THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Ishizawa v. Pohnpei, 2 FSM Intrm. 67 (Pon. 1985)

[2 FSM Intrm. 67]

KIEMARO ISHIZAWA,
Petitioner/Plaintiff,

vs.          

STATE OF POHNPEI, and POHNPEI
DEPARTMENT OF LEGAL AFFAIRS,
Respondents/Defendants.

CIVIL 1985-021

MEMORANDUM OPINION

Before Edward C. King
Chief Justice
August 15, 1985

APPEARANCES:
     For the Petitioner/Plaintiff:               R. Barrie Michelsen
                                                                Attorney-at-Law
                                                                Stovall, Spradlin, Ramp,
                                                                Armstrong & Israel
                                                                Kolonia, Pohnpei 96941

     For the Respondents/Defendant:          Reece Halpern
                                                                       Special Counsel to the
                                                                          State Attorney
                                                                       Kolonia, Pohnpei 96941
                                                                       Attorney-at-Law
[2 FSM Intrm. 68]

HEADNOTES
Constitutional Law-search and seizure
     Article IV, Section 5 of the FSM Constitution, based upon the Fourth Amendment of the United States Constitution, permits reasonable, statutorily authorized inspections of a fishing vessel in FSM ports, under various theories upheld under the United States Constitution, when for the purpose of enforcing the law regulating fishing by foreign vessels.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 74 (Pon. 1985).

Constitutional Law
     It is extraordinary difficult for law enforcement authorities to police the vast waters of the Federated States of Micronesia.  Yet, effective law enforcement to prevent fishing violations is crucial to the economic interests of this new nation.  Accordingly, the historical doctrines applied under the United States Constitution which expand the right to search based upon border search, administrative inspection and exigent circumstances theories, appear suitable for application to fishing vessels within the Federated States of Micronesia.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 74 (Pon. 1985).

Constitutional Law-search and seizure
     Searches and seizures both constitute a substantial intrusion upon the privacy of an individual whose person or property is affected, but a seizure often imposes more onerous burdens.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 75 (Pon. 1985).

Constitutional Law-due process; Constitutional Law-search and seizure
     A temporary seizure is itself a significant taking of property, depriving the owner of possession, an important attribute of property.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 75 (Pon. 1985).

Constitutional Law-search and seizure
     While the power to seize a vessel is crucial to the interests of the Federated States of Micronesia and its states, there are also compelling factors demanding that seizures take place only where fully justified and that procedures be established and scrupulously followed to assure that the power to seize is not abused.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 75 (Pon. 1985).

Fishing
     While the FSM and Pohnpei Foreign Fishing statutes pose no specific requirements as grounds for the search of a fishing vessel, the power to seize is carefully conditioned upon illegal use of the vessel.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 75 (Pon. 1985).

Statutes
     Where possible, statutory provisions should be interpreted in such a way as to avoid any potential conflicts between the statute and the Constitution of the Federated States of Micronesia.Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 76 (Pon. 1985).

[2 FSM Intrm. 69]

Constitutional Law-search and seizure
     The general requirement under Article IV, Section 5 of the Constitution is that before a search or seizure may occur there must exist "probable cause," that is, a reasonable ground for suspicion, sufficiently strong to warrant a cautious person to believe that a crime has been committed and that the item to be seized has been used in the crime.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 76 (Pon. 1985).

Constitutional Law-due Process
     It is normally required that a hearing be held prior to seizure of a property.  In "extraordinary situations" a seizure may take place prior to hearing, but the owner must be afforded a prompt post-seizure hearing at which the person seizing the property must at least make a showing of probable cause.  Unreasonable delay in providing a post-seizure hearing may require that an otherwise valid seizure be set aside.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 76 (Pon. 1985).

Constitutional Law-due process
     Where a seizure is for forfeiture rather than evidentiary purposes, the constitutional prohibitions against taking property without due process come into play.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 76 (Pon. 1985).

