7 FSM Intrm. 056-074

Under Pohnpei state law persons simply possessing a permit in the lagoon do not 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 unless there has been some affirmative action such as prior written approval from the appropriate authority and effecting some development in the area in question. Damarlane v. United States, 7 FSM Intrm. 56, 60 (Pon. S. Ct. App. 1995).

Under Pohnpei state law, if a fish maii [trap] is damaged by persons carrying out dredging activities authorized by state officials for a public purpose, adjacent or nearby coastal landowners are entitled to a payment of just compensation for the damage to a fish maii which they had constructed in the lagoon, if the fish maii was constructed pursuant to the dictate of customary law as a joint enterprise of the villagers, supervised by the village chief, managed, maintained and owned in common by the villagers; or, if an individual constructed the fish maii, prior written permission from the District Administrator, now the Pohnpei Public Land Board of Trustees, was obtained. Damarlane v. United States, 7 FSM Intrm. 56, 60 (Pon. S. Ct. App. 1995).

Under Pohnpei law, damage to reefs or soil under the high water mark resulting from dredging activities, the object of which is for public purposes, does not justify compensation to abutting land owners. If the Pohnpei Public Land Board of Trustees had granted certain rights in writing to an individual or group of individuals, and acting on that grant the grantees erected or constructed certain improvements, including fish maii (fish trap) in shallow waters, and if destroyed or value reduced as a result of state dredging activities, the owners thereof may be entitled to just compensation in accordance with the Pohnpei Constitution. Damarlane v. United States, 7 FSM Intrm. 56, 69 (Pon. S. Ct. App. 1995).

1. Under Pohnpei State law, do owners of the land adjacent to the lagoon or do persons having a permit 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 reef or a fish maii [trap] 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 a payment of just compensation for the depreciation of the value of the reef and fishing grounds or damage to a fish maii which they had constructed in the lagoon?

The appellants argue that they have property right in the area of the submerged land situating in front of their upland property at Mesenpal in Awak and that they are entitled to be compensated for any damage sustained to, depreciation in the value of, damage to fish trap constructed by them on the said submerged land resulting from dredging activities conducted in the area by the Defendants. Relying, however, on a decision of the Trial Division of this Court in State of Pohnpei et al. v. Damarlane et al., PCA No. 25-91, (hereinafter PTA v. Damarlane), the Appellants argue that "the Pohnpei State Supreme Court found that taking of marine areas by the government without notice of compensation are unconstitutional." Appellant's Response Brief at 7-8. This appears to be a somewhat slanted statement of what the PTA v. Damarlane decision says at page 38 where the Court quoted Edayaoch v. Timarong, 7 TTR 54, 60 (Pal. 1974) saying, "The government cannot acquire title to individual land by simply claiming it by public notice and consider the property its own if the individual does not contest."

N.B. The above statement of the Court can best be understood by reconciling and harmonizing the statutes as codified in Article 6 of the German Land Code of 1912 (which granted common ownership in luhwen wei, including submerged land within Pohnpei to various municipalities within Pohnpei), Section 2(f) of Title 67 of the Trust Territory Code, received as Pohnpei State law (recognizing any legal interest or title in marine areas below the ordinary high watermark specifically granted to an individual or group of individuals [municipalities] by the Trust Territory Government of any pervious administering authority), Section 105 of Title 1 of the Trust Territory Code (law concerning ownership, use, inheritance, and transfer of land in the Trust Territory district remained in effect on December 1, 1941), Section 2(2) of Title 67 of the Trust Territory Code (requiring written notice of any legal interest to be filed within two years with district land title officers, or the right may be considered forfeited) and the due process and equal protection clause of the Trust Territory Bills of Rights, 1 TTC 4. And as stated in Kilara v. Alexander, 1 TTR 3, 5 (Pon. 1951), land law on Pohnpei as stated in the German Title Documents "is still in effect outside of any changes that may have been made by the German authorities during their regime, . . . or by the American authorities since the American occupation."

The ownership of all public lands which includes submerged lands or marine land is vested in the Pohnpei Public Land Board of Trustees [in trust for the people of the municipalities within whose jurisdiction the submerged land is situated]. The control, administration and management of these types of lands are also vested in Public Land Board of Trustees. No one individual could legally possess ownership or property rights in any lagoon or reef. Customary law does not give and could not have given any individual person ownership or property rights in the reefs or in any given reef or lagoon. The statutory law and customary law only give the abutting land owners the right to use and fish in marine areas (reefs or lagoon adjacent to their land holdings. The right to fish and right to use submerged land by abutting land owners is separate from any right of ownership or property right that may be attributable to submerged land. Fishing right recognized by customary law has been interpreted to be different than that of ownership of the abutting upland.

