FSM 5 Intrm. 067a-067f

the trial division of a national court may ever certify a question of national law to a state court for decision unless it can reasonably be expected that the particular claim can be resolved entirely through the application of state law. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 67A, 67C (Pon. 1991).

When there are identifiable, particularly strong state interests, such as questions concerning the ownership of land or where there are monetary claims against the state or its agencies, the national courts should exercise restraint, and look with sympathy upon a state request for abstention.Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 67A, 67D (Pon. 1991).

Although it may be appropriate to defer to state courts the resolution of land related state law issues, abstention and certification of issues should not be allowed to thwart the more fundamental goal and obligation of the judicial system to render just decisions in a speedy fashion at a minimum of costs to litigants and society alike. Therefore a reasonable balance must be sought between responsiveness to state interests and the obligation of the national courts to carry out their own jurisdictional responsibilities. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 67A, 67D (Pon. 1991).

Full abstention is not appropriate where the claims are not essentially state law claims, and are made against another nation, thus falling within the national court's primary jurisdiction. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 67A, 67E (Pon. 1991).

Abstention may be appropriate for causes of action that raise issues of state law only, but may not be where substantive issues of national law are raised. A national court may not abstain from deciding a national constitutional claim. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 67A, 67E (Pon. 1991).

Where a claim is against the national government and an interest in land is not placed at issue the claim is within the exclusive jurisdiction of the FSM Supreme Court and it cannot abstain on the claim. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 67A, 67E (Pon. 1991).

Where a case requires decisions as to the rights of owners of land in Pohnpei, it is appropriate that these issues be certified for presentation to the Pohnpei Supreme Court if it can be done without undue expense to the litigants, or extended delay. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 67A, 67F (Pon. 1991).

At an earlier stage in this litigation, the Court on its own motion instructed those parties, who were named in the pleadings at that time, to brief and argue the question of whether the Court should abstain from deciding this case, or parts of it, to permit any of the issues to be resolved by the Pohnpei Supreme Court. This opinion is written after the Court's review of the parties' memoranda and after hearing oral argument on the question of abstention.

This case is in great part a challenge to the dredging activities previously being conducted immediately offshore of the land on which various of the plaintiffs live at Mesenpal, Awak, U Municipality, Pohnpei.

Up to now the plaintiffs' claims, and the attention of the parties and the Court, have been focused on the Environmental Protection Act, 25 F.S.M.C. 501 et seq. (Supp. 1987), and the FSM Earthmoving Regulations issued after that act. See, e.g., Damarlane v. Pohnpei Transportation Authority, 5 FSM Intrm. 1 (Pon. 1991). The Court has upheld claims under these national environmental laws and has issued injunctive relief to enjoin activities in violation of those authorities. Id. The third amended complaint adds various claims against the United States, as a new party to this action.

There can be no question as to the responsibility of this Court to maintain and exercise its jurisdiction over the issues of national and international laws which are presented. In a case arising under national law there is "an especially strong presumption against full abstention." Gimnang v. Yap, 5 FSM Intrm. 13, 22 (App. 1991). Indeed there are serious questions as to whether the trial division of this Court may ever certify an issue of national law to a state court for decision, id. at 23 n.4, or may ever abstain in deference to state decisionmaking unless it "reasonably [can] be expected" that the particular claim may "be resolved entirely through application of state law." Id. at 24.

However, underlying and interwoven among these claims of national and international law made against the Federated States of Micronesia and the United States, and perhaps crucial to some of them, are assertions of land ownership and rights incidental thereto. It has become apparent through the pleadings and the various hearings that have already been held that plaintiffs seek through this litigation to obtain rulings relating to the exercise and scope of their land interests, including declarations as to their rights concerning adjacent reef and lagoon areas.1 The assertions of plaintiffs,

The FSM Supreme Court has often recognized that when it is asked to rule on areas of law which fall within state powers and as to which there are identifiable, particularly strong state interests, the Court should exercise restraint. Gimnang, 5 FSM Intrm. at 21. This is particularly so when the state law issues involve questions concerning the ownership of land. "[T]he framers of the Constitution anticipated that states, including state courts, would play the priority role in setting policy in deciding legal issues concerning ownership and interests in land." Bank of Guam v. Semes, 3 FSM Intrm. 370, 382 (Pon. 1980). See also Ponape Transfer & Storage v. Federated Shipping Co., 4 FSM Intrm. 37, 43 (Pon. 1982); Etpison v. Perman, 1 FSM Intrm. 405, 429 (Pon. 1984); In re Nahnsen, 1 FSM Intrm. 97, 107 (Pon. 1982).