Constitutional Law-due process
     The Constitution's Due Process clause is drawn from the United States Constitution and FSM Courts may look to decisions under that Constitution for guidance in determining the meaning of this Due Process Clause. Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 76 (Pon. 1985).

Fishing
Constitutional Law-search and seizure; Constitutional Law-due process
     Any attempt to grant statutory authority to permit seizure of a fishing vessel upon a lesser standard than probable cause would raise serious questions of compatibility with Article IV, Sections 3 and 4 of the Constitution.  Such an interpretation should be avoided unless clearly mandated by statute.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 77 (Pon. 1985).

Fishing
     Seizure under the FSM and Pohnpei Foreign Fishing statutes must be based upon probable cause, that is, grounds to believe it is more likely than not that a violation of the act has occurred and that the vessel was used in that violation.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 77 (Pon. 1985).

Constitutional Law-search and seizure
     In probable cause determinations the Court must regard the evidence from the vantage point of law enforcement officers acting on the scene but must make its own independent determination as to whether, considering all the facts at hand, a prudent and cautious law enforcement officer, guided by reasonable training and experience, would consider it more likely than not that a violation has occurred.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 77 (Pon. 1985).

[2 FSM Intrm. 70]

Fishing
     The fact that a fishing vessel approaches a reef is by itself some basis for some suspicion that it may intend to engage in fishing.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 78 (Pon. 1985).

COURT'S OPINION
EDWARD C. KING, Chief justice:
     This case requires consideration of the standards which must be met to justify the search and seizure of a fishing vessel, without a warrant, to enforce the laws prohibiting unlicensed foreign vessels from fishing within waters of the Federated States of Micronesia or the State of Pohnpei.

     The Court has ruled that the seizure of the Meiho Maru #17 in this case did not meet the required standards and must be set aside.  This memorandum opinion is written to record the reasons for that holding.

I.  Factual Background
     Shortly before dawn on Monday, April 29, 1985 the Meiho Maru #17, a Japanese owned squid fishing boat, crashed into the reef fringing Ngatik Atoll in the State of Pohnpei.

     State of Pohnpei and Federated States of Micronesia officials traveled to Ngatik to determine whether there might have been any violation of Pohnpei or Federated States of Micronesia law.

     There was a report by a Ngatik fisherman, Bernard Nasson, that he had seen the vessel that ultimately crashed into the reef hovering in the waters off Ngatik with lights beamed into the surrounding waters. 1   Nasson said he saw the ship near Ngatik throughout the night of the collision and the preceding night and during the daytime on April 28.  He said specifically that the Meiho Maru was hovering or drifting with its lights beaming, shortly before dawn, April 29, that it then began moving and soon crashed into the reef.

     However, the investigating officials soon concluded that this report was incorrect, at least in part, and that the Meiho Maru #17 had not been engaged in fishing activities.  The ship's log indicated that the Meiho Maru #17 had been fishing for squid in the waters of New Zealand and was en route back to Tokyo Harbor in Japan when it collided with the reef.  Investigating officials noted that the fishing master of the vessel had flown back to Japan from New Zealand, where the crew said they had completed their squid fishing operations.  The officials also saw that the ship's fishing gear was stowed.

[2 FSM Intrm. 71]

Finally they examined the color, size and configuration of the dead squid in the ship's hold and floating in the water around the ship.  This information was radioed to officers of the Micronesian Maritime Authority in Pohnpei, where MMA officials concluded that the squid in and around the boat were not of a variety found in the waters of the Federated States of Micronesia.

     The officials therefore advised the ship captain that no fishing violation charges would be brought against the vessel or its crew and that they were free to move on. The owners arranged for a tugboat to travel from Guam to assist the Meiho Maru #17 off of the reef, and then in its journey to Pohnpei.  The Meiho Maru #17 arrived in Pohnpei on Friday, May 10.

