Summary
In Starbound, the Pacific Council was faced with a sudden influx of new fishing vessels which threatened to dismantle the privately established cooperative, stable framework into a tragedy of the commons race for fish. Starbound, at *6.
Summary of this case from State v. CrabtreeOpinion
CASE NO. C07-0910-JCC.
April 15, 2008
ORDER
This matter comes before the Court on the parties' cross motions for summary judgment. (Dkt. Nos. 14 17.) Having considered the briefing and administrative record, and determining that oral argument is unnecessary, the Court hereby finds and rules as follows.
I. BACKGROUND
Plaintiff Starbound, LLC owns and operates the fishing vessel F/V STARBOUND. In an effort to diversify and expand its operations, Plaintiff acted through its wholly owned subsidiary, West Coast Fishery Investments, LLC, to acquire limited entry permits that would allow it to participate in the 2007 season of the Pacific Whiting Fishery ("Fishery") off the coast of Washington and Oregon. (Pls.' Mot. 1-2 (Dkt. No. 14).) Just prior to the onset of the fishing season on May 15, 2007, however, Defendants promulgated a temporary emergency rule barring participation by any "vessel without a history of sector-specific participation in the whiting fishery prior to January 1, 2007 . . ." (Admin. R. B.1 at 1.) This had the effect of barring Plaintiffs from the Fishery for the 2007 season, and serves as the basis for this action. To better understand the legal issues in dispute, a brief description of the underlying regulatory framework is appropriate.
The Department of Commerce regulates the Fishery pursuant to the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801- 1883 ("Act"), which has the stated purpose of taking "immediate action to conserve and manage the fishery resources found off the coasts of the United States . . ." 16 U.S.C. § 1801(b). Under this statutory mandate, the National Marine Fisheries Service ("NMFS"), an agency of the Department of Commerce, appoints members of eight regional fishery management councils that are responsible for drafting fishery management plans ("FMPs") designed to "achieve and maintain, on a continuing basis, the optimum yield from each fishery." (Defs.' Mot. 3-4 (Dkt. No. 17); 16 U.S.C. § 1801(4).) The regional fishery councils also recommend regulations to Defendant Secretary of Commerce, who reviews FMPs, recommended regulations and proposed emergency rules for consistency with ten "[n]ational standards for fishery conservation and management." See 16 U.S.C. § 1851(a).
The regional council at issue in this case is the Pacific Fishery Management Council ("Council"), which is "authorized by the Magnuson Act to prepare FMPs for the fisheries off the coasts of Washington, Oregon, and California." (Defs.' Mot. 6 (Dkt. No. 17); 16 U.S.C. § 1852(a)(1)(F).) The Secretary of Commerce first approved the Council's Pacific Coast Groundfish FMP in 1982, thereby attempting to regulate the fishing of over 90 species of groundfish off the Pacific coast, one of which is Pacific whiting. (Admin. R. B.1 at 14.) In order to carry out the purposes of the Act, which include rebuilding overfished stocks as well as maintaining ideal populations, the Council conducts an annual stock assessment, which is used to determine an optimum yield, and then allocated to three different fishing sectors within the Fishery: the shoreside sector, the mothership sector, and the catcher/processor sector. (Id. at 31.) The rationale for allocating portions of the optimum yield to these three sectors is to reduce the incentive for a "derby-style race for fish" that might upset the desired balance of fish species. See 72 Fed. Reg. 27759. Furthermore, preventing the disproportionate depletion of fish is not simply a matter of setting quotas for species specifically targeted by fishing vessels. Because fishing nets indiscriminately capture both targeted and non-targeted species of fish, the latter of which are known as "bycatch," the Council also establishes bycatch limits in the Fishery for three particular overfished species. 50 C.F.R. § 660.373(b)(4). If bycatch limits are reached in any one sector of the Fishery, the entire fishery may be closed. (Id.)
The shoreside sector includes vessels, usually fishing in relatively shallow water close to shore, that deliver to land-based processors. The mothership sector refers to catcher vessels that deliver their fish to "motherships," which are "essentially floating processing platforms" off-shore. Finally, the catcher/processor sector refers to vessels that have the capacity to both catch and then process fish onboard. (Admin. R. B.1 at 31; Pls.' Mot. 3-4 (Dkt. No. 14).)
