The United States appeals the decision of the United States Court of Federal Claims that American Pelagic Fishing Co., L.P. (“American Pelagic”) suffered a taking in violation of the Fifth Amendment to the U.S. Constitution, for which the court awarded damages in the amount of $37,275,952.67.
Am. Pelagic Fishing Co. v. United States,
BACKGROUND
I.
This case involves commercial fishing for mackerel and herring in the Exclusive Economic Zone (“EEZ”) of the United States in the Atlantic Ocean. The EEZ consists of the waters two hundred nautical miles from the coastal boundary of each state. See 16 U.S.C. § 1811 (2000); Proclamation No. 5030, 48 Fed.Reg. 10,605 (Mar. 14, 1983).
The pertinent facts are not in dispute. Throughout the 1990s, the National Marine Fisheries Service (“NMFS”)
1
reported that mackerel and herring stocks in the Atlantic Ocean were at record highs and were substantially underfished.
Am. Pe
*1367
lagic I,
[i]n order to compete in the world bulk market, the U.S. will have to emulate its foreign competitors which harvest, process, and ship mackerel in large quantities so as to take advantage of economies of scale. Currently, the U.S. east coast industry does not have the large vessels necessary to participate in this market....
Annual Quota Specifications for Atlantic Mackerel, Loligo, Illex, and Butterfish for 199712 (MAFMC July 1996).
For 1997, the NMFS established an allowable biological catch of 1.178 million metric tons of Atlantic mackerel, but commercial landings totaled only 15,406 metric tons.
Am. Pelagic I,
II.
Lisa Torgersen is the President and sole shareholder of American Pelagic.
Am. Pelagic II,
While the vessel was being outfitted, American Pelagic set about applying for the necessary permits and gear authorizations. Pursuant to 50 C.F.R. § 648.4(a)(5) (1996), the
Atlantic Star
was required to carry on board a valid Atlantic mackerel permit to fish for, possess, or land Atlantic mackerel in or from the EEZ. Because of the potential for incidental bycatch, the
Atlantic Star
also was required to have a Northeast Multispecies (Nonregulated) fish permit.
Id.
§ 648.4(a)(1). In April 1997, the Northeast Regional Office of the NMFS reissued both permits to American Pelagic:
5
Federal Fisheries Permit # 610018 for,
inter alia,
Atlantic mackerel, expiring December 31, 1997; and Federal Fisheries Permit # 610018 for Northeast Multispecies (Nonregulated), expiring April 30, 1998. In addition, pursuant to 50 C.F.R. § 648.80(d) (1996), on August 28, 1997, the Northeast Regional Office issued to American Pelagic a Gulf of Maine/Georges Bank Midwater Trawl Gear Authorization letter for,
inter alia,
Atlantic herring, expiring April 30,1998.
6
Am. Pelagic I,
III.
During 1997, as Ms. Torgersen prepared for commercial operation, opposition to the Atlantic Star began to develop. Id. Concerns about the size of the vessel and its potential effect on the Atlantic mackerel and herring fisheries were voiced at a joint meeting of the Herring Section of the Atlantic States Marine Fisheries Commission and the NEFMC Herring Committee in March 1997. These concerns subsequently were incorporated into legislation introduced in the U.S. House of Representatives to establish a moratorium on any fishing vessel, in the Atlantic mackerel and herring industries, equal to or greater than 165 feet in length, with an engine of more than 3,000 horsepower. Id. at 40-41 (citing H.R. 1855, 105th Cong. (1997)). In September 1997, a similar bill was introduced in the U.S. Senate. The Senate bill would have revoked Atlantic mackerel or herring permits that had been issued to vessels 165 feet or longer with an engine of more than 3,000 horsepower. Id. at 41 (citing S. 1192,105th Cong. (1997)).
