The five marine sports operators who are suing the Department of Public Lands have posted $1,861.05 cash bond or 3 percent of the $62,034 that the Superior Court required them to pay in order for them to regain Managaha access while their lawsuit is pending in court.
The marine sports operators said the $1,861.05 that they posted in court on Tuesday represents either nominal damages for a possibly wrongfully enjoined DPL or representative of the possible damages alleged by DPL in its opposition to the operators' motion to modify the bond requirement.
As this developed, Superior Court associate judge Joseph N. Camacho yesterday issued an order setting a hearing on Aug. 22 at 9:30am to determine the marine sports operators' ability to pay the $62,034 bond requirement.
The plaintiffs in this case are Island Marine Sports Inc., Aquatic Marine Co. Inc., Automarine Inc., Seahorse Inc., and BSEA Inc. Each operator deposited in court $372.21 in cash or for a total of $1,861.02.
Attorney F. Matthew Smith, counsel for the operators, said the plaintiffs deposited the money in a good faith attempt to propose an alternative bond calculations and to deposit a bond that they are capable of meeting.
Smith said the bond that the plaintiffs posted shall be void and all posted sums returned to them should they succeed on the merits of their Commonwealth Administrative Procedure Act claim or should the court modify the bond requirement or allow the preliminary injunction to take effect without this bond.
Smith said the operators posted the bond due to the ongoing harm being suffered by them each day that the preliminary injunction is unable to take effect.
Smith said the operators continue to seek modification of the bond requirement and hope the court might recognize this good faith effort on the part of plaintiffs to comply with the bond requirement.
The lawyer said DPL argued at the modification hearing that DPL's possible damages resulting from the preliminary injunction could be 3 percent of Tasi Tours' possible lost revenue.
He said the court noted that Tasi Tours estimated a possible lost revenue of $62,034 should DPL be wrongfully enjoined.
In his order issued yesterday, Camacho said while he recognizes the $1,861 bond as a good faith effort to comply with the bond requirement, the court still does not have evidence regarding petitioners' ability to pay.
Camacho said the petitioners have represented that they are unable to post the bond amount in connection with a preliminary injunction, although no evidence was presented regarding their ability to pay.
Camacho said in order for him to make a decision on a full record he hereby stays decision on the petitioners' motion to modify the bond requirement.
The judge ordered the parties in the case to submit briefing supported by affidavits regarding petitioners' ability to pay a bond/financial hardship, and proposal(s) for meeting a bond requirement such as a deposit of property in lieu of the bond and/or a payment schedule.
BSEA Inc., through its president Bill Owens, stated that Camacho's July 19 temporary injunction may only begin when a bond is paid-something they have been unable to secure on Saipan
In order to try all angles, Owens said their search for an insurance company that offers this type of fiduciary bond for the six-week term was unsuccessful.
Owens said that, at a hearing, the topic of DPL's potential damages pointed to its agreement with Tasi Tours that calls for a payment to DPL equal to 3 percent of Tasi Tours' gross receipts.
Tasi Tours, the businessman said, speculated that $62,034 in damages may occur over the term of the temporary injunction so they have submitted the 3 percent that DPL claims they stand to lose.
Owens said they have also reached out to the parties involved in this case as well as the Marianas Visitors Authority as they feel a solution is attainable amongst professionals in the industry, for the betterment of the island.
“Every moment that passes, seven days per week, we are unable to do our part for tourism at the peak of our year-something we have done for decades,” Owens said.
He said they have tried to come up with something in good faith to get back out there and do their part.
“We are well into the busy season that floats our whole year-we're just trying solutions at this point. Tourism needs us and our employees need tourism,” he said.
In his July 19, 2012 order, Camacho granted the operators' request to maintain the status quo on Managaha access until their lawsuit against DPL is decided on its merits.
Camacho, however, ordered the operators to post the $62,034 bond. He said the preliminary injunction shall take effect once the full bond is remitted to the court.
The operators then moved the court to modify the bond requirement either by removing the bond altogether or to only require a nominal bond.