Prior to the promulgation of the emergency rule at issue in this case, any vessel owner with a groundfish limited entry permit ("LEP") registered to his or her vessel could participate in the Fishery as long as it had the appropriate trawl gear and size endorsements. See 50 C.F.R. §§ 660.333-660.334. Accordingly, Plaintiffs purchased and "aggregated" several permits, as authorized by the Regulations, allowing them to operate the F/V STARBOUND in the catcher/processor sector of the Fishery. (Pls.' Mot. 6 (Dkt. No. 14).) Leading up to the time in question, the catcher/processor sector of the Fishery was distinguished by a highly organized system of communication and cooperation among its participants, all of whom were members of a private, voluntary business arrangement known as the Pacific Whiting Conservation Cooperative ("PWCC"). (Admin. R. B.1 at 4-5.) By coordinating their efforts and voluntarily agreeing on how to divide the catcher/processor allocation, the PWCC has been able to achieve a level of stability in that sector that both parties readily acknowledge.
In response to what it perceived were changed circumstances threatening stability in the Fishery leading into the 2007 season, the Council recommended that the NMFS implement an emergency rule that would severely limit the participation of American Fisheries Act-qualified vessels in the Fishery. (Admin. R. B.1 at 2.) Several parties opposed this proposed rule, including the State of Washington Department of Fish and Wildlife, and on January 11, 2007, the NMFS declined to adopt the recommendation. ( Id. at 3; Pls.' Mot. 9 (Dkt. No. 14).) In its March 2007 meeting, however, the Council reconsidered the issue of an emergency rule based on the belief that certain recent developments could lead to a "race for fish" in the Fishery during the 2007 season. (Admin. R. B.1 at 3.) Consequently, it recommended an emergency rule that would "prohibit participation in either the shorebased, catcher/processor, and mothership sectors of the fishery by any vessel that has no sector-specific history of participation prior to January 1, 2007." (Id.) This time, representatives from all three affected states, including the State of Washington official who opposed the prior iteration of the rule, supported the emergency rule. (Admin. R. J-3, 95:10-98:19, 91:16-94:3, 101:15-103:11.) The NMFS approved the rule and submitted it for publication in the Federal Register on May 11, 2007. See 72 Fed. Reg. 27764. Defendants viewed this action as a stopgap measure to maintain stability in the Fishery until they could finalize an amendment to the FMP for the long-term. (Id. at 27761.) Finally, in order to mitigate the economic impact of the rule on those, like Plaintiffs, who had invested in permits only to be prohibited from participation in the 2007 season, the rule allowed for the "disaggregation" and transfer of such permits, a practice not previously allowed under the regulations. (Id.)
The F/V STARBOUND is authorized under the American Fisheries Act to participate in the Bering Sea and Aleutian Island pollock fishery as a catcher/processor. (Defs.' Mot. 8 n. 3 (Dkt. No. 17).)
On June 12, 2007, Plaintiffs filed this suit claiming that the rule is "arbitrary and capricious," and that use of the emergency rule procedure was inappropriate under the circumstances. In its prayer for relief, Plaintiffs ask that the Court declare the rule invalid, and declare:
[B]ut for Defendants' wrongful adoption of the Rule, Plaintiffs would have participated in the 2007 Fishery and that, for the purposes of any future related FMP amendment or rationalization plan, Plaintiffs' [sic] are entitled to the benefit of the fishing history they would have accrued, had they been allowed to participate in the 2007 Pacific whiting fishery
(Compl. (Dkt. No. 1 at 22).)
II. DISCUSSION
A. Standard of Review
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). There is no genuine issue for trial unless there is sufficient evidence to support a jury verdict in favor of the nonmoving party. Anderson, 477 U.S. at 250. The moving party has the burden of demonstrating the absence of a genuine issue of material fact. (Id. at 257.) Furthermore, the Court must draw all reasonable inferences in favor of the nonmoving party. See F.D.I.C. v. O'Melveny Myers, 969 F.2d 744, 747 (9th Cir. 1992), rev'd on other grounds, 512 U.S. 79 (1994).
