Kingman Reef Atoll Invs., L.L.C. v. United States

• Decision Date: 08 March 2012
• Docket Number: No. 06-828L,06-828L
• Parties: KINGMAN REEF ATOLL INVESTMENTS, L.L.C., et al., Plaintiffs, v. UNITED STATES, Defendant.
• Court: U.S. Claims Court

KINGMAN REEF ATOLL INVESTMENTS, L.L.C., et al., Plaintiffs,

v.UNITED STATES, Defendant.

No. 06-828L

United States Court of Federal Claims

Filed: March 8, 2012

Motions to Reconsider Jurisdiction; 28 U.S.C. § 1500; United States v. Tohono O'Odham Nation, 131 S. Ct. 1723 (2011).

Therese Y. Cannata, Cannata, Ching & O'Toole, LLP, San Francisco, California. With her were Christian P. Porter, Porter, Tom, Quitiquit, Chee & Watts, LLP, Honolulu, Hawaii, of counsel.

Kristine S. Tardiff, Trial Attorney, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C., for defendant. With her were Ignacia S. Moreno, Assistant Attorney General, Environment and Natural Resources Division, United States Department of Justice. John P. Tustin, Environment and Natural Resources Division, United States Department of Justice; Robert J. Smith, Assistant Chief, Office of General Counsel, Navy Litigation Office; and Mariel J. Combs, Office of the Solicitor, United States Department of the Interior, of counsel.

ORDER

HORN, J.

FINDINGS OF FACT

Since the issuance of the court's earlier opinion on issues of jurisdiction, discovery has continued. The parties also were offered an opportunity to review and offer comments on the facts included in the court's earlier opinion given their complexity. The revised facts, with a number of the parties' recent suggestions incorporated, as well as a chronology of more recent developments in this case, are included below. This order addresses motions filed by defendant with respect to several plaintiffs asking to revisit issues of jurisdiction.

Plaintiffs Kingman Reef Atoll Investments, L.L.C. (KRAI) and Kingman Reef Atoll Development, L.L.C. (KRAD) have brought a takings claim before this court. KRAI alleges that it holds fee simple absolute title to Kingman Reef and that the United States government took its real property interest without payment of just compensation. Plaintiffs allege that this taking occurred on January 18, 2001, when the Secretary of the Interior established the Kingman Reef National Wildlife Refuge (NWR). Plaintiffs seek the payment of just compensation, in the amount of $54,500,000.00, pursuant to the Fifth Amendment to the United States Constitution for the alleged taking of their private property for public use.

Plaintiffs allege that the Kingman Reef NWR, by prohibiting public access to Kingman Reef, prohibits fishing in over 450 square miles in what plaintiffs allege to be "some of the most productive open ocean fishing grounds in the world," and takes all rights to access, use, enjoy, conserve, and economically develop Kingman Reef and its surrounding waters from the plaintiffs. Plaintiffs claim that Kingman Reef's economic value and/or commercial use includes ecotourism, recreational fishing tourism, commercial fishing operations and a transfer station for fishing operations (i.e., fishing vessels coming in from distant areas, transferring the fish to a small boat and transporting it to Honolulu).

Plaintiff KRAI is a Hawaii limited liability company that claims to hold both legal and equitable title to the Kingman Reef atoll, as well as its lagoon, submergent and emergent coral reefs, and surrounding waters. According to plaintiffs, members of the Fullard-Leo claimed ownership of Kingman Reef in 1922, and KRAI acquired title to Kingman Reef on November 17, 2000. Dudley and Ainsley Fullard-Leo, collectively (and sometimes together with Leslie and Ellen Fullard-Leo, both deceased, and/or the Fullard-Leo family¹ ) were or are managers of KRAI.

Plaintiff KRAD is a Hawaii limited liability company that is managed by Peter B. Savio, the Fullard-Leo family's real estate agent and representative. On November 17, 2000, KRAD entered into a real property lease agreement with KRAI concerning the use, economic development and protection of Kingman Reef.

In accordance with the alleged private property rights vested by the real property lease, on November 17, 2000, KRAD also entered into a real property license agreement with Kingman Reef Enterprises, L.L.C. (KRE), a Washington limited liability company. KRAD licensed KRE to operate a commercial fishing base camp at Kingman Reef and conduct commercial fishing in and around the waters of Kingman Reef for a term of thirty years.

Defendant United States is a governmental entity whose valid exercise of sovereignty over Kingman Reef is undisputed by all of the parties in the case. KingmanReef is currently classified by the United States as an unincorporated United States Territory without an Organic Act. Both KRAI and the United States claim fee title absolute ownership to Kingman Reef.

