Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:07-cv-00035-CCM

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Filed 10/19/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

PALMYRA PACIFIC SEAFOODS, L.L.C., a Washington limited liability company; PALMYRA PACIFIC ENTERPRISES, L.L.C., a Washington limited liability company; PPE LIMITED PARTNERSHIP, a Washington limited partnership; KINGMAN REEF ENTERPRISES, L.L.C., a Washington limited liability company; AND FRANK SORBA, an individual, Plaintiffs, v. THE UNITED STATES, Defendant.

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No. 07-35 Judge Christine O.C. Miller

DEFENDANT'S MOTION FOR LEAVE TO SUBMIT SUPPLEMENTAL AUTHORITY Defendant, the United States, respectfully requests leave to submit supplemental authority in response to plaintiffs' motion for leave to submit documents, filed on October 18, 2007, and granted by the Court that same day. In their motion, plaintiffs allege that the United States established the Palmyra National Wildlife Refuge and closed the refuge to commercial fishing not for a public benefit, but to nullify plaintiffs' license. Pl. Mot. at 2. In response to plaintiffs' allegation, defendant directs the Court to the statute governing the National Wildlife Refuge System ("System"), 16 U.S.C. § 668dd. The statute provides that: The mission of the System is to administer a national network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within the United States for the benefit of present and future generations of Americans. . . .

Case 1:07-cv-00035-CCM

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Filed 10/19/2007

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With respect to the System, it is the policy of the United States that­ . . . each refuge shall be managed to fulfill the mission of the System, as well as the specific purposes for which that refuge was established. . . . 16 U.S.C. §668dd(a)(2) & (3)(A).1 Pursuant to the statute, when an area is designated as part of the System, all wildlife-dependent recreational use is prohibited until the Secretary of the Department of Interior completes the process for determining whether the recreational use is a compatible use within the refuge. 16 U.S.C. § 668dd(a)(3)(D). Therefore, the Palmyra National Wildlife Refuge ("Palmyra Refuge") was closed to commercial fishing because of the statute and the purpose of the refuge, not for the purpose of nullifying plaintiffs' license. Any effect on plaintiffs' license was an incidental or consequential effect of the Government's actions in developing the Palmyra refuge "for the benefit of present and future generations of Americans." 16 U.S.C. §668dd(a)(2). Moreover, the Palmyra refuge consisted of tidal lands, submerged lands, and waters out to 12 nautical miles. Compl. Ex. G. There is no private right to tidal lands or submerged lands, and there is no private right to fish in the surrounding waters of Palmyra. United States v. California, 332 U.S. 19 (1947); Pollard's Lesse v. Hagen, 44 U.S. 212 (1845); see also Pl. Opp. at 12. Therefore, there can be no license right that was directly effected by the Government's actions.

The order establishing the Palmyra National Wildlife Refuge stated its purpose as follows: "The Refuge is established to protect and preserve the natural character of fish, wildlife, plants, coral reef communities and other resources associated with the tidal lands, submerged lands, and waters of Palmyra. Compl. Ex. G. 2

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Case 1:07-cv-00035-CCM

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Filed 10/19/2007

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director s/Mark A. Melnick by Kirk Manhardt MARK A. MELNICK Assistant Director s/Marla T. Conneely MARLA T. CONNEELY Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C., 20530 Tel: (202) 305-3689 Fax: (202) 305-7643 October 19, 2007 Attorneys for Defendant

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