Fishermen's Finest, Inc. v. United States

In the United States Court of Federal Claims
No. 20-1061L
Filed: August 27, 2021

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FISHERMEN’S FINEST, INC., et al., *
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Plaintiffs, *
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v.
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UNITED STATES, *
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Defendant. *
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* * * * * * * * * * * * * * * * * ** *

Linda Larson, Nossaman LLP, Seattle, WA, for plaintiffs. With her was Svend
Brandt-Erichsen, Nossaman, LLP, Seattle, WA, and Brian Ferrasci-O’Malley,
Nossaman LLP, Seattle, WA.

Borislav Kushnir, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With him was
Elizabeth M. Hosford, Assistant Director, Commercial Litigation Branch, Civil Division,
Martin F. Hockey, Jr., Acting Director, Commercial Litigation Branch, and Brian M.
Boynton, Acting Assistant Attorney General, Civil Division. Of counsel were Josh
Fortenbery, Attorney-Advisor, Office of General Counsel, National Oceanic and
Atmospheric Administration, Demian A. Schane, Chief, Alaska Section, Office of General
Counsel, National Oceanic and Atmospheric Administration, and Lt. Michelle E. Walsh,
Staff Attorney, Office of Claims and Litigation, United States Coast Guard.

OPINION

HORN, J.

FINDINGS OF FACT

The above-captioned Fifth Amendment takings case arises out of the fishing
restrictions placed only upon plaintiffs Fishermen’s Finest, Inc., and its subsidiaries
(collectively, FFI), pursuant to section 836 of the Frank LoBiondo Coast Guard
Authorization Act of 2018, Pub. L. No. 115–282, 132 Stat. 4192, 4320–21 (2018) (Coast
Guard Act). As explained in the amended complaint:
 Fishermen’s Finest, Inc. owns Fishermen’s Finest Holdings, LLC, a
Washington limited liability company (“LLC”) which wholly owns three
subsidiaries, each of which owns a fishing vessel:

a. America’s Finest Fishing, LLC, a Washington LLC, owns
the 264-foot America’s Finest, which operates with a crew of
50;

b. U.S. Fishing, LLC, a Washington LLC, owns the 180-foot
U.S. Intrepid, which operates with a crew of 42; and

c. North Pacific Fishing, Inc., a Washington corporation,
owns the 164-foot American No. 1, which operates with a crew
of 40.

(capitalization and emphasis in original). FFI’s vessels have been designated as “catcher-
processor” vessels, operating in the commercial fishing industry in areas of the Exclusive
Economic Zone (EEZ), specifically in the Gulf of Alaska (GOA) and the Bering
Sea/Aleutian Islands (BSAI). Plaintiffs state:

FFI vessels have participated in North Pacific groundfish fisheries since
1967. American No. 1 was the first groundfish catcher-processor built in the
Pacific Northwest, in 1979. Its owners, Helena Park and the late Rudy
Petersen, were among a handful of pioneers during the mid to late 1980s
of the Americanization of several groundfish fisheries that previously had
been caught and processed largely by foreign fleets, as there was no
domestic market. FFI has continually invested in vessels and equipment
uniquely suited to operate in the remote and challenging North Pacific
environment, and currently employs over 200 people.

Plaintiffs state that each of its vessels “is a United States-flagged ship that uses large
trawl nets to harvest groundfish species such as flounder, cod, sole and rockfish.”

Statutory and Regulatory Framework Under The Magnuson-Stevens Fishery
Conservation and Management Act of 1976

“Fisheries,”1 or stocks of fish, in the North Pacific of the United States, and,
specifically in this case, the GOA and BSAI areas of the EEZ, are subject to numerous

1
The Magnuson-Stevens Act defines the term “fishery” as:

(A) one or more stocks of fish which can be treated as a unit for purposes
of conservation and management and which are identified on the basis of
geographical, scientific, technical, recreational, and economic
characteristics; and

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federal regulations arising primarily out of the Magnuson-Stevens Fishery Conservation
and Management Act of 1976, Pub. L. No. 94–265, 90 Stat. 331 (1976) (codified as
amended at 16 U.S.C. §§ 1801–1883 (2018) (Magnuson-Stevens Act), and other federal
laws, also discussed below. In 1976, Congress recognized (1) that fish, including those
“off the coasts of the United States . . . constitute valuable and renewable natural
resources” that “contribute to the food supply, economy, and health of the Nation and
provide recreational opportunities,” and (2) that due to overfishing, “[c]ertain stocks of fish
have declined to the point where their survival is threatened, and other stocks of fish have
been so substantially reduced in number that they could become similarly threatened.”
See 16 U.S.C. § 1801(a)(1), (2). Congress, therefore, passed the Magnuson-Stevens Act
to, among other purposes, “take immediate action to conserve and manage the fishery
resources found off the coasts of the United States.” See id. § 1801(b)(1). As explained
by the United States Court of Appeals for the Federal Circuit in American Pelagic Fishing
Co. v. United States, 379 F.3d 1363, 1372 (Fed. Cir.), reh’g en banc denied (Fed. Cir.
2004), cert. denied, 545 U.S. 1139 (2005):

Subsequently, in a presidential proclamation, President Reagan
established the EEZ [Exclusive Economic Zone] and assumed sovereign
rights for the United States over this two-hundred-mile zone. Quoting from
UNCLOS, Dec. 10, 1982, art. 56 ¶ 1, 21 I.L.M. 1245, 1280, he announced:

Within the Exclusive Economic Zone, the United States has,
to the extent permitted by international law, (a) sovereign
rights for the purpose of exploring, exploiting, conserving and
managing natural resources, both living and non-living of the
seabed and subsoil and the superajacent waters and with
regard to other activities for the economic exploitation and
exploration of the zone, such as the production of energy from
the water, currents and winds . . .

Proclamation No. 5030, 48 Fed. Reg. 10, 605.

Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1378 (alteration added; footnote
omitted). The American Pelagic court continued:

It is clear from this language that, at least as of 1983, the United States had
asserted sovereignty with respect to the exploration, exploitation,
conservation, and management of the natural resources of the EEZ. This
assertion of sovereignty was subsequently codified in the 1986
amendments to the Magnuson Act:

(B) any fishing for such stocks

16 U.S.C. § 1802(13).
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 United States sovereign rights to fish and fishery
management authority

(a) In the exclusive economic zone. Except as provided in
section 102 [16 USCS 1812], the United States claims, and
will exercise in the manner provided for in this Act, sovereign
rights and exclusive fishery management authority over all
fish, and all Continental Shelf fishery resources, within the
exclusive economic zone. . . .

Act of Nov. 14, 1986, Pub. L. No. 99–659, tit. I, § 101(b), 100 Stat. 3706,
3706–07 (codified as amended at 16 U.S.C. § 1811 (2000)). Thus,
Congress explicitly assumed “sovereign rights and exclusive fishery
management authority over all fish” in the EEZ. This assumption of
sovereignty indisputably encompasses all rights to fish in the EEZ.

American Pelagic Fishing Co. v. United States, 379 F.3d at 1378 (alteration in original).

In Subchapter IV, the Magnuson-Stevens Act established, under the Secretary of
Commerce (the Secretary), a National Fishery Management Program, which, among
other purposes, created “national standards for fishery conservation and management,”
16 U.S.C. § 1851, and established eight Regional Fishery Management Councils to
“prepare and submit to the Secretary (A) a fishery management plan, and (B)
amendments to each such plan that are necessary from time to time (and promptly
whenever changes in conservation and management measures in another fishery
substantially affect the fishery for which such plan was developed).” Id. § 1852. Also,
pursuant to 18 U.S.C. § 1853a(a), the Magnuson-Stevens Act authorized Regional
Fishery Management Councils to submit, “for a fishery that is managed under a limited
access system, a limited access privilege program to harvest fish,” provided that such
limited access systems, and the accompanying limited access privileges, meet further
requirements. See 18 U.S.C § 1853a(b)–(i). The statute at 18 U.S.C. § 1853a(b) provides:

(b) No creation of right, title, or interest

Limited access privilege, quota share, or other limited access system
authorization established, implemented, or managed under this chapter—

(1) shall be considered a permit for the purposes of sections
1857, 1858, and 1859 of this title;

(2) may be revoked, limited, or modified at any time in
accordance with this chapter, including revocation if the
system is found to have jeopardized the sustainability of the
stock or the safety of fishermen;

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 (3) shall not confer any right of compensation to the holder of
such limited access privilege, quota share, or other such
limited access system authorization if it is revoked, limited, or
modified;

(4) shall not create, or be construed to create, any right, title,
or interest in or to any fish before the fish is harvested by the
holder; and

(5) shall be considered a grant of permission to the holder of
the limited access privilege or quota share to engage in
activities permitted by such limited access privilege or quota
share.

Id. (emphasis in original). The statute at 16 U.S.C. § 1853a also authorizes a Regional
Fishery Management Council to “establish a policy and criteria for the transferability of
limited access privileges (through sale or lease),” as well as to “establish, in coordination
with the Secretary, a process for monitoring of transfers (including sales and leases) of
limited access privileges.” Id. With respect to the allocation of fish within a limited access
system, 16 U.S.C. § 1853a(c)(5) provides:

In developing a limited access privilege program to harvest fish a Council
or the Secretary shall—

(A) establish procedures to ensure fair and equitable initial allocations,
including consideration of—

(i) current and historical harvests;

(ii) employment in the harvesting and processing sectors;

(iii) investments in, and dependence upon, the fishery; and

(iv) the current and historical participation of fishing
communities

(B) consider the basic cultural and social framework of the fishery . . .

(D) ensure that limited access privilege holders do not acquire an excessive
share of the total limited access privileges in the program by—

(i) establishing a maximum share, expressed as a percentage
of the total limited access privileges, that a limited access
privilege holder is permitted to hold, acquire, or use; and

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 (ii) establishing any other limitations or measures necessary
to prevent an inequitable concentration of limited access
privileges; and

(E) authorize limited access privileges to harvest fish to be held, acquired,
used by, or issued under the system to persons who substantially
participate in the fishery, including in a specific sector of such fishery, as
specified by the Council.

Id. (capitalization in original).

The National Marine Fisheries Service (NMFS), also known as NOAA (National
Oceanic and Atmospheric Administration) Fisheries, was established in the United States
Department of Commerce. See https://www.fisheries.noaa.gov/about-us#overview (last
visited Aug. 27, 2021) (“NOAA Fisheries, also known as the National Marine Fisheries
Service, is an office of the National Oceanic and Atmospheric Administration within the
Department of Commerce.”). Pursuant to the Magnuson-Stevens Act, the Secretary,
through the NMFS, has the authority to approve fishery management plans and plan
amendments, see 16 U.S.C. § 1854(a)(1), and has promulgated implementing regulations
that govern the groundfish fisheries in the GOA and BSAI. See 50 C.F.R. § 679.1(a), (b).

The applicable regulations also require a number of licenses and permits to be
held by commercial fishermen participating in the groundfish fisheries in the GOA and
BSAI. See generally 50 C.F.R. § 679.4 (2021) (“Permits”). Plaintiffs in the above-
captioned case reference four fishing licenses, permits, and certificates to be relevant to
its claim in this court: (1) the Federal Fisheries Permit (FFP), (2) the License Limitation
Program (LLP) license, (3) the Amendment 80 Quota Share (Amendment 80 QS) permit,
and (4) the certificate of documentation, which includes a fishery and coastwise
endorsement.2 Regulations for the FFP, LLP, and Amendment 80 QS permit are set forth

2
Unlike the FFPs, LLP licenses, and Amendment 80 QS permits assigned to plaintiffs’
vessels, which are governed by regulations implemented under the Magnuson-Stevens
Act, plaintiffs, in their submissions to the court, do not specifically argue that the limitations
imposed by section 836 of the Coast Guard Act interfered with plaintiffs’ ownership or use
of their certificates of documentation, also assigned to plaintiffs’ vessels, and which are
required for each vessel participating in a trade, under the “Shipping” title of the United
States Code, at 46 U.S.C. §§ 12101, et seq. (2018). Rather, as discussed below, plaintiffs
explain in their amended complaint that the United States Coast Guard’s denial of the
certificate of documentation and accompanying coastwise and fishery endorsements for
FFI’s newest vessel, America’s Finest, is what appears to have prompted subsequent
lobbying efforts towards Congress, which, in turn, resulted in the provisions of sections
835 and 836 being included in the Coast Guard Act in 2018. As discussed below, section
835 of the Coast Guard Act authorized the grant of a certificate of documentation with
coastwise and fishery endorsements to America’s Finest, while section 836 imposed the
fishing restrictions which plaintiffs allege in this case amount to a taking of its vessels,
licenses and permits.
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in 50 C.F.R. § 679.4. With respect to the Federal Fisheries Permit (FFP), the regulations
set forth at 50 C.F.R. § 679.4(b), state that “[n]o vessel of the United States may be used
to retain groundfish in the GOA or BSAI or engage in any fishery in the GOA or BSAI that
requires retention of groundfish, unless the owner or authorized representative first
obtains an FFP for the vessel, issued under this part.” Id. § 679.4(b)(1). “[A]n FFP is in
effect from the effective date through the expiration date, as indicated on the FFP.” Id. §
679.4(b)(3). An FFP “is not transferable or assignable and is valid only for the vessel for
which it is issued.” Id. § 679.4(b)(6).

In 1998, the NMFS issued a final rule implementing the License Limitation
Program. See License Limitation Program, 63 Fed. Reg. 52,642 (Oct. 1, 1998). As stated
in the preamble to that rule in the Federal Register, “[t]he LLP [License Limitation
Program] limits the number, size, and specific operation of vessels that may be deployed
in the groundfish fisheries in the exclusive economic zone (EEZ) off Alaska.” Id. The
preamble further states:

A license for license limitation groundfish will be issued to an eligible
applicant based on fishing that occurred from an eligible applicant’s
qualifying vessel in management areas (i.e., BSAI, GOA, or BSAI/GOA, or
state waters shoreward of those management areas) during the general
qualification period (GQP), and in endorsement areas defined by these
regulations (i.e., Aleutian Islands, Bering Sea, Western Gulf, Central Gulf,
and Southeast Outside, or state waters shoreward of those endorsement
areas) during the endorsement qualification period (EQP). A license will
authorize a license holder to deploy a vessel from which directed fishing for
license limitation groundfish species can be conducted in the endorsement
areas designated on that license. This license also will be transferable.