In addition, various claims are leveled only against Pohnpei State and Pohnpei Transportation Authority (PTA). These, for the most part, invoke only state law. In every instance plaintiffs do not seek injunctive relief, but monetary damages from the defendants. This Court generally looks with sympathy upon a state request for our abstention from monetary claims against states and their agencies. Gimnang, 5 FSM Intrm. at 21; Pryor v. Moses, 4 FSM Intrm. 138, 141-42 (Pon. 1989).

Thus, it is appropriate under the circumstances of this case to explore methods whereby this Court may defer to the Pohnpei Supreme Court for resolution of the land related issues of state law while at the same time carrying out the jurisdictional responsibilities of this Court as to related issues. In so doing, we must keep in mind that the primary obligation of a judicial system is to render just decisions in speedy fashion at a minimum of costs to litigants and society alike. Embellishments such as abstention and certification of issues should not be allowed to thwart these more fundamental goals. Pryor, 4 FSM Intrm. at 143-44; Federated Shipping Co. v. Ponape Transfer & Storage, 4 FSM Intrm. 3, 13 (Pon. 1989). This Court therefore has sought a reasonable balance between responsiveness to state interests and the obligation of this Court to efficiently carry out its own jurisdictional responsibilities.

For the reasons explained in this opinion, the Court has concluded that abstention is appropriate for some of plaintiffs' claims. However, this Court will retain jurisdiction over most of the claims while seeking guidance from the Pohnpei Supreme Court as to state law considerations, through certification of issues to that Court.

The Court has concluded that abstention is appropriate as to the eighth and ninth causes of action and as to the claims against Pohnpei State and PTA in the eleventh and thirteenth causes of action. Following is a brief statement of the reasoning of the court as to the various causes of action.

The claims in the first cause of action are directed solely against the United States. Plaintiffs assert violations of the Trusteeship Agreement and "various laws of the FSM, T.T.P.I., and the United States." Although an ultimate result as to damages might hinge upon the resolution of important issues of Pohnpei state law concerning such matters as the rights of coastal landowners to the reef, fish mhai installed by them, and fishing grounds in general in the lagoon area adjacent to their land, full abstention would be inappropriate because these claims are made against another nation, therefore fall within the primary jurisdiction of this Court under article XI, section 6(b) of the Constitution, and are not essentially state law claims.

Plaintiffs assert that Pohnpei State and PTA violated the Trust Territory Environmental Quality Protection Act and the laws of the FSM protecting against environmental damage. Substantive issues of national law are raised and abstention is not appropriate.

Plaintiffs' claim is that the actions of Pohnpei State and PTA constituted a taking of the plaintiffs' "land and land use rights in violation of the FSM Constitution." Plaintiffs' Third Amended Complaint para. 65. Although the validity of this claim may be affected, perhaps even almost entirely determined, by the answers to issues to be certified to the Pohnpei Supreme Court, this Court may not abstain from deciding this national constitutional claim.

This monetary damages claim is made against the FSM, as well as against Pohnpei State and PTA. Plaintiffs assert that the road in plaintiffs' area was constructed negligently. This is a matter of state law and the Court abstains insofar as the claim is against Pohnpei State and PTA. The claim against the national government does not place an interest in land at issue and therefore falls within the exclusive jurisdiction of this Court under article XI, section 6(a) of the Constitution.

This claim against the United States asserts that the land of the Damarlanes was negligently surveyed. Here too plaintiffs are not placing an interest in land at issue, but instead seek damages in the amount of 2 million dollars against the defendant United States. Abstention would not be appropriate.

Certain assumptions, or legal determinations, concerning the rights of landowners, are necessary conditions to awards of relief sought by plaintiffs in this action. To the extent these require decisions as to the rights of owners of land in Pohnpei, it appears appropriate that those decisions by the Pohnpei Supreme Court if this can be done without undue expense to the litigants, or extended delay. Presentation of the legal issues must be made somewhere and the fact that it will be before the Pohnpei Supreme Court, rather than this Court, should not affect the litigants' expenses. Moreover, the Pohnpei Supreme Court has always been quite cooperative in quickly deciding issues certified by this Court. Thus, certification should not result in significant delay.

The following issues are therefore certified, to be presented jointly by the interested parties to the Pohnpei Supreme Court appellate division with a request that the Pohnpei Supreme Court consider and rule upon the issues.

