Posted on 08/13/2006 1:05:54 AM PDT by coconutt2000
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.
Between the governor and the airline, because the rest of us think the governor is...
Thanks. The governor has no basis for his claims or for requiring reparations.
This controversy may be an attempt to immunize himself against a possible arrest for unrelated public corruption charges. It isn't a secret that the Lt. Governor is being investigated by the FBI, as well as our Attorney General, among others. It doesn't take a leap of imagination to conclude that if the former AG, the Lt. Governor, and other top officials in the local executive branch are all dirty, that the governor probably is too.
Here's one article you might not have seen:
We control our own borders says Governor Togiola
By La Poasa
Samoa News Staff
Governor Togiola told listeners of his weekend radio program on Saturday that he will do everything in his power under the law to make the point known to Hawaiian Airline he is not merely talking stories, but that the government is serious that it wants Hawaiian out of this market.
Togiola said this is because it is a fact that the territory has suffered because of Hawaiian. He said it appears that the carrier "doesn't care" because of its response that the governor's executive order to force them out of American Samoa has no legal power.
The governor said it seems that Hawaiian isn't worried, and this is the type of airline we are dealing with - an airline that doesn't care and is condescending. He said if we add this attitude with the attitude of local residents who support the carrier, then it adds to the a bigger problem.
Togiola said the truth is, he is not going to back down from his position, that this matter has been researched and he is confident that as governor, he has the authority to make this decision (force Hawaiian out).
He said if Hawaiian plans to take legal action, he is already prepared to reply to it. He said he didn't just issue an executive order, then sit around. He said this is not something he has not reviewed and made plans ahead of time.
The governor then explained his executive order, and what it requires Hawaiian to do. According to the executive order, which was issued last Wednesday, Hawaiian has 90 days to withdraw from the market. The carrier is given 30 days more if by that time a replacement carrier is not found.
The governor accuses Hawaiian of engaging in "discriminatory practices" and "ethnic harassment" towards the people of American Samoa.
Hawaiian spokesman Keoni Wagner said the carrier's disappointed with Togiola for taking this action.
"Hawaiian has responded in good faith to all of the governor's concerns and we've offered to discuss them face-to-face, but he has so far refused to meet with us."
The governor said on his radio program that the view by Hawaiian, that the governor can't force them out of here is incorrect. He said American Samoa controls its borders, and that's why government's approval is needed to clear any flights/transportation coming in and going out.
The first caller, a broadcast reporter, asked the governor about reports he heard from residents that the local Hawaiian office said there will be no flights this week until next Thursday.
The governor said he has not received such reports, but a notice needs to be given if this is the case because there are already flights scheduled.
When contacted Saturday, Wagner said there is no truth to these reports.
"Flights are operating as scheduled," he said. "You have to wonder what motivates people to spread negative rumors like this."
Reach the reporter at la@samoanews.com
Pretty humorous stuff. American Samoa is truly a "banana republic," even though it's a territory of the U.S.
All the U.S. territories are probably banana republics. None of the territories have any ambition to become more than they are. Independence or statehood should be their aspirations.
Well, with the possible exception of Puerto Rico (where the issue of statehood-versus-territory has been debated for decades), the other territories are simply too small and dependent on US central government handouts to become independent and still maintain anything like their current standard of living. Most of the natives easily recognize this fact and therefore do not agitate for any change in status, only increased handouts. These territories are true xamples of welfare mentality.
Yes, they are, but the condition is not incurable, nor is it permanent. Territories like Guam and American Samoa are strategically placed for industries in info-tech and tourism. What the territories lack, more than anythign else, is a cohesive vision and ambition; which admittedly is the same that can be said of any person or community which suffers from the welfare mentality.
One thing about American Samoa that I know for sure is that the changes necessary too make the progress and advancement of Samoans possible as a result are going to make the traditionalists and conservatives of our people very uncomfortable.
You're right, no condition is incurable or permanent -- but I'm utterly confident that no major change in the political status of American Samoa will be forthcoming for several generations, at least. I understand what you're saying about info-technology and the like, but the fact is that these industries have virtually nothing to do with geography, and virtually everything to do with a highly-educated and motivated workforce. Sadly, welfare states like A.S. and Guam do not have such a workforce. Most working-age people there are lucky if they graduated from high school, and many of them today are obese, afflicted with health problems, have next to zero ambition, and are locked into a short-lifespan existence of direct or indirect dependence on government handouts.
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