Fleming v. United States

• Decision Date: 12 November 1965
• Docket Number: No. 403-61.,403-61.
• Citation: 352 F.2d 533,173 Ct. Cl. 426
• Parties: George F. FLEMING, Herman R. Guerrero, Josefa S. Guerrero, Herman Kintol, Pedro Lifoifoi, Ramon Matsunaga, Juan Sn. Pangelinan, Joaquin G. Sablan, and Manuel S. Villagomez v. The UNITED STATES.
• Court: U.S. Claims Court

173 Ct. Cl. 426, 352 F.2d 533 (1965)

George F. FLEMING, Herman R. Guerrero, Josefa S. Guerrero, Herman Kintol, Pedro Lifoifoi, Ramon Matsunaga, Juan Sn. Pangelinan, Joaquin G. Sablan, and Manuel S. Villagomez v. The UNITED STATES.

No. 403-61.

United States Court of Claims.

November 12, 1965.

Paul M. Rhodes, Washington, D. C., attorney of record, for plaintiffs. Finton J. Phelan, Jr., Agana, Guam, of counsel.

Bruno A. Ristau, Washington, D. C., with whom was Asst. Atty. Gen. John W. Douglas, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS and COLLINS, Judges.

DURFEE, Judge.

Plaintiffs, citizens and permanent residents of Saipan, Mariana Islands, allege in this action that the United States Government has taken their property, i. e., trochus¹ shells, without just compensation in violation of the Fifth Amendment of the Constitution. Plaintiffs, therefore, claim compensation for the alleged taking.²

The Island of Saipan is a part of the Trust Territory of the Pacific Islands, and on the dates pertinent herein was governed and administered by the United States Navy, under Executive Order No. 10408³ on behalf of the United States, under a United Nations Trusteeship approved by Joint Resolution of Congress, dated July 18, 1947.⁴ On June 6, 1956, the Naval Administrator of Saipan published the following notice:

To: All Permanent Residents of the Saipan District, Trust Territory of the Pacific Islands

1. It has come to the attention of the Naval Administrator that trochus shells of less than three (3) inches in diameter at the base have been taken in violation of Sections 771 and 774 of the Code of the Trust Territory of the Pacific Islands. The foregoing was confirmed by an investigation made jointly by LCDR Glenn A. Evans, Lt. William C. Ruddick and Mr. John P. Raker, all of Naval Administration Unit, Saipan.

2. All persons owning or possessing trochus shells of less than three (3) inches in diameter at the base are required to deliver such trochus shells to the Mayor of Saipan, Ignacio Benavente, or to his authorized representative, at the Mayor\'s office in Chalan Kanoa, on or before 12 June 1956. The Mayor or his authorized representative will weigh such trochus shells and issue receipts for such trochus shells so delivered. Such trochus shells will be sold by the Government and the proceeds thereof placed in the District Revenue Funds to be utilized for the direct benefit of the indigenous population.

3. Any person failing to deliver such illegal sized trochus shells as required by paragraph two (2) above, or anyone discovered to be in possession of illegal sized trochus shell after 12:00 noon, 12 June 1956 will be prosecuted under Sections 771 and 774 of the Code of the Trust Territory of the Pacific Islands.

4. The exportation from the Saipan District of trochus shells of less than three (3) inches in diameter at the base by anyone except the Government is and will be prohibited. ⁵

The present plaintiffs were primarily merchants who did not dive for, or harvest the trochus shells, but instead purchased them for export from persons who gathered them. Plaintiffs had in their possession some 25,000 pounds of undersized trochus shells, i. e., shells with a diameter less than three inches at the base. As a result of the notice of June 6, 1956 plaintiffs delivered said undersized shells to a representative of the U.S. Naval Administration Unit. No force was used against plaintiffs in an effort to cause them to part with the shells. Plaintiffs surrendered the shells in the belief that if they did not do so, they would be prohibited from exporting the shells and further, that they would be subject to prosecution. The U.S. Naval Administration Unit thereafter exported and sold the shells to Japan. The proceeds from the sale of these undersized trochus shells were paid to the Treasurer of the Municipality of Saipan to be used for charitable purposes and for the benefit of local indigents.

Plaintiffs twice protested the confiscation of the trochus shells by the Naval Administration. By letter of June 27, 1956 they wrote the Naval Administrator, requesting that he reconsider his June 6 notice and not require a confiscation of the undersized shells. The letter also states in part:

It is deeply regretted that our acts of negligence resulted in a violation of the Trust Territory Code relating to the collection of trochus. May we invite your attention to the fact that we took for granted the collection of this size trochus was all right because of the practice of the past several years.

We now pledge ourselves that the collection of undersized trochus will not occur again.

The Naval Administrator replied to plaintiffs' letter, and rejected their request. In so doing, he stated in part:

You have given as a reason for requesting reconsideration "the fact that we took for granted the collection of this size trochus was all right because of the practice of the past several years." This allegation is not clear, as I have not knowingly permitted the illegal collection or sale of trochus. I have no authority to waive the provisions of the Trust Territory law, nor does any of my subordinates have such authority.

On 3 March 1956, a public notice was issued in the English, Chamorro, and Carolinian languages, over my signature. This notice established the trochus season and repeated the provisions of the Code of the Trust Territory which prohibits the taking of trochus with a shell less than three inches in diameter. This notice was widely distributed and all of you were aware of its contents.

Even if there has been some undisclosed laxness in law enforcement in the past, the provisions of the above notice clearly state that no undersized trochus should be taken.

The second protest of the confiscation was made in 1960 through an attorney. In this protest plaintiffs for the first time alleged that the shells had not been illegally harvested, but instead, were dead shells that had been picked up on the beach after storms. The Commander-in-Chief of the U.S. Pacific Fleet rejected the protest and replied to plaintiffs on February 28, 1961. The Commander-in-Chief stated that there was no merit to plaintiffs' claim. Plaintiffs thereafter brought suit in this court, seeking just compensation for the confiscated trochus shells.

Plaintiffs rely upon two prior cases decided by this court, Dore et al. v. United States, 97 F.Supp. 239, 119 Ct.Cl. 560 (1951) and Arkansas Rice Growers Co-operative Association v. United States, 137 Ct.Cl. 442 (1957), in support of the proposition that plaintiffs' surrender of the shells constituted a taking by the Government. In both Dore and Arkansas Rice Growers, supra, plaintiffs were millers of rice who sued for just compensation for quantities of rice delivered to the Government pursuant to war regulations under compulsory set aside orders. Plaintiffs were paid low OPA ceiling prices, which caused plaintiffs to incur losses. The court held that such forced sales constituted takings by the Government, as it had not paid plaintiffs just compensation within the meaning of the Fifth Amendment. We do not believe these cases are applicable to the case at hand. In Dore and Arkansas Rice Growers, there was no doubt that the rice belonged to plaintiffs. They had legal title to the rice before they were forced to sell it. We do not believe that plaintiffs in the case now before us had any title in or right to possession of the trochus shells. The shells, in fact, were...