     On Saturday, May 11, Pohnpei State officials visited the Meiho Maru #17 and questioned the captain and other fishing officials.2

     They also reviewed the vessel's computer printouts containing satellite navigation information relating to the voyage from New Zealand to Ngatik.

     Using what they understood to be the fixes 3  on the Meiho Maru's printout, they plotted the course of the ship as it had traveled approximately from the equator up toward Ngatik, and decided that on several occasions somebody on the Meiho Maru #17 set the ship in directions other than the setting which would have sent the ship on a direct path to its stated destination at Tokyo Harbor in Japan.  These adjustments were slight, never more than 15 degrees from the precise setting. Some set the ship in a more easterly, and some a more westerly course than the direct setting.  The ultimate result, of course, was that the ship was directed toward Ngatik and the reef with which it collided.

     Officials of the Pohnpei State Department of Legal Affairs were dissatisfied with explanations offered by the captain and officers of the Meiho Maru as to why these deviations had occurred.  The ship's officers stated that a current of 1.4 knots caused them to drift and required compensa-

[2 FSM Intrm. 72]

ting adjustments.  Pohnpei officials were especially skeptical of this for they read the satellite navigation printout as showing an average current of .3 knots during the 4 hours shortly before the ship ran aground.

     In addition, the ship's officials, according to attorneys for the State of Pohnpei, gave contradictory statements as to whether the ship intended to head east or west of Ngatik.

     Based upon all of the above information, including the report of the Ngatik fisherman, Pohnpei legal officials concluded that the Meiho Maru #17 had intentionally sailed toward the reefs of Ngatik in order to engage in fishing.4

II.   Procedural Background
     On Tuesday afternoon, May 14, Pohnpei legal officers seized the Meiho Maru and instructed the members of the crew that they were not to leave Pohnpei Island. Those actions were taken without any prior judicial ruling.  No papers were filed by Pohnpei officials in any court until litigation was initiated three days later by officers and crew of the vessel.

     On Friday, May 17 two actions were filed in this Court on behalf of the ship and its crew members.

     One was a petition for writ of habeas corpus filed by the crew members.  A hearing on that petition was convened on Friday afternoon.  Counsel for the State advised the Court that the State does not intend to confine or restrict the physical freedom of the crew members in any way and would not prevent their leaving Pohnpei Island.  Pohnpei officials were instructed by the Court that no restrictions were to be placed upon the crew members without first making a preliminary showing of probable cause to a judicial official and obtaining a warrant for arrest. That concluded proceedings in the habeas corpus litigation.

     The first paper filed in this action, seeking return of the vessel, was a motion of the fishing master of the Meiho Maru attempting to challenge, among other things, the actions of the State of Pohnpei in searching and seizing the vessel.  That motion was not considered during the Friday afternoon session, in part because the complaint required by Rule 3 of our Rules of Civil Procedure to initiate a civil action had not been filed.  See  FSM Civ. R. 3; also see Koike v. Ponape Rock Products Co., 1 FSM Intrm. 496, 500-01 (Pon. 1984).

[2 FSM Intrm. 73]

     Thereafter, on Monday, May 20, the petition for writ of mandamus and writ of prohibition in the instant case was filed.  That petition, deemed by the Court to be a complaint for purposes of complying with Rule 3, alleged that the State of Pohnpei had violated the Constitution of the Federated States of Micronesia by searching the vessel without a warrant and without probable cause, by relying upon information obtained in that search as justifying the seizure, and by seizing the vessel.  The petition sought return of any seized documents and asked that government officials be prohibited from hindering free passage of the vessel from Pohnpei waters.

     The earlier motion challenging seizure of the vessel as violative of 18 F.S.M.C. 321 and Article IV, Section 5 of the Constitution was renewed and supplemented by an additional motion, dated May 20, 1985, claiming that an illegal search of the vessel had occurred on or about May 10.  Because of the nature of the issues involved, the motion and petition were considered on an expedited basis.  Those proceedings culminated with issuance of the Court's Order of May 24, 1985 setting aside the seizure of the vessel and documents and ordering that the vessel be permitted to depart without hindrance.

