The plaintiff is American Pelagic, a company whose President and sole shareholder, purchased a large boat, the Atlantic Star, in 1996 to transform it into a massive fishing vessel. In 1997, NMFS issued both a valid Atlantic mackerel permit and a Northeast Multispecies fish permit to the vessel. In 1997 and 1998, some riders to appropriations bills limited the size of the ships and revoked the permits that had been issued. NMFS later promulgated regulations reflecting this prohibition. As a result, the Atlantic Star was unable to receive a permit to fish in any U.S. fishery within the EEZ. American Pelagic brought suit alleging that the 1997 and 1998 Appropriations Acts revoking its permits and barring it from receiving future permits effected a temporary taking of the Atlantic Star. Specifically, American Pelagic asserted that it had a property right in its fishery permits and authorizations that was taken by legislation, and that the U.S. had taken all economically viable use of the vessel without just compensation in violation of the Fifth Amendment of the U.S. The lower court ruled in its favor, determining that the fishery had possessed a property interest in using the vessel to fish and that a regulatory taking had occurred. The United States now appeals. The court determined that the reasoning in Mitchell Arms and Conti applied to this case. In Conti, the court found that no property interest could be held in a swordfishing permit because it could not be assigned, sold, or transferred; because it did not confer exclusive fishing privileges; and because the government at all times retained the right to revoke, suspend, or modify it. The court also determined that as of 1996, when the Atlantic Star was purchased, the Magnuson Act and the attendant regulatory scheme precluded any permitted fisherman from possessing a property right in his vessel to fish in the EEZ. This was because, in passing the Magnuson Act, Congress explicitly assumed sovereign rights over Atlantic mackerel and herring in the EEZ. In short, the court found no right to fish in the EEZ inhered in American Pelagic’s title when it acquired the Atlantic Star. The court therefore reversed the finding that the revocation of Americans Pelagic’s permits and authorization letter constituted a taking under the Fifth Amendment.
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379 F.3d 1363
The court reversed the finding that the revocation of Americans Pelagic’s permits and authorization letter constituted a taking under the Fifth Amendment.
The court vacated the award of damages.
Court cases cited
Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978)
Maritrans Inc. v. United States, 40 Fed. Cl. 790 (1998)
Mitchell Arm, Inc v. United States, 7 F.3d 212 (Fed. Cir. 1993)
Conti v. United States, 291 F.3d 1334 (Fed. Cir. 2002)
The Magnuson-Stevens Fishery Conservation and Management Act