In addition to demonstrating that there are no questions of material fact, the moving party must also show that it is entitled to judgment as a matter of law. Smith v. Univ. of Washington Law School, 233 F.3d 1188, 1193 (9th Cir. 2000). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim for which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The Magnuson-Stevens Fishery Conservation and Management Act provides that "[r]egulations promulgated by the Secretary . . . shall be subject to judicial review," and if the petition is filed within the applicable 30 day window, "the appropriate court shall only set aside any such regulation or action on a ground specified in section 706(2)(A), (B), (C), or (D) of such Title." 16 U.S.C. § 1855(f)(1). Turning to the relevant provision of the Administrative Procedures Act, a court may "hold unlawful and set aside agency action, findings, and conclusions found to be — (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . ." 5 U.S.C. § 706(2)(A). Under this test, a court must simply determine "whether the Secretary 'has considered the relevant factors and articulated a rational connection between the facts found and the choice made.'" Alliance Against IFQs v. Brown, 84 F.3d 343, 345 (9th Cir. 1996) (quoting Washington Crab Producers, Inc. v. Mosbacher, 924 F.2d 1438, 1440-41 (9th Cir. 1990)). Thus, a court "cannot substitute [its] judgment of what might be a better regulatory scheme, or overturn a regulation because [it] disagree[s] with it, if the Secretary's reasons for adopting it were not arbitrary and capricious." Alliance Against IFQs, 84 F.3d at 345.
B. Over-length Briefing
Defendants' Reply brief (Dkt. No. 24) for its Cross Motion for Summary Judgment substantially exceeds the twelve page limit set forth in the local rules. See LOCAL CR 7(e)(3). Plaintiffs move to strike the Reply, or in the alternative, the portion of the brief exceeding the permissible limit. (Pls.' Mot. 1-2 (Dkt. No. 25).) In response, Defendants have filed a Motion for Leave to File Over-Length Brief Out of Time, arguing that good cause exists for its deviation from the Rule, and observing that Plaintiffs have not followed the proper procedure for a motion to strike, as set forth in Local Civil Rule 7(g). (Defs.' Mot. 1-2 (Dkt. No. 27).)
Both parties have indeed failed to comply with the local rules, and therefore Plaintiffs' Motion (Dkt. No. 25) is STRICKEN, and Defendants' Motion (Dkt. No. 27) is DENIED. The Court will disregard Defendants' Reply brief beyond page 12.
C. Mootness
Defendants' threshold argument is that Plaintiffs' challenge to the emergency rule is moot. (Defs.' Mot. 12-16 (Dkt. No. 17).) Defendants observe that the 2007 fishing season has closed and therefore the rule, whose effect by law could only extend to the 2007 season, no longer visits any detriment upon Plaintiffs. With regard to Plaintiffs' prayer for a declaratory judgment that it was legally entitled to participate in the 2007 whiting fishery, Defendants argue that "such retroactive relief is not available under the APA and the Magnuson Act," which only permits remand to the NMFS, and which "would serve no purpose because the 2007 season is over." (Id. at 13-14.) Plaintiffs respond that while the fishing season has ended, the emergency rule is still technically in effect. (Pls.' Reply 3 (Dkt. No. 19).) Furthermore, Plaintiffs contend that because of a disaster tow in the shoreside sector, the season ended especially early on July 26, 2007, leaving insufficient time for a reasonable challenge while the rule still had effect. (Id. at 4-6.) Finally, Plaintiffs maintain that any future rationalization plan, if past practice is any indication, will likely contain qualifying criteria based upon prior participation, and therefore their legal entitlement to fish during the 2007 season is of great consequence. (Id. at 6-8.)
Defendants are quite right that no decision by this Court as to the validity of the emergency rule can allow Plaintiffs to fish in a season that has long since closed. However, for reasons to be discussed further, this case is not really about the missed opportunity of the 2007 season. The parties agree that prior to the promulgation of the rule on the eve of the 2007 season, Plaintiffs had taken all the necessary steps to participate in the catcher/processor sector of the Fishery. Plaintiffs' theory is that but for an invalid rule, they would have an established history of participation in the Fishery which has ramifications for their participation under future iterations of the FMP. Certainly the content of the emergency rule itself suggests that the interests of established players in the Fishery take priority as the regulatory climate evolves. This is not to say that had Plaintiffs been allowed to participate in the 2007 season, they would necessarily have procured an entitlement in the Fishery. However, it is a far different proposition for Defendants to say that Plaintiffs, having taken affirmative steps to avail themselves of the opportunities under a particular regulatory regime, could have no way to return to the status quo ex ante, even if changes to that regime were patently unlawful. Suffice it to say, the Court is not convinced that if the emergency rule here was set aside as invalid, Plaintiffs would have nothing to gain. Accordingly, the Court deems this a live, justiciable controversy.
