Omelau v Republic of Palau [2009] PWSC 3; CA09.032 (28 December 2009)

IN THE SUPREME COURT OF THE REPUBLIC OF PALAU
TRIAL DIVISION

CIVIL ACTION NO. 09-032

NGIRABRENGES OMELAU,
Plaintiff,

vs.

REPUBLIC OF PALAU, DIVISION
OF FISH AND WILDLIFE
PROTECTION, and KAMMEN CHIN,
CHIEF OF FISH AND WILDLIFE
PROTECTION, in his official capacity,
Defendants.

DECISION

On February 16, 2009, Plaintiff Ngirabrenges Omelau filed a complaint seeking the return of 28 kesokes nets with attached floaters and sinkers and a net bag in its pre-seizure condition, or compensation for unconstitutional deprivation, or damages for an intentional conversion of Plaintiff=s property. In response, Defendants filed a motion to dismiss on March 9, 2009, and Plaintiff filed his response to that motion on March 20, 2009. On May 22, 2009, the Court denied in part and granted in part Defendants= motion to dismiss. Plaintiff=s claim for the return of property survived, but his claims for compensation for unconstitutional deprivation and damages for intentional conversion were dismissed as claims barred by sovereign immunity. On June 2, 2009, Defendants filed an answer and counterclaimed for: (1) 29 separate violations of 27 PNC ' 1204 (m) and (n), which each carry a fine of $200,000; (2) forfeiture of the nets under 27 PNC ' 1208(b)(3), because they were unlawful under 27 PNC ' 1204 (m) and (n); and (3) an injunction for any future use of the nets under 27 PNC ' 1209 (b)(5).[1] Defendants also sought costs and attorney fees, but set forth no basis for such an award. On June 25, Plaintiff answered the counterclaims with the affirmative defenses of laches, estoppel, statute of limitations, waiver and failure to state a claim upon which relief can be granted. The parties were unable to resolve their differences and this matter went to trial on December 14, 2009, with written closings filed on December 18, 2009. By the time of written closings, Plaintiff still sought return of the nets (including sinkers and floaters) or compensation, but the Republic had downgraded its demand to civil forfeiture of the illegal nets.

The Court hereby issues its findings of the relevant facts and conclusions of law pursuant to ROP R.Civ.P. 52.

FINDINGS OF FACT

The Court finds that upon the advice of a local fisherman named Rechirei Bausoch and a manager from the Palau Fisherman=s Association,[2] Plaintiff flew to the Phillippines in 2000 to buy fishing gear from a specific vendor. He bought twelve sacks of floaters, 90 rolls of string and 89 rolls of mesh/fishing net. He bought the weights (Asinkers@) in Palau. Plaintiff knew that the legal minimum mesh size was three inches,[3] and so he had the Filipino vendor measure the net before he was bought it. He saw that the mesh of the net measured three inches.[4] The vendor also pushed a pencil-like object with a diameter of three inches through the net. The nets cost about $2,000 in the Phillippines, but Plaintiff also had to shoulder the cost of transporting these items back to Palau - the only specific cost Plaintiff mentioned was $85 bill for excess baggage. The weights cost $2,500. Finally, Plaintiff hired four Filipino workers to come to Palau and help him assemble the nets. He paid each worker $250/month, and the four men were here for two months, all of which adds up to $2,000 for the four workers. Although the workers had told him that they knew how to assemble nets, once they arrived here it became clear that they did not know how to make these nets, so he paid Rechirei $2,000 to show the workers how to make kesokes nets.[5] The nets varied from 150 to 250 feet in length. After they were assembled, Plaintiff fished with the nets for about three years until they were confiscated.

On September 10, 2004, the Division of Fish and Wildlife Protection (ADFW@) confiscated all 28 of Plaintiff=s kesokes nets, along with a bag. The DFW alleged that the nets= mesh size was too small as it did not measure three inches diagonally. The DFW told that Plaintiff that his nets were the same size as Rdialul=s nets. The DFW has not returned the nets to Plaintiff, nor have they filed criminal charges or commenced civil forfeiture proceedings against Plaintiff.

