[Coral-List] Company pay fine in Marshall Islands for Coral Damage from Vessel Grounding
crawdaddyhale at hotmail.com
Fri Mar 6 10:53:48 EST 2009
Now that I work for the feds, instead of Palau, I have to say that this is my own personal opinion.....
Dear Mr. Ware and other Listers:
We should be disappointed with a small fine, most of which was suspended, but this fact should not serve to denigrate the efforts of those who fought the case. We have to remember that multiple people lost their jobs over this, and others were subject to massive personal and political pressure just to save a few tens of thousands of dollars for a scofflaw company. That is the state of coral reef protection in the Marshalls, abyssmally inefficient and wrought with abusive conflicts of interest. But for the efforts of a few expats, NOTHING would have been done, at all!
>From an economics point of few, yes, perhaps the reward doesn't outweigh the time and effort. But that doesn't mean the case should not have proceeded because there is more at play than just economics, at least predictable economics.
First, unless there are strict sentencing guidelines that reduce the judge's sentencing discretion, in a new or uncommon type of case, the prosecutors have very little to go on with regard to the predictability of the sentence (fine). So the decision to say, "not worth the effort" is really hindsight 20-20 because there is no way to know what the fine will be. The only way to improve the predictability is by doing a bunch of cases, which is easier said than done because underwater crimes are hard to detect. But you need to build a sample size; one case is not enough. Each time you learn from your (and their) mistakes.
Second, the Justice business isn't about (wholly) economics. Let me give an example, if someone robs an old lady on the street, takes her purse, and recovers $100. Then economically, she is made whole by returning the purse and $100. Maybe, you want to add a bit more, for the interest she would have made on the money during the time the purse was missing. Maybe you want to add more for a bounced check because she couldn't deposit that money in the bank, but even if you double, triple, or multiply it by ten times to $1000, that wouldn't begin to cover the time of the police and prosecutors and court staff to just process and try the guy, never mind the cost of actually jailing him, even for a 30 day sentence. But still many of us would think a violent purse snatcher should get some punishment more than just returning the money. The aims of the justice system are just different than an economics system. Of course, it is lamentable when the punishment doesn't fit the crime.
Third, in many respects, government labor is sunken cost, and statements like "not worth the effort" ignore the fact that once a government worker is salaried, they are free labor, at least compared to a private lawyer or consultant that is charging by the hour. Yes, yes, yes, there is opportunity cost, but it is not as neat and easy as with private enterprise. The next best activity for a government worker -- next most valuable activity after working on a high risk case -- is not likely to be a medium or low risk case. In reality, it might be nothing. Meaning, it might be that worker just doing busywork, filling out forms, or waiting for the next thing to come up. So yes, there is opportunity cost, but it is not as cut and dry.
Lastly, this case points out the reality of how bad the situation is. Because of the past Trust Territory relationship and various Compacts, the U.S. has included three independent nations, RMI, FSM, and Palau as part of the USCRTF (non-voting). After all, they have some of the best coral. But when they ask for help, we need to be prepared to offer concrete assistance that is tailored to the local environment, not just the ecological environment, I mean an environment that has serious problems with corruption, apathy, and real-life political manipulation of cases and investigations with almost no consequences for the manipulators. Help must have follow through. A well meaning local is not going to risk the loss of face (or job loss) for teaming up with an expat or visiting expert if there is not some good chance of winning. And for the bad guys, the expectation of the good guys' success is low. The corrupt folks have had years of non-local do-gooders grace their lands, and nowadays not just the expats (not all do-gooders to be sure), Peace Corps, missionaries, or folks from U.S. federal agencies. For the Freely Associated States, they've also got AusAid, Pacific Island Forum, Asian Development Bank, SOPAC, JICA, EU, New Zealand, Korean foreign assistance, and depending on where they stand on the Pacific diplomatic cold war, Taiwan or PRC aid. The bad guys are accustomed to foreigners and have developed ingenious ways to deceive or stall the visiting helpers until their TAs expire and they have to take the next plane home.
Bottom line, the situation is frustrating, but to save the coral, it will require a sustained effort that recognizes the governance problems that exist in the places the coral is found. We all would have liked more, but this case points out just how ineffective the enforcement regimes are in developing nations with regard to environmental protection. It is sadder when some of those countries are "partners" in the U.S. effort to protect this dying resource.
Lastly, to Andrew, I wish I could have done more to help than just my "two cents" and the few cases and law journal articles I sent your way.
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