D. Motion to Strike
Plaintiffs move to strike the declaration of Frank Lockhart, offered by Defendants in support of their cross motion for summary judgment, because the Court's review is to be confined to the administrative record. (Pls.' Reply 2 (Dkt. No. 19).) Defendants respond that they offered Mr. Lockhart's declaration only "to demonstrate that subsequent events occurring after the Emergency Rule was issued have rendered Starbound's claims moot." (Defs.' Reply 3 (Dkt. No. 24) (emphasis in original).) With the Court having found that Plaintiffs' claims are not moot, the only purpose for which Defendants offer the declaration has been decided against them, and therefore Plaintiffs' request is itself moot.
E. Substantive Merits of the Emergency Rule
Plaintiffs assert that the emergency rule was "arbitrary and capricious," and therefore may be held unlawful and set aside by this Court under 5 U.S.C. § 706(2)(A). (Pls.' Mot. 15 (Dkt. No. 14).) Relying primarily on what it deems to be significant differences between the catcher/processor sector and the shoreside sector, Plaintiffs argue that the threat of an "accelerated race for fish," if it did exist, was not posed by the catcher/processor sector. That is, because excessive bycatch levels are "almost exclusively confined to the Shoreside sector," barring participation by new catcher/processor vessels is an irrational way to achieve the conservation goals of the Fishery. (Id. at 16.) Plaintiffs also cite the cooperative venture of the PWCC as evidence that there was no reason to exclude catcher/processor vessels from what has traditionally been a stable sector of the Fishery. (Id. at 18-19.)
These arguments ignore the content of the emergency rule, Fishery regulations, and the practical realities involving participants. First, the rule does not single out catcher/processor vessels specifically, but rather "any vessel that has no sector-specific history of participation prior to January 1, 2007." (Admin. R. B.1 at 1.) The purpose of this broad administrative action was to prevent new entry at a time when a confluence of market and regulatory factors provided added incentives to participate in the Fishery. (Id. at 4-5.) Even assuming that bycatch rates are much higher in the shoreside sector than in the catcher/processor sector, Plaintiffs acknowledge that catcher/processor vessels contribute to the problem to some degree. (Pls.' Mot. 18 (Dkt. No. 14).) Because the regulations provide for shutting down the entire fishery upon reaching bycatch limits in any one sector, it surely was not irrational to restrict new entry by both greater and lesser "offenders" for a temporary period of time. To say that Defendants could have fashioned a rule with a more limited scope, perhaps targeted solely at the shoreside sector, suggests only a more narrowly tailored version that Plaintiffs deem superior. The merits of this claim notwithstanding, Defendants' reasoning was not arbitrary or capricious, and it is not the Court's role to substitute its judgment for the Agency's in search of a better rule.
In their response to Defendants' Cross Motion for Summary Judgment, Plaintiffs argue for the first time that the Government failed to respond to certain "alternative management tools" proposed during the notice and comment process. (Pls.' Resp. 9-10 (Dkt. No. 22).) Putting aside that this should have been raised in Plaintiffs' original motion, it falls short of demonstrating that Defendants failed to adequately respond to public comment. Rather, it shows that Plaintiffs felt they could fashion a better rule, which is not Defendants' obligation to disprove.
And yet, there is a more fundamental problem with Plaintiffs' argument that has little to do with the catcher/processor sector's bycatch numbers in the past, or even the sheer number of vessels and harvesting capacity expected in the Fishery for 2007. While these factors surely have some relationship to the bycatch problem, the manner in which participants fish over the course of a season also determines the likelihood that they will reach bycatch limits prematurely. That is, because bycatch rates are higher in the early months of the season, intensive fishing at those times presents a heightened risk of a "disaster tow" and early closure of the Fishery. (See Admin. R. B.1 at 4.) Plaintiffs dismiss this concern with regard to the catcher/processor sector by relying heavily on the notion that it is "operationally unique" due to the cooperative management structure of the PWCC, and "[h]ad Starbound been permitted to participate in the Whiting Fishery, it would have joined the Cooperative and abided by all of its rules and requirements." (Pls.' Mot. 19 (Dkt. No. 14).) Thus, Plaintiffs maintain that it was "arbitrary and capricious" to promulgate a rule prohibiting new entrants into that particular sector. This argument borders on disingenuous, because as the record and Defendants' briefing reveal, there was staunch opposition by members of the PWCC to new participants in the catcher/processor sector, to the point that the PWCC indicated it would "terminate" upon entry of new catcher/processors into the Fishery. (Admin. R. M. 18.) In response, and sounding much less like an eager, would-be member, Plaintiffs characterize this as "extort[ion]" and "blackmail," and proof that "[t]his is an allocation issue, not a conservation, safety, or economic disaster issue." (Pls.' Reply 10 (Dkt. No. 19).)
