FSM SUPREME COURT APPELLATE DIVISION
Cite as FSM v. Kuo Rong 113, 22 FSM R. 515 (App. 2020)
FEDERATED STATES OF MICRONESIA,
Appellant/Cross-Appellee,
vs.
KUO RONG 113, a long line fishing vessel,
HUNG YAO CHANG (Captain of the fishing
vessel), SYU BEI-JING (Permit holder), and LUEN
THAI FISHING VENTURE, LTD., (Company),
Appellee/Cross-Appellants.
APPEAL CASE NO. Y1-2017
(Civil Action No. 2013-3001)
OPINION
Argued: August 26, 2019
Decided: March 23, 2020
BEFORE:
Hon. Dennis K. Yamase, Chief Justice, FSM Supreme Court
Hon. Beauleen Carl-Worswick, Associate Justice, FSM Supreme Court
Hon. Chang B. William, Specially Assigned Justice, FSM Supreme Court*
*Chief Justice, Kosrae State Court, Tofol, Kosrae
APPEARANCES:
For the Appellant:
Jonathan D. Buckner, Esq. (briefs)
Abigail J. Avoryie, Esq. (argued)
Assistant Attorneys General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941
For the Appellees:
Stephen V. Finnen, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941
* * * *
Issues of fact are reviewed under the clearly erroneous standard. FSM v. Kuo Rong 113, 22 FSM R. 515, 519 (App. 2020).
Issues that are questions of law are reviewed de novo. FSM v. Kuo Rong 113, 22 FSM R. 515, 519 (App. 2020).
An abuse of discretion occurs when: 1) the court's decision is clearly unreasonable, arbitrary, or fanciful; 2) the decision is based on an erroneous conclusion of law; 3) the court's findings are clearly erroneous; or, 4) the record contains no evidence on which the court could rationally have based its decision. FSM v. Kuo Rong 113, 22 FSM R. 515, 519 (App. 2020).
"Law of the case" refers to the principle that once issues are decided in a case, they will not be redetermined later in the same case. This is a policy relied on by courts out of concern for judicial economy and to avoid the confusion that would result if a court reversed its own decisions during the course of a case. In the absence of a statute, the phrase, "law of the case," as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power. FSM v. Kuo Rong 113, 22 FSM R. 515, 521 (App. 2020).
Under the law of the case doctrine, unless corrected by an appellate tribunal, a legal decision made at one stage of a civil or criminal case constitutes the law of the case throughout the pendency of the litigation. Strictly speaking, the doctrine is not implicated for interlocutory orders because they remain open to trial court reconsideration, and do not constitute the law of the case. FSM v. Kuo Rong 113, 22 FSM R. 515, 521-22 (App. 2020).
Violations of 24 F.S.M.C. 611(1) that are also violations of 24 F.S.M.C. 906(1) should be penalized as one violation under 24 F.S.M.C. 611(5) and that civil penalties should be assessed pursuant to section 24 F.S.M.C. 901(1) on a daily basis under 24 F.S.M.C. 901(2). The only exception to imposition of penalties under 24 F.S.M.C. 611(5) is an act that does not rise to the level of failure to install, maintain, or ensure transmission of information from a transponder, which is to intentionally feed information or data into a transponder which is not officially required or is meaningless, as set forth in 24 F.S.M.C. 611(4). Such an act is penalized under 24 F.S.M.C. 920. FSM v. Kuo Rong 113, 22 FSM R. 515, 524 & n.9 (App. 2020).
An act in violation of 24 F.S.M.C. 611(1) is the failure to maintain the transponder in good working order and the failure to ensure the transponder was transmitting required information or data continuously, accurately and effectively to the designated receiver. FSM v. Kuo Rong 113, 22 FSM R. 515, 525 (App. 2020).
A court judgment is not a vested property right or interest because a party has no absolute right to a trial court judgment; otherwise, an appeal would be futile. FSM v. Kuo Rong 113, 22 FSM R. 515, 525 (App. 2020).
Lawmakers have wide latitude to declare an offense and to exclude elements of knowledge and diligence from its definition. FSM v. Kuo Rong 113, 22 FSM R. 515, 525 (App. 2020).
Courts have no responsibility for the justice or wisdom of legislation, and no duty except to enforce the law as it is written, unless it is clearly beyond the lawmaking body's constitutional power. FSM v. Kuo Rong 113, 22 FSM R. 515, 526 (App. 2020).
Congress may enact a strict liability statute that penalizes multiple violations without any finding of overt acts to justify continuing violations. FSM v. Kuo Rong 113, 22 FSM R. 515, 526 (App. 2020).
