FOUR FSM STATES LOSE FISHERIES CASE

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By Pamela Joseph

PALIKIR, Pohnpei (August 10, 1998 - The Island Tribune)---A three year old dispute, between the National Government and the four FSM states (Chuuk, Kosrae, Pohnpei and Yap), over who should receive the money collected from fishing permits, was recently decided by the FSM Supreme Court.

In its 64-page decision, entered on July 17, 1998, the court ruled that the four States have no legal claim to any fishing revenues collected by the National Government.

As reported in The Island Tribune's April 2, 1998 issue, the four FSM states brought a lawsuit against the FSM National Government, alleging that fishing fees collected by the national government legally belong to the States under the Constitution and Micronesian tradition and custom. The States also claimed that the fishing fees are "taxes." Under the FSM Constitution, the States are entitled to 50% of any taxes collected.

Based on all court papers filed in the case, the Supreme Court denied the FSM States' motion for summary judgment, and granted the national government's cross-motion in its entirety.

Bernard Thoulag, Executive Director of the Micronesian Maritime Authority (MMA), expressed disapproval of the court's decision, saying that he believes the four states should get a share of the collected revenues. The two opposing sides should have reached an agreement, instead of taking the matter to court, he said. As a result, it has come to a "frustrating point" where the states had to take it to court. "As a nation, the national government should share this kind of revenue for the benefit of the States," Thoulag added.

Pohnpei State Governor, Del S. Pangelinan, expressed the same view, saying, "it was not really necessary that we go to court to solve this matter. The national government should have recognized and contributed to the financial needs of the states."

The States claim that the National Government collected over 164 million dollars between 1979 and 1996, an average of $9.5 million per year, during the 17 year period. Governor Pangelinan further stated that the FSM states are asking for a 80/20 split, so that each government gets one fifth of the fishing revenues. Because of the court's recent decision on the case, Pohnpei will lose the chance to receive nearly 2 million dollars a year, in fishing fees, needed to "augment our declining resources."

According to Jon Van Dyke, a Honolulu attorney and one of the five attorneys representing the states, the decision made, is unfair. The states have filed another motion, asking the court to amend or alter the decision.

The States, in court papers, claim that they are constitutionally entitled to income generated from fishing permits. However, Cyprian Manmaw, Attorney General of Yap State, stated that the money is not Yap State's main concern. Yap State's main interest in the case, he reported, is to have the court "make a declaration, one way or the other, as to the ownership of the 200 mile fisheries zone." He said that because Yap State had never received these revenues before, the State had nothing to lose, by a decision in favor of the National Government. Had the court awarded money to the States, Yap State would have shared in it.

The EEZ (Exclusive Economic Zone) extends from the 12 mile island baselines to a distance of 200 miles. The States, undisputedly, own the 12 mile zone and collect any fees from fishing in that area. The money collected from foreign fishing boats in the 200 mile zone, at the present time, goes into the General Fund of the national government, and under the control of the FSM Congress. In its July 27, 1998 Motion to Amend and Alter Judgment, the FSM States requested the court to reconsider its decision, on the grounds that it wants to present previously unavailable evidence, i.e. Congress appropriation of fishing fees into "pork barrel projects." The Court must have anticipated this when it stated in its Decision, that the States' dissatisfaction over the national government's power over the fishing fees "does not change the constitutional division of powers." The Decision further stated that, in the Constitution, the States clearly delegated power to the national government over the fishing resources beyond the 12 mile zone.

Van Dyke said he expects the States to file an appeal. Governor Pangelinan hopes that it does not come to that, as the representatives from each government will meet with the FSM President Jacob Nena, to reach a compromise. Pangelinan said that a meeting is scheduled for right after the Micro Games.

In the May session of the Tenth FSM Congress, Senator Isaac Figir introduced a bill to amend the FSM Constitution, providing that not less than fifty percent of the net revenue from fishery resources be shared with the States. The bill has not been acted upon.

Pangelinan stated that the states will have to make a decision on the next course of action, depending on what the President and the national government plan to do. The President, who is attending the Micro Games in Palau, was unavailable for comment. If it means appealing the case, the Governor said, "We will continue to fight for our 'fair' share of these revenues."

For additional reports from The Island Tribune, go to PACIFIC ISLANDS REPORT News/Information Links: Newspapers/The Island Tribune or http://www.islandtribune.com

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