Kingman Reef Atoll Investments, L.L.C. v. United States ( 2014 )


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  •                                        No. 06-828L
                                          June 30, 2014
    
     * * * * * * * * * * * * * *
     KINGMAN REEF ATOLL                       *
     DEVELOPMENT, L.L.C.,                     *
                                              *      RCFC 56 Motions for Summary
                         Plaintiff,           *      Judgment; Takings; Equitable
     v.                                       *      Estoppel; Lost Grant; Adverse
                                              *      Possession; Statute of Limitations.
     UNITED STATES,                           *
                                              *
                         Defendant.           *
                                              *
     * * * * * * * * * * * * * *
           Therese Y. Cannata, Cannata, Ching & O’Toole, LLP, San Francisco, California,
    for plaintiff. With her was 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
    John P. Tustin, Trial Attorney, Environment and Natural Resources Division, Sam
    Hirsch, Acting Assistant Attorney General, Environment and Natural Resources
    Division, United States Department of Justice; Robert J. Smith, Assistant Chief, Office
    of General Counsel, Navy Litigation Office; Mariel J. Combs, Office of the Solicitor,
    United States Department of the Interior; Elena Onaga, Deputy Section Chief, Pacific
    Islands Section, NOAA Office of the General Counsel, United States Department of
    Commerce; and Kevin A. Baumert, Attorney-Advisory, Office of the Legal Advisor,
    United States Department of State, of counsel.
    
                                          OPINION
    
    HORN, J.
    
                                      PROCEDURAL HISTORY
    
        This case addresses the amended complaint filed by plaintiff, Kingman Reef Atoll
    Development, L.L.C. (KRAD) in 2012. Originally, Kingman Reef Atoll Investments,
    L.L.C. (KRAI) and KRAD brought a takings claim before this court alleging that KRAI
    held fee simple absolute title to Kingman Reef, an atoll in the Pacific Ocean, that KRAD
    held a leasehold interest, and that the United States government took their real property
    interest without payment of just compensation. KRAI and KRAD alleged that this taking
    occurred on January 18, 2001, when the Secretary of the Interior issued Secretarial
    Order No. 3223, establishing the Kingman Reef National Wildlife Refuge (Kingman Reef
    NWR). KRAI and KRAD sought 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.
    
            KRAI and KRAD alleged by prohibiting public access to Kingman Reef the
    Kingman Reef NWR prohibited fishing in over 450 square miles in what plaintiff alleged
    to be “some of the most productive open ocean fishing grounds in the world,” and took
    all rights to access, use, enjoy, conserve, and economically develop Kingman Reef and
    its surrounding waters from KRAI and KRAD. KRAI and KRAD claimed 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.
    
            KRAI is a Hawaii limited liability company that claimed 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 KRAI and KRAD, members
    of the Fullard-Leo family 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 the parties. Kingman Reef is currently
    classified by the United States as an unincorporated United States Territory without an
    Organic Act. The United States claims fee title absolute ownership to Kingman Reef,
    while plaintiff KRAD claims that KRAI is the holder of fee title absolute.
    
    
    
    
    1
      The Fullard-Leo family is also the former owner of Palmyra Atoll (or Island), located
    near Kingman Reef, which the family conveyed to The Nature Conservancy (TNC) in
    the late 1990s. Because it is a useful barometer for comparison, the history of Palmyra
    Island, and litigation related to its ownership is referenced below.
    
    
                                               2
            On March 4, 2005, and prior to filing suit in this court, KRAI brought an action to
    quiet title to Kingman Reef, pursuant to the Federal Quiet Title Act, 28 U.S.C. § 2409a
    (2012), in the United States District Court for the District of Hawaii. See 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). The defendant filed a motion to dismiss, which the
    District Court denied, without prejudice, and the court permitted limited discovery on the
    issue of abandonment by the United States. See id. at 1109. Subsequently, defendant
    filed another motion to dismiss for lack of subject matter jurisdiction in the Hawaii case,
    arguing that plaintiff’s claim accrued outside of the Quiet Title Act’s twelve-year statute
    of limitations. The District Court indicated that a plaintiff’s quiet title claim against the
    United States “is barred if it or its predecessor failed to commence the action within 12
    years of the date they knew or should have known of the claim of the United States,” id.
    at 1110 (citing United States v. Beggerly, 
    524 U.S. 38
    , 48 (1998)), and that the Quiet
    Title Act is “retroactive,” such that “if the passage of 12 years from the date of accrual
    occurred before October 25, 1972, when Congress passed the QTA [Federal Quiet Title
    Act], the action is foreclosed.” Id. at 1111 (citing Donnelly v. United States, 
    850 F.2d 1313
    , 1318 (9th Cir. 1988), cert. denied, 
    488 U.S. 1046
     (1989); Stubbs v. United States,
    
    620 F.2d 775
     (10th Cir. 1980)). The court found that the Fullard-Leo family, plaintiff’s
    predecessors-in-interest, “knew or should have known of the United States’ claim”
    regarding Kingman Reef in the 1930s and, therefore, the statute of limitations had run
    “at the latest—by 1949 or 1950.” Id. at 1112. The District Court also found no evidence
    that the United States had abandoned its claim to Kingman Reef, so as to create a new
    QTA claim for the purposes of the statute of limitations. The District Court granted
    defendant’s motion to dismiss for lack of subject matter jurisdiction. Id. at 1116. The
    United States Court of Appeals for the Ninth Circuit affirmed the District Court's decision
    in Kingman Reef Atoll Investments, L.L.C. v. United States, 
    541 F.3d 1189
    , 1202 (9th
    Cir. 2008).
    
            When KRAI and KRAD filed the above captioned case in this court, defendant
    filed an earlier motion to dismiss KRAI’s and KRAD’s claims for lack of jurisdiction on
    the grounds that the claims were time-barred under the applicable six-year statute of
    limitations, 28 U.S.C. § 2501 (2012). After the Ninth Circuit’s decision ruled in KRAI's
    quiet title action, Kingman Reef Atoll Investments, L.L.C. v. United States, 
    541 F.3d 1189
    , defendant renewed its motion to dismiss arguing that KRAI’s action to quiet title in
    Kingman Reef was related to the above captioned case, the findings of the District
    Court and the Ninth Circuit should be given preclusive effect, and those findings
    supported defendant’s position that plaintiff’s claim accrued in 1938. This court issued
    an opinion on June 17, 2010 which found that KRAI’s and KRAD’s takings action was
    not precluded.
    
            Following the decision by the United States Supreme Court in United States v.
    Tohono O’Odham Nation, 
    131 S. Ct. 1723
     (2011), defendant asked to revisit the issue
    of jurisdiction in this court, particularly regarding the application of 28 U.S.C. § 1500
    (2012) to this case in this court. This court subsequently held that it did not have
    jurisdiction over KRAI because KRAI had a suit pending at the United States District
    Court for the District of Hawaii at the time it filed suit in this court, based on substantially
    
                                                   3
    the same operative facts, meaning that Section 1500 deprived this court of jurisdiction
    over KRAI. KRAD, however, did not have a suit pending in another court when it filed
    its complaint in this court. The court, therefore, granted defendant’s motion to dismiss
    KRAI, but denied the motion to dismiss plaintiff KRAD. See Kingman Reef Atoll
    Investments, L.L.C. v. United States, 
    103 Fed. Cl. 660
    , 704-05 (2012). KRAI
    subsequently notified the court that it did not intend to appeal the court’s order
    dismissing KRAI.
    
            Plaintiff KRAD filed an amended complaint on May 9, 2012. In its amended
    complaint, KRAD alleges that KRAI holds fee simple title to Kingman Reef, and that
    KRAD holds a leasehold interest in Kingman Reef from KRAI, as well as a valid real
    property license agreement with KRE. KRAD alleges that defendant’s establishment of
    the Kingman Reef NWR has “resulted in the taking of plaintiff’s private leasehold and
    licensing property rights for a public purpose without just compensation.” KRAD alleges
    a categorical, or in the alternative, a regulatory taking, for which it seeks just
    compensation “in an amount equal to the fair market value of plaintiff’s leasehold and
    licensing rights and interests,” plaintiff’s attorneys’ costs and fees, and any additional
    relief the court deems proper. Thereafter, the parties fully briefed cross-motions for
    summary judgment. Two issues are raised by the current motions: 1) whether KRAD
    holds a vested property interest in Kingman Reef, and 2) whether KRAD’s takings claim
    is time-barred by the six-year statute of limitation codified at 28 U.S.C. § 2501.
    
                                      FINDINGS OF FACT
    
            This court previously made extensive findings of fact in the above captioned case
    which bear some repeating here. Subsequent to the court’s earlier decision in this case,
    defendant submitted a Statement of Uncontroverted Facts with attached exhibits, and
    plaintiff responded. Taking the parties’ submissions into account, the revised facts are
    included below.
    
    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, plaintiff alleges that, from 1922 to the present,
    KRAI and its predecessors-in-interest have acted consistent with their ownership of
    Kingman Reef. For example, plaintiff alleges 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 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 also alleges that his brother, Leslie Fullard-
    
                                                4
    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, 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
    , 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 twenty-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 not
    recall 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
    
                                               5
          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 Navy, who was both providing support services for TNC
    in its acquisition of Palmyra in 1991 and “[t]esting communications equipment for NASA”
    on his first trip to Palmyra Atoll in 1997, requested that Ainsley Fullard-Leo give him
    permission to access Kingman Reef to test HAM amateur radio. Mr. Savio stated in a
    sworn declaration that Captain Brady “visited Kingman Reef twice in the late 1990's and
    on each visit requested permission to go to Kingman Reef” from the Fullard-Leo family.
    
            Plaintiff alleges that “[t]here is no evidence that the government used the
    property for any purpose prior to January 18, 2001, except when it visited the property,
    after obtaining permission from the Fullard-Leo family.” Plaintiff also alleges that the
    United States Navy has repeatedly acknowledged the Fullard-Leo family’s ownership of
    Kingman Reef and has asked for permission to have access to Kingman Reef. Plaintiff
    alleges that on numerous occasions since the issuance of Executive Order No. 6935 in
    1934 and Executive Order Nos. 8682 and 8729 in 1941, regarding the Navy’s
    jurisdiction over and administration of Kingman Reef and its surrounding waters, the
    Navy has directed requests for authorization to visit or access Kingman Reef to the
    Fullard-Leo family for review and approval. Specifically, over the past thirty years,
    plaintiff alleges that the Fullard-Leo family, KRAI and their agent Mr. Savio, received
    referrals from the United States Navy, United States Coast Guard and/or United States
    National Marine Fisheries Service from persons and/or entities interested in entering
    upon and traversing across Kingman Reef. KRAI was asked, and did give permission,
    to third parties from the private and public sectors, including HAM radio operators,
    scuba divers, and photographers, to access Kingman Reef. In a sworn declaration,
    Ainsley Fullard-Leo indicated that Petty Officer Miller of the Pearl Harbor Naval Base
    
    2
     In his March 26, 2007 deposition, Mr. Cook claimed that TNC never had an interest in
    purchasing Kingman Reef and that it was Mr. Savio, and not TNC, who initially
    proposed that the acquisition of Kingman Reef be considered as a part of TNC’s
    ongoing acquisition plan for Palmyra Atoll. Mr. Cook did not recall the details regarding
    possible sale and/or acquisition of Kingman Reef, stating “my business was to try to
    successfully acquire Palmyra Atoll. The Nature Conservancy did not have a dog on
    Kingman Reef. To me that was background noise. That was not part of my focus
    objectives, and so I wasn’t concerned with it. From a Nature Conservancy’s perspective
    we had one concern, and that was the successful acquisition of the Palmyra Atoll.”
                                               6
    telephoned him “inquiring about the status of Kingman Reef and whether [he] was the
    owner because an inquiry was received from a photographer wanting” to visit and
    photograph Kingman Reef.
    
           Mr. Savio, in his sworn declaration, stated that over the past thirty years, “I
    received at least ten (10) referrals from the Navy, possibly more. That is, a person
    would call me requesting permission to go to Kingman Reef, I would ask how he got my
    name, and he told me that a representative of the U.S. Navy (at Pearl Harbor) referred
    him.” Mr. Savio further stated that the Navy and United States Coast Guard both
    referred HAM amateur radio operators seeking permission to broadcast from Kingman
    Reef to him. Mr. Savio claimed that, “[i]n order for [HAM radio operators’] broadcasts
    from a particular location to be considered legitimate, however, they must obtain
    permission to broadcast from the legal owner of the property,” which they did by first
    contacting the Navy or the Coast Guard to ascertain the identity of the legal owner of
    Kingman Reef. Mr. Savio, in a sworn declaration, stated that, “[o]ver the years, the
    Fullard-Leo family, as the legal owners of Kingman Reef, have received inquiries from
    both the U.S. Department of the Interior, FWS [Fish and Wildlife Service], the City &
    County of Honolulu, and the State of Hawaii to purchase Kingman Reef. I represented
    the Fullard-Leo family in those negotiations and discussions.” On instructions from the
    Fullard-Leo family, Mr. Savio required that any visitor to Kingman Reef obtain written
    permission and execute a release form. Navy personnel who contacted Mr. Savio
    allegedly acknowledged that the Fullard-Leo family owned Kingman Reef and that third
    party requests to access Kingman Reef were to be directed to the Fullard-Leo family.
    Accordingly, plaintiff alleges that KRAI's predecessors-in-interest owned Kingman Reef,
    that the government repeatedly acknowledged such ownership in its own documents in
    the 1990s and 2000, that the government was preparing to pay the Fullard-Leo family
    for a fee interest, and that KRAI leased out the fishing rights around Kingman Reef in
    2000.
    
           Defendant specifically denies that KRAI, the Fullard-Leo family or any of their
    agents, associates, or representatives were authorized at any time to grant permission
    to access Kingman Reef, stop commercial fishing in and around Kingman Reef, survey
    and/or inspect Kingman Reef. Defendant further denies that KRAI, the Fullard-Leo
    family and any of their agents, associates, or representatives were authorized to visit
    Kingman Reef themselves without first obtaining permission from the United States
    Navy or the United States Department of the Interior, Fish and Wildlife Service (FWS or
    USFWS), because defendant alleges Kingman Reef is federal property. The record,
    however, contains no evidence that the federal government actually interfered with the
    Fullard-Leo family’s access to and use of Kingman Reef between 1934 and 2001.
    
    Physical Description of Kingman Reef
    
           Kingman Reef is a low-lying coral reef atoll located in the Pacific Ocean. It is
    situated approximately 900 nautical miles south of Hawaii and 33 nautical miles north of
    the Palmyra Atoll, at Latitude 6° 24' 37" North and Longitude 162° 22' West. It is
    comprised of two small “spits” of emergent land/coral reefs, a central lagoon, and
    
                                               7
    surrounding submergent coral reefs and waters. Kingman Reef has been described as
    “one of the most pristine coral reef ecosystems in the Pacific . . . and supports a
    diversity of marine invertebrates, algae, fishes, marine mammals, and sea turtles and
    [is] an important foraging ground for Pacific migratory seabirds.” The reef, however, “is
    unsuitable for human habitation, due to the small size of emergent land spits and lack of
    fresh water.” Moreover, Kingman Reef “is awash most of the time,” has been described
    as “a maritime hazard and the atoll is unusable for practical purposes.”
    
    Initial Acquisition and History of Kingman Reef
    
           Kingman Reef was first discovered in 1798 by Captain Edmund Fanning. The
    island was visited in 1853 by Captain W.E. Kingman, for whom it was named, while
    aboard the American ship, Shooting Star. Subsequently, Captain W.W. Taylor, in his
    affidavit of February 12, 1858, listed islands in the position of Kingman Reef and
    Palmyra Atoll as guano islands and, along with other alleged guano islands in the
    Pacific, passed these islands by assignments to the United States Guano Company. In
    1860, the United States Guano Company claimed Kingman Reef, also known as
    “Dangers Rock,” and Palmyra Atoll, also known as “Palmyros,” as United States
    Territories under the Guano Islands Act of 1856, codified at 48 U.S.C. §§ 1411-1419
    (2012).3
    
           In 1933, the Office of the Legal Advisor, United States Department of State,
    wrote that Kingman Reef, under the alias Dangers Rock, “appears on the lists of Guano
    Islands appertaining to the United States compiled by the Treasury Department” on
    August 23, 1867. Further, as of September 16, 1893, the United States Department of
    the Treasury listed both “Dangers Rock” and “Palmyros” as guano islands that were
    “bonded” by the Guano Company of New York, under Bond No. 9, on February 8,
    1860.4
    
    3
      Pursuant to the Guano Islands Act of 1856, if a citizen of the United States discovered
    guano on an unclaimed and uninhabited island and occupied the island, “such island,
    rock, or key may, at the discretion of the President, be considered as appertaining to the
    United States.” 48 U.S.C. § 1411. As a prerequisite, the discoverer had to notify the
    Department of State of their discovery and provide evidence that the island was not “in
    the possession or occupation of any other government or of the citizens of any other
    government.” Id. at § 1412. Assuming the discoverer could meet those requirements,
    they would gain “the exclusive right of occupying such island, rocks, or keys, for the
    purpose of obtaining guano.” Id. at § 1414. The Guano Islands Act specified, “[n]othing
    in this chapter contained shall be construed as obliging the United States to retain
    possession of the islands, rocks, or keys, after the guano shall have been removed from
    the same.” Id. at § 1419. The Guano Islands Act, therefore, apparently was intended to
    extend the jurisdiction of the United States over an island only temporarily while its
    citizens were actively engaged in obtaining guano from the island.
    4
     1 Moore’s Digest of International Law 567-68 (Washington, D.C.: Government Printing
    Office 1906). Moore’s Digest of International Law lists 41 guano islands of actual guano
                                                8
            The United States government was clearly aware of the existence and location of
    Kingman Reef by at least the early twentieth century. The Pacific Islands Pilot, Volume
    II, published in 1916 by the U.S. Hydrographic Office, included an entry for Kingman
    Reef, which listed the location of the atoll, described its shape and size, and indicated
    that Kingman Reef had been struck by the British ship Tartar in June 1874, and
    surveyed by the British ship Penguin in 1897. A similar entry was included in the
    Second Edition of the Pacific Islands Pilot, Volume II, published in 1920. Furthermore,
    in September 1921, the Navy sent an expeditionary force on board the U.S.S. Eagle
    from Pearl Harbor to Kingman Reef and Palmyra Island group with the mission,
    regarding Kingman Reef specifically, of “ascertain[ing] extent and condition of
    Kingman’s Reef, which has been reported by ship masters as supporting vegetation
    [sic].” The Navy reported that the expedition was “entirely successful,” and provided the
    following description of Kingman Reef:
    
          Kingmans Reef at low tide shows a small rock, not more than two feet
          above water and at times awash, and a larger object, which seems to be a
          sand island about fifty yards long and three feet high. There is no
          vegatation [sic] of any kind on the reef. At high tide the whole is probably
          submerged or awash. It is probable that the reef is slightly larger than
          shown on the chart.
    
            In 1922, Lorrin A. Thurston, agent of the Fullard-Leo family, KRAI’s predecessor-
    in-interest, claimed to have annexed Kingman Reef to the sovereignty of the United
    States and claimed legal ownership of Kingman Reef for the Island of Palmyra Copra
    Company (Copra Co.), a corporation under the laws of the then Territory of Hawaii, of
    which Leslie Fullard-Leo was President and Ellen-Fullard Leo was Secretary. At an
    April 28, 1922 board meeting for the Copra Co., “[i]t was reported that a plan was on
    foot to claim Kingman’s Reef, [as it was] still believed that this Reef could be of
    inestimable value to [the] Company and should be claimed for the Company either on
    the out or homeward voyage of the Palmyra5 during her next trip.” On May 3, 1922, the
    Copra Co.’s Board instructed and commissioned Mr. Thurston, as its agent, to “take
    
    
    deposits, including brief histories and data regarding their respective discoverers. See
    id. at 569. The data was compiled from information collected at the Department of State
    and elsewhere. See id. It included “islands that have not been, as well as those that
    have been, considered as appertaining to the United States.” Notably, the data neither
    references Kingman Reef nor its alias Dangers Rock and, therefore, does not provide
    information regarding the alleged discoverer of the supposed guano deposits said to be
    found on the island. See id. at 569-80.
    5
       By 1922, Leslie and Ellen Fullard-Leo had purchased all but two of the approximately
    fifty islets comprising Palmyra Island. Leslie and Ellen Fullard-Leo formed the Island of
    Palmyra Copra Company to harvest copra on the island, but, when copra prices
    dropped after World War I, the company shifted its focus to commercial fishing.
    
    
                                               9
    formal possession” of Kingman Reef “on behalf of the United States of America, and
    claim the same for this Company [Copra Co.].” In that commission, the Copra Co.
    asserted that Kingman Reef had hitherto not “been claimed by any other government or
    people.”
    
             On May 10, 1922, Mr. Thurston landed on Kingman Reef, allegedly annexing the
    atoll, its reefs and lagoon to the United States and claiming ownership of the property
    for the Copra Co. Mr. Thurston and five companions read aloud and signed a formal
    certificate of possession/annexation, which states:
    
           BE IT KNOWN TO ALL PEOPLE – that on the Tenth day of May A.D.
           1922, the undersigned, agent of the ISLAND OF PALMYRA COPRA CO.,
           LTD. (an Hawaiian Corporation), landed from the motor-ship “Palmyra”
           doth . . . take formal possession of this Island called “Kingman’s Reef” . . .
           on behalf of the United States of America, and claim the same for said
           Company.
    
            The party built a cairn of coral slabs about four feet high and flew an American
    flag from a pole supported by the cairn. The formal certificate of possession, the flag,
    and a copy of two Hawaiian newspapers, The Honolulu Advertiser and The Honolulu
    Star-Bulletin, dated May 3, 1922, were placed in a glass jar that was deposited in the
    base of the coral cairn. Plaintiff alleges that the annexation procedure was intended to,
    and did, vest fee title ownership to Kingman Reef in the Copra Co., which annexed
    Kingman Reef to the United States solely for the purpose of extending United States
    sovereignty over the island. Plaintiff alleges that the annexation was neither intended
    to, nor actually vested, title in the defendant. In support of this argument, plaintiff points
    to the certificate of annexation/possession signed by Mr. Thurston, which expressly
    stated that he claimed Kingman Reef as property of the Copra Co. One month after Mr.
    Thurston’s alleged annexation, in June 1922, the United States Navy Hydrographic
    Office acknowledged receiving a copy of an article from The Honolulu Advertiser “giving
    an account of the party taking possession of Kingman’s Reef on May 10, 1922, in the
    name of the United States.”
    
           A few days later, on May 13, 1922, Mr. Thurston wrote a letter to Ellen Fullard-
    Leo, in which he confirmed that he had claimed fee title ownership to Kingman Reef for
    the Copra Co. Further, in accordance with alleged instructions from Mr. Huber, whom
    Mr. Thurston identified as the “United States Attorney General” for the Territory of
    Hawaii,6 Mr. Thurston instructed Ellen Fullard-Leo to file the title claim with the
    Department of State in Washington, D.C. Subsequently, on July 15, 1922, Ellen
    Fullard-Leo, in her capacity as Secretary-Treasurer of the Copra Co., sent a letter to the
    
    6
      In a 1936 Letter to the Editor of The Honolulu Advertiser, Leslie and Ellen Fullard-Leo
    indicated that the Copra Co. consulted Mr. Huber “as to the formalities required to
    annex land for the United States” prior to commissioning Mr. Thurston to travel to
    Kingman Reef.
    
    
                                                 10
    Secretary of State, Charles E. Hughes, in which she advised him that the Copra Co.
    had annexed on May 10, 1922,
    
           in the name of the United States of America, and for [the Copra Co.’s] own
           use, an atoll island charted as “Kingman’s Reef” but never before
           claimed. . . . According to the United States Attorney here, this notification
           is all that is necessary in addition to listing the same in our local tax
           returns, as the Palmyra Islands are a part of the county of Honolulu.
           Hoping that this is sufficient evidence that the same will be recorded and
           due credit given this Company and Territory. . . .
    
    Ellen Fullard-Leo also enclosed a copy of the certificate of possession/annexation, a
    report by Mr. Thurston, and newspaper reports covering the annexation and acquisition
    of Kingman Reef. Moreover, from 1922 until 1959, as per Mr. Huber’s alleged
    instructions, the Fullard-Leo family paid real property taxes to the Territory of Hawaii for
    both Palmyra Atoll and Kingman Reef on the same tax key. After Hawaii received
    statehood in 1959, Hawaii state taxes were not levied because Palmyra Atoll and
    Kingman Reef were not incorporated as a part of the lands of the State of Hawaii. In an
    April 30, 1998 memorandum on Palmyra Ownership Tidelands, Suzanne Case of TNC,
    included Section G, titled, “Does Kingman Reef belong to the Fullard-Leos?” and stated
    that “[t]he Fullard-Leos paid Hawai’i [sic] property taxes on Kingman Reef until 1959.”
    
            On August 14, 1922, the Copra Co.’s Board, by unanimous resolution, conveyed
    its interest in Kingman Reef to Ellen Fullard-Leo for the nominal consideration of one
    dollar and sundry unsecured loans.7 Subsequently, on August 24, 1922, Ellen Fullard-
    Leo sent a follow-up letter to the Secretary of State, inquiring as to whether her July 15,
    1922 letter had been received. On September 28, 1922, the Department of State
    acknowledged receipt of July 15 and August 24, 1922 letters and enclosures regarding
    the Copra Co.’s alleged annexation and ownership of Kingman Reef. In its response,
    although the Department of State neither disputed the Copra Co.’s claim to ownership
    of Kingman Reef, nor asserted that the United States owned the atoll, the letter did not
    explicitly recognize fee title ownership in the Fullard-Leo family. Defendant currently
    alleges that the Department of State did not dispute the Copra Co.’s 1922 “claim” to fee
    title ownership of Kingman Reef because it was not legally obligated to do so. Internal
    documents show that the Department of State initially assumed that Ellen Fullard-Leo’s
    letter was “intended as a notice of discovery under the Guano Acts.” The Department of
    State’s Solicitor concluded that the letter “was not a guano island or a new discovery.”
    
    7
      By mesne conveyances from Ellen Fullard-Leo, title to Kingman Reef was allegedly
    held collectively in trust by brothers Leslie Vincent, Ainsley, and Dudley Fullard-Leo,
    children of Leslie and Ellen Fullard-Leo. Plaintiff alleges that the Fullard-Leo family
    owned and held title to Kingman Reef from 1922 to November 17, 2000, when the
    trustee-brothers transferred title to KRAI, the family’s limited liability company. On
    November 17, 2000, title to Kingman Reef was conveyed by the Fullard-Leo family to
    KRAI by way of a quitclaim deed filed and recorded in the United States District Court
    for the District of Hawaii.
                                                11
    The Department’s Division of Political and Economic Information communicated to the
    Solicitor:
    
          Although it [Kingman Reef] is shown on various charts, and its existence is
          thus known, its unimportance is evidenced by the fact that no reference is
          made to it in the gazetteers or in various books dealing with the Pacific
          Islands.
    
          I understand that most of the rocks are covered with water at high tide. It
          is, of course, uninhabited, and is not believed to have resources of
          material value. I further find no reference as to its political status. It may
          be assumed that it has not sufficient value ever to have been claimed by
          any of the powers.
    
    Seeking more information about Kingman Reef, in November 1922, the Chief of Naval
    Operations directed in an internal memo that any crafts or vessels in the vicinity of
    Palmyra Island and Kingman Reef “conduct investigation with a view to determining the
    potentialities of these places.”
    
            In November 1924, W.G. Anderson and others visited Kingman Reef, where they
    inspected the bottle deposited by Mr. Thurston in 1922 and left their own record in the
    cairn. On June 22, 1925, Mr. Thurston wrote a letter to Admiral R.E. Coontz, U.S.N., in
    which he suggested that the United States Navy secure both Palmyra and Kingman
    Reef for “refreshment and supply stations both for naval ships and flying boats” and
    noted that Kingman Reef together with Palmyra “passed, by purchase, into the
    ownership of Mrs. E. Fullard-Leo, an American citizen, of Honolulu.” In that letter, Mr.
    Thurston wrote that he had “sailed direct from Honoluly [sic] to Kingman’s [sic] landed
    and annexed the Island, in the name of the Palmyra Co., an American Company, in
    accordance with the terms of American law.” Mr. Thurston further wrote: “Upon my
    return to Honolulu in 1922, seven weeks after the annexation incident above-referred to,
    I found that the existence of the Island which I had reported, was questioned at
    Washington. . . .” Following his assertion that he did, in fact, discover an island called
    Kingman Reef, Mr. Thurston suggested that the Navy should “secure for its files,
    definite data concerning both the Palmyras and Kingman’s [sic], both as to present
    conditions and a rough estimate of the cost for making both places available as
    refreshment and supply stations, both for naval ships and flying boats.”
    
            Defendant, on the other hand, points to a statement of John L. Padgett, First
    Mate on the 1922 voyage to Kingman Reef, that the United States holds title to
    Kingman Reef under the Guano Acts. In a May 1937 article, Seaman Padgett indicated
    that it was the position of the United States government in general, and the Navy in
    particular, that Kingman Reef did not exist. In the article, Seaman Padgett stated:
    
          In 1921, the Sailing Directions for the North Pacific Islands gave the
          correct position [for Kingman Reef] but then noted – “Existence Doubtful.”
          This Federal Government printed book in one breadth warned all ships to
    
                                               12
          avoid the spot and in the next told the wandering seamen not to be
          surprised if they did not find it. Since no one was sure it was there no one
          claimed it. . . . On my return to Honolulu I was called before Rear-Admiral
          Edward Simpson8 and staff. They still seemed to believe the Sailing
          Directions “Existence Doubtful” but after a morning of questions let me go
          back to my drawing board. Shortly after this the U.S. Navy sent a Mine
          Sweeper down which found Kingman Reef and that made it official.
    
    A July 29, 1926 Memorandum, in response to a request for further information on
    Kingman Reef, the Navy’s Hydrographic Office relayed to the Chief of Naval Operations
    “the complete information on file in this Office concerning Kingman’s Reef.” The last
    paragraph of the July 29, 1926 Memorandum states: “Hydrographic Office Chart No.
    1262a, which shows the various island possessions and mandates in the Pacific and
    which was constructed after receiving advice from the State Department, clearly shows
    that this island or reef is United States territory.”
    
