FSM Supreme Court denies Young Sun motion to dismiss and keeps Sea Cucumber TRO in place

Legislature’s bill to ban harvests for the next five years on Governor’s desk for consideration

By Bill Jaynes

The Kaselehlie Press

 

January 10, 2020

Pohnpei—On Wednesday afternoon of this week, the Supreme Court verbally ruled to deny Young Sun International Trading Corporation’s motion to dismiss and to keep the Temporary Restraining Order in place that bars the harvest of sea cucumbers. Though the ruling was verbal, Justice Mayceleen D. Anson said that since the issues under discussion were complex she would also be issuing a formal written ruling.

Anson scheduled a hearing to consider the issuance of a permanent injunction for 2:00 this afternoon after press time.

Attorney Salomon Saimon had submitted a motion to dismiss on behalf of his client Young Sun International Trading Corporation, arguing that the FSM Supreme Court does not have subject matter jurisdiction in the matter, for failure of the plaintiffs to state a claim upon which relief could be granted and for issue preclusion.  He further argued that the case must be dismissed because the Plaintiffs lack jurisdiction because their guardian, attorney Marstella Jack was improperly appointed.  He said that the parts of the Convention of the Rights of the Child are inapplicable to the subject at hand.  He also argued that the issue of the contract between the State and Young Sun for sea cucumber harvests had already been legally decided on its merits and therefore could not be brought up again in another case by another plaintiff.

In fact, the Mwolen Wahu dropped its claims in the case they had previously filed against Young Sun and the State.  They dropped it before the FSM Supreme Court could rule on the merits of the case so there is no previous ruling that would bar Jack’s young clients from filing a claim.

During Wednesday’s hearing Jack said that her clients were not asking the court to consider whether the law allowing for sea cucumber harvests is Constitutional.  “We have no issue with the law,” she said, “only with its improper implementation.”

She told the Court that on the 20th of December the Pohnpei State Legislature had passed a new bill governing sea cucumber harvests that if signed into law would establish a moratorium on sea cucumber

harvests from 2020 through 2025.  She said that if the bill becomes law, either with the Governor’s signature or without it, her clients would drop their claims against the defendants because their claims would then be moot.

The bill (LB 110-16) has been on the desk of the Governor since December 20.  In addition to declaring a moratorium on sea cucumber harvests from 2020 through 2025, it sets the terms and conditions for the establishment of a Sea Cucumber Commission “for the proper administration and supervision of the commercialization of sea cucumbers.  The Commission would consist of a panel of five members appointed by the Governor and with the advice and consent of the Pohnpei Legislature.  The bill also establishes the five types of expertise members of the commission should have.  The list includes a marine biologist representing the academic community, an expert in low-impact aquaculture projects, a government official charged with overseeing business matters, a member of the NGO community having interests in conservation matters, and a government official charged with overseeing environmental matters.

The bill if passed into law would also set up stringent harvesting criteria.

The standing committee report recommending the passage of the bill said, “When the Pohnpei Legislature enacted the sea cucumber law back in 2014, it was with the mindset that while the development of the sea cucumber will be viewed as a commercial commodity for economic development purposes, it will be administered properly in such a way so as to put a balance between the conservation of our natural resources and the exploitation of the resource. This mindset is emphasized in … Section 1 of L.B. No. 110-16. It is now the sense of this Committee, that the sea cucumber law as was enacted is not being implemented for its original intent and has created problems to the point that an amendment to it becomes necessary. Section 1 of the bill asserts the indispensable reason for this proposed amendment.”

Section 1 of LB 110-16 spans three pages and points out the long term environmental harm that could come from unsustainable management of sea cucumber harvests.  It points out that while the Pohnpei Constitution mandates the government’s responsibility to develop Pohnpei’s economy, it must always do so with the conservation of natural resources and protection of the environment in mind.

It says that in 2016 the Administrator of the Office of Fisheries and Aquaculture declared an open season for commercial harvesting of sea cucumbers in 2016 that would allow for 67 tons of sea cucumbers to be removed from their natural marine habitats.  “This announcement was made without the comprehensive surveys, studies, analyses or scientific reviews that the Legislature finds necessary to be undertaken by our public officials to fulfill the intent of this particular law and for our government agencies to abide by the mandates of our Constitution itself.”

The section then points to the report by Dr. Peter Houk based on a long-term reef monitoring program in Pohnpei indicating that “harvesting of sea cucumbers at the present time is not recommended because of low densities of large species, and no substantial recovery of small species since their population declined in 2013.”

Attorney Jack told Justice Anson that she and her clients held out hope that Governor Elect Reed Oliver, who is currently the acting Governor of Pohnpei since Governor Peterson is currently off island, would sign the bill into law perhaps as early as this week.

At press time that had not yet happened and Governor Elect Oliver has not responded to our questions related to his intentions with the bill.  Oliver will become Pohnpei’s Governor after he is sworn in at Monday’s inauguration event.