24 F.S.M.C. 611(1) is a strict liability statute. The pertinent inquiry is whether there was compliance with the statute, and if not, during what time period. Whether continuing "acts" occurred to cause the failure to comply is irrelevant. When the defendants were in violation of 24 F.S.M.C. 611(1) on four consecutive days, the imposition of multiple penalties under 24 F.S.M.C. 901(2) is justified. FSM v. Kuo Rong 113, 22 FSM R. 515, 526 (App. 2020).
The only relevant question when evaluating a strict liability statute is whether there was compliance. A finding of discreet or overt acts in violation of the Marine Resources Act need not be established in order to find continuing violations under 24 F.M.S.C. 901(2). Thus, when the lack of compliance continued for four days, the court will impose penalties for each day of noncompliance. FSM v. Kuo Rong 113, 22 FSM R. 515, 526-27 (App. 2020).
FSM law does not recognize retroactive application of statutes without specific legislative instructions. FSM v. Kuo Rong 113, 22 FSM R. 515, 528 (App. 2020).
Courts observe a strict rule of construction against a statute's retrospective operation, and indulge in the presumption that a legislature intends the statutes it enacts, or amendments thereto, to operate prospectively only, and not retroactively. A contrary determination can be made only when the legislature's intention to make a statute retroactive is stated in express terms, or is clearly, explicitly, positively, unequivocally, unmistakably, and unambiguously shown. FSM v. Kuo Rong 113, 22 FSM R. 515, 528 (App. 2020).
When the later enacted public law is silent about whether sections 611(4) and 611(5) were retroactively repealed, the law in effect at the time of the violations will control the imposition of the penalty. FSM v. Kuo Rong 113, 22 FSM R. 515, 528 (App. 2020).
An issue not presented to and ruled upon by the trial court cannot properly come before the appellate division for review. The general rule is that on appeal a party is bound by the theory advanced in the trial court and cannot urge a ground for relief which was not presented there. An issue raised for the first time on appeal is waived. FSM v. Kuo Rong 113, 22 FSM R. 515, 528 (App. 2020).
* * * *
DENNIS K. YAMASE, Chief Justice:
This appeal arises from the trial court's imposition of penalties under 24 F.S.M.C. 920 for failure to comply with the Marine Resources Act of 2002. We vacate and set aside the trial court's decision regarding penalties and remand the action to the trial court for imposition of penalties under 24 F.S.M.C. 611(5). Our reasons follow.
This Appeal and Cross Appeal arise from the FSM Supreme Court Trial Division's Order, entered June 28, 2017 [hereinafter, "Trial Court (No. 2)"], assessing penalties pursuant to the Ruling on Cross-Motions for Summary Judgment [hereinafter, "Trial Court (No. 1)"] entered on March 25, 2015 [FSM v. Kuo Rong 113, 20 FSM R. 27 (Yap 2015)].
Kuo Rong 113 (collectively with other appellees "Kuo Rong"), a long line fishing vessel, was operating inside the FSM Exclusive Economic Zone (EEZ) between April 27, 2013 and April 30, 2013, inclusive, pursuant to an access agreement1 allowing domestic foreign fishing by permit. During this time, Kuo Rong did not ensure that the designated receiver of transponder communications, the Forum Fisheries Agency (FFA), received transmissions from its transponder in violation of 24 F.S.M.C. 611(1)(c). The transponder aboard Kuo Rong was not sending the required transmissions because Kuo Rong failed to maintain the transponder in good working order, in violation of 24 F.S.M.C. 611(1)(b). Violations of 24 F.S.M.C. 611(1)(b) and (c) are penalized under 24 F.S.M.C. 611(5).
Failure to comply with sections 24 F.S.M.C. 611(1)(b) and (c) also constitutes a violation of an access agreement under 24 F.S.M.C. 906(1)(c). Violations of 24 F.S.M.C. 906(1)(c) are penalized under 24 F.S.M.C. 920.
A violation of Title 24, the Marine Resources Act of 2002, is subject to a civil penalty under 24 F.S.M.C. 901(1). Continuing violations of the Marine Resources Act are subject to daily penalties for each violation, including violations of 24 F.S.M.C. 611(1) and 24 F.S.M.C. 906(1).
After hearing on June 28, 2017, Trial Court (No. 2) entered Judgment assessing $175,000 in penalties against the defendants for four (4) days of violations of 24 F.S.M.C. 906(1), pursuant to 24 F.S.M.C. 920.
Appellant (hereinafter, "FSM") filed a Notice of Appeal on July 31, 2017. Appellees Kuo Rong filed their Notice of Appeal on August 16, 2018.