             A year later, in June 1926, Mr. Thurston revisited Kingman Reef as a guest on
    the Navy’s U.S.S. Whippoorwill, under the command of Lieutenant Poland, U.S.N. Lt.
    Poland's report provided a detailed description of Kingman Reef, finding that it had
    potential value as a military base and recommending additional surveying. During this
    visit, Mr. Thurston examined the record, jar and flag that he had left on Kingman Reef in
    1922. In order to protect the flags and records from disintegration, as the bottle top was
    rusted and cork partially rotted, Mr. Thurston removed both the 1922 and 1924 records.
    By way of a July 9, 1926 letter, Mr. Thurston deposited these items with the Archives
    Commission of the Territory of Hawaii, located in Honolulu. Captain Poland signed a
    certificate evidencing Mr. Thurston’s removal of the 1922 and 1924 reports, which had
    been enclosed in a bottle and left in the cairn on Kingman Reef. A copy of Captain
    Poland’s certificate also was deposited with the Archives Commission. Further, Mr.
    Thurston stated in his July 9, 1926 letter that he “understand[s] the present owner of
    said Kingman Island to the Mrs. E. Fullard[-]Leo of Honolulu, the successor of said
    Palmyra Company, Limited.”
    
           In response, on July 24, 1926, the Archives Commission acknowledged receipt
    of “two glass containers – a fruit jar and beer bottle – received from” Mr. Thurston. The
    response further stated that “both containers are deposited with the Archives of Hawaii
    commission, as objects of record, relative to the formal annexation of Kingman’s Reef
    (Island) [sic] to the United States of America.” Moreover, the commission stated that
    the jars and their contents “form an official part of our Archives of Hawaii[, but are]
    ‘subject to the order of the owner of said Kingman Island, or of the United States
    Government.’” Referencing Mr. Thurston’s letter, the Archives Commission also
    acknowledged Mrs. Ellen Fullard-Leo as the owner of Kingman Reef.
    
    
    
    
    8
      Admiral Simpson served as the Hydrographer for the United States Navy
    Hydrographic Office from March 1919 to December 1919.
                                               13
          The Navy conducted further surveying of Kingman Reef in April 1927. The
    commanding officer’s report indicated: “[i]t is felt that Kingman Reef affords an ideal
    base of great strategical [sic] importance and it should be further developed.”
    
           On August 5, 1931, Leslie Fullard-Leo requested that the commanding officer of
    the United States Geodetic Survey ship Pioneer make detailed surveys of Palmyra
    Island and Kingman Reef. The United States Department of Commerce, Coast Guard
    and Geodetic Survey, on September 30, 1931, responded that the request would be
    given “careful consideration” when its then current “program in Hawaii has reached an
    advanced stage of completion.”
    
    1933-1934 Department of State Reports
    
           On January 9, 1933, the Office of the Legal Advisor, Department of State, issued
    a publication titled The Sovereignty of Guano Islands in Pacific Ocean. The purpose of
    this publication was to “set forth the various claims of limited jurisdiction, or of full
    sovereignty which have been made to the islands, with a view to determining the
    present status of the United States claims to territorial sovereignty over them.” Office of
    the Legal Advisor, The Sovereignty of Guano Islands in Pacific Ocean 580
    (Washington, D.C.: Department of State 1933). Regarding the list of guano islands
    found in Moore’s Digest of International Law, the Legal Advisor specifically noted that,
    by way of information gathered from archival papers not consulted by Moore, “some of
    the islands described apparently do not exist, and that most of them do not now, and
    never did contain guano.” The Sovereignty of Guano Islands in Pacific Ocean at 579.
    In the report, “Kingmans Reef” was listed under islands “not claimed by any other
    Government.” Id. at 571. Although Kingman Reef was listed as appertaining to the
    United States in 1867, the Legal Advisor, with specific regard to the United States’ claim
    to Kingman Reef under the Guano Act, stated:
    
           There is no other mention of Dangers Rock on file in the State
           Department. It is not by any means certain that there is or was any guano
           on this island, or even that there is such an island. It is, however,
           practically certain that no guano was ever removed from it, at least by
           claimants under the Guano Act. Moreover, Taylor’s “discovery” may well
           have been fictitious, and he probably did not even land there.
    
    Id. at 624-25.
    
           Next, the Legal Advisor discussed the United States’ claim to Kingman Reef
    “through [a]ppropriation by an American [c]itizen.” Id. at 625. The Legal Advisor
    recounted Mr. Thurston’s May 10, 1922 voyage to Kingman Reef and acknowledged the
    Copra Co.’s July 15, 1922 notification to “the State Department that it had annexed
    Kingmans Reef in the name of the United States and for its own use. . . .” Id. Then, in
    reference to the information sent by the Copra Co. to the Secretary of State in 1922, the
    Legal Advisor stated:
    
    
    
                                                14
            [I]t appears that the [Copra Co.] . . . had now turned to fishing and was
           interested in acquiring whatever island there might be on Kingmans Reef
           for a fishing base. . . . It appears also that an island said to be dry at high
           tide, and to bear no signes [sic] of any submergence by the sea, and
           composed of broken coral and sand, actually was found, landed upon, and
           formally annexed.
    
    Id. at 626.
    
            Later, in the “CONCLUSIONS” section of that same report, the Legal Advisor
    listed Kingman Reef under “ISLANDS TO WHICH THE UNITED STATES ONLY HAS A
    CLAIM.” Id. at 875 (capitalization in original). Specifically regarding Kingman Reef, the
    Legal Advisor wrote:
    
           It is difficult to reach definite conclusions on the legal status of Kingmans
           Reef because of lack of information. It is not known whether or not there
           has been any occupation or use of the Reef by American citizens; and it is
           not even certain that there is an island there which is dry at high tide.
           However, it may be said: first, the United States has no valid claim to
           Kingmans Reef arising under the Guano Act; and second, the United
           States has an inchoate right to the Reef, possibly because of its discovery
           by Captain Kingman, if he was an American, as seems probable, and
           because of the formal possession taken by the Island of Palmyra Copra
           Company, and its use by that company, if there has been any such use.
           As yet there has been no formal sanction of the company’s act by the
           United States.         However, no other Government appears to claim
           Kingmans Reef, and it would seem that the United States Government
           could extend its jurisdiction over the island (always supposing that an
           actual island exists) and that it could then be considered as a part of the
           territory of the United States. Before any such action is taken, it might be
           adviseable [sic] to find out if Kingmans Reef is of any possible use to
           American citizens, or to the Government.
    
    Id. at 875-76.
    
    President Roosevelt’s 1934 Executive Order and its History
    
           On December 29, 1934, President Franklin D. Roosevelt issued Executive Order
    No. 6935. Executive Order No. 6935 was issued pursuant to authority vested in the
    President by the act of “June 25, 1910, ch. 421, 36 Stat. 847, as amended by the act of
    August 24, 1912, ch. 369, 37 Stat. 497,” known at the Pickett Act, which provides in
    relevant part:
    
           That the President may, at any time in his discretion, temporarily withdraw
           from settlement, location, sale, or entry any of the public lands of the
    
                                                 15
          United States . . . and reserve the same for water-power sites, irrigation,
          classification of lands, or other public purposes to be specified in the
          orders of withdrawals, and such withdrawals or reservations shall remain
          in force until revoked by him or by an Act of Congress.
    
    Pickett Act of June 25, 1910, Chapter 421, 36 Stat. 847. Executive Order No. 6935
    ordered that “Kingman Reef, Wake Island, and Johnston and Sand Islands, together
    with their surrounding reefs, in the Pacific Ocean” be
    
          reserved, set aside, and placed under the control and jurisdiction of the
          Secretary of the Navy for administrative purposes, subject, however, to
          the use of the said Johnston and Sand Islands by the Department of
          Agriculture as a refuge and breeding ground for native birds as provided
          by Executive Order No. 4467 of June 29, 1926.
    
    Exec. Order No. 6935 (Dec. 29, 1934).9 The Executive Order further states that it “shall
    continue in full force and effect until revoked by the President or by an act of Congress.”
    Executive Order No. 6935, while amended in 1962 with regard to Wake Island, has
    never been revoked. See 32 C.F.R. § 761.3(a)(2)(v), (b)(2) (2013).
    
           The Franklin D. Roosevelt presidential papers include an October 16, 1934 letter
    from Secretary of the Navy, Claude Swanson, to President Roosevelt with a
    memorandum and enclosures concerning the ownership or sovereignty of certain
    Pacific Islands. The memorandum listed twelve Pacific islands and also “indicated the
    country exercising ownership or sovereignty in each case.” Both Palmyra and Kingman
    Reef were listed as under the United States, but the memorandum did not mention
    specifically whether the United States exercised ownership and/or sovereignty. In
    Enclosure (B), Kingman Reef was listed as under the “Jurisdiction” of the United States
    and was described as having a military strategic importance for patrolling maritime
    steamer routes “between Honolulu . . . and Australia” and “from Panama to the Orient.”
    Secretary of the Navy letter, Oct. 16, 1934, encl. (B) at 6. Kingman Reef also was listed
    as having “possibilities for use as a fleet rendezvous, as a fueling place or as a
    temporary anchorage.” Franklin D. Roosevelt Papers as President; President’s Official
    File 18-V: Department of the Navy: Wake, Johnston, Sand Islands and Midway, etc.,
    1933-1945 (Box 32) (Roosevelt Papers (Box 32)). The memorandum continued to
    describe the physical geography, climatology, and hydrography of Kingman Reef, based
    on data gathered from the U.S.S. Whippoorwill’s earlier survey of the area. Secretary of
    
    
    
    
    9
      In their various deeds and licensing agreements, the Fullard-Leo family, KRAI, KRAD,
    and KRE recognize that the December 29, 1934 Executive Order No. 6935 placed
    Kingman Reef “under the jurisdiction of the Secretary of the Navy,” but in this court
    KRAD does not regard the Executive Order as asserting or placing title ownership with
    the Navy or any entity of the United States.
    
    
                                                16
    the Navy letter, Oct. 16, 1934, encl. (B) at 8-12.10 In closing, the memorandum noted:
    “Seaplanes can land anywhere in the lagoon when wind is from east quadrant. . . .
    There is plenty of room for take-off in any direction. Water is rather deep for seaplane
    anchorages but mooring buoys can be planted.” Id. at 12.
    
           On November 9, 1934, nearly two months prior to the issuance of Executive
    Order No. 6935, R.W.S. Hill of the Office of the Legal Advisor, Department of State,
    wrote a letter and memorandum in which he discussed the status of the islands in the
    Pacific Ocean mentioned in the October 16, 1934 letter and memorandum sent by the
    Secretary of the Navy to President Roosevelt. Specifically regarding the status of the
    guano islands, the Legal Advisor at the Department of State wrote:
    
          This Department as well as the courts and the Attorney General have
          taken the position that the United States did not acquire sovereignty of, or
          title to, the guano islands under the Guano Islands Act of 1856. . . . This
          Department has in the past stated that it has been the course of the
          Department to recognize such islands only while occupied for the purpose
          of procuring guano, and therefore upon the cessation of such occupancy
          they may become open again to discovery, possession, et cetera.
    
          Attached to Mr. Hill’s November 9, 1934 letter was the memorandum, dated
    November 7, 1934, titled “Status of Certain Guano and Other Islands in the Pacific.”
    This memorandum was issued in response to the Department of the Navy letter of
    October 16, 1934. Regarding issues of sovereignty, the State Department Legal
    Advisor stated:
    
          The Department has consistently taken the position with regard to these
          guano islands that, as stated in its letter of July 13, 1914, to Mr. H. Melville
          Walker (811.0141/13), “the Government of the United States claims no
          sovereignty or territorial rights over such island, but merely protects
          citizens of the United States who discover guano thereon, in the
          prosecution of their enterprise, which extends only to the appropriation
          and disposal of guano.” Somewhat similar statements were contained in
          the Department’s letter of September 2, 1882, to Mr. Brown, and
          numerous other communications since that date, up to and including its
          letter of July 1, 1934, to Mr. Vernon Le Young Ardiff (811.014/295).
    
    
          In the opinion of the Attorney General of May 8, 1873 (14 Ops. Atty. Gen.
          608), which relates to guano islands, he states: “Upon application to the
          office of the Secretary of State, I am told that it has been the course of that
          Department to recognize such islands only while occupied for the purpose
          of procuring guano, and therefore upon the cessation of such occupancy
    
    10
      As noted above, according to the record, Mr. Thurston accompanied the U.S.S.
    Whippoorwill on its survey trip to Kingman Reef.
                                                17
          they may become open again to discovery, possession, et cetera.”
                                           ...
    
          The implication in the above statement, made by the Department in 1873
          when the question of guano islands was a fairly fresh subject with it, would
          appear to be that after an American citizen had ceased to occupy an
          island for the purpose of obtaining guano it was no longer regarded by the
          Department as appertaining to the United States.
    
          These guano islands were referred to by Chief Justice Fuller in his
          dissenting opinion in Downes v. Bidwell (
    182 U.S. 244
    , 372[-73]) as “terra
          nullius.”
    
          Specifically regarding issues of title ownership to guano islands, the State
    Department Legal Advisor continued:
    
          In a letter dated July 1, 1911, addressed to the Secretary of Commerce,
          the Attorney General stated in part:
    
          “There is nothing in the act of Congress of August 18, 1856 [Guano
          Islands Act], from which it can be said that it was intended by said act to
          recognize title in the discoverer” (of the guano) “or to assume on behalf of
          the Government complete title, but on the contrary, it is clear that the act
          meant only to protect the discoverer for the purpose of obtaining and
          shipping guano and that the Guano Islands ‘were in no sense to become
          part of the territorial domain of the United States.’”
    
    Toward the end of the memorandum and in specific reference to Kingman Reef, Mr. Hill
    reiterated that “it seems almost certain that no guano was ever removed from the
    Island.” In the immediately preceding paragraphs, the State Department Legal Advisor
    continued:
    
          On July 15, 1922, the Island of Palmyra Copra Company, a Hawaiian
          Corporation, notified the State Department that it had annexed Kingman’s
          Reef in the name of the United States and for its own use on May 10,
          1922.
    
          No other action appears to have been taken with respect to the
          incorporation of the Island into the territory of Hawaii or the United States.
          While it does not appear that any other country has claimed Kingman’s
          Reef, it might be well for this Government to take some affirmative action
          to show definitively that it is a part of the territory of the United States.
          The mere mention of it in an Act of Congress as American territory would
          be sufficient.
    
          On December 13, 1934, just two weeks prior to the issuance of Executive Order
    
                                               18
    No. 6935, the Secretary of the Navy transmitted to President Roosevelt a “draft of [the]
    executive order placing Wake Island, Kingman Reef and Johnston and Sand Islands
    under the control and jurisdiction of the Secretary of the Navy.” Secretary of the Navy
    letter, Dec. 12, 1934, at 1. As to the underlying purpose of the proposed Executive
    Order, the Secretary of the Navy wrote:
    
          There are at present on hand a number of requests from airline systems
          for the use of portions of the above named islands. . . for the
          establishment and operation of commercial trans-ocean airline facilities. It
          is felt that greater progress will be made by the airline systems and
          greater satisfaction will be obtained by the Government if all of the areas
          involved are placed under one and the same department. . . . [I]t is
          considered that the interests of the Government would be best served by
          also placing under the control and jurisdiction of the Navy Department the
          [ ] areas that are desired to be occupied by trans-ocean airline facilities,
          viz: Wake Island, Kingman Reef and Johnston and Sand Islands.
    
            With regard to Kingman Reef, the Secretary of the Navy wrote that Kingman
    Reef was “first seen and reported by Captain Kingman on the American ship
    SHOOTING STAR. It was claimed for the United States by L. A. Thurston of Honolulu
    in 1922 and it is recognized by the Department of State as being under the sovereignty
    of the United States.” Id. In closing, the Secretary wrote, regarding the President’s
    authority to issue the Executive Order, that the “sovereignty of the United States over
    said islands is well recognized and further inquiry respecting the questions of title and
    jurisdiction need not be made.” Id. at 2-3. It appears, however, that the Secretary did
    not provide any additional information as to the history of Kingman Reef and did not
    make any reference to Kingman Reef as a guano island. Instead, through a preceding
    reference, he apparently based the claim of the United States for sovereignty on the
    actions taken in 1922 by KRAI’s predecessors-in-interest. See id. at 2. The Secretary
    did not assert that the United States held fee title ownership to Kingman Reef.
    
          As noted above, on December 29, 1934, President Franklin D. Roosevelt issued
    Executive Order No. 6935, which “reserved, set aside, and placed [Kingman Reef]
    under the control and jurisdiction of the Secretary of the Navy for administrative
    purposes,” subject also to the use of the Department of Agriculture as a refuge and
    breeding ground for nature birds. Subsequently, on December 31, 1934, President
    Roosevelt sent a memorandum to the Secretary of the Navy in which he stated:
    
          In relation to Navy jurisdiction over these Pacific Islands, I think it is highly
          adviseable [sic] that the Navy exercise that jurisdiction in some tangible
          form at the earliest possible moment. You might consult with the State
          Department and ask them if the establishment of a small supply base or
          the fixing up of a landing place would be adequate to sustain sovereignty.
    
    Roosevelt Papers (Box 32): Memorandum of December 31, 1934.
    
    
    
                                                 19
    Pan American Airways 1937-1938 Flights to Kingman Reef
    
           An apparent reason for issuance of Executive Order No. 6935 was to place
    Kingman Reef under United States sovereignty and naval jurisdiction, so that the island
    could be used for seaplane travel. To that end, in the mid-1930s, Pan American
    Airways (Pan Am) began to “look aggressively to the Pacific for its further expansion”
    and was granted permission to fly its sea planes to New Zealand if it could do so no
    later than the end of 1936. While planning the initial test flights, Pan Am chose
    Kingman Reef as the overnight stopover point between Honolulu, [Hawaii] and Pago
    Pago, [American Samoa], because it formed a mid-ocean lagoon suitable for a
    seaplane to land. In 1935, Pan Am’s representative, Harold Gatty, visited Kingman
    Reef, where he “built a small monument on the speck of dry land” and stationed a
    supply boat there to service the Pan Am Clipper seaplane.
    
             In December 1935, the Navy granted Pan Am a “Revocable Permit” “to operate
    its commercial trans-Pacific airplane service into and over and to land on the waters of
    Kingman Reef and Pago Pago Harbor, American Samoa; to use certain areas at
    Kingman Reef and to moor a company barge and station ship of American Registry at
    Kingman Reef.” Pan Am’s first survey, round-trip flight to Kingman Reef left Honolulu
    on March 23, 1937 and, after an “overnight stay at Kingman Reef, the Clipper flew on to
    Pago Pago.” The Clipper returned to Kingman Reef on April 8, 1937 and continued its
    flight to Honolulu on April 9, 1937.
    
           The Clipper made a second round-trip flight in late 1937. Outbound, it landed at
    Kingman Reef on December 23, 1937 and flew onto Pago Pago on December 24, 1937.
    Inbound, the Clipper returned to Kingman Reef on January 2, 1938 and flew onto
    Honolulu on January 3, 1938. Pan Am’s third and final Pacific flight via Kingman Reef
    was in early 1938. The Clipper flew from Honolulu to Kingman Reef on January 9, 1938
    and, after an overnight stay, it flew on to Pago Pago on January 10, 1938. After an
    early morning take off from Pago Pago bound for New Zealand on January 11, 1938,
    the Clipper exploded and was lost at sea. “After the loss of the Samoan Clipper, the
    dangerous route through Kingman Reef and American Samoa was abandoned.”
    
          On April 20, 1937, in correspondence, Leslie and Ellen Fullard-Leo wrote to the
    Hawaii congressional delegate in Washington, D.C., Samuel Wilder King, regarding the
    Pan Am landings at Kingman Reef. The Fullard-Leo family wrote that Kingman Reef’s
    “ownership presumably rests with the State or Navy Department, since by one of these,
    use of it has been given to Pan-American Airways, and has on two occasions been
    used during their trial flight this month to Auckland, N.Z.” The Fullard-Leo family also
    requested that Mr. King “interest[] the Government in the purchase of the Palmyra
    group” for the then materializing air “route to the South Pacific.”
    
          Moreover, specifically regarding Kingman Reef, the Fullard-Leo family stated:
    “Not only did we secure this wonderful harbor for the United States but really prevented
    the same being annexed for a foreign power. Meanwhile we are still paying taxes on
    Kingman’s which is included in the Palmyra nominal assessment.” In closing, the
    
                                              20
    Fullard-Leo family presented a claim for $40,000.00, including accrued interest, to cover
    the costs incurred in “annexing Kingman’s Reef” by sending their boat to Kingman Reef
    three times, as well as to cover the tax payments that the Fullard-Leo family made
    during the 15-year period from 1922 to 1937. Although the Fullard-Leo family sought
    first to pursue their claim through their congressional delegate, they did not rule out the
    possibility of making a “formal claim through legal channels,” for which the award of
    anticipated legal fees would be requested.
    
           Delegate King forwarded the Fullard-Leo family’s letter to the Secretary of the
    Navy on May 19, 1937, and requested the Navy’s comment on their claim. The
    Secretary of the Navy responded on May 29, 1937, recounting some of the history of
    Kingman Reef and indicating that “[t]he records of the Navy Department do not indicate
    that there were any vested rights on Kingman Reef in favor of private interests on the
    date of the issuance of” President Roosevelt’s December 29, 1934 Executive Order.
    
            On October 15, 1937, The Judge Advocate General of the Navy (Navy TJAG)
    wrote to the Commandant, Fourteenth Naval District, United States Navy. In his letter,
    the Navy TJAG requested “information as to the private ownership of or interest in
    Kingman Reef and Palmyra Island as disclosed by the records of the Fourteenth Naval
    District,” along with “documents bearing thereon.” In response, on December 6, 1937,
    the Commandant wrote to the Navy TJAG on the subject of “Kingman Reef and
    Palmyra Island in the Pacific Ocean – Private Ownership.” The Commandant recited
    the history of Kingman Reef, starting first with the 1922 annexation by Mr. Thurston and
    the Copra Co. Notably, he made no reference to any events regarding Kingman Reef
    prior to 1922. The Commandant then wrote that receipt of the 1922 letters sent by Ellen
    Fullard-Leo to the Secretary of State regarding the Copra Co.’s annexation of Kingman
    Reef was “acknowledged by the Secretary of State but no mention was made of the
    claim to Kingman Reef for its own use.”
    
           In the same December 6, 1937 letter, however, the Commandant further noted
    that the “Territory of Hawaii has continued to collect taxes on Kingman Reef from Ellen
    and Leslie Fullard-Leo as the alleged owners of Palmyra Island and Kingman Reef
    since 1923, although Kingman Reef is not accepted as a part of the Territory of Hawaii.”
    In closing, the Commandant stated: “It is understood that Mr. L. Fullard-Leo is preparing
    to submit a claim for ownership to Kingman Reef in the near future, based upon the
    original claim of the [Copra Co.], which was financed largely by himself and his wife.”
    Subsequently, on February 11, 1938, the Navy TJAG acknowledged receipt of the
    Commandant’s letter of December 6, 1937, stating, “[t]he information contained therein
    will be placed on file for future reference in the event a claim is made for ownership by
    private parties. No such claim has been filed with the Navy Department to date.”
    
           A few months later, on January 25, 1938, Mr. Townsend and Mr. Lewis,
    attorneys for the Fullard-Leo family, sent a letter to the Secretary of State regarding
    Ellen Fullard-Leo’s “interest . . . in the island known as Kingman’s Reef. . . .” On
    February 12, 1938, the Department of State responded, informing Mr. Townsend and
    Mr. Lewis that the letter was “transmitted to the Secretary of the Navy for his information
    
                                                21
    in the matter.” Subsequently, on March 29, 1938, Mr. Townsend and Mr. Lewis wrote
    directly to the Secretary of the Navy to discuss the Fullard-Leo family’s claim of fee title
    ownership in Kingman Reef. In that letter, Mr. Townsend and Mr. Lewis wrote:
    
    
           As indicated in our letter of January 25th to the Secretary of State, it would
           seem that, as a result of the Executive Order of December 29, 1934, the
           Secretary of the Navy apparently concluded that the Department of State
           had denied the existence of the private property interests in Kingman’s
           Reef claimed by Mrs. Ellen Fullard-Leo. We trust that the letters now in
           your possession will clarify the position and remove any question as to
           Mrs. Fullard-Leo’s legal rights, which we propose to protect, so far as
           possible, by appropriate legal proceedings. It seems unnecessary to
           restate the costs incurred by Mrs. Fullard-Leo in connection with the
           annexation of Kingman’s Reef for and in behalf of the United States, or to
           recount the steps taken by her to establish her presently existing legal
           rights to the private property interests in the atoll.
    
           On April 26, 1938, the Navy TJAG, by direction of the Secretary of Navy,
    responded to Mr. Townsend and Mr. Lewis’ letter of March 29, 1938. In that letter, the
    Navy TJAG acknowledged that the Fullard-Leo family’s previous correspondence with
    the Department of State “indicates that the claim of title of Mrs. Fullard-Leo is based” on
    Mr. Thurston’s alleged 1922 annexation of Kingman Reef to the United States and the
    Copra Co. The Navy TJAG, however, went on to dispute, and expressly reject, the
    Fullard-Leo family’s claim of ownership, stating:
    
           The records show that Kingman Reef, otherwise known as ‘Dangers
           Rock,’ is a bonded guano island, it having been listed by affidavit of
           Captain W.W. Taylor on February 12, 1858, and his right through several
           assignments, were transferred to the United States Guano Company, and
           the island was bonded on February 8, 1860 (Moore’s Digest of
           International Law, Vol. 1, pp. 667-668). It will be noted that the island,
           including its reefs and tide and submerged lands, was under the control
           and jurisdiction of the United States long before the claim of Mrs. Fullard-
           Leo arose, and by Executive Order No. 6935, dated December 29, 1934, it
           was placed under the control and jurisdiction of the Navy Department.
           Under the circumstances, the showing made is not sufficient to uphold the
           claim of Mrs. Fullard-Leo.
    
           Following this year long series of correspondence between the Fullard-Leo
    family, and then correspondence on their behalf, and the federal government, contact
    between the Fullard-Leo family and the federal government regarding Kingman Reef
    appears to have ceased for several decades. The record does not appear to offer
    evidence of correspondence or other contact between the Fullard-Leo family and the
    federal government regarding Kingman Reef from 1938 to 1991.
    
    
    
                                                22
    President Roosevelt’s 1941 Executive Orders
    
          On February 14, 1941, President Roosevelt issued Executive Order No. 8682, as
    amended by Executive Order No. 8729, dated April 2, 1941, which “established and
    reserved as naval defensive sea areas for the purposes of national defense,” the
    “Kingman Reef Naval Defensive Sea Area” and the “Kingman Reef Naval Airspace
    Reservation” by which the airspace over said territorial waters and islands were
    reserved as “naval airspace . . . for the purpose of national defense.” Exec. Order No.
    8682, 6 Fed. Reg. 1015 (Feb. 14, 1941). Executive Order No. 8682 established Naval
    Defensive Sea Areas over the “territorial waters between the extreme high-water marks
    in the three-mile marine boundaries” surrounding Kingman Reef and Palmyra,
    Johnston, Midway, and Wake Islands in the Pacific Ocean, as well as Naval Airspace
    Reservations of the “airspaces over the said territorial waters and islands. . . for
    purposes of national defense. . . .” Executive Order No. 8682 further stated:
    
          At no time shall any person, other than persons on public vessels of the
          United States, enter any of the naval defensive sea areas herein set apart
          and reserved, nor shall any vessel or other craft, other than public vessels
          of the United States, be navigated into any of said areas, unless
          authorized by the Secretary of the Navy. At no time shall any aircraft,
          other than public aircraft of the United States, be navigated into any of the
          naval airspace reservations herein set apart and reserved, unless
          authorized by the Secretary of the Navy.
    
          Executive Order No. 8729 amended the phrase the “territorial waters between
    the extreme high-water marks in the three-mile marine boundaries,” in a number of
    Executive Orders, including Executive Order No. 8682. Executive Order No. 8729
    stated the phrase “is hereby corrected to read 'the territorial waters between the
    extreme high-water marks and the three-mile marine boundaries.’” Exec. Order No.
    8729, 6 Fed. Reg. 1791 (Apr. 2, 1941). Neither Executive Order No. 8682 nor
    Executive Order No. 8729 addressed issues of title or ownership of Kingman Reef.
    
           A February 7, 1941 letter from the Bureau of the Budget, Executive Office of the
    President, to the Secretary of the Navy, regarding the proposed Executive Order No.
    8682, stated that the Secretary of the Interior, “assumes that proper provision will be
    made under the authority given the Secretary of the Navy so as to permit bona fide
    residents of the areas reasonable means of transportation and communication to and
    from the islands.”
    
            Subsequently, on March 15, 1941, the Chief of Naval Operations, United States
    Navy (CNO), wrote to the Navy TJAG. The CNO stated that, in preparing administrative
    regulations for their respective Naval Defensive Sea Areas, “commandant[s] will be
    invited to the necessity for the minimum of interference with vital industries and vested
    interests.” Moreover, in an April 18, 1941 letter to the Commandant, Thirteenth Naval
    District, regarding the “Administration of Naval Defensive Sea Areas and Air Space
    
                                               23
    Reservations,” the CNO stated:
    
          In the administration of these areas, it is not the intention of the Chief of
          Naval Operations to hamper the commandant by unnecessary regulation.
          The object of the executive order was to give the commandant necessary
          authority to control subversive activities and safeguard the national
          defense. The amount of control necessary can best be judged by the
          commandant or his representative in command locally.
    
           Decades later, on July 14, 1976, the CNO suspended the Naval Airspace
    Reservation over Kingman Reef. See 32 C.F.R. § 761.4(d) (2013). Additionally, the
    CNO suspended the Naval Defensive Sea Area around Kingman Reef, except for the
    entry of foreign flag ships and nationals. 41 Fed. Reg. 28,957 (Jul. 14, 1976). These
    areas, however, were made “subject to reinstatement without notice at any time when
    the purposes of national defense may require.” 32 C.F.R. § 761.4(d).
    
           Despite the issuance of the Executive Orders in 1934 and 1941, plaintiff alleges
    that no restrictions regarding Kingman Reef were ever implemented. To that end, Mr.
    Savio, in a sworn declaration, stated:
    
          At no time has the government ever restricted me from entering Kingman
          Reef itself, its airspace or surrounding waters, nor has the government
          ever indicated to me that I, acting as the Fullard-Leo family’s agent, was
          not authorized or able to sell, convey or transfer any of its interest in
          Kingman Reef.
    
    Similarly, brothers Ainsley and Dudley Fullard-Leo, in sworn declarations, each stated:
    
          At no time have I ever been physically restricted from entering Kingman
          Reef, nor has the government demonstrated to me, until the taking in
          January 2001, that the Fullard-Leo family and/or Kingman Reef Atoll
          Investments, L.L.C. were unable to sell, convey or transfer any of its
          interest in Kingman Reef.11
    
          As noted above, the record does not offer much information on actions or contact
    between the Fullard-Leo family and the federal government regarding Kingman Reef
    from 1938 to 1991. The record does reflect that on November 10, 1952, the
    Commander in Chief, United States Pacific Fleet, Pearl Harbor, Hawaii issued
    CINCPACFLT Instruction 5521.1A, which “set[] forth detailed procedures for obtaining
    and [sic] information on travel clearances required for” over fifteen islands and other
    land masses, including Kingman Reef, Japan, Philippine Islands, Hong Kong, and
    
    11
       In his deposition of April 11, 2007 before the United States District Court for the
    District of Hawaii, Dudley Fullard-Leo stated that he had never physically been on
    Kingman Reef and had never visited it by ship, but had flown over it twice.
    
