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Conti v. United States

Citation: 32 ELR 20667
No. No. 01-5068, 291 F.3d 1334/(Fed. Cir., 05/29/2002)

The court holds the U.S. Department of Commerce's (DOC's) 1999 prohibition on drift gillnet swordfishing in the Atlantic Swordfish Fishery did not effect a taking of an individual's fishing permit, boat, or drift gillnets. The court first holds that the ban on draft gillnet fishing did not cause a taking of the individual's fishing permit. The U.S. Supreme Court and other courts have held that no property rights are created in permits and licenses. The individual did not have the right to assign, sell, or otherwise transfer his permit, and the rights to sell, assign, or otherwise transfer are traditional hallmarks of property. Additionally, because the permit did not confer exclusive fishing privileges, the individual did not have the authority to exclude others from the fishery, and the government at all times retained the right to revoke, suspend, or modify the permit. Further, the Magnuson-Stevens Fishery Conservation and Management Act, under which the permit was issued, states that the limited access authorization system shall not create any right, title, or interest in or to any fish and that the DOC may adopt regulations that limit or terminate a particular permit system without compensation to the holders. The absence of crucial indicia of a property right, coupled with the government's irrefutable retention of the right to suspend, revoke, or modify the individual's permit, compels the conclusion that the permit bestowed a revocable license, instead of a property right, and thus there was no taking. Moreover, the court holds that the ban did not deprive the individual of all economically viable use and enjoyment of his boat, gillnets, or related gear. The individual's continuing ability to sell the vessel, gear, and fish in a different fishery or to put the nets and vessel to other uses preclude a finding that a regulatory taking occurred.

Counsel for Plaintiff
Paul Antinori Jr.
Law Offices of Paul Antinori Jr.
733 Turnpike St., Ste. 336, N. Andover MA 01845
(617) 679-0792

Counsel for Defendant
Marian E. Sullivan
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Schall, J. Before Newman and Clevenger, JJ.