At the close of oral argument, the Court, being cognizant of the effect and application of Article 6 of the German Land Code, 67 TTC 2 (Rights in areas below high watermark) and the TT High Court decisions on the issues before the Court, required attorney for the appellants to undertake a further discovery of the customary law and to submit additional information to the Court to substantiate the appellants' claim. The appellants subsequently submitted a supplemental brief on the matter and directed the attention of the Court to Article 6 of the German Land Code and the explanatory statements made by German Governor Kersting (designating lands not cultivated and to which no deeds were issued as remainder of the municipality (luhwen wei) own in common by the residents thereof), and 67 TTC 2(1)(d) ) that the extent of each right shall be governed by the local customary law in effect at the time it was abolished. Appellants' Supp. Brief at 1, 3. The appellants however did not fully discover the application of customary law referred to in the statute (that the extent of each right shall be governed by the local customary law in effect at the time it was abolished). Understanding of the customary law being referenced in the statute is crucial in determining the issues. Without fulfilling the task of discovering the extent of customary law referred to above, the Court thus took upon itself the task of discovering and declaring the applicable customs referred to in 67 TTC 2 to complete the job.

(2) Under Pohnpei State law 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?

We answer the second part of issue No. 1 as "No, simply possessing a permit does not grant a permittee any property rights in the reef and lagoons of Pohnpei." Some affirmative action will be necessary to be undertaken by such permittee i.e. obtaining prior written approval from the appropriate authority and effecting some development in the area in question before any compensable property interest can be inured to the permittee.

(2) Under Pohnpei State law, including Article XII, Section 6 of the Pohnpei Constitution, if fish maii [trap] 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 a payment of just compensation for the damage to a fish maii which they had constructed in the lagoon?

"Yes." The declaration in Article 12, Section 6 (acquisition of land for public purpose) and Article 4, Section 4 (private property may not be taken except for public purpose with just compensation) by the People of Pohnpei in the Constitution of Pohnpei which came into effect November 8, 1984 would since allow just compensation; provided the fish maii was constructed pursuant to the dictate of customary law as a joint enterprise of the villagers, supervised by the village chief, managed, maintained and owned in common by the villagers; provided further that if the construction of the fish maii was by an individual, prior to written permission from the District Administrator, now the Pohnpei Public Land Board of Trustees is fatal in order for the right to compensation to mature to the individual if damage is sustained to the fish maii under the circumstances described in the issue.

1. During the reign of the Saudeleurs in Pohnpei up to about the 17th century, it is said that the Saudeleurs owned and controlled both land and the sea of the general area referred to as Katau Peidak to Katau Paidi or Peidi. It is generally known in Pohnpei that Katau Peidak refers to the east as far as Kosrae and beyond, and Katau Peidi refers to the West as far as Yap. Isokelekel who invaded the reign of the Saudeleurs came from Kosrae, Katau Peidak. Sou Yap, in his effort to follow-up on his bird messenger known as "kutoahr" in Pohnpeian, which according to legends had been killed and was eaten by certain Pohnpeians in Nett Municipality, came from Yap. He was received by Sumuni Kepin Pil (Soum en Kepin Pil) who then offered a traditional apology to Sou Yap on behalf of those Pohnpeians who had consumed his bird messenger. It is said the Sumuni Kepin Pil uprooted a single piece of sakau root, prepared it and offered the "sakau en tomw" (a ceremonial rite used in offering traditional apology, which when accepted and drunken by the aggrieved party pacified any and all hostilities) unto Sou Yap, in apology for the conduct of the Pohnpeians who consumed Sou Yap's bird messenger. The style of offering the apology thus gave birth to the customary practice which became part of the tradition known in Pohnpei as "Sakau en Pwal-lap." Thus, according to this historical account and traditional understanding of Pohnpeian, the Saudeleurs owned both the dry lands and the submerged lands within the ocean, including things growing thereon or with them. PTA v. Damarlane, PCA No. 25-91, at 9 (Mar. 14, 1991). It would follow that if any damage was sustained to the reefs, submerged lands, or corals, it would be the Saudeleurs to whom any compensation would be payable.

2. Following the defeat of the Saudeleurs by Isokelekel, the reign over Pohnpei was subdivided into three, and subsequently five kingdoms (wehi), each headed by a Nanmwarki, or Wasahi, in the case of Sokehs and Lepen Nett, in the case of Nett. During this period all lands and all things produced from the lands belonged in principle to the Nanmwarkis, and the Wasahi and Lepen Nett in the case of Sokehs and Nett Municipalities, respectively. The village chiefs (soumas en kousapw) and the heads of lineages (kaun en keinek) held their lands in trust from the Nanmwarki, and presumably from Wasahi and Lepen Nett in the case of Sokehs and Nett Municipalities; the common peoples, in turn, received rights to individual farmsteads (mwoakot) from these traditional leaders.

3. Fischer wrote that the German administration claimed ownership of all submerged land. "It was widely known on Ponape that all property from the high watermark out was considered to belong to the German Government with the exception of three private mangrove reserves which had been specifically granted by the German Government. Protestant Mission v. Trust Territory, 3 TTR 26, 31 (Pon. 1965) (citing Fischer, Land Tenure Patterns 126-27).