    
                                               24
    Countries and Territories in or bordering the Pacific Area. Instruction 5521.1A set forth
    procedures and applications by which both United States citizens and foreign nationals,
    who were not United States military personnel, could receive permission to access such
    islands and land masses. With regard to Kingman Reef in particular, Instruction
    5521.1A first referred to Executive Order No. 8682 of February 14, 1941 and explained
    its contents. Second, Instruction 5521.1A stated that it is necessary to “obtain security
    clearance” to access Kingman Reef through an established procedure,12 but further
    noted that “Kingman Reef is not regularly inhabited.”
    
           Subsequently, on November 12, 1963, the Office of the Chief of Naval
    Operations issued “Regulations Governing Issuance of Entry Authorizations,” OPNAV
    Instruction 5500.11C.13 These regulations reiterated that the Kingman Reef Naval
    Defensive Sea Area and Naval Airspace Reservation were established by Executive
    Order No. 8682 of February 14, 1941. The Navy regulation also stated that Executive
    Order No. 6935 of December 19, 1934 placed Kingman Reef and its appurtenant reefs
    and territorial waters under the control and jurisdiction of the Secretary of the Navy for
    administrative purposes. Regarding entry authorizations, The Navy regulation stated:
    
          Entry authorizations may be issued only after an Entry Control
          Commander . . . has determined that the presence of the person, ship, or
          aircraft will not, under existing or reasonably foreseeable future conditions,
          jeopardize the efficiency, capability or effectiveness of any military
          installation located within or contiguous to a defense area.
                                                  ...
    
          Requests for entry authorizations will be evaluated and adjudged as to
    
    12
       Instruction 5521.1A stated that the requirements to gain permission to access Guam
    and the Trust Territory of the Pacific apply also to gain access to Kingman Reef. In
    order to access Guam and the Trust Territory, security clearance is necessary for all
    entrants, except for military and civilian personnel of the United States Armed Forces
    and their dependents, civilians under contract with the armed forces, travelers in transit
    without stop-over, permanent residents of the trust territories traveling within the
    Territory or to Guam, and permanent residents of Guam. To receive a security
    clearance and permission to enter such areas, the Navy required the party seeking
    entry to submit to a background check and provide relevant background information,
    including name, address, date and place of birth, alien registration number or proof of
    citizenship, and employment information, as well as the duration and purpose of the
    proposed visit.
    13
        Defendant, in the Hawaii quiet title action, Kingman Reef Atoll Investments, L.L.C. v.
    United States, 
    545 F. Supp. 2d 1103
    , included updated copies of OPNAV 5500.11C,
    listed as OPNAVINST 5500.11D of January 31, 1975 and OPNAVINST 5500.11E of
    September 18, 1990. All versions of OPNAV Instruction 5500.11 presented to the court
    contain substantially the same information regarding entry authorization to the Navy
    defensive zones, including Kingman Reef.
                                               25
           whether the entry at the time and for the purpose stated will or will not be
           inimical to the purposes of national defense.
    
           On June 21, 1973, A.W. McKelvey wrote a letter to the Honorable Hiram Fong,
    United States Senator, in which he stated that it has come to his “attention that the
    Kingman Reef is under the control of the United States Navy.” In order to establish a
    commercial fishing operation in the Line Islands, Mr. McKelvey sought information
    regarding “who to contact in the Navy Department in order to obtain permission to fish
    on and about Kingman Reef.” In response, Senator Fong directed Mr. McKelvey to
    Joseph Samartino, Director, Real Estate Division, Commander Naval Facilities
    Engineering Command, Headquarters, Commander in Chief. The parties have neither
    made reference to, nor presented further documentation to the court, regarding contact
    between Mr. McKelvey and the Navy concerning Kingman Reef.
    
          On August 2, 1973, the Navy issued a memorandum in which it stated that if
    permission to enter Kingman Reef is to be granted, then it suggests specifying that
    there be “[p]ole and/or net fishing only. No permanent structures on atoll. Effect
    necessary [Coast Guard] + Navy notification.”
    
    The Status of Kingman Reef During the 1990s
    
           On January 23, 1991, the Commander in Chief, United States Pacific Fleet, Pearl
    Harbor, Hawaii issued CINCPACFLTINST 5450.74C, which instructed the Commander
    of the Naval Base at Pearl Harbor to “[s]erve as Entry Control Commander with
    authority to approve or disapprove . . . authorization for all persons, ships, and aircraft to
    enter Kingman Reef.”
    
           On July 26, 1991, TNC, a private nature preservation organization, and the FWS
    met with Peter Savio, agent for the Fullard-Leo family and member/manager of KRAD,
    to discuss the sale and development of Palmyra Atoll and Kingman Reef. In an August
    19, 1991 memorandum discussing the minutes from the July 26, 1991 meeting, James
    E. Maragos, Director, Conservation Science, of TNC’s Pacific Regional Office, wrote
    that the buy-out option of the Fullard-Leo family’s ownership interest in Kingman Reef
    proposed by Mr. Savio, who also informed the TNC of the Fullard-Leo family’s
    ownership claim, should be seriously considered. Mr. Maragos further noted: “Transfer
    of Kingman Reef by the owners to the USFWS could also serve as compensation or
    mitigation for other impacts, and the USFWS is keenly interested in Kingman.”
    
           Although defendant asserts that TNC was not acting as the government’s agent
    in any dealings it had or may have had with Mr. Savio or others, representatives from
    the FWS were present at the July 26, 1991 meeting and were included on the August
    19, 1991 memorandum. Additionally, in a sworn declaration, Mr. Savio stated:
    
           I specifically recall that during that meeting the U.S. Fish and Wildlife
           Service (“FWS”) stated that it was keenly interested in Kingman Reef, and
           that we discussed whether the Fullard-Leo family would be interested in
    
                                                 26
          selling both Palmyra Atoll and Kingman Reef to TNC or the government.
          No one at the meeting questioned the Fullard-Leo family’s legal title to
          Kingman Reef or suggested that the government owned Kingman Reef.
    
           Additionally, in the August 19, 1991 memorandum, TNC reiterated Mr. Savio’s
    position regarding the relationship between the Fullard-Leo family and the federal
    government:
    
          The owners are nervous about collaborating with the federal government
          due to previous misfortunes. . . . If Savio pulls out of the project, then the
          owners would not want USFWS/TNC as partner for further attempts at
          development and conservation. The owners are concerned that the
          federal government may try to condemn [Palmyra Atoll] once the feds
          have a foothold. . . .
    
           Additional evidence of subsequent discussions specifically regarding Kingman
    Reef in the years immediately following the 1991 meeting between Mr. Savio, TNC and
    FWS, was not presented to the court. It appears from the record that discussions
    regarding the conservation of Kingman Reef actively resumed in 1997.
    
           On December 15, 1992, Lieutenant Commander Rick Russell, United States
    Navy, Pearl Harbor, contacted P. Ha and Andy Yuen at the FWS regarding the granting
    of access to Kingman Reef. The record of the telephone conversation stated:
    
          Lt. Commander Russell called to let us know that he is the person to talk
          to regarding permission to go to Kingman Reef.
    
          He called with respect to the Ham Radio expedition to Kingman that is
          being planned. There seems to have been a mix-up with the information
          about who has jurisdiction over Kingman Reef. It is not Peter Savio. The
          Navy (COMNAVBASE Pearl Harbor) has administrative jurisdiction over
          Kingman Reef by delegated authority under [Executive Order] 6935[,] 29
          December 1934. (Kingman is “reserved reefs”). Lt. Commander Russell
          just wanted to clarify the issue. He will call Peter Savio to inform him.
    
           The parties neither referenced, nor provided the court with, documentation of
    further contact between Commander Russell, Mr. Savio, Mr. Ha or Mr. Yuen regarding
    this particular issue. Specifically, the parties have neither alleged nor presented
    evidence to the court that Commander Russell actually contacted Mr. Savio to restrict
    Mr. Savio from granting access to Kingman Reef to third parties.
    
           On March 7, 1994, John D. Clouse contacted the Commander of the Pearl
    Harbor Naval Base, seeking entry and transportation to Kingman Reef. In response, on
    March 18, 1994, Commander Russell informed Mr. Clouse that the Navy could not
    provide transportation to Kingman Reef. Mr. Clouse was informed, however, that he
    could enter Kingman Reef, by his own boat charter, after Commander Russell
    
                                               27
    processed the attached form application (i.e., permit) for entry of ships into areas within
    the jurisdiction of the Navy at Pearl Harbor. The parties neither referenced, nor
    provided the court with, documentation of further contact between Mr. Clouse and the
    Navy.
    
           On May 28 and 30, 1996, Michal Mickelwait of the Honolulu Sailing Company
    wrote the Commander of the Pearl Harbor Naval Base, on behalf of a group of travelers
    seeking to literally set foot on every territory and island group in the Pacific. Mr.
    Mickelwait specifically sought permission for the group to enter Kingman Reef. On May
    18, 1996, G.D. Jensen, Captain, United States Navy responded to Mr. Mickelwait’s
    request in a letter which granted permission for the group to enter Kingman Reef, during
    daylight hours, for a maximum duration of four hours. The parties did not present the
    court with evidence that Mr. Mickelwait’s group ever actually entered Kingman Reef.
    
          Similarly, on October 6, 2000, P. Borkowski, Lieutenant Commander, United
    States Navy wrote a letter to David Johnson, granting permission for the ship, M/V
    Machias, to enter Kingman Reef from October 20, 2000 until November 1, 2000 to
    “conduct natural history surveys and to engage in amateur radio activities.” The record
    does not contain evidence that the M/V Machias actually entered Kingman Reef.
    
            It also appears that between 1991 and 1997 the Fullard-Leo family attempted to
    sell to, or jointly develop, Kingman Reef with the State of Hawaii or City of Honolulu. To
    that end, on August 4, 1994, Leigh-Wai Doo, Councilmember, City Council of the City
    and County of Honolulu, wrote to Ainsley and Dudley Fullard-Leo, as well as to Peter
    Savio, thanking them for
    
           sharing with me your time and openness of Hawaii government acquisition
           of Palmyra Atoll and Kingman Reef. I continue in my strong belief, desire
           and effort to see Hawaii State or Honolulu City and County acquisition, or
           at least jointly plan with you[,] Palmyra Atoll and the Kingman Reef. In the
           coming five months remaining in my City Council term I hope we achieve
           success to these ends.
    
    Plaintiff alleges that this letter is evidence that the Hawaii state government recognized
    the validity of the Fullard-Leo family’s claim of fee title ownership in Kingman Reef.
    
    The Establishment of the Kingman Reef NWR
    
           In the late 1990s, the federal government appears to have renewed its interest in
    Kingman Reef. Beginning in October 1997, the FWS began to develop and issue
    proposals regarding the proposed establishment of the Kingman Reef NWR. On
    October 2, 1997, Jamie Rappaport Clark, then Director of the FWS granted approval to
    the Regional Director, Region 1, FWS to “proceed with detailed planning” on the
    establishment of the Palmyra Atoll and Kingman Reef NWRs. Attached to that
    memorandum was an August 1997 Preliminary Project Proposal, which noted:
    
    
    
                                                28
           [a] Explorers wishing to visit Kingman Reef must secure permission from
           the Fullard-Leo family and the U.S. Coast Guard.
    
           [b] Kingman Reef was annexed on behalf of the United States in 1922, by
           the Palmyra Copra Company (Fullard-Leo family), and the family claims
           ownership. It is an unincorporated U.S. possession administered by the
           U.S. Department of the Navy. The Service [FWS] is proposing to study
           fee title acquisition of Kingman Reef from the center of the atoll to the 3-
           nautical mile limit.
    
           [c] The Landowners are reportedly willing to sell their lands to prevent
           heirs from acquiring a large inheritance tax debt.
    
           [d] [T]he price for fee title to Kingman Reef is unknown. Due to the
           negligible commercial real estate value, it might be possible to include it in
           the purchase price negotiated for Palmyra.
    
           Next, on October 3, 1997, Robert P. Smith, Pacific Islands Manager for the FWS
    sent a handwritten facsimile to Mr. Savio in which he stated:
    
           Peter, the attached represents approval from our director in Washington,
           Jamie Clark, to proceed with detailed planning necessary for our
           acquisition. Note that we desire to acquire both Palmyra and Kingman, if
           that is the sellers’ desire. I will transmit this to Col. Ralph Graves of the
           Corps with a cover letter emphasizing the need to do clean-up work [at
           Palmyra Atoll].
    
            Concurrently, on October 3, 1997, Mr. Smith also wrote a letter to Lieutenant
    Colonel Ralph H. Graves, Honolulu District Engineer, United States Army Corps of
    Engineers, Fort Shafter, Hawaii. Mr. Smith noted that the enclosed memorandum from
    Mr. Clark gave approval for the FWS to “begin detailed planning toward (hopefully)
    acquisition of Palmyra Atoll and Kingman Reef as units of the National Wildlife Refuge
    System.” Mr. Smith continued to write that the FWS is working closely with Mr. Savio,
    “a local realtor who represents the interests of the majority owners[,]” as well as TNC,
    and he “at this point foresee[s] TNC actually tendering an offer to buy the property. If
    that is successful, the Service will repay TNC in the future with dollars appropriated by
    Congress through the Land and Water Conservation Fund.”
    
            Regarding the defendant’s alleged recognition of fee title ownership in the
    Fullard-Leo family, Mr. Smith stated, in an April 2, 2007 deposition in the District Court
    for the District of Hawaii case, Kingman Reef Atoll Investments, L.L.C. v. United States,
    that “[f]rom ‘91 until certainly ’97 . . . certainly [he] believed that the Fullard-Leo family
    owned Kingman Reef,” and that no one in his presence stated that the Fullard-Leo
    family did not own Kingman Reef. Mr. Smith, however, indicated that on a second
    expedition to Palmyra Atoll, in 1998, he had changed his position regarding the claim of
    fee title ownership by the Fullard-Leo family in Kingman Reef. Mr. Smith stated that
    
                                                 29
    between 1997 and 1998:
    
           The Nature Conservancy’s attorney, Suzanne Case, had done extensive
           research on the ownership of Kingman; because [Mr. Smith] was then and
           probably continued to be . . . a cheerleader for getting both properties and
           both nearby marine environments. . . . [Ms. Case’s] research revealed that
           the Fullard-Leo family, at least in her view, did not own Kingman Reef.
    
    Although without offering any additional foundation for his conclusions, Mr. Smith further
    stated that following the 1998 expedition, the Realty Division of the FWS decided that,
    “in the view of the government,” Ms. Case’s research was correct and that the Fullard-
    Leo family did not hold title to Kingman Reef.
    
          An October 17, 1997 report issued by NOAA, however, acknowledged the
    ownership by the Fullard-Leo family of Kingman Reef:
    
           The Fullard-Leo family owns Palmyra Island and Kingman Reef, and may
           claim ownership or jurisdiction over ocean resources and/or submerged
           lands seaward of the low-water mark.
    
           The exact extent of the Fullard-Leo claims is not clear, probably extending
           to the lagoons and reefs surrounding the islands, and perhaps extending
           to the “territorial” waters. Federal submerged lands around these areas
           were not conveyed to the Fullard-Leo family. It is the position of the
           Federal Government that the EEZ [Exclusive Economic Zone] around
           Palmyra and Kingman extends to the low-water mark.14
    
          Further, in his November 1997 “Report to the Chairman, Committee on
    Resources, House of Representatives, United States Insular Areas, Application of the
    United States Constitution,” the Associate General Counsel of the United States
    
    14
       Defendant admits that the August 1997, October 2, 1997 and October 3, 1997
    documents, produced by FWS, referenced above, are accurately quoted. Defendant,
    however, argues that any “preliminary” reports, documents or letters, including a 1997
    proposal to study fee title acquisition of Kingman Reef that FWS issued in connection
    with the process for determining whether to designate Kingman Reef as a National
    Wildlife Refuge must be interpreted in light of subsequent investigations undertaken in
    connection with that determination and the issuance of any final reports and decisions
    regarding Kingman Reef. Defendant further asserts that subsequent investigations
    confirmed that the United States was the owner of Kingman Reef and that the claims of
    private ownership asserted by the Fullard-Leo family and related entities were invalid.
    Defendant also has stated that the author of the October 17, 1997 NOAA report was not
    charged with investigating or otherwise assessing title to Kingman Reef and had no
    authority to claim or disclaim title to federal property. Finally, defendant states that the
    NOAA statement that the Fullard-Leo family owns Kingman Reef is incorrect.
    
    
                                                30
    General Accounting Office (GAO), the investigative arm of Congress, specifically noted
    that Kingman Reef had been claimed by the Fullard-Leo family. Id. at 9.15 First, the
    GAO noted that seven of the nine United States insular areas,16 including Kingman
    Reef, were initially claimed for the United States under the Guano Islands Act of 1856,
    codified at 48 U.S.C. §§ 1411-1419. Report to the Chairman, Committee on Resources,
    House of Representatives, United States Insular Areas, Application of the United States
    Constitution, at 10. The GAO stated, however, that, “[a]lthough claims were made to
    Palmyra Atoll and Kingman Reef under the act, the presence of guano in either area is
    doubtful.” Id. at 39 (citing Legal Advisor’s Office, U.S. Department of State, The
    Sovereignty of Islands Claimed Under the Guano Act and of the Northwest and
    Hawaiian Islands, Midway, and Wake at 612-15, 624-25 (1933)). In fact, the GAO
    reiterated that “Palmyra previously had been claimed in 1860 under the Guano Islands
    Act. The claim, however, does not appear to have been accepted as valid. It is unlikely
    that the claimant landed on the island or that there was even any guano on it.” Report
    to the Chairman, Committee on Resources, House of Representatives, United States
    Insular Areas, Application of the United States Constitution at 41 n.9 (citing The
    Sovereignty of Islands Claimed Under the Guano Act and of the Northwest and
    Hawaiian Islands, Midway, and Wake at 612-15, 875).
    
          With specific regard to Kingman Reef, the GAO report concluded:
    
          First discovered in 1798 by an American whaler, Kingman Reef was
          claimed in 1860 by the U.S. Guano Company, although there is no
          evidence that guano existed or was ever mined there. The atoll was
          claimed again in 1922 by Lorrin Thurston on behalf of the Palmyra Copra
          Company for use as a fishing base. The State Department concluded in
          1933, in a study of islands claimed under the Guano Islands Act, that
          claims made under the act to Kingman Reef were not valid. However, an
          American had initially discovered Kingman and no other nation claimed it.
          In 1934, President Franklin Roosevelt placed the reef under the control of
          the Navy, formally asserting American rights to it. During World War II,
          Kingman was included in a naval defensive area established by President
    
    15
       The draft of the GAO report was submitted to the Department of Interior, Department
    of Justice, and Department of State for comment. “Each of these agencies and offices
    generally agreed with the information and issues discussed in [the] draft report and
    offered technical comments, which [were] incorporated in the report as appropriate.”
    Specifically, on July 3, 1997, the Department of Interior “commend[ed the GAO] on the
    report’s content and accuracy.” The GAO “modified the report to reflect the Department
    of the Interior’s comments,” including those from the Office of Insular Affairs and the
    FWS.
    16
       The nine small insular areas are Palmyra Atoll, Navassa Island, Johnston Atoll, Baker
    Island, Howland Island, Jarvis Island, Kingman Reef, Midway Atoll, and Wake Atoll. All
    islands except for Midway Atoll and Wake Atoll were claimed under the Guano Islands
    Act.
                                              31
           Roosevelt. In 1950, the Congress enacted a law making Kingman Reef,
           along with several other insular areas, subject to the jurisdiction of the
           U.S. District Court in Honolulu for purposes of any criminal or civil cases
           that might arise there.
    
    Id. at 57-58.
    
           Regarding the Fullard-Leo family’s claim of fee title ownership to Kingman Reef,
    the GAO noted that although Mr. Savio informed the GAO that the Copra Co. ceded all
    rights to Kingman Reef to the Fullard-Leo family in 1922, “Navy personnel searching
    Hawaiian land records in 1986 were unable to locate a formal record of a conveyance of
    Kingman Reef to the Fullard-Leos,” although recording may not have been required.
    
          In an August 12, 1997 letter regarding the 1997 GAO report, however, T.E.
    Manase Mansur, Advisor on Insular and International Affairs to the United States House
    of Representatives, Committee on Resources, thanked Mr. Savio for “sending the
    information clarifying the rightful title of the Fullard-Leo’s to Palmyra and Kingman Reef.
    The brief is well documented regarding the basis for clear title to the entire area of
    Palmyra and Kingman, including surrounding reefs.” Mr. Mansur continued:
    
           The House of Representatives has designated the Committee with
           primary jurisdiction for all territories. There is considerable interest in
           Congress in insuring that private property rights of U.S. citizens are
           protected. That certainly includes the Fullard-Leo’s rights to Palmyra and
           Kingman currently and under any future legislation which would affect the
           formal jurisdiction of these islands.
    
           Subsequently, on October 26, 2000, the United States Senate Committee on
    Appropriations sent letters to the Secretary of the Department of the Interior, Bruce
    Babbitt, and the Secretary of the Department of Agriculture, Daniel Glickman, informing
    them that Congress provided an “additional $179 million for high priority land
    acquisitions,” $130 million of which was provided to the Department of the Interior (DOI)
    pursuant to the “Department of the Interior and Related Agencies Appropriations Act,
    2001.” Pub. L. No. 106-291, 114 Stat. 922 (2000). Apparently, DOI had requested
    $8.25 million for the purchase of “Palmyra Atoll/Kingman Reef (HI).”
    
            Earlier, on October 6, 1999, Michael Killian, United States Navy, sent an email to
    Steven M. Dong, United States Navy, regarding information requested on Kingman
    Reef by the Deputy Assistant Secretary of the Navy, W.J. Cassidy. In his response, Mr.
    Killian wrote that:
    
           Navy was designated the responsible federal agency to “own” Kingman
           Reef for lack of any other appropriate interested agencies. We are stuck
           with it. If now, we have another interested agency such as USFWS, then
           Navy should have no problem transferring custodial responsibility to DOI.
           As long as it is in federal ownership, Navy can deal with national security
    
                                                32
           concerns involving the island. I am unaware of any Navy usage in recent
           history. It may have been occupied during WWII.
    
          Subsequently, a March 30, 2000 Briefing Statement prepared for the Director of
    FWS, titled “Kingman Reef Ownership Status and Federal Jurisdictions,” stated:
    
           Kingman Reef is an unorganized and unincorporated U.S. possession.
           The U.S. acquired sovereignty over Kingman Reef pursuant to the Guano
           Act of 1856. Fee title interest rests with the Federal Sovereign. It is
           currently under the jurisdiction of the U.S. Navy.
    
           The Fullard-Leo family is claiming private ownership. In 1922, the
           American flag was hoisted over Kingman Reef at the request of the
           Fullard-Leo family for the purpose of taking formal possession. This is the
           same family that owns Palmyra Atoll, and whose ownership was
           confirmed by the Supreme Court decision, United States v. Fullard-Leo,
           
    331 U.S. 256
     (1947) - the case did not address Kingman Reef. Recently,
           The Nature Conservancy obtained a purchase agreement for Palmyra
           Atoll.
    
           People wishing to visit Kingman Reef must secure permission from the
           Fullard-Leo family. However, the U.S. government does not recognize the
           family’s imputed right to act in this manner.
    
    In closing, the Briefing Statement observed, as an ongoing concern, “the private
    ownership claims made by the Fullard-Leo family, though unsubstantiated, may need to
    be resolved. . . .”
    
            Subsequently, on August 25, 2000, the Department of the Navy transferred
    “[c]ontrol over and administrative jurisdiction of Kingman Reef, together with all reefs
    surrounding such island” to the DOI. At the time, the Navy determined that Kingman
    Reef was “excess” to Department of Defense requirements and that the property was
    “suitable for transfer to another Federal agency.” On September 1, 2000, the DOI
    acknowledged the acceptance of transfer, subject to President Roosevelt’s Executive
    Orders of 1934 and 1941.
    
             Next, on December 11, 2000, FWS issued a Draft Environmental Assessment
    (Draft EA) and draft Conceptual Management Plan for the proposed Kingman Reef
    NWR. FWS also sought public comments on the proposal for a 30 day public comment
    period, ending January 11, 2001, following the release of the Draft EA. In the Draft EA,
    the FWS wrote that it “will acquire land and water interests including, but not limited to,
    fee title, easements, leases, and other interests. Donations of desired lands or interests
    are encouraged. At Kingman Reef, the interest necessary to ensure the ability to
    properly manage the resources is Service [FWS] ownership of the reef and associated
    submerged lands and waters within the proposed Refuge boundary.”
    
    
    
                                                33
           In section 2.1 of the Draft EA, titled “Overview of Kingman Reef,” FWS recounted
    the history of Kingman Reef, stating that Captain Fanning first discovered the island in
    1798 and that Captain Kingman, for whom it was named, visited in 1853. Id. at 2-1. The
    FWS continued: “The U.S. annexed the reef in 1922, and in 1934 delegated jurisdiction
    to the Navy.” Id. The report neither references the Guano Islands Act nor the United
    States’ claim of ownership under the Guano Islands Act. Further, the report does not
    describe the manner by which the United States annexed Kingman Reef in 1922 and
    there is no discussion of Mr. Thurston’s voyage to Kingman Reef.
    
         In section 2.3.1 of the Draft EA, “Affected Social and Economic Environment:
    Ownership,” the FWS wrote:
    
           Kingman Reef is not part of any state (U.S. GAO 1997). The atoll is a
           United States unincorporated territory without an organic act, which is
           currently subject to control by the U.S. Navy. For the past 59 years, the
           reefs and waters of the territorial sea (within 12 nautical miles of the
           extreme high tide mark) have been reserved as a Naval Defensive Sea
           Area for the purpose of national defense (E.O. 8682 dated February 14,
           1941). At such time as Kingman Reef is no longer needed for military
           purposes and the Navy terminates its military use, the Department of the
           Interior would regain full jurisdiction.       The Service [FWS] would
           subsequently establish the Refuge through a Secretarial Order
           transferring jurisdiction and control from the Office of Insular Affairs to the
           Service [FWS].
    
    Id. at 2-2.
    
           In section 4.2.1 of the Draft EA, “Effects of the Alternatives on the Social and
    Economic Environment: Effects of the alternatives on ownership,” regarding the
    alternatives of taking no action or establishing a NWR at Kingman Reef, the FWS wrote:
    
           Both alternatives would continue the Federal ownership at Kingman Reef,
           and waters of the territorial seas. If the Navy extinguishes its use
           reservation, under [the No-Action Alternative], jurisdiction and control
           would revert to the Office of Insular Affairs. If the Navy extinguishes its
           use reservation, under [the Refuge Alternative], Kingman Reef and the
           waters of the territorial sea would be transferred to the Service [FWS] for
           use as a National Wildlife Refuge.
    
    Id. at 4-1. In Table 4-1 of the Draft EA, the FWS wrote that if the No-Action Alternative
    were taken, “Kingman Reef would remain under the control of the U.S. Navy,” but that, if
    the Navy extinguished its use reservation, the Office of Insular Affairs would acquire
    jurisdiction. Id. at 4-4. But, if the NWR were established, “Kingman Reef would remain
    under Federal jurisdiction. If the Navy extinguished its use reservation, the Service
    [FWS] would acquire jurisdiction.” Id.
    
    
    
                                                 34
            In section 2.3.4 of the Draft EA, “Public use and visitation,” the FWS wrote: “No
    permits have been recently issued by the Navy for members of the public to visit
    Kingman Reef.” Id. at 2-3. The FWS also stated, at section 4.2.2, “Effects of the
    alternatives on land use and the local economy,” that “[u]nder the No-Action
    [A]lternative, access to and use of Kingman Reef and its surrounding waters would
    continue to be regulated by the Navy and reserved for military use.” Id. at 4-1. At
    section 4.2.3, FWS wrote, “at present, there is no commercial fishing authorized by the
    Navy.” Id. at 4-2. At 4.2.4, FWS wrote that “[u]nder the No-Action alternative, access to
    Kingman Reef would continue to be restricted by the Navy within the territorial sea.” Id.
    
           Further, in section 3.5 of the Draft EA, the FWS stated that the establishment of
    the NWR with a boundary of 12 nautical miles from reefs awash at mean low tide, rather
    than taking no action, “would allow the Service [FWS] to provide long-term conservation
    and management of coral reef and other marine and terrestrial resources at Kingman
    Reef in perpetuity.” Id. at 3-2, 3-4.
    
          Following the release of the Draft EA, the FWS issued a news release, on
    December 12, 2000, titled “Public Comments Sought on Kingman Reef National Wildlife
    Refuge Proposal.” The release specifically stated:
    
          Kingman Reef is an unincorporated United States territory currently
          administered by the U.S. Navy. For the past 59 years, its reefs and
          waters have been reserved as a Naval Defensive Sea Area. The Navy is
          considering relinquishing its administration and returning it to the U.S.
          Department of the Interior.
    
    Additionally, FWS wrote that the “Navy has not authorized fishing within its naval
    defensive seas, though a low level of commercial fishing for sharks and big-eye and
    yellow-fin tuna occurs within the 200-nautical mile Exclusive Economic Zone outside the
    Navy’s jurisdiction.”
    
            Concurrent with the news release, a newspaper article by Harold Morse
    regarding the proposed Kingman Reef NWR appeared in the Honolulu Star-Bulletin on
    December 13, 2000 regarding the proposed Kingman Reef NWR, which quoted FWS
    officials stating that Kingman Reef was “[f]ormally annexed by the United States in
    1922, it became a U.S. Naval Reservation in 1934. Pan American World Airways used
    it in 1937-38 as a station for seaplanes flying between Hawaii and New Zealand.”
    Harold Morse, Plan would turn Navy’s isolated Kingman atoll into refuge, Honolulu Star-
    Bulletin, Dec. 13, 2000. The article neither made mention of the Fullard-Leo family or
    their claim to Kingman Reef, nor stated who or which entity held ownership to Kingman
    Reef. Id.
    
            On November 17, 2000, the Fullard-Leo family quitclaimed “[a]ll of Grantor’s
    rights, title and interest in” Kingman Reef to KRAI. The same day, KRAI leased
    Kingman Reef to KRAD for a period of seventy years. In addition, with KRAI’s consent,
    KRAD entered into a license agreement with KRE. The license agreement stated:
    
                                               35
           The intent of the parties is that Licensee [KRE] shall have the exclusive
           right to use Kingman Reef for commercial fishing and related transport
           and support operations, as set forth in this Agreement, and that Licensor
           [KRAD] shall not allow Kingman Reef to be used for such operations by
           any others.
    
