American Samoa Older Vehicle Import Ban Challenged

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Ban implemented to help fight climate change

By Joyetter Feagaimaalii-Luamanu

PAGO PAGO, American Samoa (The Samoa News, Aug. 25, 2012) – The governor’s Executive Order to stop the importation of vehicles into the territory of particular years, because of the government’s commitment to fight global climate change is at the center of a complaint filed in court against the American Samoa Government for a declaratory judgment and for unlawful seizure of a vehicle.

Saunoa Live has filed the complaint, through his lawyer Fiti Sunia.

According to the complaint, Live of Faleasao returned to American Samoa with a 1996 Dodge Ram 1500 truck from California. It’s alleged the plaintiff arranged with Polynesia Line to have his Dodge truck shipped into the territory and provided the shipper with a copy of the vehicle’s Certificate of Title. The vehicle arrived on January 2012, but has since been detained by the Office of Customs.

It is also alleged the government continues to refuse to release Live’s vehicle and the government’s refusal is based on Executive Order NO 010A-2007, issued by Governor Togiola Tulafono to demonstrate the government’s commitment to assist the fight against global climate change.

The complaint summarizes the Executive Order, which also contains a ban relating to the importation of certain vehicles, including the specific directive that effective January 2009 the government would ban the importation of all vehicles manufactured prior to model year 1999.

The plaintiff was advised by Customs that the vehicle can only be released on a waiver from the governor’s office.

According to the complaint, before shipping the truck, neither the plaintiff nor his wife knew of any ban in American Samoa on importing of vehicles manufactured prior to model 1999.

Plaintiff claims he saw the Executive order for the first time when he received a copy from the American Samoa Environmental Protection Agency (EPA) while seeking the government’s assistance on releasing the vehicle.

The complaint noted that according to the Governor’s legal counsel, shipping companies were advised of the Executive Order.

Live however claims the shipper did not notify the plaintiff of a ban against importing into American Samoa vehicles older than 1999, until the vehicle was already on the ocean en-route to American Samoa.

Plaintiff through his complaint noted the Executive Order contains no procedure of any kind to obtain a waiver to the vehicle ban, nor does it contain reference to an advisory committee of any kind.

He claims he was only verbally advised by the Governor’s legal counsel that an advisory committee comprising the Department of Commerce (DOC), EPA, Customs Office and Governor’s legal counsel is responsible for reviewing a request waiver of the vehicle ban under the Executive Order and for advising the governor about the request. On advice of the governor’s legal counsel, the plaintiff submitted a waiver application to the governor.

Plaintiff also believes the government has allowed the importation of several vehicles owned by the government that were manufactured prior to model 1999, and they arrived in the territory after January 1999.

The complaint notes the Executive order contains no enforcement procedures or any procedure to determine the disposition, including seizure of a vehicle manufactured prior to model year 1999 that comes to the territory after January 1, 2009.

According to the complaint the ASEPA has determined the plaintiffs’ truck met federal emissions standards.

The complaint states the government never formally responded to the plaintiffs waiver application, but the plaintiff’s counsel was advised verbally by the governor’s legal counsel that the plaintiff’s vehicle did not qualify for a waiver.

DECLARATORY JUDGMENT

For declaratory judgement, the plaintiff claims that Article II Section 1 of the revised Constitution of American Samoa grants the legislative exclusive power to legislate with respect to subjects of local application. (Governor’s Office is executive)

The plaintiff claims the executive order should be declared unconstitutional to the extent that it seeks to regulate conduct of the general public as opposed to administrative agencies regarding the importation of vehicles manufactured before model year 1999.

Additionally, the Executive order should be declared unconstitutional because it conflicts with Article I Section 2 of the revised Constitution of the American Samoa having failed to provide any due process depriving a vehicle owner of his property.

WRONGFUL SEIZURE

The plaintiff’s vehicle is in the custody of the Customs Office which is the government’s agent and the refusal of the Customs Office to release the plaintiff’s vehicle since its arrival in the territory.

The customs office has no authority to seize the truck, the plaintiff claims, because it unreasonably relies on the Executive Order, which is arbitrary and contrary to law, including Article I Section of the Revised Constitution of American Samoa.

Since the seizure of the plaintiff’s vehicle is unlawful, the government should be ordered to release the vehicle immediately says the complaint.

The High Court has yet to set a date to hear this matter.

BACKGROUND

Gov. Togiola Tulafono has initiated a new American Samoa Government policy to purchase vehicles considered "Hybrids" and "Super Cars", while also reinforcing the ban on the importation of older model vehicles. Published in Samoa News yesterday, it is not the same Executive Order as noted in lawsuit — Executive Order NO 010A-2007.

According to our story, Togiola issued in 2007 the first order prohibiting the importation of vehicles that were manufactured prior to 1999. The new order, superseding any previous, now states it is prohibited to import any vehicle to American Samoa more than 10 years old, with the age of the vehicle determined by the vehicle’s model year and the calendar year.

However, there is a limited temporary waiver for vehicles unavailable in the territory if there is a specific need for a short term project, a long term project, or "for a special classic [car] exception" can be shown. To qualify for the exception, the individual has to send a request for waiver to the Governor’s Office for processing.

According to the order, Customs Division and the Office of Motor Vehicles are charged with implementation and enforcement of this pro-vision through their existingenforcement powers in consultation with the American Samoa Environmental Protection Agency (ASEPA).

In a separate memo, the governor says vehicles are responsible for a significant portion of greenhouse gas emissions throughout the world and these greenhouse gases contribute to climate change, which is a significant threat to American Samoa.

"Older vehicles often lack the same standards and controls that newer vehicles have, using more gasoline and contributing to more pollution," he said, adding that in recent years the market has changed, making an array of efficient vehicles such as hybrids available and more prevalent.

The governor’s new executive order is effective Aug. 21, 2012, and was released to the news media on Wednesday afternoon along with separate memos from the governor to all departments, agencies and offices about these new polices, asking them to fully cooperate with the directive.

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