4. Upon assuming its U.N. Trust obligation, the Government of the Trust Territory (hereinafter TT) promulgated sections 925 in the 1966 edition of the Trust Territory Code (hereinafter TTC) defining "public lands" as being those lands situated within the TT which were owned or maintained by the Japanese Government as government or public lands, and such other lands as the Government of the Trust Territory has acquired or may hereafter acquire for the public purposes. It is not all clear whether this definition include all types of the remainder of the municipal land (luhwen wei) which Article 6 of the German Land Code had in 1912 granted common ownership of them to the residents of the respective municipalities which is recognized and preserved by Section 2(1)(f) et seq. of Title 67 of the

Trust Territory Code and Section 24 of the same Code (the law concerning ownership, use, inheritance, and transfer of land in effect in any part of the Trust Territory of the Pacific Islands (TTPI) on December 1, 1941, shall remain in full force and effect except insofar as it has been or may hereafter be changed by express written enactment made under the authority of the Trust Territory of the Pacific Islands). The Court noticed that as late as in 1946, the Navy Administration of Pohnpei did recognize the (luhwen wei) as "Municipal Land." See Fischer, Land Tenure Patterns App. C at 157. This affirms the view that luhwen wei (municipal land) which we find to include submerged land was owned by Municipalities on December 1, 1941.

5. With respect to fish maii alleged to have been constructed and owned by the appellants and which compensation for its damage is being sought by the appellants against the appellees, Pohnpei custom appears to be dispositive of that claim. Under Pohnpeian custom and tradition, construction, maintenance and use of a fish maii was once a community or village project supervised by the respective Village Chiefs. The first catch was offered in tribute to the Village Chief which was shared by the residents of the village. Ownership of a fish maii was in common by the villagers. Subsequent use and fishing in the fish maii may be done by members of the village. It was taboo for any member of a different village to fish in the fish maii constructed and owned by members of a another village. Violation of the taboo may result in some form of sanction.

Quite recently, a number of individual families acting outside of the supervision of the village chief had constructed a fish maii at sporadic locations in shallow waters or on reefs within the lagoon and had fished the same as they please without providing the first catch to their Village Chief. In a situation like this, those who constructed the fish maii may claim ownership of the fish maii, however, subsequent to the first fishing conducted in such fish maii, any other person may also fish in such fish maii without any sanction from the Village Chief.

1. Included in its program of land distribution to private families and individuals in Pohnpei, the German Administration in 1912 promulgated the first Land Code for Pohnpei, incorporating therein many of the features of the Pohnpeian customs of land holding prior to 1912. Article 6 of the Code provides that "All land for which no title document is issued belongs to the `tribe,' also called `state' in Ponape within whose boundaries it lies. It may be given away only the Nanmwarki jointly with the Governor." This grant of common ownership in the form of a trust had been recognized, understood and practiced by Pohnpeians even after December 1, 1941. The Trust Territory Government Land Policy Letter P-1 of December 29, 1947 recognized this ownership as paragraph 12 of the Policy says, "Land transfers from the public domain to Japanese corporations or Japanese nationals since March 27, 1935, will be considered invalid." And paragraph 19 of said Policy continues, "title to land owned by natives shall not be transferred to non natives."

2. It is understood that the term "non-native" as used in the TT statute includes the Trust Territory Government as a juridical person. Thus native land (luhwen wei) shall not and should not have been transferred to assume the character of public land or public domain as defined by the TT Code. Otherwise if they were, it would be invalid under the Trust Territory Bill of Rights due process clause; it would be an error that ought, according to the concept of justice of the people of Pohnpei, Pon. Const. art. X, § 11, to be understood and corrected.

4. The German Administration issued title deeds to and allodialized certain lands situated on the main island of Pohnpei (within the five municipalities), islands within the lagoon of Pohnpei, islets on the fringing reefs, and certain far off islands like And (Ant) islands. This confirmed the Pohnpeian notion that the term "land" extends all the way from the mountain top to the fringing reefs around Pohnpei and beyond. The traditional understanding of the fact takes support as Fischer wrote) "the municipal boundaries were marked all the way out to the outer reef." Fischer, supra, at 126. It follows then that "luhwen wei" as the term is used in the German Land Code and as understood by Pohnpeian includes the soil under the high water mark and outward.

5. Thus the German Land Code for Pohnpei provided that all undistributed lands, both upland and lands under the high water mark, belonged to the respective municipalities (wehi) within whose jurisdiction the lands were situated. Other than those category lands being allodialized and enumerated in paragraph 4 of the German Land Code, as we understand it, the German administration had conveyed common ownership of such other lands)reefs, coral, and submerged lands not deeded out to individual persons)to the respective municipalities of Pohnpei to be held in trust by the Nanmwarki and the Governor for the benefit of the residents thereof with free access to them prescribed as Governor Kersting of the German administration explained: "Those whose true lands are on the shore shall let those who live above them use paths and be free to cross the shore and build boat and canoe houses, etc." PCA 25-91, App. E at 62-65.

6. Having acquired the status of trust property, if an individual wanted to again any right or interest in any portion of the land which were under the ocean (submerged lands), reef, etc., he would have to secure permission from the Nanmwarki and the Governor jointly. Lands of this sort may be given away only by the Nanmwarki jointly with the Governor. See PTA v. Damarlane, PCA 25-91, App. C. We find this to be the custom as modified by statute of the German Administration.

