Omnia, 261 U.S. at 511, 43 S.Ct. at 438. In NL Industries, Inc. v. United States, 839 F.2d 1578 (Fed. Cir.), cert. denied, 488 U.S. 820, 109 S.Ct. 63, 102 L.Ed.2d 41 (1988), we followed the holding of the Supreme Court in Omnia and held that "frustration of a business by loss of a customer was not a taking." 839 F.2d at 1579.

Huntleigh asserts that ATSA, by contrast, applied directly to the contracts between the airlines and Huntleigh, by illegalizing their subject matter. Huntleigh urges that Monongahela Navigation Co. v. United States, 148 U.S. 312, 13 S.Ct. 622, 37 L.Ed. 463 (1903), NL Industries, Inc. v. United States, 839 F.2d 1578 (Fed. Cir. 1988), and Cienega Gardens, compel the conclusion that ATSA did effect a taking of its property. Finally, Huntleigh claims that the Court of Federal Claims erred in its application of Kimball Laundry to the alleged taking of the going concern value and goodwill associated with its security screening business.

Nuclear Transport instead alleges the deprivation of property through tortious acts and argues that the Court of Claims lacks jurisdiction to review allegations of tortious government action. NL Indus, Inc. v. United States, 12 Cl. Ct. 391, 396 (1987), aff'd, 839 F.2d 1578 (Fed. Cir.), cert. denied, ___ U.S. ___, 109 S.Ct. 63, 102 L.Ed.2d 41 (1988). The constitutional tort which Nuclear Transport is alleging is that DOE denied it due process by violating the Atomic Energy Act. It is thus in actuality asserting a statutory claim in constitutional guise.

In each of these cases, the plaintiff failed to receive its expected compensation from private agreements as a results of the Government's actions. See Air Pegasus, 424 F.3d 1209-10; NL Indus. v. United States, 839 F.2d 1578, 1579 (Fed. Cir. 1988); Kearney Trecker, 688 F.2d 780 (Ct.Cl. 1982). In Air Pegasus, the Federal Circuit characterized the Omnia court's view on takings as finding a "significant difference between an injury to one's property interest and a taking of one's property interest."

In that case, the plaintiff did not have a compensable property interest in the physical plant and systems it had developed for transporting spent nuclear fuel, which were rendered valueless when a change in U.S. policy resulted in a moratorium on the license application of the reprocessing plant with which the plaintiff had contracted. 12 Ct. Cl. 391, 398 (1987), aff'd 839 F.2d 1578 (Fed. Cir. 1988), cert. denied 488 U.S. 820 (1988). The Court found in NL Industries that the regulatory scheme that allowed the agency to deny the license to the reprocessing plant was in place before the plaintiff entered the market.

We find the absence of a contract count in the complaint to be dispositive. One undoubtedly would be there if the existence of a contract right would be arguable, and one is present in the companion case, NL Industries v. United States, 839 F.2d 1578 (Fed. Cir. 1988), argued before the same panel the same day. Contract rights enforceable in the Claims Court include not only express contracts, but also contracts implied in fact. For example, in Padbloc Co. v. United States, 161 Ct. Cl. 369 (1963), the government was held to be liable to pay just compensation on an implied contract theory if it misappropriated and used intellectual property not amounting to a patent or copyright, and submitted under restrictive clauses for the purpose of making a sale.

It is well settled that property which is acquired, generated, and developed within a preexisting regulatory scheme which subjects the property to the deprivation complained of cannot constitute a taking provided the regulations are rationally related to a legitimate government interest. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1007-08, 104 S.Ct. 2862, 2875, 81 L.Ed.2d 815 (1984) (finding no taking where party was on notice of the conditions under which property interest may be affected); see also NL Industries, Inc. v. United States 12 Cl.Ct. 391, 400 (1987) (finding no taking when regulatory action affects property that is acquired while the regulatory system is in effect), aff'd, 839 F.2d 1578 (Fed. Cir.), cert. denied, 488 U.S. 820, 109 S.Ct. 63, 102 L.Ed.2d 41 (1988). For this reason, plaintiffs cannot assert successfully an unconstitutional taking.

That since the storage of UH was developed to service an industry subject to a pervasive regulatory scheme, any loss of business suffered as a result of defendants' alleged secret storage policy cannot support a Fifth Amendment claim. ( See N L Industries, Inc. v. United States, 12 Cl. Ct. 391 (1987), aff'd, 839 F.2d 1578 (Fed. Cir. 1988)); and 5.

Ultimately, the government's conduct in Omnia Commercial Co. frustrated the plaintiff's business expectations, i.e., a large profit flowing from the purchase of low-priced steel, but did not effect a taking. NL Indus., Inc. v. United States, 839 F.2d 1578, 1579 (Fed. Cir. 1988). In so holding, the Supreme Court recognized that the government "took over during the war railroads, steel mills, shipyards, telephone and telegraph lines, the capacity output of factories and other producing activities."