FSM 6 Intrm. 065-074

If a power is of an indisputable national character such that it is beyond the state's power to control, then that power is to be considered a national power, even though it is not an express power granted by the Constitution. FSM v. Kotobuki Maru No. 23 (I), 6 FSM Intrm. 65, 70-71 (Pon. 1993).

A state power can be concurrently national to the extent that the state cannot adequately exercise that power in the manner in which it is intended either by statute or by or constitutional framework for circumstances not foreseen by the framers of our Constitution. FSM v. Kotobuki Maru No. 23 (I), 6 FSM Intrm. 65, 72 (Pon. 1993).

To the extent that the state is unable to police its waters and enforce its fishing regulations of its own, the national government has an obligation to provide assistance. However, to the extent that the national government must provide assistance, the power to regulate state waters is beyond the state's control and is in fact a concurrent national power. FSM v. Kotobuki Maru No. 23 (I), 6 FSM Intrm. 65, 73 (Pon. 1993).

A condition on an MMA fishing permit which prohibits fishing within 12 miles of the FSM unless authorized by the state which has jurisdiction is an exercise of the national government's unexpressed concurrent national power. FSM v. Kotobuki Maru No. 23 (I), 6 FSM Intrm. 65, 73 (Pon. 1993).

These are companion civil and criminal actions instituted by the FSM Government against certain foreign fishing vessels, their officers and owner for violations of national fishing statutes. Both matters appeared before me on the defendants' motion for dismissal. Oral arguments on the companion motions were presented by both parties to the Court on April 7, 1993. On May 12, 1993, I denied the motions in part and granted them in part. The following is an elaboration of that ruling.

The civil defendants are four fishing vessels Kotobuki Maru Nos. 23, 25, 28 and 8 (hereinafter "the vessels"); the owner of the vessels, a Japanese corporation; the fish master and captains of the vessels. The criminal defendants are the four captains of the vessels and the fish master.

On February 1, 1993, the Micronesian Maritime Authority (MMA) issued a fishing permit to the vessels allowing them to fish within the FSM's Exclusive Economic Zone (EEZ) from February 1, 1993 to August 9, 1993. Only one permit was issued to all four vessels because the vessels are considered "group purse seiners." Such vessels conduct fishing operations as a unit, while performing different functions: The "seine anchor" searches for fish; the "group seiner" sets the seine, or net; the remaining two "purse seine carriers" store the catch. From February 1, 1993 until March 19, 1993, the vessels' catch log indicates that 398 metric tons of fish were caught in the EEZ.

The permit issued by the MMA contains certain standard operating conditions which are to be followed at all times. Among those conditions are that; (1) "Fishing operations are to be conducted in accordance with Title 18 and Title 24 of the F.S.M. Code;" and (2) "Fishing within 12 miles of the Federated States of Micronesia is prohibited unless authorized by the State which has jurisdiction." FSM's Response to Defs.' Motion to Dismiss, Ex. A (Mar. 31, 1993).

On March 19, 1993, FSM Marine Surveillance observed one of the vessels, the Kotobuki Maru No. 25, within 12 miles of the State of Pohnpei, and within the marine space of the FSM. The other three vessels were just beyond the 12 mile zone, inside the EEZ. While no nets or other gear were displayed, the vessels were deemed by Marine Surveillance to be "searching for fish" which, under 24 F.S.M.C. 102(19)(a), constitutes fishing. 24 F.S.M.C. 102(19) ("`Fishing' means: (a) the actual or attempted searching for, catching, taking, or harvesting of fish"). Because Kotobuki Maru No. 25 was found within 12 miles of the State of Pohnpei and did not have a permit from that state, the vessels were arrested and charged with violating the condition of their permit which forbids them to fish within 12 miles of the FSM without state authorization. Although the other vessels were within the EEZ as permitted, the Government charges that they were awaiting the signal of the searching seine anchor vessel before crossing into the 12 mile zone to cast the seine.

The Government seeks civil penalties of $5,000,000.00 against the defendants, forfeiture of all four vessels along with their fishing gear, furniture, appurtenances, stores, and cargo for violation of 24 F.S.M.C. 501(1)(a) which makes violation of a provision in the permit unlawful. The Government also seeks criminal sanctions against the captains and fishing master of the vessels, pursuant to 24 F.S.M.C. 503(1).

Due to the same incident, the State of Pohnpei has also instituted civil and criminal proceedings in state court against the defendants for illegal fishing in violation of state law. However, Pohnpei is only proceeding against one of the vessels, the Kotobuki No. 25 which was found fishing within 12 miles of Pohnpei State without a state permit. As a result of the state proceedings, the Government has made a suggestion on the record that it "will abate its action against Kotobuki Maru No. 25, its owner captain, and fish master pending successful conclusion of the Pohnpei State case."