7. Pohnpeians do not perceive their luhwen wei (municipal lands) as being included in the Government's definition of public land, however, as ambiguity is inherent in the definition which led many people think that all categories of luhwen wei were included in the definition ascribed to public land as briefly described under Part A4 above. As relates to the category of luhwen wei below the high water mark, PTA v. Damarlane, PCA 25-91 sought to clarify this point as it says in its conclusion

All areas of land below the ordinary high water mark wherever situated within the geographical boundaries of Pohnpei which were physically possessed, or developed, or used by the Japanese Government, the ownership of which was previously claimed and controlled by the Trust Territory Government during its administration of Pohnpei and which were returned to the people of Pohnpei via the Pohnpei Public Lands Authority [and its successor in law] belong to the residents of the respective municipalities within Pohnpei.

8. The Trust Territory High Commissioner's Executive Order No. 81, dated December 10, 1959, which was codified as Section 32 of the 1966 Edition of the Trust Territory Code and became 67 TTC 2 in the 1980 Edition of the Code prescribes the rights of citizens of the Trust Territory, including Pohnpeians in areas below the high watermark. It is this particular statute which regulates the rights

(a) Such rights in fish weirs or traps [maii] (including both types erected in shallow water and those sunk in deep water) and such right to erect, maintain and control the use of these weirs or traps as were recognized by local customary law at the time the Japanese administration abolished them, are hereby reestablished; provided, that no weirs or traps or other obstruction shall be erected in such locations as to interfere with established routes of water travel or those routes which may hereafter be established.

(b) The right of the owner of abutting land to claim ownership of all materials, coconuts, or other small objects deposited on the shore or beach by action of the water or falling from trees located on the abutting land, and such fishing rights on, and in waters over reefs where the general depth of water does not exceed four feet at mean low water as were recognized by local customary law at the time the Japanese administration abolished them, are hereby reestablished where such rights are not in conflict with the inherent rights of the government as the owner of all marine areas below the ordinary high watermark; provided however, that this section shall not be construed to apply to any vessel wrecked or stranded on any part of the reefs or shores of the Trust Territory.

(c) The owner of land abutting the ocean or lagoon shall have the right to fill in, erect, construct and maintain piers, buildings, or other construction on or over the water or reef abutting his land and shall have the ownership and control of such construction; provided, that said owner first obtains written permission of the district administrator before beginning such construction.

(d) Each of the rights described in paragraph (a), (b), and (c) of this subsection are hereby granted to the person or group of persons who held the right at the time it was abolished by the Japanese administration, or to his or their successor or successors in interest. The extent of each right shall be governed by the local customary law in effect at the time it was abolished.

(e) Nothing in the foregoing subsections of this section shall withdraw or disturb the traditional and customary right of the individual land owner, clan, family or municipality to control the use of, or material in, marine areas below the ordinary high watermark, subject only to, and limited by, the inherent rights of the government as the owner of such marine areas. The foregoing subsections of this section shall create no right in the general public to misuse, abuse, destroy, or carry away mangrove trees or the land abutting the ocean or lagoon, or to commit any act causing damage to such

(2) Written notice4 of any legal interest or title must be filed with the district land office of the district in which it is claimed within two years from January 8, 1958. The validity of the claimed legal interest or title shall be determined by the district land officer after notice to the person making the claim or any other known parties in interest, and an opportunity for hearing, in the same manner and with the same rights of appeal as in the case of claims to land which the government had possession of under claim of ownership.

a. In 1958, in the case of Ngiraibiochel v. Trust Territory, 1 TTR 485, 488 (Pal. 1958) a case in Palau District, the Trust Territory High Court held that "on a date not shown in the record, the Japanese Administration had declared all land below the high watermark to be Government land." In addition the Ngiraibiochel Court made certain dicta including the following: Under American view, individual ownership of lands along navigable tidewaters extends only to high water mark. Under common law, land along sea below high watermark belonged to the crown, and was held in trust for benefit of all people. Under American views, states own, in trust for the people, navigable tidewaters between high and low watermarks within each state's boundaries, and soil under them, as inseparable attribute of state sovereignty. Id. at 493.

b. In an action to determine fishing rights under Yapese customary law in waters over reefs where plaintiff claimed rights of control of all "big fishing" in certain area of Yap, the Trial Division of the TT High Court, construing Section 32(b) of the TT Code (1966 ed.) (67 TTC 2(1)(b) in the 1980 ed.), held that waters in dispute suitable for "big fishing" are owned by family group in which defendants are members, subject to obligation to permit others to cooperate with them in fishing and obligation to contribute certain catch as a tribute to senior male member of the group owning certain land in the area. Yangruw v. Manggur, 2 TTR 205, 207 (Yap 1961).

c. In another action to determine fishing rights in certain part of the Truk lagoon, Teresia v. Neikina, 5 TTR 228 (Truk 1970), the Trial Division of the High Court held that under Trukese custom fishing rights on a reef depend upon transfers from predecessor owner rather than on ownership of abutting land and that decision in the case would depend upon evidence relating to prior division of the reef and subsequent transfers. The Court further held that "Normally, the abutting owners may exercise exclusive fishing rights on the adjoining reef if the water does not exceed four feet in depth at low tide." Id. at 230.