Despite the fact that neither bill was enacted, Congress passed a rider to an appropriations act that effectively can-celled American Pelagic’s existing permits and authorization letter, and at the same time prevented any further permits from being issued to the Atlantic Star. Id. at 41-42 (citing text of Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998, Pub.L. No. 105-119, § 616, 111 Stat. 2440, 2518-19 (1997) (“1997 Appropriations Act”)). The following year, Congress enacted the identical provision in another appropriations act, 7 and in 1999, it made *1369 the size limitation and permit revocation permanent. 8 Id. at 42. The NMFS has since promulgated regulations reflecting this prohibition. 9 Id. As a result of the legislation, the Atlantic Star was unable to receive a permit to fish in any U.S. fishery within the EEZ; at the time, no other vessel was affected by the legislation. Id. at 42, 43.
After the
Atlantic Star’s
permits were cancelled, American Pelagic took the vessel to the Baltic Sea to participate in a research project. During this time, the vessel operated as a “mother ship”: it did not catch fish itself but merely processed the fish caught by other vessels. Because the venture was not profitable, the
Atlantic Star
spent only a few months in the Baltic. Subsequently, American Pelagic took the
Atlantic Star
to Mauritania, off the coast of west Africa, and purchased fishing rights for those waters while maintaining its status as a U.S.-flagged vessel. The vessel and its equipment performed to expectations; however, the lack of fish and warm water temperatures prevented the
Atlantic Star
from being profitable. American Pelagic chose not to reflag the
Atlantic Star
and obtain authorization to fish in a foreign fishery. By April 1999, American Pelagic was operating at a loss. After unsuccessful attempts to secure additional financing, and after rejecting Chapter 11 bankruptcy, American Pelagic sold the
Atlantic Star
to two of its partners on July 6, 1999.
Am. Pelagic II,
IV.
American Pelagic brought suit in the Court of Federal Claims in March 1999, alleging that the 1997 and 1998 Appropriations Acts revoking its permits and barring it from receiving future permits effected a temporary taking of the
Atlantic Star. Am. Pelagic I,
The court started from the premise that because licenses and permits are traditionally not protected by the Takings Clause, the
res
potentially taken by the legislation consisted of the
Atlantic Star
itself, which the government conceded to be property for Fifth Amendment purposes.
Id.
at 46. The court then explained, “To determine whether a property right exists independent of the regulatory scheme, it is necessary to decide ‘whether an independent or preexisting right of use under common law applies.’ ”
Id.
at 47 (quoting
Maritrans Inc. v. United States,
[t]he relevant stick in the bundle in this context is the right to use the Atlantic Star to fish, subject to regulation.... We are not confronted here with a property or a use which is inherently dangerous or a nuisance. There is nothing in the nature of a fishing vessel that suggests that any use is totally a matter of governmental grace.... Absent such a built-in limitation, personal property, like' land, comes with an inherent right of use. We note that the right to use is one of the group of rights inhering in the citizen’s relation to [a] physical thing.
Id. (citations and internal quotation marks omitted). The court thus determined that American Pelagic possessed a property interest “in using [the Atlantic Star ] to fish.” Id. at 48.
The court then embarked upon a regulatory takings analysis. In its analysis, the court decided that all three factors of the
Penn Central
test weighed in favor of finding that a regulatory taking had occurred: (i) American Pelagic’s investment-backed expectation of participating in the Atlantic mackerel fishery was reasonable; (ii) the degree of economic impact was severe enough to leave the
Atlantic Star
with no commercially viable uses; and (iii) the character of the government action, in purpose and effect, was both retroactive and targeted at American Pelagic.
Id.
at 48-51 (citing
Penn Cent. Transp. Co. v. City of New York,
The parties proceeded to a trial on damages in December 2002.
Am. Pelagic II,
The government has timely appealed the Court of Federal Claims’ decisions on both liability and damages. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).
ANALYSIS
I.
Summary judgment is appropriate only if there is no genuine issue of
*1371
material fact and the moving party is entitled to a judgment as a matter of law. Fed. Cl. R. 56(c);
Anderson v. Liberty Lobby, Inc.,
In reviewing a final decision of the Court of Federal Claims after a trial, we review legal conclusions
de novo,
and we review factual findings under the clearly erroneous standard.
Id.
(citing
Glendale Fed. Bank, FSB v. United States,
The government challenges both the grant of summary judgment on liability and the award of damages to American Pelagic. Because our ruling on the issue of liability disposes of the case, we do not reach the government’s challenge to the award of damages.
II.