The issues on appeal are the following:
A. Whether Trial Court (No. 2) erred when it failed to impose penalties under 24 F.S.M.C. 611(5) for the Defendants' violations of 24 F.S.M.C. 611(1)?
B. Whether it would violate Kuo Rong's due process rights to remand the case with instructions to impose penalties under 24 F.S.M.C. 611(5)?
C. Whether the legal findings of the trial court were erroneous conclusions of law?
D. Whether the factual findings of the trial court supported their legal decision?
E. Whether it was an error of law to implement a penalty for four separate days under 24 F.S.M.C. 901(2) when there was only one action taken that violated the statute, and/or to deem the acts a continuing violation?
F. Whether penalties should be assessed pursuant to Public Law No. 19-169?
Issues of fact are reviewed under the clearly erroneous standard on appeal. Pohnpei v. AHPW, Inc., 14 FSM R. 1, 14 (App. 2006); George v. Nena, 12 FSM R. 310, 313 (App. 2004).
On appeal, issues which are questions of law are reviewed de novo. M/V Kyowa Violet v. People of Rull ex rel. Mafel, 16 FSM R. 49, 58 (App. 2008); Albert v. George, 15 FSM R. 574, 579 (App. 2008).
An abuse of discretion occurs when: (1) the court's decision is clearly unreasonable, arbitrary, or fanciful; (2) the decision is based on an erroneous conclusion of law; (3) the court's findings are clearly erroneous; or, (4) the record contains no evidence on which the court rationally could have based its decision. Arthur v. FSM Dev. Bank, 16 FSM R. 653, 657-58 (App. 2009).
A. Trial Court (No. 2) should have imposed penalties under 24 F.S.M.C. 611(5) for Kuo Rong's violations of 24 F.S.M.C. 611(1).
1. The Law
Title 24 of the FSM Code, the Marine Resources Act of 2002, provides in pertinent part as follows:
§ 611. Transponders required.
(1) The Authority [NORMA] may require, as a condition of fishing in the exclusive economic zone, that the operator of any vessel: (a) install on such vessel, at its own expense, a transponder approved by the Authority; (b) maintain such transponder in good working order at all times while in the fishery waters or such other area as may be agreed or designated; and (c) ensure that any information or data required by the Authority to be transmitted by the transponder is transmitted continuously, accurately and effectively to the designated receiver
. . .
(4) No person shall intentionally, recklessly or unintentionally destroy, damage, render inoperative or otherwise interfere with a machine aboard a vessel which
automatically feeds or inputs information or data into a transponder, or intentionally feed or input information or data into a transponder which is not officially required or is meaningless.
(5) Any person who violates subsection (1) or subsection (4) of this section, by failing to install, maintain, or ensure the transmission of information from a transponder as required, is subject to a civil penalty of not less than $100,000 and not more than $500,000.
§ 901. Civil penalties.
(1) Any person who is found by the Supreme Court of the Federated States of Micronesia in a civil proceeding to have committed an act prohibited by this subtitle shall be liable to the Federated States of Micronesia for a civil penalty.
(2) Each day of a continuing violation shall constitute a separate offense, for which a separate penalty shall be assessed . . .
§ 906. Prohibited acts-general.
(1) It is a violation of this subtitle for any person to: (a) violate any provision, condition or requirement of a permit or license issued pursuant to this subtitle; (b) violate any provision of a regulation promulgated pursuant to this subtitle; (c) violate any provision, condition or requirement of an access agreement, including the minimum terms required in section 404 of chapter 4 of this subtitle and any agreement or arrangement implementing a multilateral access agreement; or (d) pursuant to section 115 of chapter 1 and section 407(1)(b) of chapter 4 of this subtitle.
(2) Any person who has committed an act in violation of subsection (1) of this section regarding: (a) serious misreporting of catch; (b) fishing in a closed area; (c) fishing after attaining quota; (d) directed fishing for a stock for which fishing is prohibited; (e) using prohibited fishing gear; or (f) falsifying or concealing the markings, identity or registration of a fishing vessel shall be subject to a civil penalty of not less than $100,000 and not more than $500,000.
§ 920. Penalties for other violations of this subtitle.
Any person who commits an act in violation of any provision of this subtitle, for which no civil penalty is otherwise specified in this chapter or the preceding chapters, shall be subject to a civil penalty of not less than $40,000 and not more than $100,000.