Id. The specific requirements for the various endorsement areas, groundfish catch
histories, vessel designations, sizes, and gear, were implemented into subsection (k) of
50 C.F.R. § 679.4, titled: “Licenses for license limitation program (LLP) groundfish or crab
species.” 50 C.F.R. § 679.4(k) (2020). The “[g]eneral requirements” of subsection (k)
provide:

(1) General requirements.

(i) In addition to the permit and licensing requirements of this part, and
except as provided in paragraph (k)(2) of this section, each vessel within
the GOA or the BSAI must have an LLP groundfish license on board at all
times it is engaged in fishing activities defined in § 679.2 as directed fishing
for license limitation groundfish. This groundfish license, issued by NMFS
to a qualified person, authorizes a license holder to deploy a vessel to
conduct directed fishing for license limitation groundfish only in accordance
with the specific area and species endorsements, the vessel and gear
designations, the MLOA [maximum length overall] specified on the license,
and any exemption from the MLOA specified on the license.

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Id. § 679.4(k)(1). In accordance with the rule implementing the License Limitation
Program, the following provision in subsection (a) of 50 C.F.R. § 679.4 also was
implemented, which subsection applies to all of the permits which are addressed in
section 679.4:

(8) Harvesting privilege. Quota shares, permits, or licenses issued pursuant
to this part are neither a right to the resource nor any interest that is subject
to the “takings” provision of the Fifth Amendment to the U.S. Constitution.
Rather, such quota shares, permits, or licenses represent only a harvesting
privilege that may be revoked or amended subject to the requirements of
the Magnuson-Stevens Act and other applicable law.

Id. § 679.4(a)(8); see also License Limitation Program, 63 Fed. Reg. at 52,654
(implementing the above regulation).

In 2007, the FMP for groundfish in the BSAI was further amended by Amendment
80, which, among other things, established the Amendment 80 Limited Access Privilege
Program (Amendment 80 LAPP), and the accompanying Amendment 80 Quota Share
permit (Amendment 80 QS permit). See 50 C.F.R. §§ 679.4(o), 679.90 (2020); Allocating
Bering Sea/Aleutian Islands Fishery Resources, 72 Fed. Reg. 52,668 (Sept. 4, 2007).
Amendment 80 allocated a specific portion of six BSAI species of groundfish (Amendment
80 species) to a limited sector of eligible BSAI non-AFA (American Fisheries Act)
catcher/processor vessels using trawl gear (Amendment 80 vessels), based on their
historical participation in the harvesting and processing of the six Amendment 80
groundfish species. See generally Allocating Bering Sea/Aleutian Islands Fishery
Resources, 72 Fed. Reg. at 52,668–73. The six Amendment 80 species are comprised
of “Aleutian Islands (AI) Pacific ocean perch (POP), BSAI Atka mackerel, BSAI flathead
sole, BSAI Pacific cod, BSAI rock sole, and BSAI yellowfin sole.” Id. 72 Fed. Reg. at
52,671. Amendment 80 was implemented to, among other purposes, reduce the
historically high incidences of discards and waste of the Amendment 80 species by non-
AFA trawl catcher/processors vessels. The preamble to the rule implementing
Amendment 80 provides the following principles upon which Amendment 80 was
implemented:

One of the primary reasons for the relatively high discard rates of groundfish
by non-AFA trawl catcher/processors is the nature of the fisheries in which
those vessels participate. The non-AFA trawl catcher/processor sector
primarily participates in non-pollock groundfish fisheries. The non-pollock
groundfish fisheries are primarily comprised of groups of species that share
similar habitat (e.g., flatfish fisheries such as rock sole, flathead sole, and
yellowfin sole). Because these species occur together, they are typically
harvested together. When a non-AFA trawl catcher/processor retrieves its
net, very often multiple species of fish are present. If a vessel operator is
targeting only one species of fish, and other species are retrieved along with
the desired catch, the vessel operator may have an incentive to discard the

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 less valuable species and retain only the higher value species. The multi-
species nature of these fisheries makes it difficult for vessel operators to
target only one species, and an economic incentive is created to discard
less valuable fish.

NMFS establishes a total allowable catch (TAC) for each of the non-pollock
groundfish fisheries based on the species’ annual biomass with the goal of
providing a conservatively managed sustainable yield. Harvesters compete
for the TAC, resulting in a “race for fish,” wherein vessels attempt to
maximize their harvest in as little time as possible, in order to claim as large
a share as possible of the available TAC. This race for fish increases the
economic incentive to discard less valuable species in a multi-species
harvest, and accelerates the harvest rate for the more valuable species.

Because vessel operators are competing with each other for harvest of a
common TAC, a vessel operator has little economic incentive to undertake
actions to reduce unwanted incidental catch, such as searching for fishing
grounds with lower bycatch rates, or using gear modifications that may
reduce bycatch but have lower harvest rates, if those actions would limit the
ability of that vessel to effectively compete with other vessels.

Additionally, a vessel operator has little incentive to process and store less
valuable species if by doing so, he loses an opportunity to use that
processing or storage capacity for more valuable catch. Therefore, an
individual vessel operator has strong incentives to harvest fish as quickly as
possible, and discard less valuable species before the TAC limit is reached
because all vessel operators are competing for a limited TAC.

Id., 72 Fed. Reg. at 52,669–70. As further explained in the preamble to the rule
implementing Amendment 80, the establishment of a limited access privilege program
(LAPP) is a method which can reduce the incidence of waste brought about by discarding
less desirable fish:

The primary method to offset the economic incentives that lead to a race for
fish and relatively high discard rates is to reduce the impact of those
incentives through a LAPP. LAPPs have been used extensively in the North
Pacific as a means to encourage economic efficiency and less wasteful
harvest methods, and to resolve allocation disputes among harvesters by
providing a group of harvesters with exclusive harvest privileges that can
be traded. . . .

A LAPP allows vessel operators to make operational choices to reduce
discards of fish because the strong incentives to maximize catch in the
minimum amount of time have been reduced. If a vessel operator receives
an exclusive portion of the TAC for non-pollock groundfish species, . . . he
knows that he need not compete with other harvesters. That vessel operator

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 can then choose to fish in a slower and less wasteful fashion, use modified
gear with a lower harvest rate but which reduces bycatch, coordinate with
other vessel operators to avoid areas of high bycatch, process fish in ways
that yield increased value but which are possible only by slowing the
processing rate, or otherwise operate in ways that limit bycatch.

Id., 72 Fed. Reg. at 52,670. The regulation preamble further indicated, however, that a
potential adverse effect could arise from the establishment of a LAPP, in that LAPP
participants could potentially “use their excess fishing capacity to expand operations into
other fisheries that are not managed by LAPPs and increase the race for fish in those
fisheries unless they are constrained.” Id. Therefore, LAPPs can be accompanied by
“sideboard” limitations for participants with respect to fisheries not included in the LAPP,
and operate to restrict increased participation in non-LAPP fisheries.

Following the above principles, Amendment 80 was implemented in 2007, and as
explained in the preamble to the rule which implemented Amendment 80:

NMFS issues a final rule to implement Amendment 80 to the Fishery
Management Plan for Groundfish of the Bering Sea and Aleutian Islands
Management Area (FMP). Amendment 80 (hereinafter the “Program”)
primarily allocates several Bering Sea and Aleutian Islands (BSAI) non-
pollock trawl groundfish fisheries among fishing sectors, and facilitates the
formation of harvesting cooperatives in the non-American Fisheries Act
(AFA) trawl catcher/processor sector. The program establishes a limited
access privilege program (LAPP) for the non-AFA trawl catcher/processor
sector. This action is necessary to increase resource conservation and
improve economic efficiency for harvesters who participate in the BSAI
groundfish fisheries. This action is intended to promote the goals and
objectives of the Magnuson-Stevens Fishery Conservation and
Management Act (MSA), the FMP, and other applicable law. . . .

The Program meets the broad goals of (1) improving retention and
utilization of fishery resources by the non-AFA trawl catcher/processor fleet
by extending the groundfish retention standard (GRS) to all non-AFA trawl
catcher/processor vessels; (2) allocating fishery resources among BSAI
trawl harvesters in consideration of historic and present harvest patterns
and future harvest needs; (3) establishing a LAPP for the non-AFA trawl
catcher/processors and authorizing the allocation of groundfish species to
harvesting cooperatives to encourage fishing practices with lower discard
rates and to improve the opportunity for increasing the value of harvested
species while lowering costs; and (4) limiting the ability of non-AFA trawl
catcher/processors to expand their harvesting capacity into other fisheries
not managed under a LAPP.

Id. Specifically, the Amendment 80 LAPP assigned “Amendment 80 quota share (QS) for
Amendment 80 species based on catch by Amendment 80 vessels.” Id., 72 Fed. Reg. at

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52,672. “The [Amendment 80] Program assigns Amendment 80 QS based on historic
catch patterns of an Amendment 80 vessel during 1998 through 2004 and on the relative
proportion of an Amendment 80 species harvested by an Amendment 80 vessel
compared to all other Amendment 80 vessels.” Id. Amendment 80 also facilitates
Amendment 80 QS permit holders to establish cooperatives, which NMFS contemplates
as further increasing the harvesting efficiency of the Amendment 80 species. As
explained in the rule which implemented Amendment 80:

Persons that receive Amendment 80 QS can join a cooperative to receive
an exclusive harvest privilege for a portion of the ITAC [Initial Total
Allowable Catch]. Amendment 80 QS holders can form a cooperative with
other Amendment 80 QS holders on an annual basis, provided they meet
specific criteria. Each Amendment 80 cooperative will receive an annual
cooperative quota (CQ), an amount of Amendment 80 species ITAC that
will be for the exclusive use by that cooperative for harvest in a given year.
The Program establishes requirements for forming an Amendment 80
cooperative with other Amendment 80 QS holders, the allocation of annual
CQ to a cooperative, and transfers of CQ among cooperatives.

A cooperative will receive an amount of CQ equivalent to the proportion of
QS held by all of the members of the cooperative relative to the total QS
held by all Amendment 80 QS holders. . . .

The Program provides opportunities for Amendment 80 sector participants
to trade harvest privileges among cooperatives to further encourage
economically efficient fishing operations. An Amendment 80 cooperative
will not be able to transfer CQ to the Amendment 80 limited access fishery
or to the BSAI trawl limited access sector.

Id. The “BSAI trawl limited access sector” referenced above includes those participants,
such as AFA trawl catcher/processors, which participate in the Amendment 80 fisheries,
but are not included in the Amendment 80 LAPP. Participants in the “BSAI trawl limited
access sector” receive a portion of the TAC for Amendment 80 fisheries which is separate
from the portion of the TAC which is allocated to Amendment 80 LAPP participants. See
id., 72 Fed. Reg. at 52,671. The “BSAI trawl limited access sector” is also separate from
the “Amendment 80 limited access fishery,” the latter of which is comprised of those
Amendment 80 QS permit holders participating in the Amendment 80 LAPP, but which
participants elect not to join an Amendment 80 cooperative. As explained in the preamble
to the Amendment 80 final rule:

Amendment 80 QS holders that do not join an Amendment 80 cooperative
can participate in the Amendment 80 limited access fishery. The Program
will assign to the Amendment 80 limited access fishery the amount of the
Amendment 80 sector’s allocation of Amendment 80 species ITAC . . . that
remains after allocation to all of the Amendment 80 cooperatives.
Participants fishing in the Amendment 80 limited access fishery will continue

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 to compete with each other; will not realize the same potential benefits from
consolidation and coordination; and will not receive an exclusive harvest
privilege that accrues to members of an Amendment 80 cooperative. NMFS
will manage the Amendment 80 limited access fishery similar to the way the
fisheries were managed prior to implementation of the program.

Id., 72 Fed. Reg. at 52,672.

Amendment 80 also established “GOA Sideboard Limits,” which, as explained in
the preamble to the Amendment 80 final rule,

are catch limits that restrict the ability of participants eligible for this Program
to expand their harvest efforts in the GOA. The Program is designed to
provide certain economic advantages to participants. Program participants
could use this economic advantage to increase their participation in other
fisheries, primarily in the GOA fisheries, adversely affecting the participants
in those fisheries. Therefore, the Program limits the total amount of catch in
other groundfish fisheries that could be taken by Amendment 80 vessels,
including harvests made in State of Alaska (State) waters that are open
during Federal fishing seasons to allow the harvest of fish assigned to the
Federal TAC—commonly known as the “parallel” groundfish fisheries. GOA
groundfish and halibut PSC [prohibited species catch] sideboards will limit
the catch by Amendment 80 vessels to historic levels in the GOA.

Sideboards limit harvest of Pacific cod, pollock, and rockfish fisheries in the
GOA, the eligibility of Amendment 80 vessels to participate in GOA flatfish
fisheries, and the amount of halibut PSC that Amendment 80 vessels could
catch when harvesting groundfish in the GOA. Sideboards apply to all
Amendment 80 vessels, with a limited exemption for the F/V GOLDEN
FLEECE.

Id., 72 Fed. Reg. at 52,772–73 (capitalization in original).

In 2012, NMFS implemented Amendment 97 to the Fishery Management Plan for
BSAI groundfish, which allowed “the owner of a trawl catcher/processor vessel authorized
to participate in the Amendment 80 catch share program to replace that vessel with a
vessel that meets certain requirements.” Amendment 97, 77 Fed. Reg. 59,852 (Oct. 1,
2012). Amendment 97 established

the regulatory process for replacement of vessels in the Amendment 80
fleet and the requirements for Amendment 80 replacement vessels, such
as a limit on the overall length of a replacement vessel, a prohibition on the
use of an AFA vessel as a replacement vessel, measures to prevent a
replaced vessel from participating in Federal groundfish fisheries off Alaska
that are not Amendment 80 fisheries, and measures that extend specific
catch limits (known as Amendment 80 sideboards) to a replacement vessel.

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Id.