III.  The Statutes
A.  Search
     The enforcement provisions of the statutes concerning fishing violations enacted by the State of Pohnpei and the Federated States of Micronesia are nearly identical.  As to searches, both say that "with or without a warrant or other process" officers may "board and search or inspect any fishing vessel."  See Pohnpei Foreign Fishing Act, Pon. S.L. No. 4L-190-79, 14(2)(a) (4th Leg., 8th Leg. Sess.), and 24 F.S.M.C. 513(1). 5

[2 FSM Intrm. 74]

     The petitioner does not object to any inspection of the vessel while the Meiho Maru #17 was on the reef.  Furthermore, no serious attempt was made in the court proceedings to demonstrate that an actual search of the vessel took place in Pohnpei.  In any event, the enforcement statutes provide broad authorization to officials to inspect fishing vessels.  The fact that the ship had run aground on an island reef, coupled with the fishermen's report of apparent fishing activities, furnished grounds for reasonable suspicion that the Meiho Maru #17 may have been engaged in fishing activities.  Decisions under the Fourth Amendment of the United States Constitution, upon which Article IV, Section 5 of the FSM Constitution is based, furnish ample authority under these circumstances to permit a reasonable inspection of a fishing vessel which arrives at the port on Pohnpei.  Under United States constitutional law, statutorily authorized inspections of oceangoing vessels are permissible under various theories. These include border searches, 6 administrative inspections of a  "pervasively regulated industry," 7  and exigent circumstances. 8  With the limited resources available here, it is extraordinarily difficult for law enforcement authorities to police the vast waters of the Federated States of Micronesia.  Yet, effective law enforcement to prevent fishing violations is crucial to the economic interests of this new nation.  Accordingly, the historical doctrines for expanding the right to search appear suitable for application to fishing vessels within the Federated States of Micronesia.  The record here does not support a claim that an unreasonable search has occurred.

[2 FSM Intrm. 75]

B.  Seizure
     The practical realities concerning a seizure typically are quite different than for a search of a fishing vessel.

     Searches and seizures both constitute a substantial intrusion upon the privacy of an individual whose person or property is affected, but a search is typically of shorter duration. Beyond that, even a temporary seizure is itself a significant taking of property, depriving the owner of possession, an important attribute of property.

     Seizures often impose onerous burdens upon those otherwise entitled to possession. Seizure of a fishing vessel has especially profound implications.  A valuable, potentially productive asset is rendered useless to the owners, depriving them of potential profits as well as their use of the vessel.

     Moreover, seizure of a vessel typically will have the effect of confining the crew, which may be obliged to remain in the area until legal proceedings are concluded. Aside from substantial personal inconvenience to the crew, this causes added expense to the owners or whoever is responsible for providing the necessities of life and any compensation to the crew while the vessel is seized.  In the alternative, someone would have to provide air fare or arrange other transportation to permit the crew to proceed to their homes.  Of course, some or all of the crew would then have to be returned to the vessel if the seizure eventually is terminated.

     Searches and seizures have considerably different international effects as well. While inspection of fishing vessels to guard against fishing violations is unlikely to gain the attention or offend the sensibilities of any nation, the international implications of a seizure can be quite significant.  Vessels seized will typically be flag carriers of another nation.  Unlike searches, seizures will most assuredly come to the attention of these other nations.  Unfair seizures may not only draw the wrath of the other nation most immediately involved but may jeopardize the efforts of the Federated States of Micronesia to take its place as a responsible member of the community of nations.

     Thus, while the power to seize a vessel is crucial to the interests of the Federated States of Micronesia and its states, there are also compelling factors demanding that seizures take place only where fully justified and that procedures be established and scrupulously followed to assure that the power to seize is not abused.