    The license agreement indicated that Kingman Reef “is a possession of the United
    States and subject to federal laws, but it is not subject to the laws of any state (including
    the State of Hawaii) or county (including the City and County of Honolulu).” Section
    1.08 of the license agreement, however, addressed the fact that ownership of Kingman
    Reef either was or might become contested, stating:
    
           Section 1.08         Agreement Subject to Rights and Reservations of
           Others.
    
                  (1) Licensor [KRAD] hereby discloses, and Licensee [KRE]
                      acknowledges, that the federal government may have
                      asserted or may assert claims regarding the ownership of
                      Kingman Reef and its lagoons and territorial waters,
                      which claims the Master Lessor [KRAI] disputes.
                      Licensee acknowledges and agrees that Licensor has not
                      made and does not hereby make any representations or
                      warranties, express or implied, regarding the nature or
                      extent of Licensor’s or Master Lessor’s interest in
                      Kingman Reef or in the lagoons or territorial waters
                      thereof. Without limiting the generality of the foregoing,
                      Licensor hereby discloses and Licensee hereby
                      acknowledges, that while the Master Lessor believes that
                      the Master Lessor has rights to Kingman Reef, the nature
                      of the Master Lessor’s interest in Kingman Reef has not
                      been determined. All of Licensee’s rights under this
                      Agreement shall be solely as specified in this Agreement,
                      and Licensee acknowledges and agrees that this
                      Agreement is subject to the extent of Master Lessor’s
                      interest in Kingman Reef. . . .
    
    The parties agreed that, if KRE’s permitted activities under the license agreement were
    materially disrupted by “any person or governmental authority,” KRE could terminate the
    license agreement, provided that they made all outstanding payments.
    
           Following issuance by the FWS of the Draft EA and Conceptual Management
    Plan in December 2000, KRAI and KRAD, as well as other interested parties, requested
    that the time for public comment be extended by thirty days. DOI denied those
    
    
    
                                                 36
    requests.17
    
         In their January 11, 2001 joint letter to the FWS, the Fullard-Leo family, KRAI,
    KRAD, KRE and Palmyra Pacific Seafoods stated:
    
          Creation of the NWR will result in a direct taking and confiscation of
          private property in violation of the Fifth Amendment to the United States
          Constitution. . . . The EA, allegedly supporting the creation of the NWR,
          contains     numerous       errors,   inconsistencies,     omissions    and
          misrepresentations. The EA is fatally flawed and cannot form the
          foundation for any final agency action. In particular, the EA conceals from
          the public the fact that Kingman Reef is privately owned by [the] Fullard-
          Leo Family and that the Fullard-Leo Family is the undisputed owner of
          Kingman Reef. The omission of this key fact, on its face, appears to be a
          bad faith effort by FWS to confiscate extremely valuable private property
          and push this proposed matter through on an accelerated track prior to the
          new Bush administration taking office.
    
          On January 11, 2001, Carolyn Bohan, Regional Chief, National Wildlife Refuge
    System at FWS responded to the Fullard-Leo family and KRAI’s letters of December 22,
    2000 and January 4, 2001. The FWS wrote:
    
          We made the decision not to extend the comment period because it is not
          the means to resolve a title issue. The end result of our planning process,
          if the decision is made to proceed with a refuge, is an approved refuge
    
    17
       Parties that requested a thirty day extension to the public comment period for the
    proposed Kingman Reef NWR included the Fullard-Leo family, KRE, Palmyra Pacific
    Seafoods, L.L.C. (PPS), and the Western Pacific Regional Fishery Management
    Council (WPRFMC). KRE’s December 19, 2000 letter to the National Wildlife Refuge
    System notified the organization of a potential direct and regulatory taking because
    “KRE holds inchoate contractual fishing rights” within the 12 mile area extending from
    the low water mark at Kingman Reef, which is to be included in the NWR, and that
    “[e]stablishment of the refuge would also eliminate KRE’s contractual rights to establish
    a base camp operation at the atoll.” PPS, in a December 19, 2000 letter to the National
    Wildlife Refuge System stated that, “PPS has made a significant investment in
    obtaining, developing and operating its commercial fishing operation from the Palmyra
    Atoll and within the ocean waters around Kingman Reef. It is PPS’ understanding that
    both Palmyra and Kingman are privately owned by the Fullard-Leo family of Hawaii.
    PPS is operating under rights granted to it by the Fullard-Leo family.” The WPRFMC,
    on December 29, 2000, wrote to the FWS regarding Kingman Reef, stating that
    “ownership of the island may be vigorously contested in court, and in connection with
    this there are other legal issues concerning rights to commercial fishing around the
    island.” Despite the denial of the extension, KRAI and the Fullard-Leo family timely
    submitted their comments to FWS in letters dated December 22, 2000, January 4, 2001,
    and January 11, 2001.
                                               37
          boundary within which we will have authority to acquire lands and waters.
          After a boundary is approved, title to lands can and often does change.
          Title issues can continue to be raised and resolved. . . .
    
          Your letters assert that the Fullard-Leo family are [sic] the owner of
          Kingman Reef.        After reviewing the matter, we have found no
          substantiation to this claim. In 1934 and again in 1941, Kingman Reef
          was reserved, set aside, and placed under the control and jurisdiction of
          the Department of the Navy by Executive Orders. . . .
    
          We are aware of no evidence that the claim the Fullard-Leo family is
          asserting was ever recognized by the United States. In addition, we are
          aware of no evidence that the Fullard-Leos have, subsequent to the 1934
          Executive Order, challenged the claim of the United States to Kingman
          Reef.
    
          We need adequate, documented proof of ownership. . . . We will
          acknowledge [the Fullard-Leo and KRAI] claim in the final revisions to our
          environmental assessment; but unless we receive acceptable, written
          proof of ownership, our position will continue to be that Kingman Reef is
          Federally owned.
    
           On January 17, 2001, the FWS issued a Finding of No Significant Impact
    (FONSI), which concluded that the establishment of the Kingman Reef NWR was “not a
    major Federal action that will significantly affect the quality of the human environment
    within the meaning of section 102(2)(C) of the National Environmental Policy Act of
    1969 [(NEPA)], as amended.” National Environmental Policy Act of 1969, 42 U.S.C. §
    4321 et seq. (2012). The FONSI stated:
    
          A private entity claimed to own title at Kingman Reef. The Service [FWS]
          requested that the Office of Solicitor, Department of the Interior, review the
          documents provided by the legal firm representing the claimants. The
          Solicitor believes the claim is not legally valid. Therefore, the proposed
          Refuge would not result in a significant adverse economic or regulatory
          taking on the private entity.
    
          The FONSI continued: “The first recorded western contact at Kingman Reef was
    by an American seaman, Captain Fanning, in 1798. The Reef was named after Captain
    Kingman, who visited in 1853. The U.S. annexed the reef in 1922, and in 1934
    delegated jurisdiction to the Navy.” (citations omitted). The FONSI further stated:
    
           A private entity challenged the government’s claim to title at Kingman
           Reef. Although the Service [FWS] is aware of previous claims of
           ownership by a private entity, the Navy’s title research in the past
           (reported in GAO 1997) and our own title research did not find evidence
           to substantiate the claim. During the public comment period, the private
    
                                               38
           party provided documentation regarding their ownership claim. The
           documents were reviewed by the Department of the Interior’s Office of
           the Solicitor. The Solicitor believes that the legal title holder of record is
           the Department of the Interior, with a reservation in favor of the U.S.
           Navy.
    
            On January 18, 2001, one day after the issuance of the FONSI, Secretary of the
    Interior Bruce Babbitt signed Secretarial Order No. 3223, which established the
    Kingman Reef National Wildlife Refuge, consisting of emergent areas of Kingman Reef
    and also of its surrounding submerged lands and waters out to the twelve (12) nautical
    mile Territorial Sea Boundary,” to be administered by the Director of the FWS in a
    manner consistent with Executive Order No. 6935 of 1934 and Executive Order Nos.
    8682 and 8729 of 1941.18 The Kingman Reef NWR consists of “the emergent areas of
    Kingman Reef and also its surrounding submerged lands and waters out to the twelve
    (12) nautical mile Territorial Sea Boundary.”
    
          On January 6, 2009, by Presidential Proclamation, the Pacific Remote Islands
    Marine National Monument was created, which included Kingman Reef. Proclamation
    No. 8336, 74 Fed. Reg. 1565 (Jan. 6, 2009). The Presidential Proclamation noted that
    
          Palmyra Atoll is a classic Darwinian atoll that formed atop a sinking
          Cretaceous-era volcano. Kingman Reef formed in the same manner but is
          considered an atoll reef because it lacks permanent fast land areas or
          islands. Kingman Reef contains a sheltered lagoon that served as a way
          station for flying boats on Hawaii-to-American Samoa flights during the
          late 1930s. There are no terrestrial plants on the reef, which is frequently
          awash, but it does support abundant and diverse marine fauna and flora.
          Palmyra Atoll is managed by the United States Fish and Wildlife Service
          as a wildlife refuge.
    
          In 2001, the Secretary of the Interior established National Wildlife Refuges
          at Palmyra Atoll and Kingman Reef. Palmyra Atoll and Kingman Reef are
          known to be among the most pristine coral reefs in the world, with a fully
          structured inverted food web. Kingman Reef is the most pristine of any
          reef under U.S. jurisdiction. They are ideal laboratories for assessing
          effects of climate change without the difficulty of filtering anthropogenic
          impacts. Both Palmyra Atoll and Kingman Reef support higher levels of
          coral and other cnidarian species diversity (180-190 species) than any
          other atoll or reef island in the central Pacific, twice as many as are found
          in Hawaii or Florida.
    
    
    
    18
       As an example of the implementation of the Kingman Reef NWR, FWS issued a
    “Special Use Permit” to Rusty Brainard, Ph.D., on December 29, 2005, which permitted
    Dr. Brainard to “conduct quantitative assessments and monitoring of shallow reef fish
    assemblages at . . . Kingman Reef NWR[]” from January 1 to April 30, 2006.
                                                39
    Id. at 166-67.
    
    Palmyra Island
    
           Ownership of Palmyra Island, another atoll which lies approximately 33 nautical
    miles from Kingman Reef, also was litigated by the Fullard-Leo family and the United
    States. Palmyra Island is comprised of more than fifty islets, “many of which are
    covered with trees and tropical vegetation, surrounding three deep-water lagoons.” See
    United States v. Fullard-Leo, 
    66 F. Supp. 774
    , 775 (D. Haw. 1940), rev’d, 
    133 F.2d 743
    (9th Cir.), cert. denied, 
    319 U.S. 748
     (1943). In 1862, Johnson Wilkinson and Zenas
    Bent, citizens of the Kingdom of Hawaii, “made a ‘representation’ concerning Palmyra
    Island to the King,” of Hawaii at a meeting of the Cabinet Council, the full substance of
    which is unknown, but a transcript of the meeting indicates requested that the island
    “should be considered a Hawaiian possession & be placed under the Hawaiian Flag.”
    Id. The Minister of the Interior wrote to Messrs. Wilkinson and Bent, stating that that
    King’s government “consent[ed] to the taking of possession of the island of Palmyra,”
    and forwarding an “Authority under Royal Sign” to Mr. Bent to take possession of the
    island. See id. Mr. Bent wrote to the King and the Minister of Interior on June 16, 1862,
    saying, “I took possession of Palmyra Island, in the name of His Majesty; and according
    to my instructions, I erected on the island a pole, with the Hawaiian flag wrapped round
    it; and I interred at the foot of it a bottle well corked, containing a paper signed by
    me. . . .” Id. at 776. The Minister of Interior issued a proclamation stating that Palmyra
    Island “was taken possession of, with the usual formalities, by Captain Zenas Bent, he
    being duly authorized to do so, in the name of” the King. Id.
    
           Mr. Bent and Mr. Wilkerson evidently believed that, by taking possession of
    Palmyra Island, albeit in the name of the King, they had acquired title to the island. In a
    deed, which was recorded in 1885, Mr. Bent conveyed all of his interest in Palmyra to
    Mr. Wilkerson. Between 1885 and 1912, title purportedly passed among a number of
    parties, but in 1912, Henry E. Cooper filed a petition in the Land Court of the Territory of
    Hawaii, claiming ownership of Palmyra Island in fee simple and requesting registration
    of his title. See id. at 777-78. The Territory of Hawaii was summoned as a party
    respondent in the proceedings, but disclaimed any interest in Palmyra Island. On
    October 4, 1912, the Land Court filed a decree declaring Henry Cooper to be the owner
    of Palmyra Island in fee simple. See id. In August 1922, Leslie and Ellen Fullard-Leo
    purchased “a major portion of the island” from Mr. Cooper. See id. Tax records showed
    that no taxes were paid on Palmyra Island until 1885, but were then paid by the owner
    of record for three consecutive years, that Mr. Cooper again paid taxes starting in 1911,
    and that the Fullard-Leo family had paid taxes for about ninety percent of the island
    starting in 1922. See id. at 778.
    
           The United States filed suit against the Fullard-Leos in the United States District
    Court for the Territory of Hawaii to quiet title to Palmyra Island. See United States v.
    Fullard-Leo, 66 F. Supp. at 775. The United States argued that, when land is
    discovered and taken under the authority of an existing government, title vests in the
    sovereign. In the case of Palmyra Island, the United States asserted, when the island
    
                                                40
    was annexed by Mr. Wilkerson and Mr. Bent in 1862, it had become the fee simple
    property of the King of Hawaii, and it remained so until it passed to the Republic of
    Hawaii in 1894, and then to the United States under a cession treaty in 1898. See id. at
    788. The United States maintained that Messrs. Wilkerson and Bent never obtained
    title to Palmyra Island. The Fullard-Leos maintained that the King intended to extend
    the Kingdom's sovereignty over Palmyra Island, but granted Messrs. Wilkerson and
    Bent title to the island. The District Court stated: “There is nothing inherent in the Law
    of Nations that requires the vesting of title to lands in the government or King when
    sovereignty is extended over new domain. Such a thing would often be impossible.” Id.
    at 780. Instead, the court reasoned, the King had the power to take absolute title of
    newly-discovered land, but also had the power to grant title to the discoverer. With
    regard to Palmyra Island, the court stated that, “[n]o cogent proof is shown on either
    side of the question of prior occupation or possession,” but evidence in the record,
    including that after 1862 Mr. Wilkerson and Mr. Bent improved the island with their own
    money and without seeking or obtaining permission from the King, suggested that the
    King recognized title in Mr. Wilkerson and Mr. Bent. See id. The court also noted that
    neither the King, the Provisional Government of Hawaii, the Republic of Hawaii, nor the
    Territory of Hawaii had ever made a claim of title to the island, and that both the King
    and the United States had treated the island as privately owned. See id. at 781-82.
    Because the burden of proof rested with the United States, and the court determined
    that the burden was not met, the Hawaii District Court held that “the sovereignty of the
    United States was extended over Palmyra Island by Annexation, but the Republic of
    Hawaii did not in fact or in form assert fee simple title to this land at the time of
    annexation, or at any other time,” and the United States “does not exhibit a title which
    can be sustained in the Courts of the United States. . . .” Id. at 782.
    
           The United States appealed the District Court’s ruling and in 1943, the United
    States Court of Appeals for the Ninth Circuit reversed. See United States v. Fullard-Leo,
    
    133 F.2d 743
     (9th Cir.), cert. denied, 
    319 U.S. 748
     (1943). The Ninth Circuit reasoned
    that
    
          [w]hile it is possible, under principles of international law for two
          individuals to obtain title to such territory as they discover (see Johnson v.
          McIntosh, 
    8 Wheat. 543
    , 595, 
    21 U.S. 543
    , 595, 
    5 L. Ed. 681
    ), such an
          occurrence is rare because title can also be obtained by conquest. 1
          Hyde, International Law, 176 Sec. 106. If the discovered land is important,
          many countries could and probably would acquire it by conquest, and the
          knowledge that such event might happen would deter most explorers. On
          the other hand, if the explorers take possession in behalf of a sovereignty,
          they are ordinarily able to salvage something of value from their effort with
          much less chance of losing it, depending, of course, on the strength of the
          sovereignty.
    
    Id. at 746-47. The Ninth Circuit found that Mr. Bent and Mr. Wilkerson were acting as
    agents of the King of Hawaii when they annexed Palmyra Island, thus, “the taking of
    possession by Bent perfected the title of the King.” Id. at 747. Title “passed to the
    United States by cession, unless it had been alienated by one of the Hawaiian
                                               41
    governments,” and the court found “no proof of such alienation.” Id. Because the
    Fullard-Leos had raised affirmative defenses which were not addressed by the trial
    court, however, the Ninth Circuit reversed and remanded the case. See id.
    
           On remand, the Fullard-Leos asserted three defenses: 1) that the doctrine of lost
         19
    grant applied, 2) that the 1912 decree of the Land Court declaring that Henry Cooper
    was the fee simple owner of Palmyra Island was binding against the United States, and
    3) that the Fullard-Leos were bona fide purchasers of Palmyra Island without any notice
    or knowledge of the United States’ claim, thus the claim was barred by laches. See
    United States v. Fullard-Leo, 
    66 F. Supp. 782
    , 784 (D. Haw. 1944), aff'd, 
    156 F.2d 756
    (9th Cir. 1946) (en banc), aff'd, 
    331 U.S. 256
     (1947). The District Court for the Territory
    of Hawaii once again emphasized that
    
           [t]here is not a scintilla of evidence that the Hawaiian monarchy, the
           Provisional Government or the Republic of Hawaii at any time claimed that
           Palmyra was public land. There is no record evidence of any kind that
           either of those governments ever regarded Palmyra as public property.
           Uncontradicted evidence shows that the claim of private ownership of the
           island had been continuously maintained through the years to the
           knowledge of the Department of State, the Department of the Interior and
           officers of the United States navy as well as of the prior governments of
           Hawaii.
    
    Id. at 786. The District Court found: 1) that the record demonstrated “a presumption
    that a grant issued to Bent and Wilkinson by which the Hawaiian government parted
    with its title,” 2) that the disclaimer filed by the Territory in the Land Court was a “legal
    and valid act done pursuant to the power expressly conferred on the Territory by the
    Organic Act” and, thus, was binding on the United States, and 3) that the United States
    was “estopped by its laches from asserting its claim of title against the respondents who
    
    
    19
      As more fully discussed below, the doctrine of lost grant is one way for a petitioner to
    quiet title to land that has been held adversely to the sovereign for a long period of time.
    See United States v. Fullard-Leo, 
    331 U.S. 256
    , 270 (1947) (citing United States v.
    Chavez, 
    159 U.S. 452
     (1895)). The Supreme Court has held,
    
           it is the general rule of American law that a grant will be presumed upon
           proof of an adverse, exclusive, and uninterrupted possession for twenty
           years, and that such rule will be applied as a presumptio juris et de jure,
           wherever, by possibility, a right may be acquired in any manner known to
           the law.
    
    United States v. Pendell, 
    185 U.S. 189
    , 199-200 (1902) (citations omitted). In other
    words, if a party can demonstrate adverse, exclusive, and uninterrupted possession for
    twenty years against the sovereign, a conclusive presumption applies that the party has
    title to the property.
    
    
                                                 42
    purchased from Mr. Cooper and paid a valuable consideration without notice of any
    adverse claim.” Id. at 787-88.
    
            The United States, once again, appealed to the Ninth Circuit, which heard the
    appeal en banc. See United States v. Fullard-Leo, 
    156 F.2d 756
     (9th Cir. 1946) (en
    banc), aff'd, 
    331 U.S. 256
     (1947). The Ninth Circuit indicated that, because the purpose
    of Congress when Hawaii was annexed was “to leave the ceded public lands in the
    control of the Territory to be administered by it for the benefit of its people . . . the
    occupant is entitled to the benefit of every presumption and to have all doubts resolved
    in his favor.” Id. at 758. The Ninth Circuit agreed with the District Court that a lost grant
    should be presumed, and that the decree of the Land Court registering title in Henry
    Cooper was binding against the United States. The Ninth Circuit, therefore, affirmed.
    See id. at 750-60.
    
            The United States appealed the Ninth Circuit’s ruling and the Supreme Court
    granted certiorari, and affirmed the Ninth Circuit’s holding and decided that title to
    Palmyra Island should be quieted in the Fullard-Leos. See United States v. Fullard-Leo,
    
    331 U.S. 256
    . The Supreme Court recounted the state of Hawaiian land law at the time
    that Mr. Wilkerson and Mr. Bent took possession of Palmyra Island, noting that the
    Minister of Interior held the power to supervise and grant title to public lands. See id. at
    266. The Court “assume[d] . . . that the formal claim to Palmyra for the Hawaiian
    Kingdom made by Bent, pursuant to his commission, gave Hawaii not only sovereignty
    over Palmyra but also the power to grant the lands of the newly annexed islets as part
    of its public lands to private owners.” Id. at 268-69. The Supreme Court held that the
    lost grant doctrine applied to the circumstances at hand and that a lost grant should be
    presumed in favor of the Fullard-Leos’ predecessors-in-interest. See id. at 271-74. The
    Supreme Court then traced the chain of claimed title, finding that the chain of title was
    unbroken between 1862, when Mr. Bent conveyed his interest in the island to Mr.
    Wilkerson, and 1922, when the Fullard-Leos purchased all but two islets from Henry
    Cooper, and that “claim of right was manifested not only by transfers of paper title but
    also by actual user of the property.” Id. at 279. The Supreme Court acknowledged that
    presumption of a lost grant requires “proof of an adverse, exclusive, and uninterrupted
    possession for 20 years,” id. at 271, and that the possession of Palmyra Island was not
    “uninterrupted,” but rather various owners of the island had visited periodically over
    time. See id. at 280. The Supreme Court held, however, that “uninterrupted and long
    continued possession does not require a constant, actual occupancy where the
    character of the property does not lend itself to such use.” Id. at 281. Given that “[n]o
    other private owner claims any rights in Palmyra,” the Supreme Court concluded that
    “the evidence of title and possession shown in this record” supported the District Court's
    and Ninth Circuit’s holdings that the Fullard-Leos were the rightful owners of Palmyra
    Island, and the Supreme Court affirmed the Ninth Circuit’s ruling to quiet title to Palmyra
    Island in the Fullard-Leos. See id.
    
    
    
    
                                                 43
                                         DISCUSSION
    
    Summary Judgment
    
           The parties have filed cross-motions for summary judgment. In its motion for
    summary judgment, plaintiff argues that, “as a matter of law, plaintiff’s predecessor-in-
    interests in interest claimed private property rights to Kingman Reef on May 10, 1922,”
    or twelve years before the United States “formally asserted its claim to territorial
    sovereignty.” Defendant, in its cross-motion for summary judgment, argues that, “as a
    matter of law, Plaintiff does not have any private property rights in Kingman Reef that
    are protected by the Fifth Amendment.” Rule 56 of the Rules of the United States Court
    of Federal Claims (RCFC) (2013) is similar to Rule 56 of the Federal Rules of Civil
    Procedure (Fed. R. Civ. P.) (2014) in language and effect. Both rules provide that “[t]he
    court shall grant summary judgment if the movant shows that there is no genuine
    dispute as to any material fact and the movant is entitled to judgment as a matter of
    law.” RCFC 56(a); Fed. R. Civ. P. 56(a); see also Alabama v. North Carolina, 
    560 U.S. 330
    , 344 (2010); Hunt v. Cromartie, 
    526 U.S. 541
    , 549 (1999); Anderson v. Liberty
    Lobby, Inc., 
    477 U.S. 242
    , 247–48 (1986); Adickes v. S. H. Kress & Co., 
    398 U.S. 144
    ,
    157 (1970); Ladd v. United States, 
    648 F.3d 648
    , 651 (Fed. Cir. 2013) Consol. Coal
    Co. v. United States, 
    615 F.3d 1378
    , 1380 (Fed. Cir.), reh’g and reh’g en banc denied
    (Fed. Cir. 2010), cert. denied, 
    131 S. Ct. 2990
     (2011); 1st Home Liquidating Trust v.
    United States, 
    581 F.3d 1350
    , 1355 (Fed. Cir. 2009); Arko Exec. Servs., Inc. v. United
    States, 
    553 F.3d 1375
    , 1378 (Fed. Cir. 2009); Casitas Mun. Water Dist. v. United
    States, 
    543 F.3d 1276
    , 1283 (Fed. Cir. 2008), reh’g and reh’g en banc denied, 
    556 F.3d 1329
     (Fed. Cir. 2009); Moden v. United States, 
    404 F.3d 1335
    , 1342 (Fed. Cir.), reh’g
    and reh’g en banc denied (Fed. Cir. 2005); Am. Pelagic Fishing Co., L.P. v. United
    States, 
    379 F.3d 1363
    , 1370–71 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2004), cert.
    denied, 
    545 U.S. 1139
     (2005); Hitkansut LLC v. United States, 
    115 Fed. Cl. 719
    , 722
    (2014); Textainer Equip. Mgmt. Ltd. v. United States, 
    115 Fed. Cl. 708
    , 712 (2014);
    AEY, Inc. v. United States, 
    114 Fed. Cl. 619
    , 626 (2014); Leggitte v. United States, 
    104 Fed. Cl. 315
    , 317 (2012).
    
           A fact is material if it will make a difference in the result of a case under the
    governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; see also Cebe
    Farms, Inc. v. United States, No. 5-965C, 
    2014 WL 2211432
    , at *6 (Fed. Cl. May 28,
    2014); Kandel v. United States, 
    115 Fed. Cl. 752
    , 755 (2014); Arrañaga v. United
    States, 103 Fed. Cl. at 467. Irrelevant or unnecessary factual disputes do not preclude
    the entry of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 247–
    48; see also Scott v. Harris, 
    550 U.S. 372
    , 380 (2007); Monon Corp. v. Stoughton
    Trailers, Inc., 
    239 F.3d 1253
    , 1257 (Fed. Cir. 2001); Curtis v. United States, 
    144 Ct. Cl. 194
    , 199, 
    168 F. Supp. 213
    , 216 (1958), cert. denied, 
    361 U.S. 843
     (1959), reh’g
    denied, 
    361 U.S. 941
     (1960); P & K Contracting, Inc. v. United States, 
    108 Fed. Cl. 380
    ,
    389 (2012), aff’d, 534 F. App’x 1000 (Fed. Cir. 2013); Gorski v. United States, 104 Fed.
    Cl. 605, 609 (2012).
    
    
    
                                               44
            When reaching a summary judgment determination, the judge’s function is not to
    weigh the evidence and determine the truth of the case presented, but to determine
    whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S.
    at 249; Schlup v. Delo, 
    513 U.S. 298
    , 332 (1995); Ford Motor Co. v. United States, 
    157 F.3d 849
    , 854 (Fed. Cir. 1998) (“Due to the nature of the proceeding, courts do not
    make findings of fact on summary judgment.”); Cebe Farms, Inc. v. United States, 
    2014 WL 2211432
    , at *6; K-Con Bldg Sys., Inc. v. United States, 
    115 Fed. Cl. 558
    , 570
    (2014); Cohen v. United States, 100 Fed. Cl. at 469–70; Boensel v. United States, 
    99 Fed. Cl. 607
    , 611 (2011); Macy Elevator, Inc. v. United States, 
    97 Fed. Cl. 708
    , 717
    (2011). The judge must determine whether the evidence presents a disagreement
    sufficient to require submission to fact finding, or whether the issues presented are so
    one-sided that one party must prevail as a matter of law. See Anderson v. Liberty
    Lobby, Inc., 477 U.S. at 250–52; Jay v. Sec’y of Dep’t of Health & Human Servs., 
    998 F.2d 979
    , 982 (Fed. Cir.), reh’g denied and en banc suggestion declined (Fed. Cir.
    1993); Leggitte v. United States, 104 Fed. Cl. at 317–18. When the record could not
    lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for
    trial, and the motion must be granted. See, e.g., Matsushita Elec. Indus. Co. v. Zenith
    Radio Corp., 
    475 U.S. 574
    , 587 (1986); Rothe Dev. Corp. v. U.S. Dep’t of Def., 
    262 F.3d 1306
    , 1316 (Fed. Cir. 2001); Hall v. Aqua Queen Mfg., Inc., 
    93 F.3d 1548
    , 1553
    n.3 (Fed. Cir. 1996). In such a case, there is no need for the parties to undertake the
    time and expense of a trial, and the moving party should prevail without further
    proceedings.
    
           In appropriate cases, summary judgment
    
           saves the expense and time of a full trial when it is unnecessary. When
           the material facts are adequately developed in the motion papers, a full
           trial is useless. “Useless” in this context means that more evidence than
           is already available in connection with the motion for summary judgment
           could not reasonably be expected to change the result.
    
    Dehne v. United States, 
    23 Cl. Ct. 606
    , 614–15 (1991) (quoting Pure Gold, Inc. v.
    Syntex, (U.S.A.) Inc., 
    739 F.2d 624
    , 626 (Fed. Cir. 1984)), vacated on other grounds,
    
    970 F.2d 890
     (Fed. Cir. 1992) (citation omitted); see also Metric Constr. Co. v. United
    States, 
    73 Fed. Cl. 611
    , 612 (2006).
    
            Summary judgment, however, will not be granted if “the dispute about a material
    fact is ‘genuine,’ that is, if the evidence is such that a reasonable [trier of fact] could
    return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at
    248; see also Biery v. United States, No. 2013–5082, 
    2014 WL 2491779
    , at *5 (Fed.
    Cir. June 4, 2014); Long Island Sav. Bank, FSB v. United States, 
    503 F.3d 1234
    , 1244
    (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2007), cert. denied, 
    555 U.S. 812
    (2008); Eli Lilly & Co. v. Barr Labs., Inc., 
    251 F.3d 955
    , 971 (Fed. Cir.), reh’g and reh’g
    en banc denied (Fed. Cir. 2001), cert. denied, 
    534 U.S. 1109
     (2002); Principal Life Ins.
    Co. v. United States, Nos. 7–06T, 7–706T, 8–135T & 8–605T, 
    2014 WL 1873398
    , at *5
    (Fed. Cl. May 9, 2014); Gonzales-McCaulley Inv. Grp., Inc. v. United States, 101 Fed.
    