The “Built in the United States” Requirement

In addition to the three required permits and licenses discussed above, the FFP,
the LLP license, and the Amendment 80 QS permit, an additional certification is relevant
to plaintiffs’ amended complaint, which is the certificate of documentation, and the
“fishery” and the “coastwise” endorsements that accompany it. Unlike the FFP, LLP
license, or Amendment 80 QS permit, the certificate of documentation and accompanying
fishery and coastwise endorsements are not governed by the Magnuson-Stevens Act, but
are required under “Shipping,” Title 46 of the United States Code. See 46 U.S.C. §§
12101, et seq. Pursuant to 46 U.S.C. § 12102, titled: “Vessels requiring documentation,”
“a vessel may engage in a trade only if the vessel has been issued a certificate of
documentation with an endorsement for that trade under this chapter.” Id. Relevant to
above-captioned case, both the fishery and coastwise endorsements require that the
vessel be “built in the United States,” subject to exceptions not relevant to this case. See
46 U.S.C. §§ 12112(a)(2)(A) (coastwise endorsement), 12113(a)(2) (fishery
endorsement). Pursuant to the regulation at 46 C.F.R. § 67.97 (2020):

To be considered built in the United States a vessel must meet both of the
following criteria:

(a) All major components of its hull and superstructure are fabricated in the
United States; and

(b) The vessel is assembled entirely in the United States.

Id.

Events Leading Up to Plaintiffs’ Action in this Court

As alleged by plaintiffs in the above-captioned case:

Over the course of the seventeen years since the passage of Amendment
80, the active fleet has consolidated through mergers and acquisitions from
27 vessels owned by nine companies to 21 vessels owned by five
companies. Two of those companies are at the legal maximum ownership
cap of 30% for Amendment 80 QS. FFI and two other companies are not.

Up until 2014, FFI had a fleet operating in the groundfish fisheries of the GOA and BSAI
areas of the EEZ which was comprised of two vessels: American No. 1, initially operating
under the LLP license: LLG 2028; and U.S. Intrepid, operating under the LLP license:
LLG 3662. Both American No. 1 and U.S. Intrepid also were assigned Amendment 80 QS
permits under their respective LLP licenses, meaning that they were permitted to
participate in the harvesting of the portion of the Total Allowable Catch for the six

13
Amendment 80 fisheries reserved for Amendment 80 vessels. See 50 C.F.R. Part 679,
Table 31 (listing the “LLP license number[s] originally assigned to the Amendment 80
vessel[s],” including for American No. 1 and U.S. Intrepid).

FFI alleges that in November 2014, it “signed a contract to build a new catcher-
processor vessel, the America’s Finest, with Dakota Creek Industries, Inc. (‘DCI’) of
Anacortes, Washington, at a cost of more than $70 million. The contract had a delivery
date in November 2017.” Plaintiffs further allege that in March 2017, “FFI received written
approval from NMFS to use America’s Finest as an Amendment 80 replacement vessel
for American No. 1. This approval allowed FFI to transfer, without modification or
reduction, all of the fishery licenses, permits and endorsements for American No. 1 to
America’s Finest.”

In addition, plaintiffs alleges that in February 2017,

FFI purchased LLG 3217 (“the Defender LLP”) from Nordic Fisheries, Inc.
at a cost of more than $30 million. LLG 3217 had previously been assigned
to the Defender, which is not and has never been owned by FFI. The
Defender LLP contains three species and area endorsements: “Bering Sea
Groundfish/Amendment 80,” “Central Gulf Groundfish” and “Western Gulf
Groundfish”. Defender was also listed as one of only eleven vessels that
can be used to fish in the GOA flatfish fisheries. The GOA endorsements
and associated Defender fishing history enabled FFI to harvest unallocated
non-Amendment 80 Species of fish in locations and amounts previously
unavailable to FFI, including the West Yakutat region of the GOA. NMFS
reviewed the purchase documents, approved the purchase and transferred
title to the Defender LLP to FFI.

(capitalization in original). With the purchase of the Defender LLP and FFI’s new
catcher/processor vessel, America’s Finest, to replace American No. 1, FFI “obtained
permission from NMFS to transfer the Defender LLP to American No. 1,” and “NMFS also
approved American No. 1 as an Amendment 80 replacement vessel for Defender.”
Plaintiffs continue that “[t]hese approvals would have allowed American No. 1 to
participate in all of the fisheries included in the Defender LLP endorsements, including
West Yakutat Pacific ocean perch.” (capitalization in original). Plaintiffs allege that “[w]ith
these transfers and the purchase of the Defender LLP, FFI had the licenses, permits and
endorsements to operate three vessels instead of two.”

Plaintiffs allege, however, that in March 2017, DCI, the shipyard company
contracted to build America’s Finest, informed FFI that DCI “may have made a mistake in
complying with the U.S. Built Requirement for fishing vessels by incorporating a very
small amount of imported ‘cold-formed’ steel components into America’s Finest’s hull.”
(capitalization in original). As further explained in plaintiffs’ amended complaint:

This plating was ordered by DCI working with Seattle-based, internationally
reputable marine architects hired by DCI to do the “nesting” and “lofting” for

14
 the vessel. These plates were bent and beveled in Holland, then purchased
by and shipped to Seaport Steel in Seattle, Washington, under the
supervision of a reputable Seattle-based marine engineer. The cold-formed
steel was suitable for installation on America’s Finest only after extensive
custom fabrication work in Washington State over many months. DCI
apparently reasoned that the foreign steel satisfied the U.S. Built
Requirement for fishing vessels because the cold-formed steel was a very
small amount, was commercially unavailable in the United States and more
than 51% of the added value in the steel plates stemmed from work
performed in the United States. Although these last two factors satisfy the
“Buy U.S.” regulations applicable to the construction of federal government
ships, DCI, its Seattle-based marine architect, and Seaport Steel were all
apparently unaware that the Coast Guard applies unpublished agency
guidelines which impose much more restrictive build requirements to fishing
vessels. The shipyard’s mistake, if made, could have rendered America’s
Finest ineligible to participate in U.S. fisheries.

Plaintiffs’ amended complaint continues:

In or about July or August 2017, DCI brought the issue to the attention of
the Coast Guard and asked the National Vessel Documentation Center
(“NVDC”) for a determination as to whether the vessel could be delivered
as a documented U.S. vessel with fishing and coastwise endorsements,
given that the build error was inadvertent and the foreign steel constituted
less than 0.8% of the value of the ship. On August 31, 2017, the NVDC
ruled that use of the cold-formed components rendered America’s Finest
ineligible to receive a certificate of documentation with a fisheries or
coastwise endorsement. On September 21, 2017, the Commandant of the
Coast Guard denied an appeal of this ruling.

The Coast Guard Act of 2018

After the Coast Guard’s ruling against FFI and DCI, plaintiffs allege that “[i]n 2017
and 2018, DCI lobbied the U.S. Congress to grant a waiver to the U.S. Built Requirement”
(capitalization in original), for America’s Finest, which, as discussed above, is necessary
for vessels to receive the fishery and coastwise endorsements on the certificate of
documentation. See 46 U.S.C. §§ 12112(a)(2)(A) and 12113(a)(2). Subsequently, in
December 2018, the Coast Guard Act, “an Act To authorize appropriations for the Coast
Guard, and for other purposes,” (capitalization in original), was passed, and, among many
other provisions unrelated to the issues of this case, in section 835, included a waiver of
the “built in the United States” requirements for America’s Finest. That section of the
Coast Guard Act, titled: “VESSEL WAIVER,” states, in full:

(a) IN GENERAL.—Upon the date of enactment of this Act and
notwithstanding section 12112(a)(2)(A) and 12113(a)(2) of title 46, United

15
States Code, the Secretary shall issue a certificate of documentation with a
coastwise and fishery endorsements to the certificated vessel.

(b) REPLACEMENT VESSEL.—The certificated vessel shall qualify as a
replacement vessel for the vessel “AMERICA NO. 1” (United States official
number 610654) and not be precluded from operating as an Amendment
80 replacement vessel under the provisions of part 679 of title 50, Code of
Federal Regulations.

(c) COAST GUARD REVIEW AND DETERMINATION.—

(1) REVIEW.— Not later than 30 days after the date of
enactment of this Act, the Secretary shall conduct a review of
the use of certain foreign fabricated steel components in the
hull or superstructure of the certificated vessel.

(2) DETERMINATION.—Based on the review conducted
under paragraph (1), the Secretary shall determine whether
the shipyard that constructed the certificated vessel or the
purchaser of the certificated vessel knew before such
components were procured or installed that the use of such
components would violate requirements under sections
12112(a)(2)(A) and 12113(a)(2) of title 46, United States
Code.

(3) REVOCATION.—If the Secretary determines under
paragraph (2) that the shipyard that constructed the
certificated vessel or the purchaser of the certificated vessel
knew before such components were procured or installed that
the use of such components would violate requirements under
sections 12112(a)(2)(A() and 12113(a)(2) of title 46, United
States Code, the Secretary shall immediately revoke the
certificate of documentation issued under subsection (a).

(4) USE OF DOCUMENTS.—In conducting the review
required under paragraph (1), the Secretary may request and
review any information, correspondence, or documents
related to the construction of the certificated vessel, including
from the shipyard that constructed the certificated vessel and
the purchaser of the certificated vessel.

(d) TERMINATION.—If the contract for purchase of the certificated vessel
that is in effect on the date of enactment of this Act is terminated, the
purchasing party to that contract shall be prohibited from entering into a
subsequent contract or agreement for purchase of such vessel.

16
 (e) DEFINITIONS.—In this section:

(1) CERTIFICATED VESSEL.—The term “certificated vessel”
means the vessel America’s Finest (United States official
number 1276760).

(2) SECRETARY.—The term “secretary” means the
Secretary of the department in which the Coast Guard is
operating, acting through the Commandant of the Coast
Guard.

Coast Guard Act, § 835, 132 Stat. at 4319–20 (capitalization and emphasis in original).
In accordance with the above provisions, plaintiffs allege that “[t]he Coast Guard issued
a certificate of documentation with coastwise and fishery endorsements for America’s
Finest on December 17, 2018.” Plaintiffs also allege that “[o]n January 2, 2019, the Coast
Guard sent a letter to the U.S. Congress stating that it had completed the review required
by section 835 of the Coast Guard Act, and that it had determined that neither DCI nor
FFI ‘knew before the [foreign fabricated steel] components were procured or installation
commenced that the use of the components would violate the statutory requirements.’”
(alteration in plaintiffs’ amended complaint). There is no dispute between the parties that
plaintiffs’ vessel, America’s Finest, was duly issued a certificate of documentation with
fishery and coastwise endorsements in accordance with the above provisions of section
835 of the Coast Guard Act, or that FFI or DCI did not knowingly violate the “built in the
United States” requirements of 46 U.S.C. §§ 12112(a)(2)(A) (coastwise endorsement)
and 12113(a)(2) (fishery endorsement).

In addition to section 835, however, the Coast Guard Act also enacted section 836,
titled: “TEMPORARY LIMITATIONS.” (capitalization and emphasis in original). As
discussed below, the provisions in section 836 of the Coast Guard Act are the provisions
which plaintiffs in the above-captioned case allege amount to a Fifth Amendment takings
of plaintiffs’ property rights without just compensation. Section 836 of the Coast Guard
Act states, in full:

(a) LIMITATIONS.—

(1) IN GENERAL.—Upon the Coast Guard issuing a
certificate of documentation with coastwise and fishery
endorsements for the vessel “AMERICA’S FINEST” (United
States official number 1276760) and during any period such
certificate is in effect, and subject to subsection (b), the total
amount of groundfish harvested with respect to subparagraph
(A) or the total amount of deliveries processed from other
vessels with respect to subparagraph (B) by the vessels
described in paragraph (2) shall not collectively exceed—

17
 (A) the percentage of the harvest available in
any Gulf of Alaska groundfish fisheries (other
than fisheries subject to a limited access
privilege program created by the North Pacific
Fishery Management Council) that is equivalent
to the total harvest by the vessels described in
paragraph (2) in those fisheries in the calendar
years that a vessel described in paragraph (2)
had harvest [sic] from 2012 through 2017
relative to the total allowable catch available to
such vessels in the calendar years 2012 through
2017; or

(B) the percentage of processing of deliveries
from other vessels in any Bering Sea, Aleutian
Islands, and Gulf of Alaska groundfish fisheries
(including fisheries subject to a limited access
privilege program created by the North Pacific
Fishery Management Council, or community
development quotas as described in section
305(i) of the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C.
1855(i))) that is equivalent to the total
processing of such deliveries by the vessels
described in paragraph (2) in those fisheries in
the calendar years 2012 through 2017 relative
to the total allowable catch available in the
calendar years 2012 through 2017.

(2) APPLICABLE VESSELS.—The limitations described in
paragraph (1) shall apply, in the aggregate, to—

(A) the vessel AMERICA’S FINEST (United
States official number 1276760);

(B) the vessel US INTREPID (United States
official number 604439);

(C) the vessel AMERICAN NO. 1 (United States
official number 610654):

(D) any replacement of a vessel described in
subparagraph (A), (B), or (C); and

(E) any vessel assigned license number
LLG3217 under the license limitation program

18
 under part 679 of title 50, Code of Federal
Regulations.

(b) EXPIRATION.—The limitations described in subsection (a) shall apply
to a groundfish species in Bearing Sea, Aleutian Islands, and Gulf of Alaska
only until the earlier of—

(1) the end of the 6-year period beginning on the date of
enactment of this Act; or

(2) the date on which the Secretary of Commerce issues a
final rule, based on recommendations developed by the North
Pacific Fishery Management Council consistent with the
Magnuson-Stevens Fishery Conservation and Management
Act (16 U.S.C. 1801 et seq.), that limits processing deliveries
of that groundfish species from other vessels in any Bearing
Sea, Aleutian Islands, and Gulf of Alaska groundfish fisheries
that are not subject to conservation and management
measures under section 206 of the American Fisheries Act
(16 U.S.C. 1851 note).

(c) EXISTING AUTHORITY.—Except for the measures required by this
section, nothing in this title shall be construed to limit the authority of the
North Pacific Fishery Management Council or the Secretary of Commerce
under the Magnuson-Stevens Fishery Conservation and Management Act
(16 U.S.C. 1801 et seq.).