     Legislative awareness of this greater significance of seizures is reflected in the statutes. While the statutes pose no specific requirements as grounds for the search of a vessel, the power to seize is carefully conditioned upon illegal use of the vessel.  "Any officer ... may, with or without a warrant or other process ... seize any fishing vessel used or employed in, or when it reasonably appears that such vessel was used or employed in, the violation of any provision of this act." Pohnpei Foreign Fishing Act 14(2)(a)(iii); also 24 F.S.M.C. 513(1)(c).

[2 FSM Intrm. 76]

     The crucial issue under these statutes is whether it "reasonably appears" here that the Meiho Maru was employed in fishing.  The government contends that "reasonably appears" does not mean the same as probable cause and that any showing that it was more likely than not that the vessel was engaged in fishing may be deferred until this case is heard on its merits in a full blown court trial.

     This Court has held in several cases that statutory provisions should be interpreted, when this may be fairly done, in such a way as to avoid any potential conflicts between the statute and the Constitution of the Federated States of Micronesia.

     The interpretation urged by the government would place these statutes in possible conflict with two clauses of the Constitution.  First, statutory authorization of a seizure on grounds less than probable cause would run counter to Article IV, Section 5 of the Constitution.  This Court has interpreted that clause to mean that, before a search or seizure may occur  there must exist "probable cause," that is, a reasonable ground for suspicion, sufficiently strong to warrant a cautious person to believe that a crime has been committed and that the item to be seized has been used in the crime.  Ludwig v. FSM, 2 FSM Intrm. 27 (App. 1984).  See also FSM v. Tipen, 1 FSM Intrm. 79 (Pon. 1982).

     Moreover where, as here, the seizure is for forfeiture rather than evidentiary purposes, the constitutional prohibitions against taking property without due process come into play.  FSM Const. art. IV, 3.  This Court has not previously considered the impact of this Constitution's Due Process Clause upon seizures of property but we have recognized that the Clause is drawn from the United States Constitution and that we may look to decisions under that Constitution for guidance in determining the meaning of this Due Process Clause.  Alaphonso v. FSM, 1 FSM Intrm. 209 (App. 1982).

     Under United States decisions, it is normally required that a hearing be held prior to the seizure of property.  Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972).  In "extraordinary situations" a seizure may take place prior to hearing.  Even then, the United States Constitution has been held to require that the owner be afforded a prompt post-seizure hearing at which the person seizing the property must at least make a showing of probable  cause.  Stypmann v. City & County of San Francisco , 557 F.2d 1338, 1344 n.20 (9th Cir. 1977).9

 [2 FSM Intrm. 77]

     Any attempt to grant statutory authority to permit seizure of a fishing vessel upon a lesser standard than probable cause therefore would raise serious questions of compatibility with Article IV, Sections 3 and 5 of the Constitution.  Such an interpretation should be avoided unless clearly mandated by the statute.

     Nothing here suggests that either the FSM Congress or the Pohnpei State Legislature was attempting to authorize seizure without probable cause.  The statutes do not authorize seizure upon mere suspicion that a violation may have occurred. It must "reasonably appear" that the vessel "was used or employed in" a violation.  This must be regarded as a legislative effort to impose a probable cause requirement as a condition to seizure of a vessel.

     I conclude that seizure under either statute must be based upon probable cause, that is, evidence and information sufficiently persuasive to warrant a cautious person to believe it is more likely than not that a violation of the act has occurred and that the vessel was used in that violation.

IV. Probable Cause
     Constitutional principles require that whether probable cause exists be determined by the deliberate, impartial, judgment of a judicial officer rather than "by the officer engaged in the often competitive enterprise of ferreting out crime."Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 369, 92 L. Ed. 436, 440 (1948).  The Court must regard the evidence from the vantage point of law enforcement officers acting on the scene but may not defer to the judgment of the specific law enforcement officials involved in the case.  The Court here must make its own independent determination as to whether, considering all the facts at hand, a prudent and cautious law enforcement officer, guided by reasonable training and experience, would believe that the Meiho Maru #17 has been used in a violation of the fishing laws.  See Ludwig, 2 FSM Intrm. at 32-33.