1. Under Pohnpei State law, do owners of the land adjacent to the lagoon, or do persons having a permit to fill in the lagoon pursuant to a permit such as the 1990 permit issued to the plaintiffs in this case, have sufficient property rights in the reef and the lagoon as to entitle them to monetary compensation or other relief for damage to the reef caused by unauthorized dredging activity in the lagoon near their land?

2. Under Pohnpei State law, including article XII, section 6 of the Pohnpei Constitution, if a reef or a fish mhai is damaged by persons carrying out dredging activities pursuant to authorization of state officials for a public purpose, are adjacent or nearby coastal landowners entitled to payment of just compensation for the depreciation of the value of the reef and fishing grounds or damage to a fish mhai which they had constructed in the lagoon?

1. For example, there are several allegations to the effect that, as a result of defendants' activities, the Damarlanes suffered "loss of land and land rights, loss of their fish mhai and fishing grounds." Plaintiffs' Third Amended Complaint para. 31. See also id. paras. 1, 35, 39, 43, 47, 51.


	FSM SUPREME COURT TRIAL DIVISION Cite as Damarlane, et al., vs. The Government of the United States, 5 Intrm. 67A (Pon. 1991) [5 FSM Intrm. 67A] IGNACIA DAMARLANE et al., Plaintiffs, v. THE GOVERNMENT OF UNITED STATES OF AMERICA on its own behalf and standing in the place of the Trust Territory of the Pacific Islands, STATE OF POHNPEI, and POHNPEI TRANSPORTATION AUTHORITY, FEDERATED STATES OF MICRONESIA, and JOHN DOES 1-21 Defendants. FSM CIV. 1990-075 OPINION AND ORDER Before Edward C. King Chief Justice FSM Supreme Court May 1, 1991 APPEARANCES: Pro Se, and for Mary Berman the Plaintiffs: Kolonia, Pohnpei FSM 96941 For Defendant: Joses R. Gallen Pohnpei State State Attorney Pohnpei State Kolonia, Pohnpei FSM 96941 For Defendant: Douglas Juergens FSM National Government Assistant Attorney General Office of the Attorney General P.O. Box PS-105 Palikir, Pohnpei FM 96941 HEADNOTES Federalism - Abstention and Certification In a case arising under national law there is an especially strong presumption against full abstention, and there is a serious question whether [5 FSM Intrm. 67B] the trial division of a national court may ever certify a question of national law to a state court for decision unless it can reasonably be expected that the particular claim can be resolved entirely through the application of state law. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 67A, 67C (Pon. 1991). Federalism - Abstention and Certification When there are identifiable, particularly strong state interests, such as questions concerning the ownership of land or where there are monetary claims against the state or its agencies, the national courts should exercise restraint, and look with sympathy upon a state request for abstention.Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 67A, 67D (Pon. 1991). Federalism - Abstention and Certification Although it may be appropriate to defer to state courts the resolution of land related state law issues, abstention and certification of issues should not be allowed to thwart the more fundamental goal and obligation of the judicial system to render just decisions in a speedy fashion at a minimum of costs to litigants and society alike. Therefore a reasonable balance must be sought between responsiveness to state interests and the obligation of the national courts to carry out their own jurisdictional responsibilities. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 67A, 67D (Pon. 1991). Federalism - Abstention and Certification; Jurisdiction - National Law Full abstention is not appropriate where the claims are not essentially state law claims, and are made against another nation, thus falling within the national court's primary jurisdiction. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 67A, 67E (Pon. 1991). Federalism - Abstention and Certification; Jurisdiction - National Law Abstention may be appropriate for causes of action that raise issues of state law only, but may not be where substantive issues of national law are raised. A national court may not abstain from deciding a national constitutional claim. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 67A, 67E (Pon. 1991). Federalism - Abstention and Certification; Jurisdiction - National Law Where a claim is against the national government and an interest in land is not placed at issue the claim is within the exclusive jurisdiction of the FSM Supreme Court and it cannot abstain on the claim. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 67A, 67E (Pon. 1991). Federalism - Abstention and Certification Where a case requires decisions as to the rights of owners of land in Pohnpei, it is appropriate that these issues be certified for presentation to the Pohnpei Supreme Court if it can be done without undue expense to the litigants, or extended delay. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 67A, 67F (Pon. 1991). * * * * [5 FSM Intrm. 