This сase calls upon us to decide whether an applicant for a federal fishing quota permit has a cognizable procedural due process claim. Appellant Richard Foss filed his application 45 days late and the National Marine Fisheries Service (“NMFS”) denied the application as untimely. Foss claims that the denial violated his procedural due process rights and also challenges the denial on other grounds. The district court held that Foss had no property or liberty interest in the permit and hence did not have a due process claim, rejected his other claims, and granted summary judgment against him. We disagree with the district court’s analysis of the due process issue. The fishing quota permit was a regulatory entitlement, not an abstract gleam in Foss’s eye or a unilateral expectation. NMFS had no discretion to deny Foss’s application, assuming he met the objective regulatory requirements. Under long-standing Ninth Circuit authority, we hold that for purposes of procedural due process, Foss had a protectible property interest in receiving a guaranteed fishing quota permit. Nonetheless, NMFS’s procedures were “constitutionally sufficient” and NMFS proрerly denied Foss’s application. Mathews v. Eldridge,
BACKGROUND
The Individual Fishing Quota (“IFQ”) Program
Management of fishery resources presents difficult and competing choices. In an effort “to promote the conservation and management of halibut and sablefish resources,” in 1993 the Secretary of Commerce adopted regulations to limit access to sablefish and halibut fisheries in the waters off of Alаska.
The IFQ program works as follows: NMFS initiаlly divided the allowable catch of halibut and sablefish among holders of quota shares (“QS”). Eligibility for QS depended solely on the applicant’s
The regulations are mandatory and NMFS has no discretion to reject applicants who meet the well-delineated statutory criteria for an IFQ permit. The only criteria for qualification are objective: The Regional Administrator of NMFS is required to grant an IFQ permit to any qualified person who made legal landings of halibut or sаblefish during the qualifying years. See 50 C.F.R. § 679.40(a)(1) (“The Regional Administrator shall initially assign to qualified persons” an allocation of QS) (emphasis added); see also 50 C.F.R. § 679.40(b) (“The Regional Administrator shall assign halibut or sablefish IFQs to each person holding unrestricted QS for halibut or sablefish ....”) (emphasis added); 50 C.F.R. § 679.40(a)(8) (“Uncontested data in applications will be approved by the Regional Administrator. ■ Based on these data, the Regional Administrator will calculate each applicant’s initial halibut and sablefish QS ----”) (emphasis added); 50 C.F.R. § 679.40(c) (“The annual allоcation of IFQ to any person ... will be equal to” a fixed calculation).
The final regulations required applications to be submitted to NMFS between January 17, 1994 and July 15, 1994. 59 Fed.Reg. 701, 702 (1994). NMFS went to great lengths to ensure that potential applicants were aware of this new and controversial program. In addition to formal notice in the Federal Register, NMFS sent applications to the thousands of fishermen in its database, sometimes (as in Foss’s case) resending applications that were returned undelivered. NMFS also publicized the application period in industry magazines, news releases, paid advertisements, public service announcements and information workshops in Alaska and Washington.
Appellant Foss
Foss, a long time commercial fisherman, had been aware since the early 1980s of the movement to establish a limited access program. In 1988, Foss quit fishing for halibut and sablefish off of Alaska, and shifted his focus to tuna fishing in the South Pacific. He returned to the United States for brief periods in the summer and fall of 1989 and the summer of 1990 and then returned to tuna fishing in Fiji and off of the South American coast. In December 1992, he contacted the International Pacific Halibut Commission (“IPHC”)
Foss claims he did not hear anything about the proposed program or the deadlinеs during this time frame because he was tuna fishing in the North and South Pacific. As part of its effort to provide individual notice to all potential applicants, NMFS sent two applications to Foss at the most recent address listed in its records, the residence where Foss previously lived with his then wife. FoSs did not receive the applications, nor did he see the Federal Register regulations or the advertisements and announcements circulated by NMFS in various Washington and Alaska media. Although he was on land from April 1992 to November 1993 and between late April and late May 1994, Foss did not again contact the IPHC until August 2, 1994, approximately two weeks after the July 15, 1994 deadline. NMFS received Foss’s application on August 30, 1994 (45 days after the deadline) and rejected it as untimely.