Coast Guard Act, § 836, 132 Stat. at 4320–21 (capitalization in original). In effect, the
limitations set forth in section 836(a)(1)(A) and (B) of the Coast Guard Act, which
limitations plaintiffs refer to as the “Coast Guard Act Sideboards,” operate to restrict, for
a maximum of six years, FFI’s ability to increase its harvesting efforts in non-LAPP, GOA
groundfish fisheries past the amounts it had harvested such GOA groundfish in the five
years preceding the Coast Guard Act,3 as well as FFI’s ability to increase processing for
other vessels of all GOA and BSAI groundfish fisheries, including the six Amendment 80

3
The Coast Guard Act Sideboards, which, in section 836(a)(1)(A), limit FFI’s potential
harvesting efforts only in the GOA, do not impact FFI’s potential harvesting efforts of the
six Amendment 80 fisheries, because Amendment 80 only applies to those species as
they exist in the BSAI management area, not the GOA management area. See generally
50 C.F.R. § 679.91; Allocating Bering Sea/Aleutian Islands Fishery Resources, 72 Fed.
Reg. at 52,760 (“NMFS issues a final rule to implement Amendment 80 to the Fishery
Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management
Area (FMP).”). In addition, section 836(a)(1)(A) exempts from its harvesting limitations,
“fisheries subject to a limited access privilege program created by the North Pacific
Fishery Management Council.” Coast Guard Act, § 836(a)(1)(A), 132 Stat. at 4320.
19
species, past the amounts it had processed groundfish for other vessels in the five years
preceding the Coast Guard Act. See id. § 836(a)(1)(A), (B), 132 Stat. at 4320–21. For
example, as explained by plaintiffs, the Coast Guard Act Sideboards

reduce the amount of arrowtooth flounder that FFI vessels have historically
caught in the GOA. The GOA arrowtooth flounder fishery is an open access
fishery with no quotas or sideboards for any participants. The TAC for
arrowtooth flounder is approximately 70,000 MT [metric tons]. Using two
ships, FFI’s historical average catch was 6,200 MT, or 3,100 MT per ship.
The purchase of the Defender LLP would have allowed FFI to fish a third
vessel in this fishery and harvest an additional 3,100 MT. However, the
Coast Guard Act Sideboards limit arrowtooth flounder catch by FFI vessels
to 6,200 MT in the aggregate. The value of the lost 3,100 MT is
approximately $4.03 million per year, for an estimated total of $24.18 million
over six years.

As another example, plaintiffs allege that

the Coast Guard Act Sideboards prohibit FFI from harvesting GOA rex sole.
GOA rex sole is a high value, open access fishery with no quota. FFI’s LLPs
3662 [assigned to U.S. Intrepid] and 2028 [originally assigned to American
No. 1 and allegedly approved for transfer to America’s Finest] allowed FFI
to fish for rex sole, but FFI had not done so during the years chosen in
section 836 of the Coast Guard Act to establish sideboard limits, thereby
establishing a catch limit for FFI of zero for six years. The estimated annual
harvest loss to FFI is approximately $1.5 million annually, for an estimated
total of $9 million over six years.

(alterations added). As a third example, this time with respect to the limitations to plaintiffs’
ability to process groundfish for other vessels, plaintiffs allege:

The Coast Guard Act Sideboards limit the amount of yellowfin sole that all
three FFI vessels can buy from these [independent catcher] vessels to
2,000 metric tons (“MT”). Independent catcher vessels typically catch
approximately 7,000 MT of yellowfin sole and sell it to motherships for
processing. However, these catcher vessels now take the majority of their
catch elsewhere because FFI is prohibited by the Coast Guard Act from
processing more than 2,000 MT of yellowfin sole. In addition, FFI loses the
opportunity to purchase and process these catcher vessels’ incidental catch
of other valuable species such as rock sole, pollock and cod. In all, FFI
suffers a net annual loss from this sideboard of approximately $2.9 million,
for an estimated total of $17.4 million over six years.

FFI also alleges that because of the Coast Guard Act Sideboards, FFI, despite its
purchase of the Defender LLP license, which, unlike FFI’s other LLP licenses, has an
endorsement for “West Yakutat Pacific ocean perch,”

20
 is unable to use the relevant endorsement to fish in the West Yakutat Pacific
ocean perch fishery that it purchased in 2017 at a cost of $10 million. As a
result of the Coast Guard Act, this valuable endorsement is now worthless
for six years solely because it is assigned to a vessel owned by FFI. In
addition, because it cannot fish for West Yakutat Pacific ocean perch, the
estimated annual harvest loss to FFI is approximately $1 million annually,
for an estimated total of $6 million over six years.

(capitalization in original). Plaintiffs also allege that because “FFI’s vessels are uniquely
valuable because of the specific LLPs, permits and endorsements appurtenant to them,”

the Coast Guard Act precludes FFI’s vessels in the aggregate from being
used to harvest and process to the full extent that their catch histories would
allow. Because the Coast Guard Act Sideboards transfer with the physical
vessel in any sale, and FFI’s remaining vessels would fish the maximum
amounts allowed under these collective sideboards, FFI’s vessels have lost
a substantial part of their fair market value, estimated as follows:

a. U.S. Intrepid diminished value due to unmarketable title:
estimated $5 million.

b. American No. 1 diminished value due to unmarketable title:
estimated $5 million.

In total, plaintiffs’ amended complaint alleges that the limitations set forth in section 836
of the Coast Guard Act have, or will, cause FFI “damages in excess of $78.2 million.”

Procedural History

On August 21, 2020, plaintiffs filed the above-captioned case in this court. On
September 28, 2020, plaintiffs filed an amended complaint. Plaintiffs’ amended complaint
contains a single cause of action of “Unlawful Taking without Just Compensation,”
(capitalization and emphasis in original), and requests “an award of just compensation of
no less than $78.2 million in a total amount to be proven at trial,” as well as pre- and post-
judgment interest, “reasonable attorneys’ fees and costs of suit, including payment of
experts’ fees and expenses,” “such orders necessary to provide an entire remedy and to
complete the relief afforded in the judgment,” and “such other and further relief within its
jurisdiction as the Court may deem just and proper.” (capitalization in original). Defendant
subsequently moved to dismiss plaintiffs’ amended complaint for failure to state a claim,
pursuant to Rule 12(b)(6) (2020) of the Rules of the United States Court of Federal Claims
(RCFC). Plaintiffs filed a response to defendant’s motion to dismiss, to which defendant
replied, and the court held oral argument.

21
 DISCUSSION

As discussed above, in its amended complaint currently before the court, plaintiffs
allege that section 836 of the Coast Guard Act “unlawfully takes private property rights
earned and purchased by FFI in the form of fisheries licenses, endorsements and permits
for a period of up to six years after the enactment of the Coast Guard Act.” Plaintiffs
continue that “[t]he restrictions imposed by section 836 deprive FFI of property rights
under exclusive, transferrable and valuable licenses, endorsements and permits to
harvest and process various species of species of [sic] fish in the Bering Sea, Aleutian
Islands (collectively ‘BSAI’) and Gulf of Alaska (‘GOA’), in the United States Exclusive
Economic Zone (‘USEEZ’).” Plaintiffs also allege that “[b]ecause these licenses, permits
and endorsements must be used only by the particular vessel specified in the license,
permit or endorsement, section 836 also devalues Plaintiff’s vessels and deprives it of
property rights in those vessels.” (capitalization in original). Plaintiffs also point out that
“[t]he restrictions in section 836 do not apply to any other of the finite number of vessels,
licenses, endorsements and permits owned by other qualifying participants in these
fisheries,” except for those owned by FFI. In its amended complaint, plaintiffs do not
indicate whether it is arguing that regulatory takings, as opposed to physical takings, have
occurred, or whether or not they were categorical or non-categorical regulatory takings.
In their response to defendant’s motion to dismiss, however, plaintiffs state that they
allege “non-categorical regulatory takings for a period of six years.”

Defendant first argues in its motion to dismiss that FFI has failed to state a Fifth
Amendment takings claim because it has not and cannot allege a cognizable property
interest. Specifically, defendant argues, characterizing plaintiffs’ amended complaint as
attempting to allege non-categorical regulatory takings, that “the United States Court of
Appeals for the Federal Circuit held long ago that fishing companies like FFI do not have
a cognizable property interest in the licenses, permits, and endorsements that govern
their vessels.” Defendant also argues that plaintiffs fail to allege a cognizable property
interest in using its vessels for harvesting or processing fish that it catches, or in using its
vessels to process fish from third-party vessels. In arguing that plaintiffs fail to allege a
cognizable property interest, defendant cites to cases issued by the United States Court
of Appeals for the Federal Circuit, such as American Pelagic Fishing Co. v. United States,
379 F.3d 1363; Conti v. United States, 291 F.3d 1334, 1340 (Fed. Cir.), reh’g en banc
denied (Fed. Cir. 2002), cert. denied, 537 U.S. 1112 (2003); and Mitchell Arms, Inc. v.
United States, 7 F.3d 212 (Fed. Cir. 1993), cert. denied, 511 U.S. 1106 (1994). As
discussed below, the cases of Conti and American Pelagic involved the alleged Fifth
Amendment regulatory takings of each of those plaintiffs’ vessels, fishing gear, and/or
various permits issued under the Magnuson-Stevens Act statutory and regulatory
scheme, similar to the alleged property interests at issue in the above-captioned case,
and found that the respective plaintiffs did not have cognizable property interests in the
vessels and/or various permits, such that it could succeed in a Fifth Amendment takings
claim. See generally Conti v. United States, 291 F.3d at 1340–45 (holding that plaintiff
did not have a cognizable property interest, for purposes of a Fifth Amendment takings
claim, in “(i) his swordfish permit; (ii) his vessel, the Providenza; and (iii) his gillnets and
related gear,” following a “ban on drift gillnet swordfishing”); Am. Pelagic Fishing Co. v.

22
United States, 397 F.3d at 1383 (“[B]ecause the Magnuson Act assumed sovereignty for
the United States over the management and conservation of the resources located in the
EEZ, and specifically over fishery resources, American Pelagic did not have, as one of
the sticks in the bundle of property rights that it acquired with title to the Atlantic Star, the
right to fish for Atlantic Mackerel and herring in the EEZ. American Pelagic thus did not
possess the property right that it asserts formed the basis for its takings claim. In the
absence of that property right, its claim is fatally defective.”). Defendant also argues,
relying on such cases, that “[w]hen called upon to review takings claims arising out of a
Government-issued license or permit, the Federal Circuit has offered a simple rule:
discretionary licenses and permits that are necessary to participate in a highly-regulated
industry do not, as a matter of law, create a cognizable property interest.” (capitalization
in original). Defendant argues that plaintiffs’ various licenses and permits do not meet the
indicia outlined by the Federal Circuit which generally amount to a cognizable property
interest, namely, transferability, exclusivity, revocability, and congressional intent. (citing
Conti v. United States, 291 F.3d at 1341–42; Am. Pelagic Fishing Co. v. United States,
379 F.3d at 1374). Defendant also points to the Magnuson-Stevens Act at 16 U.S.C. §
1853a(b), which, as discussed above, states that limited access privileges and quota
shares “may be revoked, limited, or modified at any time in accordance with this chapter;”
“shall not confer any right of compensation to the holder of such limited access privilege,
quota share, or other such limited access system authorization if it is revoked, limited, or
modified;” “shall not create, or be construed to create, any right, title, or interest in or to
any fish before the fish is harvested by the holder;” and “shall be considered a grant of
permission to the holder of the limited access privilege or quota share to engage in
activities permitted by such limited access privilege or quota share.” Id. § 1853a(b)(2)–
(5). Defendant also points to the title 50, Part 679 permit regulations, discussed above,
which state that the FFP, the LLP license, and the Amendment 80 QS permit, as well as
all other permits discussed in Part 679, “are neither a right to the resource nor any interest
that is subject to the ‘takings’ provision of the Fifth Amendment to the U.S. Constitution.”
50 C.F.R. § 679.4(a)(8). Finally, and notwithstanding plaintiffs’ inability to allege a
cognizable property interest, defendant argues that plaintiffs have failed to sufficiently
allege a non-categorical regulatory takings claim under the Penn Central factors. See,
e.g., Rose Acre Farm, Inc. v. United States, 559 F.3d 1260, 1267 (Fed. Cir.) (listing the
Penn Central factors as “(1) the economic impact of the action on the claimant, (2) the
effects of the governmental action on the reasonable investment-backed expectations of
the claimant, and (3) the character of the governmental action” (citing Penn Cent. Transp.
Co. v. City of New York, 438 U.S. 104, 123-24, reh’g denied, 439 U.S. 883 (1978))), reh’g
en banc denied (Fed. Cir. 2009), cert. denied, 559 U.S. 935 (2010). Defendant argues,
however, that the court need not reach a Penn Central analysis if the court determines
“that FFI has not alleged a cognizable property interest in its amended complaint.” (citing
Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372 (“If the claimant fails to
demonstrate the existence of a legally cognizable property interest, the courts [sic] task
is at an end.”)).

In plaintiffs’ response to defendant’s motion to dismiss, plaintiffs argue that they
do have cognizable property interests in their vessels, licenses and permits, which
plaintiffs allege were taken by the “Coast Guard Act Sideboards” of section 836 of the

23
Coast Guard Act. Plaintiffs characterize their licenses and permits as “appurtenances”
attached to their vessels, according to maritime law. In plaintiffs’ response, plaintiffs
attempt to distinguish their LLP licenses and Amendment 80 QS permits from those which
were at issue in Conti and American Pelagic, arguing that the LLP license and the
Amendment 80 QS permit “have all the hallmarks of private property that were lacking in
the commercial fishing licenses examined by the cases relied upon by Defendant, all of
which pre-dated the 2007 amendments to the MSA [Magnuson-Stevens Act] creating
limited access privilege programs.” (alteration added). Plaintiffs point out that the Part 679
regulations at issue in the FFI case “allow a groundfish license and Amendment 80 QS
permits to be transferred if certain eligibility criteria are met,” (citing 50 C.F.R. § 679.4(k)
(LLP license regulations) and 50 C.F.R. § 679.94 (Amendment 80 regulations)), and “[t]he
mere fact that transfers are not unrestricted does not undermine their transferability for
characterization as property.” (citing Members of Peanut Holders Ass’n, Inc. v. United
States, 421 F.3d 1323 (Fed. Cir.) (holding that a “statutorily created peanut quota”
constituted a property interest, but not one that was compensable under the Fifth
Amendment), reh’g en banc denied (Fed. Cir. 2005), cert. denied 548 U.S. 904 (2006)).
Plaintiffs also attempt to argue that the “Amendment 80 regulatory structure was designed
to, and in fact does exclude all but the finite number of qualifying vessels, of which 21
vessels owned by five companies remain active. Only these boats, owned by these
companies, can fish for the portion of the TAC allocated to Amendment 80 QS holders.”
With respect to revocability, plaintiffs take issue with the way in which the restrictions to
its potential harvesting and processing efforts were implemented through section 836 of
the Coast Guard Act, as opposed to regulations promulgated by NMFS which could
operate to equally restrict all participants in a given fishery. Plaintiffs explain:

FFI’s licenses were not revoked in an administrative hearing by NMFS
acting under its MSA authority in accordance with MSA regulations. FFI’s
fishing rights were summarily and punitively restricted and diminished by
Congress pursuant to the Coast Guard Act. Unlike the statute in American
Pelagic, which was a facially general change to a regulatory scheme but in
reality applied to only one vessel, the Coast Guard Act facially targets and
impacts only three vessels and one company, while leaving the other four
Amendment 80 companies not only intact but advantaged because the
rights taken from FFI effectively go over to them. FFI has not been injured
by a general change to the regulatory regime, but by a very specific taking
of valuable fishing rights and transfer of that property to its competitors.