2. Issues
The substance of the parties' disagreement is whether penalties should be imposed under 24 F.S.M.C. 611(5) or 24 F.S.M.C. 920 and whether the penalties should be assessed per day pursuant to 24 F.S.M.C. 901(2).2
The FSM's position is that the sanctions should be levied under the penalty provision of 24 F.S.M.C. 611(5)3 and that sanctions should be assessed for each of the four days of the violations under section 901(2).
Kuo Rong's position is that penalties, if cumulative, should be assessed under 24 F.S.M.C. 920.4
3. The Law of the Case Doctrine
Trial Court (No. 2) determined that it was bound by the Law of the Case to impose penalties pursuant to the Ruling entered by Trial Court (No. 1) on March 25, 2015.
"Law of the case" refers to the principle that once issues are decided in a case, they will not be redetermined later in the same case. This is a policy relied on by courts out of concern for judicial economy and to avoid the confusion that would result if a court reversed its own decisions during the course of a case. "In the absence of statute the phrase, 'law of the case,' as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power."
Heirs of Wakap v. Heirs of Obet, 15 FSM R. 450, 453 (Kos. S. Ct. Tr. 2007) (quoting Messinger v. Anderson, 225 U.S. 436, 444, 32 S. Ct. 739, 740, 56 L. Ed. 1152, 1156 (1912)).
Berman v. FSM Nat'l Police, 19 FSM R. 118, 126 (App. 2013).
The FSM argues that Trial Court (No. 2) could reconsider the Ruling on Summary Judgments entered by Trial Court (No. 1), as a Summary Judgment, which is interlocutory5 and an order thereon is not binding on later court decisions. We concur pursuant to the following case law:
Under the law of the case doctrine, "unless corrected by an appellate tribunal, a legal decision made at one stage of a civil or criminal case constitutes the law of the case throughout the pendency of the litigation." Flibotte v. Pa. Truck Lines, Inc., 131 F.3d 21, 25 (1st Cir. 1997). Strictly speaking, the doctrine was not implicated in this case because "interlocutory orders . . . remain open to trial court reconsideration, and do not constitute the law of the case." Harlow v. Children's Hosp., 432 F.3d 50, 55 (1st Cir.2005) (internal quotation marks and alteration omitted); see Fed.R.Civ.P. 54(b) (absent an entry of a final judgment, "any order or other decision, however designated, that adjudicates fewer than all the claims . . . may be revised at any time before the entry of
a judgment adjudicating all the claims"). "We have sometimes said—instead of an outright statement that law of the case is not applicable to interlocutory orders at all—that law of the case permits a lower court to review prior interlocutory orders as long as that review is not an abuse of discretion." Harlow, 432 F.3d at 55.
Latin Am. Music Co. v. Media Power Grp., Inc., 705 F.3d 34, 40 (1st Cir. 2013). See also American Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 515 (4th Cir. 2003) ("Law of the case is just that however, it does not and cannot limit the power of a court to reconsider an earlier ruling. The ultimate responsibility of the federal courts, at all levels, is to reach the correct judgment under law."); City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 888 (9th Cir. 2001) (citing United States v. Houser, 804 F.2d 565, 567 (9th Cir.1986) ("The [law of the case] doctrine simply does not impinge upon a district court's power to reconsider its own interlocutory order provided that the district court has not been divested of jurisdiction over the order.").
Accordingly, to the extent Trial Court (No. 2) disagreed with the Ruling of Trial Court (No. 1), it could have re-determined that Ruling.
4. Interpretation of Ruling
The FSM argues that Trial Court (No. 2) "improperly relied on the law of the case doctrine by incorrectly interpreting the trial court's [Trial Court (No. 1)] prior ruling." Pl. Reply Br. at 3. We do not find this reasoning persuasive.
However, we find that Trial Court (No. 2) misinterpreted the Ruling on Motions for Summary Judgment in two respects.
First, Trial Court (No. 2) relied on the following dicta in reaching its decision:
Defendants rightly contend in their motion for summary judgment that the offenses alleged in the complaint are not among those specified in section 906(2), and so the appropriate penalty provision for the alleged violation of 906(1)(c) is to be found in the catch-all provision of section 920.
FSM v. Kuo Rong 113, 20 FSM R. 27, 33 (Yap 2015).
This language is contained in a section of the Ruling in which Trial Court (No. 1) discusses the propriety of permitting the FSM to amend its complaint to remove inapplicable allegations of egregious violations of the Marine Resources Act.6
However, the Ruling on Cross-Motions for Summary Judgment directs that penalties be assessed under 24 F.S.M.C. 611(5).
In the absence of clear legislative intent to impose cumulative penalties against a single violative act, the court will construe 24 F.S.M.C. 611(5), 906(1) and 920 to impose only one penalty for failure to comply with the integrated requirements imposed as a condition
of a permit or access agreement pursuant to 24 F.S.M.C. 611(1).