Rather than the dichotomy that Plaintiffs' construct, this appears to be both an allocation issue and a conservation issue, with Defendants' primary concern being the latter. The parties agree that cooperation and communication in the catcher/processor sector by members of the PWCC has contributed greatly to the stability of the Fishery. This system, however, is a voluntary one, the absence of which produces the paradigmatic "tragedy of the commons," in which individual fishing interests have an incentive to aggressively fish early in the season, when bycatch levels are high, in order to ensure their own yield. If all participants behave this way, as they are pressured to once the cooperative structure breaks down, they reach bycatch limits early and the whole Fishery closes prematurely. This was clearly a main concern upon which the Council relied in making its recommendation, (Admin. R. B.1 at 4-5), and whatever motives Plaintiffs would ascribe to the PWCC, it is fundamentally about conservation from Defendants' standpoint. While the PWCC's position was surely informed by its members' own commercial interests, it is not the Cooperative's rationale that is subject to review. Even if Defendants were influenced by the allocation concerns of established participants, this fact alone does not invalidate the rule as long as the record supports a primary concern for conservation and Defendants articulate a rational connection between means and ends. In sum, it was not arbitrary or capricious for Defendants to consider how the potential breakdown of an entirely voluntary arrangement could have had deleterious consequences for fishing patterns in the Fishery. And again, this is a concern wholly distinct from how the catcher/processor sector performed in the past, or the sheer number of vessels and harvesting capacity expected in the Fishery for 2007.
Plaintiffs argue that the PWCC would not have actually dissolved upon new entry into the catcher/processor sector. (Pls.' Reply 10-11 (Dkt. No. 19).) This is not Plaintiffs' bluff to call.
F. Use of the Emergency Rule Mechanism
Plaintiffs contend that aside from the substance of the rule itself, use of the emergency rule mechanism in these circumstances was improper. (Pls.' Mot. 20-23 (Dkt. No. 14).) The NMFS policy guidelines describe the criteria governing use of emergency rules as follows:
For the purpose of section 305(c) of the Magnuson-Stevens Act, the phrase "an emergency exists involving any fishery" is defined as a situation that:
(1) Results from recent, unforeseen events or recently discovered circumstances; and
(2) Presents serious conservation or management problems in the fishery; and
(3) Can be addressed through emergency regulations for which the immediate benefits outweigh the value of advance notice, public comment, and deliberative consideration of the impacts on participants to the same extent as would be expected under the normal rulemaking process62 Fed. Reg. 44422. Plaintiffs argue that entry by new participants in 2007 was not an "unforeseen event" that would justify an emergency rule, since the number of participants in the Fishery had fluctuated over the previous ten years. (See Admin. R. B.1 at 44.) For example, the catcher/processor sector, Plaintiffs observe, experienced a 50% increase in vessels from 2005 to 2006. (Id.) Plaintiffs also argue that any threat was speculative rather than "very likely," that even if it existed it was confined to sectors other than the catcher/processor sector, and that Plaintiffs' entry constituted no increase in harvesting capacity because it aggregated pre-existing permits. (Pls.' Mot. 21-23 (Dkt. No. 14).) These arguments fail to demonstrate that use of the emergency rule mechanism was unlawful.
First, the possibility of new entry, in and of itself, is not the "unforeseen event" that justified the rule. This strawman only diverts attention from the specific factors that Defendants relied upon to conclude that a spike in new entry was likely, and that it would undermine established fishing patterns that had contributed to the stability of the Fishery. In support of the emergency rule that was adopted, the Council cited four facts that "exacerbated their concern about an increased race for fish." (Admin. R. B.1 at 3.) First, the price of whiting continued to increase to unprecedented levels, making it a more appealing option for fishing operations. Second, this price increase was accompanied by a 10% reduction in the optimum yield from 2006 to 2007, making an increasingly valuable commodity even more so by reducing supply. Third, because of unexpectedly high bycatch rates for rockfish, the Council had already placed more severe restraints on non-whiting groundfish fishing, thereby making the whiting fishery more attractive. Finally, the Council cited the reduction in the 2007 optimum yield for Alaska pollock, which provided an incentive for AFA-qualified vessels (such as the F/V STARBOUND) to shift their operations to the Fishery. (Id.) While it may have been nothing new to say that the number of vessels in the Fishery would fluctuate from year to year, it was entirely rational to think that these factors would contribute to a spike in participation for 2007. Indeed, Plaintiffs' observation as to the 50% increase in the number of vessels from 2005 to 2006 only buttresses Defendants' claim that an upward trend was developing. (See id. at 44.)