The law generally applicable to takings claims is well settled. The Fifth Amendment to the United States Constitution provides that private property shall not “be taken for public use without just compensation.” U.S. Const, amend. V, cl. 4. The purpose of this prohibition is to prevent “Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”
Penn Central,
The Supreme Court has recognized that the government may “take” private property either by physical invasion or by regulation.
Lucas,
*1372
We have developed a two-part test to determine whether a taking has in fact occurred.
See Maritrans,
Second, after having identified a valid property interest, the court must determine whether the governmental action at issue amounted to a compensable taking of that property interest.
Chancellor Manor v. United States,
A categorical taking has been defined as one in which “all economically viable use, i.e., all economic value, has been taken by the regulatory imposition.” Palm Beach Isles Assocs. v. United States,231 F.3d 1354 , 1357 (Fed.Cir.), modifying208 F.3d 1374 (Fed.Cir.2000). A categorical taking is distinct from a taking “that is the consequence of a regulatory imposition that prohibits or restricts only some of the uses that would otherwise be available to the property owner, but leaves the owner with substantial viable economic use.” Id.
III.
Preliminarily, American Pelagic alleged that it had a property right in its
*1373
“lawfully duly issued fishery permits and authorizations” that was “appurtenant to the use and operation of [American Pelagic’s] fishing vessel, the
[Atlantic Star].”
Compl. ¶¶ 58, 64; Br. Pl.-Appellee at 27-29. According to American Pelagic, this property right was taken by the United States because the fishery permits and authorization letter had already been issued when the 1997 Appropriations Act was passed, and at the time, the NMFS lacked the discretion not to renew them. Br. Pl.-Appellee at 27-29. The Court of Federal Claims concluded, however, that no such property right existed: “Licenses or permits are traditionally treated as not protected by the Takings Clause because they are created by the government and can be cancelled by the government and normally are not transferable.”
Am. Pelagic I,
On appeal, American Pelagic reasserts its contention that it had a legally cognizable property interest in its lawfully issued fishing permits and authorization letter. First, it argues that the permits and authorization letter were mandatory, rather than discretionary.
See Foss v. Nat’l Marine Fisheries Serv.,
The government responds that American Pelagic did not have a property interest in its fishery permits. In support of its position, it cites
Conti,
We conclude that American Pelagic did not and could not possess a property interest in its fishery permits and authorization letter. In
Conti,
we explained that because he could not assign, sell, or transfer his swordfishing permit, because it did not confer exclusive fishing privileges, and because the government at all times retained the right to revoke, suspend, or modify it, Paul Conti did not possess a property interest in his permit.
IV.
American Pelagic’s main contention in the Court of Federal Claims was that the 1997, 1998, and 1999 Appropriations Acts, as implemented in 50 C.F.R. pt. 648, effected a taking of the use of the Atlantic Star for fishing in the Atlantic mackerel and herring fisheries in the EEZ. 15 Compl. ¶¶ 57-58, 60-61. Specifically, American Pelagic argued that, in fiscal years 1998 and 1999, the revocation of its permits “prohibited [American Pelagic’s] use of the [Atlantic Star ] for its intended operation in the Atlantic mackerel and herring fisheries of the United States, and any other fishery of the United States ... and has taken the expected net revenues or profits [American Pelagic] would have earned and *1375 received from use and operation of the [Atlantic Star ] ....” Id. ¶¶ 57, 63; see also id. ¶¶ 60, 66 (“United States has taken, destroyed, and deprived [American Pelagic] of its compensable investment backed expectations in the use and operation of the ATLANTIC STAR ... and has taken all economically viable use of the [Atlantic Star ].... ”); Br. Pl.-Appellee at 20-27.
American Pelagic asserted that there was either a categorical or a noncategorical regulatory taking. According to American Pelagic, a temporary categorical taking occurred because the revocation of American Pelagic’s permits and authorizations deprived the Atlantic Star of all economically beneficial use during the takings period. In the alternative, American Pelagic contended that analysis of each of the Penn Central factors established that a temporary noncategorical regulatory taking occurred.
The Court of Federal Claims concluded that American Pelagic did in fact possess a property interest in the use of the
Atlantic Star
to fish in the Atlantic mackerel and herring fisheries in the EEZ, and that this right was taken by the revocation of its permits and authorization letter.