Everyone appears to agree that Plaintiff=s nets were the same size as Rdialul=s nets. Rdialul=s nets were confiscated around the same time as Plaintiff=s nets. Rdialul had purchased his nets in Palau from Palau Fishing Authority, which ran a fishing gear store called Palau Federation of Fishing Association. (These are the same individuals who sent Plaintiff to their vendor in the Phillippines, because the store had run out of kesokes nets.) Rdialul paid about $3,000 for his nets and $75 for the net bag. Rdialul believed the mesh size of his nets met the legal requirement of three inches. He testified that although the mesh may expand or contract when wet, it returned to its original size when it dried. On September 12, 2003,[6] DFW confiscated Atwenty some@ nets from Rdialul, because DFW alleged that the mesh size of Rdialul=s nets was less than three inches. Over four years later, on January 14, 2008, Rdialul filed a civil complaint against the Republic, the DFW, and DFW Chief Kammen Chin. On May 28, 2008, Justice Salii dismissed Plaintiff=s civil case because the Republic was prosecuting Rdialul for possession of unlawful kesokes nets in Criminal Action No. 08-073.[7] On December 22, 2008, in a one page verdict in Criminal Action No. 08-073, Justice Materne found Rdialul not guilty of retaining possession of kesokes nets in violation of 17 PNC '' 1204 and 1209 (a) A[f]or reasons stated in open court.@[8] At trial in this case, Rdialul testified, that someone measured the nets in front of the judge and Afound out that my nets were bigger then they originally thought.@ Rdialul was not fined or imprisoned.[9] Rdialul added that others fish with nets the same size as his, and those nets have not been seized.[10]

After his nets were seized, Plaintiff heard a rumor that Eisenhower AEisen@ Meresbong was using some of his confiscated nets. Plaintiff went to visit Eisen. He saw Eisen=s nets and recognized them as his own. He recognized his nets by their telltale yellow string through the black net, along with Plaintiff=s sinkers and floaters. Plaintiff told Eisen those were his nets that had been confiscated by DFW. Eisen told Plaintiff that he measured the mesh size, found it to be three inches, and was fishing with the nets.[11] Plaintiff had his son take photographs of Eisen and Plaintiff with the nets.[12]

Eisenhower Meresbong agreed that he owned kesokes nets, but he testified that he bought his nets from the Phillippines. After some prodding, he conceded that he had received nets from the DFW. He did not recognize the nets in the photographs (Plaintiff=s Exhibit 2), but admitted that the nets he received from the DFW looked like the nets in the courtroom (Plaintiff=s Exh. 3 - two of Plaintiff=s nets which remain in the possession of the DFW). He testified that although the DFW nets have a three-inch mesh size, he could not use them for fishing because the nets were damaged; they were missing weights and floaters. DFW instructed him that he should only use the nets for agriculture, and he testified that he has followed those instructions.[13]

The DFW also gave some of Plaintiff=s nets to John AAro@ Remengesau for agricultural purposes. Remengesau requested and received some of Plaintiff=s nets, weights and floaters from the Subelek Farms, which the DFW ran. Remengesau did not know who originally owned the nets. He knew the nets were illegal mesh size because the mesh looked smaller than his legal gill nets, but he thought that they would work as a fence to keep the pigs out of his farm.[14] He burned down the weights into smaller and longer sinkers for his gill nets. Originally, he testified that he did nothing with the floaters but then, when asked whether he could return the floaters, he testified that six of his gill nets had been stolen and Plaintiff=s floaters were with those nets. Aro paid nothing for the nets, weights and floaters.

Chief Kammen Chin testified that he had Plaintiff=s nets seized because the mesh of the nets was too small. Chin has been measuring kesokes nets in the same manner ever since DFW started confiscating nets. He measures nets from the inside knot of the mesh hole to the other inside knot of the mesh hole. Chin testified that dictionaries define Amesh@ as the open space between wires, chords or threads. Using the method of measuring the open space -and not the entire hole to include the netting itself- Chin showed the Court at trial that the mesh hole of Plaintiff=s net measured about 2 3/4 inches. Chin used a demonstrative wooden fish, which measured three inches at its widest and tried to fit it through Plaintiff=s nets. His attempts were unsuccessful. Plaintiff points out that the demonstrative wooden fish is about 1/4-inch in thickness and that thickness should be taken into account in setting the size of the fish. In other words, if one considers the thickness, the wooden fish was actually 3 2 inches. Chin did not know how many nets were seized from Plaintiff, although he conceded that it could have been as many as 28. Apparently, there is no record of the number of nets seized. Plaintiff=s Exhibit 1, the Receipt of Confiscated Property, which DFW gave Plaintiff when they confiscated his nets, reads: A1) 250 ft. each kesokes@ and A2) Bkuro.@[15]