67C] COURT'S OPINION EDWARD C. KING, Chief Justice: At an earlier stage in this litigation, the Court on its own motion instructed those parties, who were named in the pleadings at that time, to brief and argue the question of whether the Court should abstain from deciding this case, or parts of it, to permit any of the issues to be resolved by the Pohnpei Supreme Court. This opinion is written after the Court's review of the parties' memoranda and after hearing oral argument on the question of abstention. I. This case is in great part a challenge to the dredging activities previously being conducted immediately offshore of the land on which various of the plaintiffs live at Mesenpal, Awak, U Municipality, Pohnpei. Up to now the plaintiffs' claims, and the attention of the parties and the Court, have been focused on the Environmental Protection Act, 25 F.S.M.C. 501 et seq. (Supp. 1987), and the FSM Earthmoving Regulations issued after that act. See, e.g., Damarlane v. Pohnpei Transportation Authority, 5 FSM Intrm. 1 (Pon. 1991). The Court has upheld claims under these national environmental laws and has issued injunctive relief to enjoin activities in violation of those authorities. Id. The third amended complaint adds various claims against the United States, as a new party to this action. There can be no question as to the responsibility of this Court to maintain and exercise its jurisdiction over the issues of national and international laws which are presented. In a case arising under national law there is "an especially strong presumption against full abstention." Gimnang v. Yap, 5 FSM Intrm. 13, 22 (App. 1991). Indeed there are serious questions as to whether the trial division of this Court may ever certify an issue of national law to a state court for decision, id. at 23 n.4, or may ever abstain in deference to state decisionmaking unless it "reasonably [can] be expected" that the particular claim may "be resolved entirely through application of state law." Id. at 24. However, underlying and interwoven among these claims of national and international law made against the Federated States of Micronesia and the United States, and perhaps crucial to some of them, are assertions of land ownership and rights incidental thereto. It has become apparent through the pleadings and the various hearings that have already been held that plaintiffs seek through this litigation to obtain rulings relating to the exercise and scope of their land interests, including declarations as to their rights concerning adjacent reef and lagoon areas.1 The assertions of plaintiffs, [5 FSM Intrm. 67D] and the subsidiary issues they raise, touch upon important matters of state policy, especially policies relating to land. The FSM Supreme Court has often recognized that when it is asked to rule on areas of law which fall within state powers and as to which there are identifiable, particularly strong state interests, the Court should exercise restraint. Gimnang, 5 FSM Intrm. at 21. This is particularly so when the state law issues involve questions concerning the ownership of land. "[T]he framers of the Constitution anticipated that states, including state courts, would play the priority role in setting policy in deciding legal issues concerning ownership and interests in land." Bank of Guam v. Semes, 3 FSM Intrm. 370, 382 (Pon. 1980). See also Ponape Transfer & Storage v. Federated Shipping Co., 4 FSM Intrm. 37, 43 (Pon. 1982); Etpison v. Perman, 1 FSM Intrm. 405, 429 (Pon. 1984); In re Nahnsen, 1 FSM Intrm. 97, 107 (Pon. 1982). In addition, various claims are leveled only against Pohnpei State and Pohnpei Transportation Authority (PTA). These, for the most part, invoke only state law. In every instance plaintiffs do not seek injunctive relief, but monetary damages from the defendants. This Court generally looks with sympathy upon a state request for our abstention from monetary claims against states and their agencies. Gimnang, 5 FSM Intrm. at 21; Pryor v. Moses, 4 FSM Intrm. 138, 141-42 (Pon. 1989). Thus, it is appropriate under the circumstances of this case to explore methods whereby this Court may defer to the Pohnpei Supreme Court for resolution of the land related issues of state law while at the same time carrying out the jurisdictional responsibilities of this Court as to related issues. In so doing, we must keep in mind that the primary obligation of a judicial system is to render just decisions in speedy fashion at a minimum of costs to litigants and society alike. Embellishments such as abstention and certification of issues should not be allowed to thwart these more fundamental goals. Pryor, 4 FSM Intrm. at 143-44; Federated Shipping Co. v. Ponape Transfer & Storage, 4 FSM Intrm. 3, 13 (Pon. 1989). This Court therefore has sought a reasonable balance between responsiveness to state interests and the obligation of this Court to efficiently carry out its own jurisdictional responsibilities. For the reasons explained in this opinion, the Court has concluded that abstention is appropriate for some of plaintiffs' claims. However, this Court will retain jurisdiction over most of the claims while seeking guidance from the Pohnpei Supreme Court as to state law considerations, through certification of issues to that Court. II. ABSTENTION The Court has concluded that abstention is appropriate as to the eighth and ninth causes of action and as to the claims against Pohnpei State and PTA in the eleventh and thirteenth causes of action. Following is a brief statement of the reasoning of the court as to the various causes of action. [5 FSM Intrm. 