Katua Corporation v Micronesian Maritime Authority [1994] FMSC 57; 6 FSM Intrm. 621 (Pon. 1994) (29 December 1994)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Katua Corporation v. Micronesian Maritime Authority, [1994] FMSC 57; 6 FSM Intrm. 621 (Pon. 1994)

KATAU CORPORATION,
Petitioner,

vs.

MICRONESIAN MARITIME AUTHORITY,
Respondent.

__________________________________________

CIVIL ACTION NO. 1994-139

ORDER

Andon L. Amaraich
Associate Justice

Decided: December 29, 1994

APPEARANCES:

For the Petitioner:
Mary Berman, Esq.
P.O. Box 163
Kolonia, Pohnpei FM 96941

For the Respondent:
Mark L. Driver, Esq.
Assistant Attorney General
Office of the FSM Attorney General
P.O. Box PS-105
Kolonia, Pohnpei FM 96941

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HEADNOTES

Mandamus
A writ of mandamus is an extraordinary remedy issued to require a public official to carry out a clear non-discretionary duty to which the petitioner has an indisputable right, and it may not be issued for the purpose of requiring a public official to carry out an act that is not within his authority. Katau Corp. v. Micronesian Maritime Auth., [1994] FMSC 57; 6 FSM Intrm. 621, 622 (Pon. 1994).

Fishing
A vessel defined as a foreign fishing vessel for permitting purposes must enter into a foreign fishing agreement prior to receiving any fishing permits. Katau Corp. v. Micronesian Maritime Auth., [1994] FMSC 57; 6 FSM Intrm. 621, 623 (Pon. 1994).

Fishing; Mandamus
Because the Micronesian Maritime Authority has discretion in negotiating and entering into foreign fishing agreements and because statutorily a fishing permit cannot be issued without a signed agreement a court cannot issue a writ of mandamus to compel issuance of a fishing permit because it cannot order performance of a statutorily forbidden act. Katau Corp. v. Micronesian Maritime Auth., [1994] FMSC 57; 6 FSM Intrm. 621, 624 (Pon. 1994).

Fishing
A party entitled to apply for a fishing permit must file an application on prescribed forms; otherwise the Micronesian Maritime Authority cannot issue a fishing permit. An applicant may be given an opportunity to cure any defects in a filed permit application. Katau Corp. v. Micronesian Maritime Auth., [1994] FMSC 57; 6 FSM Intrm. 621, 625 (Pon. 1994).

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COURT'S OPINION

ANDON L. AMARAICH, Associate Justice:

Petitioner, Katau Corporation, has filed a Petition for a Writ of Mandamus, requesting that this Court order respondent, The Micronesian Maritime Authority ("MMA"), to issue petitioner nine fishing permits. Petitioner contends that it filed an appropriate application for fishing permits with MMA on August 30, 1994, that, as of December 1994, MMA has not acted upon this application, and that, pursuant to 24 F.S.M.C. 111, MMA's inaction entitles petitioner to the automatic issuance of nine fishing permits.^[1]

A writ of mandamus is an extraordinary remedy issued to require a public official to carry out a clear non-discretionary duty. Office of the Public Defender v. FSM Supreme Court, [1990] FMSC 12; 4 FSM Intrm. 307, 309 (App. 1990). A writ of mandamus may not be issued for the purpose of requiring a public official to carry out an act that is not within his authority. Missouri ex rel. Laclede Gaslight Co. v. Murphy, [1898] USSC 63; 170 U.S. 78, 99[1898] USSC 63; , 18 S. Ct. 505, 511[1898] USSC 63; , 42 L. Ed. 955, 964 (1898) (instructing that a writ of mandamus may be issued only if the party to be coerced has the authority to perform the act sought). A writ of mandamus may only be issued upon a showing by a petitioner that he has an indisputable right to performance of the sought after non-discretionary act. Senda v. Trial Division, [1994] FMSC 40; 6 FSM Intrm. 336, 338 (App. 1994).

Petitioner has not met the burden of showing an indisputable right to issuance of nine fishing permits. In fact, rather than demonstrating that petitioner is entitled to the nine fishing permits sought, the pleadings actually indicate that respondent, under the present circumstances, is specifically forbidden by statute from issuing any permits to petitioner.

On August 30, 1994, petitioner submitted a letter to MMA requesting permission to station one hundred forty-four commercial fishing vessels in FSM waters as part of a new joint foreign/domestic fishing venture.^[2] As of December 1994, the MMA has neither granted nor denied fishing permits to petitioner in response to its proposal outlined in the letter of August 30, 1994. Petitioner contends that, pursuant to 24 F.S.M.C. 111(1), MMA's inaction absolutely entitles petitioner to the issuance of nine fishing permits. Section 111(1) of Title 24 provides: "[MMA] shall notify the applicant of the decision to issue or deny a permit within 30 days of the date of receipt of the application. If no such notification is given within 30 days, the request for a permit is deemed granted." As more than thirty days have passed since the submission of petitioner's proposal to station commercial fishing vessels in FSM waters, petitioner argues that it is entitled to issuance of nine fishing permits. Accordingly, petitioner argues that a writ of mandamus should issue requiring the ministerial delivery by MMA to petitioner of the fishing permits.