The preamble to the Receipt reads: AThe following items have been seized by authority of the Division of Fish and Wildlife Protection because . . . such items are unlawful to possess. These items may be transferred to the custody of another agency for storage or as part of the investigation process.@[16] Chin testified that the seized nets were bulky and took up too much space in the office, so they were transferred from the Division of Fish and Wildlife to Subelek Farm, where there was more storage space. Chin headed up Subelek Farms until last year.

Chin conceded that only two of Plaintiff=s nets remain in the DFW=s custody today (Plaintiff=s Exhibit 3). When asked what happened to the other nets and the bag, Chin answered that they had been given to farmers such as Eisen and Aro and others whose names he did not remember. After receiving the green light from the Attorney General=s office, Chin agreed to release the nets to these men, and presumably others, on the condition that the nets be used for farming and not fishing. Again, there is no record of who received nets, and how many were given to each recipient. Chin testified that he just told each recipient to Aget what he needed.@ Chin contends that because the nets had been properly seized, the DFW could dispose of the nets as they wished.

Although the testimony is conflicting on whether Aro and Eisen, or workers at Subelek Farm, or both, removed the floaters and sinkers from the nets before Aro and Eisen could take the nets, what is clear is that Chin intended for the floaters and sinkers to be removed so that the nets would not be used for fishing. Chin relied exclusively on the recipient=s word that the recipient would not replace the floaters and sinkers and continue fishing with these nets.

CONCLUSIONS OF LAW

According to Defendants the nets were seized as violations of 27 PNC ' 1204 (m) and (n). Under the statute, Ait shall be unlawful for any person to: . . . (m) fish . . . with a kesokes net with no bag portion or with the bag portion having a mesh size of less than three (3) inches measured diagonally; (n) retain possession of . . . a kesokes net having a mesh size of less than three (3) inches measured diagonally . . . .@

In its May 22, 2009, addressing Defendants= motion to dismiss, this Court held that the statute at issue in this case contemplated trial and conviction prior to forfeiture. 27 PNC ' 1208(b)(3) (nets are Asubject to forfeiture . . . upon conviction of a criminal violation pursuant to subsection 1209 (a)@). At the very least, the Republic should have sought civil forfeiture under 27 PNC ' 1210. Cf. 27 PNC ' 184 (civil forfeiture proceeding presumed in the context of seizure of foreign fishing vessel and fishing gear). Otherwise, how can a citizen contest the forfeiture of his nets if the Republic never files criminal charges or initiates a forfeiture proceeding? To keep the statute within constitutional bounds, the Court must read in a right to due process after a seizure of property. If there is no criminal trial or forfeiture proceeding, the Court must, at least, hold a hearing for the return of the property, akin to a civil forfeiture hearing. Cf. ROP R. Crim. P. 41(e). At the hearing, the Court considered whether the Republic had the right to continued retention of the property, and, if not, whether the Republic should return the property to Plaintiff.

When the movant seeks the return of property before the indictment or information, the movant bears the burden of showing that the seizure was illegal and that he is entitled to lawful possession of the property. United States v. Martinson, [1987] USCA9 284; 809 F.2d 1364, 1369 (9th Cir. 1987). However, A. . . when the property in question is no longer needed for evidentiary purposes, either because trial is complete, the defendant has pleaded guilty, or, as here, the government has abandoned its investigation, the burden of proof changes. The person from whom the property is seized is presumed to have a right to its return, and the government has the burden of demonstrating that it has a legitimate reason to retain the property.@ Id. In a case such as this one, where the delay is several years, the delay shifts the burden of proof to the Republic. See Martinson, 809 F.2d at 1369, n. 5. Finally, Aeven if it is alleged that the property the movant seeks to have returned is no longer within the Government=s possession, the district court has jurisdiction to determine whether such property has been in [the Government=s] possession and whether [the Government] wrongfully disposed of such property.@ United States v. Bein, [2000] USCA3 109; 214 F.3d 408, 411 (3rd Cir. 2000)