I. Procedural Due Process Claim
Foss argues that he was denied procedural duе process because NMFS deprived him of entitlement to an IFQ permit without actual notice. We disagree. Foss’s procedural due process claim hinges on proof of two elements: (1) a protectible liberty or property interest in obtaining the permit; and (2) a denial of adequate procedural protections. See Board of Regents v. Roth,
A. Property Interest
The threshold question is whether Foss has a constitutionally protectible property interest in acquiring an IFQ permit, ie., “a legitimate claim of entitlement” as opposed to a “unilateral expectation” or an “abstract need or desire for it.” Roth,
The Ninth Circuit has long held that applicants have a propеrty interest protectible under the Due Process Clause where the regulations establishing entitlement to the benefit are, as here, mandatory in nature. For example, in Griffeth v. Detrich,
‘[Property interests] are creаted and then-dimensions are defined by existing rules or understandings that stem from an independent source such as state law rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.’ ... Here the authorizing statute also uses mandatory lan-guage____ [The statute] coupled with the implementing regulations of the county creates a legitimate claim of entitlement and expectancy of benefits in persons who claim to meet the eligibility requirements.
Id. at 120-121 (quoting Roth,
The district court erred in holding that Foss had no property interest in his IFQ permit, citing Parravano v. Babbitt,
Having found that Foss has a property interest, we next turn to the Supreme Court’s procedural due process balancing test set out in Mathews. To determine whether Foss received all the process that he was “due,” the court must weigh (1) Foss’s private property interest, (2) the risk of an erroneous deprivation of such interest through the procedures used, as well as the value of additional safeguards, and (3) the Government’s interest in maintaining its procedures, including the burdens of additional procedural requirements.
Foss has a substantial private property interest in receiving the IFQ permit. The parties do not dispute that Foss’s IFQ permit would be worth approximately $850,000. Without the IFQ permit, Foss is foreclosed from halibut and sablefish fishing in the Alaska waters (absent purchase from another permit holder) and could not sell or transfer this valuable right.
Nevertheless, Foss’s due process claim — a bare assertion that “actual noticе should be required before the individual’s right to issuance [of an IFQ permit] can be foreclosed”— fails upon analysis of the other two Mathews factors. The notification and appeal procedures were more than adequate and the risk of erroneous deprivation of the permit was virtually nil.
Undoubtedly recognizing that not everyone reads the Federal Register on a daily basis, NMFS went the extra mile to provide extensive notice. NMFS expressly considered (1) the difficulty of providing notice to thousands of potential applicants; (2) the need to expand notice beyond the Federal Register; (3) the fact that many potential applicants, like Foss, are away at sea for long periods of time; and (4) the need to tailor the notice and deadline requirements to thе specific circumstances of the fishing industry. Before adopting the final regulations, NMFS also specifically responded to concerns about the application period and provision of notice:
Comment 51: The application for an initial allocation of QS should be announced in industry publications in addition to the Federal Register. Federal Register publications are thе most cumbersome and confusing forms of communication on earth. In addition, a 180-day application period may not be long enough if it coincides with the primary fishing period of April through September.
Response: Although official notice of the QS application period will be given in the Federal Register, [the National Oceanic and Atmospheric Administration] will alert the fishing industry through more widely rеad publications and news announcements. In addition, NOAA will schedule the application period, at least in part, during fall or winter months when most of the fixed gear fishing fleet is not active.