Plaintiffs also state that “[t]he Coast Guard Act’s creation of a ‘class of one’ has no relation
to the uniform modifications permitted under the MSA, and violates the fundamental
fairness principles at the heart of the Takings Clause.” (citing Kirby Forest Indus., Inc. v.
United States, 467 U.S. 1, 14 (1984)). Finally, with respect to the Penn Central factors,
plaintiffs disagree with defendant that they have not sufficiently alleged a non-categorical
regulatory takings.

Regarding defendant’s motion to dismiss, when examining what must be pled in
order to state a claim, a plaintiff need only state in the complaint “a short and plain

24
statement of the claim showing that the pleader is entitled to relief.” RCFC 8(a)(2); see
also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The United States Supreme
Court has stated:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, [Conley v. Gibson, 355 U.S. 41, 47
(1957)]; Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d
247, 251 (7th Cir. 1994), a plaintiff’s obligation to provide the “grounds” of
his “entitle[ment] to relief” requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do, see
Papasan v. Allain, 478 U.S. 265, 286 (1986) (on a motion to dismiss, courts
“are not bound to accept as true a legal conclusion couched as a factual
allegation”). Factual allegations must be enough to raise a right to relief
above the speculative level, see 5 C. Wright & A. Miller, Federal Practice
and Procedure § 1216, pp. 235-36 (3d ed. 2004) (hereinafter Wright &
Miller) (“[T]he pleading must contain something more . . . than . . . a
statement of facts that merely creates a suspicion [of] a legally cognizable
right of action”), on the assumption that all the allegations in the complaint
are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 508, n.1 (2002); Neitzke v. Williams, 490 U.S. 319, 327
(1989) (“Rule 12(b)(6) does not countenance . . . dismissals based on a
judge’s disbelief of a complaint’s factual allegations”); Scheuer v. Rhodes,
416 U.S. 232, 236 (1974) (a well-pleaded complaint may proceed even if it
appears “that a recovery is very remote and unlikely”) . . . . [W]e do not
require heightened fact pleading of specifics, but only enough facts to state
a claim to relief that is plausible on its face.

Bell Atl. Corp. v. Twombly, 550 U.S. at 555-56, 570 (footnote and other citations omitted;
omissions in original); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. at 555-57, 570); First Mortg. Corp. v. United States, 961 F.3d
1331, 1339 (Fed. Cir. 2020); Am. Bankers Ass’n v. United States, 932 F.3d 1375, 1380
(Fed. Cir. 2019); Frankel v. United States, 842 F.3d 1246, 1249 (Fed. Cir. 2016); A&D
Auto Sales, Inc. v. United States, 748 F.3d 1142, 1157 (Fed. Cir. 2014); Bell/Heery v.
United States, 739 F.3d 1324, 1330 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir.
2014); Kam-Almaz v. United States, 682 F.3d 1364, 1367 (Fed. Cir. 2012) (“The facts as
alleged ‘must be enough to raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).’”
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 557)); Totes-Isotoner Corp. v. United
States, 594 F.3d 1346, 1354-55 (Fed. Cir.), cert. denied, 562 U.S. 830 (2010); Bank of
Guam v. United States, 578 F.3d 1318, 1326 (Fed. Cir.) (“In order to avoid dismissal for
failure to state a claim, the complaint must allege facts ‘plausibly suggesting (not merely
consistent with)’ a showing of entitlement to relief.” (quoting Bell Atl. Corp. v. Twombly,
550 U.S. at 557)), reh’g and reh’g en banc denied (Fed. Cir. 2009), cert. denied, 561 U.S.
1006 (2010); Cambridge v. United States, 558 F.3d 1331, 1335 (Fed. Cir. 2009) (“[A]
plaintiff must plead factual allegations that support a facially ‘plausible’ claim to relief in

25
order to avoid dismissal for failure to state a claim.” (quoting Bell Atl. Corp. v. Twombly,
550 U.S. at 570)); Cary v. United States, 552 F.3d 1373, 1376 (Fed. Cir.) (“The factual
allegations must be enough to raise a right to relief above the speculative level. This does
not require the plaintiff to set out in detail the facts upon which the claim is based, but
enough facts to state a claim to relief that is plausible on its face.” (citing Bell Atl. Corp. v.
Twombly, 550 U.S. at 555, 570)), reh’g denied (Fed. Cir.), cert. denied, 557 U.S. 937
(2009); Christen v. United States, 133 Fed. Cl. 226, 229 (2017); Christian v. United States,
131 Fed. Cl. 134, 144 (2017); Vargas v. United States, 114 Fed. Cl. 226, 232 (2014);
Fredericksburg Non-Profit Hous. Corp. v. United States, 113 Fed. Cl. 244, 253 (2013),
aff’d, 579 F. App’x 1004 (Fed. Cir. 2014); Peninsula Grp. Capital Corp. v. United States,
93 Fed. Cl. 720, 726-27 (2010), appeal dismissed, 454 F. App’x 900 (Fed. Cir. 2011);
Legal Aid Soc’y of N.Y. v. United States, 92 Fed. Cl. 285, 292, 298 n.14 (2010).

When deciding a case based on a failure to state a claim, the court “must accept
as true the factual allegations in the complaint.” Engage Learning, Inc. v. Salazar, 660
F.3d 1346, 1355 (Fed. Cir. 2011); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(“In addition, when ruling on a defendant’s motion to dismiss, a judge must accept as true
all of the factual allegations contained in the complaint.” (citing Bell Atl. Corp. v. Twombly,
550 U.S. at 555-56 (citing Swierkiewicz v. Sorema N. A., 534 U.S. at 508 n.1))); Scheuer
v. Rhodes, 416 U.S. at 236 (“Moreover, it is well established that, in passing on a motion
to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for
failure to state a cause of action, the allegations of the complaint should be construed
favorably to the pleader.”), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S.
800 (1982), recognized by Davis v. Scherer, 468 U.S. 183, 190 (1984); Am. Bankers
Ass’n v. United States, 932 F.3d at 1380 (“In reviewing a motion to dismiss, we accept as
true the complaint’s well-pled factual allegations; however, we are not required to accept
the asserted legal conclusions.” (citing Ashcroft v. Iqbal, 556 U.S. at 678)); Harris v.
United States, 868 F.3d 1376, 1379 (Fed. Cir. 2017) (citing Call Henry, Inc. v. United
States, 855 F.3d 1348, 1354 (Fed. Cir. 2017)); United Pac. Ins. Co. v. United States, 464
F.3d 1325, 1327-28 (Fed. Cir. 2006); Samish Indian Nation v. United States, 419 F.3d
1355, 1364 (Fed. Cir. 2005); Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343
(Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2002), cert. denied, 538 U.S. 906
(2003).

The Takings Clause of the Fifth Amendment to the United States Constitution
provides in pertinent part: “nor shall private property be taken for public use without just
compensation.” U.S. Const. amend. V. The purpose of this Fifth Amendment provision is
to prevent the government from “‘forcing some people alone to bear public burdens which,
in all fairness and justice, should be borne by the public as a whole.’” Ark. Game & Fish
Comm'n v. United States, 568 U.S. 23, 31 (2018) (quoting Armstrong v. United States,
364 U.S. 40, 49 (1960)); see also Palazzolo v. Rhode Island, 533 U.S. 606, 618 (2001)
(quoting Armstrong v. United States, 364 U.S. at 49), abrogated on other grounds by
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005), recognized by Hageland Aviation
Servs., Inc. v. Harms, 210 P.3d 444 (Alaska 2009)); Penn Cent. Transp. Co. v. City of
New York, 438 U.S. at 123-24; Lingle v. Chevron U.S.A. Inc., 544 U.S. at 536; E. Enters.
v. Apfel, 524 U.S. 498, 522 (1998); Pumpelly v. Green Bay & Miss. Canal Co., 80 U.S.

26
(13 Wall.) 166, 179 (1871) (citing principles which establish that “private property may be
taken for public uses when public necessity or utility requires” and that there is a “clear
principle of natural equity that the individual whose property is thus sacrificed must be
indemnified”); Reoforce, Inc. v. United States, 853 F.3d 1249, 1265 (Fed. Cir. 2017), cert.
denied, 138 S. Ct. 517 (2017); Rose Acre Farm, Inc. v. United States, 559 F.3d at 1266;
Janowsky v. United States, 133 F.3d 888, 892 (Fed. Cir. 1998); Res. Invs., Inc. v. United
States, 85 Fed. Cl. 447, 469-70 (2009).

“[A] claim for just compensation under the Takings Clause must be brought to the
Court of Federal Claims in the first instance, unless Congress has withdrawn the Tucker
Act grant of jurisdiction in the relevant statute.” E. Enters. v. Apfel, 524 U.S. at 520 (citing
Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016-19 (1984)); see also Jan’s Helicopter
Serv., Inc. v. F.A.A., 525 F.3d 1299, 1304–05 (Fed. Cir. 2008); Acceptance Ins. Cos. v.
United States, 503 F.3d 1328, 1336 (Fed. Cir. 2007); Morris v. United States, 392 F.3d
1372, 1375 (Fed. Cir. 2004) (“Absent an express statutory grant of jurisdiction to the
contrary, the Tucker Act provides the Court of Federal Claims exclusive jurisdiction over
takings claims for amounts greater than $10,000.”); Altair Global Credit Opportunities
Fund (A), L.L.C. v. United States, 138 Fed. Cl. 742, 754 (2018) (quoting E. Enters. v.
Apfel, 524 U.S. at 520). The United States Supreme Court has declared: “If there is a
taking, the claim is ‘founded upon the Constitution’ and within the jurisdiction of the [United
States Court of Federal Claims] to hear and determine.” Preseault v. Interstate Commerce
Comm’n, 494 U.S. 1, 12 (1990) (quoting United States v. Causby, 328 U.S. 256, 267
(1946)); see also Lion Raisins, Inc. v. United States, 416 F.3d 1356, 1368 (Fed. Cir.
2005); Narramore v. United States, 960 F.2d 1048, 1052 (Fed. Cir. 1992); Hardy v. United
States, 127 Fed. Cl. 1, 7 (2016); Perry v. United States, 28 Fed. Cl. 82, 84 (1993).

To succeed under the Fifth Amendment Takings Clause, a plaintiff must show that
the government took a private property interest for public use without just compensation.
See Dimare Fresh, Inc. v. United States, 808 F.3d 1301, 1306 (Fed. Cir. 2015) (stating
that the “‘classic taking’” is one in which the government directly appropriates private
property for its own use (quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning
Agency, 535 U.S. 302, 324 (2002)), cert. denied, 136 S. Ct. 2461 (2016); Adams v. United
States, 391 F.3d 1212, 1218 (Fed. Cir. 2004), cert. denied, 546 U.S. 811 (2005); Arbelaez
v. United States, 94 Fed. Cl. 753, 762 (2010); Gahagan v. United States, 72 Fed. Cl. 157,
162 (2006). The government must be operating in its sovereign rather than in its
proprietary capacity when it initiates a taking. See St. Christopher Assocs., L.P. v. United
States, 511 F.3d 1376, 1385 (Fed. Cir. 2008).

“The issue of whether a taking has occurred is a question of law based on factual
underpinnings.” Huntleigh USA Corp. v. United States, 525 F.3d 1370, 1377-78 (Fed.
Cir.), cert. denied, 555 U.S. 1045 (2008). “[M]ost takings claims turn on situation-specific
factual inquiries.” Ark. Game & Fish Comm’n v. United States, 568 U.S. at 32 (citing Penn
Cent. Transp. Co. v. City of New York, 438 U.S. at 124); see also Moden v. United States,
404 F.3d 1335, 1342 (Fed. Cir. 2005) (finding that summary judgment “should not be
granted precipitously” “due to the fact-intensive nature of takings cases” (citing Yuba
Goldfields, Inc. v. United States, 723 F.2d 884, 887 (Fed. Cir. 1983))); In re Upstream

27
Addicks & Barker (Texas) Flood-Control Reservoirs, 138 Fed. Cl. 658, 664 (2018) (stating
that courts tend to be slow to dismiss takings claims, preferring to first develop a factual
record (quoting Moden v. United States, 404 F.3d at 1342; and Ark. Game & Fish Comm’n
v. United States, 568 U.S. at 29)).

