FSM 6 Intrm. 594-603

Immediately after removing the case, defendants requested that this Court hold a hearing to determine whether probable cause existed to seize the Vessel. In response, the State of Pohnpei filed a motion requesting that the Court abstain from hearing this case and remand the matter back to state court. On November 10, 1994, this Court heard oral argument on Pohnpei State's Motion to Abstain. During the course of oral argument on November 10, 1994, and at a prior hearing on October 28, 1994, the State of Pohnpei presented two alternative arguments in support of abstention and remand. First, the State argued that, pursuant to article IX, section 2(m) of the FSM Constitution, which authorizes the states to regulate natural resources within twelve miles of island baselines, the State has exclusive jurisdiction over this civil forfeiture action, and, thus, removal of this action to the National Court is jurisdictionally improper. In the alternative, the State argued that, even if this Court does have jurisdiction, such jurisdiction is concurrent with the state court, and, under the facts of this case, abstention is appropriate. Defendants, in contrast, argued that this Court has exclusive jurisdiction over admiralty and maritime cases pursuant to the grant of jurisdictional authority provided the National Courts in article XI, section 6(a) of the FSM Constitution; accordingly, this Court may not abstain from this case, which involves maritime matters, since it is the only judicial body empowered to hear the case.

On November 10, 1994, this Court issued a ruling from the bench in which the Court granted the State of Pohnpei's Motion to Abstain. The Court's ruling necessarily involves important and heretofore undecided issues regarding the constitutional allocation of admiralty and maritime jurisdiction between the state and National Courts. This Memorandum of Decision explains the basis of the Court's decision.

The State of Pohnpei alleges that on or about July 25, 1994, the Vessel was fishing within twelve miles of Mwoakilloa, an atoll which is part of the State of Pohnpei, without a valid state fishing permit, in violation of state law D.L. No. 4L-190-79, section (9)2. On August 1, 1994, the Vessel was seized and a criminal information was filed by the State of Pohnpei against the Vessel and its captain, master, owner, and operator.1 As of the date of this Court's ruling, the state criminal trial had commenced, but no verdict has been issued.

Subsequently, on August 9, 1994, the State of Pohnpei filed an in rem forfeiture action2 against the Vessel pursuant to state law D.L. No. 4L-190-79. The civil forfeiture action is premised on the same allegations giving rise to the criminal complaint. On September 26, 1994, defendants filed a removal petition with this Court, removing the civil action, but not the criminal case. Immediately thereafter, defendants filed a Petition for Hearing requesting that this Court exercise jurisdiction over the civil matter and conduct a hearing to determine whether probable cause existed to seize the Vessel on August 1, 1994.3 The State of Pohnpei responded by requesting this Court to abstain from exercising its jurisdiction over the case.

The State of Pohnpei's opposition to the removal of this action exposes tension between two articles of the FSM Constitution. Article XI, section 6(a), upon which defendants rely, grants the trial division of the FSM Supreme Court "original and exclusive jurisdiction" over admiralty and maritime cases.4 Defendants contend that section 6(a) explicitly grants the National Courts sole jurisdiction over all cases involving maritime matters, including cases involving state regulation of marine resources located within twelve miles of island baselines. In contrast, the State of Pohnpei relies upon article IX, section 2(m), which grants to the National Congress the express power to regulate marine resources beyond 12 miles from island baselines.5 Plaintiff argues that this provision, which implicitly grants the states authority to regulate natural resources within twelve miles of island baselines, necessarily confers upon state courts exclusive jurisdiction or, at the very least, concurrent jurisdiction over cases involving marine resources within twelve miles of island baselines. Therefore, the question to be addressed concerns the nature of the jurisdiction of the state and National Courts over cases involving the enforcement of regulations of marine resources located within twelve miles of island baselines.

Article IX, section 2(m) clearly and expressly grants the National Congress sole authority to regulate marine resources beyond twelve miles from island baselines. Conversely, authority which is not expressly delegated to the national government is reserved for the states. FSM Const. art. VIII, § 2. The absence of an express grant of authority to the national government to regulate marine resources within twelve miles of island baselines indicates the framers' intention that states have control over these resources.6 FSM v. Oliver, 3 FSM Intrm. 469, 473 (Pon. 1988). However, this state authority to regulate marine resources located within twelve miles of island baselines is primary but not exclusive.7 The State of Pohnpei asks this Court to interpret this nonexclusive constitutional grant of state regulatory authority as conferring exclusive jurisdiction upon state courts over all matters involving the regulation of marine resources within twelve miles of island baselines.

