(3)(A); Reno-
Sparks Indian Colony v. EPA, 336 F.3d 899, 909 (9th Cir. 2003).
AFFIRMED.
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