                                                45
    Cl. 623, 629 (2011). In other words, if the nonmoving party produces sufficient
    evidence to raise a question as to the outcome of the case, then the motion for
    summary judgment should be denied. Any doubt over factual issues must be resolved
    in favor of the party opposing summary judgment, to whom the benefit of all
    presumptions and inferences runs. See Ricci v. DeStefano, 
    557 U.S. 557
    , 586 (2009);
    Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587–88; Yant v. United
    States, 
    588 F.3d 1369
    , 1371 (Fed. Cir. 2009), cert. denied, 
    131 S. Ct. 69
     (2010);
    Dethmers Mfg. Co. v. Automatic Equip. Mfg. Co., 
    272 F.3d 1365
    , 1369 (Fed. Cir. 2001),
    reh’g and reh’g en banc denied, 
    293 F.3d 1364
     (Fed. Cir. 2002), cert. denied, 
    539 U.S. 957
     (2003); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d at 1257; Wanlass v.
    Fedders Corp., 
    145 F.3d 1461
    , 1463 (Fed. Cir.), reh’g denied and en banc suggestion
    declined (Fed. Cir. 1998); see also Am. Pelagic Co. v. United States, 379 F.3d at 1371
    (citing Helifix Ltd. v. Blok-Lok, Ltd., 
    208 F.3d 1339
    , 1345–46 (Fed. Cir. 2000)); Boensel
    v. United States, 99 Fed. Cl. at 611 (“‘The evidence of the nonmovant is to be believed,
    and all justifiable inferences are to be drawn in his favor.’” (quoting Anderson v. Liberty
    Lobby, Inc., 477 U.S. at 255) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
    475 U.S. at 587–88; Casitas Mun. Water Dist. v. United States, 543 F.3d at 1283;
    Lathan Co. v. United States, 
    20 Cl. Ct. 122
    , 125 (1990))). “However, once a moving
    party satisfies its initial burden, mere allegations of a genuine issue of material fact
    without supporting evidence will not prevent entry of summary judgment.” Republic
    Sav. Bank, F.S.B. v. United States, 
    584 F.3d 1369
    , 1374 (Fed. Cir. 2009); see also
    Anderson v. Liberty Lobby, Inc., 477 U.S. at 247–48.
    
            The initial burden on the party moving for summary judgment to produce
    evidence showing the absence of a genuine issue of material fact may be discharged if
    the moving party can demonstrate that there is an absence of evidence to support the
    nonmoving party’s case. See Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 325 (1986); see
    also Riley & Ephriam Constr. Co. v. United States, 
    408 F.3d 1369
    , 1371 (Fed. Cir.
    2005); Crown Operations Int’l, Ltd. v. Solutia Inc., 
    289 F.3d 1367
    , 1377 (Fed. Cir.), reh’g
    denied (Fed. Cir. 2002); Trilogy Commc’ns, Inc. v. Times Fiber Commc’ns, Inc., 
    109 F.3d 739
    , 741 (Fed. Cir.) (quoting Conroy v. Reebok Int’l, Ltd., 
    14 F.3d 1570
    , 1575
    (Fed. Cir. 1994), reh’g denied and en banc suggestion declined (Fed. Cir. 1995)), reh’g
    denied and en banc suggestion declined (Fed. Cir. 1997); Lockwood v. Am. Airlines,
    Inc., 
    107 F.3d 1565
    , 1569 (Fed. Cir. 1997); Dana R. Hodges Trust v. United States, 
    101 Fed. Cl. 549
    , 553 (2011). If the moving party makes such a showing, the burden shifts
    to the nonmoving party to demonstrate that a genuine dispute regarding a material fact
    exists by presenting evidence which establishes the existence of an element essential
    to its case upon which it bears the burden of proof. See Celotex Corp. v. Catrett, 477
    U.S. at 322; see also Wavetronix LLC v. EIS Elec. Integrated Sys., 
    573 F.3d 1343
    , 1354
    (Fed. Cir. 2009); Long Island Sav. Bank, FSB v. United States, 503 F.3d at 1244; Fla.
    Power & Light Co. v. United States, 
    375 F.3d 1119
    , 1124 (Fed. Cir. 2004); Schoell v.
    Regal Marine Indus., Inc., 
    247 F.3d 1202
    , 1207 (Fed. Cir. 2001); Am. Airlines, Inc. v.
    United States, 
    204 F.3d 1103
    , 1108 (Fed. Cir. 2000). However, “a non-movant is
    required to provide opposing evidence under Rule 56(e) only if the moving party has
    provided evidence sufficient, if unopposed, to prevail as a matter of law.” Saab Cars
    USA, Inc. v. United States, 
    434 F.3d 1359
    , 1369 (Fed. Cir. 2006).
    
                                                46
           Even if both parties argue in favor of summary judgment and allege an absence
    of genuine issues of material fact, the court is not relieved of its responsibility to
    determine the appropriateness of summary disposition in a particular case, and it does
    not follow that summary judgment should be granted to one side or the other. See
    Prineville Sawmill Co. v. United States, 
    859 F.2d 905
    , 911 (Fed. Cir. 1988) (citing
    Mingus Constructors, Inc. v. United States, 
    812 F.2d 1387
    , 1391 (Fed. Cir. 1987)); see
    also Marriott Int’l Resorts, L.P. v. United States, 
    586 F.3d 962
    , 968–69 (Fed. Cir. 2009);
    B.F. Goodrich Co. v. U.S. Filter Corp., 
    245 F.3d 587
    , 593 (6th Cir. 2001); Atl. Richfield
    Co. v. Farm Credit Bank of Wichita, 
    226 F.3d 1138
    , 1148 (10th Cir. 2000); Chevron
    USA, Inc. v. Cayetano, 
    224 F.3d 1030
    , 1037 n.5 (9th Cir. 2000), cert. denied, 
    532 U.S. 942
     (2001); Bubble Room, Inc. v. United States, 
    159 F.3d 553
    , 561 (Fed. Cir. 1998)
    (“The fact that both the parties have moved for summary judgment does not mean that
    the court must grant summary judgment to one party or the other.”), reh’g denied and en
    banc suggestion declined (Fed. Cir. 1999); Allstate Ins. Co. v. Occidental Int’l, Inc., 
    140 F.3d 1
    , 2 (1st Cir. 1998); Massey v. Del Labs., Inc., 
    118 F.3d 1568
    , 1573 (Fed. Cir.
    1997); LewRon Television, Inc. v. D.H. Overmyer Leasing Co., 
    401 F.2d 689
    , 692 (4th
    Cir. 1968), cert. denied, 
    393 U.S. 1083
     (1969); Rogers v. United States, 
    90 Fed. Cl. 418
    , 427 (2009), subsequent determination, 
    93 Fed. Cl. 607
     (2010); Consol. Coal Co. v.
    United States, 
    86 Fed. Cl. 384
    , 387 (2009), aff’d, 
    615 F.3d 1378
    , (Fed. Cir.), and reh’g
    and reh’g en banc denied (Fed. Cir. 2010), cert. denied, 
    131 S. Ct. 2990
     (2011); St.
    Christopher Assocs., L.P. v. United States, 
    75 Fed. Cl. 1
    , 8 (2006), aff’d, 
    511 F.3d 1376
    (Fed. Cir. 2008); Reading & Bates Corp. v. United States, 
    40 Fed. Cl. 737
    , 748 (1998).
    The court must evaluate each party’s motion on its own merits, taking care to draw all
    reasonable inferences against the party whose motion is under consideration, or,
    otherwise stated, in favor of the non-moving party. See First Commerce Corp. v. United
    States, 
    335 F.3d 1373
    , 1379 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir.
    2003); see also DeMarini Sports, Inc. v. Worth, Inc., 
    239 F.3d 1314
    , 1322 (Fed. Cir.
    2001); Gart v. Logitech, Inc., 
    254 F.3d 1334
    , 1338–39 (Fed. Cir.), reh’g and reh’g en
    banc denied (Fed. Cir. 2001), cert. denied, 
    534 U.S. 1114
     (2002); Oswalt v. United
    States, 
    85 Fed. Cl. 153
    , 158 (2008); Telenor Satellite Servs., Inc. v. United States, 
    71 Fed. Cl. 114
    , 119 (2006).
    
           Cross-motions are no more than a claim by each party that it alone is entitled to
    summary judgment. The making of such inherently contradictory claims, however, does
    not establish that if one is rejected the other necessarily is justified. See B.F. Goodrich
    Co. v. United States Filter Corp., 245 F.3d at 593; Atl. Richfield Co. v. Farm Credit Bank
    of Wichita, 226 F.3d at 1148; Allstate Ins. Co. v. Occidental Int’l, Inc., 140 F.3d at 2;
    Rogers v. United States, 90 Fed. Cl. at 427; Reading & Bates Corp. v. United States, 40
    Fed. Cl. at 748.
    
           “Questions of law are particularly appropriate for summary judgment.” Oenga v.
    United States, 
    91 Fed. Cl. 629
    , 634 (2010) (citing Dana Corp. v. United States, 
    174 F.3d 1344
    , 1347 (Fed. Cir. 1999) (“Summary judgment was appropriate here [in Dana Corp.]
    because no material facts were disputed, many being stipulated, and the only disputed
    issues were issues of law. Moreover, on each issue one party or the other is entitled to
    
                                                47
    judgment as a matter of law.”)); see also Santa Fe Pac. R.R. v. United States, 
    294 F.3d 1336
    , 1340 (Fed. Cir. 2002) (“Issues of statutory interpretation and other matters of law
    may be decided on motion for summary judgment.”).
    
    Takings
    
           The Takings Clause of the Fifth Amendment to the United States Constitution
    provides in pertinent part: “nor shall private property be taken for public use without just
    compensation.” U.S. Const. amend. V. The purpose of this Fifth Amendment provision
    is to prevent the 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.’” Palazzolo
    v. Rhode Island, 
    533 U.S. 606
    , 618 (2001) (quoting Armstrong v. United States, 
    364 U.S. 40
    , 49 (1960)), abrogated on other grounds by Lingle v. Chevron U.S.A. Inc., 
    544 U.S. 528
     (2005), recognized by Hageland Aviation Servs., Inc. v. Harms, 
    210 P.3d 444
    (Alaska 2009); see also Penn Cent. Transp. Co. v. City of New York, 
    438 U.S. 104
    , 123-
    24, reh’g denied, 
    439 U.S. 883
     (1978); Lingle v. Chevron U.S.A. Inc., 
    544 U.S. 528
    , 536
    (2005); E. Enters. v. Apfel, 
    524 U.S. 498
    , 522 (1998); Rose Acre Farm, Inc. v. United
    States, 
    559 F.3d 1260
    , 1266 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2009), cert.
    denied, 
    130 S. Ct. 1501
     (2010); Janowsky v. United States, 
    133 F.3d 888
    , 892 (Fed.
    Cir. 1998); Res. Invs., Inc. v. United States, 
    85 Fed. Cl. 447
    , 469-70 (2009); Pumpelly v.
    Green Bay & Miss. Canal Co., 80 U.S. (13 Wall.) 166, 179 (1871) (citing to principles
    which establish that “private property may be taken for public uses when public
    necessity or utility requires” and that there is a “clear principle of natural equity that the
    individual whose property is thus sacrificed must be indemnified”).
    
           Therefore, “a claim for just compensation under the Takings Clause must be
    brought to the Court of Federal Claims in the first instance, unless Congress has
    withdrawn the Tucker Act grant of jurisdiction in the relevant statute.” E. Enters. v. Apfel,
    524 U.S. at 520 (citing Ruckelshaus v. Monsanto Co., 
    467 U.S. 986
    , 1016-19 (1984));
    see also Acceptance Ins. Cos. v. United States, 
    503 F.3d 1328
    , 1336 (Fed. Cir. 2007);
    Morris v. United States, 
    392 F.3d 1372
    , 1375 (Fed. Cir. 2004) (“Absent an express
    statutory grant of jurisdiction to the contrary, the Tucker Act provides the Court of
    Federal Claims exclusive jurisdiction over takings claims for amounts greater than
    $10,000.”). The United States Supreme Court has declared: “If there is a taking, the
    claim is ‘founded upon the Constitution’ and within the jurisdiction of the [United States
    Court of Federal Claims] to hear and determine.” Preseault v. Interstate Commerce
    Comm’n, 
    494 U.S. 1
    , 12 (1990) (quoting United States v. Causby, 
    328 U.S. 256
    , 267
    (1946)); see also Lion Raisins, Inc. v. United States, 
    416 F.3d 1356
    , 1368 (Fed. Cir.
    2005); Narramore v. United States, 
    960 F.2d 1048
    , 1052 (Fed. Cir. 1992); Perry v.
    United States, 
    28 Fed. Cl. 82
    , 84 (1993).
    
            To succeed under the Fifth Amendment Takings Clause, a plaintiff must show
    that the government took a private property interest for public use without just
    compensation. See Adams v. United States, 
    391 F.3d 1212
    , 1218 (Fed. Cir. 2004),
    cert. denied, 
    546 U.S. 811
     (2005); Arbelaez v. United States, 
    94 Fed. Cl. 753
    , 762
    (2010); Gahagan v. United States, 
    72 Fed. Cl. 157
    , 162 (2006). “The issue of whether a
    
                                                 48
    taking has occurred is a question of law based on factual underpinnings.” Huntleigh
    USA Corp. v. United States, 
    525 F.3d 1370
    , 1377-78 (Fed. Cir.), cert. denied, 
    555 U.S. 1045
     (2008). The government must be operating in its sovereign rather than in its
    proprietary capacity when it initiates a taking. See St. Christopher Assocs., L.P. v.
    United States, 
    511 F.3d 1376
    , 1385 (Fed. Cir. 2008).
    
            The United States Court of Appeals for the Federal Circuit has established a two-
    part test to determine whether government actions amount to a taking of private
    property under the Fifth Amendment. See Klamath Irr. Dist. v. United States, 
    635 F.3d 505
    , 511 (Fed. Cir. 2011); Am. Pelagic Fishing Co. v. United States, 
    379 F.3d 1363
    ,
    1372 (Fed. Cir.) (citing M & J Coal Co. v. United States, 
    47 F.3d 1148
    , 1153-54 (Fed.
    Cir.), cert. denied, 
    516 U.S. 808
     (1995)), reh’g denied (Fed. Cir. 2004), cert. denied, 
    545 U.S. 1139
     (2005). A court first determines whether a plaintiff possesses a cognizable
    property interest in the subject of the alleged takings. Then, the court must determine
    whether the government action is a “‘compensable taking of that property interest.’”
    Huntleigh USA Corp v. United States, 525 F.3d at 1377 (quoting Am. Pelagic Fishing
    Co., L.P. v. United States, 379 F.3d at 1372).
    
           To establish a taking, a plaintiff must have a legally cognizable property interest,
    such as the right of possession, use, or disposal of the property. See Loretto v.
    Teleprompter Manhattan CATV Corp., 
    458 U.S. 419
    , 435 (1982) (citing United States v.
    Gen. Motors Corp., 
    323 U.S. 373
     (1945)); CRV Enters., Inc. v. United States, 
    626 F.3d 1241
    , 1249 (Fed. Cir. 2010), cert. denied, 
    131 S. Ct. 2459
     (2011); Karuk Tribe of Cal. v.
    Ammon, 
    209 F.3d 1366
    , 1374-75 (Fed. Cir.), reh’g denied and en banc suggestion
    denied (Fed. Cir. 2000), cert. denied, 
    532 U.S. 941
     (2001). “‘It is axiomatic that only
    persons with a valid property interest at the time of the taking are entitled to
    compensation.’” Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372 (quoting
    Wyatt v. United States, 
    271 F.3d 1090
    , 1096 (Fed. Cir. 2001), cert. denied, 
    353 U.S. 1077
     (2002) and citing Cavin v. United States, 
    956 F.2d 1131
    , 1134 (Fed. Cir. 1992)).
    Therefore, “[i]f the claimant fails to demonstrate the existence of a legally cognizable
    property interest, the courts [sic] task is at an end.” Am. Pelagic Fishing Co. v. United
    States, 379 F.3d at 1372 (citing Maritrans Inc. v. United States, 
    342 F.3d 1344
    , 1352
    (Fed. Cir. 2003) and M & J Coal Co. v. United States, 47 F.3d at 1154). The court does
    not address the second step “without first identifying a cognizable property interest.” Air
    Pegasus of D.C., Inc. v. United States, 
    424 F.3d 1206
    , 1213 (Fed. Cir.) (citing Am.
    Pelagic Fishing Co. v. United States, 379 F.3d at 1381 and Conti v. United States, 
    291 F.3d 1334
    , 1340 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2002), cert. denied, 
    537 U.S. 1112
     (2003)), reh’g denied and reh’g en banc denied (Fed. Cir. 2005). Only if
    there is to be a next step, “‘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.’” Huntleigh USA Corp. v. United States, 525 F.3d at
    1378 (quoting Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372).
    
           With regard to its property interest in Kingman Reef, plaintiff KRAD argues that it
    has a vested property interest under its leasehold agreement with KRAI for the
    exclusive use of Kingman Reef which defendant took when it took Kingman Reef from
    
                                                49
    KRAI in 2001. Plaintiff contends that, at the core of this case lies a fundamental
    distinction between territorial sovereignty, or a nation’s “right to exercise governmental
    authority within its territory to the exclusion of any other state,” and private property
    rights, the ability to own and transfer a piece of land. Plaintiff asserts that, before
    Executive Order No. 6935 was issued in 1934, Kingman Reef was terra nullius, or a
    land without a sovereign. According to plaintiff, in 1922, Mr. Thurston validly claimed
    private property rights in Kingman Reef on behalf of KRAI’s predecessor-in-interest, the
    Copra Co., but that Mr. Thurston’s actions did not establish the United States’
    sovereignty over Kingman Reef. Instead, plaintiff maintains that the United States did
    not formally extend sovereignty over Kingman Reef until the issuance of Executive
    Order No. 6935 in 1934. Because the Copra Co.’s private property rights were
    established before United States sovereignty, plaintiff argues, defendant was required
    to recognize those rights when it claimed territorial sovereignty in 1934.
    
           Plaintiff relies on international law principles, namely the natural right theory, to
    establish that defendant was required to recognize the preexisting property rights of
    KRAI’s predecessors-in-interest in 1934. Plaintiff, citing to The Paquette Habana, 
    175 U.S. 677
    , 700 (1900) and Sosa v. Alvarez-Machain, 
    542 U.S. 692
     (2004), argues that it
    is appropriate to rely on international law in this case because “there was no treaty or
    executive, legislative or judicial act or decision controlling Kingman Reef prior to 1934.”
    According to plaintiff, the natural right theory holds that, where private property rights
    exist prior to a nation’s acquisition of sovereignty, those private rights are to be
    preserved and protected by the acquiring nation state. Plaintiff argues that the United
    States has long recognized the natural right theory and has previously found that a
    private party “who discovered property may obtain title to said property when it has not
    been claimed previously by any country or its nationals.” Plaintiff lists several examples
    of what it claims to be similar instances in which the United States has recognized
    preexisting private property rights upon exercising sovereignty over land that was
    previously terra nullius, specifically: the Swan Islands, Swains Island, the Spitsbergen
    Archipelago, Jan Mayen Island, Los Monges Islands, and Aves Islands.
    
            Plaintiff asserts that Mr. Thurston’s actions in 1922 were sufficient to establish
    ownership of Kingman Reef on behalf of the Copra Co. because they established both
    discovery and possession. Plaintiff, citing to Jones v. United States, 
    137 U.S. 202
    , 212
    (1890), contends that sovereignty over land may only be established by discovery plus
    occupation, cession, or conquest. In this instance, plaintiff states, the United States can
    only claim sovereignty over Kingman Reef through occupation, which it did not establish
    until President Roosevelt signed Executive Order No. 6935 on December 29, 1934.
    Plaintiff points to the Office of the Legal Advisor, Department of State’s, November 9,
    1934 letter and memorandum regarding the status of certain guano islands, which
    stated:
    
           No other action appears to have been taken with respect to the
           incorporation of the Island [Kingman Reef] into the territory of Hawaii or
           the United States. While it does not appear that any other country has
           claimed Kingman’s Reef, it might be well for this Government to take
    
                                                50
           some affirmative action to show definitively that it is a part of the territory
           of the United States. The mere mention of it in an Act of Congress as
           American territory would be sufficient.
    
    According to plaintiff, this indicates that defendant knew it did not have sovereignty over
    Kingman Reef as of November 1934. Because the Copra Co.’s private property rights
    according to plaintiff, were vested in 1922, and were validly conveyed to the Fullard-Leo
    family, and because preceded defendant’s sovereignty over Kingman Reef, which was
    not established until 1934, plaintiff maintains, under both international and United States
    law, defendant had to recognize those rights.
    
            In response, defendant argues that it is a fundamental principle of property law
    that only discovering nations, not individuals, hold fee title to discovered lands and that
    only the sovereign can grant title to newly acquired lands. Defendant asserts that the
    principle articulated in Johnson v. McIntosh, 
    21 U.S. 543
     (1823), that the sovereign has
    absolute power to grant title, applies to the above captioned case. Moreover, defendant
    contends that Mr. Thurston did not discover Kingman Reef in 1922, as its location was
    already known in the nineteenth century. According to defendant, when new territory is
    acquired by the sovereign, the sovereign alone determines whether to recognize
    claimed private property rights that predate the acquisition. Defendant argues that
    typically a new sovereign will recognize private property rights that were granted by a
    prior sovereign, but that a mere claim to private property rights, absent such a grant,
    does not establish a property interest that is valid against the United States. Citing to
    Grisar v. McDowell, 
    73 U.S. 363
     (1867), defendant states that it is settled law that “a
    claim of private ownership that pre-dates the current sovereign’s acquisition of the land
    requires recognition by the sovereign in order to convert a claim into a vested property
    interest. . . .” According to defendant, plaintiff’s argument that a claim that entry coupled
    with possession constitutes a vested property interest, a position which has been
    rejected by the United States Court of Appeals for the Federal Circuit in Cavin v. United
    States, 
    956 F.2d 1131
     (Fed. Cir. 1992). Defendant maintains that Mr. Thurston’s
    actions in 1922 did not give KRAI’s predecessors-in-interest any vested property rights
    in Kingman Reef because no sovereign authority provided authorization to claim the
    atoll.
    
            Defendant also rejects plaintiff’s argument that an individual or private entity can
    acquire terra nullius. Defendant posits that only one federal case, New Jersey v. New
    York, 
    523 U.S. 767
     (1998), has ever discussed terra nullius and in that case, albeit in
    dicta, the Supreme Court indicated that only a sovereign can assert a claim over terra
    nullius.20
    
    20
        The Supreme Court’s decision in New Jersey v. New York addressed one state’s
    territorial jurisdiction claims against another state. Addressing New York’s prescription
    argument, the Supreme Court noted that,
    
           [i]t is essential to appreciate the extent of this burden that a claimant by
           prescription must shoulder. Even as to terra nullius, like a volcanic island
                                                 51
           Defendant also distinguishes each of the examples plaintiff put forth regarding
    ownership of land that was previously terra nullius, i.e., the Swan Islands, Swains
    Island, the Spitsbergen Archipelago, Jan Mayen Island, Los Monges Island, and Aves
    Islands. According to defendant, “[n]ot a single one of Plaintiff’s examples supports
    their novel theory.” In addition, defendant argues that plaintiff’s claim over Kingman
    Reef fails because the acts of Mr. Thurston and KRAI’s predecessors-in-interest never
    established possession over the atoll.
    
           While defendant, therefore, argues that plaintiff does not have any vested
    interest in Kingman Reef at all, defendant also contends that ownership of submerged
    lands is a separate legal issue. According to defendant, United States Supreme Court
    precedent establishes that submerged lands are owned by the sovereign and, while the
    sovereign can transfer ownership of submerged lands, it must do so through an express
    grant. Because there has never been an express grant for any portion of Kingman
    Reef, including the submerged lands and ocean waters, defendant argues that plaintiff
    cannot establish an ownership interest in the submerged lands and ocean waters
    surrounding Kingman Reef.
    
           Plaintiff’s alleged interest in Kingman Reef relies on a chain of title going back to
    the Copra Co., which plaintiff claims gained fee simple title to the atoll upon Mr.
    Thurston’s annexation on May 10, 1922. The Copra Co. then allegedly passed that fee
    simple title to Ellen Fullard-Leo, who, by means of mesne conveyances, transferred title
    to the Fullard-Leo family collectively in trust. The Fullard-Leo family conveyed title to
    KRAI on November 17, 2000, from which KRAD obtained a leasehold interest on the
    same date. In order to determine if plaintiff has a cognizable property interest in
    Kingman Reef, therefore, the court must determine whether the Copra Co., the Fullard-
    Leo family, and KRAI had a valid interest in Kingman Reef that was the basis of the
    remaining plaintiff’s claim.
    
           Plaintiff correctly notes that the law recognizes a distinction between sovereignty
    over and private ownership of property. The United States Supreme Court has held that
    the standard for what constitutes possession of property varies depending on the
    circumstances and nature of the property. In United States v. Pendell, the Supreme
    Court stated:
    
    
           or territory abandoned by its former sovereign, a claimant by right as
           against all others has more to do than planting a flag or rearing a
           monument. Since the 19th century the most generous settled view has
           been that discovery accompanied by symbolic acts gives no more than
           “an inchoate title, an option, as against other states, to consolidate the first
           steps by proceeding to effective occupation within a reasonable time.”
    
    New Jersey v. New York, 523 U.S. at 787-88 (quoting I. Brownlie, Principles of Public
    International Law 146 (4th ed. 1990)).
    
                                                 52
          What constitutes such possession of a large tract of land depends to some
          extent upon circumstances, the fact varying with different conditions, such
          as the general state of the surrounding country, whether similar land is
          customarily devoted to pasturage or to the raising of crops, to the growth
          of timber or to mining, or other purposes. That which might show
          substantial possession, exclusive in its character, where the land was
          devoted to the grazing of numerous cattle, might be insufficient to show
          the same kind of possession where the land was situated in the midst of a
          large population, and the country devoted, for instance, to manufacturing
          purposes.
    
    United States v. Pendell, 185 U.S. at 197. The Supreme Court considered what might
    constitute possession of a remote island in United States v. Fullard-Leo, noting:
    
          The sufficiency of actual and open possession of property is to be judged
          in the light of its character and location. It is hard to conceive of a more
          isolated piece of land than Palmyra, one of which possession need by less
          continuous to form the basis of a claim.
    
    United States v. Fullard-Leo, 
    331 U.S. 256
    , 279-80 (1947).21
    21
        Kingman Reef is even less susceptible to possession than Palmyra Island, as the
    atoll is uninhabitable and, likely, even entirely submerged at high tide. Plaintiff argues,
    therefore, “an even lesser standard should apply” regarding the sufficiency of
    possession of Kingman Reef than applied to Palmyra Island. Defendant argues,
    however, that Mr. Thurston’s acts in 1922 “fall far short of what is necessary to
    demonstrate possession.” Defendant argues that, in order to establish possession, a
    party must show some intent to remain on the property. According to defendant, Mr.
    Thurston, on behalf of the Copra Co.,
    
          merely engaged in the bare minimum to demonstrate that they visited a
          known atoll for a few hours on a single day in 1922. Thurston did not
          return to Kingman Reef for more than four years. When he did, it was with
          the assistance of the United States Navy and there is no evidence that he
          was acting at that time as an authorized agent of the Fullard-Leo family.
    
    What constitutes possession of an uninhabitable atoll 33 nautical miles from the nearest
    island and about 900 nautical miles from Hawaii is difficult to determine. Demonstrating
    an intent to remain does not seem like an appropriate standard for an atoll that cannot
    sustain human life and has no fresh water. The court acknowledges, however,
    defendant’s point that a visit of several hours with nothing more may fall short of a
    demonstration of possession, even in such a remote location. The court will assume for
    the current purposes, without finding, that Mr. Thurston’s actions were sufficient to take
    possession of Kingman Reef for the Copra Co. because, as discussed below, the court
    finds that plaintiff’s claim that it had a cognizable property interest in Kingman Reef at
    the time of the alleged taking fails for other reasons.
    
    
                                                53
           As discussed in the landmark property case Johnson v. M’Intosh, 
    21 U.S. 543
    (1823), however, the governing principle under which newly-discovered lands have
    been claimed and divided up among nations in modern times was the principle of
    discovery, according to which “discovery gave title to the government by whose
    subjects, or by whose authority, it was made, against all other European governments,
    which title might be consummated by possession.” Johnson v. M'Intosh, 
    21 U.S. 543
    ,
    573 (1823). In other words, the nation whose citizens discovered new territory gained
    both sovereignty over and ownership of the land, so long as the land remained under
    possession. The United States Supreme Court found in Johnson that the United States
    had “unequivocally acceded to” the principle of discovery. See id. at 587. Thus, title to
    land in this country that was once held by the English crown passed to the colonies,
    then to the states and the government of the United States. See id. The title of the
    sovereign was “absolute” and “exclusive,” such that no two entities, whether
    governments or individuals, could hold title for the same land at the same time. See id.
    at 587-88. Because title originates with the sovereign, the Court indicated, title could
    only pass to individuals by conveyance from the sovereign. See id. at 593.
    
            The Supreme Court in Johnson v. M'Intosh acknowledged that there were rare
    circumstances in which title to newly-discovered land could vest directly with the
    individual discoverers, but explained that that only occurred if the discoverers were
    unaffiliated with a sovereign nation when they discovered the land. The Supreme Court
    stated:
    
          It is supposed to be a principle of universal law, that, if an uninhabited
          country be discovered by a number of individuals, who acknowledge no
          connexion with, and owe no allegiance to, any government whatever, the
          country becomes the property of the discoverers, so far at least as they can
          use it. They acquire a title in common. The title of the whole land is in the
          whole society. It is to be divided and parcelled out according to the will of
          the society, expressed by the whole body, or by that organ which is
          authorized by the whole to express it.
    
    Id. at 595. The Supreme Court also emphasized, however, that if, as was typical at the
    time, and like in the above captioned case, land was claimed in the name of or on
    behalf of a government, the land then belonged to the nation and title would originate
    with the government. The Supreme Court found:
    
          If the discovery be made, and possession of the country be taken, under
          the authority of an existing government, which is acknowledged by the
          emigrants, it is supposed to be equally well settled, that the discovery is
          made for the whole nation, that the country becomes a part of the nation,
          and that the vacant soil is to be disposed of by that organ of the
          government which has the constitutional power to dispose of the national
          domains, by that organ in which all vacant territory is vested by law.
    
    
    
                                               54
    Id. According to the Supreme Court, therefore, unless land was discovered and
    possessed by individuals unaffiliated with any country, discovery of new land resulted in
    the discoverer’s nation gaining both sovereignty over and title to the land and individuals
    would have to seek conveyance of title from the government in place.
    
           One of plaintiff’s examples of a case regarding terra nullius is also instructive on
    the question of private property rights versus sovereignty. In 1908, the Swan Islands
    Commercial Company wrote to the Department of State, seeking to perfect title to the
    Swan Islands. The Department of State referred the case to the United States Attorney
    General, who responded to the Secretary of the Navy with an opinion that addressed
    both the sovereignty and title of the islands. The opinion addressed the history of the
    islands, stating that, in an affidavit dated June 16, 1857, John Valentine White swore
    that he had discovered guano on the Swan Islands in April 1857 and, on the same date,
    “conveyed all his right, title, and interest in and to the said Swan Islands” to three
    individuals. See SOVEREIGNTY OVER SWAN ISLANDS, 31 U.S. Op. Atty. Gen. 216,
    217, 
    1918 WL 613
     (1918). A bond covering the Swan Islands was filed by the New
    York Guano Co. in 1863, and the islands were named on several lists of guano islands
    which were considered appertaining to the United States. The Attorney General found,
    however, that no executive action was ever taken to designate the Swan Islands as
    “appertaining to the United States.” Id. at 219. The chain of title passed to several
    parties before it was passed by mesne conveyances to the Albion Chemical & Export
    Co. in 1902. The company became insolvent and directed its agent, Alonzo Adams, to
    abandon the islands, which he did by “actually, physically leaving the islands on
    February 5, 1904, and taking with him all the inhabitants who were at that time thereon.”
    Id. Mr. Adams, however, returned the next day, February 6, 1904, and “took formal
    possession in the name of the United States, alleging ‘The discovery, occupation, and
    possession by him of the said Swan Islands in the name of the United States.’” Id. On
    November 27, 1908, Mr. Adams conveyed his rights to the Swan Island Commercial
    Co., which then attempted to perfect its title to the islands.
    