The United States Court of Appeals for the Federal Circuit has established a two-
part test to determine whether government actions amount to a taking of private property
under the Fifth Amendment. See Casitas Mun. Water Dist. v. United States, 708 F.3d
1340, 1348 (Fed. Cir. 2013); Klamath Irr. Dist. v. United States, 635 F.3d 505, 511 (Fed.
Cir. 2011); Am. Pelagic Fishing Co. v. United States, 379 F.3d 1363, 1372 (Fed. Cir.)
(citing M & J Coal Co. v. United States, 47 F.3d 1148, 1153-54 (Fed. Cir.), cert. denied,
516 U.S. 808 (1995)) reh’g en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1139
(2005); see also United Affiliates Corp. v. United States, 143 Fed. Cl. 257, 262 (2019) (“A
takings claim is evaluated under a two-part analysis.” (citing Acceptance Ins. Cos. v.
United States, 583 F.3d 849, 854 (Fed. Cir. 2009))). A court first determines whether a
plaintiff possesses a cognizable property interest in the subject of the alleged takings.
See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (citing
United States v. Gen. Motors Corp., 323 U.S. 373 (1945)); see also Sharifi v. United
States, 987 F.3d 1063, 1068 (Fed. Cir. 2021) (“To claim a Fifth Amendment taking, a
plaintiff must show a ‘cognizable property interest.’” (quoting Alimanestianu v. United
States, 888 F.3d 1374, 1380 (Fed. Cir. 2018), cert. denied, 139 S. Ct. 1164 (2019)); Love
Terminal Partners, L.P. v. United States, 889 F.3d 1331, 1339 (Fed. Cir. 2018) (“As a
threshold matter, ‘the existence of a valid property interest is necessary in all takings
claims.’” (quoting Wyatt v. United States, 271 F.3d 1090, 1097 (Fed. Cir. 2001)), cert.
denied, 139 S. Ct. 2744 (2019); Welty v. United States, 926 F.3d 1319, 1323-24 (Fed.
Cir. 2019) (“To maintain a cognizable claim for a Fifth Amendment taking, a plaintiff must
establish that he possessed an enforceable property right.” (citing Lucas v. S.C. Coastal
Council, 505 U.S. 1003, 1014-19 (1992))); Reid v. United States, 143 Fed. Cl. 661, 668
(2019) (finding that “[i]n takings matters, a protectable property interest must be a ‘legally-
recognized property interest such as one in real estate, personal property, or intellectual
property’” (quoting Adams v. United States, 391 F.3d 1212, 1224 (Fed. Cir. 2004))); Piszel
v. United States, 833 F.3d 1366, 1374 (Fed. Cir. 2016), cert. denied, 138 S. Ct. 85 (2017);
Rogers v. United States, 814 F.3d 1299, 1303 (Fed. Cir. 2015); Casitas Mun. Water Dist.
v. United States, 708 F.3d at 1348; CRV Enters., Inc. v. United States, 626 F.3d 1241,
1249 (Fed. Cir. 2010), cert. denied, 563 U.S. 989 (2011); Am. Pelagic Fishing Co. v.
United States, 379 F.3d at 1372 (“‘It is axiomatic that only persons with a valid property
interest at the time of the taking are entitled to compensation.’” (quoting Wyatt v. United
States, 271 F.3d 1090, 1096 (Fed. Cir. 2001), cert. denied, 353 U.S. 1077 (2002); and
citing Cavin v. United States, 956 F.2d 1131, 1134 (Fed. Cir. 1992))); Air Pegasus of D.C.,
Inc. v. United States, 424 F.3d 1206, 1213 (Fed. Cir.) (stating that the court does not
address the second step “without first identifying a cognizable property interest” (citing
Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1381; and Conti v. United States,
291 F.3d at 1340)), reh’g denied and reh’g en banc denied (Fed. Cir. 2005); Karuk Tribe
of Cal. v. Ammon, 209 F.3d 1366, 1374-75 (Fed. Cir.), reh’g denied and en banc
suggestion denied (Fed. Cir. 2000), cert. denied, 532 U.S. 941 (2001); Christy, Inc. v.
United States, 141 Fed. Cl. 641, 657 (2019) (holding that “[t]o prevail on a takings claim,

28
a plaintiff must ‘identify[ ] a valid property interest’ under the Fifth Amendment” (citations
omitted)); Jackson v. United States, 135 Fed. Cl. 436, 444 (2017) (citation omitted);
Balagna v. United States, 135 Fed. Cl. 16, 22 (2017), recons. denied, No. 14-21L, 2017
WL 5952123 (Fed. Cl. Dec. 1, 2017). “If the claimant fails to demonstrate the existence
of a legally cognizable property interest, the courts [sic] task is at an end.” Am. Pelagic
Fishing Co. v. United States, 379 F.3d at 1372 (citing Maritrans Inc. v. United States, 342
F.3d 1344, 1352 (Fed. Cir. 2003); and M & J Coal Co. v. United States, 47 F.3d at 1154);
see also Hearts Bluff Game Ranch, Inc. v. United States, 669 F.3d 1326, 1329 (Fed. Cir.
2012) (citing Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372), cert. denied,
567 U.S. 917 (2012). Only if there is to be a next step, “‘after having identified a valid
property interest, the court must determine whether the governmental action at issue
amounted to a compensable taking of that property interest.’” Huntleigh USA Corp. v.
United States, 525 F.3d at 1378 (quoting Am. Pelagic Fishing Co. v. United States, 379
F.3d at 1372); see also Love Terminal Partners, L.P. v. United States, 889 F.3d at 1339
(citing First English Evangelical Lutheran Church of Glendale v. Los Angeles County,
California, 482 U.S. 304, 315 (1987)); Casitas Mun. Water Dist. v. United States, 708 F.3d
at 1348. Then, the court must determine whether the government action is a
“‘compensable taking of that property interest.’” Huntleigh USA Corp. v. United States,
525 F.3d at 1377 (quoting Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372).

As discussed above, two cases which are of significant importance to determine
whether plaintiffs in the above-captioned case have suffered a compensable taking of (1)
their physical property, (i.e., vessels), and (2) the licenses and permits referenced in the
amended complaint, are Conti and American Pelagic, as both cases were decided by the
United States Court of Appeals for the Federal Circuit and in both certiorari was denied
by the United States Supreme Court, and are precedential for this court. Those two cases,
like the one currently before the court, involved, and denied, alleged regulatory takings of
the plaintiffs’ fishing vessels and fishing permits governed by the Magnuson-Stevens Act
and its implementing regulations. Following the analytical sequence used by the Federal
Circuit in both Conti and American Pelagic, this court analyzes whether FFI has a
cognizable property interest in its fishing licenses and permits, and then analyzes whether
FFI can allege that a compensable, non-categorical regulatory taking of its vessels had
occurred as a result of the limitations imposed on a specific use of its vessels by section
836 of the Coast Guard Act, namely, the harvesting and processing of groundfish for itself
and third-party vessels.

Cognizable Property Interest in FFI’s Licenses and Permits

The Conti v. United States case involved a swordfisherman, Paul Conti, who
alleged that a “1999 prohibition on drift gillnet swordfishing in the Atlantic Swordfish
Fishery had deprived him of all economic value in his swordfishing permit, his vessel, the
F/V Providenza (owned by Conti Corporation), and his swordfishing gear.” Conti v. United
States, 291 F.3d at 1335. The Conti court explained that “[i]n short, Mr. Conti contends
that, while he still is in possession of his permit, the Providenza, and his gear, there has
been taken from him the ability to use those things in a particular way: to fish for swordfish
in the Atlantic Swordfish Fishery using drift gillnets.” Id. at 1340. Having determined “the

29
precise nature of the taking claim that Mr. Conti is asserting,” and addressing first his
swordfishing permit, the Conti court turned to an analysis of the first part of the “two-part
test to evaluate claims that a governmental regulation constitutes a taking of private
property without just compensation,” which was “whether the claimant has established a
‘property interest’” for purposes of the Fifth Amendment.’” See id. (quoting M & J Coal Co.
v. United States, 47 F.3d at 1154). The Conti court explained that “[t]he Constitution
neither creates nor defines the scope of property interests compensable under the Fifth
Amendment,” and that “[i]nstead, ‘existing rules and understandings’ and ‘background
principles’ derived from an independent source, such as state, federal, or common law,
define the dimensions of the requisite property rights for purposes of establishing a
cognizable taking.” Id. (citing Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577
(1972); and quoting Lucas v. S.C. Coastal Council, 505 U.S. at 1019. The Conti court
further explained that “[a]pplying these principles, courts have held that no property rights
are created in permits and licenses.” (citing United States v. Fuller, 409 U.S. 488, 493
(1973); and Alves v. United States, 133 F.3d 1454, 1457 (Fed. Cir. 1998)). The Conti
court, guided by the United States Supreme Court’s focus on the revocability of the
permits at issue in Fuller, as well as express statutory and regulatory language governing
the Fuller permits, found that Mr. Conti’s swordfishing permit “falls short of conferring a
cognizable property interest.” Conti v. United States, 291 F.3d at 1341. The Conti court
reasoned:

As noted above, the Department of Commerce required that Mr. Conti
obtain a permit to harvest swordfish in the Atlantic Swordfish Fishery in the
exercise of its authority under the MSA. See 16 U.S.C. § 1811; Atlantic
Swordfish Fishery, 50 Fed. Reg. at 33,957. While Mr. Conti could and did
utilize his permit to fish for more than a decade, he could not assign, sell, or
otherwise transfer the permit. Atlantic Swordfish Fishery 50 Fed. Reg. at 33,
957. The rights to sell, assign, or otherwise transfer are traditional hallmarks
of property. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.
419, 435–36, 102 S. Ct. 3164, 73 L. Ed. 2d 868 (1982) (describing rights to
dispose of property and to sell it as part of an individual’s bundle of property
rights). Further, since the swordfishing permit did not confer exclusive
fishing privileges, permit holders like Mr. Conti lacked the authority to
exclude others from the Atlantic Swordfish Fishery. See Dolan v. City of
Tigard, 512 U.S. 374, 384, 114 S. Ct. 2309, 129 L. Ed. 2d. 304 (1994) (the
“right to exclude others is ‘one of the most essential sticks in the bundle of
rights that are commonly characterized as property.’” (quoting Kaiser Aetna
v. United Sates, 444 U.S. 164, 176, 100 S. Ct. 383, 62 L. Ed. 2d 332 (1979).
In addition, the government at all times retained the right to revoke,
suspend, or modify the permit. See 50 C.F.R. § 635.4(a)(3) (2000). Finally,
the M.S.A. § itself states that the limited access authorization system “shall
not create any right, title, or interest in or to any fish,” and that the
Department of Commerce may adopt regulations that limit or terminate a
particular permit system “without compensation to holders of any limited
access system permits.” 16 U.S.C. § 1853(d)(3)(D), (d)(2)(A).

30
 The absence of crucial indicia of a property right, coupled with the
government’s irrefutable retention of the right to suspend, revoke, or modify
Mr. Conti’s swordfishing permit, compels the conclusion that the permit
bestowed a revocable license, instead of a property right. See 50 C.F.R. §
635.4. A contrary holding, as the Supreme Court recognized in Fuller,
counterintuitively would compensate a claimant for “the value of a right that
the Government . . . can grant or withhold as it chooses.” Fuller, 409 U.S.
at 493, 93 S. Ct. 801 (quoting United States v. Rands, 389 U.S. 121, 125,
88 S. Ct. 265, 19 L. Ed. 2d 329 (1967)).

Conti v. United States, 291 F.3d at 1341–42 (footnotes omitted; ellipsis in original).

In American Pelagic, the case concerned the plaintiff’s commercial fishing of
mackerel and herring in the Northeast area of the EEZ, which fisheries also were
governed by the Magnuson-Stevens Act and its implementing regulations. See Am.
Pelagic Fishing Co. v. United States, 379 F.3d at 1366–67. As explained by the Federal
Circuit in American Pelagic:

In November 1996, Atlantic Star Fishing Company, American Pelagic’s
predecessor, purchased a large, U.S.-flagged hull with the intent of
transforming it into a commercial fishing vessel. In January 1997, it
contracted with a Norwegian shipyard to convert the hull into a freezer
trawler—a large, commercial fishing vessel with the capacity to catch all of
its own fish, freeze them on board, and offload them for shipping to their
final destination. The result was the Atlantic Star, a vessel 369 feet long,
displacing 6,900 gross tons, and having a total of 13,400 horsepower (about
7,000 horsepower for running the generators for the freezers and the
remainder for propulsion. Outfitted with the most sophisticated technology
for locating, sorting, and freezing fish year-round, the Atlantic Star could
safely hold 400 to 500 metric tons of fish. American Pelagic’s total
investment in the vessel approached $40 million.

While the vessel was being outfitted, American Pelagic set about applying
for the necessary permits and gear authorizations. Pursuant to 50 C.F.R. §
648.4(a)(5) (1996), the Atlantic Star was required to carry on board a valid
Atlantic mackerel permit to fish for, possess, or land Atlantic Mackerel in or
from the EEZ. Because of the potential for incidental bycatch, the Atlantic
Star also was required to have a Northeast Multispecies (Nonregulated) fish
permit. Id. § 648.4(a)(1). In April 1997, the Northeast Regional Office of the
NMFS reissued both permits to American Pelagic: Federal Fisheries Permit
# 610018 for, inter alia, Atlantic Mackerel, expiring December 31, 1997; and
Federal Fisheries Permit # 610018 for Northeast Multispecies
(Nonregulated), expiring April 30, 1998. In addition, pursuant to 50 C.F.R.
§ 648.80(d) (1996), on August 28, 1997, the Northeast Regional Office
issued to American Pelagic a Gulf of Maine/Georges Bank Midwater Trawl

31
 Gear Authorization letter for, inter alia, Atlantic herring, expiring April 30,
1998.

Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1367–68 (footnotes and citations
to the trial court cases omitted). Despite efforts to prepare the Atlantic Star to begin
commercial fishing in the Northeast mackerel and herring fisheries, according to the
American Pelagic court, “opposition to the Atlantic Star began to develop.” Id. at 1368.
Ultimately, as stated by the American Pelagic court:

Congress passed a rider to an appropriations act that effectively cancelled
American Pelagic’s existing permits and authorization letter, and at the
same time prevented any further permits from being issued to the Atlantic
Star. The following year, Congress enacted the identical provision in
another appropriations act, and in 1999, it made the size limitation and
permit revocation permanent. The NMFS has since promulgated
regulations reflecting this prohibition. As a result of the legislation, the
Atlantic Star was unable to receive a permit to fish in any U.S. fishery within
the EEZ; at the time, no other vessel was affected by the legislation.

