Frances Tydingco-Gatewood, District Court of Guam chief judge, has set a Sept. 4 hearing to discuss the motion of the Marshalls 201 fishing vessel case.
Daniel Berman, counsel for Marshalls 201 , wants to file an appeal before the Ninth Circuit Court of Appeals to correct the court's order against the vessel.
The $3 million foreign fishing vessel is under forfeiture proceedings after its crew was caught fishing illegally inside the U.S. Exclusive Economic Zone in the South Pacific Ocean.
When Berman filed motions to dismiss the case and for summary judgment, the chief judge denied the motions and ruled that the EEZ is a "seazone" over which a state including its territories has special rights over the exploration and use of marine resources.
The court explained that the U.S. EEZs were originally established by Presidential Proclamation in 1983 and were even earlier established in 1976 by the Fishery Conservation and Management Act of 1976.
The court also took into consideration evidence provided by the U.S. Attorney's Office that two vessels in which Marshalls Islands Fishing Company were part owners were previously cited for fishing within the EEZ of Baker and Howland Islands.
It added that the defendant failed to take the substantial and reasonable steps necessary to prevent any violations of the U.S. fishing laws.
MIFCO argued that the United States lacks the legal authority to claim and enforce a 200-mile EEZ around Baker and Howland Islands.
The vessel, partly owned by the Marshall Islands Marine Resources Authority and Koo's Fishing Co., was arrested by the U.S. Coast Guard on Sept. 9, 2006.
The arrest of the fishing vessel triggered protests from the local island leaders prompting diplomatic letters to federal government to negotiate a settlement.
According to MIMRA, the vessel was straddling an area near the EEZ boundary between the United States and Kiribati, approximately equal distance between Baker Island (U.S.) and McKeon Island (Kiribati).
Marshall Islands leaders stated that there is no agreement between the United States and Kiribati regarding this boundary, although the United States has unilaterally acted to establish the boundary through a federal regulation, and the Marshalls 201 is permitted to fish within the Kiribati EEZ but is not licensed to fish within the U.S. EEZ.
Federal agents, however, stated that a Coast Guard C-130 airplane and crew were on patrol in the Howland/Baker EEZ when the crew spotted a purse seiner with nets in the water and crew aboard two workboats about two miles inside the EEZ. The aircrew maintained visual contact with the 210-foot Marshalls 201 as the fishing vessel's crew retrieved the nets and workboats.
The 225-foot buoy tender Walnut and crew were diverted to the Marshalls 201 position and also observed the vessel actively fishing. A Coast Guard boarding team conducted an at-sea law enforcement boarding of the fishing vessel and collected evidence of the Marshalls 201's activities.
Subsequently, the Coast Guard received permission to seize the catch and vessel for illegally fishing inside the U.S. EEZ. The Marshalls 201 was carrying an estimated 500 metric tons of skipjack tuna valued at about $350,000.
An agent with the National Marine Fisheries Service (NOAA Fisheries Service) was aboard the Coast Guard C-130 airplane when the crew initially sited the Marshalls 201 inside the EEZ. The agent was with the aircrew to provide fisheries knowledge. A second NMFS agent aboard the Cutter Sequoia will continue the joint investigation into the Marshalls 201's fishing activity.
The master is a Taiwanese citizen, and the crew is made up of Micronesian and People's Republic of China citizens.