Am. Pelagic I,
The court answered: “To determine whether a property right exists independent of the regulatory scheme, it is necessary to decide ‘whether an independent or preexisting right of use under common law applies.’ ”
Id.
at 47 (quoting
Maritrans,
Having found a cognizable property interest, the court went on to determine that each of the Penn Central factors was satisfied. Id. at 48-51. The court concluded that from the time the 1997 Appropriations Act was passed until the time that American Pelagic sold the Atlantic Star, the government “took [American Pelagic’s] property interest in the use of its vessel to fish for Atlantic mackerel in the EEZ.... ” Id. at 51.
V.
A.
On appeal, the government challenges the grant of summary judgment on liability in favor of American Pelagic. The government starts from the premise that in order for a taking claim to succeed, what must be taken is one of the sticks in the bundle of rights that defines the owner’s relationship to the res. From there, it argues that the Court of Federal Claims erred in holding that American Pelagic possessed a property interest in the use of the Atlantic Star to fish for Atlantic mackerel and herring in the EEZ, even subject to government regulation. The government urges that no property interest exists in an individual’s investment in uses of personalty that are dependent upon discretionary permit issuances by the government. Br. Def.-Appellant at 22.
American Pelagic recognizes that one of the sticks in the bundle of property rights that the owner of property acquires with his title must be proscribed in order for a taking to occur. Br. Pl.-Appellee at 21-27; Supp. Br. Pl.-Appellee at 2. However, because the use of the
Atlantic Star
to fish was lawful not only under traditional property and nuisance principles,
Lucas,
Thus, the question we must answer is this: Was the right to fish for Atlantic mackerel and herring in the EEZ a legally cognizable property interest such that it was a stick in the bundle of property rights that American Pelagic acquired as the owner of the Atlantic Star? For the reasons that follow, we conclude that it was not. Consequently, American Pelagic’s takings claim fails.
B.
We determine whether an asserted right is one of the rights in the bundle of sticks of property rights that inheres in a
res
by looking to “existing rules or understandings” and “background principles” derived from an independent source such as state, federal, or common law.
Lucas,
And in the case of personal property, by reason of the State’s traditionally high degree of control over commercial dealings, [the owner] ought to be aware of the possibility that new regulation might even render his property economically worthless (at least if the property’s only economically productive use is sale or manufacture for sale). See Andrus v. Allard,444 U.S. 51 , 66-67,100 S.Ct. 818 ,62 L.Ed.2d 210 (1979).
Lucas,
C.
Up until the 1960s, most nations with coastlines, including the United States, had declared jurisdiction over territorial seas of three miles and conservation zones of twelve miles.
See, e.g.,
Bartlett Act, Pub.L. No. 88-308, 78 Stat. 194 (1964) (previously codified at 16 U.S.C. §§ 1081-86) (three-mile territorial sea jurisdiction); Pub.L. No. 89-658, 80 Stat. 908 (1966) (previously codified at 16 U.S.C. §§ 1091-94) (three-to twelve-mile conservation zone jurisdiction) (both repealed by the Magnuson Act, title IV, § 402(a), (b),
Fishery conservation zone
There is established a zone contiguous to the territorial sea of the United States to be known as the fishery conservation zone. The inner boundary of the fishery conservation zone is a line coterminous with the seaward boundary of each of the coastal States, and the outer boundary of such zone is a line drawn in such a manner that each point on it is 200 nautical miles from the base *1378 line from which the territorial sea is measured.
16 U.S.C. § 1811 (1976).
Subsequently, in a presidential proclamation, President Reagan established the EEZ and assumed sovereign rights for the United States over this two-hundred-mile zone. Quoting from UNCLOS, Dec. 10, 1982, art. 56, ¶ 1, 21 I.L.M. 1245, 1280, 17 he announced:
Within the Exclusive Economic Zone, the United States has, to the extent permitted by international law, (a) sovereign rights for the purpose of exploring, exploiting, conserving and managing natural resources, both living and nonliving, of the seabed and subsoil and the superjacent waters and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds....
