Pago Pago, AMERICAN SAMOA — After more than two and half years of litigation, the federal court in Honolulu has dismissed a multi-million dollar environmental lawsuit brought by Alega residents against the remaining defendants from the territory: AST Telecomm LLC, dba, Bluesky Communications; American Samoa Power Authority (ASPA) and American Samoa Telecommunications Authority (ASTCA) — and the three entities current and former officials.

Plaintiffs brought the suit against the defendants under the federal Environmental Species Act (ESA), the Marine Protection, Research and Sanctuaries Act (MPRSA), the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), and American Samoa law regarding a dispute over telecommunications detritus allegedly deposited within the Alega Marine Preserve, a private marine protected area in American Samoa, to the detriment of endangered Hawksbill and Green Sea Turtles.

ASPA and ASTCA argue that the federal court lacks personal jurisdiction over them, and all defendants — including AST Telecom — argued that the case should be dismissed under the doctrine of forum non conveniens, according to the court’s Jun 16 ruling.

(Forum non conveniens refers to a court's discretionary power to decline to exercise its jurisdiction where another court, or forum, may more conveniently hear a case, according to law.cornnel.edu.)

“The court agrees” and dismissed the plaintiffs complaint, wrote U.S District Court Judge, J. Michael Seabright, at the outset of his 42-page decision.

Siding with the defendants, Seabright ruled that the court in American Samoa, not the federal court in Hawaii — is the proper forum to hear the case.

As previously reported by Samoa News since the lawsuit was first filed in 2021, AST Telecom, is the lead named defendant and at one point the list of defendants reached more than 30, including current and former ASG and US federal government officials. There was even a separate lawsuit on the same matter filed against the Chief Justice Michael Kruse and a local resident, James McGuire.

Plaintiffs took the case to the federal level, after failed efforts with a similar case filed with the High Court of American Samoa.

The federal court in March last year, dismissed a majority of the defendants — including ASG and federal officials — leaving only three sets of American Samoa defendants: AST Telecom, ASPA and ASTCA along with current and former officials. Also named defendants were board members of ASPA and ASTCA.

For the plaintiffs, there were originally four Alega residents but later reduced down to three: Steven Jay Pincus Hueter, Faʻamuli Pete Faʻamuli, and Michael “Candyman” Kirk - who are officers of the Alega Marine Preserve.

Samoa News has reported in the last two and half years on this case and the many filings involved, covering various issues of the lawsuit raised by the plaintiffs and objections from the defendants.

In March 2022 with only three-sets of defendants left on the case parties engaged in settlement discussions with a federal Magistrate Judge.

And the defendants conducted “a survey and inspection of the property in question and prepare[d] a specific proposal to address the removal of the telecommunications detritus and other materials at issue in this case,” according to court documents.

Although settlement discussions continued through the year, the parties were unable to reach an agreement, and several new motions were filed, as well as counter-motions. The court held a Zoom session on May 1 this year on all the motions, followed by Seabright’s decision on June 16.

PERSONAL JURISDICTION

ASPA and ASTCA defendants first argued that because they reside in American Samoa and the underlying controversy took place entirely within American Samoa, there are insufficient “minimum contacts” with Hawaii to afford the federal court personal jurisdiction.

In addition, they argued that the federal court cannot exercise personal jurisdiction under the federal long- arm statute, Federal Rule of Civil Procedure 4(k)(2).

“The court agrees that it lacks personal jurisdiction over these defendants” under federal rules, said Seabright, who detailed in his ruling each long-arm statute in turn.

The federal judge points out that no defendant nor any other aspect of this case has any connection whatsoever to Hawaii and that the defendants live and work in American Samoa. Seabright said plaintiffs have not alleged that they have directed any activity toward Hawaii. And plaintiffs’ claims arise solely out of conduct that allegedly took place in American Samoa.

“Simply put, there are no contacts—let alone sufficient minimum contacts—between any of the defendants and Hawaii to support the court’s exercise of personal jurisdiction” under federal rules, the decision said.

FORUM NON CONVENIENS

The court then turns its attention on to whether dismissal is appropriate under the doctrine of forum non conveniens, under which all three sets of defendants move for dismissal.

“After careful consideration, the court determines that this is one of those unique and rare cases where dismissal is warranted under the doctrine,” Seabright wrote and outlined the lengthy analysis of the decision.

Seabright in his decision, ruled that the High Court of American Samoa has subject matter jurisdiction over an ESA citizen suit, and offers Plaintiffs a full remedy.

And during the hearing on the various motions before federal court, Seabright recalled that plaintiffs had argued that the High Court is an inadequate forum, alleging judicial misconduct in the forum state, and the “ineptitude” of the High Court’s judges to hear federal claims arising out of U.S. law.

“This court, however, has already reviewed issues of the High Court judicial competency in relation to an earlier case filed by the same Plaintiffs and the court will not re-litigate those issues now,” said Seabright. “The court repeats—there was no judicial misconduct, only over-the-top conspiracy theories by Plaintiffs.”

He declared that: “The High Court of American Samoa often deals with issues of federal law and is the most adequate forum to ensure the enforceability of any judgment that may result from this controversy.

“Should Plaintiffs’ ESA claim prevail, the High Court has the tools to provide them with an adequate remedy,” he said and also ruled that the “private factors” weight in favor of dismissal of the case from federal court.

He first pointed out that the relative ease of access to sources of proof strongly favors American Samoa, saying that none of the complained-about events occurred in Hawaii, and all the evidence is located in American Samoa, not Hawaii.

“In fact,” he said, “all of the individual Plaintiffs and all of the remaining Defendants — including the individual defendants sued in their individual and official capacities — reside in American Samoa. None reside in Hawaii.”

Seabright said that requiring the individual defendants to attend a trial in the District of Hawaii would be overly burdensome. “Holding trial in American Samoa is—without question—more convenient to both the Plaintiffs and the Defendants,” he said.

Further, the Honolulu federal court’s subpoena power would not extend to witnesses in American Samoa, and thus American Samoa is more convenient for the compulsory process for attendance of any hostile witnesses.

Seabright also said that there is no “local” interest in having this case tried in the District of Hawaii, but “there is certainly a great interest in hav[ing] this localized controversy heard in American Samoa.”

Although Plaintiffs allege a violation of the ESA, they also seek $4 million in compensatory damages and $4 million in punitive damages under territorial law.

However, Seabright noted that the ESA can only provide Plaintiffs equitable relief, not damages. And should Plaintiffs prevail on the ESA claim, the High Court would be in a much better position to determine the scope of the equitable relief and to oversee compliance with any court order.

Seabright said there are also potentially complex issues of standing that relate to customary America Samoa land rights that clearly make America Samoa courts better suited to hear this case.

He recalled that a briefing before his court has revealed an underlying dispute regarding the ownership of the Alega land at issue, and thus whether Plaintiffs have standing to raise their current claims.

Faʻamuli claimed that he is the authorized representative for communal land in Alega Village, but ASPA cite American Samoa case law suggesting that the Alega land in question was partitioned into individual lots to the heirs of Taʻape Faʻamuli.

“This land title dispute—which may ultimately be relevant to standing—is the very sort of dispute this court is ill-equipped to handle,” said Seabright.

All three sets of defendants had sought to dismiss the lawsuit. However, AST Telecom’s motion for summary judgment against the plaintiffs, was denied as the case is now “moot”, since it’s dismissed.