Kuo Rong 113, 20 FSM R. at 33 (emphasis added).
This reading of the Ruling on Cross Motions for Summary Judgment is consistent with the concluding section of the Ruling in which Trial Court (No. 1) states:
Defendants Hung Yao Chang, Syu Bei-jing, and Luen Thai Fishing Venture, Ltd. are jointly and severally liable for four (4) violations punishable under 24 F.S.M.C. 611(5), for failure to ensure effective transmission of required information from the transponder aboard the Kuo Rong 113 on each day between April 27, 2013 and April 30, 2013, inclusive.
Kuo Rong 113, 20 FSM R. at 34.
Second, Trial Court (No. 2) misconstrued the possible exception to imposition of penalties under 24 F.S.M.C. 611(5).
According to the FSM, the exception to penalties under 24 F.S.M.C. 611(5) is set forth in the italicized portion of the Ruling on Summary Judgments regarding section 611(4), which states:
"[n]o person shall intentionally, recklessly, or unintentionally destroy, damage, render inoperative, or otherwise interfere with a machine aboard a vessel which automatically feeds or inputs information or data into a transponder, or intentionally feed information or data into a transponder which is not officially required or is meaningless. [emphasis added] "Acts prohibited by the latter part of subsection (4) would not appear to fall under subsection (5), since intentionally feeding information or data into a transponder which is not officially required or meaningless would not appear to constitute a failure to ensure transmission of information from a transponder as required. Furthermore, Congress may have recognized that the language in the first part of subsection (4) penalizing an act that would "otherwise interfere with a machine . . ." is extremely broad. Congress would have reasonably intended to restrict to the scope of subsection (5) to only those acts of interference that would result in a failure to ensure transmission of information from a transponder as required. An act of interference that falls short of that standard would be penalized under the catch-all provision in 24 F.S.M.C. 920, and would be punishable by a lesser fine of between $40,000 and $100,000.
Kuo Rong 113, 20 FSM R. at 32.
In simpler terms, the FSM argues that Trial Court (No. 1) found that an example of an act that did not rise to the level of failure to install, maintain, or ensure transmission of information from a transponder would be to intentionally feed information or data into a transponder which is not officially required or is meaningless. Accordingly, the exception to 24 F.S.M.C. 611(1) that was found by Trial Court (No. 2) in section 906(1)(c) was not that intended by Trial Court (No. 1). We concur with this analysis.
Accordingly, Trial Court (No. 2) may have properly applied the law of the case; however, it imposed penalties based on a mistaken interpretation of the Ruling of Trial Court (No. 1). Regardless whether the law of the case applies, the following precedent binds Trial Court (No. 2).
5. Precedent
Two FSM court decisions control the imposition of penalties for violation of fishing vessel location transponder requirements: FSM v. Koshin 31, 16 FSM R. 350 (Pon. 2009)7 and FSM v. Kana Maru No. 1, 17 FSM R. 399 (Chk. 2011).8
Based on FSM v. Koshin 31 and FSM v. Kana Maru No. 1 and our findings here, we hold that violations of 24 F.S.M.C. 611(1) that are also violations of 24 F.S.M.C. 906(1) should be penalized as one violation under 24 F.S.M.C. 611(5)9 and that civil penalties should be assessed pursuant to section 24 F.S.M.C. 901(1) on a daily basis under 24 F.S.M.C. 901(2).
Our holding covers all violations of the Marine Resources Act of 2002 under Public Law 12-34, as set forth infra, and as modified by Public Law No. 20-169.10
B. It would not violate appellees' due process rights to remand the case with instructions to impose penalties under 24 F.S.M.C. 611(5).
Kuo Rong contends that the decision of Trial Court (No. 2) should be affirmed because reversing and remanding the case for imposition of penalties under 24 F.S.M.C. 611(5) would result in the assessment of higher penalties and violate its due process rights by depriving it of a "vested right or property interest."
The FSM acknowledges that remand for assessment of penalties under 24 F.S.M.C. 611(5) would result in higher penalties than those imposed by Trial Court (No. 2) under 24 F.S.M.C. 920; however, that would be a consequence of application of the correct penalty statute.
The court finds that Kuo Rong has failed to show that the Judgment entered by Trial Court (No. 2) represents a "vested property right or interest." A party has no absolute right to a judgment entered by a trial court; otherwise, as pointed out by the FSM, appeal would be futile.