Here, it has been over five years since the nets were seized. The statute of limitations have almost elapsed, see 14 PNC ' 405 (six-year statute of limitations for civil cases), 17 PNC ' 107 (six-year statute of limitations for criminal cases), and Defendants had no intention of instituting criminal or civil proceedings of Plaintiff, except as counter-claims to Plaintiff=s claims. The burden of proof therefore shifts to Defendants to show that Ait has a legitimate reason to retain the property.@ Defendants= sole Alegitimate reason@ is their contention that the property is illegal. Defendants may be right, but it should not take Plaintiff hauling them into Court to prove that fact. Instead, Defendants have seen fit to parse out 26[17] of these purportedly illegal fishing nets, along with one bag, to others, based on an oral promise that the nets, and presumably the bag, would be used for agricultural purposes with absolutely no means of oversight to ensure that the nets are being put to legal use.

Since Defendants have produced no bag, the Court has no means of determining whether the bag mesh is less than three inches, as required by 27 PNC ' 1204 (m). The Court finds, however, that the mesh size of Plaintiff=s nets did not measure three inches according to DFW=s measuring standards, and therefore Plaintiff was in violation of 27 PNC ' 1204 (n). The DFW measures the nets diagonally from the interior of the knot to the interior of the knot. Measuring Plaintiff=s net (Plaintiff=s Exh. 3) in that manner, Plaintiff=s net is less than three inches diagonally.[18]

In his written closing, Plaintiff asks the Court to return all nets, floaters and sinkers in Defendants= possession, and reimburse Plaintiff for all missing nets, sinkers and floaters. Defendants, in closing, ask this Court to order forfeiture of the nets as Abelow legal mesh size,@ and Alay this matter finally to rest.@

The Court has found that Plaintiff=s nets were in violation of 27 PNC ' 1204 (n), and therefore the DFW properly seized the nets. Since the Republic, through the DFW, has shown a willingness to release these nets to the public, however, the Court sees no reason why they should not be returned to Plaintiff. The nets in Exhibit 3 should be returned to Plaintiff, with floaters and sinkers removed so that the nets do not violate 27 PNC ' 1204 (n). Further, Defendants are ordered to search Subelek Farm and all of the other depositories of seized property, and determine if any more of Plaintiff=s nets, floaters and sinkers remain in the possession of DFW or any other law enforcement body by March 1, 2010. If any of Plaintiff=s nets or portions of his nets (to include floaters and weights) remain in the possession of DFW or any other law enforcement body, Defendants will return those items to Plaintiff by March 16, 2010. The nets are returned with the understanding that Plaintiff cannot use them for fishing. He can, however, use the returned floaters and sinkers for fishing with legally-sized nets.[19]

CONCLUSION

Plaintiff=s nets violate 27 PNC ' 1204 (n), and therefore the DFW properly seized the nets. However, the Court finds that the Republic wrongfully seized the nets without then instituting criminal or civil proceedings.[20] Further, the Court finds that the Republic wrongfully disposed of the property without first effecting a valid seizure. Because the DFW violated Plaintiff=s right to a hearing and has released Plaintiff=s nets to others in the community, the DFW is hereby ordered to return any nets or portions of nets in the Bureau of Public Safety=s possession to Plaintiff in a manner which no longer violates 27 PNC ' 1204 (n). (In other words, the DFW should remove all floaters and sinkers to ensure that the nets cannot be possessed and used for fishing purposes.) In return, Plaintiff is ordered not to fish with the nets, although he may use the legal floaters and sinkers for fishing.

The DFW and Attorney General=s office are now on notice that, in the future, if the DFW seizes allegedly illegal property, DFW and the Attorney General=s office must follow the law - they can either initiate civil forfeiture proceedings and/or institute criminal proceedings against those whose property was seized. They cannot, however, just seize the property and do nothing. Even more egregious is the seizure of property, and then parceling it out to others.

A separate judgment, consistent with this decision, will issue promptly.

December 28, 2009

______________________
Alexandra F. Foster
Associate Justice

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^[1] 27 PNC ' 1209(b)(5) does not exist. The Court assumes counsel means 27 PNC ' 1208(b)(5).

^[2] Plaintiff=s witness, Abby Rdialul, referred to the organization as the APalau Federation of Fishing Association.@ Either way, it is an entity that sold fishing equipment in Palau.

