- The Washington Times - Thursday, August 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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