Gloucester Daily Times
Friday, December 21, 2001
By BARBARA TAORMINA
Times staff
Fisherman Paul Conti says he’s is only looking for what’s fair. Conti, 76, has fished for the past 46 years, building a life for himself and his family with his small boat, the Providenza. But in 1999, the federal government passed a law that banned the use of driftnets for the commercial harvesting of Atlantic swordfish. That law put Conti, who fished exclusively for swordfish, out of business and made his boat, which was rigged specifically for that type of fishing, useless for any other type of work. Conti tried to find a solution to the problem. He put his boat up for sale, applied to a vessel buyback program, and tried to get another type of permit that would let him pursue another fishery. However, all those doors were closed to Conti, who was told he was ineligible for programs and shut out of other fisheries. So, Conti is pursuing the last of his options — he is suing the U.S. government under the takings clause of the Fifth Amendment of the U.S. Constitution.
“All the cases out of Gloucester involve fishermen who are suing the Secretary of Commerce and the National Marine Fisheries Service in an attempt to nullify regulations,” said attorney Paul Antinori, who is representing Conti. “This is the first time in American legal history that a fisherman is not suing to overthrow a regulation, but suing because the government took property by way of a regulation. It’s an indirect taking.” Most people are familiar with the Fifth Amendment for the protection it grants to those charged with a crime. No person “shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law,” reads the law. However the last clause of amendment goes on to say, “nor shall private property be taken for public use, without just compensation.”
According to Antinori, Conti’s property was “taken” when it was rendered useless by the ban on driftnets that was enacted to protected the endangered northern right whale. Last January, a federal claims court dismissed Conti’s suit on the grounds his boat, nets and permit were not physically taken. The government argued that Conti could re-rig his boat and fish for swordfish with the more conventional longlines. “What the judge was unaware of was that it would cost $100,000 to convert the boat — the ‘cost is prohibitive,” said Antinori. “And with a 39-foot boat, you can’t go long lining, you can’t go out far enough.” The government also argued that a permit is not property but rather a privilege that can be revoked at any time. However, Antinori and co-counsel Ann Margaret Ferrante have pointed out that there are Supreme Court cases that have ruled if ‘someone’s livelihood depends on a permit then that person has a property interest in the permit. Conti and his attorneys refused to accept the claims court ruling.
Earlier this month, Antinori and Ferrante went to Washington to argue Conti’s case at the U.S. Court of Appeals. This time the emphasis was not just on the property itself, but the use of the boats, nets and permit. “He can’t use these things,” explained Ferrante. “The government has deprived him of the use of his trade. It’s a taking and you can’t take the property of a citizen with paying him just compensation.” In the latest court round, Department of Justice attorney Miriam Sullivan argued Conti’s claim was invalid because the fisheries are a highly regulated industry and stakeholders should know the dangers before getting involved and making investments. But as Ferrante pointed out, Conti began swordfishing during the 1970s at the urging of the fisheries officials who said it was an underexploited resource. At the time, there were no quotas on catches, no rules on gear — just an open and independent fishery. Conti adjusted to regulations as they were enacted over the years. As quotas were established for swordfish, Conti’s fishing time was whittled away to the point where during his last years of fishing, he was only allowed to make one fishing trip per year. But because swordfishing is a profitable fishery, one trip was enough to maintain the boat and keep Conti in business.
The end for Conti’s business came in 1999 with a permanent ban on the mile-long driftnets, which have been blamed for the entanglement and death of right whales. Although Conti has never had a whale entangled in his net, his argument is not with the ban against his gear. “A suit of this type conceded the laudatory motive behind the regulation. It’s doesn’t challenge the conservation goals behind the regulations,” said Antinori. “But in a case where you’ve put us out of business, compensation is required under the Fifth Amendment.” Other plaintiffs who have brought different types of takings cases have been successful in the past, according to Ferrante. There have been a number of waterfront property owners able to recover money when their property was rendered useless for building by zoning and other types of land regulations, she said. And the owners of the factory trawler the Atlantic Star successfully sued the government for $40 million when the vessel was rendered useless after Congress passed a ban on factory trawling.
Conti is not asking for much. The value of the Providenza is about $100,000,
the now-useless driftnet about $30,000. And the four or five years of work Conti
has lost bring his total damages in under $200,000. But the case is an important
one for Conti, who has been struggling to maintain his boat while he searches
for a way to protect all that he has worked for over the years. It is an
important case for all fishermen who continue to cope with fluctuating
regulations that put their livelihood at risk. “If we succeed, we are not
opening a Pandora’s box,” said Antinori. “But, honestly speaking, we will be
opening the door for every fisherman from Alaska to Key West. “Each case will
have unique aspects and the courts will have to consider each case on an
individual basis. It will offer all fishermen a ray of hope if we win, how wide
the door opens all depends.”