Proclamation No. 5030, 48 Fed.Reg. 10,-605. It is clear from this language that, at least as of' 1983, the United States had asserted sovereignty with respect to the exploration, exploitation, conservation, and management of the natural resources of the EEZ. This assertion of sovereignty was subsequently codified in the 1986 amendments to the Magnuson Act:
United States sovereign rights to fish and fishery management authority
(a) In the exclusive economic zone. Except as provided in section 102 [16 USCS 1812], the United States claims, and will exercise in the manner provided for in this Act, sovereign rights and exclusive fishery management authority over all fish, and all Continental Shelf fishery resources, within the exclusive economic zone.
(b) Beyond the exclusive economic zone. The United States claims, and will exercise in the manner provided for in this Act, exclusive fishery management authority over the following:
(1) All anadromous species throughout the migratory range of each such species beyond the exclusive economic zone; except that that management authority does not extend to any such species during the time they are found within any waters of a foreign nation.
(2) All Continental Shelf fishery resources beyond the exclusive economic zone.
Act of Nov. 14, 1986, Pub.L. No. 99-659, tit. I, § 101(b), 100 Stat. 3706, 3706-07 (codified as amended at 16 U.S.C. § 1811 (2000)). Thus, Congress explicitly assumed “sovereign rights and exclusive fishery management authority over all fish” in the EEZ. This assumption of sovereignty indisputably encompasses all rights to fish in the EEZ.
The various provisions of the Magnuson Act are consistent with this exercise of U.S. sovereignty over the EEZ and the fish and resources within it. Enacted to “take immediate action to conserve and manage the fishery resources found off the coast of the United States,” 16 U.S.C. § 1801(b)(1), the Magnuson Act established national standards by which fishery “conservation and management” plans would be developed, id. § 1851(a). Congress further established under the auspices of the Secretary Regional Fishery Management Councils, including the NEFMC and the MAFMC, with direct authority over the fisheries within their respective geographic regions. Id. § 1852. As noted above, each council is charged with the obligation, among others, of preparing and submitting FMPs for the fisheries within its authority. Id. § 1852(h). Congress required the FMPs to contain
*1379 conservation and management measures ... necessary and appropriate for the conservation and management of the fishery, to prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery . . . .
Id. § 1853(a)(1)(A). Significantly, the Magnuson Act bars foreign fishing in the EEZ entirely, except as the United States permits, id. § 1821, and authorizes the regional councils to require federal permits for U.S. fishermen to fish in any fishery within the EEZ, id. § 1853(b)(1). Thus, in addition to asserting U.S. sovereignty over the EEZ and the fish and resources therein, Congress also erected an elaborate framework by which the fisheries in the EEZ would be managed under the oversight of the Secretary.
Pursuant to the Magnuson Act, the “conservation and management of the EEZ” belongs to the sovereign, and this necessarily includes the right to fish in the zone. Moreover, there is no language in the statute to the effect that any fishing privileges that are granted pursuant to the Magnuson Act vest in their owners a property right protected by the Fifth Amendment.
See Foss,
Because it was already in place by the time American Pelagic purchased the
Atlantic Star,
the Magnuson Act was an “existing rule” or “background principle[ ]” of federal law that inhered in American Pelagic’s title to the vessel.
Lucas,
The Magnuson Act is consistent with the historical role played by the sovereign, state or federal, with respect to its waters. As early as 1876, the Supreme Court concluded that
[t]he principle has long been settled in this court, that each State owns the beds of all tide-waters within its jurisdiction, unless they have been granted away. In like manner, the States own the tidewaters themselves, and the fish in them, so far as they are capable of ownership while running.