Defendants move for the dismissal of both matters. The motions for dismissal are based on the position that the Government does not have the constitutional power to make a violation of state fishing law a violation of national law. According to the defendants, the regulation of fishing with 12 miles of the State is an exclusive state power which the Government cannot infringe upon. Since the permit issued by the MMA makes no fishing within the 12 mile zone without a state permit an express condition for fishing in the EEZ, and because 24 F.S.M.C. 501 prohibits the violation of any condition in the permit, the condition has the effect of regulating fishing within the 12 mile zone by requiring state authorization to fish within that zone. Defendants contend that such a condition is constitutionally and statutorily excessive, since the National Government has no jurisdiction over the 12 mile zone.

The Government, is its response, concedes that regulation of fishing within the 12 mile zone is a state power and not a national power. However, the Government does not view the condition as an infringement on Pohnpei State's power to regulate fishing within 12 miles,1 since it is not per se regulating the 12 mile zone. Rather, it is assisting Pohnpei in policing and enforcing state laws. In light of this assistance, the Government contends that the condition on the permit is reasonable and therefore statutorily permitted by 24 F.S.M.C. 104 ("No scientific research, training, or foreign recreational fishing is permitted in the exclusive economic zone except by a valid and applicable permit issued by the Authority on such reasonable terms and conditions as it shall require.") The Government also argues that the defendants are estopped from asserting any claims against the condition, since they agreed to the condition upon obtaining the permit and upon signing the foreign fishing agreement which is a prerequisite to obtaining a permit. Finally, the Government assures the Court of its ability and intention to abate its proceeding against Kotobuki No. 25 pending the state prosecution.

The parties have articulated what they believe to be the central issues before the Court. Defendants see the main question as whether or not the Government has the constitutional or statutory power to condition compliance with national fishing laws on whether or not state fishing laws are followed as well. The Government believes that no constitutional question exists and that the Court's inquiry should be limited to whether or not the condition on the permit is reasonable. Defendants see the issue of reasonableness as irrelevant and subsidiary to the constitutional issue.

The FSM Constitution distinguishes national powers from state powers. "A power expressly delegated to the national government, or a power of such an indisputably national character as to be beyond the power of the state to control, is a national power." FSM Const. art. VIII, § 1. "A power not expressly delegated to the national government or prohibited to the states is a state power." FSM Const. art. VIII, § 2.

The power at issue here is the power to regulate fishing within 12 miles of the states. This power is not expressly mentioned in the Constitution. Rather, the Constitution gives Congress the power "to regulate the ownership, exploration, and exploitation of natural resources within the marine space of the Federated States of Micronesia beyond 12 miles from island baselines." FSM Const. art. IX, § 2(m). Also, nothing in the Constitution prohibits the states from regulating fishing in their territorial waters. Therefore, the regulation of the 12 mile zone is presumably a state power, pursuant to article VIII.

[A] federal system of government in which the national government reigns supreme in its very limited and narrowly defined sphere of responsibility and the state governments are supreme in their much broader sphere. The powers of the national government are "express powers" and those of the states, "residual." That means that the national government has only those powers expressed in the Constitution, while the state governments have all other powers of government.

The Committee went on to expressly list regulation of offshore resources beyond 12 miles as an exclusive power of the national legislature. "Your committee feels that regulatory authority over both mineral and fishery resources beyond 12 miles of an island ought to rest in the national government." Id. at 819. Thus, the regulation of waters within 12 miles of the states was presumably intended to be a state power. In light of this premise, the Government's action must rest on valid statutory authority in order to pass constitutional muster.

Regulation of the EEZ rests exclusively with the MMA. 24 F.S.M.C. 301-302. The MMA does have statutory authority to issue state permits if authorized and in accordance with state law. 24 F.S.M.C. 117. However, the issuance of state permits is more a service which the national government provides for the states rather than an exercise of sovereign right. No other duties or functions pertaining to state waters are provided for by the statute.

However, with regard to the regulation of fishing in the EEZ, the MMA has considerable authority to impose limits, requirements, and conditions on those who seek its authorization. Specifically, the MMA may impose "reasonable terms and conditions" on those engaged in "scientific research, training, or foreign recreational fishing." 24 F.S.M.C. 104. As for commercial fishing, the MMA may regulate fishing either by permit or by "a regional or multilateral license issued pursuant to a treaty or agreement." 24 F.S.M.C. 103. Such treaties may permit exemption from the requirements of Title 24 with certain conditions or other terms not included in the statute. 24 F.S.M.C. 106.