C. The legal findings of the trial courts were not erroneous conclusions of law.
Kuo Rong contends that in order to impose multiple days of penalties under 24 F.S.M.C. 901(2) there should be a finding of multiple "acts" prohibited by the Marine Resources Act.11 And, "if there is no finding that the [sic] section 901(2) imposes absolute liability for any violations, then the appellate court should either remand for the trial court to determine if there were any overt acts that could have remedied the situation or it should set aside the multiple penalties." Appellee's Br. at 30.
The FSM argues that this inquiry is irrelevant and that an application of 24 F.S.M.C. 901(2) is not dependent upon a "finding" of an "act" in violation of the Marine Resources Act. Rather the "act" was Kuo Rong's breach of 24 F.S.M.C. 611(1) by failing to maintain the transponder in good working order and by failing to ensure the transponder was transmitting required information or data continuously, accurately and effectively to the designated receiver." Cross-Appellee's Reply Br. at 10. We agree.
In United States case law, it has been held that, there is wide latitude in the lawmakers "to declare an offense and to exclude elements of knowledge and diligence from its definition." Chicago, Burlington, & Quincy Rwy. v. United States, 220 U.S. 559, 578, 31 S. Ct. 612, 617, 55 L. Ed. 582, 589 (1911). Burlington is a civil matter in which the court upheld assessment of civil penalties for violation of the Safety Appliance Acts of Congress, 45 U.S.C.A. § 51, which imposed an absolute duty to maintain railway car couplers in operative condition, with violators liable for a $100 penalty for each violation. The Burlington court stated that:
The Congress, not satisfied with the common law duty and its resulting liability, has prescribed duties by statute, the court had nothing to do but to ascertain and declare the meaning of the words set forth by Congress, . . . "There is no escape from the meaning of these words. Explanation cannot clarify them, and ought not to be employed to confuse them or lessen their significance." According to the court, if the obvious purpose of the legislature was to impose an absolute duty of care, the harshness of the consequences is no concern of the courts, [as] "They have no responsibility for the justice or wisdom of legislation, and no duty except to enforce the law as it is written, unless it is clearly beyond the constitutional power of the lawmaking body. . . ."
Id. at 574-75, 31 S. Ct. at 615, 55 L. Ed. at 588 (emphasis in original).
According to the rationale in the Burlington decision, the FSM Congress may enact a strict liability statute, such as the statute at issue here, which penalizes multiple violations without any finding of overt acts to justify continuing violations. Accordingly, we do not find Kuo Rong's argument persuasive.
D. The factual findings of the trial courts support their legal decision.
The facts are not in dispute. Kuo Rong was operating in the FSM EEZ and its transponder was turned on but was not transmitting communication or data required by the FFA, in violation of 24 F.S.M.C. 611(1)(b) and (c) and 24 F.S.M.C. 906(1)(c), on four consecutive days between April 27, 2013 through April 30, 2018.
Kuo Rong maintains that these factual findings do not support the legal decision of the trial courts imposing daily penalties for "continuing violations" under 24 F.S.M.C. 901(2) because there was only one uninterrupted "act" that violated the Marine Resources Act.
The FSM contends that 24 F.S.M.C. 901(2) is clear that each day Kuo Rong's transmitter failed to transmit data was a separate violation of the Act punishable under section 901(2).
24 F.S.M.C. 611(1) is a strict liability statute. The pertinent inquiry is whether there was compliance with the statute, and if not, during what time period. Whether continuing "acts" occurred to cause the failure to comply is irrelevant. Here, Kuo Rong was in violation of 24 F.S.M.C. 611(1) on four consecutive days. These facts justify the legal decision of the trial courts in imposing multiple penalties under 24 F.S.M.C. 901(2).
E. It was an error of law to implement a penalty for four separate days under 24 F.S.M.C. 901(2) when there was only one action taken that violated the statute.
We concur with the trial courts' determination that 24 F.M.S.C. 901(2) governs the imposition of penalties for Kuo Rong's violation of 24 F.M.S.C. 611(1) from April 27, 2013 through April 30, 2013, inclusive.
As noted above, the only relevant question when evaluating a strict liability statute is whether there was compliance. A finding of discreet or overt acts in violation of the Marine Resources Act need not be established in order to find continuing violations under 24 F.M.S.C. 901(2). Here, the lack of compliance continued for four days, resulting in imposition of penalties for each day of noncompliance. We find no error here.
