ASG responds to lawsuit challenging legality of 2007 Executive Order ban on certain vehicles
The Attorney General’s office has responded to a lawsuit challenging the legality of Governor Togiola Tulafono’s 2007 Executive Order banning the importation of certain vehicles into the territory.
The response was filed by Assistant Attorney General Michael Iosua after plaintiff Live Saunoa filed his complaint through attorney Fiti Sunia claiming declaratory judgment and wrongful seizure.
According to the complaint, Live of Faleasao returned to American Samoa with a 1996 Dodge Ram 1500 truck from California. However when the vehicle arrived — in January 2012 — the Customs Office held the vehicle. Customs’ refusal to release Live’s vehicle is based on Executive Order NO 010A-2007, issued by Togiola to demonstrate the government’s commitment to assist the fight against global climate change.
The government in its response has denied the claim by the plaintiff that the Executive order contains no finding of any kind justifying the selection of model year 1999 as a cut off date for vehicles being imported into American Samoa.
The government is also denying allegations by Saunoa that he was advised by the Office of Customs that his vehicle can only be released on a waiver from the Governor’s office. Assistant AG Iosua pointed out in the response that shipping agencies were advised of the Executive Order which has been in place since 2007.
The plaintiff does say the shipping agency did not notify the plaintiff of the Executive order until the vehicle was en-route to American Samoa, even though he had submitted ownership papers to the agency, which included year of said vehicle.
The government further denies the plaintiff’s claim that the Executive order contains no procedure of any kind for obtaining a waiver for banned vehicles or any reference to an advisory committee of any kind.
The government also denies the plaintiff’s complaint that the Executive order contains no enforcement procedures or any procedure to determine the disposition, including seizure of a vehicle manufactured prior to model year 1999 that comes to the territory after January 1, 2009.
Saunoa contends the Executive order should be declared unconstitutional to the extent that it seeks to regulate conduct of the general public, as opposed to administrative agencies in regard to the importation of vehicles manufactured before model year 1999.
Suanoa in his complaint states that the Customs Officers has refused to release his vehicle since it arrived in the territory, which amounts to seizure, which the government is also denying. The plaintiff also noted the government in the past has allowed importation of several vehicles owned by the government that were manufactured prior to model year 1999, that arrived after the Executive order was in place.
The government admits to this claim that it has allowed the importation of vehicles manufactured prior to year 1999, which comply with the requirements of the Executive Order or which have been approved for a waiver.
The government denies allegations by the plaintiff that the seizure of his vehicle is unlawful.
Assistant AG Iosua noted the Affirmative Defenses as follows: The complaint fails to state a claim upon which relief may be granted.
All or part of the plaintiff claims are barred by the doctrine of sovereign immunity . The plaintiff has failed to join an indispensable party.
This action is also barred by the applicable statute of limitation, barred from recovery by the plaintiff’s own contributory negligence.
A hearing has yet to be scheduled to hear arguments in this matter.
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