58 Fed.Reg. at 59,392.
NMFS set the application period so that it would fall in part during months when the fleet was not active and undertook substantial efforts to provide the already-described notice alternatives to the Federal Register. The value of the “additional safeguard of actual notice” suggested by Foss is minimal. By Foss’s own estimate, so far only five applicants (including Foss) have claimed that they did not receive actual notice. Foss also took advantage of the appeal process set out in 50 C.F.R. § 679.43. The appeals officer reviewed Foss’s claim and his extensive submission in a careful and thoughtful dеcision. All of these facts demonstrate the low risk of an erroneous deprivation of an interest in obtaining an IFQ permit.
Finally, we examine the third Mathews factor, the government’s interest. NMFS has a strong interest in maintaining its procedures and we should lean heavily on the agency’s expertise in fashioning its application process. An application deadline serves the twin goals of fairness and predictability. The importаnce of a fixed application period cannot be underestimated. Readjusting the quota pool for untimely applications where applicants claimed to lack
Accordingly, Foss received all the notice and process that was due. He appears to look at the Mathews inquiry as an endgame — essentially arguing that because he was ultimately denied a permit, the procedures are inherently inadequate — rather than as a review of the entire complement of procedural protections. “The essence of duе process is the requirement that a person in jeopardy of serious loss (be given) notice of the case against him and an opportunity to meet it.... All that is necessary is that the procedures be tailored ... to insure that [claimants] are given a meaningful opportunity to present their case.” Mathews,
II. Arbitrary and Capricious Claim
'We rejеct Foss’s claim that only an actual notice rule would suffice and that the regulation adopting a fixed deadline, without regard to actual notice, is arbitrary and capricious. This court’s review of the notice rule is narrow:
[O]ur only function is to determine whether the Secretary ‘has considered the relevant factors and articulated a rational connection between the faсts found and the choice made.’ ... We cannot substitute our judgment of what might be a better regulatory scheme, or overturn a regulation because we disagree with it....
Alliance Against IFQs,
III. Equitable Tolling Claim
The district court properly rejected Foss’s equitable tolling claim. Foss argues that the deadline should be equitably tolled because he was misled by an IPHC representative who told him in December 1992 that an IFQ program had been proposed but nothing was “imminent.” Equitable tolling applies against the government “only sparingly,” and does not extend to Foss’s situation which “is at best a garden variety claim of excusable neglеct.” Irwin v. Department of Veterans Affairs,
IV. Administrative Procedures Act (“APA”) Claim
Foss’s final argument — that the rule establishing a July 15, 1994 deadline violated the Administrative Procedures Act (“APA”), specifically 5 U.S.C. § 553, because it was promulgated without notice or comment — finds no support in the record. Advance notice of the rule could hardly be clearer. The proposed rules published in the Federal Register provided that a “QS ■application period of no less than 180 days would be announced” and that “[c]ompleted QS applications received by the Regional Director before the end of the application period would be acknowlеdged.”
AFFIRMED.
Notes
.Authority to regulate these fisheries is found in the Magnuson Fishery Conservation and Management Act ("Magnuson Act”), 16 U.S.C. §§ 1801-1883, and the Northern Pacific Halibut Act of 1982 ("Halibut Act”), 16 U.S.C. §§ 773-773k.
. 50 C.F.R. Part 679 is a recodification of former Parts 671, 672, 673, 675, 676 and 677, which were adopted unchanged as far as relevаnt to this appeal. 61 Fed.Reg. 31,230 (1996).
. The applicant was required to be a "qualified person,” which was defined according to vessel lease or ownership. 50 C.F.R. § 679.40(a)(2).
. The IPHC is ail international body which has "primary authority for managing” the domestic halibut fishery in and off of Alaska. The Halibut Act authorizes NMFS to develop regulations that are "in addition to, but not in conflict with” regulations adopted by the IPHC. 16 U.S.C. § 773(a), (b); 57 Fed.Reg. at 57,131.
. Similarly, it was not arbitrary and capricious for NMFS to decline Foss's "alternative” of not enforcing the deadline against those who lacked actual notice. See Alliance Against IFQs,