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High Court grants permanent injunction against Avamua

The High Court has granted the American Samoa Government’s petition for a permanent injunction against Avamua Dave Haleck, who has since sought a new trial or alternatively, a reversal of the permanent injunction.


The local legal battle between ASG and Avamua is a long standing one over Haleck- owned land called Naumati in Ottoville, which is considered lowland forest. It is also the subject of a Haleck family lawsuit against the U.S. Department of Interior pending at the federal court in Washington D.C.


In early March this year, the federal court ordered that the federal case has been “stayed” pending further order of the federal court, and that all parties involved “shall submit a joint status report summarizing the current status of the underlying dispute” in the High Court of American Samoa.


In the reports, which were filed yesterday in federal court, it states that the High Court ruled on May 1, granting ASG’s application for a permanent injunction against Avamua — who was first issued a preliminary injunction in 2008, preventing him from developing the Ottoville lowland rainforest, without first getting an ASG land use permit.


The local court’s latest ruling followed a one-day trial in January this year where arguments by both sides were made. At the time the court took the matter under advisement with a written ruling to follow later.


During the trial the government argued that,among other things, a permanent injunction is needed as developments were coming close to the lowland rainforest, which is home to bird and tree species not found elsewhere in the territory.


Avamua’s attorney Roy J.D Hall Jr. argued that the main issue before the court deals with ASG's move for a permanent injunction and the government has no standing in this matter since it does not own this Ottoville land.


In its May 1 decision, the court referred to its 2008 discussion, when this case first came before the court. The discussion concerned future bushland development in American Samoa in light of the American Samoa Costal Management Act (ASCMA) of 1990.


"Since this enactment — declaring among others things, the islands of American Samoa and its foreshore and attendant seabed areas as the Coastal Zone Management areas of American Samoa, subject to regulation by the ASCMA —there can be no more willy-nilly self help to bush land,” the judges said.


“There is thus no unfettered ‘native’ right to bushland access, without a prerequisite land use permit under the provisions [of] ASCMA,” they said and noted that any attempts by the defendant to acquire the Rainforest through initial clearing, cultivation and occupation... shall be subject to prior compliance with the provisions of the ASCMA.”


According to the judges, the court may issue a permanent injunction only after a full and final trial on merits has been concluded. To obtain a permanent injunction, the decision says, plaintiffs must show:


•            an irreparable injury;


•            that remedies available at law, such as monetary damages, are inadequate to compensate for that injury;


•            that, considering the balance of hardship between the plaintiff and defendant, a remedy in equity is warranted; and


•            that the public interest would not be disserved by a permanent injunction.


In this case, “there is a strong potential for irreparable injury, which cannot be remedied by a legal remedy,” the judges said. “The evidence revealed the uniqueness of the Rainforest and quite obviously, clearing any portion of the same would irreparably harm the Rainforest in ways which cannot be undone.”


Additionally, the balance of hardships weigh most certainly in favor of plaintiff, as defendant “cannot be said to be the owners of a primary forest and have no right to development of land to which they hold no lawful title.”


Furthermore, the “public’s interest will not be disserved by preservation of the lowland’s sole primary forest that contains many of this island’s unique species of trees, birds and bats.”


“In fact, the public’s interest would only be furthered by the protection of the Rainforest,” according to the judges, who added that “we find no qualms” in granting the permanent injunction.


The 13-page decision is signed by Chief Justice Michael Kruse and Associate Judge Mamea Sala Jr.


On May 10, Avamua filed a 31-page motion seeking a new trial or in the alternative, to reverse and vacate the permanent injunction. A hearing on the motion is set for June 11 at 9a.m.


Meanwhile, federal court records show that the new Interior Secretary Sally Jewell has been substituted in the lawsuit for Kenneth L. Salazar, the former Interior Secretary who was at the post when the Haleck family lawsuit was filed last year.