THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as FSM v. Hai Hsiang No. 63 ,
7 FSM Intrm. 114 (Chuuk 1995)

[7 FSM Intrm. 114]

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

HAI HSIANG NO. 63, a Foreign Fishing Vessel,
and TING HONG OCEANIC ENTERPRISES, LTD.,
Defendants.

CIVIL ACTION NO. 1995-1005

ORDER

Richard H. Benson
Associate Justice

Decided: April 13, 1995

[7 FSM Intrm. 115]

APPEARANCES:
For the Plaintiff:            Carole Rafferty, Esq.
                                       Assistant Attorney General
                                       Office of the FSM Attorney General
                                       P.O. Box PS-105
                                       Palikir, Pohnpei FM 96941

For the Defendants:     Maketo Robert, Esq.
                                       P.O. Box 211
                                       Weno, Chuuk FM 96942

                                       John B. Maher, Esq.
                                       Cunliffe, Cook, Maher & Keeler
                                       Suite 200
                                       210 Archbishop F.C. Flores St.
                                       Agaa, Guam 96910

*    *    *    *
 
HEADNOTES
Federalism ) National/State Powers; Fishing
     A fishing permit issued by the national government prohibiting fishing in state waters unless authorized by the state which has jurisdiction does not constitute regulation of state waters by the national government because it merely tries to prevent a vessel that fishes illegally in state waters from continuing to fish in national waters.  FSM v. Hai Hsiang No. 63, 7 FSM Intrm. 114, 116 (Chk. 1995).

Jurisdiction
     The FSM Supreme Court has exclusive jurisdiction in actions by the national government to enforce the terms of fishing agreements and permits to which it is a party.  FSM v. Hai Hsiang No. 63, 7 FSM Intrm. 114, 116 (Chk. 1995).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This case comes before me on the defendants' motion to dismiss for lack of jurisdiction based on the plaintiff's alleged lack of standing.  The national government's complaint alleged that the defendant vessel, Hai Hsiang No. 63, violated both its Foreign Fishing Permit, # F941-TWHLL-32589, and the Foreign Fishing Agreement between the plaintiff and defendant Ting Hong by fishing within twelve miles of Namoluk Atoll, Chuuk, and within one mile of a submerged reef without the permission of the State of Chuuk.  The complaint also alleged that the defendant vessel, in violation of 24 F.S.M.C. 501(1)(l), knowingly possessed and transported the fish illegally taken, and that, in violation of 24 F.S.M.C. 105, its fishing gear was not properly stowed while in an area in which it was not authorized to fish.

     At the post-seizure hearing on March 22, 1995, I found probable cause that the alleged violations took place and in due course the clerk issued an arrest warrant for the vessel.

[7 FSM Intrm. 116]

     The defendants contend that the action must be dismissed.  Their argument relies on the Constitution's grant to Congress of the power to regulate "natural resources within the marine space of the Federated States of Micronesia beyond 12 miles from island baselines," FSM Const. art. IX, 2(m), and the Constitutional provisions that any "power not expressly delegated to the national government or prohibited to the states is a state power," id. art. VIII, 2, unless it is a "power of such indisputably national character as to be beyond the power of a state to control," id. 1.  The defendants contend that since the event that gave rise to this action took place within twelve miles of an island baseline and the national government has no power to regulate natural resources  there, then the national government has no interest in this case, and therefore no standing to bring this action.

     The plaintiff opposes the motion.  It contends that the national government has concurrent power to regulate fishing in the states' territorial sea.  For this proposition it relies on FSM v. Kotobuki Maru No. 23 (I), 6 FSM Intrm. 65, 70-73 (Pon. 1993) (national government has unexpressed concurrent power to regulate state waters to extent state unable to exercise power).

     I conclude that I must deny the defendants' motion to dismiss, but I rely on a different ground.  It is undisputed  that the State of Chuuk has the power to regulate fishing within twelve miles of its shores, and that the defendant vessel (at least for the purposes of this motion) does not have a permit from the State of Chuuk to fish within its waters.  The fishing permit issued to the defendant vessel prohibits
"[f]ishing within 12 miles of the Federated States of Micronesia . . . unless authorized by the State which has jurisdiction."  I do not believe that this constitutes regulation of a natural resource within state waters.  This permit provision does not tell the vessel that it can or cannot fish in state waters.  It does not tell the states that they must allow or deny the vessel the right to fish in state waters.  It merely says that if the vessel fishes in state waters without state permission then the national government will no longer permit the vessel to fish in the national Exclusive Economic Zone beyond the twelve-mile limit.1  The national government is thus not trying to regulate who fishes inside the twelve-mile limit.  It is regulating who fishes inside its Exclusive Economic Zone.  The national government may permit fishing within the exclusive economic zone, 24 F.S.M.C. 103(1), "on such terms and conditions and with such restrictions as . . . deem[ed] appropriate."  24 F.S.M.C. 111(2).

     All the national government seeks to do in this action is to enforce the terms of its foreign fishing agreements and fishing permits.  It has standing to maintain an action to enforce agreements to which it is a party.  The FSM Supreme Court has original and exclusive jurisdiction "in cases in which the national government is a party except where an interest in land is at issue."  FSM Const art. XI, 6(a).  Therefore this court has jurisdiction over this action, and I must deny the motion to dismiss.  I also note that the plaintiff has filed an amended complaint that alleges the defendant vessel additionally violated the Foreign Fishing Agreement by failing to maintain a fishing log in the English language as required.  This allegation also gives the plaintiff standing and the court jurisdiction.

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Footnote:
 
1.  The statute may even require this.  See 24 F.S.M.C. 112 (permit should be revoked or suspended if vessel used in commission of any act prohibited by Title 24 "or other applicable law"). I also note that the law requires that foreign permitted vessels be in good standing on the Regional Register of Foreign Fishing Vessels maintained by the South Pacific Forum Fisheries Agency.  24 F.S.M.C. 111(3)(b).  I find analogous the concepts that neither a vessel that has illegally fished in state waters nor a vessel that has illegally fished elsewhere in the Pacific should be allowed by the national government to fish in the FSM Exclusive Economic Zone.
                                                                                                                                                                                                                                                                                                           
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