The Court declines the State's invitation, and finds that article IX, section 2(m) cannot be read as creating exclusive state court jurisdiction over marine resources located within twelve miles of island baselines. A grant of exclusive subject matter jurisdiction to state courts in commercial fishing cases would create a presently nonexistent and unnecessary constitutional conflict with the diversity jurisdiction granted this Court under article XI, section 6(b) of the FSM Constitution. Article XI, section 6(b) guarantees parties of diverse citizenship, who are before the state court, the option of invoking the National Court's jurisdiction. Flossman v. Truk, 3 FSM Intrm. 438, 440 (Truk S. Ct. Tr. 1988) (national courts have concurrent jurisdiction in disputes between states and citizens of foreign countries). A finding of state court exclusive jurisdiction over this suit would deny most commercial fishing boat defendants, including defendants in this case, the constitutional right to invoke this Court's diversity jurisdiction. Interpretations of the Constitution which result in the creation of unnecessary constitutional conflicts are to be avoided. See Tammow v. FSM, 2 FSM Intrm. 53, 57 (App. 1985) (instructing courts, where possible, to avoid interpretations of the FSM Constitution that would result in stripping constitutional clauses of their effect).

Further, an in rem civil forfeiture action against the Vessel falls within the scope of this Court's article IX, section 6(a) jurisdiction over admiralty and maritime. The scope of the National Courts' admiralty and maritime jurisdiction may be determined by reference to the admiralty and maritime jurisdiction of United States Federal Courts. Federal Business Dev. Bank v. S.S. Thorfinn, 4 FSM 367, 374 (App. 1990) ("[t]here is no reason to doubt that the similarity of the language between the United States Constitution and the FSM Constitution in this area is meant to confer the

same jurisdiction upon this Court as the United States federal courts have"); Weilbacher v. Kosrae, 3 FSM Intrm. 320, 324 (Kos. S. Ct. Tr. 1988) (recognizing usefulness of United States authorities in determining scope of FSM admiralty jurisdiction). According to United States maritime law, the core of admiralty jurisdiction is the protection of commercial shipping. Sisson v. Ruby, 497 U.S. 358, 362, 110 S. Ct. 2892, 2895, 111 L. Ed. 2d 292, 299 (1990). A civil seizure and forfeiture action involving a commercial fishing vessel directly and substantially impacts on commercial shipping. This Court therefore holds that the seizure and attempted forfeiture of a commercial vessel within FSM waters falls under the admiralty and maritime jurisdiction of the National Courts. See 1 Steven F. Friedell, Benedict on Admiralty § 224, at 14-41 (7th ed. 1988) ("All seizures made on navigable waters, under the laws of [trade, navigation, and taxation] of the United States, are matters of admiralty jurisdiction within the general grant of jurisdiction over `all civil cases of admiralty and maritime jurisdiction.'"); Federal Business Dev. Bank, 4 FSM at 374 ("[t]his [National] Court has jurisdiction over all cases which are maritime in nature.").

For the reasons stated above, this Court concludes that the implicit grant of regulatory authority given states in article IX, section 2(m) does not grant state courts exclusive jurisdiction over cases involving marine resources within twelve miles of island baselines. Rather, cases involving marine resources located within twelve miles of island baselines are within the jurisdiction of the National Courts.

The determination that state courts do not have exclusive jurisdiction over marine resources within twelve miles of island baselines, however, does not end this inquiry. Defendants argue that this Court has exclusive jurisdiction over this case, and, thus, abstention by this Court would be improper as there is no other judicial body empowered to hear this case. Defendants argue that article XI, section 6(a)'s grant of "original and exclusive" jurisdiction over admiralty and maritime cases dictates that all cases involving admiralty and maritime fall solely within the jurisdiction of this Court. At first glance, defendants' argument is appealing. If article XI, section 6(a) was the only constitutional provision dealing with this nation's marine space, the Court could not help but agree with defendants' interpretation. However, while defendants' blanket application of article XI, section 6(a) is appealing in its simplicity, defendants' interpretation ignores the effect of article IX, section 2(m) and would result in an outcome that is both procedurally awkward and constitutionally unacceptable.

Defendants present two related arguments for exclusive national court jurisdiction over cases involving regulation of marine resources within twelve miles of island baselines: 1) there is a need for a uniform body of maritime law, and the framers of the Constitution intended to create such a uniform body of law by placing exclusive jurisdiction over maritime matters in the national courts; and 2) article IX, section 2(m) merely grants states regulatory authority over marine resources, while article XI, section 6(a) places subject matter jurisdiction over maritime cases solely with the National Courts.