d. In a similar case where the issue of rights to filled shore lands was brought between village of Utwe and upland owner, Tulenkun v. Government of Utwe, 5 TTR 628 (Kos. Pon. 1972), the TT High Court Chief Justice H. W. Burnett held in 1972 that the government of Utwe could not dispossess a landowner at will of rights conferred upon him by law and that the occasional use by the Utwe village of filled land by plaintiff was permissive only and thus rights therein were in the upland owner [plaintiff Tulenkun]. The Court further held that the provision of the TT Code relating to rights in areas below high watermark, does not give ownership of the land below the high watermark, but rather gives a right, under conditions of approval, to build improvements on the land, which improvements may be the property of the upland owner; ownership of the land below high water does not change from the Government.

e. In the case of Protestant Mission of Ponape v. Trust Territory, 3 TTR 26 (Pon. 1965), the TT High Court declared what if found to be the law governing shore lands as it affected Pohnpeian in the following exposition: "It was widely known on Ponape that all property from the high watermark out was considered to belong to the German Government5 with exception of three private mangrove reserves which had been specifically granted by the German Government." Id. at 31 (citing Fischer, Land Tenure Patterns 127). "[T]here is not universal and uniform law as to land under tide waters, and great caution is necessary in apply precedents in one state to cases arising in another state, Id. (quoting Shively v. Bowlby, 152 U.S. 1, 26; 14 S. Ct. 548, 557 38 L. Ed. 331, 341 (1894)). "[I]n the United States, owner of upland abutting shore does not acquire title to land he creates by unauthorized filling of underwater soil belonging to government." Id. at 33. Under common law "title in soil of sea . . . is in the sovereign except insofar as individual has acquired rights in it by express grant, prescription, usage, or by legislation." Id. at 30. "The question of ownership of shore land between high-water and low-water mark and the exact limits of private ownership of land bounded by sea is one peculiarly dependent upon local law." Id. No right to filled-in land is created under Trust Territory Code, and only certain rights already in existence were preserved by the Code. Id. at 33-34 (citing TTC §§ 24, 32(f) (1966)). And finally, the Protestant Mission Court held that "Rights of government to fill in areas owned by it below high watermark and retain ownership of the land so made, and to expressly authorized others to do so, regardless of wishes of owners of adjoining upland, is . . . recognized in the United States." Protestant Mission, 3 TTR at 32.

f. The case of Ungeni v. Trust Territory, 8 TTR 366 (App. 1983), the appellate division sitting by Chief Justice Alex R. Munson and CNMI District Judge Lauretta, sitting as designated justices affirmed the decision of the Trial Division which held that title to certain tidelands in Chuuk were vested in the plaintiffs and not in the Trust Territory Government. The Appellate Court held that the Trust Territory Government failed to sustain its burden of showing the existence and substance of alleged Japanese Proclamation relied upon to prove land belong to the Government, and that the doctrine of

g. Simiron v. Trust Territory, 8 TTR 615 (App. 1988)). This case was decided by the same Appellate Division by Justices, Hefner, Judge of CNMI Trial Court and Mamoru Nakamura. Chief Justice of Palau, sitting by designation. This was an appeal by plaintiffs from dismissal of three consolidated cases alleging that government dredging activities in marine areas below the high watermark resulted in the destruction of traditional fishing and shellfood gathering grounds, and for the value of all dredged materials taken. The Appellate Division of the High Court, per curiam, affirmed the dismissal of the action, holding that the government, as owner of all marine areas below the high watermark, had the absolute right to conduct such dredging operations. Ungeni was thus overruled.

While this Court is not bound by the decisions of the Trust Territory Courts, including other foreign court decisions dealing with the same issue, two interesting points are paramount in the decisions of the Truk cases which are worth noting. First, in the Nipwech Ungeni case, the Court placed the burden of proof upon the Trust Territory Government to prove the existence of the Japanese Proclamation that all marine areas in the TT belonged to the Government of Japan. However, the Simiron court held that the assignment of burden in the case was misplaced because the alleged Japanese Proclamation was part of the Japanese law and according to Rule 36 of the Trust Territory Rules of Civil Procedure, issue of foreign law were questions of law, not of fact. "Thus in Nipwech's treatment of the issue as one of fact one which the government bears the burden is argued to be incorrect and shall be overruled, thereby allowing application of Section 2 and affirmance of the trial court. Simiron, 8 TTR at 619. The other interesting point is what the Simiron court said to be "of great importance," that is, "the legislative enactment by the Congress of Micronesia6 specifically recited that Japanese law deemed those lands to be sovereign." Id. at 621.

Unless limited by obligations assumed by Pohnpei, or by its unilateral act, the waters connecting the islands and reefs of Pohnpei are internal waters, regardless of dimension, and the jurisdiction of Pohnpei extends to the entire territory of Pohnpei including its marine space, the seabed, subsoil, water column, insular and continental shelves, and the airspace over lands and waters.

