FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite case as Federated States of Micronesia v Zhong Yuan Fishery Co,
9 FSM Intrm 421 (Kos 2000)

THE FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

ZHONG YUAN FISHERY CO., LTD., MICRONESIA
FISHING VENTURE, INC., a/k/a PACIFIC FISHING
VENTURE INC., and SAI SI,
Defendants.

_______________________________________________

CRIMINAL CASE NO. 2000-2500

MEMORANDUM

Martin Yinug
Associate Justice

Decided: June 27, 2000

APPEARANCES:

For the Plaintiff:
Amy Fitzpatrick, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendants:
Fredrick L. Ramp, Esq.
P.O. Box 1480
Kolonia, Pohnpei FM 96941

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HEADNOTES

Fishing
Even if an FSM Foreign Fishing Agreement has a regulatory effect in banning fishing in state waters, Kosrae acceded to that regulation when the Kosrae Attorney General requested that "the FSM Department of Justice institute a prosecution of the vessel and her owners and operators for fishing within state waters in violation of national law and the terms of the vessel's permit." When Kosrae requested the FSM's assistance in enforcing the national statute criminalizing the Foreign Fishing Agreement's strictures on fishing in state waters, and failing to keep fishing gear stowed in those same waters, Kosrae ratified any FSM regulation of its waters in those two respects and on the occasion in question. FSM v. Zhong Yuan Fishery Co., 9 FSM Intrm. 421, 423 (Kos. 2000).

Criminal Law and Procedure
The statute that provides for joint law enforcement agreements between the national government and the states reflects a public policy in favor of cooperative law enforcement undertakings. FSM v. Zhong Yuan Fishery Co., 9 FSM Intrm. 421, 423 (Kos. 2000).

Criminal Law and Procedure - Dismissal; Fishing
A criminal prosecution for fishing in state waters will not be dismissed when even if the Foreign Fishing Agreement were to be construed as regulating commercial fishing in Kosrae's waters, the cooperative law enforcement public policy weighs in favor of Kosrae's ability to expressly ratify any such regulation by a specific request to institute a prosecution where the ratification facilitated the enforcement of a national law criminalizing conduct proscribed in the Foreign Fishing Agreement. FSM v. Zhong Yuan Fishery Co., 9 FSM Intrm. 421, 423 (Kos. 2000).

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COURT'S OPINION

MARTIN G. YINUG, Associate Justice:

The purpose of this memorandum is to explain the court's reasoning underlying the order of May 24, 2000, which denied defendants' motion to dismiss brought pursuant to FSM Criminal Rule 12(b).

The court has received and considered the defendants' Motion to Dismiss, filed April 3, 2000; the FSM's Memorandum in Opposition to Defendants' Motion to Dismiss, filed April 6, 2000; the defendants' Reply to Opposition to Motion to Dismiss, filed April 24, 2000; and the FSM's Surreply in Opposition to Defendants' Motion to Dismiss, filed April 27, 2000.

On January 24, 2000, the FSM filed an information against the defendants. Count one of the information alleges a violation of 24 F.S.M.C. 501(1)(a), in that the defendants violated their Foreign Fishing Agreement by fishing in Kosrae state waters. Count two, also brought under 24 F.S.M.C. 501(1)(a), alleges that defendants failed to stow their fishing gear within Kosrae's waters as required by their Foreign Fishing Agreement. According to the information, the Micronesian Maritime Authority ("MMA") and defendant Micronesia Fishing Venture, Inc., entered into a Foreign Fishing Agreement on September 29, 1998; the fishing permit under the agreement was issued to defendant Zhong Yuan Fishery Co., Ltd., for the vessel Zhong Yuan Yu No. 1224; and defendant Sai Si was the master of the vessel. The MMA was established under 24 F.S.M.C. 302(1) for the purpose of "adopt[ing] regulations for the conservation, management, and exploitation of fish in the [FSM's] exclusive economic zone." Paragraph 13(b) of the Foreign Fishing Agreement provides that "[n]o fishing is permitted within the Territorial Sea [of any state of the FSM]," while paragraph 13(e) provides that "Authorized Vessels shall be required to stow all fishing gear whenever such vessels are within . . . the Territorial Sea." Section 102 of Title 18 defines the territorial sea as extending "12 nautical miles seaward of the nearest point of the [island] baseline." Kosrae is not a party to the Foreign Fishing Agreement.

The defendants contend that the provisions of the Foreign Fishing Agreement upon which this prosecution is based constitute regulation of fishing by the FSM in Kosrae state waters, an area where the FSM has no authority to do so. They further argue that the FSM cannot claim such authority either as an exclusive express power under article IX, section 2 of the FSM Constitution, or as a concurrent express power under article IX, section 3 of the FSM Constitution. Defendants conclude that this prosecution is based upon usurpation of Kosrae's power to regulate fishing in its own state waters and should therefore be dismissed under Rule 12 (b) of the FSM Rule of Criminal Procedure. The FSM responds that it "seeks not to regulate state waters but to enhance the states' ability to regulate and protect its own resources." FSM's Surreply in Opposition to Defendants' Motion to Dismiss at 5. It maintains that "[i]f Kosrae State, or any other state, permitted fishing within state waters, this prohibition on fishing in state waters would not have been included in the fishing agreement at issue here." Id. at 4. Attached to the FSM's response are the affidavits of Rensley A. Sigrah, Governor of Kosrae, and Tony Abraham, who is Administrator of the Division of Marine Surveillance for Kosrae State. According to those affidavits, Kosrae does not permit commercial foreign fishing in its state waters.

On the facts before the court, the court need not determine whether the relevant portions of the Foreign Fishing Agreement are an attempt by the FSM to regulate fishing within Kosrae state waters. Even if the Foreign Fishing Agreement does have such a regulatory effect, Kosrae acceded in this particular instance to that regulation, which in any event is consistent with Kosrae's policy on commercial foreign fishing. Paragraph 5 of the affidavit of Elizabeth McCormick, counsel for the FSM, recites that on December 15, 1999, the Kosrae Attorney General requested that "the FSM Department of Justice institute a prosecution of the vessel and her owners and operators for fishing within state waters in violation of national law and the terms of the vessel's permit." When Kosrae requested the assistance of the FSM in enforcing the national statute criminalizing the Foreign Fishing Agreement's strictures on fishing in state waters, and failing to keep fishing gear stowed in those same waters, Kosrae ratified any FSM regulation of its waters in those two respects and on the occasion in question.

Chapter 12 of title 12 of the FSM Code provides for joint law enforcement agreements between the national government and the states whereby state law enforcement officers are authorized to enforce FSM criminal laws. Agreements under this statute run the other direction from the facts of this case - i.e., from the national government to the states, as opposed to the case at hand, where the national government acted at Kosrae's instance. Nevertheless, the statute reflects a public policy in favor of cooperative law enforcement undertakings. Here, even if the Foreign Fishing Agreement were to be construed as regulating commercial fishing in Kosrae's waters, that same public policy weighs in favor of Kosrae's ability to expressly ratify any such regulation by a specific request to institute a prosecution where the ratification facilitated the enforcement of a national law criminalizing conduct proscribed in the Foreign Fishing Agreement.

For these reasons, the court denied the defendants' motion to dismiss.