F. Penalties should not be assessed pursuant to Public Law No. 19-169.
1. Public Law No. 19-169, 19th Cong., 5th Spec. Sess. (2017)
Kuo Rong argues that the provisions of 24 F.S.M.C. 611 as modified by Public Law 19-169 should control the imposition of penalties because it was the law in effect at the time of the penalty hearing.12 Id. The FSM contends that 24 F.S.M.C. 611, as set forth in Public Law No. 12-34 should control the imposition of penalties, as it was the law in effect at the time of the violations at issue in this case and was relied on by the trial courts. Pub. L. No. 12-34, 12th Cong., 2d Reg. Sess. (2002).
Under Public Law No. 19-169, 24 F.S.M.C. 611 included only a modified section 611(1)(a)–(d).13 The penalty provision in subsection (5) was omitted from the statute. Accordingly,
Kuo Rong asserts that penalties for violation of 24 F.S.M.C. 611 as set forth in Public Law No. 19-169 should be imposed under 24 F.S.M.C. 920, which is the penalty section for violations of code sections without defined penalties and was also the penalty section relied on by Trial Court (No. 2).
FSM law does not recognize retroactive application of statutes without specific legislative instructions:
Courts observe a strict rule of construction against a statute's retrospective operation, and indulge in the presumption that a legislature intends the statutes it enacts, or amendments thereto, to operate prospectively only, and not retroactively. A contrary determination can be made only when the legislature's intention to make a statute retroactive is stated in express terms, or is clearly, explicitly, positively, unequivocally, unmistakably, and unambiguously shown.
FSM v. GMP Hawaii, Inc., 17 FSM R. 555, 592 (Pon. 2011) (citation omitted).
Here, Public Law No. 19-169 is silent as to whether sections 611(4) and 611(5) were repealed retroactively. The concluding section of the law states that, "[t]his act shall become law upon approval by the President of the Federated States of Micronesia or upon its becoming law without such approval." Pub. L. No. 19-169, § 18, 19th Cong., 5th Spec. Sess. (2017).
We hold that the law in effect at the time of the violations should control the outcome of the penalty phase of this matter.
2. Waiver
The FSM argues that Kuo Rong's legal arguments regarding the applicability of Public Law No. 19-169 were not presented to either of the courts below, therefore, those issues may not be considered by the appellate court. We agree.
An issue not presented to and ruled upon by the trial court cannot properly come before the appellate division for review. FSM v. Moroni, 6 FSM R. 575, 579 (App. 1994); Loney v. FSM, 3 FSM R. 151, 154 (App. 1987); Loch v. FSM, 2 FSM R. 234, 236 (App. 1986).
The general rule is that on appeal a party is bound by the theory advanced in the trial court and cannot urge a ground for relief which was not presented there. An issue raised for the first time on appeal is waived. Hartman v. Bank of Guam, 10 FSM R. 89, 95 (App. 2001); Kosrae Island Credit Union v. Obet, 7 FSM R. 416, 419 (App. 1996); Nena v. Kosrae (I), 6 FSM R. 251, 254 (App. 1993); Paul v. Celestine, 4 FSM R. 205, 210 (App. 1990).
Based on the foregoing we reverse the trial court's June 28, 2017 judgment in Civil Action No. 2013-3001, vacate its order of penalties, and remand the matter to Trial Court (No. 2) with instructions to reinstate it on the court's trial calendar for further proceedings consistent with our opinion. Costs shall be taxed against the appellees Kuo Rong.
_______________________________Footnotes:
1 Federated States of Micronesia, Agreement for Domestic Based Foreign Fishing Vessels between The National Oceanic Resource Management Authority (NORMA) and Luen Thai Fishing Venture, Ltd. (an access agreement as set forth in 24 F.S.M.C. 102). See App. 0057–0088.
2 The parties agree and Trial Court (No. 1) found that Kuo Rong was in violation of 24 F.S.M.C. 611(1)(b) and (c). In addition, the FSM claims and the defendants did not contest that the failure of the transponder on board Kuo Rong constitutes a violation of an access agreement.
3 The minimum fine for a violation of 24 F.S.M.C. 611(5) is $100,000.
4 A minimum fine under 24 F.S.M.C. 920 is $40,000.
5 FSM Civ. R. 56(c) provides that, "A summary judgment, interlocutory in character, may be rendered on the issues of liability alone although there is a genuine issue as to the amount of damages."
6 Egregious violations include: 24 F.S.M.C. 906(2)(a) serious misreporting of catch; (b) fishing in a closed area; (c) fishing after attaining quota; (d) directed fishing for a stock for which fishing is prohibited; (e) using prohibited fishing gear; or (f) falsifying or concealing the markings, identity or registration of a fishing vessel.