67E] First to fifth causes of action The claims in the first cause of action are directed solely against the United States. Plaintiffs assert violations of the Trusteeship Agreement and "various laws of the FSM, T.T.P.I., and the United States." Although an ultimate result as to damages might hinge upon the resolution of important issues of Pohnpei state law concerning such matters as the rights of coastal landowners to the reef, fish mhai installed by them, and fishing grounds in general in the lagoon area adjacent to their land, full abstention would be inappropriate because these claims are made against another nation, therefore fall within the primary jurisdiction of this Court under article XI, section 6(b) of the Constitution, and are not essentially state law claims. Similar considerations render full abstention inappropriate as to the second through fifth causes of action. Sixth cause of action - unconstitutional taking and denial of rights Abstention would be inappropriate as to these claims based upon alleged violations of the national Constitution. See generally Gimnang. Seventh cause of action - negligence Plaintiffs assert that Pohnpei State and PTA violated the Trust Territory Environmental Quality Protection Act and the laws of the FSM protecting against environmental damage. Substantive issues of national law are raised and abstention is not appropriate. Eighth and ninth causes of action These monetary damage claims are only against Pohnpei State and PTA and raise issues of state law only. Abstention will be granted as to these claims. Tenth cause of action - unconstitutional taking and denial of rights Plaintiffs' claim is that the actions of Pohnpei State and PTA constituted a taking of the plaintiffs' "land and land use rights in violation of the FSM Constitution." Plaintiffs' Third Amended Complaint para. 65. Although the validity of this claim may be affected, perhaps even almost entirely determined, by the answers to issues to be certified to the Pohnpei Supreme Court, this Court may not abstain from deciding this national constitutional claim. Eleventh cause of action - negligence This monetary damages claim is made against the FSM, as well as against Pohnpei State and PTA. Plaintiffs assert that the road in plaintiffs' area was constructed negligently. This is a matter of state law and the Court abstains insofar as the claim is against Pohnpei State and PTA. The claim against the national government does not place an interest in land at issue and therefore falls within the exclusive jurisdiction of this Court under article XI, section 6(a) of the Constitution. [5 FSM Intrm. 67F] Twelfth cause of action - negligence This claim against the United States asserts that the land of the Damarlanes was negligently surveyed. Here too plaintiffs are not placing an interest in land at issue, but instead seek damages in the amount of 2 million dollars against the defendant United States. Abstention would not be appropriate. Thirteenth cause of action - conduct This claim for punitive damages is against all defendants. The Court shall abstain insofar as these claims are made against the State of Pohnpei and PTA. III. CERTIFICATION OF ISSUES Certain assumptions, or legal determinations, concerning the rights of landowners, are necessary conditions to awards of relief sought by plaintiffs in this action. To the extent these require decisions as to the rights of owners of land in Pohnpei, it appears appropriate that those decisions by the Pohnpei Supreme Court if this can be done without undue expense to the litigants, or extended delay. Presentation of the legal issues must be made somewhere and the fact that it will be before the Pohnpei Supreme Court, rather than this Court, should not affect the litigants' expenses. Moreover, the Pohnpei Supreme Court has always been quite cooperative in quickly deciding issues certified by this Court. Thus, certification should not result in significant delay. The following issues are therefore certified, to be presented jointly by the interested parties to the Pohnpei Supreme Court appellate division with a request that the Pohnpei Supreme Court consider and rule upon the issues. 1. Under Pohnpei State law, do owners of the land adjacent to the lagoon, or do persons having a permit to fill in the lagoon pursuant to a permit such as the 1990 permit issued to the plaintiffs in this case, have sufficient property rights in the reef and the lagoon as to entitle them to monetary compensation or other relief for damage to the reef caused by unauthorized dredging activity in the lagoon near their land? 2. Under Pohnpei State law, including article XII, section 6 of the Pohnpei Constitution, if a reef or a fish mhai is damaged by persons carrying out dredging activities pursuant to authorization of state officials for a public purpose, are adjacent or nearby coastal landowners entitled to payment of just compensation for the depreciation of the value of the reef and fishing grounds or damage to a fish mhai which they had constructed in the lagoon? IV. CONCLUSION The claims abstained from are dismissed without prejudice and the parties are ordered to present to the Pohnpei Supreme Court the questions identified for certification. Footnote: 1. For example, there are several allegations to the effect that, as a result of defendants' activities, the Damarlanes suffered "loss of land and land rights, loss of their fish mhai and fishing grounds." Plaintiffs' Third Amended Complaint para. 31. See also id. paras. 1, 35, 39, 43, 47, 51.