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Omelau v Republic of Palau - Judgment [2009] PWSC 2; 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.

JUDGMENT

Consistent with the Court=s decision of December 23, 2009, the Court hereby issues its judgment.

Plaintiff=s nets were in violation of 27 PNC ' 1204 (n), and therefore officers from the Division of Fish and Wildlife Protection properly seized the nets. Although Plaintiff=s nets violate 27 PNC ' 1204 (n), the Republic wrongfully seized the nets without then instituting criminal or civil proceedings. The Republic then wrongfully disposed of the property without first effecting a valid seizure.

Since the Republic, through the Division of Fish and Wildlife Protection, has shown a willingness to release these nets to the public, the Court sees no reason why they should not be returned to Plaintiff. Defendants are ordered to search Subelek Farm and all other depositories of seized property, and determine what of Plaintiff=s nets, floaters and sinkers remain in the possession of the Division of Fish and Wildlife Protection or any other law enforcement body under the Bureau of Public Safety 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 Division of Fish and Wildlife Protection or any other law enforcement body under the Bureau of Public Safety, Defendants will return those items, including the nets admitted into evidence as Plaintiff=s Exhibit 3, to Plaintiff by March 16, 2010. Before returning the nets, the Division of Fish and Wildlife Protection should disable the nets (i.e., remove the sinkers and floaters), so that the nets no longer violate the law and cannot be used for fishing. In return, Plaintiff is ordered not to fish with the nets, although he may use the legal floaters and sinkers for fishing.

The Division of Fish and Wildlife Protection and Attorney General=s office are on notice that, in the future, if the authorities seize allegedly illegal property, the Bureau of Public Safety 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 with absolutely no oversight to ensure that the property is being used legally.

December 28, 2009

____________________________
Alexandra F. Foster
Associate Justice