     The only new information reviewed by government officials after the vessel arrived in Pohnpei was derived from the satellite navigation printouts.  These printouts showed course alterations which had the net effect of setting the ship toward Ngatik where it ultimately ran aground.  The printouts and the confused and contradictory information given by the ship's officers concerning the intended course, seem to have played an important part in arousing the suspicion of Pohnpei officials that the vessel had headed toward Ngatik intentionally for fishing purposes.

     However, heavy reliance on that information was misguided.  Obviously satellite navigation printouts of any ship which runs aground will reveal, in retrospect, that decisions made in setting the course of the ship led to its collision with the reef.

     Thus, what the officials learned from these printouts is different only in detail from the general conclusions that could have been deduced by any reasonable person upon learning that a ship, unaffected by harsh weather or equipment malfunctions, had crashed into a fringing reef.  The printouts chart the course of the vessel and confirm that the vessel was merely responding to

[2 FSM Intrm. 78]

crew direction when it hit the reef, but they show nothing about the motivation of the officer or crew member who set the vessel on its fatal course.

     Moreover, it is predictable, if not certain, that a crew whose ship has collided with the reef will give confused and contradictory reports.  The questioning of officers and crew in Pohnpei revealed only that the officers and crew could give no intelligent explanation of how they had permitted such a disaster to happen.

     The fact that a fishing vessel approaches a reef is by itself some basis for some suspicion that it may intend to engage in fishing.  Neither the printouts nor the confused crew explanations add anything that significantly increases the likelihood that the vessel was fishing when it hit the reef.

     While the printouts add no grounds for suspicions beyond those already aroused by the fact that the vessel was sailing toward Ngatik, they undercut the only other evidence tending to support a conclusion that the vessel had been engaged in fishing.  The Ngatik fisherman had said he had seen the vessel hovering around Ngatik, shining its lights into the water, the entire night of April 28 and early April 29.

     Mr. Nasson did not testify before the Court.  His statements were presented in the form of testimony by police officers with whom he had talked and a tape recording of a telephone conversation in which he had been questioned by a police officer and a government attorney. Thus, counsel for the petitioner had no opportunity to weaken or challenge this report through cross-examination.

     Nevertheless the printouts themselves make most of what Mr. Nasson said absolutely impossible.  Mr. Nasson stated that he was certain that it was the Meiho Maru #17 that he observed all night beginning at approximately 7:00 p.m. on April 28 until the ship eventually crashed into the reef in the early hours of April 29.  He said he saw the ship's lights shining into the water and out a great distance, even lighting the area where he was staying on an island one or two miles from the ship. He indicated that he could see the ship at all times and that eventually, sometime after 2:00 a.m., the ship started to move and, with its lights on, ran aground.

     On the other hand, the printouts show conclusively that the Meiho Maru was almost 250 miles from Ngatik early on April 28.  The printouts also show that the vessel was still some 50 miles from Ngatik atoll at approximately midnight during the night of April 28 and that it covered those 50 miles at a rate of approximately 10 knots per hour, reaching Ngatik just before 5:00 a.m. Ngatik time.  Testimony interpreting the printouts indicates that the vessel was still some two miles from Ngatik approximately 18 minutes before it ran aground.

     The printouts, then, demonstrate conclusively that Mr. Nasson was not correct in stating that the same ship that crashed into the reef was in the area of Ngatik drifting with its lights on all night long.  The evidence further strongly indicates that the Meiho Maru maintained a steady  northward

[2 FSM Intrm. 79]

course at a constant rate of approximately 10 knots per hour until it hit the reef and that Mr. Nasson is incorrect in stating that the ship that hit the reef was drifting with its lights on for a considerable period of time before it began moving and then crashed into the reef.