Petitioner's argument is without merit. First and most importantly, MMA is absolutely prohibited by statute from issuing petitioner a single fishing permit, and, thus, this Court cannot issue a writ of mandamus requiring MMA to issue fishing permits to petitioner. Second, even if MMA was not prohibited from issuing the permits, petitioner has not filed a formal application with the MMA, as required by statute, and, thus, petitioner is not entitled even to be considered in the process which results in the issuance or denial of fishing permits.

The Signing of a Foreign Fishing Agreement Is a Prerequisite to the Issuance of Fishing Permits

Section 401 of Title 24 of the FSM Code strictly prohibits MMA from issuing the requested fishing permits to petitioner. Section 401 states, "[n]o foreign fishing vessel shall be issued a permit to fish in the exclusive economic zone without having entered into a foreign fishing agreement." A foreign fishing vessel is defined as any vessel which is not wholly owned and operated by either the FSM or State government, a citizen of the FSM, a corporation wholly owned by any of the above, or a combination of the above. Compare 24 F.S.M.C. 102(24) (defining a foreign fishing vessel as any vessel which is not a local fishing vessel) with 24 F.S.M.C. 102(29) (defining a local fishing vessel). Petitioner has stated in its written communications with MMA that the fishing vessels for which permits are sought are of Chinese and Japanese origin and ownership. Thus, the vessels are "foreign fishing vessels" for permitting purposes and must enter into a "foreign fishing agreement" prior to receiving any fishing permits. Petitioner has not negotiated or entered into a foreign fishing agreement with MMA, and, thus, MMA may not issue fishing permits to petitioner.

Petitioner attempts to avoid the effect of its failure to negotiate and sign a foreign fishing agreement with MMA by claiming that a foreign fishing agreement is a pro forma standardized agreement which MMA has a non-discretionary duty to sign with petitioner: "MMA does not have any discretion to determine whether it will enter into a foreign fishing `agreement.'" Petitioner's Reply to Opp'n to Writ of Mandamus at 2 (Dec. 8, 1994). Petitioner believes that requiring MMA to sign a foreign fishing agreement is also an appropriate subject for a writ of mandamus. Accordingly, petitioner argues that this Court should order MMA to sign a foreign fishing agreement with petitioner, thereby removing any statutory obstacle to issuance of fishing permits to petitioner. Petitioner's contention is without merit.

By claiming that the signing of a fishing agreement is a non-discretionary function, petitioner is implicitly asserting that every foreign party with a commercial fishing vessel, who contacts MMA, is entitled to sign a foreign fishing agreement. To the contrary, no one is per se entitled to enter into a foreign fishing agreement. MMA's decision whether to sign a foreign fishing agreement is a highly discretionary decision based upon numerous factors, including the outcome of negotiations with a given applicant. According to section 107 of Tile 24 of the FSM Code MMA has authority to: "negotiate and enter into such domestic-based and foreign fishing agreements as may be required to implement this title. Such agreements may, at the [MMA's] discretion, include a provision to rebate fees under such circumstances as are consistent with this title and the [MMA] deems appropriate." 24 F.S.M.C. 107 (emphasis added).

Section 107 authorizes MMA to negotiate foreign fishing agreements and to include, at MMA's discretion, rebate provisions. If a foreign fishing agreement was a standardized non-discretionary form offered to all applicants, there would be no need to "negotiate," as all applicants would be required to sign the same agreement. Furthermore, the text of section 107 states that MMA is to use its "discretion" in negotiating the terms of foreign fishing agreements. Specifically, section 107 states that MMA is to use its "discretion" in deciding whether to include rebate provisions in foreign fishing agreements. Accordingly, the decision to enter into a foreign fishing agreement is not a pro forma ministerial activity but rather a decision that requires MMA to use its expertise and discretion. See also 24 F.S.M.C. 403 (authorizing MMA to use its discretion in allocating catch limits among foreign vessels). The signing of foreign fishing agreements cannot require MMA to engage in numerous discretionary decisions and still be a non-discretionary ministerial activity.

Petitioner attempts to support its contention that a foreign fishing agreement is merely a pro forma contract between the MMA and the applicant by relying on 24 F.S.M.C. 404, which lists "minimum" terms which must be included in any foreign fishing agreement.^[3] Petitioner contends that the requirements of section 404 create a non-discretionary obligation on the part of MMA to sign a foreign fishing agreement with petitioner. Implicitly, petitioner is arguing that the requirements of section 404 constitute the complete terms of a foreign fishing agreement, terms to which neither MMA nor an applicant may make additions or alterations. Petitioner is correct that MMA has no discretion as to the elements listed in section 404; all of these terms must be included in any foreign fishing agreement. However, the inclusion of the term "minimum" in section 404 demonstrates that the inclusion of other terms in any foreign fishing agreement is expected or at least contemplated. Section 404 is merely the starting point in the negotiation of a foreign fishing agreement, not the whole agreement as suggested by petitioner.

