FSM court deliberating on merits of motion to dismiss in the Sea Cucumber harvest case

By Bill Jaynes
The Kaselehlie Press
January 25, 2017
Pohnpei, FSM—Since July 20, 2016, Young Sun International and Pohnpei State have been barred from executing a contract to harvest sea cucumbers for export after the FSM Supreme Court issued a temporary restraining order (CA 2016-014). Six months after that restraining order was issued, the court is still hearing and ruling on what amounts to preliminary motions on the “sea cucumber case”.
Currently the court is deliberating on an evidentiary hearing on a motion to dismiss that was filed by attorney Joseph Phillip on behalf of Young Sun Incorporated on the matter of whether or not the Mwoalen Wahu en Pohnpei has legal standing to bring suit. Pohnpei State’s attorneys joined that motion and David Angyal, attorney for the Mwoalen Wahu filed an opposition.

The motion to dismiss claimed that the Mwoalen Wahu no longer exists and even if it did, Mr. Salvador Iriarte, as Iso Nahnken of Nett is not part of the Mwoalen Wahu and wouldn’t have standing to represent any such entity. The motion was based in part on a letter dated April 8 written by Sokehs Paramount Chief Herculano Kohler to Pohnpei Governor Marcelo Peterson informing the Governor that the Mwoalen Wahu had been dissolved. It said that when the court ruled in September that the Mwoalen Wahu had standing to bring suit on the matter, it did so without some facts in evidence.
The court set an evidentiary hearing date for January 6 but rescheduled that hearing for January 11 in order to provide time for a State official to compile documents the attorney for the Plaintiffs had subpoenaed.
Pohnpei State put Paramount Chief Herculano Kohler on the stand to testify that he did send the letter. He testified that he considered there to be a “Mwoalen Wahu” but not a “Mwoalen Wahu en Pohnpei”. He also reiterated the defendants claim that the Nahnkens are not part of the “Mwoalen Wahu”.
Under cross examination by the Plaintiffs’ attorney, Mr. Kohler said that there have been meetings of the Mwoalen Waho since he sent the letter to the Governor, but that only two or three of the members had been present. The Plaintiffs’ attorney presented Mr. Kohler with records from the Pohnpei State Public Affairs office showing that at each of the subsequent meetings of the Mwoalen Wahu since April 2016 there were no fewer than four members present including him. The records also showed that Nahnkens were also present. He also presented Mr. Kohler with records showing that he and other members of the Mwoalen Wahu had received stipends from Public Affairs for fuel costs for attending the meetings.
The Plaintiffs’ attorney called Billston Charley, Pohnpei’s Public Affairs Liaison to the Mwoalen Wahu, to the stand. He brought records showing the agendas and minutes of the meetings of the Mwoalen Wahu and also financial records showing stipends paid out to the members. When questioned he confirmed that the Pohnpei State Government provides minutes of the meetings to the Attorney General’s office and that no one in the government treated the Mwoalen Wahu any differently than they had before Mr. Kohler’s letter was received.
At press time the Court had not yet rendered a decision on the motions to dismiss. If the Court grants those motions it will mean that the contract to harvest sea cucumbers will be able to move forward, barring any appeals. If it does not grant the motions to dismiss, the court will schedule hearings to begin to hear evidence from both sides to determine whether the Court should issue a permanent injunction to continue enjoining the execution of the sea cucumber harvest contract pending the outcome of the lawsuit on the merits. That is unless defendants file another preliminary motion of some sort that the court agrees to consider.
There is one outstanding motion for the court to consider that was entered by defendants, Young Sun Incorporated. Their attorney filed a motion for a summary judgment on their counterclaims against the Conservation Society of Pohnpei (CSP). CSP has filed an opposition to that motion.

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