This being the case, Plaintiffs also maintain that increased participation does not necessarily lead to higher bycatch rates. (Pls.' Resp. 5 (Dkt. No. 22).) Even if this is true, and frankly all things being equal it is hard to believe that participation and bycatch are not somehow linked, it still does not address Defendants' concerns about a breakdown in established fishing patterns as a result of new entry. For the reasons set forth above in the discussion about the PWCC's cooperative structure, Defendants articulated a rational connection between new entry and an increased race for fish that could have presented an imminent and serious conservation problem for the Fishery. (Admin. R. B.1 at 74-75.) This was a legitimate basis for the emergency rule.
Plaintiffs' argument about the degree of certainty Defendants must have in order to promulgate an emergency rule is also without merit. Nothing in the regulations or guidelines supports the notion that Defendants must be assured that an emergency would arise before they can utilize the option of an emergency rule. National Standard (2) states that "[c]onservation and management measures shall be based upon the best scientific information available." 16 U.S.C. § 1851(a)(2). Relying on scientific data about relative bycatch rates throughout a season, as well as the four market-based factors set forth above, and the possibility that new entry would undermine cooperation and coordination by participants in the Fishery, Defendants made an informed decision, based on the best available information, that there was a serious threat to conservation interests justifying a temporary emergency rule. Indeed, while a standard requiring utter certainty of harm might serve Plaintiffs' individual interest, it is not the luxury of an agency with a compelling public policy mandate to simply wait until harm conclusively manifests itself. This is all the more true in an area involving scarce natural resources, the depletion of which can be difficult, if not impossible, to reverse.
Finally, Plaintiffs argue that the rule's attempt to mitigate its effect on excluded participants by permitting "disaggregation" of permits is "nonsensical and contradicts the premise" of the rule itself. (Pls.' Resp. 10 (Dkt. No. 22).) Because "the likely result of such dissaggregation is that the permits will go back on the original boats and they will be redeployed into the Fishery," Plaintiffs reason, the mitigating measure will only increase harvesting capacity. (Id.) The record demonstrates that this is a fallacious assumption. Testimony before the Council indicated that some of Plaintiffs' permits were acquired from vessels that had been inactive in the Fishery for a number of years. (Admin. R. J-3, 63:14-65:21.) Whatever caused this drop in participation, Plaintiffs' assumption that the original boats would simply redeploy into the Fishery with increased harvesting capacity is not supported by the record. Indeed, the underlying logic of maintaining stability by barring vessels without a sector-specific history in the Fishery was that established players have established patterns that are likely to continue.
III. CONCLUSION
Plaintiffs' frustration at having taken all the appropriate steps to participate in the Fishery only to be excluded at the eleventh hour is understandable. However, one of the risks attendant to their enterprise in a highly regulated arena is that countervailing considerations of public policy will take precedence over individual commercial interests. This is just such a case. Furthermore, this is not a situation in which Plaintiffs' are asked to simply forsake an investment made in reliance upon a more favorable regulatory climate. Indeed, Plaintiffs evince little concern for the lost opportunity of the 2007 season because the rule allows them to recoup the cost of their permits and thereby return to their pre-investment status. Plaintiffs' main concern appears to be establishing a foothold in the Fishery so that they cannot be excluded from participation by future amendments to the FMP that might delineate rights according to prior participation. Since the Court has found that the emergency rule was a proper exercise of Defendants' regulatory authority, Plaintiffs will have to vindicate their commercial aspirations through the ordinary administrative process going forward.
For the foregoing reasons, Defendants' Cross Motion for Summary Judgment (Dkt. No. 17) is hereby GRANTED, and Plaintiffs' Motion for Summary Judgment (Dkt. No. 14) is DENIED. Furthermore, Plaintiffs' Motion to Strike (Dkt. No. 25) is STRICKEN and Defendants' Motion for Leave to File Excess Pages Out of Time (Dkt. No. 27) is DENIED.
SO ORDERED