Defendants argue that the purpose of placing admiralty and maritime jurisdiction in the United States federal courts is to create a uniform and stable body of maritime law that will assist in the development of maritime commerce. Defendants argue that the grant of admiralty and maritime jurisdiction to the National Courts of this country also was meant to create a similar uniform body of

admiralty and maritime law within the FSM. Defendants particularly argue that the inclusion of the word "exclusive" in article XI, section 6(a), a word which is not present in the corresponding portion of the United States Constitution, was meant to emphasize the framers' intention that only the National Courts have jurisdiction over admiralty and maritime cases in order to ensure the development of a uniform body of maritime law. Defendants' conclude by noting that allowing state court jurisdiction over cases involving marine resources within twelve miles of island baselines would destroy this uniformity.

Defendants are correct that the grant of admiralty and maritime jurisdiction to U.S. federal courts was designed to assist in creating and maintaining a uniform body of maritime law within the United States. See Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, 43, 55 S. Ct. 31, 38, 79 L. Ed. 176, 185 (1934) ("The grant [of jurisdiction to federal courts] presupposed a `general system of maritime law' which was familiar to the lawyers and statesmen of the country, and contemplated a body of law with uniform operation."). Similarly, the grant of admiralty and maritime jurisdiction to this nation's National Courts likewise was intended to assist in the development of a uniform body of maritime law. See Federal Business Dev. Bank v. S.S. Thorfinn, 4 FSM Intrm. 367, 375 (App. 1990) ("Micronesia [is] an island nation with a heavy stake in fishing and shipping. Placing maritime jurisdiction in the national courts ensures the development and application of maritime law, an important feature of both national and international shipping and navigation systems.").

While the development of a uniform body of maritime law is one of the goals of article IX, section 6(a), section 6(a) must be read in the context of the entire FSM Constitution. Defendants' reliance on the United States and other outside authorities to justify this Court's exclusive jurisdiction over marine resources within twelve miles of island baselines in the name of uniformity, without first considering the unique provisions of the FSM Constitution, is misplaced.

Where distinctions exist between the Constitution of the Federated States of Micronesia and the United States Constitution or other foreign authorities, this Court must not hesitate to depart from foreign precedent and develop its own body of law. See Lonno v. Trust Territory (I), 1 FSM Intrm. 53, 69 n.1 (Kos. 1982). Article IX, section 2(m) has no counterpart in the United States Constitution. As such, the United States Constitution is of limited value in determining the effect of article IX, section 2(m) on this Court's admiralty and maritime jurisdiction. According to the Journal of the first Micronesian Constitutional Convention, article IX, section 2(m) is intended to recognize the Micronesian custom and tradition of local control over marine resources which are adjacent to land:

The constitutional grant of authority to individual states to regulate marine resources within twelve miles of island baselines inevitably results in a dissimilarity of regulation of marine resources located within and marine resources located beyond twelve miles of island baselines. If the framers of the Constitution had desired the development of a uniform body of maritime law regulating all of this nation's marine space, the Constitution would not have explicitly divided the FSM marine space into state and nationally regulated waters. The grant of authority to the states to regulate local

marine resources reflects a conscious decision on the part of the framers to favor the custom and tradition of local control over the development of a uniform maritime law. The constitutional choice to place control over local marine resources in the hands of the states, instead of creating uniform national control, greatly undermines the usefulness of the United States authorities cited by defendants in support of the need to develop a uniform body of admiralty and maritime law. See Tammow v. FSM, 2 FSM Intrm. 53, 57 (App. 1985) (instructing that clauses in the FSM Constitution which have no counterpart in the United States Constitution presumably reflect an intention to "select a road other than that paved by the United States Constitution").

The framers of the FSM Constitution decided to favor state control over marine resources within twelve miles of island baselines over the development of a uniform body of maritime law. The national courts have exclusive jurisdiction over national waters (i.e., waters beyond twelve miles from island baselines), an area which encompasses the vast majority of this nation's marine space. From this Court's exclusive jurisdiction over national waters, a uniform body of case law will develop governing all maritime and admiralty cases not involving marine resources located within twelve miles of island baselines.

