Cite as Pohnpei v. M/V Zhong Yuan Yu # 606,
6 FSM Intrm. 464 (Pohnpei 1994)

[6 FSM Intrm. 464]






Andon L. Amaraich
Associate Justice

Decided:  August 3, 1994

For the Plaintiffs:          Andrea Hillyer
                                       Acting Attorney General
                                       Office of the Pohnpei Attorney General
                                       Kolonia, Pohnpei FM 96941

For the Defendants:     Ronald Moroni
                                       P.O. Box 1480
                                       Kolonia, Pohnpei FM 96941

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     The regulation of foreign commercial fishing in state waters ) within a limit of twelve miles, is a matter of state law.  Pohnpei v. M/V Zhong Yuan Yu #606, 6 FSM Intrm. 464, 465 (Pon. 1994).

Federalism ) Abstention and Certification
     Even though the national court has jurisdiction abstention may be warranted in civil forfeiture fishing case for fishing in state waters where defendants are also part of a companion criminal case in state court.  Pohnpei v. M/V Zhong Yuan Yu #606, 6 FSM Intrm. 464, 465-66 (Pon. 1994).

[6 FSM Intrm. 465]

Jurisdiction ) Removal
     If the FSM national court takes jurisdiction in a removal case all prior state court orders would remain in effect and record of all prior proceedings in the state court may be required to be brought before the court.  Pohnpei v. M/V Zhong Yuan Yu #606, 6 FSM Intrm. 464, 466 (Pon. 1994).

Attorney, Trail Counselor and Client ) Admission to Practice
     Motions to appear are not granted as a matter of course and each application must be carefully reviewed for compliance with the Rules of Admission.  Pohnpei v. M/V Zhong Yuan Yu #606, 6 FSM Intrm. 464, 466 (Pon. 1994).

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ANDON L. AMARAICH, Associate Justice:
     On July 25, 1994 defendants filed a petition to remove this action from Pohnpei Supreme Court, a request for immediate hearing to determine probable cause and set bond, and a motion for admission to appear before this Court.

     This Court has jurisdiction over the matter pursuant to FSM Constitution article XI, section 6(b).  However, for the reasons expressed below, the Court abstains from exercising its jurisdiction over this matter.  The case is remanded to Pohnpei Supreme Court for adjudication.

     Pohnpei State has brought this action against defendants, a foreign commercial fishing vessel and its owner and captain, for fishing within Pohnpei state waters without a valid state permit.  The action was originally brought in Pohnpei Supreme Court and a probable cause hearing was held on July 20 and 22, 1994.  On July 25, before a ruling on the state court hearing was issued, defendants filed for removal of the case to this Court and requested another probable cause hearing.  The Court subsequently received Pohnpei Supreme Court Chief Justice Edwel H. Santos' Ruling on Probable Cause and Order of Bail, entered July 26, 1994.  The Court takes judicial notice of the fact that a criminal information has also been filed in Pohnpei Supreme Court against the defendants, PDK No. 165-94.

     The claims in this case allege violation of Pohnpei state fishing laws.  The regulation of foreign commercial fishing in state waters, i.e. within a territorial sea limit of twelve miles, is a matter of state law.  FSM v. Oliver, 3 FSM Intrm. 469 (Pon. 1988).  "Where the national courts are asked to rule on areas of the law which fall within state powers and in which there are identifiable, particularly strong, state interests, consideration of abstention or certification of issues may be called for."  Gimnang v. Yap, 5 FSM Intrm. 13, 21 (App. 1991).  The Court recognizes the great importance and interest to individual states in the FSM of commercial fishing in state waters, and therefore believes deference to state court adjudication is warranted in the case at bar.

     Furthermore, this Court is reluctant to incur inevitable delay in this matter which would result from assuming jurisdiction.  The Court takes judicial notice that a Stipulation and Order Permitting Sale of Fish and Deposit of Proceeds in Court has been entered in the state court.  The parties have had an opportunity to present evidence and witnesses at a probable cause hearing, and

[6 FSM Intrm. 466]

the state court ruled at the conclusion of the hearing that the evidence supported a finding of probable cause.  Pursuant to General Court Order 1992-2, section IV, if this Court were to take jurisdiction of this case the state court order regarding the sale of fish and the ruling on probable cause would remain in effect.  The defendants would not be automatically entitled to another probable cause hearing.  Instead, the record of all prior proceedings in the state court may be required to be brought before this Court.  This would entail either the defendants petitioning the clerk of the state court for transcripts of proceedings and copies of exhibits, or a writ of certiorari from this Court to state court requesting the same.  FSM GCO 1992-2, III(B).  It would then be in this Court's discretion whether to schedule any additional proceedings concerning bond security for the vessel.  However, neither of the two attorneys for the state who have appeared in this case nor defendants' local counsel are admitted to practice before this Court.  Only defendants' local counsel, Mr. Moroni, has moved to date for permission to appear.  Such motions are not granted as a matter of course and each application must be carefully reviewed for compliance with our Rules of Admission.

     As defendants point out, time is of the essence in most fishing violation cases.  All of the circumstances in this matter indicate that transferring the case to this Court would delay rather than expedite proceedings.

     Another factor weighing in favor of state court adjudication in this instance is the desire to avoid possible conflict in having the civil action in one court and the companion criminal action in another court.  The nature of illegal fishing cases is such that the same witnesses and exhibits are often required for both the civil and criminal actions, and therefore it is highly desirable from both parties' standpoint and in terms of judicial efficiency to proceed with both actions simultaneously in the same court.

     The Court notes that defendants have claimed as an affirmative defense that the statute plaintiff relies on violates the FSM Constitution, article III, sections 3, 4, and 5.  Article III of the FSM Constitution concerns citizenship, and does not appear to apply to this case.  Even if applicable, mere assertion of a possible constitutional issue does not defeat this Court's ability to abstain from exercising jurisdiction.  Gimnang, 5 FSM Intrm. at 21 ("A national court ordinarily should refrain from deciding a case in which state action is challenged as violating the federal Constitution, if unsettled questions of state law may be dispositive and obviate the need for constitutional determination.")

     For all of the above reasons the Court on its own motion deems it appropriate to abstain in this matter.
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