No. 06-828L

June 30, 2014

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KINGMAN REEF ATOLL 

DEVELOPMENT, L.L.C.,

Plaintiff,

v.

UNITED STATES, 

 

 Defendant.

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RCFC 56 Motions for Summary 

Judgment; Takings; Equitable 

Estoppel; Lost Grant; Adverse 

Possession; Statute of Limitations. 

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. 

O P I N I O N

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 
2

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. 
3

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 
4

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-
5

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 FullardLeo 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 KailuaKona, 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 
6

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 1103,2that 

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.” 
7

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 
8

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 
9

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 predecessorin-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. 

 
10

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 FullardLeo, 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. 
11

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 FullardLeo 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. 
12

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 
13

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 Simpson8and 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. 
14

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:
15

[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 
16

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.
17

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.
18

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 
19

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.
20

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 
21

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 
22

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. FullardLeo 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.
23

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 
24

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.
25

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.
26

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 
27

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 
28

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:
29

[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 
30

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 FullardLeo 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.
31

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.
32

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 
33

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.” 
34

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. 
35

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 StarBulletin, 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: 
36

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 
37

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] FullardLeo 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. 
38

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 
39

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.
40

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 
41

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 
42

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 

grant19 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. 

 
43

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.
44

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-ininterests 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).
45

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. 
46

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).
47

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 
48

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 
49

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 twopart 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 
50

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 
51

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 
52

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 FullardLeo 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)). 
53

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.
54

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.
55

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 
56

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.
57

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-
58

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:
59

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. 
60

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 
61

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 
62

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. 
63

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.
64

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 
65

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. FullardLeo 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
66

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 
67

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 FullardLeo 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 FullardLeo 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. 
68

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 FullardLeo 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.
69

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. 
70

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 FullardLeo 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.
71

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 FullardLeo 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.
72

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 FullardLeo 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 
73

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. 
74

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 
75

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. 
76

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 
77

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 
78

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 
79

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 
80

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. FullardLeo, 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 
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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. 
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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 
83

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)
84

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, 
85

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