Defendants also argue that article IX, section 2(m) merely gives the states legislative authority to regulate marine resources within twelve miles of island baselines, while article XI, section 6(a) grants National Courts the sole jurisdictional authority to apply and interpret these state laws. Defendants are incorrect. Defendants' interpretation would result in otherwise avoidable constitutional conflict.

As pointed out by the defendants, the authority of this Court to interpret and apply state law, through the exercise of its diversity jurisdiction, is well recognized. See In re Nahnsen, 1 FSM Intrm. 97, 108 (Pon. 1982). Nevertheless, a grant of exclusive jurisdiction to this Court over the regulation of marine resources within twelve miles of island baselines, as advocated by defendants, would result in a constitutional conflict as well as a jurisdictional situation heretofore unrecognized in FSM or United States law. Under defendants' interpretation, the states would pass legislation regulating marine resources within twelve miles of island baselines, but only the National Courts would be permitted to interpret these state laws. A such, the National Court would be the sole interpreter and applier of state law. State courts would have no role in the application and interpretation of state law, their primary purpose. While this Court, in the exercise of its diversity jurisdiction, may interpret and apply state law, this Court must interpret and apply state law in the same manner as would state courts. Edwards v. Pohnpei, 3 FSM Intrm. 350, 360 n.22 (Pon. 1988) (stating that this Court should attempt to apply state law in the same way as the highest state court). Even when this Court places itself in the shoes of the state court and attempts to interpret state law, the state court is always the final arbiter of the meaning of a state law. State court interpretations of state law which contradict prior rulings of this Court are controlling on this Court. Id. (instructing that state court interpretations of state law are binding on this Court even if the state decision contradicts a prior ruling of this Court). Thus, the National Court is neither equipped nor empowered to act as the sole and final arbiter of the meaning of state laws.

The facts of this case demonstrate the infirmity of granting this Court exclusive jurisdiction over marine resources within twelve miles of island baselines. As of November, 10 1994, the date of oral argument in this case, the trial of the companion criminal case was being conducted in state court. If this court has exclusive jurisdiction over this case, then the state court would not have jurisdiction to apply state criminal law and, thus, could not preside over a state criminal case. This Court would be forced to enjoin any further state court criminal proceedings in this case on the grounds of the state court's lack of jurisdiction. The National Courts would become the sole venue for trial of alleged violations of state criminal statutes regulating local marine resources. It is

Further, as noted above, the framers of the FSM Constitution intended to protect the custom and tradition of local control over local marine resources by granting legislative authority over those resources to state governments. At the same time, the framers of the National Constitution granted exclusive jurisdiction to National Courts over national waters. The FSM Constitution should not be interpreted as having granted states the authority to regulate marine resources within twelve miles of island baselines but as having denied states the authority to enforce those regulations. The state courts, as final arbiters of state law, must have jurisdiction to interpret and apply state law.8 This Court therefore holds that state and national courts have concurrent jurisdiction over cases involving state regulation of marine resources located within twelve miles of island baselines.9

When interpreting the Constitution, this Court should attempt to give effect to each and every provision of the Constitution. See Carlos v. FSM, 4 FSM Intrm. 17, 29-30 (App. 1989) (instructing that the Constitution should be interpreted in a manner which gives effect to each provision), reh'g denied, 4 FSM Intrm. 32 (App. 1989). Interpretations of the Constitution which result in conflicts between constitutional clauses or result in stripping constitutional provisions of their effect are to be avoided whenever possible. By interpreting article XI, section 6(a) of the National Constitution as granting National Courts exclusive jurisdiction only over national waters, and by interpreting article IX, section 2(m) and article XI, section 6(a) as creating concurrent state and National Court jurisdiction over marine resources within twelve miles of island baselines, the Court avoids creating unnecessary constitutional conflict and gives effect to both provisions. Moreover, the Court believes that concurrent jurisdiction by state and National Courts over marine resources within twelve miles of island baselines is the best resolution of the competing and conflicting constitutional goals of uniformity of maritime law and state control over local marine resources. Furthermore, concurrent jurisdiction over marine resources within twelve miles of island baselines permits state courts to apply and interpret state law while allowing parties the option of invoking this Court's jurisdiction, which, in turn, ensures this Court's oversight of maritime matters critical to this nation's development.

Generally, the decision whether to abstain from deciding a case is left to the sound discretion of the court hearing the case. Pryor v. Moses, 4 FSM Intrm. 138, 141 (Pon. 1989). The Court may not abstain from cases involving issues of interpretation of the FSM Constitution. Gimnang v. Yap, 5 FSM Intrm. 13, 25 (App. 1991). While defendants' removal of this case has raised constitutional issues of state and National Court jurisdiction, the state's prosecution of a civil forfeiture action against defendants for alleged violations of state law does not itself raise issues of constitutional interpretation.10 Accordingly, the Court has discretion as to whether or not it will abstain.