McCready v. Virginia,
We are not persuaded by American Pelagic’s contention that there exists a historical common law right to use vessels to fish in the EEZ that was not abrogated by the Magnuson Act. American Pelagic points to language in the Magnuson Act that Congress was authorizing “no impediment to, or interference with, recognized legitimate uses of the high seas, except as necessary for the conservation and management of fishery resources.... ” 16 U.S.C. § 1801(c)(2). Plainly, rendering the ability to fish in the EEZ a matter of governmental permission, rather than a property right, is “necessary for the conservation and management of fishery resources ....” Id. The language itself thus explicitly carves out from the “legitimate uses” those involved in the conservation and management of fishery resources. Additionally, the phrase “conservation and management” is broadly defined in the statute to include, inter alia, “all of the rules, regulations, conditions, methods, and other measures ... which are required to rebuild, restore, or maintain, and which are useful in rebuilding, restoring, or maintaining, any fishery resource and the marine environment....” Id. § 1802(5) (2000). The right to use the Atlantic Star to fish for mackerel and herring unquestionably implicates the conservation and management of fishery resources. Accordingly, we conclude that the Magnuson Act directly assumes for the federal government sovereignty over the right to fish for Atlantic mackerel and herring in the EEZ. As American Pelagic itself notes, the Magnuson Act expressly asserts the United States’ “sovereign rights for the purposes of exploring, exploiting, conserving, and managing all fish” within the EEZ. Id. § 1801(b)(1). The statute does not explicitly, or implicitly, preserve any potentially pre-existing common law right to fish in the EEZ. 18
Neither are we persuaded by American Pelagic’s reliance on President Reagan’s Proclamation No. 5030, which states that the establishment of the EEZ “does not change existing United States policies concerning the continental shelf, marine mam *1381 mals and fisheries.... ” 48 Fed.Reg. at 10,605. The short answer is that “existing United States policies” included those “policies” enshrined in the Magnuson Act itself, which predated Proclamation No. 5030. 19 In sum, no right to fish in the EEZ inhered in American Pelagic’s title when it acquired the Atlantic Star. Because the right to use the vessel to fish in the EEZ was not inherent in its ownership of the Atlantic Star, American Pelagic did not suffer the loss of a property interest for purposes of the Takings Clause when its Atlantic mackerel and herring permits were revoked.
Our conclusion is consistent with
Mitchell Arms
and
Conti.
In the first case, Mitchell Arms, Inc. (“Mitchell Arms”) filed suit in the United States Claims Court alleging that the decision of the Bureau of Alcohol, Tobacco, and Firearms to revoke permits allowing the importation and sale of semi-automatic assault rifles constituted a taking of its right to use the permits for those purposes.
Mitchell Arms,
The plaintiff in
Conti
was Paul Conti, a swordfisherman. Mr. Conti was the owner of the
F/V Providenza,
a vessel that he used to fish for swordfish in the Atlantic Swordfish fishery using drift gillnets. Mr. Conti filed suit in the Court of Federal Claims alleging that the government’s 1999 ban on harvesting swordfish using drift gillnets constituted a regulatory taking of his swordfishing permit, the
Providenza,
and his gillnet gear without just compensation, in violation of the Fifth Amendment.
Mr. Conti appealed the dismissal of his complaint, and we affirmed. We did so on two grounds. Relying on
Andrus v. Allard,
20
we concluded that Mr. Conti’s “continuing ability to sell the vessel and the gear, fish in a different fishery, or put both the nets and vessel to other uses” precluded us from ruling that a regulatory taking had occurred.
Conti,
In Mitchell Arms, Inc. v. United States,7 F.3d 212 , 217 (Fed.Cir.1993), we rejected the claim that the Bureau of Alcohol, Tobacco, and Firearms’ decision to revoke a permit allowing the importation and sale of certain firearms constituted a taking of the claimant’s right to use the permit for those purposes. We stated: “Mitchell’s ability to import the rifies and sell them in the United States was at all times entirely subject to the exercise of ATF’s regulatory power. Consequently, any expectation which arose on Mitchell’s part as a result of the import permits did not constitute a property right protected by the Fifth Amendment.”7 F.3d at 217 . Likewise, the drift gillnet regulation at issue here has banned a particular use of Mr. Con-ti’s vessel and gear “which was not inherent in its ownership” and was “totally dependent upon the ... permit issued by” the government. Id.
Id.
