                                                                            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                            NOT FOR PUBLICATION                              AUG 17 2010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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