FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. P3-2010
Civil Action No. 2009-001

CONGRESS OF THE FEDERATED STATES OF MICRONESIA,
Appellant,

vs.

PACIFIC FOOD AND SERVICES, INC., NATIONAL OCEANIC RESOURCE MANAGEMENT AUTHORITY, FEDERATED STATES OF MICRONESIA, and the EXECUTIVE DIRECTOR of NORMA, in his official capacity,
Appellees.
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ORDER DENYING APPELLANT'S PETITION FOR REHEARING

Submitted: June 23, 2011
Decided: October 25, 2011

APPEARANCE:

For the Appellant: T. Lam Dang, Esq.
Legislative Counsel
P.O. Box PS-3
Palikir, Pohnpei FM 96941

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HEADNOTES

Evidence - Burden of Proof
The "burden of proof" is a party's duty to prove a disputed assertion or charge. The burden of proof includes both the burden of persuasion and the burden of production. Congress v. Pacific Food & Servs., Inc., 18 FSM Intrm. 76, 77 (App. 2011).

Evidence - Burden of Proof
When a trial court ruling did not involve disputed facts, the only burden was that of persuasion. Congress v. Pacific Food & Servs., Inc., 18 FSM Intrm. 76, 77 (App. 2011).

Appellate Review - Standard - Civil Cases
When the appellate court ruled that an appellee has the better argument, it did not create a burden of proof for either side, or shift any burden. Congress v. Pacific Food & Servs., Inc., 18 FSM Intrm. 76, 77 (App. 2011).

Marine Resources
Since operators, owners, and agents are defined separately in the statute, the 24 F.S.M.C. 109 and 122 restrictions that apply to owners do not apply to agents for foreign fishing vessels. Congress v. Pacific Food & Servs., Inc., 18 FSM Intrm. 76, 77 (App. 2011).

Appellate Review - Rehearing
When the appellate court has neither overlooked nor misapprehended any material points of law or fact, it will deny a petition for rehearing. Congress v. Pacific Food & Servs., Inc., 18 FSM Intrm. 76, 78 (App. 2011).

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COURT'S OPINION

MARTIN G. YINUG, Chief Justice:

Appellant Congress of the Federated States of Micronesia ("Congress") filed this Petition for Rehearing on June 23, 2011, subsequent to our Opinion of June 20, 2011 [Congress v. Pacific Food & Servs., Inc., 17 FSM Intrm. 542 (App. 2011)], and raises four arguments: (1) this court erroneously shifted the burden of proof to Congress to show that 24 F.S.M.C. 405 ("Section 405") is constitutional; (2) this court erroneously discounted sections of the Marine Resources Act ("MRA") that may be applicable in this matter; (3) this court may have improperly ruled on a constitutional issue not before it; and (4) this court misstated Congress's counsel's positions at oral argument.

We disagree, and therefore deny Congress's petition, for the reasons set forth below.

I. Burden of Proof

Congress argues here that, because this court reviewed the trial court's holding on a de novo basis, appellee Pacific Food and Services, Inc. ("PF&S") should have had the burden of proof. The "burden of proof" is: "A party's duty to prove a disputed assertion or charge; the burden of proof includes both the burden of persuasion and the burden of production." Black's Law Dictionary 76 (pocket ed. 1996) (emphases in original). Here, the trial court's ruling did not involve disputed facts; therefore, the only burden was that of persuasion.

The trial court concluded that Section 405 is unconstitutional because it violates the principle of separation of powers. Pacific Foods & Servs., Inc. v. National Oceanic Res. Mgmt. Auth., 17 FSM Intrm. 181, 191 (Pon. 2010). We agreed that Section 405 is unconstitutional: we weighed the arguments, and decided that "PF&S has the better argument." Congress, 17 FSM Intrm. at 546. In doing so, we did not create a burden of proof for either side, or shift any burden. Further, Congress has not demonstrated that the trial court has made an error of law.

II. Discounting Portions of the MRA

Congress argues that we discounted important portions of the MRA, which "both expressly denies licenses to owners who have had court judgments issued against them in an amount in excess of $25,000, 24 F.S.M.C. §122 [sic], and sets out minimum standards of eligibility, 24 F.S.M.C. §109 [sic]." These sections do not change our analysis: 24 F.S.M.C. 109 applies to operators; 24 F.S.M.C. 122 applies to owners; neither applies to agents. The MRA defines operators, owners, and agents separately-under subsections [102](47), (48), and (3), respectively. PF&S is an "agent for foreign fishing vessels." Congress, 17 FSM Intrm. at 544. Therefore, the restrictions of 24 F.S.M.C. 109 and 122 do not apply here.

III. Improper Constitutional Rulings

Congress argues that our statement, on 17 FSM Intrm. page 547, regarding the treaty-ratification process, may constitute improper rulings on constitutional issues not before us: "It is not clear whether the Court is merely stating that a treaty may not be ratified by a congressional resolution passed by only eight votes or whether it is calling into question Congress's use of resolutions to ratify treaties." Appellant's Pet. for Reh'g at 3-4. We disagree: when one reads the statement to which Congress objects along with its accompanying footnote, our meaning is unambiguous.

IV. Misstating Counsel's Position

Finally, Congress asserts that we misstated its counsel's position at oral argument when we suggested that he "had . . . concede[d] that approval of access agreements is, in fact, an act of legislation . . . ." Appellant's Pet. for Reh'g at 4. Congress has not provided a transcript showing that its counsel did not, in fact, make such a concession. Further, Congress need merely look to the beginning of the sentence to see that we gave its counsel the benefit of the doubt: "Assuming that Congress had not meant to concede that approval of access agreements is, in fact, an act of legislation, as it did at oral argument, we studied the Taxpayers case, because the holding Congress urges from that court touches directly on the question that Congress conceded." Congress, 17 FSM Intrm. at 546 (emphasis added).

V. Conclusion

Accordingly, because we have neither overlooked nor misapprehended any material points of law or fact, we hereby deny Congress's Petition for Rehearing. Nena v. Kosrae (II), 6 FSM Intrm. 437, 438 (App. 1994); Wito Clan v. United Church of Christ, 6 FSM Intrm. 291, 292 (App. 1993).

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