Mitchell Arms and Conti control this case. What allegedly was taken in Mitchell Arms was the right to import firearms and sell them in domestic commerce. What allegedly was taken in Conti was the right to harvest swordfish in the Atlantic Swordfish fishery using drift gillnets. In each case, the takings claim failed because what allegedly was taken was not one of the sticks in the bundle of rights that inhered in ownership of the underlying res: in Mitchell Arms, certain firearms; in Conti, a fishing vessel. American Pelagic is in the same situation as the plaintiffs in Mitchell Arms and Conti. As discussed above, because the Magnuson Act assumed sovereignty for the United States over the *1383 management and conservation of the resources located in the EEZ, and specifically over fishery resources, American Pelagic did not have, as one of the sticks in the bundle of property rights that it acquired with title to the Atlantic Star, the right to fish for Atlantic mackerel and herring in the EEZ. American Pelagic thus did not possess the property right that it asserts formed the basis for its takings claim. In the absence of that property right, its claim is fatally defective. 21
CONCLUSION
For the foregoing reasons, we reverse the holding of American Pelagic I that the revocation of American Pelagic’s permits and authorization letter constituted a taking under the Fifth Amendment. We therefore vacate the award of damages in American Pelagic II. The case is remanded to the Court of Federal Claims with the instruction that it enter judgment in favor of the United States.
COSTS
Each party shall bear its own costs.
REVERSED, VACATED, and REMANDED
Notes
. The Magnuson-Stevens Fishery Conservation and Management Act, Pub.L. No. 94-265, 90 Stat. 331 (1976) (codified at 16 U.S.C. §§ 1801-1883) ("Magnuson Act”), confers federal management authority over marine fishery resources upon the Secretary of Commerce ("Secretary”) and the NMFS, a subunit of the National Oceanic and Atmospheric Administration, which is an agency within the Department of Commerce ("Commerce”).
See Am. Pelagic I,
. The MAFMC is one of eight regional fishery councils charged with developing fishery management plans for fisheries within the EEZ in accordance with the standards set forth in the Magnuson Act.
See
16 U.S.C. § 1851. The MAFMC has management responsibility for Atlantic mackerel, while the New England Fishery Management Council ("NEFMC”) has management responsibility for Atlantic herring. Once a Fishery Management Plan ("FMP”) is approved by the Secretary, it is promulgated by the NMFS. During the relevant time period in 1997, an official FMP was in place for the Atlantic mackerel fishery, but only a preliminary FMP was in place for the Atlantic herring fishery.
Am. Pelagic I,
. A "control date” provides notice to anyone subsequently entering a fishery that , he is not assured of continued participation in the fishery should a limited entry scheme be implemented. See, e.g., Atlantic Mackerel, Squid, and Butterfish Fisheries, 57 Fed.Reg. 36,384 (Dep’t Commerce Aug. 13, 1992).
. The government's interrogatory responses indicate that commercial landings of Atlantic mackerel in 1997 totaled 15,406 metric tons, not 15,706 as the Court of Federal Claims stated in
Am. Pelagic I,
. Initially, the permits were issued to the Atlantic Star Fishing Company on February 5, 1997.
Am. Pelagic I,
. American Pelagic was required to carry this authorization letter because it planned to harvest fish with midwater trawl gear of mesh size less than that normally required by the regulations. 50 C.F.R. § 648.80(d).
. Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1999, Pub.L. No. 105-277, tit. II, § 202, 112 Stat. 2681, 2681-618 (1998) ("1998 Appropriations Act”).
. 1999 Emergency Supplemental Appropriations Act, Pub.L. No. 106-31, § 3025, 113 Stat. 57, 100-101 (1999) ("1999 Appropriations Act") (amending section 617 of the 1998 Appropriations Act).
. See Fisheries of the Northeastern United States, 64 Fed.Reg. 57,587 (Dep’t Commerce Oct. 26, 1999) (revising 50 C.F.R. pt. 648 and imposing size and power limitations on vessels in the Atlantic mackerel fishery); Magnuson-Stevens Fishery Conservation and Management Act Provisions, 65 Fed.Reg. 77,450 (Dep’t Commerce Dec. 11, 2000) (revising 50 C.F.R. pt. 648 and imposing size and power limitations on vessels in the Atlantic herring fishery).
. In
Am. Pelagic II,
the court also affirmed its previous analysis of the three
Penn Central
factors in light of
Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency,
. American Pelagic alleged a temporary, as opposed to a permanent, taking of its property interest. Temporary takings are not different in kind from permanent takings — a temporary taking simply occurs when what would otherwise be a permanent taking is temporally cut short.
