The Department of Public Lands is supporting Tasi Tours & Transportation Inc.'s bid to have the Superior Court reconsider its ruling to allow five marine sports operators to post a lower bond in connection with their lawsuit against DPL.
Assistant attorney general Michael Wilt, counsel for DPL, asserts that the court order is internally inconsistent and leaves Tasi Tours, a concessionaire of DPL, effectively unsecured.
Associate Judge Joseph N. Camacho had modified the bond to make it 97 percent unsecured, said Wilt in DPL's memorandum filed Tuesday in support of Tasi Tours' motions for reconsideration and clarification.
“Clarification is necessary to the DPL because the DPL is charged with the responsibility of enforcing the rights of Tasi Tours made pursuant to their concession agreement with the DPL,” the government lawyer said.
DPL asked Camacho to reconsider his modification of the Rule 65(c) bond and clarify the scope of the preliminary injunction that he earlier issued.
Wilt said the preliminary injunction clearly allows the five marine sports operators to pick up “their customers (who have pre-purchased package tours including activities such as banana boat rides and parasaling)” on Managaha Island.
However, Wilt said, it is unclear what circumstances are encompassed by the term “their customers.”
He said DPL infers the term “their customers” to mean tourists who, before landing on Managaha, purchased a water sports tour package from the five marine sports operators, which includes transport to and from Managaha.
“However, as written, the term could be construed to encompass a broader class of tourists,” he pointed out.
For these reasons, Wilt said, DPL wants the court clarify the scope of the preliminary injunction.
Last week, Tasi Tours, through counsel Rexford C. Kosack, asked for clarification of Camacho's Aug. 22, 2012, order about the bond for the preliminary injunction.
Kosack said that Camacho issued a preliminary injunction without giving the security for the payment of all the damages that might be suffered by Tasi Tours-contrary to Rule 65(c) of the Rules of Civil Procedure.
He said the giving of merely a promise to pay is the antithesis of giving “security.” A signed acknowledgment, Kosack pointed out, is not security.
On the request for clarification, Kosack said what they understand with the injunction order is that it permits the five marine sports operators to drop off and pick up “their customers” on Managaha Island.
“What is unclear, however, is whether they may pick up customers who were brought to Managaha by another tour company and then take them on Managaha-to-Managaha tours or Managaha-to-Saipan tours,” he said.
In response to Tasi Tours' motions for reconsideration and clarification, the five marine sports operators, through counsel Mark A. Scoggins, stated that the filing of the motions is part of Tasi Tours' strategy “to litigate them to death.”
Last Aug. 23, the five marine sports operators resumed business operations after paying $60,172.95 in unsecured bond on top of the $1,861.05 cash that they had already posted as bond requirement.
The operators-Island Marine Sports Inc., Aquatic Marine Co. Inc., Automarine Inc., Seahorse Inc., and BSEA Inc.-signed an acknowledgment of their responsibility for the unsecured amount.
The operators each promised to be bound unto DPL and Tasi Tours in an amount not to exceed $12,034.59 in the event defendants are found to have been wrongfully enjoined and are able to prove in the lawsuit actual damages.
The preliminary injunction that Camacho issued last July 19 granted the marine sports operators' request to maintain the status quo until their lawsuit against DPL is decided on its merits.
The operators are suing DPL to invalidate the department's “rule” promulgated on Dec. 13, 2011, and June 14, 2012, pertaining to Managaha access.
That “rule” prohibits marine sports operators from picking up customers on Managaha Island for their tours unless they are Tasi Tours or its subcontractors.
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