           The Attorney General concluded that “the United States has never acquired
    sover-eighty [sic] of any kind or to any extent over the Swan Islands by reason of the
    provisions of the Guano Islands act of August 18, 1856.” Id. at 220. The Attorney
    General noted, however, that the islands had been claimed, occupied, and operated as
    guano islands by United States citizens continuously since 1857, excepting one day in
    1904, and that no other government had ever attempted to assert sovereignty over the
    islands. The Attorney General stated, therefore, “that the United States Government
    may at any time assert its sovereignty over them by appropriate action,” however, he
    indicated that it was up to the executive to determine what “form . . . that action should
    take.” Id. at 222.
    
           With regard to title to the Swan Islands, the Attorney General stated, “I do not
    find any specific cases in which the question of property rights arising from occupation
    and prescription have been directly passed upon,” but reasoned that the situation “in all
    respects, is analogous to the rights of individuals in property upon territory which has
    been ceded.” Id. at 223. He cited to several cases in which a claimant’s property rights
    
                                                55
    had been recognized by a previous sovereign, but disputed when the territory was
    ceded to the United States, in which American courts had concluded that the United
    States government should recognize the property rights granted by the previous
    sovereign.22 In these cases, the Attorney General said, the property owners were
    considered to have “inchoate title” or “imperfect rights” to the property, which the United
    States had a “duty of protecting” by perfecting title in the owner when the owner sought
    the protection of the government. Id. (citing Delassus v. United States, 
    34 U.S. 117
    (1835); Mitchell v. United States, 
    34 U.S. 711
     (1835); Coffee v. Groover, 
    123 U.S. 1
    , 9–
    10 (1887). With that principle in mind, the Attorney General concluded:
    
          The Swan Island Commercial Co. upon the facts set forth above
          unquestionably possesses certain imperfect or inchoate rights. These
          rights depended for their perfection upon the filing of the bond under the
          Guano Islands Act; but as has been shown, such rights would have been
          limited merely to the protection of the United States during the operation of
          the said islands. The property rights of said company, irrespective of the
          Guano Islands act, are dependent upon the assumption of sovereignty
          over the islands by the United States Government. Upon such
          assumption, there can be no doubt that the rights of the company in the
          lands occupied and improved by it will become at least so equitably fixed
          as to warrant some provision for compensation by the Government.
    
    Id. at 224. Therefore, the Attorney General found that an individual or, in this case a
    company, could possess “imperfect or inchoate rights” to land that was terra nullius
    when the individual took possession, but that perfection of those rights required
    recognition by the current sovereign. See L. Benjamin Ederington, Property As A
    Natural Institution: The Separation of Property from Sovereignty in International Law, 13
    Am. U. Int'l L. Rev. 263, 276 (1997) (“private individuals and corporations can acquire
    land that is ‘not under the territorial supremacy of a member of the Family of Nations’
    (i.e., terra nullius), but in order to receive protection for the acquisition under
    
    22
      Many of the cases cited in the Attorney General’s opinion, in turn, cite to Chief Justice
    Marshall’s opinion in the case of United States v. Percheman, 
    32 U.S. 51
     (1833), which
    stated:
    
          It may not be unworthy of remark that it is very unusual, even in cases of
          conquest, for the conqueror to do more than to displace the sovereign,
          and assume dominion over the country. The modern usage of nations,
          which has become law, would be violated, that sense of justice and of
          right which is acknowledged and felt by the whole civilized world would be
          outraged, if private property should be generally confiscated and private
          rights annulled. The people change their allegiance; their relation to their
          ancient sovereign is dissolved; but their relations to each other and their
          rights of property remain undisturbed.
    
    United States v. Percheman, 32 U.S. at 86-87.
                                                56
    international law, the individual or corporation ‘must either declare a new state to be in
    existence. . .or must ask a member of the Family of Nations to acknowledge the
    acquisition as having been made on its behalf.’” (quoting 1 Lassa Oppenheim,
    Oppenheim's International Law 678 (Robert Jennings & Arthur Watts eds., 9th ed.
    1992)).
    
            It appears there is one case in which a court has ever concluded that a sovereign
    was required to recognize private property rights of its own citizen which preexisted the
    extension of sovereignty by that same country over the property, a Norwegian Supreme
    Court decision, Jacobsen v. Norwegian Government, 7 I.L.R. 109 (1933-1934 Ann. Dig.)
    (Nor. Sup. Ct. 1940). See Ederington, Property As A Natural Institution: The Separation
    of Property from Sovereignty in International Law, 13 Am. U. Int'l L. Rev. at 280
    (“Although numerous commentators have suggested the possibility of legally-cognizable
    private property rights in terra nullius, the only case in which a court has explicitly
    recognized such a property right is the Norwegian Supreme Court's opinion in Jacobsen
    v. Norwegian Government.”). Jan Mayen Island was proclaimed by the Norwegian
    government to be terra nullius as late as 1923, but a Norwegian citizen, Mr. Jacobsen,
    bought title to some land and a home on the island in 1902 and claimed more of the
    island as his property in 1921. Norway claimed sovereignty over the island in 1929 and
    refused to recognize Mr. Jacobsen’s claim to the property. Mr. Jacobsen sued and, in
    1940, the Norwegian Supreme Court found that “the government was obligated to
    respect Mr. Jacobsen's property claim as legally valid, even though established while
    Jan Mayen was still terra nullius, and that, consequently, the ‘Norwegian Government
    was not entitled to proprietary rights in the part of the island which had been occupied
    by the plaintiff.’” Id. at 281 (quoting Jacobsen v. Norwegian Government, 7 I.L.R. at
    110). While the Supreme Court of Norway concluded that a private citizen could
    establish a vested property interest in terra nullius which the government was obligated
    to recognize, the court is unaware of any case in the United States or any other
    jurisdiction which has held the same. Id. at 280.
    
           The parties largely gloss over the actions regarding Kingman Reef that took
    place before Mr. Thurston’s annexation in 1922 and the question of whether any of
    those actions were sufficient to establish the United States’ sovereignty over or title to
    the atoll. Mr. Thurston did not discover Kingman Reef in 1922, but rather, it appears the
    atoll was first discovered by Captain Edmund Fanning in 1798, and was visited again in
    1853 by Captain Kingman. Both of these early visits to Kingman Reef, however, appear
    to have been very brief and there is no evidence that either Captain Fanning or Captain
    Kingman attempted to take possession of the atoll. It does not appear these early visits
    to the atoll extended United States sovereignty over the land.
    
          In 1858, Captain Taylor listed Kingman Reef, which also went by the name
    Dangers Rock, as a guano island and purported to assign the atoll to the United States
    Guano Company. The United States Guano Company then claimed Kingman Reef as a
    United States Territory under the Guano Islands Act of 1860. As indicated above,
    however, the Guano Islands Act was not intended to permanently extend United States
    sovereignty over or vest title to islands claimed under the law. See 48 U.S.C. §§ 1411-
    
                                               57
    1419. In 1934, an Office of the Legal Advisor letter indicated, “[t]his Department as well
    as the courts and the Attorney General have taken the position that the United States
    did not acquire sovereignty of, or title to, the guano islands under the Guano Islands Act
    of 1856.” A memorandum attached to the letter went on to explain that the position of
    both the Department of State and the Attorney General was that the United States
    would recognize and protect the island while its citizens were occupying the island for
    the purpose of obtaining guano, but that when that enterprise ended, the island once
    again became “‘open again to discovery, possession, et cetera.’” Title was never
    assumed to vest in either the individual discoverer or the United States. Moreover,
    although the United States Guano Company apparently claimed Kingman Reef as a
    United States Territory under the Guano Islands Act, nothing in the record indicates that
    there was ever guano on Kingman Reef, or that any United States citizen attempted to
    occupy Kingman Reef for the purpose of extracting guano. The Department of State’s
    Office of the Legal Advisor stated in the 1933 report entitled The Sovereignty of Guano
    Islands in Pacific Ocean:
    
          There is no other mention of Dangers Rock on file in the State
          Department. It is not by any means certain that there is or was any guano
          on this island, or even that there is such an island. It is, however,
          practically certain that no guano was ever removed from it, at least by
          claimants under the Guano Act. Moreover, Taylor’s “discovery” may well
          have been fictitious, and he probably did not even land there.
    
    The Sovereignty of Guano Islands in Pacific Ocean at 624-25. The report later
    concluded that “the United States has no valid claim to Kingmans Reef arising under the
    Guano Act. . . .” Id. at 875-76. The record does not reflect that there was ever any
    guano on Kingman Reef, nor that the Guano Islands Act conferred sovereignty over or
    title to islands claimed under the Act for the United States, Kingman Reef’s designation
    as a guano island in the late nineteenth century does not appear to have extended
    United States sovereignty over the atoll or to have vested title over the atoll to the
    United States or any citizen thereof. Nor is there any evidence in the record that any
    other country had claimed sovereignty over Kingman Reef prior to 1922. Plaintiff is,
    likely correct that Kingman Reef was terra nullius, at least, up to the time of Mr.
    Thurston’s annexation of the atoll on May 10, 1922.
    
           The question, therefore, is the legal consequence of Mr. Thurston’s annexation of
    Kingman Reef in 1922, and the Fullard-Leo family’s subsequent communications with
    the Department of State, in terms of establishing sovereignty over and ownership of the
    atoll. The Copra Co., which commissioned Mr. Thurston, instructed him to “take formal
    possession” of Kingman Reef on behalf of the United States and “claim the same for
    Island of Palmyra Copra Company.” The Copra Co. did not, however, seek permission
    from either the United States government or the Territory of Hawaii before
    commissioning Mr. Thurston to annex the atoll. When Mr. Thurston landed on Kingman
    Reef on May 10, 1922, he read aloud and signed a formal certificate of
    possession/annexation, which stated:
    
    
    
                                               58
          BE IT KNOWN TO ALL PEOPLE – that on the Tenth day of May A.D.
          1922, the undersigned, agent of the ISLAND OF PALMYRA COPRA CO.,
          LTD. (an Hawaiian Corporation), landed from the motor-ship “Palmyra”
          doth. . .take formal possession of this Island called “Kingman’s Reef”. . .on
          behalf of the United States of America, and claim the same for said
          Company.
    
    Mr. Thurston then built a cairn of coral slabs, flew an American flag from a pole
    supported by the cairn, and deposited a glass jar containing the formal certificate of
    possession, the flag, and a copy of two Hawaiian newspapers, The Honolulu Advertiser
    and The Honolulu Star-Bulletin, dated May 3, 1922, in the base of the coral cairn. This
    was not a case in which the discoverers of land were unaffiliated or had “no connexion
    with, and owe no allegiance to, any government whatsoever.” See Johnson v. M’Intosh,
    21 U.S. at 595. Johnson v. M’Intosh recognizes that, in the rare circumstances in which
    discoverers are unaffiliated with a nation, title in common would vest in the individual
    discoverers. See id. The record suggests that it was the intent of Mr. Thurston,
    however, to annex Kingman Reef on behalf of the United States. As discussed in
    Johnson v. M’Intosh,
    
           [i]f the discovery be made, and possession of the country be taken, under
          the authority of an existing government, which is acknowledged by the
          emigrants, it is supposed to be equally well settled, that the discovery is
          made for the whole nation, that the country becomes a part of the nation,
          and that the vacant soil is to be disposed of by that organ of the
          government which has the constitutional power to dispose of the national
          domains, by that organ in which all vacant territory is vested by law.
    
    Johnson v. M’Intosh, 21 U.S. at 595. Following the logic of the Supreme Court,
    although the Copra Co. and their agent, Mr. Thurston, may have intended to claim fee
    simple title for the company, Mr. Thurston’s annexation in the name of the United States
    had the effect of both extending United States sovereignty over Kingman Reef and
    vesting fee simple title to the atoll in the United States, not the Copra Co. or Mr.
    Thurston himself.
    
             Following the Attorney General’s logic in the case of the Swans Island, however,
    and considering Mr. Thurston’s annexation of Kingman Reef analogous to cases in
    which land was ceded, but not yet recognized by the United States government as part
    of its territory, Mr. Thurston’s annexation could have created “inchoate title” or
    “imperfect rights” to Kingman Reef to the Copra Co. See SOVEREIGNTY OVER
    SWAN ISLANDS, 31 U.S. Op. Atty. Gen. at 224. The Copra Co.’s “imperfect or
    inchoate rights, however, would have been “dependent upon the assumption of
    sovereignty over the islands by the United States Government,” see id., and the Copra
    Co. would have had to have sought recognition of its title from the government before
    that title could be perfected. The best case scenario for plaintiff, therefore, would be a
    finding that, after Mr. Thurston’s annexation on May 10, 1922, the Copra Co. held
    inchoate title to Kingman Reef, which was not yet under the Unites States’ sovereignty.
    
    
                                               59
           After Mr. Thurston’s annexation, and apparently upon instructions from a Mr.
    Huber, whom Mr. Thurston identified as “United States Attorney General” for the
    Territory of Hawaii, Ellen Fullard-Leo, acting as the Secretary-Treasurer of the Copra
    Co., wrote a letter to Secretary of State, Charles E. Hughes, informing him of the May
    10, 1922 annexation of Kingman Reef
    
          in the name of the United States of America, and for [the Copra Co.’s] own
          use, an atoll island charted as “Kingman’s Reef” but never before
          claimed. . . . According to the United States Attorney here, this notification
          is all that is necessary in addition to listing the same in our local tax
          returns, as the Palmyra Islands are a part of the county of Honolulu.
          Hoping that this is sufficient evidence that the same will be recorded and
          due credit given this Company and Territory. . . .
    
    Ellen Fullard-Leo’s letter did not expressly request that the Department of State convey
    fee simple title to Kingman Reef to, or recognize title in, the Copra Co. Instead, her
    letter requested that the Department of State register Kingman Reef as a United States
    territory and that “due credit [be] given” to the Copra Co. for annexing the atoll. What
    she meant by “due credit” is ambiguous, although the letter put the United States on
    notice that the Copra Co. believed it had some claim to or interest in Kingman Reef.
    Based on the record before the court, the Department of State did not respond to this
    letter.
    
            Nonetheless, on August 14, 1922, the Copra Co. conveyed its interest in
    Kingman Reef to Ellen Fullard-Leo. Ten days later, Ellen Fullard-Leo again wrote to the
    Secretary of State, inquiring as to whether her July 15, 1922 letter had been received.
    Internal documents show that the Department of State believed that Ellen Fullard-Leo’s
    letter was “intended as a notice of discovery under the Guano Acts,” but the Department
    of State concluded that Kingman Reef “was not a guano island or a new discovery.”
    The Department of State also noted that Kingman Reef was strategically
    “unimportant[t]” and that “it may be assumed that it has not sufficient value ever to have
    been claimed by” any nation. On September 28, 1922, the Department of State
    acknowledged receipt of both of Ellen Fullard-Leo's letters, but neither disputed, nor
    explicitly recognized, any claim of private ownership regarding Kingman Reef, and
    unfortunately United States did not clarify the title to Kingman Reef in 1922.
    Nonetheless, the Fullard-Leo family began paying taxes on Kingman Reef in 1923,
    believing that they owned the atoll. While the Fullard-Leo family’s belief that they
    owned Kingman Reef was most likely a good faith belief, however, as indicated above,
    Ellen Fullard-Leo’s interest in Kingman Reef, passed down from the Copra Co., was at
    best an “inchoate title” which had not been perfected by any sovereign.
    
          Between 1922 and 1934, nothing in the record reflects that any definitive action
    was taken regarding the ownership of Kingman Reef. It appears that there was some
    debate within the United States government, even after Mr. Thurston’s annexation, as to
    whether Kingman Reef existed at all, with Mr. Thurston stating in a 1925 letter to
    Admiral R.E. Coontz, U.S.N., “Upon my return to Honolulu in 1922, seven weeks after
    
                                               60
    the annexation incident above-referred to, I found that the existence of the Island which
    I had reported, was questioned in Washington. . . .” Mr. Thurston assured Admiral
    Coontz that Kingman Reef existed and suggested that the Navy secure both Palmyra
    Island and Kingman Reef as supply stations for naval ships. The Navy surveyed
    Kingman Reef in both 1926 and 1927, and Leslie Fullard-Leo requested further Naval
    surveying of Palmyra Island and Kingman Reef in 1931. Notably, while Mr. Thurston
    returned to Kingman Reef several times in the 1920s, there is no indication that any
    member of the Fullard-Leo family visited Kingman Reef until the 1940s, nor does
    plaintiff allege that Mr. Thurston was acting as an agent on behalf of the family on his
    later trips to Kingman Reef.
    
            Beginning in 1933, the United States government issued several reports about
    the legal status of various Pacific Islands, including Kingman Reef, which demonstrate
    that legal advisors within the executive branch were unclear as to the United States’
    interest in Kingman Reef prior to President Roosevelt’s issuance of Executive Order No.
    6935 in December 1934. A 1933 report issued by the Office of the Legal Advisor,
    Department of State and titled The Sovereignty of Guano Islands in Pacific Ocean,
    listed Kingman Reef under “ISLANDS TO WHICH THE UNITED STATES ONLY HAS A
    CLAIM,” The Sovereignty of Guano Islands in Pacific Ocean at 875 (capitalization in
    original), and concluded:
    
          It is difficult to reach definite conclusions on the legal status of Kingmans
          Reef because of lack of information. It is not known whether or not there
          has been any occupation or use of the Reef by American citizens; and it is
          not even certain that there is an island there which is dry at high tide.
          However, it may be said: first, the United States has no valid claim to
          Kingmans Reef arising under the Guano Act; and second, the United
          States has an inchoate right to the Reef, possibly because of its discovery
          by Captain Kingman, if he was an American, as seems probable, and
          because of the formal possession taken by the Island of Palmyra Copra
          Company, and its use by that company, if there has been any such use.
          As yet there has been no formal sanction of the company’s act by the
          United States. However, no other Government appears to claim Kingmans
          Reef, and it would seem that the United States Government could extend
          its jurisdiction over the island (always supposing that an actual island
          exists) and that it could then be considered as a part of the territory of the
          United States. Before any such action is taken, it might be adviseable
          [sic] to find out if Kingmans Reef is of any possible use to American
          citizens, or to the Government.
    
    Id. at 875-76. Similarly, in an October 16, 1934 letter, Secretary of the Navy wrote to
    President Roosevelt regarding the legal status of twelve Pacific Islands, indicating that
    Kingman Reef was under the “Jurisdiction” of the United States. The Secretary’s letter
    did not specify whether that meant the United States exercised ownership, sovereignty
    or both over the atoll. See Secretary of the Navy letter, Oct. 16, 1934, encl. (B) at 6.
    On November 9, 1934, R.W.S. Hill of the Department of State’s Office of the Legal
    
                                               61
    Advisor wrote a letter and memorandum concerning the same twelve islands as the
    Secretary letter. The Legal Advisor commented on guano islands generally, stating
    that:
    
    
           This Department as well as the courts and the Attorney General have
           taken the position that the United States did not acquire sovereignty of, or
           title to, the guano islands under the Guano Islands Act of 1856. . . . This
           Department has in the past stated that it has been the course of the
           Department to recognize such islands only while occupied for the purpose
           of procuring guano, and therefore upon the cessation of such occupancy
           they may become open again to discovery, possession, et cetera.
    
    Referring specifically to Kingman Reef, Mr. Hill’s memorandum indicated:
    
           On July 15, 1922, the Island of Palmyra Copra Company, a Hawaiian
           Corporation, notified the State Department that it had annexed Kingman’s
           Reef in the name of the United States and for its own use on May 10,
           1922.
    
           No other action appears to have been taken with respect to the
           incorporation of the Island into the territory of Hawaii or the United States.
           While it does not appear that any other country has claimed Kingman’s
           Reef, it might be well for this Government to take some affirmative action
           to show definitively that it is a part of the territory of the United States.
           The mere mention of it in an Act of Congress as American territory would
           be sufficient.
    
           On December 13, 1934, the Secretary of the Navy transmitted to President
    Roosevelt a “draft of [the] executive order [Executive Order No. 6935] placing Wake
    Island, Kingman Reef and Johnston and Sand Islands under the control and jurisdiction
    of the Secretary of the Navy.” Sec. of the Navy letter, Dec. 12, 1934. With regard to
    Kingman Reef, the Secretary of the Navy wrote that Kingman Reef was “first seen and
    reported by Captain Kingman on the American ship SHOOTING STAR. It was claimed
    for the United States by L. A. Thurston of Honolulu in 1922 and it is recognized by the
    Department of State as being under the sovereignty of the United States.” Id. The
    Secretary concluded, regarding the President’s authority to issue the Executive Order,
    that the “sovereignty of the United States over said islands is well recognized and
    further inquiry respecting the questions of title and jurisdiction need not be made.” Id. at
    2-3. The Secretary apparently based the claim of United States sovereignty over
    Kingman Reef on Mr. Thurston’s actions in 1922, see id. at 2, but the Secretary stopped
    short of asserting that the United States held fee title ownership to Kingman Reef. Prior
    to the issuance of Executive Order No. 6935, it appears that the United States
    government was uncertain as to whether or not it held title to Kingman Reef, variously
    asserting sovereignty or jurisdiction over the atoll, and had taken no action to clarify the
    Fullard-Leo family’s claimed interest in the atoll.
    
                                                62
           On December 29, 1934, President Franklin D. Roosevelt issued Executive Order
    No. 6935, which ordered that “Kingman Reef, Wake Island, and Johnston and Sand
    Islands, together with their surrounding reefs, in the Pacific Ocean” be
    
          reserved, set aside, and placed under the control and jurisdiction of the
          Secretary of the Navy for administrative purposes, subject, however, to
          the use of the said Johnston and Sand Islands by the Department of
          Agriculture as a refuge and breeding ground for native birds as provided
          by Executive Order No. 4467 of June 29, 1926.
    
    Exec. Order No. 6935 (Dec. 29, 1934).23 Two days later, on December 31, 1934,
    President Roosevelt sent a memorandum to the Secretary of the Navy in which he
    stated:
    
          In relation to Navy jurisdiction over these Pacific Islands, I think it is highly
          adviseable [sic] that the Navy exercise that jurisdiction in some tangible
          form at the earliest possible moment. You might consult with the State
          Department and ask them if the establishment of a small supply base or
          the fixing up of a landing place would be adequate to sustain sovereignty.
    
    Roosevelt Papers (Box 32): Memorandum of December 31, 1934.
    
    Plaintiff does not dispute President Roosevelt’s authority to issue the Executive Order,
    but argues that the Executive Order did not affect the Fullard-Leo family’s ownership of
    Kingman Reef, instead extending United States sovereignty over the atoll for the first
    time. The Hawaii District Court stated in KRAI’s quiet title action that Executive Order
    No. 6935 made clear that Kingman Reef "was considered public land and that
    jurisdiction was given to the Navy.” Kingman Reef Atoll Investments, L.L.C. v. United
    States, 545 F. Supp. 2d at 1111. Executive Order No. 6935 was issued pursuant to the
    President's authority to withdraw and reserve public lands for public purposes under the
    Pickett Act, and explicitly set aside Kingman Reef as federal public land under the
    jurisdiction of the Navy. Admittedly, Executive Order No. 6935 did not state that the
    United States was taking “possession” or “ownership” of Kingman Reef, instead
    speaking of “control and jurisdiction.” Exec. Order No. 6935. It appears that the intent
    of issuing Executive Order No. 6935 was not only to extend United States sovereignty
    over the atoll, but ownership, as well. See United States v. Gossett, 
    416 F.2d 565
    , 568
    (9th Cir. 1969) (“The fact that the Executive Orders, withdrawing this land from public
    entry, were issued in 1929 and 1931 is convincing evidence that the Government was
    claiming ownership and exercising dominion over the property in those years.”), cert.
    
    23
      In their various deeds and licensing agreements, the Fullard-Leo family, KRAI, KRAD,
    and KRE recognize that the December 29, 1934 Executive Order No. 6935 placed
    Kingman Reef “under the jurisdiction of the Secretary of the Navy,” but do not regard
    Executive Order No. 6935 as asserting or placing title ownership with the Navy or any
    entity of the United States.
                                                 63
    denied, 
    397 U.S. 961
     (1970).
    
           The Fullard-Leo family did not object to the issuance of Executive Order No.
    6935 or seek to clarify what effect the Executive Order had on their alleged property
    interest, instead waiting several years to contact the United States government, during
    which time the federal government took a more active role in administering Kingman
    Reef. In December 1935, the Navy granted Pan Am a “Revocable Permit” “to operate
    its commercial trans-Pacific airplane service into and over and to land on the waters of
    Kingman Reef and Pago Pago Harbor, American Samoa; to use certain areas at
    Kingman Reef and to moor a company barge and station ship of American Registry at
    Kingman Reef.” Pan Am’s Clipper airplane made several overnight stops at Kingman
    Reef in 1937 and 1938. This prompted Leslie and Ellen Fullard-Leo to write to the
    Hawaii congressional delegate in Washington, D.C., Samuel Wilder King, on April 20,
    1937. The Fullard-Leo family wrote that Kingman Reef’s “ownership presumably rests
    with the State or Navy Department, since by one of these, use of it has been given to
    Pan-American Airways, and has on two occasions been used during their trial flight this
    month to Auckland, N.Z.” The Fullard-Leo family also requested that Delegate King
    “interest[] the Government in the purchase of the Palmyra group” for the then
    materializing air “route to the South Pacific.” The Fullard-Leo family pointed out that
    they had been paying taxes on Kingman Reef since 1923, and presented a claim for
    $40,000.00, including accrued interest, to cover the costs incurred in “annexing
    Kingman’s Reef,” as well as to cover the taxes paid from 1922 to 1937. Although the
    Fullard-Leo family indicated that they sought first to pursue their claim through their
    congressional delegate, they did not rule out the possibility of making a “formal claim
    through legal channels,” for which the award of anticipated legal fees would be
    requested.
    
           Delegate King forwarded the Fullard-Leo family’s letter to the Secretary of the
    Navy on May 19, 1937, and requested the Navy’s comment on their claim. The
    Secretary of the Navy responded on May 29, 1937, stating that “[t]he records of the
    Navy Department do not indicate that there were any vested rights on Kingman Reef in
    favor of private interests on the date of the issuance of” President Roosevelt’s
    December 29, 1934 Executive Order. On October 15, 1937, the Navy TJAG wrote to
    the Commandant, Fourteenth Naval District, United States Navy, requesting
    “information as to the private ownership of or interest in Kingman Reef and Palmyra
    Island as disclosed by the records of the Fourteenth Naval District,” along with
    “documents bearing thereon.” The Commandant responded on December 6, 1937,
    describing the 1922 annexation by Mr. Thurston and the Copra Co., and noting that
    receipt of the 1922 letters sent by Ellen Fullard-Leo to the Secretary of State regarding
    the Copra Co.’s annexation of Kingman Reef was “acknowledged by the Secretary of
    State but no mention was made of the [Copra Co.’s] claim to Kingman Reef for its own
    use.” The Commandant further noted that the Territory of Hawaii had continued to
    collect taxes on Kingman Reef from Ellen and Leslie Fullard-Leo since 1923. The
    Commandant concluded: “It is understood that Mr. L. Fullard-Leo is preparing to submit
    a claim for ownership to Kingman Reef in the near future, based upon the original claim
    of the [Copra Co.], which was financed largely by himself and his wife.” On February
    
                                               64
    11, 1938, the Navy TJAG acknowledged receipt of the Commandant’s letter and stated,
    “[t]he information contained therein will be placed on file for future reference in the event
    a claim is made for ownership by private parties. No such claim has been filed with the
    Navy Department to date.”
    
             On March 29, 1938, Mr. Townsend and Mr. Lewis, attorneys for the Fullard-Leo
    family, wrote to the Secretary of the Navy to discuss the Fullard-Leo family’s claim of
    fee title ownership in Kingman Reef. In that letter, Mr. Townsend and Mr. Lewis wrote:
    
           As indicated in our letter of January 25th to the Secretary of State, it would
           seem that, as a result of the Executive Order of December 29, 1934, the
           Secretary of the Navy apparently concluded that the Department of State
           had denied the existence of the private property interests in Kingman’s
           Reef claimed by Mrs. Ellen Fullard-Leo. We trust that the letters now in
           your possession will clarify the position and remove any question as to
           Mrs. Fullard-Leo’s legal rights, which we propose to protect, so far as
           possible, by appropriate legal proceedings. It seems unnecessary to
           restate the costs incurred by Mrs. Fullard-Leo in connection with the
           annexation of Kingman’s Reef for and in behalf of the United States, or to
           recount the steps taken by her to establish her presently existing legal
           rights to the private property interests in the atoll.
    
          On April 26, 1938, the Navy TJAG, by direction of the Secretary of Navy,
    responded to Mr. Townsend and Mr. Lewis’ letter of March 29, 1938. In that letter, the
    Navy TJAG, for the first time, but unequivocally, rejected the Fullard-Leo family’s claim
    of ownership of Kingman Reef, stating:
    
           The records show that Kingman Reef, otherwise known as ‘Dangers
           Rock,’ is a bonded guano island, it having been listed by affidavit of
           Captain W.W. Taylor on February 12, 1858, and his right through several
           assignments, were transferred to the United States Guano Company, and
           the island was bonded on February 8, 1860 (Moore’s Digest of
           International Law, Vol. 1, pp. 667-668). It will be noted that the island,
           including its reefs and tide and submerged lands, was under the control
           and jurisdiction of the United States long before the claim of Mrs. Fullard-
           Leo arose, and by Executive Order No. 6935, dated December 29, 1934, it
           was placed under the control and jurisdiction of the Navy Department.
           Under the circumstances, the showing made is not sufficient to uphold the
           claim of Mrs. Fullard-Leo.
    