1. Article 6 of the German Land Code in 1912 granted common ownership of all lands, including submerged lands to which no document was issued to the people of the respective municipalities within whose jurisdiction such lands were located. The Nanmwarki and the Governor were designated as joint trustees to administer such property on behalf of the residents of the respective municipalities. There is nothing in the history of Pohnpei which created compensable rights in any one individual or group of individuals for improvements made by them in lagoons or submerged land adjacent to their upland holdings.

2. During the Trust Territory administration of these islands, 67 TTC 2 became the statute which prescribes the law governing the use and ownership by citizens of the TTPI of all submerged lands within Pohnpei. Subsection (1)(a) preserves to the people in general certain customary fishing rights and subsection (1)(b) preserves to the owners of land abutting the shore to claim ownership of certain objects found or deposited by natural means, excepting shipwreck. Subsection (1)(c) prescribes rights of owners of abutting land to construct and to own certain specific construction if written permission is obtained from the district administrator, now the Pohnpei Board of Trustees of the Public Land Trust prior to effecting such construction. The extent of each right is governed by local customary law (subsection (1)(d)), and subsection (1)(e) preserves traditional and customary rights of individual land

Accordingly and on the basis of the law in effect in Pohnpei, damage to reefs or soil under the high water mark resulting from dredging activities, the object of which is for public purposes, do not justify compensation to abutting land owners. If the Public Land Board of Trustees had granted certain rights in writing to an individual or group of individuals, and acting on that grant the grantees erected or constructed certain improvements, including fish maii (fish trap) in shallow waters, and if destroyed or value reduced as a result of dredging activities conducted within such areas, the owners thereof may be entitled to just compensation in accordance with Article XII, Section 6 and Article IV, Section 4 of the Constitution of Pohnpei.

Two issues are certified to this Court by the Supreme Court of the Federated States of Micronesia to be answered. The issues have subsequently been briefed and heard on oral argument in the Appellate Division of this Court, the Honorable Chief Justice Edwel H. Santos, Associate Justice Carl Kohler, and this sitting author. To our grief, our beloved brother Kohler, A.J., was called in eternal rest before we finalized our determination of the issues, so that we that remain are charged to complete this judicial call.

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 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 reef or a fish maii is damaged by persons carrying out dredging activities pursuant to authorization of State officials for a public purpose, are adjacent or nearby coastal land owners entitled to a payment of just compensation for the depreciation of the value of the reef and fishing grounds or damage to a fish maii which they had constructed in the lagoon?

It is to be noted that each issue as put, begins with, "Under Pohnpei State law . . . ." We are called here to determine each issue as it is governed by existing state law. For this reason, while I join in the conclusions to the issues, I am respectfully inclined, to base my reasons strictly on existing state law governing rights of private individuals in riparian areas in Pohnpei, for that is the issue before us.

The main opinion discusses in length historical and customary land holdings in Pohnpei and made conclusions of the type of public lands as well as ownerships thereof. In due respect, I elect to sever from that portion of the opinion for the reason that in my view the question is not before this Court. The issues involve property rights of the following class of persons in riparian areas or in areas below high watermark, such that entitle them to compensation if violated:

In an earlier case in the court below, we set out in details that the transition of laws of the Trust Territory into the government of the State of Pohnpei traces back to Section 1 of Article XV of the Constitution of the Federated States of Micronesia. See Pohnpei v. Mack, 3 FSM Intrm. 45, 49-50, slip op. at 6-7 (Pon. S. Ct. Tr. 1987).8 We held in Mack that pursuant to Section 5 of Article XV, Congress of the Federated States of Micronesia enacted into law Public Law No. 2-48, which provides in Section 8 that the authority of the States of the Federated States of Micronesia with regards to those provisions of the Trust Territory Code within the state jurisdictions were reaffirmed in the states. Mack, 3 FSM Intrm. at 50, 2 Pon. L.R. at 282, as reported. Thus, in Mack, 3 FSM Intrm. at 52, 2 Pon. L.R. at 286, we listed at item 31 that Title 67 of the Trust Territory Code (Public Lands and Resources) was identified as among the laws of the Trust Territory that may be superseded by State statutes insofar as they apply to the state. I hold therefore that under that authority, when the Ponape State Legislature enacted Public Law No. 3L-33-84, the transition law from chartered government to the constitutional State Government of Pohnpei, and declared in Section 3,

Constitutional laws, ordinances, and regulations. All laws of the government of the State of Ponape, local government ordinances, and administrative regulations in force before the effective date of the Constitution of Pohnpei shall, to the extent they are consistent with the Constitution, continue in force until they expire by their own limitations or are amended, superseded or repealed,

(a) Such rights in fish weirs or traps (including both types erected in shallow water and those sunk in deep water) and such rights to erect, maintain and control the use of these weirs or traps as were recognized by local customary law at the time the Japanese administration abolished them, are hereby reestablished; provided, that no weirs or traps or other obstruction shall be erected in such locations as to interfere with established routes of water travel or those routes which may hereafter be established.

