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By Fili Sagapolutele
Samoa News Correspondent
Hawaiian Airlines has asked the U.S. Department of Transportation to officially declare whether the governor's executive order forcing Hawaiian to withdraw from the Honolulu-Pago route is enforceable.
The carrier, which has operated its flights in this market for more than 20 years, filed a petition for declaratory relief with DOT yesterday. A copy of their petition was cc'ed to Governor Togiola.
Samoa News asked Togiola to comment on Hawaiian Air's petition to DOT and asked the governor's press officer Vince Iuli for an official statement. None was forthcoming as of press time yesterday evening.
"We believe that the executive order issued by the governor of American Samoa is preempted by federal law, and the governor feels otherwise," said Hawaiian spokesman Keoni Wagner in a statement yesterday. "In the interest of clarifying the situation for all concerned, we're asking the DOT to rule on this. We have requested that the governor be given the opportunity in this matter, so that his views are fully taken into account."
Hawaiian's petition basically makes the legal argument the executive order has no impact because federal laws governing the transportation regulations override the strength of the order. The petition cites that the Supremacy Clause of the US Constitution dictates that the Transportation Act preempts the governor's executive order.
Article VI, Section 2 of the US Constitution is known as the "Supremacy Clause" because it provides that the US Constitution and the laws of the United States "shall be the supreme Law of the Land." This means that the federal government, in exercising any of the powers enumerated in the Constitution, must prevail over any conflicting or inconsistent local/state exercise of power.
The airline informed DOT that for the last two years, the governor has voiced dissatisfaction with Hawaiian's service but the reasons underlying the governor's dissatisfaction remain unclear, "though it is clear that the crux of his dissatisfaction is directed at the airfares and fees charged by Hawaiian" for the Pago Pago flights.
It was also noted that despite Hawaiian's offers to meet and discuss his concerns, the governor "has conditioned any discussions with Hawaiian upon the airline's agreement to pay 'reparations' to the people of American Samoa. Hawaiian has not acceded to the governor's request," according to the petition, which includes the governor's executive order and a copy of Togiola's Aug. 7 letter to FAA's Ronnie Simpson.
The governor had said that the territory's 106 year old custom and board control authority supports his executive order. Togiola said American Samoa controls its own borders, the same control and authority, as held by the U.S. Bureau of Customs and Border Protection (BCBP) to those areas under its jurisdiction.
However, the Honolulu-based carrier said the governor's alleged customs and border control authority cannot save his executive order from preemption.
"The governor's argument fails for several reasons," the petition says and noted that all the governor has alleged is the lack of BCBP authority relating to the customs and borders of American Samoa.
According to the petition, the governor failed "to establish any legal basis for his alleged 'customs and border control authority' that would allow him to bar a licensed U.S. air carrier holding a certificate of public convenience and necessity" issued by DOT from operating in and out of the territory.
Hawaiian contends that neither Congress nor the U.S. President "has granted the governor any positive authority to govern the borders of American Samoa, and they certainly have not granted the governor some sort of 'carte blanche' authority, exempting him" from the U.S. Constitution and the Transportation Act.
Additionally, there is nothing under the Constitution or laws of American Samoa - including the Revised Code dealing with customs and immigration issues - that could be read as a grant of authority to ban one particular air carrier from American Samoa, the petition said.
The petition cites Title 41 of the Revised Code which deals with entry and departure to and from American Samoa. The carrier says Title 41 contains no authority for the governor's action.
Hawaiian argues that even "presuming" that ASG has some authority to police its own borders - consistent with local statutes, "its actions must still be consistent with federal laws passed pursuant to Congress' authority over interstate commerce."
"Regardless of the authority that might reside within a State or territorial government to create regulations, those regulations will be preempted by any contrary federal law passed pursuant to Congress' authority over interstate commerce," the petition said.
"The Transportation Act is a federal law passed pursuant to Congress's powers over interstate commerce and it preempts state regulation in the field of airlines rates, routes and service."
"The governor attempts to avoid this inevitable conclusion by asserting that the order 'does not contemplate a regulation relating to Hawaiian Airlines' activities' and so does not 'regulate an air carrier's rates, routes or service'," the petition states.
"The governor's attempt to avoid preemption is facially transparent and cannot survive scrutiny," the petition argues. "Specifically, it is clear that the [executive] order seeks to address the fees and fares charged by Hawaiian."
"Regardless of the alleged authority on which the governor purports to act, it is clear that his conduct seeks to regulate the rates charged by Hawaiian, the routes flown by Hawaiian and the services offered by Hawaiian," it says. "This is exactly the type of state and territorial regulation that Congress acted to preempt with the Transportation Act."
In conclusion, Hawaiian asks that DOT enter a declaratory order that the governor's executive order "is preempted by under the Interstate Commerce Clause and the Supremacy Clause of the U.S. Constitution, pursuant to Congress's clear intent expressed in the Transportation Act."
Reach the reporter at fili@samoanews.com.
Osini Faleatasi, Inc. dba Samoa News reserves all rights.
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