April 10, 2009
Refuge regulations limiting commercial fishing operations are not a taking
Palmyra Pacific Seafoods, L.L.C. v. U.S., No. 08-5058 (Fed. Cir. April 09, 2009) PDF
Yesterday, the Federal Circuit decided a takings case where the U.S. created a wildlife refuge around an island on which the plaintiff had acquired contractual rights to operate a base and pier for its commercial fishing operation. The refuge regulations prohibited commercial fishing within the refuge and allowed limited sports fishing to facilitate operation of a camp owned by the Nature Conservancy. The Federal Circuit affirmed the Court of Federal Claims' dismissal for failure to state a claim. The Federal Circuit reasoned that the government's regulation of activities in the waters surrounding Palmyra may have adversely affected the value of plaintiff's contract rights, but did not take the contract rights themselves. The plaintiff is left with an ability to fish beyond the 12 mile limit of the refuge. Even if the government regulation targeted plaintiff's contract rights in order to promote the interests of another party, creation of the refuge and its regulations still did not constitute a compensable taking as those actions regulated conduct in which plaintiff had no protected property interest.
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