(b) The right of the owner of the abutting land to claim ownership of all materials, coconuts, or other small objects deposited on the shore or beach by action of the water or falling from trees located on the abutting land, and such fishing rights on, and in waters over reefs where the general depth of water does not exceed four feet at mean low water as were recognized by local customary law at the time the Japanese administration abolished them, are hereby reestablished where such rights are not in conflict with the inherent rights of the government as the owner of all marine areas below the ordinary high watermark; provided however, that this section shall not be construed to apply to any vessel wrecked or stranded on any part of the reefs or shores of the Trust Territory.

(2) Written notice of any legal interest or title must be filed with the district land office of the district in which it is claimed within two years from January 8, 1958. The validity of the claimed legal interest or title shall be determined by the district land officer after notice to the person making the claim or any other known parties in interest, and an opportunity for hearing, in the same manner and with the same rights of appeal as in the case of claims to land which the government had possession of under claim of ownership.

In my view the question is more properly answered in sub-section (1) of Section 2 of Title 67. That sub-section provides that "That portion of the law established during the Japanese administration of the area which is now the Trust Territory, that all marine areas below the ordinary high watermark belong to the government, is hereby confirmed as part of the law of the Trust Territory . . . ." Id. (emphasis added). In confirming this law as established during the Japanese administration, the Trust Territory reasserted ownership of all marine areas below the ordinary high watermark. The only marine areas below the ordinary high watermark that this provision does not assert ownership over are those areas described in Section 2(1)(c) of Title 67 ) "[a]ny legal interest or title in marine areas below the ordinary high watermark specifically granted to an individual or group of individuals by the Trust Territory or any previous administering authority, or recognized as a legal right or rights . . . ." But the issue here does not refer to individuals who have been specifically granted legal interest or title in marine areas. Rather, it relates to owners of upland adjacent to the lagoon. Clearly the law does not give automatic right in the marine areas to owners of land abutting such marine area. Thus, owners of land abutting marine areas below the ordinary high watermark have no property right in the reefs and lagoon to which their lands abut. Consequently, they are not entitled to monetary compensation or other relief for damage to the reef and the lagoon in this case by dredging activity in the lagoon, especially done by the government as owner.

We have answered the second part of issue No. 1 as "No." In the main opinion we stated in the answer to this part that "simply possessing a permit does not give one any property rights in the reef and lagoons of Pohnpei." I feel that that statement needs to be further qualified. The issue here pertains to persons having permit to fill in the lagoon, such as the permit issued to the plaintiffs in 1990. The issue is more properly answered in sub-section (c) of sub-section (1) of Section 2 of Title

The owner of land abutting the ocean or lagoon shall have the right to fill in, erect, construct and maintain piers, buildings, or other construction on or over the water or reef abutting his land and shall have the ownership and control of such construction; provided, that said owner first obtains written permission of the district administrator before beginning such construction.

It is clear, as we have stated, that mere possessing a permit does not grant a property right in the reef and lagoons, for the law does not give that right. Reading the law, one notes that first, an owner of land abutting the ocean or lagoon "shall have the right to fill in, erect, construct and maintain piers, buildings, or other construction." But such right is subject to the condition that the owner obtains permission from the district administrator (government) before he commences construction. Conversely, one does not have such right until the district administrator (government) grants the permit. Once the permit is granted, the owner than has the right to act. Now if the owner therefore fills in, erects or constructs a pier, building or make other type of construction as authorized in the permit, it is such pier, building or other construction made pursuant to the permit that comes within the property right of the land owner. Note "and shall have the ownership and control of such construction . . . ." Thus, if the owner has not done any construction, he has no ownership right in the reef, the lagoon, as well as over anything in the reef or lagoon. The right however that the owner may have, is to the right to fill in, erect or construct as granted by the permit. In my view, damage caused to the reef or lagoon in the area when the owner has been permitted for construct is an actionable cause to which the owner may be entitled to monetary compensation, not as owner of the reef or lagoon, but as a recipient of a right to fill, erect, or construct, as already granted under Title 67, Section 2(1)(c).

Issue No. 1 refers to "unauthorized" dredging activity. It is not clear what that means but it is assumed that it refers to authorization of land owners or holders of permit. In relation to the issue as it had been broken into two parts, I am of the view that a land owner or a holder of permit only has the right to authorize when a specific right in the marine area is granted as described in this opinion.

(1) Under Pohnpei State law, including Article XII, section 6 of the Pohnpei Constitution, if reef or a fish maii 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 a payment of just compensation for the depreciation of the value of the reef and fishing grounds?