     Thus, the information relied upon by the government furnishes slender support indeed for even a suspicion that the Meiho Maru #17 may have been engaged in unlawful fishing in Pohnpei or FSM waters.10

     All other relevant factors detract still further from any theory that the Meiho Maru was engaged in fishing.  As already indicated, the vessel's fishing nets were stowed, its fishing master had flown back to Japan and the ship's logs indicated that all fishing activities had been completed in waters off of New Zealand.

     Equally impressive was the testimony of three governmental officials, the Executive Director of the Micronesian Maritime Authority, the Chief of Marine Resources for the Pohnpei Economic Development Authority and the Fisheries Specialist for Pohnpei State.

     These three were the only state or national personnel with primary responsibilities concerning fishing and marine resources who testified.  Their testimony was to the effect that there is not sufficient squid in the tropical waters of Micronesia to justify commercial fishing and that it is highly unlikely that a commercial squid fishing boat would intentionally travel to Ngatik on the outside chance that it might find sufficient quantities of squid there to justify fishing by such a boat.

     Michael McCoy, the Micronesian Maritime Authority Executive Director, also testified, based upon his knowledge of Japanese fishing practices, that Japanese fishing boats rarely, if ever, attempt to fish or explore for fish when the fishing master is not aboard.

     I conclude that there is no probable cause to believe that the Meiho Maru #17 was fishing within 12 miles from island baselines of Pohnpei or anywhere within the 200 mile extended fishing zone of the Federated States of Micronesia.  The requirements of the statutes have not been met and seizure of the Meiho Maru #17 must be terminated.

Conclusion
     The fact that the Meiho Maru #17 approached Ngatik furnished a preliminary basis for suspecting that the vessel had intended to engage in fishing.  This suspicion could reasonably have been increased by Mr. Nasson's

[2 FSM Intrm. 80]

report that he had seen the vessel in the area for two days.  It was therefore reasonable for officials to inspect the ship and its cargo and to seek information from the officers and crew.

     The officials have now had full opportunity to investigate.  They have inspected the ship, questioned the crew and reviewed logs and computer printouts.  They know all now that they are likely ever to know about the ship's activities.

     Yet the investigation has not borne out the original reasonable suspicions.  There is no claim that any of the fish in the cargo came from Micronesian waters. Everything found on the ship was consistent with the representations by the crew that they had no intention of fishing but were merely attempting to pass through FSM waters.

     The government has been unable to present information sufficient to show probable cause to believe it more likely than not that the Meiho Maru #17 was fishing.  The statutory requirements for seizure have not been met and the vessel must be released.

*       *       *       *
Footnotes:
 
 1.  The unchallenged testimony in this litigation has been that squid are attracted to lights at night, and that beaming of lights into the ocean is a procedure commonly employed in squid fishing.  (Back to opinion)

 2.  While the principal officials conducting the investigation in Pohnpei were attorneys affiliated with the Pohnpei State Department of Legal Affairs, it is not altogether clear whether they were acting on behalf of the state, the national government or both.  This uncertainty flows from the fact that state law enforcement officers are generally authorized to enforce criminal laws of the national government as well as the state.  See 12 F.S.M.C. 1201-1203.  For this reason, and because both parties throughout the proceedings referred to state and national statutes, this opinion considers  both state and national law.  (Back to opinion)

 3.  A "fix" reflects the precise location of the vessel at a given moment based upon computations derived from the vessel's location relative to orbiting satellites.  (Back to opinion)

 4.  Under both Pohnpei and Federated States of Micronesia law, "fishing" includes not only actual or attempted catching, taking or harvesting of fish, but also "any other activity which can reasonably be expected to result in the catching, taking or harvesting of fish or any operations at sea in support of or preparation for," any such activities.  Pohnpei State Law 4L-190-79, 2(4) (8th Reg. Sess.); 24 F.S.M.C. 102(7).  (Back to opinion)

