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 Plaintiffs 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. Plaintiffs 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). 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 Fishermans Association, 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 (sinkers) in Palau. Plaintiff knew that the legal minimum mesh size was three inches, 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. 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. 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 (DFW) confiscated all 28 of Plaintiffs 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 Rdialuls 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 Plaintiffs nets were the same size as Rdialuls nets. Rdialuls nets were confiscated around the same time as Plaintiffs 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, DFW confiscated twenty some nets from Rdialul, because DFW alleged that the mesh size of Rdialuls 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 Plaintiffs civil case because the Republic was prosecuting Rdialul for possession of unlawful kesokes nets in Criminal Action No. 08-073. 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) [f]or reasons stated in open court. At trial in this case, Rdialul testified, that someone measured the nets in front of the judge and found out that my nets were bigger then they originally thought. Rdialul was not fined or imprisoned. Rdialul added that others fish with nets the same size as his, and those nets have not been seized.

After his nets were seized, Plaintiff heard a rumor that Eisenhower Eisen Meresbong was using some of his confiscated nets. Plaintiff went to visit Eisen. He saw Eisens nets and recognized them as his own. He recognized his nets by their telltale yellow string through the black net, along with Plaintiffs 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. Plaintiff had his son take photographs of Eisen and Plaintiff with the nets.

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 (Plaintiffs Exhibit 2), but admitted that the nets he received from the DFW looked like the nets in the courtroom (Plaintiffs Exh. 3 - two of Plaintiffs 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. 

The DFW also gave some of Plaintiffs nets to John Aro Remengesau for agricultural purposes. Remengesau requested and received some of Plaintiffs 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. 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 Plaintiffs floaters were with those nets. Aro paid nothing for the nets, weights and floaters.

Chief Kammen Chin testified that he had Plaintiffs 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 mesh 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 Plaintiffs 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 Plaintiffs 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  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. Plaintiffs Exhibit 1, the Receipt of Confiscated Property, which DFW gave Plaintiff when they confiscated his nets, reads: 1) 250 ft. each kesokes and 2) Bkuro. 

The preamble to the Receipt reads: The 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. 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 Plaintiffs nets remain in the DFWs custody today (Plaintiffs 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 Generals 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 get 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 recipients 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, it 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 subject 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, 809 F.2d 1364, 1369 (9th Cir. 1987). However, . . . 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, even if it is alleged that the property the movant seeks to have returned is no longer within the Governments possession, the district court has jurisdiction to determine whether such property has been in [the Governments] possession and whether [the Government] wrongfully disposed of such property. United States v. Bein, 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 Plaintiffs claims. The burden of proof therefore shifts to Defendants to show that it has a legitimate reason to retain the property. Defendants sole legitimate 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 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 Plaintiffs nets did not measure three inches according to DFWs 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 Plaintiffs net (Plaintiffs Exh. 3) in that manner, Plaintiffs net is less than three inches diagonally.

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 below legal mesh size, and lay this matter finally to rest. 

The Court has found that Plaintiffs 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 Plaintiffs nets, floaters and sinkers remain in the possession of DFW or any other law enforcement body by March 1, 2010. If any of Plaintiffs 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. 

CONCLUSION 

Plaintiffs 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. Further, the Court finds that the Republic wrongfully disposed of the property without first effecting a valid seizure. Because the DFW violated Plaintiffs right to a hearing and has released Plaintiffs nets to others in the community, the DFW is hereby ordered to return any nets or portions of nets in the Bureau of Public Safetys 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 Generals office are now on notice that, in the future, if the DFW seizes allegedly illegal property, DFW and the Attorney Generals 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