As the Federated States of Micronesia has only limited land-based resources, the sea provides the primary means for the development of economic viability which is necessary to provide the foundation for political stability. The resources of the sea must be managed, conserved, and developed for the benefit of the people living today and for the generations of citizens to come.

While constitutional and statutory authorities recognize the power of the state to regulate its waters, an inquiry which must be made is whether or not this power is an exclusive one. The Government maintains that the condition on its permit simply reinforces the state's own licensing regulation, and that it seeks protection of the state power rather than usurpation of it. In view of the intent behind the condition on the permit, the Government views it as reasonable and therefore within the bounds of the statute. It seems that, if such a contention were to succeed, it would have the effect of reducing the state power from an apparently exclusive power to something more of a concurrent one with the Government's national powers. Wherefore, before directly examining the reasonableness of the condition, I must consider whether or not it is feasible for such a reduction to take place. If indeed it is, then the ensuing inquiry must be whether or not the present circumstances warrant it.

Could the state power to regulate fishing within the 12 mile zone ever be non-exclusive or be considered a concurrent national power? The Constitution appears to leave open that possibility. "A power expressly delegated to the national government, or a power of such an indisputably national character as to be beyond the power of the state to control, is a national power." FSM Const. art. VIII, § 1 (emphasis added). Specifically, article VIII creates an exception to the rule distinguishing express national powers from residual state powers. If a power is of an indisputably

[T]hough Micronesia's cultural diversity may not be unique, its geography is. The states of Micronesia are separated by vast expanses of sea providing a natural obstacle which has hindered the efficient operation of government since a centralized governmental system was first introduced. Your Committee recognizes the lesson of history that union brings strength, and that diverse groups can be molded into a harmonious viable society. Your Committee believes that while a homogenous people living in a geographically compact area can perhaps have their aspirations best served by an all powerful national government, nations such as Micronesia which lack the bond of common cultural origin and which lack the advantage of compact geography must permit local autonomy in order to have efficient government and to avoid the destructive consequences, real or imagined, of domination by one group over another.

Your Committee intends that the national government be responsible for dealing with problems of a clearly national character. Ideally, all such problems should be foreseen by your Committee and this Conventions that the national government could be granted express powers to deal with them, alleviating the necessity of a general grant of power. However, the ideal is not possible. Your Committee has no crystal ball. With the rapidity of technological and social change, twenty-five years from now that which was not even dreamed of may be commonplace. The Constitution must be capable of adaptation to change. The general grant of power is then designed to grant flexibility into the Constitution, to make it an enduring document, and to reduce the costly, difficult, time-consuming necessity of frequent amendment.

Specifically, one of these concerns was the safeguarding of the nation's interests, even where such safeguarding was the primary responsibility of the states. The delegates were mindful of the need for "the power to deal with problems which may now be considered state in nature but which because of changing circumstances in the future, may become national in scope." Id. at 816. Hence the general power to deal with "indisputably national" problems was given to the Government. According to the delegates, "[d]etermination as to whether a power falls within the category would lie initially with the national legislature and national chief executive, and if their conclusions were challenged, the final decision would rest with the Supreme Court." Id. at 815.

The article VIII analysis made above was followed by this Court in Edwards v. Pohnpei, 3 FSM Intrm. 350 (Pon. 1988). In determining whether a power is state or national, the Court ruled that "if a power is not mentioned in the Constitution, the likelihood is that the framers intended it to be a state power. The only unexpressed powers which may be exercised by the national government are powers of `such an indisputably national character as to be beyond the power of a state to control.'" Id. at 357 (quoting FSM Const. art. VIII, § 1).

The Edwards dictum was followed in FSM v. Oliver, 3 FSM Intrm. 469 (Pon. 1988). In that case, the defendant was charged by the Government with killing five sea turtles within 12 miles of Pohnpei. The prosecution was brought pursuant to 23 F.S.M.C. 105, which prohibited the killing of turtles during certain seasons. Unlike here, the statute involved a general prohibition, not limited to the EEZ or to the Territorial Sea. Defendant moved to dismiss for lack of jurisdiction by the Government. The issue before the Court was very similar to the present one: "[W]hether 23 F.S.M.C. 105 is national law and, if so, whether it authorized national government law enforcement efforts throughout all marine space of the [FSM] or only in marine space more than twelve miles from island baselines." Oliver, 3 FSM Intrm. at 472.