The answer to the question, again, is found in Section 2(1)(b) of Title 67. Sub-section (b) does not make an outright grant of right to adjacent or nearby coastal landowners in the reef so that they may be entitled to compensation for damage or depreciation caused to the reefs. The section merely reaffirms customary fishing right, if any existed, recognized but abolished during the Japanese administration. This reaffirmation of customary right is conditional, the condition being first, that it was recognized by the people of Pohnpei but abolished by the Japanese administration, and second, that such rights are not in conflict with the inherent rights of the government as owner of all marine areas below the ordinary high watermark. It is therefore clear that even though nearby or coastal landowners may have fishing right in the reef adjacent to their lands, the right of the government to dredge such reef, especially for public purpose, prevails over such fishing right.

compensation for taking of interest in land by the government for public purpose. This is the eminent domain clause. This clause protects non-conditional rights of individuals, such as fee simple ownership rights. It does not afford protection to such customary fishing right reaffirmed in Section 2(1)(b) of Title 67, because the law itself only grants conditional fishing right, which is subject to the inherent right of the government. This has been the ruling in numerous cases in the courts of the Trust Territory. Tulenkun v. Government of Utwe, 5 TTR 628, 629 (Kos. Pon. 1972); Teresia v. Neikina, 5 TTR 228, 230-31 (Truk 1970); Peretiew v. Meriam, 3 TTR 495, 499 (Truk 1968); Protestant Mission of Ponape v. Trust Territory, 3 TTR 26, 32 (Pon. 1965); Yangruw v. Manggur, 2 TTR 205, 206 (Yap 1961); Ngrirabiochel v. Trust Territory, 1 TTR 485, 488 (Pal. 1958). ) I do not think this view should be disturbed at this time. The discussion in Simiron v. Trust Territory, 8 TTR 615, 621-22 (App. 1988) is helpful on point.

The main opinion has set out in some details what appears to be customary rights of individuals over fish weirs or maii. I will refrain from further discussion in that area. But again, following Simiron, a customary fishing right or right over fish weir held by an individual, falls when comes in conflict with the inherent rights of the government as owner of the marine areas below the ordinary high watermark.

It would appear that two different classes of fish weir or maii may become exist. One which was constructed pre-Japanese administration and customarily recognized, and one constructed pursuant to Section 2(1)(c) of Title 67. In my view, a fish weir or maii constructed under Section 2(1)(c) of Title 67 comes into property right of the individual so that if damaged by government dredging, the individual may be entitled to just compensation under Article XII, Section 6 of the Pohnpei Constitution.

Rights of nearby coastal landowners over materials on shores and beaches, including fishing rights on and in waters over reefs where the general depth of water does not exceed four feet at mean low water as recognized by local customary law at the time the Japanese administration abolished them is reaffirmed in Section 2(1)(b) of Title 67. It must be noted however that certain conditions are given in the law first, that it has to be a right customarily recognized at the time the Japanese administration abolished them, and second, that such right is not in conflict with the inherent rights of the government as owner of marine areas below high watermark. These are conditions important in determining questions such as these certified.

Finally, under Title 67, there is no protected fishing right the violation of which would entitle an individual to compensation under Article XII, Section 6. Any reaffirmed customary right over fish trap or maii, if exists, falls to the inherent right of the government and is not protected by Article XII, Section 6. A property right in fish weir or maii acquired in accordance with Section 2(1)(c) of Title 67 is a protected right under Article XII, Section 6 of the Pohnpei Constitution.

4. The Government cannot acquire title to individual land by simply claiming it by public notice and consider the property its own if the individual does not contest. PTA v. Damarlane (citing Edayaoch v. Timarong, 7 TTR 54, 60 (Pal. 1974)). Thus subsection (2) is invalid to the extent that the failure of an individual land owner to comply with the requirement of filing a written notice with the district land office he loses his legal interest or title to the Government.

5. It is hard to reconcile the statement by Mr. Fischer especially when Article 6 of the German Land Code which had granted title to all undeeded land (luhwen wei) to the respective municipalities in which the land was situated. If the Germans were able to and did in fact issue land deeds covering certain islands and islets within Pohnpei to certain individuals, and that Governor Kersting in his explanation regarding Pohnpeians right to use shore lands and the reefs (Appendix E in PCA 25-91), it would be rather illogical for Mr. Fischer to include the statement in his papers suggesting that ownership of such category of land was in the German Government rather than in the residents of the respective municipalities within Pohnpei.

6. The forerunner of section 2(1) was section 32 in the TT Code (1966 ed.). This section was promulgated by Executive Order No. 81 of December 10, 1959. The Congress of Micronesia was established by Secretarial Order No. 2918 of December 27, 1968. For the Simiron Court to claim that Section 2(1) is an act of the Congress of Micronesia, when the statute was in fact an act of the Executive Branch of the Trust Territory is rather misleading. However, Public Law 3C-51 re-enacted the laws of the TTPI as section 2 of said 3C-51 says: "The manuscript attached hereto and incorporated herein by this reference, designated as the `Third Revision' of the general and permanent laws of the TTPI, prepared under the authority of Public Laws 1-3 and 4-17, . . . is hereby enacted as law effective January 1, 1971, and designated as `The Trust Territory Code.'" Thus the statute remained part of the TT law through reenactment of the TT Code by Congress of Micronesia, rather than by an outright and original Congressional initiative as implicit in the Simiron opinion.

7. Ponape District, consisting of those islands of the Trust Territory, and the territorial waters thereof, which lie within the area beginning at point 0E latitude 154E east longitude, thence north to point 11E north latitude 154E east longitude, thence east to a point 11E north latitude 158E east longitude, thence southeast to a point 08E 10' north latitude 161E 45' east longitude, thence south to a point 0E latitude 161E longitude, thence west to the place of beginning.