           The issuance of Executive Order No. 6935, followed by this set of
    correspondence between the Fullard-Leo family, and later, their agents, and the United
    States was critical. Executive Order No. 6935 claimed Kingman Reef as public land
    and set is aside for jurisdiction by the Navy. The Fullard-Leo family’s 1937 letter to
    Delegate King did not challenged the basis for the Executive Order, nor was it a request
    to the proper authorities for the United States government to recognize the Fullard-Leo
    
                                                 65
    family’s alleged fee simple title to Kingman Reef. Instead, the Fullard-Leo family
    asserted that Kingman Reef’s “ownership presumably rests with the State or Navy
    Department,” attempted to sell Kingman Reef and Palmyra Island to the government,
    and asserted a claim for $40,000.00 for the cost of “annexing Kingman’s Reef.”
    Delegate King forwarded the Fullard-Leo family’s letter to the Secretary of the Navy,
    however, the Fullard-Leo family did not communicate directly with the Navy, the branch
    of the government which had authority over Kingman Reef after 1934, until their
    lawyers, Mr. Townsend and Mr. Lewis, wrote to the Secretary of the Navy on March 29,
    1938. Mr. Townsend and Mr. Lewis’ letter again did not so much request recognition of
    the Fullard-Leo family’s asserted property interest in Kingman Reef as it threatened
    legal action if the Navy did not renounce its “deni[al] of existence of the private property
    interests in Kingman’s Reef claimed by Mrs. Ellen Fullard-Leo.” The Navy chose,
    however, to explicitly reject the Fullard-Leo family’s claim to a private ownership interest
    in Kingman Reef.
    
            The Navy TJAG’s conclusion that Kingman Reef “was under the control and
    jurisdiction of the United States long before the claim of Mrs. Fullard-Leo arose” is
    debatable. As noted above, the Department of State had concluded in a January 9,
    1933 report, just five years before, that "it [was] difficult to reach definite conclusions on
    the legal status of Kingmans Reef because of lack of information," that "the United
    States has no valid claim to Kingmans Reef arising under the Guano Act," and that the
    United States had an "inchoate right to the reef," but had not extended jurisdiction over
    the island. The United States could have chosen to recognize the Fullard-Leo family's
    claim to ownership of Kingman Reef and to perfect the Fullard-Leo family’s inchoate title
    to the atoll. Unlike the Norwegian Supreme Court in Jacobsen, however, American
    courts have never held that the government has a legal obligation to recognize claims of
    preexisting ownership rights by its own citizens. In the case of the Swans Island, the
    Attorney General indicated that the plaintiff’s rights to the land had “become at least so
    equitably fixed as to warrant some provision for compensation by the Government,” see
    SOVEREIGNTY OVER SWAN ISLANDS, 31 U.S. Op. Atty. Gen. at 224, stressing that
    recognizing the plaintiff’s claim by providing compensation would be the equitable thing
    for the government to do. The Attorney General stopped short of saying that the United
    States was legally obligated to recognize the plaintiff’s claim to the Swan Islands. In the
    above captioned case, although the United States could have decided to recognize the
    Fullard-Leo family’s claim to own Kingman Reef, instead, President Roosevelt declared
    the atoll public land in Executive Order No. 6935, and the Navy unequivocally rejected
    the Fullard-Leo family's claim to the atoll in 1938.
    
           The Fullard-Leo family and their attorneys stated in their letters to both Delegate
    King and the Secretary of the Navy that, should their claim to Kingman Reef be
    rejected, they would make "a formal claim through legal channels" or pursue the
    "appropriate legal proceedings" to perfect their title. Instead, the record shows that
    communication between the Fullard-Leo family and the federal government ceased after
    1938 and was not initiated again until the 1990s, when FWS got involved in negotiations
    between the Fullard-Leo family and TNC to sell Palmyra Island and Kingman Reef. The
    Fullard-Leo family never objected to the issuance of Executive Order No. 6935, never
    
                                                 66
    responded to the Navy’s 1938 letter, and never sought to further perfect title to Kingman
    Reef.
    
           Nearly five years after the Fullard-Leo family quitclaimed their interest in
    Kingman Reef to KRAI on November 17, 2000, KRAI filed a quiet title suit against the
    United States in the United States District Court for the District of Hawaii. See Kingman
    Reef Atoll Investments, L.L.C. v. United States, 545 F. Supp. 2d at 1103. The District
    Court explained that, under the Quiet Title Act, 28 U.S.C. § 2409a, a plaintiff’s quiet title
    claim against the United States “is barred if it or its predecessor failed to commence the
    action within 12 years of the date they knew or should have known of the claim of the
    United States,” id. at 1110 (citing United States v. Beggerly, 
    524 U.S. 38
    , 48 (1998)),
    and that the Quiet Title Act is “retroactive,” such that “if the passage of 12 years from
    the date of accrual occurred before October 25, 1972, when Congress passed the QTA,
    the action is foreclosed.” Id. at 1111 (citing Donnelly v. United States, 
    850 F.2d 1313
    ,
    1318 (9th Cir. 1988); Stubbs v. United States, 
    620 F.2d 775
     (10th Cir. 1980)).
    
            The District Court found that the Fullard-Leo family “knew or should have known
    of the United States' claim" to Kingman Reef "as a result of the 1934 Executive Order
    and based on the correspondence between the Fullard–Leos and the government in
    1937 and 1938." Id. The court reasoned that the 1934 Executive Order, which plaintiff
    did not dispute, was published and made public, announced that Kingman Reef "was
    considered public land and that jurisdiction was given to the Navy." Id. at 1111-12
    (citing United States v. Gossett, 
    416 F.2d 565
    , 568 (9th Cir.1969) (“The fact that the
    Executive Orders, withdrawing this land from public entry, were issued in 1929 and
    1931 is convincing evidence that the Government was claiming ownership and
    exercising dominion over the property in those years.”); Guam v. United States, 
    744 F.2d 699
    , 701 (9th Cir.1984); Warren v. United States, 
    234 F.3d 1331
    , 1335–36 (D.C.
    Cir. 2000). The District Court for the District of Hawaii also emphasized that the Fullard-
    Leo family "appear[ed] to acknowledge the government's 'ownership' of Kingman Reef"
    in their letter to Congressional Delegate King. Kingman Reef Atoll Investments, L.L.C.
    v. United States, 545 F. Supp. 2d at 1112. Finally, the court stated that the Navy's 1938
    letter to the Fullard-Leo family's attorneys clearly stated "[t]he government's position that
    the Fullard–Leos had no private interest in Kingman Reef." Id. Because the Fullard-
    Leo family knew or should have known that the government claimed an interest in
    Kingman Reef by 1938 at the latest, the court found that KRAI's quiet title claim
    "expired—at the latest—by 1949 or 1950 (12 years after the 1937 and 1938
    correspondence with the government)," and was, therefore, untimely as it was filed in
    2005. Id. The District Court also found no evidence that the United States had ever
    abandoned its claim to Kingman Reef, which would have given KRAI a new cause of
    action under the Quiet Title Act. The District Court concluded that the United States'
    original claim to Kingman Reef arose from the 1934 Executive Order, which had never
    been revoked and remained in effect, and the underlying legislation for which remained
    in force. See id. at 1116. The District Court, therefore, granted defendant’s motion to
    dismiss KRAI's quiet title action for lack of subject matter jurisdiction, see id. at 1116,
    and the United States Court of Appeals for the Ninth Circuit affirmed that decision. See
    Kingman Reef Atoll Investments, L.L.C. v. United States, 541 F.3d at 1189.
    
                                                 67
           Although the Quiet Title Act had not yet been enacted in 1938, when the Navy
    rejected the Fullard-Leo family's ownership claim regarding Kingman Reef,24 it was
    incumbent upon the Fullard-Leo family, however, to "protect" their asserted ownership
    interest in Kingman Reef "so far as possible, by appropriate legal proceedings," as they
    stated they intended to do in their correspondence with both Congressional Delegate
    King and, on their behalf, with the Navy in 1937. The Fullard-Leo family could not
    ignore Executive Order No. 6935 and the Navy’s 1938 letter and continue to put
    themselves forward as private owners of Kingman Reef in the hopes that their claim
    eventually would be recognized. What apparently began in 1922 as a good faith belief
    that they had established an ownership interest in Kingman Reef by way of Mr.
    Thurston’s 1922 activities cased to be so after Executive Order No. 6935 set Kingman
    Reef aside as public land and the Navy explicitly rejected the Fullard-Leo family’s claim
    in 1938. The Fullard-Leo family’s failure to take any action to perfect title in Kingman
    Reef, especially after 1938, is fatal to any takings claim today by plaintiff. Because the
    Fullard-Leo family never perfected title to Kingman Reef, they had no interest to convey
    to KRAI on November 17, 2000, KRAI had no interest to convey to plaintiff KRAD
    through their November 17, 2000 leasehold agreement, and plaintiff had no interest to
    convey to KRE in any subsequent license agreement.
    
             Between 1938 and November 17, 2000, when the Fullard-Leo family quitclaimed
    “[a]ll of Grantor’s rights, title and interest in” Kingman Reef to KRAI, plaintiff alleges that
    the Fullard-Leo family continued to act as though they owned Kingman Reef and
    defendant did nothing to interfere with their use or dominion over the atoll. The Fullard-
    Leo family continued to pay taxes on Kingman Reef until 1959, when, after Hawaii
    received statehood, taxes ceased being levied because Palmyra Atoll and Kingman
    Reef were not incorporated as a part of the lands of the State of Hawaii. Plaintiff
    alleges that the Fullard-Leo family accessed Kingman Reef numerous times since the
    1940s, answered requests from various individuals who sought access to Kingman
    Reef, including HAM radio operators, scuba divers, and photographers, some of whom
    
    
    
    24
         As noted by the Ninth Circuit,
    
             [a]n action brought under the QTA “accrues when the landowner or his
             predecessors-in-interest knew or should have known of the United States'
             claim.” Shultz [v. Dep't of Army], 886 F.2d [1157,] 1158 [(9th Cir. 1989)];
             see 28 U.S.C. § 2409a(g). The QTA's “statute of limitations applies
             retroactively,” so it is irrelevant whether KRAI's predecessors in interest,
             the Fullard–Leo family, was put on notice of the United States's interest
             before or after the enactment of the QTA. Donnelly v. United States, 
    850 F.2d 1313
    , 1318 (9th Cir. 1988) (citing Block [v. North Dakota], 461 U.S.
             [273], 284 [(1983)]).
    
    Kingman Reef Atoll Investments, L.L.C. v. United States, 541 F.3d at 1197.
    
    
                                                  68
    were allegedly referred to the family by the United States Navy,25 and stopped
    unauthorized uses of the atoll when they were discovered.
    
           Unfortunately for plaintiff, while all of these alleged activities can be indicia of
    property ownership, none can establish a valid property interest against the United
    States when the government has explicitly refused to grant title to a claimant and the
    claimant has failed to take legal action. It is well established that occupation of public
    lands, even if long-lasting and paired with improvement of the land, does not give the
    occupant any vested interest against the United States. In Frisbie v. Whitney, the
    United States Supreme Court recounted the opinions of several Attorneys General,
    which demonstrated a clear consensus that “[i]t is not to be doubted that settlement on
    the public lands of the United States, no matter how long continued, confers no right
    against the government. . . .” Frisbie v. Whitney, 
    76 U.S. 187
    , 195 (1869) (quoting 11
    U.S. Op. Atty. Gen. 462 (1866) (citing 8 U.S. Op. Atty. Gen. 72 (1856) and 10 U.S. Op.
    Atty. Gen. 57). Because the federal government clearly indicated to the Fullard-Leo
    family that it considered Kingman Reef public land in 1934 and, again, in 1938, any
    continued access and use of the atoll between 1938 and 2000 by the Fullard-Leo family
    did not convey any ownership interest to the Fullard-Leo family. Nor did the Fullard-Leo
    family’s granting of permission to third parties to access or use Kingman Reef confer
    upon them any property interest.
    
           President Roosevelt issued Executive Order No. 8682 on February 14, 1941,
    creating a Naval Defensive Sea Area over Kingman Reef and the surrounding waters
    and a Naval Airspace Reservation in the airspace over the atoll. Executive Order 8682
    also made it impermissible for “any person” to enter these areas “unless authorized by
    the Secretary of the Navy.” Executive Order No. 8682. The Naval Defensive Sea Area
    and Naval Airspace Reservation remained in force until 1976, and the Navy developed
    a regulatory framework for individuals to seek permission to enter the waters and
    airspace surrounding Kingman Reef. Members of the Fullard-Leo family or any other
    person who accessed Kingman Reef without permission from the Navy between 1941
    and 1976, therefore, were violating the terms of the Executive Order and corresponding
    regulations. And while Executive Order No. 8682 was suspended in 1976, Executive
    Order No. 6935, placing Kingman Reef under the “control and jurisdiction” of the Navy
    has never been revoked and the record shows no other indication that, between 1938
    and 2000, the United States took any action which evidenced an intent to relinquish its
    asserted ownership of Kingman Reef.
    
           Plaintiff emphasizes that the Fullard-Leo family paid taxes on Kingman Reef from
    1923 to 1959, when Hawaii received statehood and Kingman Reef was not incorporated
    into the State of Hawaii. The United States Supreme Court has recognized that
    payment of taxes on a property is strong circumstantial evidence of ownership. See
    Ewing's Lessee v. Burnet, 
    36 U.S. 41
    , 54 (1837) (“the uninterrupted payment of taxes
    on the lot for twenty-four successive years . . . is powerful evidence of a claim of right to
    
    25
       Plaintiff alleges that the United States Navy forwarded at least ten third-party requests
    for permission to access Kingman Reef to the Fullard-Leo family.
                                                 69
    the whole lot”); see also Fletcher v. Fuller, 
    120 U.S. 534
    , 552-53 (1887) (considering
    payment of taxes by defendant and his ancestors for ninety-seven years “circumstances
    of great significance, taken in connection with their constantly asserted ownership” that
    supported quieting title in the defendant); Holtzman v. Douglas, 
    168 U.S. 278
    , 284
    (1897) (“Payment of the taxes . . . is very important and strong evidence of a claim of
    title. . . .”). Payment of taxes alone, however, does not establish an ownership interest.
    See Oregon & C.R. Co. v. Grubissich, 
    206 F. 577
    , 582-83 (9th Cir. 1913) (“The mere
    fact of the payment of these taxes is certainly no ground on which to presume a
    conveyance to the taxpayer.”); see also Dolbear v. Gulf Prod. Co., 
    268 F. 737
    , 740 (5th
    Cir. 1920) (stating that “[i]t cannot plausibly be contended that the payment, for 3 years
    in 20, of taxes on vacant and unused land” by other than the record title holder was
    reason to find that title was conveyed from the owners of the land to the taxpayer), cert.
    denied sub. nom. Shannon v. Prod. Co., 
    255 U.S. 569
     (1921). The Fullard-Leo family
    initiated the payment of taxes on Kingman Reef to the Territory of Hawaii in 1923,
    allegedly at the direction of Mr. Huber, despite the fact that there is no evidence that
    Kingman Reef was ever considered part of the Territory of Hawaii. The Fullard-Leo
    family continued to pay taxes on Kingman Reef after the issuance of Executive Order
    No. 6935, which set aside the atoll as public land under the jurisdiction of the Navy, and
    after the Navy rejected the family’s ownership claim in 1938. The Fullard-Leo family’s
    decision to continue paying taxes to the Territory of Hawaii for land which the United
    States government had declared federal public land, and despite the fact that there is
    no evidence in the record that Kingman Reef was ever considered part of the Kingdom
    or Territory of Hawaii, does not establish that the Fullard-Leo family ever obtained an
    ownership interest in Kingman Reef.
    
            Finally, plaintiff alleges that between 1938 and 2000 the federal government
    recognized the Fullard-Leo family’s ownership interest in Kingman Reef, never
    restricted their access to Kingman Reef, and was involved in negotiations to purchase
    Kingman Reef from the family in the 1990s. Officials from the FWS were involved in
    meetings regarding the potential sale of Kingman Reef, along with Palmyra Island, to
    TNC in the 1990s, and plaintiff alleges that those officials never “questioned the Fullard-
    Leo family’s title to Kingman Reef or suggested that the government owned Kingman
    Reef.” In addition, plaintiff points to a 1997 report from NOAA, which stated:
    
          The Fullard-Leo family owns Palmyra Island and Kingman Reef, and may
          claim ownership or jurisdiction over ocean resources and/or submerged
          lands seaward of the low-water mark.
    
          The exact extent of the Fullard-Leo claims is not clear, probably extending
          to the lagoons and reefs surrounding the islands, and perhaps extending
          to the “territorial” waters. Federal submerged lands around these areas
          were not conveyed to the Fullard-Leo family. It is the position of the
          Federal Government that the EEZ [Exclusive Economic Zone] around
          Palmyra and Kingman extends to the low-water mark.
    
    
    
    
                                                70
    According to plaintiff, the United States government’s acquiescence with the Fullard-Leo
    family’s use of Kingman Reef, statements indicating that the Fullard-Leo family were the
    owners of Kingman Reef, and involvement in a potential sale of the atoll by the Fullard-
    Leo family demonstrate that the Fullard-Leo family held title to Kingman Reef until they
    conveyed it to KRAI on November 17, 2000.
    
           Although the United States government’s inconsistent position on the ownership
    of Kingman Reef is regrettable, the record does not demonstrate that the United States
    ever conveyed title of the atoll to the Fullard-Leo family, or officially recognized the
    Fullard-Leo family as owners of Kingman Reef. Moreover, there is some evidence in
    the record that the Navy, which maintained jurisdiction over Kingman Reef until 2000,
    attempted to notify FWS that the Fullard-Leo family did not own Kingman Reef. For
    example, on December 15, 1992, Lieutenant Commander Rick Russell, United States
    Navy, Pearl Harbor, contacted P. Ha and Andy Yuen at FWS regarding the granting of
    access to Kingman Reef. The record of the telephone conversation stated:
    
          Lt. Commander Russell called to let us know that he is the person to talk
          to regarding permission to go to Kingman Reef.
    
          He called with respect to the Ham Radio expedition to Kingman that is
          being planned. There seems to have been a mix-up with the information
          about who has jurisdiction over Kingman Reef. It is not Peter Savio. The
          Navy (COMNAVBASE Pearl Harbor) has administrative jurisdiction over
          Kingman Reef by delegated authority under [Executive Order] 6935[,] 29
          December 1934. (Kingman is “reserved reefs”). Lt. Commander Russell
          just wanted to clarify the issue. He will call Peter Savio to inform him.
    
    Nonetheless, defendant acknowledges that several reports produced by the FWS in the
    1990s, as well as the 1997 NOAA report, alluded to the Fullard-Leo family’s ownership
    of Kingman Reef, although defendant now argues that these reports were “preliminary”
    and subsequent investigations confirmed that the United States holds fee simple title to
    Kingman Reef. Robert P. Smith, Pacific Islands Manager for FWS, stated in a 2007
    deposition related to KRAI’s quiet title suit in the Hawaii District Court, Kingman Reef
    Atoll Investments, L.L.C. v. United States, 
    545 F. Supp. 2d 1103
    , that “[f]rom ‘91 until
    certainly ‘97. . .certainly [he] believed that the Fullard-Leo family owned Kingman Reef,”
    and that no one in his presence stated that the Fullard-Leo family did not own Kingman
    Reef. Mr. Smith, however, indicated that, in 1998, he had changed his position
    regarding the claim of fee title ownership by the Fullard-Leo family in Kingman Reef,
    and that between 1997 and 1998:
    
          The Nature Conservancy’s attorney, Suzanne Case, had done extensive
          research on the ownership of Kingman; because [Mr. Smith] was then and
          probably continued to be. . .a cheerleader for getting both properties and
          both nearby marine environments. . . . [Ms. Case’s] research revealed that
          the Fullard-Leo family, at least in her view, did not own Kingman Reef.
    
    
    
                                               71
    Mr. Smith further stated that following the 1998 expedition, the Realty Division at FWS
    decided that, “in the view of the government,” Ms. Case’s research was correct and that
    the Fullard-Leo family did not hold title to Kingman Reef. Similarly, a March 30, 2000,
    Briefing Statement prepared for the Director of FWS, titled “Kingman Reef Ownership
    Status and Federal Jurisdictions,” stated:
    
          Kingman Reef is an unorganized and unincorporated U.S. possession.
          The U.S. acquired sovereignty over Kingman Reef pursuant to the Guano
          Act of 1856. Fee title interest rests with the Federal Sovereign. It is
          currently under the jurisdiction of the U.S. Navy.
    
          The Fullard-Leo family is claiming private ownership. In 1922, the
          American flag was hoisted over Kingman Reef at the request of the
          Fullard-Leo family for the purpose of taking formal possession. This is the
          same family that owns Palmyra Atoll, and whose ownership was
          confirmed by the Supreme Court decision, United States v. Fullard-Leo,
          
    331 U.S. 256
     (1947) - the case did not address Kingman Reef. Recently,
          The Nature Conservancy obtained a purchase agreement for Palmyra
          Atoll.
    
          People wishing to visit Kingman Reef must secure permission from the
          Fullard-Leo family. However, the U.S. government does not recognize the
          family’s imputed right to act in this manner.
    
    By the time of the alleged taking, the FWS was consistently advancing the position that
    Kingman Reef was federally owned, stating in its Draft EA for the proposed wildlife
    refuge that, whether no action was taken or Kingman Reef NWR was established,
    "[b]oth alternatives would continue the Federal ownership of Kingman Reef." Defendant
    denies that the Fullard-Leo family or any of their agents, associates, or representatives
    were ever authorized to grant access to Kingman Reef, block access to Kingman Reef
    and its surrounding waters, survey and inspect Kingman Reef, or sell Kingman Reef.
    Nothing in the record contradicts defendant’s position, nor indicates that an authorized
    representative of the United States ever conveyed title to Kingman Reef to the Fullard-
    Leo family prior to November 17, 2000, when they tried to quitclaim their interest in the
    atoll to KRAI and KRAI entered a lease agreement with plaintiff. In addition, the license
    agreement between plaintiff and KRE, one of the instruments on which plaintiff relies for
    establishing its alleged property interest, acknowledged that ownership of Kingman
    Reef was uncertain, stating:
    
          Section 1.08         Agreement Subject to Rights and Reservations of
          Others.
    
          (1) Licensor [KRAD] hereby discloses, and Licensee [KRE]
              acknowledges, that the federal government may have asserted
              or may assert claims regarding the ownership of Kingman Reef
              and its lagoons and territorial waters, which claims the Master
    
                                               72
              Lessor [KRAI] disputes. Licensee acknowledges and agrees
              that Licensor has not made and does not hereby make any
              representations or warranties, express or implied, regarding the
              nature or extent of Licensor’s or Master Lessor’s interest in
              Kingman Reef or in the lagoons or territorial waters thereof.
              Without limiting the generality of the foregoing, Licensor hereby
              discloses and Licensee hereby acknowledges, that while the
              Master Lessor believes that the Master Lessor has rights to
              Kingman Reef, the nature of the Master Lessor’s interest in
              Kingman Reef has not been determined. All of Licensee’s rights
              under this Agreement shall be solely as specified in this
              Agreement, and Licensee acknowledges and agrees that this
              Agreement is subject to the extent of Master Lessor’s interest in
              Kingman Reef. . . .
    
    (first emphasis in original). While plaintiff now advances the position that KRAI had a
    valid ownership interest in Kingman Reef, conveyed by the Fullard-Leo family, when
    plaintiff entered into a license agreement with KRE, it conceded that KRAI’s interest in
    Kingman Reef was unresolved.
    
           Therefore, the court finds that, at best, plaintiff’s predecessors-in-interest had
    inchoate rights to Kingman Reef between 1922 and 1934, but that title was never
    perfected. Instead, the United States government proclaimed Kingman Reef public land
    in 1934 and unequivocally rejected the Fullard-Leo family’s ownership claim in 1938.
    The Fullard-Leo family did not take legal action at either point and waited many years to
    take any legal action. Under the circumstances, the court finds that the Fullard-Leo
    family, plaintiff’s predecessors-in-interest, never had a vested ownership right in
    Kingman Reef and, therefore, no valid property interest was ever conveyed to plaintiff.
    
            The court notes that the history of Kingman Reef is distinguishable from that of
    Palmyra Island, such that a different outcome with regards to the Fullard-Leo family’s
    ownership of the two atolls is warranted. Unlike the Copra Co., which commissioned
    Mr. Thurston to annex Kingman Reef without notifying or seeking the permission of
    either the United States or the Territory of Hawaii, Mr. Wilkerson and Mr. Bent sought
    the permission of the King of Hawaii before taking possession of Palmyra Island, and
    the King of Hawaii “consent[ed] to the taking of possession of the island of Palmyra” in
    his name. See United States v. Fullard-Leo, 66 F. Supp. at 775. Once Palmyra Island
    had been claimed, Mr. Bent informed the King and the Minister of the Interior of his
    actions at Palmyra and the Minister of Interior issued a proclamation stating that
    Palmyra Island “was taken possession of, with the usual formalities, by Captain Zenas
    Bent, he being duly authorized to do so, in the name of Kamehameha IV, King of the
    Hawaiian Islands.” Id. at 776. Mr. Wilkerson’s and Mr. Bent’s annexation of Palmyra
    Island was, therefore, sanctioned by the government of the Kingdom of Hawaii. The
    District Court for the Territory of Hawaii concluded, and the Ninth Circuit, and Supreme
    Court agreed, that the record suggested that the King of Hawaii had granted title to
    Palmyra Island to Mr. Wilkerson and Mr. Bent. See United States v. Fullard-Leo, 
    66 F. 73
    Supp. at 787; see also United States v. Fullard-Leo, 156 F.2d at 767, United States v.
    Fullard-Leo, 331 U.S. at 261. The District Court for the Territory of Hawaii stressed:
    
          There is not a scintilla of evidence that the Hawaiian monarchy, the
          Provisional Government or the Republic of Hawaii at any time claimed that
          Palmyra was public land. There is no record evidence of any kind that
          either of those governments ever regarded Palmyra as public property.
          Uncontradicted evidence shows that the claim of private ownership of the
          island had been continuously maintained through the years to the
          knowledge of the Department of State, the Department of the Interior and
          officers of the United States navy as well as of the prior governments of
          Hawaii.
    
    Id. at 786. Instead, the United States’ first effort to quiet title to Palmyra Island came
    nearly eighty years after Messrs. Wilkerson and Bent took possession of the island.
    See United States v. Fullard-Leo, 66 F. Supp. at 774. By contrast, Executive Order No.
    6935, which placed Kingman Reef under the “control and jurisdiction of the United
    States Secretary of the Navy,” was issued just twelve years after Mr. Thurston’s
    annexation of the atoll, and four years later the United States explicitly rejected the
    Fullard-Leo family’s ownership claim. There was nothing like an eighty-year period of
    undisturbed possession and use of Kingman Reef by plaintiff’s predecessors-in-interest,
    like there was with respect to Palmyra Island. See United States v. Fullard-Leo, 66 F.
    Supp. 786. In addition, when title to Palmyra Island passed to Henry Cooper in 1912,
    Mr. Cooper filed a petition in the Land Court of the Territory of Hawaii, claiming
    ownership of Palmyra Island in fee simple and requesting registration of his title. See
    id. at 777-78. The Territory of Hawaii was summoned as a party respondent in the
    proceedings, but disclaimed any interest in Palmyra Island. The Land Court then filed a
    decree declaring Henry Cooper to be the owner of Palmyra Island in fee simple. See id.
    The Fullard-Leo family, therefore, purchased their interest in Palmyra Island from the
    party declared by a legitimate court to be the rightful owner of the atoll. See id. Unlike
    Mr. Cooper, neither the Copra Co. nor the Fullard-Leo family ever filed a petition in the
    Land Court of the Territory of Hawaii, nor in federal court, to perfect their claim to
    Kingman Reef. The evidence of a lost grant from the King of Hawaii to Messrs.
    Wilkerson and Bent and Mr. Cooper’s action to perfect title to Palmyra Island are
    material distinctions from the above captioned case which justify the court’s decision
    that the Fullard-Leo family never obtained a valid property interest in Kingman Reef,
    although they were found to hold title to Palmyra Island.
    
           Plaintiff also lists several other examples in which, plaintiff asserts, the United
    States has recognized preexisting private property rights upon exercising sovereignty
    over land that was previously terra nullius, including Swains Island, the Spitsbergen
    Archipelago, Los Monges Islands, and Aves Islands. Each of plaintiff’s examples is
    distinguishable from Kingman Reef. Plaintiff alleges that Swains Island was
    
          discovered in 1856 by a British citizen who subsequently gave the island
          to an American citizen. That American citizen later provided the island,
          through inheritance, to Eli H. Jennings. When Jennings died, his estate
                                               74
           was disputed by two parties who asked that the United States extend
           sovereignty over Swains Island. Congress did so through a joint resolution
           on March 4, 1925. Once sovereignty was extended, however, the United
           States treated Swains Island as privately owned, though subject to
           governmental jurisdiction and protection. See S. Treaty Doc. 97-5, 97th
           Cong., 1st Sess., Letter of Transmittal at vi (1982) (noting that the
           Executive Branch had negotiated to keep “Swains, a privately owned
           island.”).
    
    (internal citation omitted). What distinguishes Swains Island from Kingman Reef is that
    individuals who wished to establish title to Swains Island petitioned the United States to
    extend sovereignty to the island and, once it did, the United States chose to recognize
    property rights in those individuals. Like Kingman Reef, until the United States extended
    sovereignty over Swains Island, Jennings’ heirs likely had only an inchoate title to the
    island. Unlike the above captioned case, however, that title was perfected by the
    sovereign, which chose to treat Swains Island as privately owned. Once the federal
    government extended sovereignty over Kingman Reef, by contrast, it chose to treat
    Kingman Reef as public land and dispute the Fullard-Leo family’s private ownership
    interest.
    
            Plaintiff also alludes to several examples in which the United States has asserted
    its citizens preexisting interests in terra nullius against foreign governments. For
    example, the Spitsbergen Archipelago, a group of islands in the Arctic Ocean, was
    considered terra nullius and was uninhabited until coal was discovered on the island in
    the early 1900s. At that point, an American coal company and coal companies from
    several other nations all made claims on the islands. The “Spitsbergen Question,” as it
    became known, was resolved by treaty in 1920, which recognized Norway’s sovereignty
    over the island, but required that Norway respect the rights of “Occupiers of land”
    already present. A tribunal was appointed to resolve conflicting property claims and,
    ultimately, Norway recognized the claims of citizens or companies of various countries.
    See Ederington, Property As A Natural Institution: The Separation of Property from
    Sovereignty in International Law, 13 Am. U. Int'l L. Rev. at 284-85. The Los Monges
    Islands and Aves Islands were both guano islands, which were terra nullius when they
    were claimed by Americans for the purpose of harvesting guano. Venezuela
    subsequently claimed sovereignty over both island groups and ejected the Americans.
    The United States demanded compensation from Venezuela in both cases and, in both
    cases, the Venezuelan government paid the Americans damages. See id. at 288-89.
    Plaintiff argues that the Spitsbergen Archipelago and guano island examples
    demonstrate that “the United States has defended private property rights of American
    citizens in terra nullius as against other nations.” Accepting plaintiff’s assertion as true,
    however, these examples do not establish that the United States was obligated to
    recognize the claimed private property rights of American citizens in terra nullius as
    against the United States government. The United States’ decision to protect its
    citizens from interference by a foreign government is unrelated to its decision regarding
    whether to recognize private property claims to federal public lands on the part of its
    own citizens.
    
