Court denies Young Sun’s motion to dismiss Restraining Order on Sea Cucumber harvest

By Bill Jaynes
The Kaselehlie Press
February 17, 2017
FSM—The FSM Supreme Court today issued a ruling denying Young Sun’s International Trading Company’s motion to dismiss the “Sea Cucumber” case. The case has been bogged down in preliminary matters including several “motions to dismiss” since it first began to be heard last year but the court has now ordered that the parties move toward discovery, deadlines to submit pre-trial motions and oppositions, and three proposed dates for hearing on pre-trial motions and trial. The Court said it is making a concerted effort to move the matter forward.
The court had previously granted in part and denied in part, a Young Sun motion to dismiss but said in a footnote to the ruling that it was favorably disposed towards hearing a second motion to dismiss “out of cautionary respect for the fact that ‘whenever it appear by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action’.” Young Sun had brought new evidence to the court’s attention in its second motion so it agreed to hear the motion which it denied in its ruling today.


The court denied Young Sun’s motion that the Mwoalen Wahu’s opposition to its motion to dismiss was filed late and therefore was invalid. It cited multiple discrepancies between oral testimony and hand written documents about when the certificate of service was delivered to the Mwoalen Wahu. Poor penmanship made the date on the hand written date on the document nearly illegible. Regardless, the court ruled that the Mwoalen Wahu had responded in time.
Young Sun’s main argument centered on the existence of the Mwoalen Wahu based on a letter written by Nanmwarki of Sokehs Herculano Kohler to Pohnpei Governor on April 8 saying that the Mwoalen Wahu had disbanded. That date was prior to the date of the filing of the law suit and Young Sun argued that since the organization no longer existed after that date, it did not have standing to file the civil action to stop the planned sea cucumber harvest.
The Mwoalen Wahu argued that the issue of whether or not the individual traditional leaders had legal standing to file the civil action was dealt with specifically in the court’s previous decision. “It further argued that where Mwoalen Wahu exists is a settled issue and a letter from one traditional leader stating that several kingdoms are withdrawing from the organization does not definitively mean that the organization is dissolved.”
After weighing the evidence, the court said that it is clear that the group remains in existence today, in line with its previous finding in it September 28, 2016 order. “Additionally, although less clear, the court sustains its finding that the Iso Nahnken of Nett, Salvador Iriarte has the apparent authority to bring the suit on behalf of the Mwoalen Wahu.”
The court said that if the letter from the Nahnmwarki of Sokehs claiming that the Mwoalenwahu had been disbanded, had been signed also by the Nahnmwarkis of the other kingdoms of Pohnpei that would have constituted definitive proof that the organization no longer exists. Instead that letter had only HM Herculano Kohler’s signature.
The court also said that its opinion was bolstered by the fact that the court had issued and served on several Nahnmwarkis and order that invited them to comment on Iso Nahnken of Nett’s representation of Mwoalen Wahu or otherwise intervene in the matter. With the exception of the Nahnmwarki of Sokehs, no action was undertaken to refute the existence of Mwoalen Wahu or Iso Nahnken’s authority to represent it. “The court’s reasoning that Mwoalen Wahu remains in existence today is also confirmed by the attendance lists, agendas, and financial records submitted by Mwoalen Wahu and admitted into evidence by the court during the hearing,” the ruling said. “These records indicate that meetings have been held by and stipends paid for by the state of Pohnpei to member of the Mwoalen Wahu on no less than five occasions since April 8, 2016. The proposed sea cucumber harvest was on the agenda for at least one of these meetings.”
“Although there is a dispute as to whether these meetings actually took place or whether the attendance list is merely those from the group who showed up to collect their stipend without actually holding a meeting, the distinction is irrelevant, given that the Pohnpei government continues to acknowledge Mwoalen Wahu’s existence by disbursing stipends to its members and maintain the state government position of liaison specialist to Mwoalen Wahu,” the court ruled.
It ruled that Iso Nahnken of Nett Salvador Iriarte is vested with the authority to bring the law suit on behalf of Mwoalen Wahu as it is organized today. It pointed out that Young Sun itself previously attempted to argue that those hold traditional titles other than Nahnmwarki can be members of the Mwoalen Wahu. Young Sun had previously argued in a motion to recuse the presiding judge in the case that since the father of the judge has the title of Wasahi of Sokehs, second in rank to the Nahnmwarki of Sokehs the judge was conflicted out. That motion was denied.
Young Sun also contended that none of the edible species of sea cucumbers is part of or included in the sea cucumber harvest project. The court ruled that fact does not mean that the population of such species will not be negatively affected by a harvest which is more likely than not to have an impact on the ecosystem they inhabit.
“It is hearby ordeded the hearing and determination of any subsequently filed Civil Rule 12(b) motions shall be deferred until trial unless the court otherwise determines that an immediate preliminary hearing is necessary to prevent manifest injustice,” the court ruled. It then ordered the parties to confer and submit a joint pre-trial schedule.