Id. (footnotes omitted) (citing Am. Pelagic Fishing Co. v. United States, 49 Fed. Cl. 36, 41
(2001) (American Pelagic I), rev’d and remanded, 379 F.3d 1363 (Fed. Cir.), reh’g en
banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1139 (2005); Departments of
Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act,
1998, Pub. L. No. 105–119, § 616, 111 Stat. 2440, 2518–19 (1997); Departments of
Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act,
1999, Pub. L. No. 105–277, tit. I, § 202, 112 Stat. 2681, 2681–718 (1998); 1999
Emergency Supplemental Appropriations Act, Pub. L. 106–31, § 3025, 113 Stat. 57, 100–
101 (1999)). The American Pelagic court further explained that after a few subsequent,
unprofitable attempts to repurpose the Atlantic Star, American Pelagic brought suit in the
United States Court of Federal Claims in March 1999, “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.” Am. Pelagic Fishing Co. v. United States,
379 F.3d at 1369. In July 1999, “American Pelagic sold the Atlantic Star to two of its
partners.” Id. The Federal Circuit further explained that “in its complaint, American Pelagic
asserted that it had a property right in its fishery permits and authorizations that was taken
by the legislation,” as well as “asserted that the United States had ‘taken, destroyed, and
deprived [American Pelagic] of its compensable, investment backed expectations in the
use and operation of the [Atlantic Star]’ and had ‘taken all economically viable use’ of the
vessel.” Id. Addressing, first, plaintiff’s cognizable property interests in its “fishery
permits,” i.e., the FFPs discussed above, “and authorization letter,” the Federal Circuit in
American Pelagic stated:

We conclude that American Pelagic did not and could not possess a
property interest in its fishery permits and authorization letter. In Conti, we
explained that because he could not assign, sell, or transfer his swordfishing
permit, because it did not confer exclusive fishing privileges, and because

32
 the government at all times retained the right to revoke, suspend, or modify
it, Paul Conti did not possess a property interest in his permit. 291 F.3d at
1341–42. This “absence of crucial indicia of a property right, coupled with
the government’s irrefutable retention of the right to suspend, revoke, or
modify” the swordfishing permit “compels the conclusion that the permit
bestowed a revocable license, instead of a property right.” Id. at 1342. The
same reasoning extends to American Pelagic’s permits and authorization
letter. There is simply no contention that American Pelagic had the authority
to assign, sell, or transfer its permits and authorization letter, nor that it was
granted exclusive privileges to fish for Atlantic mackerel and herring in the
EEZ. American Pelagic distinguishes its permits from Mr. Conti’s only by
alleging that the government could not refuse to issue or reissue, revoke,
modify, or suspend them in the absence of specified conditions. As the
government notes, however, the regulation upon which American Pelagic
relies specifically provides that “Nothing in this subpart precludes sanction
or denial of a permit for reasons not relating to enforcement.” 15 C.F.R. §
904.301(a). This language preserved the government’s right to deny or
sanction the permits and authorization letter issued to the Atlantic Star. The
conditions we set forth in Conti are therefore met. We agree with the Court
of Federal Claims that American Pelagic did not possess a property interest
in its fishing permits and authorization letter.

Am. Pelagic Co. v. United States, 379 F.3d at 1375 (footnote omitted).

Like the plaintiffs in Conti and American Pelagic, plaintiffs in the above-captioned
case also have alleged a taking of their fishing licenses and permits, namely, the Federal
Fisheries Permits (FFP), License Limitation Program (LLP) licenses, and Amendment 80
Quota Share (QS) permits they had received. As an initial matter, the court notes that
plaintiffs, in their response to defendant’s motion to dismiss, largely focus on the LLP
license and the Amendment 80 QS permit, to the exclusion of the FFP, as meeting the
indicia to establish a cognizable property interest. Even if plaintiffs had attempted to put
forth argument with respect to the FFP, alleging a cognizable property interest in the FFP
is precluded by the Federal Circuit’s holding in American Pelagic. As discussed above,
the American Pelagic court squarely held that American Pelagic “did not and could not
possess a property interest in its fishery permits,” which included American Pelagic’s
FFPs, because, among other reasons, the FFP could not be transferred, and could be
revoked by the government at any time. See Am. Pelagic Co. v. United States, 379 F.3d
at 1374.

Plaintiffs attempt to distinguish their LLP licenses and the Amendment 80 QS
permits from the permits at issue in Conti and American Pelagic by focusing on certain
aspects of their transferability and exclusivity. Unlike the permits in Conti and American
Pelagic, the LLP license and the Amendment 80 QS permit can be transferred, but only
under specifically outlined conditions, including approval by NMFS, as dictated in 50
C.F.R. § 679.4(k)(7)(i)–(ix) (transfers of LLP licenses), and 50 C.F.R. § 679.90(e)
(transfers of Amendment 80 QS permits). With respect to exclusivity, plaintiffs’ LLP

33
licenses in the current case under consideration, on their own, do not allow the plaintiffs
to exclude others from the ability harvest or process groundfish. Instead, as explained
earlier in this Opinion, the License Limitation Program limits the number of participants
eligible to compete in the “race for fish,” based on a number of conditions, including
participation history in a specific groundfish, vessel size, and gear used, and anyone who
meets the criteria is eligible for an LLP groundfish license. See generally 50 C.F.R. §
679.4(k); 63 Fed. Reg. at 52,642 (“The LLP limits the number, size, and specific operation
of vessels that may be deployed in the groundfish fisheries in the exclusive economic
zone (EEZ) off Alaska.”). In addition, and contrary to plaintiffs’ contention, the Amendment
80 QS permit also does not confer exclusive fishing privileges to its holders. As explained
in the preamble to the Amendment 80 final rule:

Amendment 80 QS holders that do not join an Amendment 80 cooperative
can participate in the Amendment 80 limited access fishery. The Program
will assign to the Amendment 80 limited access fishery the amount of the
Amendment 80 sector’s allocation of Amendment 80 species ITAC . . . that
remains after allocation to all of the Amendment 80 cooperatives.
Participants fishing in the Amendment 80 limited access fishery will continue
to compete with each other; will not realize the same potential benefits from
consolidation and coordination; and will not receive an exclusive harvest
privilege that accrues to members of an Amendment 80 cooperative. NMFS
will manage the Amendment 80 limited access fishery similar to the way the
fisheries were managed prior to implementation of the program.

72 Fed. Reg. at 52,672 (capitalization in original). Therefore, only if an Amendment 80
QS permit holder joins a cooperative, and receives a cooperative quota (CQ) permit, does
the cooperative, not an individual such as FFI, have the ability to exclude others not part
of the cooperative from the combined quota share allocated to the cooperative. See 50
C.F.R. § 679.4(o)(2)(ii) (“A CQ permit authorizes an Amendment 80 cooperative to catch
a quantity of fish expressed as a portion of the ITAC . . . that may be held for exclusive
use by that Amendment 80 cooperative.”). Without holding a CQ permit, however, an
Amendment 80 QS permit holder must compete with other non-CQ-permit-holding
Amendment 80 QS holders for the six Amendment 80 groundfish discussed earlier in this
Opinion. Plaintiffs in the above-captioned case do not allege a takings of an Amendment
80 CQ permit.

Moreover, and notwithstanding the highly regulated conditions of transferability
and lack of exclusivity of the LLP license and the Amendment 80 QS permit, as the Conti
court observed, the Magnuson-Stevens Act “itself states that the limited access
authorization system ‘shall not create any right, title, or interest in or to any fish.’” Conti v.
United States, 291 F.3d at 1341 (quoting provision of the Magnuson-Stevens Act now
codified at 16 U.S.C. § 1853a(b)). Indeed, as discussed earlier in this Opinion, the
Magnuson-Stevens Act at 16 U.S.C. § 1853a(b) states, in full:

34
 (b) No creation of right, title, or interest

Limited access privilege, quota share, or other limited access system
authorization established, implemented, or managed under this chapter—

(1) shall be considered a permit for the purposes of sections
1857, 1858, and 1859 of this title;

(2) may be revoked, limited, or modified at any time in
accordance with this chapter, including revocation if the
system is found to have jeopardized the sustainability of the
stock or the safety of fishermen;

(3) shall not confer any right of compensation to the holder of
such limited access privilege, quota share, or other such
limited access system authorization if it is revoked, limited, or
modified;

(4) shall not create, or be construed to create, any right, title,
or interest in or to any fish before the fish is harvested by the
holder; and

(5) shall be considered a grant of permission to the holder of
the limited access privilege or quota share to engage in
activities permitted by such limited access privilege or quota
share.

Id. (emphasis in original). Furthermore, consistent with the above-expressed
congressional intent not to confer any right, title, or interest, and to preserve the
government’s authority to revoke the privileges enjoyed in a limited access privilege or
quota share, the regulations implemented by NMFS with respect to all of the permits
addressed in Part 679, including the FFP, the LLP license, and the Amendment 80 QS
permit, state:

(8) Harvesting privilege. Quota shares, permits, or licenses issued pursuant
to this part are neither a right to the resource nor any interest that is subject
to the “takings” provision of the Fifth Amendment to the U.S. Constitution.
Rather, such quota shares, permits, or licenses represent only a harvesting
privilege that may be revoked or amended subject to the requirements of
the Magnuson-Stevens Act and other applicable law.

50 C.F.R. § 679.4(a)(8); License Limitation Program, 63 Fed. Reg. at 52,654.

Therefore, under the analysis set forth in Conti and American Pelagic, which asks
the court to consider “traditional notions of property and existing rules and
understandings” in the context of permits and licenses arising out of the Magnuson-

35
Stevens Act, plaintiffs have not, and cannot, allege a cognizable property interest in their
FFPs, LLP licenses and Amendment 80 QS permits. See, e.g., Conti, 291 F.3d at 1341–
42. These rules and understandings include (1) the express congressional intent not to
confer property rights pursuant to a limited access privilege, and to preserve the
government’s authority to revoke a fishery participants’ privileges at any time; (2) the
accompanying regulations which explicitly preclude the FFP, LLP license, and
Amendment 80 QS from being the subject of a Fifth amendment takings; and (3) the
highly regulated and limited conditions under which plaintiffs can transfer, or exclude
others, to the extent that it can transfer or exclude, at all. In addition, to the extent that
plaintiffs attempt to argue that the “class of one” nature of the restrictions imposed by
section 836 of the Coast Guard Act, is somehow relevant in determining the existence of
a cognizable property interest in its various fishing licenses and permits, the court finds
such an argument not persuasive. As discussed above, the “Coast Guard Act
Sideboards” in section 836 of the Coast Guard Act limit plaintiffs’ ability harvest and
process in a number of groundfish fisheries, but do not limit any other participants in those
fisheries. See Coast Guard Act, § 836(a), 132 Stat. at 4320–21. As explained by the Conti
court, however, “it is his [Mr. Conti’s] relationship with the asserted permit—not the
government’s—that determines whether a property right exists.” Conti v. United States,
291 F.3d at 1341 (alteration added). The court also notes that in American Pelagic, in
which the restrictions, similar to the effect of the “Coast Guard Act Sideboards” in the
above-captioned case, operated to single out plaintiffs’ property and fishing permits, the
American Pelagic court did not afford any weight to a similar argument when determining
whether the plaintiff could establish a cognizable property interest in its fishing permits.

Although plaintiffs attempt to characterize their fishing licenses and permits as
“appurtenances” to its vessels, and otherwise attempt to invoke maritime law, in neither
Conti nor American Pelagic, did the Federal Circuit mention that the established principles
of maritime law had a role in determining whether a cognizable property interest could be
established in the permits at issue in those cases, even though both cases could have
involved maritime law to the same extent as the above-captioned case. See generally
Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1373–74 (acknowledging plaintiff’s
argument that it “had a property right in its ‘lawfully duly issued fishery permits and
authorizations’ that was ‘appurtenant to the use and operation of [American Pelagic’s]
fishing vessel,” but not referring to maritime law in its analysis (alterations in original)
(quoting American Pelagic plaintiff’s complaint)); Conti v. United States, 291 F.3d at
1340–42. Both cases solely focused on relevant provisions of the Magnuson-Stevens Act
and its implementing regulations. Therefore, although some of the licenses and permits
at issue in the above-captioned case may have some limited characteristics of
transferability and exclusivity, the totality of the circumstances, which include the
government’s express intent to retain the authority to revoke the licenses and permits at
any time, and that the licenses and permits cannot be the subject of a Fifth Amendment
takings, plaintiffs have not alleged a cognizable property interest in their various licenses
and permits.

36
Regulatory Taking of FFI’s Asserted Right to Use its Vessels for Harvesting and
Processing Groundfish

After finding in Conti and American Pelagic that the plaintiffs did not have
cognizable property interests in their fishing permits, the United States Court of Appeals
for the Federal Circuit in both cases turned next to address whether regulatory takings
had occurred of the respective plaintiffs’ vessels, and other physical property, as a result
of the regulatory restrictions affecting their fishing activities. Ultimately, the Federal Circuit
concluded in both cases that a Fifth Amendment takings of plaintiffs’ asserted rights to
use their property for commercial fishing, had not occurred. See Conti v. United States,
291 F.3d at 1343–45 (“We are unable to accept Mr. Conti’s argument that the limitation
on the use of his property [the F/V Providenza and swordfishing gear] that was imposed
by the ban on drift gillnet fishing resulted in a taking of that property.”); Am. Pelagic v.
United States, 379 F.3d at 1376 (“American Pelagic did not have, as one of the sticks in
the bundle of property rights that it acquired with title to the Atlantic Star, the right to fish
for Atlantic mackerel and herring in the EEZ.”).

In Conti, the Federal Circuit relied on a comparison of the impact of the drift gillnet
ban on Mr. Conti’s vessels and gear, to the impact of the regulations which restricted the
appellees in the Supreme Court case, Andrus v. Allard, 444 U.S. 51 (1979). The Andrus
case, as explained by the Conti court, involved regulations pursuant to the Eagle
Protection Act and Migratory Bird Treaty Act providing “that migratory birds and eagles,
and their parts, that were lawfully acquired prior to the effective dates of the statutes could
be possessed and transported without a federal permit, but that such birds and their parts
could not be purchased, sold, or traded, or offered for purchase, sale, or trade.” See Conti
v. United States, 291 F.3d at 1343–44 (citing Andrus v. Allard, 444 U.S. at 51; 16 U.S.C.
§§ 668(a), 703; 50 C.F.R. §§ 212.2(a) (1978), 22.2(a) (1978)). The appellees in Andrus,
who were “engaged in the trade of Indian artifacts,” a number of which artifacts “were
partly composed of the feathers of birds protected by the statutes and regulations,” and
which were in the possession of the appellees prior to when the “statutory protections
came into force,” “argued that the prohibition on commercial transactions in pre-existing
avian artifacts embodied in the regulations constituted a taking of their property under the
Fifth Amendment because the prohibition wholly deprived them of the opportunity to earn
a profit from the artifacts.” See Conti v. United States, 291 F.3d at 1344 (citing Andrus v.
Allard, 444 U.S. at 54). As quoted by the Conti court, the Supreme Court in Andrus
determined that a taking of the appellees’ property had not occurred:

“The regulations challenged here do not compel the surrender of the
artifacts, and there is no physical invasion or restraint upon them. Rather a
significant restriction has been imposed on one means of disposing of the
artifacts. But the denial of one traditional property right does not always
amount to a taking. At least where an owner possesses a full ‘bundle’ of
property rights, the destruction of one ‘strand’ of the bundle is not a taking,
because the aggregate must be viewed in its entirety. In this case, it is
crucial that appellees retain the rights to possess and transport their
property, and to donate or devise the protected birds.