Fullard-Leo Family Successors Allege They have Acted as the Owner of Kingman Reef

In addition to annexing Kingman Reef, paying real property taxes on the land, and granting access to third parties, plaintiffs KRAI and KRAD allege that, from 1922 to the present, KRAI and its predecessors-in-interest have acted consistent with their ownership of Kingman Reef. For example, plaintiffs allege that when unauthorized uses of Kingman Reef were discovered, the Fullard-Leo family took appropriate action to stop those uses. Additionally, the Fullard-Leo family and its agent allegedly stopped the unauthorized use by a person from Hilo, Hawaii who was fishing commercially in and around Kingman Reef without permission.

Mr. Savio, on behalf of the Fullard-Leo family and plaintiff KRAI, alleges to have made voyages to Kingman Reef at the Fullard-Leo family's expense in order to survey the property. Leslie Fullard-Leo and Mr. Savio, allegedly accessed Kingman Reef numerous times since the 1940s. Dudley Fullard-Leo alleges that his brother Leslie Fullard-Leo accessed Kingman Reef in the 1940s on a ship called Joyita and again by ship in the mid-to-late 1950s. Moreover, Mr. Savio, in a sworn declaration, stated that, during the late 1980s, he traveled to and inspected Kingman Reef in a United States Air Force aircraft with representatives of the Bikini Islands as part of a proposed government project, possibly with the Department of the Interior (DOI), to purchase Palmyra Atoll and Kingman Reef, and to determine if those areas were suitable for displaced residents of the Bikini Islands. Ainsley Fullard-Leo, in a sworn declaration, stated that, in or about 1986, he "accompanied the U.S. Coast Guard during one of its laws enforcement air patrols to Palmyra and Kingman Reef." Additionally, in a sworn declaration, Ainsley Fullard-Leo stated that he "over flew Kingman Reef on several occasions since the 1980's [sic]." Dudley Fullard-Leo testified at his April 11, 2007 deposition in Kingman Reef Atoll Investments, L.L.C. v. United States, 545 F. Supp. 2d 1103 (D. Haw. 2007), aff'd, 541 F.3d 1189 (9th Cir. 2008), that he has not accessed Kingman Reef, but only flown over it, correcting a former declaration that he had actually accessed Kingman Reef numerous times since the 1940s.

From the 1960s to 1980s, Martin Vitousek, a professor at the University of Hawaii, requested permission to visit and was granted access to Kingman Reef, planting coconut trees on Kingman Reef at the Fullard-Leo family's request. Additionally, over about a 20 year period, and as recently as 2002, Ainsley Fullard-Leo gave permission to Bill Austin, captain of the ship Machais to visit Kingman Reef, although there also is an indication in the record of a Navy grant of permission. In a declaration, executed on July 19, 2007, Bill Austin stated that "I have obtained permission from the Fullard-Leo family to call at Kingman Reef Atoll for about seven voyages over the years. I know that no other authorization was required because on my first voyage in about 1966, the United States Customs and someone else (I do notrecall who) told me that Kingman Reef and Palmyra were privately owned and to contact the family."

In October 1995, Bryant Fullard-Leo, Dudley Fullard-Leo's son, stated he accompanied Mark Collins, a private fisherman, to survey in and around Kingman Reef over a two week period. Additionally, on August 1, 1997, Mr. Savio, in his capacity as president of Palmyra Development Co., Inc., wrote a letter to Joe Dettling of Kailua-Kona, Hawaii. Mr. Dettling was allegedly fishing in and around Palmyra Island and Kingman Reef, as well as planning to use the lagoons of both islands for a seaplane and fishing operation. Threatening legal action to enforce the Fullard-Leo family's right to exclude, Mr. Savio informed Mr. Dettling that both Palmyra Island and Kingman Reef and their "lagoons, reefs and territorial waters are private property" and advised Mr. Dettling that he "cannot enter into these areas without permission." Subsequently, in a follow-up letter dated March 19, 1998, which Mr. Savio carbon copied to Scot Yamashita, Assistant Special Agent In Charge at the United States Department of Commerce, National Oceanic and Atmospheric Administration's (NOAA) National Marine Fisheries Service, Mr. Savio wrote to Mr. Dettling:

In earlier discussions and letters, you stated that Scot Yamashita of the National Marine Fisheries service had given you permission to fish in and around the waters at Palmyra Island. I checked with Mr. Yamashita, and in a letter dated August 2, 1997, he advised you that no permission was given to fish within the existing three (3) mile limit around Palmyra and Kingman Reef as established by the owners.

Later, in 1997 or 1998, Ainsley and Dudley Fullard-Leo indicated they traveled to Palmyra and, on the way, had the pilot circle Kingman Reef to inspect and ensure that no unauthorized uses were evident. In 1998 or 1999, Ainsley Fullard-Leo and his wife allegedly inspected Kingman Reef by air.

Moreover, Charles Cook of TNC stated in his March 26, 2007 deposition in Kingman Reef Atoll Investments, L.L.C. v. United States, 545 F. Supp. 2d 1103,² that National Aeronautics and Space Administration (NASA) Astronaut Charles "Chuck" F. Brady, Captain, United States...