 5.  The provision originally focused upon by the parties, 18 F.S.M.C. 321, is part of a statutory scheme hatched before the former Congress of Micronesia came into existence. 18 F.S.M.C. 311-35.  That statutory framework appears in the Federated States of Micronesia Code today in the same form as originally promulgated by the Trust Territory High Commissioner to provide sanctions aimed at preventing foreign vessels from fishing in Trust Territory waters.

     The statute is replete with references to officials who either do not exist now, e.g., district administrator, or who no longer carry out the functions with which they are identified in the statute, e.g., High Commissioner and Trust Territory High Court.  At best it would be awkward for current national and state officials to attempt to fit that outmoded statutory language to the institutions of self-government that function here now.  Fortunately the need for doing so is obviated by the fact that the national government and the State of Pohnpei have both enacted laws governing fishing. 24 F.S.M.C. 101 et seq. and the Pohnpei Foreign Fishing Act, Pohnpei State Law 4L 190-79 (4th Leg., 8th Reg. Sess.).  These new laws contain seizure and forfeiture provisions.  I conclude that they effectively repeal 18 F.S.M.C. 321, at least for purposes of illegal fishing violations covered by the new statutes.  (Back to opinion)

 6.  The antecedent of this Constitution's prohibition against unreasonable search, the Fourth Amendment to the Court of the United States, has long been interpreted as permitting reasonable searches at national borders as a matter of "national self protection."  Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925); United States v. Ramsey, 431 U.S. 606, 616, 97 S. Ct. 1972, 1978, 52 L. Ed. 2d 617, 626 (1979), cert. denied, 449 U.S. 1111 (1981); Boyd v. United States, 116 U.S. 617, 6 S. Ct. 524, 29 L. Ed. 746 (1886); United States v. Villamonte-Marquez, 462 U.S. 579, 103 S. Ct. 2573, 77 L. Ed. 2d 22 (1983).  This expanded right to conduct searches can be applied to persons leaving as those well as entering the country.  United States v. Duncan, 693 F.2d 971 (9th Cir. 1982).  (Back to opinion)

 7.  Under the Fourth Amendment of the United States Constitution,  "where ... regulatory inspections further urgent federal interest, and the possibilities of abuse and the threat to privacy are not of impressive dimensions, the inspection may proceed without a warrant where specifically authorized by statute."  United States v. Biswell, 406 U.S. 311, 317, 92 S. Ct. 1593, 1597, 32 L. Ed. 2d 87, 93 (1972); See also Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d 60 (1970); United States v. Warren, 578 F.2d 1058 (5th Cir. 1978) (en banc).  (Back to opinion)

 8.  United States v. Cadena, 585 F.2d 1252, 1263-64 (5th Cir. 1978), clarified per curiam, 588 F.2d 100 (5th Cir. 1979).  See also United States v. Weinrick, 586 F.2d 481, 492-93 (5th Cir. 1978).  (Back to opinion)

 9.  In light of the conclusion that the seizure must be set aside on other grounds it is not necessary here to determine whether the constitutional obligation to provide a prompt post-seizure hearing was violated.  Suffice it to say that the failure of Pohnpei officials to seek a judicial determination for a full three days after seizure of a vessel on this island is unexplained and troubling.  Officials must have probable cause when they seize the vessel and they should be prepared immediately to demonstrate that fact.  Unreasonable delay in providing a post-seizure hearing may require that an otherwise valid seizure be set aside.  (Back to opinion)

 10.  Pohnpei officials also thought they had noted a discrepancy in the logbook indicating that the vessel was still engaged in fishing after leaving New Zealand.  However, testimony at the hearing revealed that the State's translator had misinterpreted the Japanese log entries.  (Back to opinion)