Wyatt,
. Section 648.4(k) provides: "A permit issued under this part is not transferable or assignable. A permit will be valid only for the fishing vessel, owner and/or person for which it is issued.” 50 C.F.R. § 648.4(k).
. Section 684.4(h) provides: "A permit will continue in effect unless it is revoked, suspended, or modified under 15 CFR part 904, or otherwise expires, or ownership changes, or the applicant has failed to report any change in the information on the permit application to the Regional Administrator as specified in paragraph (f) of this section.” Id. § 648.4(h). Section 684.4(m) provides: "The Assistant Administrator may suspend, revoke, or modify, any permit issued or sought under this section. Procedures governing enforcement-related permit sanctions or denials are found at subpart D of 15 CFR part 904.” Id. § 648.4(m).
. Although American Pelagic contends that its permits were potentially transferable to future owners of the Atlantic Star, it does not contend that those permits were transferable to a different vessel. Moreover, American Pelagic does not argue that it had the authority to effect a transfer of its permits to future owners of the Atlantic Star. It asserts only that future owners of the same vessel could apply for the same permits held by American Pelagic, and if they qualified, the permit numbers would stay the same and remain with the vessel.
. It is undisputed that American Pelagic had a property interest in the
Atlantic Star. See Am. Pelagic I,
. The Court explained:
[0]ur “takings” jurisprudence ... has traditionally been guided by the understandings of our citizens regarding the content of, and the States power over, the “bundle of rights” that they acquire when they obtain title to property. It seems to us that the property owner necessarily expects the uses of his property to be restricted, from time to time, by various measures newly enacted by the State in legitimate exercise of its police powers; "as long recognized, some values are enjoyed under an implied limitation and must yield to the police power.” Pa. Coal *1377 Co. v. Mahon, 260 U.S. [393,] 413,43 S.Ct. 158 ,67 L.Ed. 322 [(1922)].
Lucas,
. To date, the United States has not ratified UNCLOS.
. American. Pelagic points to the text of 43 U.S.C. § 1332(1), (2) (2000), which provides the United States with “jurisdiction, control, and power of disposition" over the subsoil and seabed of the outer Continental Shelf that underlies the waters of the EEZ. The statute states that "the character of the waters above the outer Continental Shelf as high seas and the right to navigation and fishing therein shall not be affected....” Outer Continental Shelf Lands Act, Pub.L. No. 212, ch. 345, §§ 2(a), 3(b), 67 Stat. 462, 462 (1953) (codified as amended at 43 U.S.C. § 1332) ("OCS-LA”). Citing
Massachusetts v. Andrus,
. American Pelagic also points to the statement in the fact sheet accompanying Proclamation No. 5030 that "The President has not changed the breadth of the United States territorial sea.” American Pelagic’s reliance on this statement is misplaced. The EEZ, as stated in Proclamation No. 5030, is an area "beyond the territory and territorial sea of the United States,” 48 Fed.Reg. at 10,606, that now extends to twelve nautical miles from the baseline of the United States. Proclamation No. 5298, 54 Fed.Reg. 777 (Dec. 27, 1988). Even assuming it is to be accorded any measure of authoritative force, the statement in the fact sheet simply does not pertain to the assumption of sovereignty over fisheries in the EEZ pursuant to the Magnuson Act.
. The claimants in
Andrus
contended that federal regulations prohibiting the sale of parts of birds that were legally killed before the birds were protected by federal statute effected a taking of their bird artifacts.
Andrus, 444
U.S. at 64,
The regulations challenged here do not compel the surrender of the artifacts, and there is no physical invasion or restraint upon them. Rather, a significant restriction has been imposed on one means of disposing of the artifacts. But the denial of one traditional property right does not always amount to a taking. At least where an owner possesses a full "bundle” of property rights, the destruction of one "strand" of the bundle is not a taking, because the aggregate must be viewed in its entirety. In this case, it is crucial that appellees retain the rights to possess and transport their property, and to donate or devise the protected birds.
Id.
at 65-66,
. American Pelagic argues that
Maritrans, Inc. v. United States,