7 In Koshin 31, a foreign fishing vessel subject to an access agreement was located in the FSM EEZ. The transponder, while functional, was not transmitting as it had not been rebooted after a repair to a generator. The captain was charged with one violation of 24 F.S.M.C. 611(1)(a) and (b) and assessed a penalty under 24 F.S.M.C. 611(5). The court assessed a penalty of $100,000. It found the violation to be negligent rather than intentional or reckless. FSM v. Koshin 31, 16 FSM R. 350 (Pon. 2009).
8 In Kana Maru No. 1, a foreign fishing vessel subject to an access agreement was located in the FSM EEZ. The Automatic Location Communicator (ALC) was turned on but the transmitter was turned off and the vessel did not appear on the Vessel Monitoring System (VMS). The court assessed a penalty of $100,000 under 24 F.S.M.C. 611(5) for the violation of section 611(1). The court found that the Kana Maru No. 1 did not have any history of prior offenses, was not acting in serious disregard of conservation and management measures and was not fishing at the time of the violation. The court assessed a separate penalty of $40,000 under 24 F.S.M.C. 920 for violation of a fishing permit regulation per 24 F.S.M.C. 906(1). FSM v. Kana Maru No. 1, 17 FSM R. 399, 406 (Chk. 2011).
9 The only exception to imposition of penalties under 24 F.S.M.C. 611(5) is an act that does not rise to the level of failure to install, maintain, or ensure transmission of information from a transponder, which is to intentionally feed information or data into a transponder which is not officially required or is meaningless, as set forth in 24 F.S.M.C. 611(4). Such an act is penalized under 24 F.S.M.C. 920.
10 Public Law No. 20-169 (20th Cong., 2019) states in pertinent part:
§ 611. Transponders required.
(1) The Authority may require, as a condition of fishing in the exclusive economic zone, that the operator of any vessel:
(a) install on such vessel, at its own expense, a transponder approved by the Authority;
(b) maintain such transponder in good working order at all times during the validity of a permit
(c) consent to the monitoring of the transponder by the Authority in all waters and at all times during the period of validity of the permit; and
(d) ensure that any information or data required by the Authority to be transmitted by the transponder is transmitted continuously, accurately and effectively to the designated receiver . . .
(4) No person shall intentionally, recklessly or unintentionally destroy, damage, render inoperative or otherwise interfere with a machine aboard a vessel which automatically feeds or inputs information or data into a transponder, or intentionally feed or input information or data into a transponder which is not officially required or is meaningless.
(5) Any person who violates subsection (1) or subsection (4) of this section, by failing to install, maintain, or ensure the transmission of information from a transponder as required, is subject to a civil penalty of not less than $100,000 and not more than $500,000.
(emphasis added).
11 § 901. Civil penalties.
(1) Any person who is found by the Supreme Court of the Federated States of Micronesia in a civil proceeding to have committed an act prohibited by this subtitle shall be liable to the Federated States of Micronesia for a civil penalty
24 F.S.M.C. 901 (emphasis added).
12 The following are the relevant dates with respect to Kuo Rong's argument:
From April 27- 30, 2013, the defendants were in the FSM EEZ in violation of 24 F.S.M.C. 611(1) and F.S.M.C. 906(1), as set forth in Public Law No. 12-34. Pub. L. No. 12–34, 12th Cong., 2d Reg. Sess. (2002). During this time, section 611 included subsections (1)–(5).
On March 25, 2015, the Ruling on Cross–Motions for Summary Judgment was entered.
On April 18, 2017, Public Law No. L 19–169 was signed into law. Public Law No. 19-169 amended 24 F.S.M.C. 611 to include only an amended version of section 611(1) and effectively deleted sections 611(2)–(5) by failing to restate these sections in the amended version. Pub. L. No. 19-169, 19th Cong., 5th Spec. Sess. (2017).
On June 28, 2017, the penalty hearing occurred in the trial court.
On March 26, 2019, Public Law No. 20-169 was signed into law. Public Law No. 20-169 amended 24 F.S.M.C. 611 to reinsert sections 611(2) – (5). Pub. L. No. 20-169, 20th Cong., 7th Spec. Sess. (2019).
13 Public Law No. 19-169 amended Title 24, as follows:
§ 611. Transponders required.
(1) The Authority may require, as a condition of fishing in the exclusive economic zone, that the operator of any vessel:
(a) install on such vessel, at its own expense, a transponder approved by the Authority;
(b) maintain such transponder in good working order at all times during the validity of a permit
(c) consent to the monitoring of the transponder by the Authority in all waters and at all times during the period of validity of the permit; and
(d) ensure that any information or data required by the Authority to be transmitted by the transponder is transmitted continuously, accurately and effectively to the designated receiver.
24 F.S.M.C. 611.
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