As the negotiation and signing of a foreign fishing agreement is a discretionary function of MMA, the Court cannot order MMA to sign a foreign fishing agreement with petitioner. Without a foreign fishing agreement, MMA is strictly prohibited from issuing fishing permits to petitioner. The Court may not order MMA to perform a statutorily forbidden act. For this reason alone, petitioner's Motion for a Writ of Mandamus must be denied.

Petitioner Has Not Filed an Application for Fishing Permits with MMA

Even if this Court were to determine that MMA has a non-discretionary duty to enter into a foreign fishing agreement with petitioner, petitioner still would not be entitled to the fishing permits sought because petitioner has not filed an application for such permits. Section 109 of Title 24 of the FSM Code states "[e]ach party entitled to apply for a permit under this title shall make application on prescribed forms." (emphasis added). Section 109 also lists a number of items which must be included in any fishing permit application, including the name, number, and country of registry for each vessel for which a permit is sought as well as the foreign fishing agreement under which the permits are sought. 24 F.S.M.C. 109. Thus, section 109 specifically requires petitioner to apply for fishing permits on preprinted forms which solicit information necessary for MMA to carry out its regulatory functions. Putting aside the fact that petitioner is not "entitled" to apply for fishing permits, as petitioner has not signed the requisite foreign fishing agreement, petitioner has not made an application on the "prescribed forms" or presented to MMA the required vessel identification information. Accordingly, because petitioner does not have an application for fishing permits before MMA, MMA cannot issue fishing permits to petitioner.

Petitioner contends that it has in fact submitted an adequate application for fishing permits and that MMA has admitted receipt of such fishing permit application. Petitioner further contends that it is MMA's responsibility to cure any deficiencies in that application.

Petitioner argues that MMA acknowledged, in a letter written on September 14, 1994, that petitioner's August 30, 1994 letter, proposing that petitioner be allowed to station commercial fishing vessels in FSM waters, was an application for fishing permits. A review of MMA's letter of September 14, 1994 demonstrates that petitioner is mischaracterizing MMA's statements in that letter. In that letter, the director of MMA merely acknowledges receipt of petitioner's "proposal to station" longliners in FSM waters.^[4] The MMA director's letter says nothing about receipt of a fishing permit application and in no way implies that MMA considered petitioner's proposal to be an application for fishing permits. Rather, the acknowledgment of petitioner's proposal, read in the overall context of the September 14, 1994 letter, which solicits further corporate information from petitioner, indicates that MMA's letter was meant to inform petitioner that MMA would consider petitioner's "proposal" as an application for a foreign fishing agreement, not as an application for fishing permits. Despite petitioner's contention, it is apparent to the Court that MMA neither has acknowledged nor implied that petitioner has filed an application for fishing permits that complies with statutory requirements.

The Court also rejects petitioner's contention that any failure by petitioner to correctly or adequately file a fishing permit application is the responsibility of MMA. Petitioner argues that section 5.2 of the Domestic Fishing and Local Fishing Vessel Licensing Regulations requires MMA to notify petitioner of any defects in its application and to solicit and collect from petitioner any missing information. Section 5.2 of the Licensing Regulations states "[i]f review of the [fishing permit] application by the Executive Director shows it deficient in any manner, he shall notify the applicant as soon as practical and give the applicant an opportunity to cure the deficiencies." Section 5.2 requires MMA to notify petitioner of defects in a fishing permit application. As stated above, however, petitioner has not filed a fishing permit application with MMA, and, as such, MMA has no defects or deficiencies in a fishing permit application to bring to the attention of petitioner. Accordingly, section 5.2 is inapplicable to petitioner's situation.

Petitioner has not filed a fishing permit application with MMA, and, as such, MMA has no duty to grant fishing permits to petitioner. Accordingly, this Court may not issue a writ of mandamus requiring MMA to issue fishing permits to petitioner.

CONCLUSION

It is hereby ordered that the Petition for Writ of Mandamus is denied.

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^[1] Petitioner actually seeks the issuance of one hundred forty-four (144) fishing permits from MMA. However, petitioner recognizes that the issuance of ten or more fishing permits requires the prior authorization of the FSM Congress. 24 F.S.M.C. 405(3). The issuance of less than ten permits does not require such prior congressional authorization. Accordingly, petitioner contends that this Court has authority to order the issuance of up to nine permits. As to the remaining one hundred thirty-five (135) permits, petitioner seeks an order granting the permits subject to FSM congressional approval.

^[2] Letter from Katau Corporation to Micronesian Maritime Authority (Aug. 30, 1994) (exhibit to respondent's Brief in Opposition to Amended Petition for Writ of Mandamus (Nov. 22, 1994)).
^[3] Most of the required terms contained within section 404 pertain to the foreign applicant's express recognition of the authority of the MMA over the applicant's commercial fishing activities and the foreign applicant's express agreement to cooperate in the enforcement of and abide by MMA regulations and FSM laws. See 24 F.S.M.C. 404.

^[4] Letter from Micronesian Maritime Authority to Katau Corporation (Sept. 14, 1994) (exhibit to petitioner's Petition for Writ of Mandamus (Nov. 10, 1994)).