The Court ultimately ruled that the statute was national law, and thus authorized Government enforcement, only within the EEZ and that it was state law, and thus enforceable by the state, only within 12 miles. However, the Court went on to state that "[e]ven when the Constitution assigns primary lawmaking powers to the states, the national government may be empowered to act pursuant to its other general powers." Id. at 479 (citing Edwards, 3 FSM Intrm. at 359). The Court found the exercise of such general powers to be appropriate in areas where enforcement of a statute fell short of its intended purpose. "If neither state nor national powers alone are sufficient to carry out the original purpose of a carryover statute, or if state and national powers are invoked, then the statute is enforceable as state and national law." Id. at 477.

While the analysis of the Oliver Court specifically concerned the effect of the Constitution's transition clause on the statute at issue, the implication was clear that, in circumstances where a state could not execute a power which was the intended purpose of a statute, there arose an issue as to whether or not the power was "indisputably national" in character. At the very least, Oliver established a direct relationship between the ability of state to exercise a power and the exclusivity of that power: The more capable the state to exercise its power, the more exclusive the power; conversely, the less capable the state to exercise its power, the less exclusive the power.

Wherefore, I find the above analysis to lead to the conclusion that a state power can be concurrently national to the extent that the state cannot adequately exercise that power in the manner in which it is intended by statute or by our Constitutional framework for circumstances not foreseen, as here, by the framers of our Constitution.

The Government does not purport to be infringing upon state powers. Rather, it views the conditions on the permit as assisting Pohnpei State in enforcing the State's own fishing regulations. From this position comes the presumption that the State is in need of such assistance. In view of the fact that the vessels were apprehended by FSM Marine Surveillance, such a presumption is not unfounded.

The importance of our marine resources cannot be overstated. As already stated, the protection of the nation's maritime resources within both the EEZ and the Territorial Seas is crucial, for they are "our primary means for the development of economic viability which is necessary to provide the foundation for political stability." 24 F.S.M.C. 101. To that end, the states and the National Government are to work in harmony as they have attempted to do in this case. To the extent that the state is unable to police its waters and enforce its fishing regulations on its own, the Government has an obligation to provide assistance. It has done so.

However, if such assistance has been and must be provided, it follows that the state is not in a position to protect its waters. To that extent, I find that the power to regulate its waters is beyond the state's control and is in fact a concurrent national power.

The Government holds the position that the condition on the MMA permit requiring state authorization to fish in state waters is a reasonable one, pursuant to 24 F.S.M.C. 104. However, 24 F.S.M.C. 104 explicitly refers to the issuance of permits for "scientific research, training, or foreign recreational fishing" ) i.e. non-commercial fishing. It is this section which allows for the "reasonable conditions" that the Government argues it has imposed. However, the facts of this matter clearly demonstrate that the vessels arrested by FSM Marine Surveillance were not engaged in recreational fishing. Indeed, a purse seine operation with a catch of 398 metric tons can hardly be considered "recreational." The vessels were engaged in commercial fishing. Therefore, they cannot be prosecuted under statutes pertaining to non-commercial fishing, especially when Title 24 contains a section for the issuance of permits to commercial vessels. 24 F.S.M.C. 103(1).

The MMA may issue "valid and applicable permit(s) issued under authority conferred by this title" to foreign commercial fishing vessels. 24 F.S.M.C. 103(1). In any such permit, there are conditions to be imposed by the grantor and to be followed by the grantee. That is the nature of a permit: To grant conditional authorization to accomplish certain acts. Therefore, it follows that a permit granted by the MMA under 24 F.S.M.C. 103 must contain conditions just as a permit granted under 24 F.S.M.C. 104 would, even if 24 F.S.M.C. 103 does not expressly provide for such conditions. No express provision obligates the MMA to impose "reasonable conditions" on these commercial permits, as with non-commercial fishing permits. Thus, the Government's argument of "reasonableness" is besides the relevant analysis, since it is based on the incorrect statute.

Defendants' motions for dismissal do not succeed in view of the facts and the law in these matters. However, because one of the vessels)Kotobuki Maru No. 25)is being proceeded against in Pohnpei state court, I hereby dismiss the above actions against that vessel, its captain, and the fish master of the group. This is to allow a determination of state law by the state court and to avoid duplicative proceedings against those defendants.

The above matters are hereby dismissed without prejudice with respect to defendants Kotobuki Maru No. 25, Yoshinaga Abe, captain of the Kotobuki Maru No. 25, and Seikoh Takahashi, the fish master. With regard to the remaining defendants, the motions are denied.