Nagata v Pohnpei [2003] FMSC 33; 11 FSM Intrm. 417 (Pon. 2003) (14 March 2003)

FSM SUPREME COURT TRIAL DIVISION
Cite as Nagata v. Pohnpei
[2003] FMSC 33; 11 FSM Intrm. 417 (Pon. 2003)

[2003] FMSC 33; [11 FSM Intrm. 417]

ISAO NAGATA and PACIFIC DREAM
CORPORATION,
Plaintiffs,

vs.

STATE OF POHNPEI, STATE OF POHNPEI
OFFICE OF ECONOMIC AFFAIRS, and
YALMER HELGENBERGER, in his capacity as
Administrator of the State of Pohnpei Office
of Economic Affairs,
Defendants.

CIVIL ACTION NO. 2002-046

ORDER DENYING MOTION

Andon L. Amaraich
Chief Justice

Decided: March 14, 2003

APPEARANCES:

For the Plaintiffs: Andrea S. Hillyer, Esq.
P.O. Drawer D
Kolonia, Pohnpei FM 96941

For the Defendants: Marstella Jack, Esq.
Emeka E. Akimigbo, Esq.
Assistant Attorneys General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTE

Administrative Law
When the state has held a hearing and solicited comments before adopting the regulations and when the defects the plaintiffs complain of in the regulations are not ripe for court decision and are of the type that are more properly addressed through state administrative action, the injury is a speculative one, especially when the plaintiffs have not demonstrated any attempt to apply for a license under the regulations. If the plaintiffs apply for a license and are denied, they may pursue remedies through the state administrative procedures act Nagata v. Pohnpei, [2003] FMSC 33; 11 FSM Intrm. 417, 418 (Pon. 2003).

* * * *

[11 FSM Intrm. 418]

COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

On February 18, 2003, plaintiffs filed a motion requesting that the Court order defendants to comply with the permanent injunction issued in this case. Defendants filed an opposition to this motion on February 24, 2003.

The Court denies plaintiffs’ motion, because plaintiffs fail to demonstrated how the regulations at issue do not provide a fair and transparent application process for soliciting bids and awarding contracts for harvest of trochus.

Plaintiffs submit a copy of Pohnpei State Trochus Harvest and Marketing Regulations executed by Governor Johnny David and Mr. Youser Anson, the Director of the Division of Land and Natural Resources, on January 9, 2003. Significantly, plaintiffs do not allege that the process by which the regulations were adopted by Pohnpei State was improper in any way - it is clear that a hearing was held, and that the State of Pohnpei solicited comments before adopting these regulations. What plaintiffs do challenge is the content of certain regulations, asserting that they do not insure that marketing licenses and trochus contracts will be awarded according to a fair and transparent process. It appears that many of the comments made by plaintiffs about the proposed regulations were not incorporated into the final version as adopted.

The defendants argue, and the Court agrees, that the defects in the regulations complained of by plaintiffs are not ripe for decision, and are of the type that are more properly addressed through state administrative action. Plaintiffs argue that it would be possible for the State to effectively award a contract to a certain party without requiring a bid by denying all but the selected marketing license applications. This is a speculative injury, especially when plaintiffs have not demonstrated any attempt to apply for a license. The regulations require that any action on a marketing license must be taken by the Director within 30 days. If plaintiffs apply for a license and are denied, they may pursue remedies through the state administrative procedures act.

Accordingly, plaintiffs’ motion requesting compliance with the injunction is HEREBY DENIED.

* * * *