News Service August 14, 2001

The Washington Times
www.washtimes.com

Congressional Expropriation
Thomas L. Jipping
Published 8/9/2001

President Bush has begun nominating individuals for the federal bench
who will follow the law rather than make it up. They will not "legislate
from the bench." The Bush administration can similarly defend the rule of
law by taking opportunities to defend private property rights.

A recent federal court decision provides such an opportunity.
     
In April, the U.S. Court of Claims ruled that the federal government
had violated the Constitution's Fifth Amendment by taking property without
just compensation. Congress had included in a 1997 appropriations bill a
provision retroactively terminating the fishing rights of a single vessel,
the U.S.-owned Atlantic Star. This targeted action destroyed years of work
and millions of investment dollars, decimating an American business.
     
What's worse, Congress never paid for its action.
     
The court called the facts of this case "deeply disturbing." The
plaintiff had researched the market for harvesting Atlantic mackerel,
relying heavily on a report from the U.S. International Trade Commission
concluding that larger vessels like hers could harvest fish more efficiently
and actually improve the competitive position of the mackerel market. In
this respect, the court said the plaintiff invested in this project
"virtually at government invitation."
     
In addition, the regional fishery management authority had said for
years that mackerel and herring were abundant and that larger vessels were
needed to make the U.S. industry more competitive. So the plaintiff
purchased and converted the Atlantic Star, and applied for and received the
necessary fishery permits and authorizations.
     
Owners of smaller vessels objected and pressured members of Congress to
enact vessel size limits and other restrictions. Hearings on a House bill
made clear that the Atlantic Star would be the only vessel put out of
business. A Senate bill was introduced to actually revoke permits of larger
vessels; statements by its sponsor, Sen. Olympia Snow, clearly focused on
the one vessel that would be affected, the Atlantic Star. As if there were
any doubt about the rationale behind the size limitations, the very same
proponents of the original legislation, having rid themselves of the
Atlantic Star, are now asking Congress to increase the tonnage limitations
because they are too limiting.
     
Perhaps because the regional professional fishery management
authorities questioned the real wisdom of such reactionary legislation,
these bills did not become law. Instead, as is often the way in Congress,
the purpose was achieved nonetheless through a "rider," or amendment,
attached to an appropriations bill. As the court described it, this
provision "retroactively canceled plaintiffs existing permits and
authorization letter and prospectively precluded re-issuance of such permits
. . . No other vessels were affected by the legislative revocation."
     
Bottom line: Congress deliberately put the Atlantic Star out of
business. In the court's words, the plaintiff's investment of nearly $40
million "was wiped out." Congress' action "prohibited all profitable uses of
the vessel."
     
The Constitution requires the feds to pay "just compensation" when they
take property. Though Congress has compensated owners of fishing vessels
before and since wiping out the Atlantic Star, the plaintiff here had to go
to court. The Clinton Justice Department argued that evicting a fishing
vessel from all U.S. fisheries did not require compensation Fortunately, the
Bush administration takes a different view of constitutional property rights
than its predecessor; President Bush actually believes in them. In a recent
speech in California, he outlined a new environmental approach that includes
deference to the rights of private property owners. Attorney General John
Ashcroft has similarly defended the constitutional rights of property
owners. In a June 1998 speech as senator, he said that "private property is
a necessary prerequisite of a free society."
     
More to the point here, then-Sen. Ashcroft warned in a letter dated
June 3, 1998, that the bill eventually decimating the Atlantic Star "raises
a serious question of taking property under the Fifth Amendment to the U.S.
Constitution." The U.S. Court of Claims answered that question in the
affirmative. Calling the action here "unique," Judge Eric Bruggink noted
that the National Marine Fisheries Service never revoked a fishery permit as
a result of an appropriations statute. This action, he wrote, "took
plaintiff's property interest in the use of its vessel."
     
During hearings on the original bill, then-U.S. Rep. Jack Metcalfe said
wiping out the Atlantic Star was "not only bad fishery policy, it is bad
government policy and is manifestly unfair. We here in Congress should be
trying to prevent government takings of private property, not facilitating
them, as this legislation most certainly does."
     
While Congress did not heed those words, the Bush administration can do
so now. It could prolong the process further through more litigation,
protracted discovery, and appeals. Or it could implement its professed
commitment to constitutional property rights by respecting the court's
decision and rectifying this injustice immediately.

Thomas L. Jipping is director of the Free Congress Foundation's Center
for Law & Democracy.


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