New England Legal Foundation
  • Home
  • About
    • Mission & History
    • Annual Reports
    • Board of Directors
    • State Advisory Councils >
      • Connecticut
      • Maine
      • Massachusetts
      • New Hampshire
      • Rhode Island
      • Vermont
    • Trustees
    • Members
    • Staff
    • Job & Internship Opportunities
  • News & Events
  • Docket
  • Briefs
  • Donate
  • Contact

American Pelagic Fishing Co. v. United States

10/5/2005

 
Defending a Business’s Investment in a Heavily Regulated Industry

This case involved a ship owner, American Pelagic Fishing Co. (“American Pelagic”), who made a substantial investment in a large fishing ship based on a regulatory scheme that encouraged mackerel and herring fishing and obtained the required federal permits Rival fishing interests succeeded in having the regulations changed, thereby destroying the American Pelagic’s investment. American Pelagic sued the United States in the Court of Federal Claims for a regulatory taking.  It prevailed in that forum, in part because of the targeted nature of the legislation that retroactively revoked its permits.  The United States appealed this decision to the United States Court of Appeals for the Federal Circuit, and the Federal Circuit reversed primarily on the basis that because, prior to American Pelagic’s investment, the federal government already had complete sovereignty over the maritime zone at issue in the case (the “Exclusive Economic Zone”), American Pelagic had no cognizable property interest and, accordingly, is entitled to no relief.  Potentially, this decision could be read to indicate that investors in any heavily regulated industry have no protectible property interest in their investments.  

On October 7, 2004, NELF filed an amicus brief in support of American Pelagic’s request for a rehearing of this matter en banc.  NELF argued, first, that the Federal Circuit’s decision represents poor public policy, as it would discourage investment in highly regulated industries. Second, NELF argued that the panel’s decision in this case was directly contrary to the recent Federal Circuit decision in Cinega Gardens v. United States, 331 F.3d 1319 (Fed. Cir. 2003), which held, inter alia, that “the fact that [an] industry is regulated [is not] dispositive,” and that, the mere fact of heavy regulation, “does not mean that all regulatory changes are reasonably foreseeable or that regulated businesses can have no reasonable investment-backed expectations whatsoever.” The Federal Circuit denied reconsideration en banc. American Pelagic petitioned for certiorari and NELF submitted a supportive amicus brief that focused on the Federal Circuit’s misunderstanding of the limited nature of the federal government’s sovereign rights in the Exclusive Economic Zone.  On June 27, 2005, the Supreme Court denied certiorari.


Comments are closed.

    The Docket

    To obtain a copy of any of NELF's briefs, contact us at info@nelfonline.org.

    Categories

    All
    1st Circuit Court Of Appeals
    2nd Circuit Court Of Appeals
    3rd Circuit Court Of Appeals
    Business Litigation Session
    CT
    CT Superior Court
    CT Supreme Court
    Employer Employee Relationships
    February 2018
    February 2019
    Government Regulation/Administration Of Justice
    MA
    MA Appeals Court
    MA Division Of Administrative Law Appeals
    March 2015
    MA Superior Court
    MA Supreme Judicial Court
    MA US District Court
    ME
    ME Supreme Judicial Court
    NH
    NH Supreme Court
    Property Rights
    RI
    RI Supreme Court
    SCOTUS
    United States Supreme Court
    US Court Of Appeals Federal Circuit
    US District Court ME
    VT
    VT Supreme Court

    RSS Feed

    Archives

    August 2020
    June 2020
    January 2020
    June 2019
    April 2019
    October 2018
    June 2018
    February 2018
    October 2017
    October 2016
    June 2016
    February 2016
    October 2015
    June 2015
    March 2015
    October 2014
    June 2014
    February 2014
    October 2013
    June 2013
    February 2013
    October 2012
    June 2012
    February 2012
    October 2011
    June 2011
    February 2011
    October 2010
    June 2010
    February 2010
    October 2009
    February 2009
    October 2008
    June 2008
    February 2008
    October 2007
    June 2007
    October 2006
    June 2006
    February 2006
    October 2005
    June 2005
    February 2005
    October 2004
    June 2004
    February 2004
    October 2003
    May 2003
    February 2003
    September 2002
    May 2002
    February 2002
    May 2001