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Conti v. United States

Dismissal of complaint seeking compensation under taking clause of Fifth Amendment affirmed; prohibition against harvesting swordfish using drift gillnet gear did not represent a taking of any of plaintiff's property; petitioner's fishing license did not bestow a property right cognizable under the Amendment, and ban did not result in taking of petitioner's equipment because he could still resell it.

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Paul Conti is a swordfisherman. Along with Conti Corporation, he filed suit in the United States Court of Federal Claims seeking compensation under the taking clause of the Fifth Amendment. In his complaint, Mr. Conti alleged that the government’s 1999 prohibition on drift gillnet swordfishing in the Atlantic Swordfish Fishery had deprived him of all economic value in his swordfishing permit, his vessel, the F/V Providenza (owned by Conti Corporation), and his swordfishing gear. The Court of Federal Claims granted the government’s motion to dismiss the complaint under its Rule 12(b)(4) for failure to state a claim upon which relief could be granted. Conti v. United States, 48 Fed. Cl. 532 (2001). The court held that the swordfishing ban did not deprive Mr. Conti of the possession of his vessel and swordfishing gear and thus did not constitute a compensable taking of that property. Id. at 537. The court also held that Mr. Conti’s swordfishing permit did not give rise to a property interest cognizable under the Fifth Amendment and that it therefore could not be the subject of a taking. Id. at 537-38. Mr. Conti now appeals the court’s decision. *fn1 Because we conclude that the swordfishing ban did not take any of Mr. Conti’s property, we affirm.

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