FSM Supreme Court grants a 14 day TRO stopping sea cucumber harvest in Pohnpei

By Bill Jaynes
The Kaselehlie Press
July 20, 2016
Pohnpei, FSM—This afternoon, Specially Appointed Justice to the FSM Supreme Court Marceleen JD Anson granted a Temporary Restraining Order (TRO) barring the Pohnpei Government or Young Sun International Trading Company from proceeding with a sea cucumber harvest.
The order came after hearings at the FSM Supreme Court on Monday and Tuesday on a civil action filed by the Paramount Chiefs of Pohnpei “by and through” Iso Nahnken Salvador Iriarte and Conservation Society of Pohnpei against Governor Marcelo Peterson and Cassiano Shoniber in their official capacities, the Pohnpei State Government, and Young Sun International Trading Company.


Kembo Mida Jr. and David Angyal of Ramp and Mida Law Firm represented the plaintiffs. Acting Attorney General for Pohnpei Judah Johnny and Assistant Attorney General Monaliza Abello- Pangelinan appeared on behalf of the State. Prior to the hearing, Martin Jano made an application to the court to appear pro hac vice as counsel for Young Sun. That request was denied and the hearing proceeded without Young Sun being represented by counsel on the first day. Attorney Joseph Phillip appeared for Young Sun on the second day.
At the start of the hearing, Chief Justice Dennis K. Yamase recused himself since Assistant AG Abello-Pangelinan is his wife’s sister.
The plaintiffs allege that the contract between the State and Young Sun that would allow Young Sun to harvest up to sixty-seven tons of sea cucumbers from Pohnpei waters is unsustainable and against the law because OFA lacks a management plan and the personnel and resources to monitor, manage, and enforce the law. They additionally allege that OFA’s harvest lacks scientific evidence of the impact of such a large scale commercial harvest on Pohnpei’s marine ecosystem. They say that data collected and analyzed from 2012 to May 2016 by Dr. Peter Houk, head of the University of Guam’s Marine Laboratory, showed that the stock of sea cucumbers has declined since 2012.
In evaluating whether or not it should issue a Temporary Restraining Order, the court must balance four factors: 1) The possibility of irreparable harm to the party moving for the order, 2) the likelihood of success on the merits of the movant, 3) the balance of possible injuries or inconveniences between the parties; and 4) the impact of any requested action upon the public interest.
Irreparable Harm
The State asserts that since the plaintiffs in the action do not have a direct interest in conserving the population of sea cucumbers they will suffer no irreparable harm. They also argued that in fact the people of the State, specifically the harvesters, and the Pohnpei State Government will be the ones to suffer irreparable harm since the first day of harvest has been completed and those sea cucumbers will be wasted because they will not be able to be marketed and sold because they will spoil and be useless to anyone.
The traditional leaders conversely argued that it is their traditional responsibility to ensure that the environment is properly maintained. They said that they will suffer irreparable loss because execution of the contract for the harvest would severely impact the population of sea cucumbers thus creating a negative impact on the Pohnpei ecosystem. They also argued that they would be personally harmed because the harvest will directly impact their right to receive traditional offerings from their people, including sea cucumbers.
As an NGO tasked with conservation efforts in Pohnpei, the Conservation Society of Pohnpei claims the same irreparable harm to Pohnpei’s fragile ecosystem.
The court pointed out that when money damages or other relief will fully compensate a party, irreparable harm does not exist. “While the plaintiffs could not be compensated by money damages in lieu of injunctive relief, the State is concerned only with the $2.3 million payment under the contract and Young Sun only with the profits to be made from the harvest.”
It said that that the irreparable harm factor weighs heavily in the Plaintiff’s favor.
Likelihood of Success on the Merits
“Although Plaintiff’s likelihood of success is not certain at this juncture, their position raises serious, non-frivolous issues for this court to consider,” the court wrote in its ruling and then proceeded to list the matters which the court is expected to consider in the civil action that plaintiffs had presented:
• OFA’s alleged lack of an identifiable comprehensive fishery management plan for the sea cucumber harvest under the current contract;
• OFA’s alleged serious lack of enforcement resources considering the scale of the harvest and the potential for local fishermen to knowingly or unknowingly harvest in marine protected areas;
• A complete deficiency of up-to-date scientific studies, feasibility studies, or other appropriate assessments analyzing the sustainability of such a large scale harvest;
• A more recent study than the one conducted by OFA, the report prepared by Dr. Peter Houk of the University of Guam concluded that data shows that harvesting at the present time is not recommended because of low densities of large species and no substantial recover of small species since their population declined in 2013;
The court found that “Plaintiffs provided sufficient proof that the State failed to develop a management plan or conduct appropriate assessments for the sustainability of the current harvest and that, as a result, there is distinct possibility that these interests were not properly balanced.
“Thus, the likelihood of success, although not certain, favors the Plaintiffs.”
Balance of Possible Injuries
The court said that the balance of possible injuries of inconveniences between the parties presents a close case for review. Plaintiff’s face an “imminent and possible irreparable threat to Pohnpei’s marine ecosystem and sea cucumber stock” that cannot be compensable by the receipt of money.
The Defendants argue that it will suffer irreparable harm because the harvesters will no longer be compensated for their efforts and time and the State Government may be liable for damages or $2.3 million or more if the contract is breached. The harm to Young Sun is likewise monetary in nature since they project substantial profits from the finished products of the harvest.
The Court found that the Defendants’ damages are compensable by reasonable money damages with the exception of the “potential harm to Young Sun’s international business reputation. “This potential harm, however, is less as weighed against the potential harm to the Plaintiffs in this matter...The harm to Defendants is negligible because this temporary restraining order will remain in effect for only 14 days, only temporarily restraining the State and Young Sun from executing the contract and opening harvest season for that short amount of time,” the court ruled.
Impact on the Public Interest
“Allowing a potentially environmentally devastating sea cucumber harvest is certainly not in the public interest. Indeed, there is strong public interest in protecting the precious environment and natural resources of Pohnpei,” the court said.
“The Defendants’ argument that the public interest favors the local harvesters is well taken; however, I agree with the Plaintiffs in stating that the temporary nature of this order and the potential conservation it might have on the environment that would affect all Pohnpeians in the short term is not outweighed by the economic interest of a few hundred fishermen, the State or Young Sun.”
Security bond paid
The law requires security whenever a TRO is issued and gives the court discretion in establishing the amount of the bond. The court ordered the Plaintiffs to pay a security bond of $2000 considering the temporary nature of the bond. Plaintiffs paid that bond on the same afternoon.
TRO granted
“The State of Pohnpei, Governor Marcelo Peterson, Administrator Cassiano Shoniber and Young Sun shall be immediately enjoined from conducting, endorsing, or coordinating any further commercial sea cucumber harvesting in Pohnpei waters by citizens of Pohnpei and from selling or purchasing sea cucumbers harvested in Pohnpei waters by citizens of Pohnpei, PROVIDED that any sea cucumber already harvested prior to the date of this Order may be sold to and purchased by Young Sun pursuant to the laws and regulations and any sea cucumber coming into the possession of Young Sun that was harvested prior to the date of the Order may be handled accordingly so as to prevent the unnecessary waste of those sea cucumbers already harvested prior to this restraining order,” the final ruling of the court on the TWO motion said.
The court set a hearing day of August 3, 2016 at 2:00 PM for the Plaintiff’s motion for a preliminary injunction.