37
 It is, to be sure, undeniable that the regulations here prevent the most
profitable use of appellees’ property. Again, however, that is not dispositive.
When we review regulation, a reduction in the value of property is not
necessarily equated with a taking.”

Conti v. United States, 291 F.3d at 1344 (quoting Andrus v. Allard, 444 U.S. at 65–66).
Relying on the above analysis in Andrus, the Conti court determined that a taking did not
occur with respect to Mr. Conti’s property, stating:

Andrus compels our rejection of Mr. Conti’s claim that the ban on drift gillnet
fishing resulted in a taking of the Providenza and its gear. We accept as
true all of the factual allegations in Mr. Conti’s complaint. The problem is
that those allegations make out less of a taking claim than the allegations
that were advanced in support of the taking claim that was rejected in
Andrus. Following the ban on drift gillnet fishing, Mr. Conti is in a far better
situation vis-a-vis his vessel and its gear than the appellees in Andrus were
vis-à-vis their artifacts in the wake of the Eagle Protection Act and Migratory
Bird Treaty Act regulations. Most importantly, Mr. Conti can offer for sale,
and can sell, his property, whereas the appellees in Andrus could do
neither. We are sympathetic to the situation in which Mr. Conti finds himself
following the ban on drift gillnet fishing in the Atlantic Swordfish Fishery.
However, as a matter of law, we are unable to hold that, on the alleged
facts, he has asserted a cognizable taking claim.

Conti v. United States, 291 F.3d at 1344–45. In addition, in a footnote, the Conti court
stated that “Mr. Conti’s taking claim fails for an additional reason.” Id. at 1345 n.8. The
Federal Circuit explained:

Mr. Conti’s ability to use his vessel and gear to catch swordfish using drift
gillnets in the Atlantic Swordfish Fishery was dependent upon a permit that
was revocable at all times and that, as we have seen, did not constitute a
property right for purposes of the Fifth Amendment. In Mitchell Arms, Inc. v.
United States, 7 F.3d 212, 217 (Fed. Cir. 1993), we rejected the claim that
the Bureau of Alcohol, Tobacco, and Firearms’ decision to revoke a permit
allowing the importation and sale of certain firearms constituted a taking of
the claimant’s right to use the permit for those purposes. We stated:
“Mitchell’s ability to import the rifles and sell them in the United States was
at all times entirely subject to the exercise of ATF’s regulatory power.
Consequently, any expectation which arose on Mitchell’s part as a result of
the import permits did not constitute a property right protected by the Fifth
Amendment.” Id. at 217. Likewise, the drift gillnet regulation at issue here
has banned a particular use of Mr. Conti’s vessel and gear “which was not
inherent in its ownership” and was “totally dependent upon the . . . permit
issued by” the government. Id.

38
Conti v. United States, 291 F.3d at 1345 n.8 (ellipsis in original).

In American Pelagic, the Federal Circuit took a slightly different approach than that
which it took in Conti when determining that regulations prohibiting the American Pelagic’s
Atlantic Star from participating in the mackerel and herring Northeast fisheries did not
constitute a taking of a property right inherent in the ownership of the Atlantic Star. See
generally Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1376–83. Focusing on
the history and enactment of the Magnuson-Stevens Act, the American Pelagic court
explained that “[t]he various provisions of the Magnuson Act are consistent with this
exercise of U.S. sovereignty over the EEZ and the fish and resources within it.” Id. at
1378. The American Pelagic court further stated that the Magnuson-Stevens Act, which
was “[e]nacted to ‘take immediate action to conserve and manage the fishery resources
found off the coast of the United States,’” “established national standards by which fishery
‘conservation and management’ plans would be developed,” and conferred “direct
authority” to the Regional Fishery Management Councils “over the fisheries within their
respective geographic regions,” including the “preparing and submitting” of Fishery
Management Plans. See id. at 1378–79 (citing 16 U.S.C. §§ 1801(b)(1), 1851(a), 1852).
The American Pelagic court also stated:

Significantly, the Magnuson Act bars foreign fishing in the EEZ entirely,
except as the United States permits, [16 U.S.C.] § 1821, and authorizes the
regional councils to require federal permits for U.S. fishermen to fish in any
fishery within the EEZ, id. § 1853(b)(1). Thus, in addition to asserting U.S.
sovereignty over the EEZ and the fish and resources therein, Congress also
erected an elaborate framework by which the fisheries in the EEZ would be
managed under the oversight of the Secretary.

Pursuant to the Magnuson Act, the “conservation and management of the
EEZ” belongs to the sovereign, and this necessarily includes the right to fish
in the zone. Moreover, there is no language in the statute to the effect that
any fishing privileges that are granted pursuant to the Magnuson Act vest
in their owners a property right protected by the Fifth Amendment.

Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1379 (quoting Foss v. Nat’l Marine
Fisheries Serv., 161 F.3d 584, 588 (9th Cir. 1998) (“[T]he language of the Magnuson Act
does not confer any claim of entitlement or property rights.”); and Parravano v. Babbitt,
861 F. Supp. 914, 928 (N.D. Cal. 1994) (“Thus, the Magnuson Act confers on the
Secretary of Commerce authority to manage the fishery resources in the EEZ for
conservation. It does not confer on commercial fishermen any right or title to the fishery
resources under the Department of Commerce’s authority.”), aff’d, 70 F.3d 539 (9th Cir.
1995), cert. denied, 518 U.S. 1016 (1996)). Furthermore, the American Pelagic court
stated:

Because it was already in place by the time American Pelagic purchased
the Atlantic Star, the Magnuson Act was an “existing rule” or “background
principle [ ]” of federal law that inhered in American Pelagic’s title to the

39
 vessel. Lucas, 505 U.S. at 1029–30, 112 S. Ct. 2886. In the words of the
Supreme Court, as far as ownership of the Atlantic Star was concerned, the
sovereign rights of the United States in the EEZ “inhere[d] in the title itself,
in the restrictions that background principles of the [federal government’s]
law . . . already place[d] upon . . . ownership. Id. at 1029, 112 S. Ct. 2886
(discussing restrictions on real property). It was against this framework of
existing federal restrictions on fishing in the EEZ that American Pelagic
invested in the Atlantic Star. 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. The revocation of American Pelagic’s permits,
therefore, did not “go [ ] beyond what the relevant background principles
would dictate.” Id. at 1030, 112 S. Ct. 2886.

Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1379 (alteration and ellipses in
original). The American Pelagic court also stated, “we conclude that the Magnuson Act
directly assumes for the federal government sovereignty over the right to fish for Atlantic
mackerel and herring in the EEZ,” as the Magnuson-Stevens Act “expressly asserts the
United States’ ‘sovereign rights for the purposes of exploring, exploiting, conserving, and
managing all fish’ within the EEZ,” and “the statute does not explicitly, or implicitly,
preserve any potentially pre-existing common law right to fish in the EEZ.” Id. (quoting 16
U.S.C. § 1801(b)(1)). Ultimately, the American Pelagic court found that “Mitchell Arms
and Conti control this case,” and stated:

What allegedly was taken in Mitchell Arms was the right to import firearms
and sell them in domestic commerce. What allegedly was taken in Conti
was the right to harvest swordfish in the Atlantic Swordfish fishery using drift
gillnets. In each case, the takings claim failed because what allegedly was
taken was not one of the sticks in the bundle of rights that inhered in
ownership of the underlying res: in Mitchell Arms, certain firearms; in Conti,
a fishing vessel. American Pelagic is in the same situation as the plaintiffs
in Mitchell Arms and Conti. As discussed above, because the Magnuson
Act assumed sovereignty for the United States over the management and
conservation of the resources located in the EEZ, and specifically over
fishery resources, American Pelagic did not have, as one of the sticks in the
bundle of property rights that it acquired with title to the Atlantic Star, the
right to fish for Atlantic mackerel and herring in the EEZ. American Pelagic
thus did not possess the property right that it asserts formed the basis for
its takings claim. In the absence of that property right, its claim is fatally
defective.

Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1382–83.

The holdings in American Pelagic and Conti are binding precedent on this court
and apply to the FFI case currently before the court regarding FFI’s asserted right to
harvest and process groundfish in the North Pacific fisheries of the EEZ, as these cases

40
hold that such an asserted right is not one of the “sticks” in the “bundle of property rights”
when taking title to vessels for the purpose of commercial fishing in the EEZ. Therefore,
when plaintiffs took title to the newly commissioned catcher/processor vessel, America’s
Finest, or title to the Defender LLP, or even its existing vessels, U.S. Intrepid and
American No. 1, inherent in those titles was, and currently is, an understanding that the
United States has sovereignty over the “management and conservation of the resources
located in the EEZ, and specifically over fishery resources.” See Am. Pelagic Fishing Co.
v. United States, 379 F.3d at 1383. Therefore, when section 836 of the Coast Guard Act
was enacted and limited the extent to which plaintiffs’ vessels could harvest and process
groundfish in the North Pacific of the EEZ, what was limited was not a right to which
plaintiffs are able to assert a taking. The Magnuson-Stevens Act, and its implementing
regulations, as determined by the United States Court of Appeals for the Federal Circuit,
was an “‘existing rule’ or ‘background principle [ ]’ of federal law that inhered in” FFI’s title
to their property. See Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1380
(alteration in original) (quoting Lucas v. S.C. Coastal Council, 505 U.S. at 1029–30).
Therefore, for the purposes of analyzing plaintiffs alleged takings, it does not matter that
the limitation came by way of Congressional enactment, as opposed to a regulation
promulgated by NMFS, or an amendment to the North Pacific Fishery Management Plan,
nor does it matter that the limitations impacted only plaintiffs’ vessels, and not all other
vessels participating in the groundfish fisheries in which plaintiffs’ vessels fished.

Plaintiffs allege that the limitations set forth in section 836 of the Coast Guard Act,
which limitations plaintiffs refer to as the “Coast Guard Act Sideboards,” and which
limitations constrict, for a maximum of six years, the amount of various groundfish that
FFI’s vessels can harvest in the GOA, and the amount of various groundfish that FFI’s
vessels can process for other vessels in the GOA and BSAI, amounted to a compensable
taking of plaintiffs’ vessels, licenses and permits. As explained above, under the
precedent set forth by the United States Court of Appeals for the Federal Circuit in
American Pelagic and Conti, plaintiffs do not have a cognizable property interest in the
right to conduct commercial fishing activities in any part of the EEZ, let alone the right to
conduct such commercial fishing activities to its unrestricted, maximum potential effort.
Unlike the plaintiffs in American Pelagic and Conti, the Coast Guard Act Sideboards do
not restrict plaintiffs’ ability to harvest or process fish in the North Pacific to such an extent
that it cannot harvest or process fish at all. To the contrary, plaintiffs are able to conduct
commercial fishing activities to the same extent they had been doing for the five years
preceding the enactment of the Coast Guard Act, but cannot exceed those amounts for
a maximum of six years following the enactment. See Coast Guard Act, § 836(a), 132
Stat. at 4320–21. Plaintiffs do not allege, and cannot allege, that the Coast Guard Act
Sideboards have physically taken the vessels, licenses or permits, or restricted plaintiffs
use of its vessels, licenses or permits to the extent that they are unusable. Indeed,
plaintiffs do not allege, and cannot allege, that the Coast Guard Act Sideboards prohibit
plaintiffs from selling its vessels, licenses or permits, to the extent that such licenses and
permits are transferable in accordance with the Magnuson-Stevens Act. The Coast Guard
Act Sideboards might have an adverse financial impact on plaintiffs, given FFI’s attempt
to add another vessel to its fleet, thereby increasing FFI’s potential output, and the
limitations also may have an adverse impact on plaintiffs’ ability to market its vessels,

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licenses and permits. Just as the Conti court concluded, however, that Mr. Conti’s
“allegations make out less of a taking claim than the allegations that were advanced in
support of the taking claim that was rejected in Andrus,” the same is true here. See Conti
v. United States, 291 F.3d at 1344. The Federal Circuit in Conti stated that Mr. Conti, who
was still able to sell his vessel and swordfishing permit, was “in a far better situation vis-
a-vis his vessel and its gear than the appellees in Andrus were vis-à-vis their artifacts in
the wake of the Eagle Protection Act and Migratory Bird Treaty Act regulations,” which
regulations prohibited the Andrus plaintiffs from selling their artifacts. Id. Just like Mr.
Conti, FFI “can offer for sale, and can sell, his property.” See Conti v. United States, 291
F.3d at 1344. Moreover, in Conti, after the drift gillnet restrictions, or in American Pelagic,
after the restrictions on the Atlantic Star, FFI is able to remain a participant in all of the
fisheries in which it had participated prior to the enactment of the Coast Guard Act
Sideboards. See Conti v. United States, 291 F.3d at 1340–41,1344; Am. Pelagic Fishing
Co. v. United States, 379 F.3d at 1369. Furthermore, the Coast Guard Act Sideboards do
not restrict plaintiffs’ ability in the above-captioned case to harvest the six Amendment 80
species, or any other species in the BSAI, see Coast Guard Act, § 836(a)(1)(A), 132 Stat.
at 4320 (limiting, to historical levels, and for a maximum of six years, plaintiffs’ ability to
harvest GOA groundfish not subject to a Limited Access Privilege Program, but not
mentioning BSAI groundfish), although the Coast Guard Act Sideboards do limit plaintiffs’
ability to process GOA or BSAI groundfish for other vessels, including Amendment 80
species. See id. at § 836(a)(1)(B), 132 Stat. at 4320–21. Nevertheless, the Coast Guard
Act Sideboards place FFI in a more favorable, and less restricted position with respect to
its vessels, licenses and permits, than any of the plaintiffs in Andrus, Conti or American
Pelagic.

For the reasons stated above, plaintiffs have not alleged a cognizable property
interest in the licenses or permits, or in the vessels which plaintiffs alleged were taken by
the Coast Guard Act Sideboards, and, therefore, plaintiffs have failed to successfully bring
a takings claim in this court. FFI has failed to demonstrate the existence of a legally
cognizable property interest. Defendant’s motion to dismiss is GRANTED, and plaintiffs’
complaint, therefore, is DISMISSED. The Clerk of the Court is instructed to enter
JUDGMENT consistent with this Opinion.

IT IS SO ORDERED.

s/Marian Blank Horn
MARIAN BLANK HORN
Judge

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