The pertinent questions in this case are all factual, involving, in particular, whether the Vessel was fishing within twelve miles of an island baseline. As of the date of this Court's ruling from the bench, the state criminal trial in the companion case had already begun. The factual issues involved in the state criminal trial are exactly the same issues as the ones in this case. Therefore, the state court is both intimately familiar with relevant factual questions in this case, unlike this Court, and close to reaching factual conclusions which may resolve the civil and criminal actions. Judicial efficiency and avoidance of duplicative litigation are factors that this Court should consider in determining whether to abstain. Ponape Transfer & Storage, Inc. v. Federated Shipping Co., 4 FSM Intrm. 37, 42 (Pon. 1989). As the resolution of the state criminal case may completely resolve the issues in this case, and the state court is already intimately familiar with this case, the Court concludes that the interests of judicial efficiency favor abstention.

1. Defendants in oral argument question whether the Vessel, an inanimate object, is a proper defendant in a criminal action. The accompanying criminal action, however, is not before this Court. Accordingly, this Court declines to make any finding with respect to the criminal action. The Court merely notes that the Vessel is indeed named as a defendant in the criminal action.

3. During the course of the October 28, 1994 and November 10, 1994 hearings, parties disagreed as to whether a probable cause hearing had in fact already been held in the state court. The Assistant Attorney General produced, for the first time, a state court order issued on October 27, 1994, setting the criminal case for trial. In this order, the state court notes that it found "reasonable cause to believe that an offense had been committed," at a hearing on August 10, 1994. Defendants counter that no probable cause hearing was held and that, in fact, the defendants waived a probable cause hearing with the understanding that an immediate trial date would be set for the criminal case. Without a transcript of the state court hearing, this Court cannot evaluate whether a probable cause hearing was in fact held, and, in light of this Court's decision to abstain from this case, the Court need not address this matter.

6. The authority of the state to regulate defendants' commercial fishing activities under article IX, section 2(m) is unquestioned. The abundant supply of commercial fish is presently the Federated States of Micronesia's greatest economic resource and undoubtedly is the primary resource intended to be encompassed within the definition of "marine resources." See SCREP No. 33, II J. of Micro. Con. Con. 813, 819.

7. In circumstances involving issues of an indisputably national character, the National Congress may enact legislation involving marine resources within twelve miles of island baselines. FSM v. Kotobuki Maru No. 23 (I), 6 FSM Intrm. 65, 72-73 (Pon. 1993) (to the extent the state cannot effectively exercise its power to regulate marine resources, there is concurrent state and national power over marine resources within twelve miles of island baselines); see also FSM v. Oliver, 3 FSM Intrm. 469, 479 (Pon. 1988) ("Even when the Constitution assigns primary lawmaking powers to the states, the national government may be empowered to act pursuant to its other general powers.").

8. In the past, this Court has implicitly recognized the jurisdiction of state courts over civil cases involving the regulation of marine resources located within twelve miles of island baselines. See, e.g., Pohnpei v. MV Zhong Yuan Yu #606, 6 FSM Intrm. 464 (Pon. 1994) (abstaining from jurisdiction over civil action involving illegal fishing in Territorial Sea); Pohnpei v. MV Ching Feng #867, Civil Action No. 1993-024 (abstaining from jurisdiction over civil action involving illegal fishing within Territorial Sea).

9. This Court has previously recognized the concurrent authority of the National and state legislatures to regulate marine resources within twelve miles of island baselines. See FSM v. Kotobuki Maru No. 23 (I), 6 FSM Intrm. 65, 72-73 (Pon. 1993) (recognizing concurrent power of national and state governments over marine resources within twelve miles of island baselines); FSM v. Oliver, 3 FSM Intrm. 469, 479 (Pon. 1988). Logically flowing from the national and state concurrent power to regulate is the concurrent jurisdictional power of the respective courts to interpret and apply the respective laws of the state and national governments.

10. Defendants argue that in light of the substantial period of time that has passed since the initial seizure of the Vessel, plaintiff is constitutionally required to make a showing of continuing probable cause to justify continuing custody of the Vessel. The Court makes no comment on the validity of this claim. However, if defendants wish to pursue this claim, they may file an independent civil rights action.