                                                 75
            As mentioned above, the only case of which this court is aware in which a court
    has indicated that a government is obligated to recognize the preexisting private
    property rights of its own citizen was Jacobsen v. Norwegian Government. See id. at
    280 (citing Jacobsen v. Norwegian Government, 7 I.L.R. 109). Decisions of the
    Norwegian Supreme Court obviously are not binding on this court. Moreover, the
    Jacobsen case is also distinguishable from the above captioned case because Mr.
    Jacobsen pursued a legal remedy against the sovereign when the government rejected
    his ownership claim and sought to have his title to Jan Mayen Island perfected.
    Plaintiff’s predecessors-in-interest failed to take appropriate legal action to perfect their
    inchoate title to Kingman Reef, resulting in plaintiff having no valid property interest in
    the atoll when the Kingman Reef NWR was created on January 18, 2001.
    
           The court does not condone the United States' failure to resolve the title dispute
    surrounding Kingman Reef decades ago when the Fullard-Leo family first sought federal
    recognition of their ownership claim over the island. Nor is it good practice that, even
    after the Navy disputed the Fullard-Leo family’s ownership claim in 1938, different
    agencies within the federal government took inconsistent positions on ownership of the
    atoll. Despite the foregoing, the Fullard-Leo family had the legal obligation to seek
    perfection of their inchoate title to Kingman Reef and failed to do so, despite clear
    indication from the United States government in 1938 that it did not accept Fullard-Leo
    family’s claim of ownership. The court must conclude, therefore, that the Fullard-Leo
    family never established a vested property interest in Kingman Reef, and no valid
    property interest was ever conveyed to plaintiff, but rather, title to the atoll lies with the
    United States government. Because the court concludes that plaintiff has failed to
    establish a cognizable property interest in Kingman Reef as a whole, it need not
    address defendant’s separate argument regarding submerged lands and the waters
    surrounding Kingman Reef.
    
           As indicated above, “‘[i]t is axiomatic that only persons with a valid property
    interest at the time of [an alleged] taking are entitled to compensation.’” Am. Pelagic
    Fishing Co. v. United States, 379 F.3d at 1372 (quoting Wyatt v. United States, 271
    F.3d at 1096 (citing Cavin v. United States, 956 F.2d at 1134)). Therefore, “[i]f the
    claimant fails to demonstrate the existence of a legally cognizable property interest, the
    courts [sic] task is at an end.” Am. Pelagic Fishing Co. v. United States, 379 F.3d at
    1372 (citing Maritrans Inc. v. United States, 342 F.3d at 1352 and M & J Coal Co. v.
    United States, 47 F.3d at 1154). Because the court has determined that plaintiff did not
    have a cognizable property interest at the time of the alleged taking, the inquiry ends
    here and the court also will not address the second step of the takings analysis, i.e.,
    whether the creation of the Kingman NWR constituted a taking of private property for
    the public interest.
    
    Estoppel
    
         In its motion for summary judgment plaintiff advances several alternative
    arguments, in the event that this court finds that KRAI’s predecessors-in-interest did not
    
                                                 76
    establish title to Kingman Reef in 1922 as a consequence of Mr. Thurston’s actions.
    Plaintiff first argues that defendant should be estopped from claiming that KRAI does
    not have legal title to Kingman Reef because defendant treated the Fullard-Leo family
    as the owner of Kingman Reef for decades. Plaintiff states that defendant knew that the
    Fullard-Leo family had made a claim for ownership of Kingman Reef in 1922, when
    Ellen Fullard-Leo sent a letter to the Secretary of State. Between 1922 and 1937,
    plaintiff claims, the government was silent about ownership of Kingman Reef. It was not
    until 1938 that defendant disputed the Fullard-Leo family’s ownership of Kingman Reef,
    in the form of a Navy TJAG’s letter to the Fullard-Leo family’s attorneys. Plaintiff
    argues, however, the Navy TJAG’s position was inconsistent with an internal Navy
    memorandum which stated that the Fullard-Leo family had been paying taxes on
    Kingman Reef and could make an ownership claim on the island. Moreover, according
    to plaintiff, after the Navy TJAG’s 1938 letter, the United States continued to treat the
    Fullard-Leo family as the owner of Kingman Reef by assessing property taxes through
    1959 and later attempting to buy the atoll from the Fullard-Leo family. Plaintiff
    analogizes the facts of this case to two Ninth Circuit cases in which the United States
    was estopped from asserting title, United States v. Georgia-Pacific Co., 
    421 F.2d 92
    , 96
    (9th Cir. 1970) and United States v. Wharton, 
    514 F.2d 406
    , 412 (9th Cir. 1978). In
    sum, plaintiff argues that estoppel should bar defendant from asserting title to Kingman
    Reef because defendant knew of Mr. Thurston’s’ actions in 1922, never notified KRAI or
    its predecessors-in-interest that the United States was claiming title to Kingman Reef,
    and treated the Fullard-Leo family as the owners of Kingman Reef after 1938, and
    plaintiff relied on the fact that it owned Kingman Reef by paying taxes on the atoll and
    overseeing and maintaining the atoll.
    
            Defendant argues that all of plaintiff’s alternative theories, including their
    estoppel, lost grant, and adverse possession arguments, amount to a request for
    declaratory relief on plaintiff’s title claim, over which this court has no jurisdiction.
    Defendant asserts that, “[a]lthough wrapped in the cloak of the Fifth Amendment, the
    core of Plaintiff’s claim is one to quiet title against the United States.” Specifically with
    regard to estoppel, defendant argues that KRAI raised the exact same argument in its
    quiet title action, which both the United States District Court of the District of Hawaii and
    the Ninth Circuit rejected, such that plaintiff should be precluded from re-litigating the
    issue in this court. In addition, citing Gregory v. United States, 
    37 Fed. Cl. 388
    , 396
    (1997), defendant argues that plaintiff cannot use estoppel to establish a required
    element of a claim, namely plaintiff’s property interest in Kingman Reef.
    
           The elements for establishing equitable estoppel are:
    
           (1) the party to be estopped must know the facts; (2) the party to be
           estopped must intend, or act in a manner that the other party has reason
           to believe it intends, for its conduct to be acted on; (3) the party asserting
           estoppel must be ignorant of the true facts; and (4) the party asserting
           estoppel must rely on the other party's conduct to its injury
    
    Ebeyer v. United States, 
    114 Fed. Cl. 538
    , 550-51 (2014) (citing Am. Airlines, Inc. v.
    United States, 
    77 Fed. Cl. 672
    , 679 (2007), aff’d, 
    551 F.3d 1294
     (Fed. Cir. 2008)). The
                                                 77
    United States Supreme Court has indicated that “[e]quitable estoppel ‘operates to place
    the person entitled to its benefit in the same position he would have been in had the
    representations been true.” CIGNA Corp. v. Amara, 
    131 S. Ct. 1866
    , 1880 (2011)
    (quoting J. Eaton, Handbook of Equity Jurisprudence § 62, p. 176 (1901)). The
    Supreme Court also has held that estoppel may run against the government, but that
    “the Government may not be estopped on the same terms as any other litigant.”
    Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc., 
    467 U.S. 51
    , 60-61 (1984); see
    also New Hampshire v. Maine, 
    532 U.S. 742
    , 756, reh’g denied, 
    553 U.S. 968
     (2001).
    A plaintiff “also must show that the government engaged in ‘affirmative misconduct.’”
    SUFI Network Servs., Inc. v. United States, Nos. 2013–5039, 2013–5040, 
    2014 WL 2210851
    , at *17 (Fed. Cir. May 29, 2014) (quoting Zacharin v. United States, 
    213 F.3d 1366
    , 1371 (Fed. Cir. 2000)); see also Hanson v. Office of Pers. Mgmt., 
    833 F.2d 1568
    ,
    1569 (Fed. Cir. 1987) (citing generally Heckler v. Community Health Serv., 
    467 U.S. 51
    )
    (“It is now settled that to estop the Government there must at least be affirmative
    misconduct, leading to unfairness, on the part of a Government official.”); Vane Minerals
    (US), LLC v. United States, 
    116 Fed. Cl. 48
    , 68 (2014).
    
    
           Plaintiff alleges that defendant was silent about the ownership of Kingman Reef
    until 1938, or sixteen years after Mr. Thurston’s annexation of the island. The court
    disagrees. In 1934, twelve years after Mr. Thurston’s arrival at the atoll, President
    Roosevelt issued Executive Order No. 6935, which made clear that the government
    considered Kingman Reef public land, and “reserved, set aside, and placed” the atoll
    “under the control and jurisdiction of the Secretary of the Navy for administrative
    purposes.” As the District Court of Hawaii held in KRAI’s quiet title action, “[t]he
    Fullard–Leos (Plaintiff's predecessors-in-interest) knew or should have known of the
    United States' claim as a result of the 1934 Executive Order. . . .” Kingman Reef Atoll
    Investments, L.L.C. v. United States, 545 F. Supp. 2d at 1111. The Fullard-Leo family
    waited several more years to take action, however, and then only writing to
    Congressional Delegate King in 1937 and stating in that letter “ownership [of Kingman
    Reef] presumably rests with the State or Navy Department.” When the Fullard-Leo
    family’s attorneys reached out for the first time to the Secretary of the Navy, the official
    within the United States government who had been granted jurisdiction over Kingman
    Reef four years earlier, the Navy responded within less than one month, clarifying the
    United States’ position that the Fullard-Leo family did not have a valid ownership claim
    to Kingman Reef.
    
           Plaintiff also alleges that after 1938 the United States continued to treat the
    Fullard-Leo family as the owner of Kingman Reef by assessing property taxes through
    1959 and later attempting to buy the atoll from the Fullard-Leo family. As discussed
    above, however, the Fullard-Leo family’s payment of taxes was not dispositive proof of
    an ownership interest under the circumstances, and perhaps only a self-declaration of
    the Fullard-Leo family’s own unwarranted belief they were the owners of Kingman Reef.
    With regard to the negotiations to buy Kingman Reef in the 1990s, the record indicates
    that Mr. Savio, the Fullard-Leo family’s agent, represented to TNC and FWS that the
    Fullard-Leo family owned Kingman Reef, which in fact was not the case. Defendant
    acknowledges that someone in the FWS may have mistakenly temporarily believed that
                                                78
    the Fullard-Leo family held title to Kingman Reef at some point in the 1990s, but that
    after further research by TNC’s attorney, FWS concluded that Kingman Reef was not
    privately owned. See also Kingman Reef Atoll Investments, L.L.C. v United States, 541
    F.3d at 1201 (“The district court found that KRAI presented evidence only ‘of confusion
    and mistake on the part of some government employees,’ as to whether the United
    States ultimately possessed an ownership interest in Kingman Reef.”). The record has
    not established that a duly authorized person in the federal government ever
    acknowledged the Fullard-Leo family’s claim of title to Kingman Reef.
    
            As noted above, the amount of uncertainty regarding ownership of Kingman Reef
    and the many years of uncertainty or resolution of the matter by the federal government
    is unfortunate. Blame does not lie solely with the United States government, as the
    Fullard-Leo family could have, and should have, taken appropriate action to perfect title
    or quiet title to Kingman Reef decades ago and, certainly, after Executive Order No.
    6935 was issued in 1934 and the Navy explicitly rejected the family’s ownership claim in
    1938. Regardless, plaintiff cannot establish the four elements necessary for the court to
    apply equitable estoppel against defendant. Plaintiff has not demonstrated that any
    government employee knew that the defendant owned the atoll, but acted with an
    intention to deceive plaintiff or any of its predecessors-in-interest, nor that plaintiff’s
    predecessors-in-interest were ignorant of the true facts regarding ownership of Kingman
    Reef, and relied on any government employee to their injury. See Ebeyer v. United
    States, 114 Fed. Cl. at 550-51. Nor does the record include evidence of conduct on the
    part of the government that would rise to the level of “affirmative misconduct,” so as to
    warrant the application of equitable estoppel against the government in this case. For
    these reasons, plaintiff’s equitable estoppel argument fails.
    
    Lost Grant
    
           Plaintiff further argues that if defendant extended sovereignty over Kingman Reef
    in 1922, and assuming that Kingman Reef then became public lands of the Territory of
    Hawaii, the lost grant doctrine should apply in favor of KRAI’s predecessors-in-interest.
    Citing United States v. Fullard-Leo, 66 F. Supp. at 786 and United States v. Chavez,
    
    175 U.S. 509
    , 522 (1899), plaintiff asserts that, under the lost grant doctrine, plaintiff
    must show only a “legal possibility of the issuance of a grant,” in addition to “‘proof of an
    adverse, exclusive, and uninterrupted possession for the statutory period.’” Plaintiff
    argues, albeit without citation, that fee title to Kingman Reef "was in the Territory [of
    Hawaii] in fee, subject to its being defeated, by the taking for federal purposes.” Plaintiff
    maintains that there was certainly a legal possibility of a grant conveying Kingman Reef
    from the Territory of Hawaii to KRAI's predecessors-in-interest, and that KRAI’s
    predecessors-in-interest occupied Kingman Reef, as well as paid taxes on it. Under
    similar circumstances, plaintiff argues, the lost grant doctrine has been applied against
    the State.
    
          With respect to the lost grant doctrine, defendant argues, again, that the court
    lacks jurisdiction to consider this equitable claim and that plaintiff’s argument is
    premised on an assumption that Kingman Reef became public lands of the Territory of
    
                                                 79
    Hawaii in 1922, an assumption which defendant claims has no valid basis. According to
    defendant, Kingman Reef has never been considered part of Hawaii, either when it was
    a Territory or a State. Defendant cites an 1898 report to Congress from the Hawaiian
    Commission, which listed all of the islands considered to be part of Hawaii's territory at
    the time, and which included Palmyra Atoll, but not Kingman Reef. (citing U.S. Senate,
    Report of the Hawaiian Commission, S. Doc. No. 16, 55th Cong., at 4 (3d Sess. 1898)
    (available at http://archive.org/stream/reportofhawaiian00unit#page/n7/mode/2up)).
    Defendant also emphasizes that, when Hawaii became a state in 1959, Congress
    stated expressly that the State “shall not be deemed to include . . . Kingman Reef,
    together with [its] appurtenant reefs and territorial waters.” Act of March 18, 1959, Pub.
    L. No. 86-3, 73 Stat. 4, sec. 2. According to defendant, these documents demonstrate
    that Kingman Reef never was considered part of Hawaii. In addition, defendant argues
    that the lost grant doctrine requires possession of the property for at least twenty years,
    which plaintiff cannot establish because their claim originates from Mr. Thurston’s
    activities in 1922, but the United States had taken possession over Kingman Reef by
    1934, or at the least, 1938.
    
           As indicated above, the lost grant doctrine is a means for a petitioner to quiet title
    to land that has been held adversely to the sovereign for a long period of time, by
    "recogniz[ing] that lapse of time may cure the neglect or failure to secure the proper
    muniments of title, even though the lost grant may not have been in fact executed."
    United States v. Fullard-Leo, 331 U.S. at 270 (citing United States v. Chavez, 
    159 U.S. 452
     (1895)). The Supreme Court has held that
    
           it is the general rule of American law that a grant will be presumed upon
           proof of an adverse, exclusive, and uninterrupted possession for twenty
           years, and that such rule will be applied as a presumptio juris et de jure,
           wherever, by possibility, a right may be acquired in any manner known to
           the law.
    
    United States v. Pendell, 185 U.S. at 199-200 (citations omitted). Thus, if a party can
    demonstrate adverse, exclusive, and uninterrupted possession for twenty years against
    the sovereign, a conclusive presumption applies that the party has title to the property.
    The Ninth Circuit indicated in the United States' quiet title action regarding Palmyra Atoll
    that "[t]he presumption of a lost grant is not necessarily restricted to situations in which
    a court or jury may believe there actually was a grant. Grants are often presumed for
    the mere purpose and from a principle of quieting possession." United States v. Fullard-
    Leo, 156 F.2d at 758 (citing generally to United States v. Chavez, 
    175 U.S. 509
     and
    Fletcher v. Fuller, 
    120 U.S. 534
    ).
    
           The court agrees with defendant, however, that the lost grant doctrine is not
    applicable in the above captioned case. Plaintiff acknowledges that its lost grant
    argument is premised on the assumption that Kingman Reef became part of the public
    lands of the Territory of Hawaii when Mr. Thurston annexed the atoll in 1922. There is
    no evidence in the record to support that assumption. A 1934 memorandum from the
    
    
    
                                                 80
    Department of State title "Status of Certain Guano and Other Islands in the Pacific"
    addressed sovereignty over Kingman Reef and stated:
    
           On July 15, 1922, the Island of Palmyra Copra Company, a Hawaiian
           Corporation, notified the State Department that it had annexed Kingman’s
           Reef in the name of the United States and for its own use on May 10,
           1922.
    
           No other action appears to have been taken with respect to the
           incorporation of the Island into the territory of Hawaii or the United
           States. . . .
    
    This memorandum suggests that Kingman Reef had not been recognized as part of the
    Territory of Hawaii as of 1934. Documents cited to by the defendant also show that
    Kingman Reef was not considered part of Hawaii immediately before its annexation by
    the United States as a Territory in 1898, nor was it considered part of Hawaii when it
    was admitted as a State in 1959. U.S. Senate, Report of the Hawaiian Commission, S.
    Doc. No. 16, 55th Cong., at 4 (3d Sess. 1898) (available at
    http://archive.org/stream/reportof hawaiian00unit#page/n7/mode/2up); Act of March 18,
    1959, Pub. L. No. 86-3, 73 Stat. 4, sec. 2. In fact, it appears that the Fullard-Leo family
    attempted to sell Kingman Reef to the State of Hawaii in the 1990s, an indication that
    Kingman Reef was not already considered part of the State. Plaintiff’s best argument
    that Kingman Reef ever became part of the Territory of Hawaii is that the Fullard-Leo
    family paid taxes on the atoll to the Territory of Hawaii from 1923 until 1959, and that
    the Territory of Hawaii apparently accepted the payments. Even if title to Kingman Reef
    was in fee to the Territory of Hawaii, it was “subject to its being defeated, by the taking
    for federal purposes.” The federal government took Kingman Reef for a federal purpose,
    however, in 1934 with the issuance of Executive Order No. 6935. Even assuming that
    the Territory of Hawaii ever held title to Kingman Reef, plaintiff acknowledges that the
    United States clearly asserted federal sovereignty over the atoll in 1934, just twelve
    years after plaintiff claims its predecessors-in-interest took possession of the atoll.
    
            Moreover, plaintiff cannot establish that its predecessors-in-interest held adverse,
    exclusive, and uninterrupted possession of Kingman Reef for twenty years against the
    sovereign. Assuming that Mr. Thurston's annexation of the atoll in 1922 established
    possession for the Copra Co., which conveyed its interest to Ellen Fullard-Leo shortly
    thereafter, the United States proclaimed Kingman Reef under its "control and
    jurisdiction" twelve years later and, in 1938, or sixteen years after the annexation,
    explicitly rejected the Fullard-Leo family's claim to own the atoll. In addition, the United
    States granted Pan Am a permit to use Kingman Reef for its trans-Pacific flights in 1935
    and Pan Am’s Clipper seaplane made three overnight stops at the atoll in 1937 and
    1938. The Fullard-Leo family's use of the island, therefore, was not exclusive for a
    twenty-year period, but rather a United States permittee also made use of Kingman
    Reef before twenty years had run. The court finds no support for applying a
    presumption that the Territory of Hawaii conveyed title in Kingman Reef to plaintiff's
    predecessors-in-interest. Plaintiff's lost grant argument also fails.
    
                                                81
    Adverse Possession
    
             Finally, plaintiff argues that, if the court finds that defendant held title to Kingman
    Reef beginning in 1922, KRAI has established full title through adverse possession.
    Plaintiff asserts that adverse possession was permitted against the United States in
    territories, like Hawaii, prior to March 27, 1934, as evidenced by 48 U.S.C. § 1489,
    which states, “[o]n and after March 27, 1934, no prescription or statute of limitations
    shall run, or continue to run, against the title of the United State to lands in any territory
    or possession or place or territory under the jurisdiction or control of the United
    States. . . .” 48 U.S.C. § 1489 (1934). According to plaintiff, the statute of limitations for
    an adverse possession claim in the Territory of Hawaii from 1898 to 1972 was ten
    years, and possession had to be “‘actual, notorious, exclusive, and continuous’” for the
    statutory period in order for adverse possession to apply. According to plaintiff, because
    KRAI and its predecessors-in-interest can establish each of those elements, KRAI
    should be found to have title to Kingman Reef through adverse possession.
    
           Defendant responds that plaintiff’s adverse possession claim fails for three
    reasons. First, plaintiff’s adverse possession claim amounts to a quiet title claim over
    which this court lacks jurisdiction. Second, KRAI has already lost a quiet title claim in
    the District Court of Hawaii and, therefore, KRAD should not be able to circumvent that
    decision by asserting adverse possession over Kingman Reef in this court. Third,
    defendant argues that the United States cannot lose title to property through adverse
    possession and, while plaintiff attempts to get around this limitation by arguing that its
    predecessors in interest had acquired title to Kingman Reef from the Territory of Hawaii,
    defendant maintains that Kingman Reef was never part of the Territory of Hawaii.
    
            Like its lost grant argument, plaintiff's adverse possession claim also depends on
    accepting the premise that Kingman Reef was part of the Territory of Hawaii in 1922
    and, as discussed above, the court finds no support for that assumption. Moreover, the
    court would be hard-pressed to find that the Copra Co.'s and Fullard-Leo family's
    possession of Kingman Reef between 1922 and 1932 was “actual, notorious, exclusive,
    and continuous.” As discussed above, the standard for what constitutes possession is
    flexible depending on the nature of the property. See United States v. Fullard-Leo, 331
    U.S. at 279-80 (“The sufficiency of actual and open possession of property is to be
    judged in the light of its character and location.”). There is no evidence in the record,
    however, that the Fullard-Leo family visited, surveyed, or made any use of Kingman
    Reef in the decade after Mr. Thurston's annexation. Mr. Thurston visited the atoll again
    in 1924, and as a guest of the United States Navy in 1926, but plaintiff has not alleged
    that he was acting as the agent of the Copra Co. or Fullard-Leo family on those later
    visits. Leslie Fullard-Leo requested that a United States Captain survey Kingman Reef
    in 1931, but it does not appear that the Captain acquiesced or that Leslie Fullard-Leo
    intended to go along for the surveying visit. The first documented use of Kingman Reef
    appears to be that of Pan Am in 1937 and 1938, as a stopover point for the Clipper. Mr.
    Savio, the Fullard-Leo family's agent, alleges that he and members of the Fullard-Leo
    family have accessed the island numerous ties in order to survey it, but not before the
    
                                                  82
    1940s. Because there is no evidence that Kingman Reef was part of the Territory of
    Hawaii in 1922, nor that the Fullard-Leo family's use of the atoll would constitute
    “‘actual, notorious, exclusive, and continuous’” possession, plaintiff's adverse
    possession claim also fails.
    
    Statute of Limitations
    
            In its cross-motion for summary judgment, defendant reasserts its argument that
    plaintiff’s takings claim is barred by 28 U.S.C. § 2501, which establishes a six-year
    statute of limitation for actions brought against the United States in this court. See 28
    U.S.C. § 2501. Defendant argues that plaintiff’s takings claim accrued between 1934
    and 1938, falling well outside of the six-year statute of limitations.
    
          Pursuant to 28 U.S.C. § 2501, suits against the United States are subject to a
    general six-year statute of limitations:
    
           Every claim of which the United States Court of Federal Claims has
           jurisdiction shall be barred unless the petition thereon is filed within six
           years after such claim first accrues. . . . A petition on the claim of a
           person under legal disability or beyond the seas at the time the claim
           accrues may be filed within three years after the disability ceases.
    
    Id. “The six-year statute of limitations set forth in section 2501 is a jurisdictional
    requirement for a suit in the Court of Federal Claims.” John R. Sand & Gravel Co. v.
    United States, 
    457 F.3d 1345
    , 1354 (Fed. Cir.), reh'g en banc denied (Fed. Cir. 2006),
    aff'd, 
    552 U.S. 130
     (2008); see also Mildenberger v. United States, 
    643 F.3d 938
    , 945
    (Fed. Cir. 2011) (“Claims for compensation under the Tucker Act, which waived the
    sovereign immunity of the United States, are subject to a strict statute of limitations
    provision.” (citing Lehman v. Nakshian, 
    453 U.S. 156
    , 161 (1981) (“[L]imitations and
    conditions upon which the Government consents to be sued must be strictly observed,
    and exceptions thereto are not to be implied.”))); Schnell v. United States, 
    115 Fed. Cl. 102
    , 104-05 (2014); Ram Energy, Inc. v. United States, 
    94 Fed. Cl. 406
    , 409 (2010).
    
            The United States Court of Appeals for the Federal Circuit has indicated that a
    claim accrues “‘“when all events have occurred to fix the Government's alleged liability,
    entitling the claimant to demand payment and sue here for his money.”’” San Carlos
    Apache Tribe v. United States, 
    639 F.3d 1346
    , 1358-59 (Fed. Cir.) (quoting Samish
    Indian Nation v. United States, 
    419 F.3d 1355
    , 1369 (Fed. Cir. 2005) (quoting Martinez
    v. United States, 
    333 F.3d 1295
    , 1303 (Fed. Cir. 2003), cert. denied, 
    540 U.S. 1177
    (2004))), reh’g en banc denied (Fed. Cir. 2011); see also FloorPro, Inc. v. United States,
    
    680 F.3d 1377
    , 1381 (Fed. Cir. 2012); Mildenberger v. United States, 643 F.3d at 944-
    45; Hopland Band of Pomo Indians v. United States, 
    855 F.2d 1573
    , 1577 (Fed. Cir.
    1988); see also Eden Isle Marina, Inc. v. United States, 
    113 Fed. Cl. 372
    , 481 (2013);
    Brizuela v. United States, 
    103 Fed. Cl. 635
    , 639, aff’d, 492 F. App’x 97 (Fed. Cir. 2012),
    cert. denied, 
    133 S. Ct. 1645
     (2013)
    
    
    
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            Like other claims brought under the Tucker Act, takings claims typically accrue
    “‘only when all the events which fix the government's alleged liability have occurred and
    the plaintiff was or should have been aware of their existence.’” Casitas Mun. Water
    Dist. v. United States, 
    708 F.3d 1340
    , 1359 (Fed. Cir. 2013) (emphasis in original)
    (quoting Hopland Band of Pomo Indians v. United States, 
    855 F.2d 1573
    , 1577 (Fed.
    Cir. 1988)); see also Navajo Nation v. United States, 
    631 F.3d 1368
    , 1273-74 (Fed. Cir.
    2011) (“In general, a takings ‘claim first accrues when all the events have occurred
    which fix the alleged liability of the [government] and entitle the plaintiff to institute an
    action.’” (quoting Hopland Band of Pomo Indians v. United States, 855 F.2d at 1577
    (citing Fallini v. United States, 
    56 F.3d 1378
    , 1380 (Fed. Cir. 1995), cert. denied, 
    517 U.S. 1243
     (1996))); John R. Sand & Gravel Co. v. United States, 457 F.3d at 1355-56.
    “‘Therefore, a claim under the Fifth Amendment accrues when [the] taking action
    occurs.’” Navajo Nation v. United States, 631 F.3d at 1273-74 (brackets in original)
    (quoting Goodrich v. United States, 
    434 F.3d 1329
    , 1333 (Fed. Cir.), reh’g denied (Fed.
    Cir. 2006) (citations and internal quotation marks omitted)). For a physical taking, the
    act that causes the taking also causes the accrual of a takings claim. See Casitas Mun.
    Water Dist. v. United States, 708 F.3d at 1359 (citing Ingrum v. United States, 
    560 F.3d 1311
    , 1314 (Fed. Cir.) (“[A] claim alleging a Fifth Amendment taking accrues when the
    act that constitutes the taking occurs.”), cert. denied, 
    558 U.S. 878
     (2009)).
    
           In the above captioned case, plaintiff has the burden of proving that this court
    has subject matter jurisdiction over the takings claim and that the claim is timely. See
    McNutt v. Gen. Motors Acceptance Corp. of Ind., 
    298 U.S. 178
    , 189 (1936); Sanders v.
    United States, 
    252 F.3d 1329
    , 1333 (Fed. Cir. 2001); Alder Terrace, Inc. v. United
    States, 
    161 F.3d 1372
    , 1377 (Fed. Cir. 1998); Reynolds v. Army & Air Force Exch.
    Serv., 
    846 F.2d 746
    , 748 (Fed. Cir. 1988).
    
             Plaintiff alleges that the taking of its property interest without just compensation
    occurred on January 18, 2001, when the Secretary of the Interior signed Secretarial
    Order No. 3223, establishing the Kingman Reef National Wildlife Refuge. Plaintiff filed
    its original complaint in the above captioned case on December 2, 2006, within six
    years of the alleged taking. Defendant's argument seems to be that, if any taking ever
    occurred regarding Kingman Reef, it happened in the 1930s. A claim accrues for the
    purposes of Section 2501, however, “‘“when all events have occurred to fix the
    Government's alleged liability, entitling the claimant to demand payment and sue here
    for his money.”’” See, e.g., San Carlos Apache Tribe v. United States, 639 F.3d at
    1358-59 (quoting Samish Indian Nation v. United States, 419 F.3d at 1369 (quoting
    Martinez v. United States, 333 F.3d at 1303)). Plaintiff, KRAD, which only could have
    gained its alleged property interest to Kingman Reef on November 17, 2000, would not
    have been entitled to demand payment from defendant for any action which took place
    in the 1930s. The "events" which plaintiff argues "fix[ed] the Government's alleged
    liability" in this case were those surrounding the creation of the Kingman Reef National
    Wildlife Refuge on January 18, 2001. Because plaintiff's claim was filed within six years
    of that date, the statute of limitations had not expired and plaintiff's claim was timely,
    albeit baseless. Because plaintiff has failed to put forth evidence suggesting that it had
    a cognizable property interest in Kingman Reef at the time of the alleged taking,
    
                                                 84
    however, the court finds that defendant is entitled to judgment as a matter of law. See
    RCFC 56(a).
    
                                       CONCLUSION
    
           For the foregoing reasons, plaintiff's motion for summary judgment is DENIED.
    Defendant's cross-motion for summary judgment is GRANTED in its entirety. Plaintiff's
    complaint is DISMISSED with prejudice. The Clerk of Court shall enter JUDGMENT
    consistent with this opinion.
    
    
          IT IS SO ORDERED.
    
    
                                                       s/Marian Blank Horn
                                                       MARIAN BLANK HORN
                                                                 Judge
    
    
    
    
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