[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]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.
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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. 
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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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
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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)).
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 hookgear 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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Frontier argues that the NMFS did not follow its own

appeal procedure2 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
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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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
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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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.
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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.