^[3] In fact, Plaintiff testified that he had to retire his father=s fishing nets because they were not in compliance with the three-inch requirement. Somewhat confusingly, Plaintiff testified that his father threw the nets out before he died in 1981. The law concerning mesh size was not passed until 1994, however.

^[4] Plaintiff measured the mesh of the net at trial. Measuring diagonally from one knot to the other, the net is barely three inches.

^[5] Plaintiff has no receipts for his purchases in Palau, his purchases in the Phillippines, or his payments to the workers or Rechirei.

^[6] The Court found this date in Chief Kammen Chin=s February 18, 2008, affidavit attached to the Republic=s motion to dismiss.

^[7] Justice Salii=s order dismissing the civil case is attached to Plaintiff=s complaint.

^[8] Justice Materne=s verdict is attached to Plaintiff=s complaint.

^[9] Confusion surrounds whether the civil or criminal case was filed first and which case actually went to trial. Rdialul thought that his civil case was pending, and that the criminal case preceded the civil case. Chin thought that no criminal case had ever been filed against Rdialul, and that he testified in the Rdialul=s civil case. The Court takes this confusion as a reflection of the complexities of the law, and not as a reflection of the witnesses= intelligence or memory.

^[10] He stated, however, that he had never seen Eisen or Aro fishing with similarly-sized kesokes nets. As will be discussed more thoroughly later in the decision, the DFW gave these individuals Plaintiff=s nets for agricultural purposes.

^[11] Plaintiff=s statements to Eisen and Eisen=s responses were admitted not for the truth of the matter asserted, but as impeachment of Eisen.

^[12] Black and white copies of five of those photographs were introduced as Plaintiff=s Exhibit 2. The nets are hanging like fishing nets. Floaters are visible in at least two of the photographs.

^[13] It seems fairly clear from Plaintiff=s photographs, and Mersebong=s demeanor and testimony at trial (e.g., he repaired the damaged nets by replacing the sinkers and floaters) that he is using these nets for fishing. Meresbong is not a party to this case, however, so the Court need not reach a decision as to whether he violated any laws.

^[14] Apparently, he ultimately did not use the nets for that purpose.

^[15] Plaintiff testified that ABkuro@ is the net bag.

^[16] Despite many other entries, such as ALocation of items at time of seizure,@ AOwners of items, if known@ and a signature line for the Aperson from whom items were confiscated,@ nothing else has been filled out or signed.

^[17] Defendants hint that the Court should find fewer than 28 nets, because Plaintiff have not proven that 28 nets were seized. The Defendants did nothing to itemize the exact number of nets seized. It should not be on the Plaintiff to prove the number of nets seized. Plaintiff submitted the only scrap of paper to reflect the seizure of his nets, and the only thing written on that piece of paper is A250 ft. each kesokes@ and one ABkuro.@ Defendants= failure to itemize the seized items should inure to the benefit of Plaintiff, not Defendants.

^[18] The Court uses DFW=s standard, since they are the Division empowered to enforce the Marine Protection Act of 1994, see Chief Chin=s testimony and 27 PNC ' 1208(b) (Athe Bureau of Public Safety shall have primary enforcement responsibility@). Accordingly, the DFW=s reasonable interpretation of the law must prevail. Here, DFW has reasonably -and repeatedly- measured mesh size from the inside of the net. Plaintiff, no doubt, believed that his nets were lawful, but his subjective belief is irrelevant in a strict liability case such as this one. See Sugiyama v. Republic Of Palau, 9 ROP 5, 6 (violation of 27 PNC ' 1204 is a Aregulatory offense@ where subjective proof of intent is not required).

^[19] As detailed in the Court=s May 2009 Order, even if the Court found that the nets were not in violation of the statute, the only remedy which the Court could order is the return of the nets still in Defendants= possession.

^[20] At trial, Chin agreed that no one ever asked the courts if the nets were in violation of any laws, but he asserted that no one approached the courts because the DFW chose not to prosecute first-time offenders. Instead, the DFW just seized the nets as a warning. The Court understands that law enforcement officers must have some flexibility in their application of the laws. However, if they do opt to seize property, instead of just issuing a warning, they must follow through and either seek civil forfeiture or criminal prosecution.