POHNPEI SUPREME COURT
Appellate Division
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IGNACIA DAMARLANE, ET
AL.,
Appellant,
vs.
THE GOVERNMENT OF UNITED STATES OF AMERICA ON ITS OWN BEHALF AND STANDING IN THE PLACE OF THE TRUST TERRITORY OF THE PACIFIC ISLANDS, THE GOVERNMENT OF POHNPEI STATE AND POHNPEI TRANSPORTATION AUTHORITY, THE FEDERATED STATES OF MICRONESIA, AND JOHN DOES 1-21,
Appellees,
APPEAL No. 5-91
O P I N I O N
Ms. Mary Berman, Attorney for the Plaintiff-Appellants.
Mr. Joses R. Gallen, Attorney for Defendant-Appellee:
Government of Pohnpei State and Pohnpei Transportation Authority.
Oral argument heard before:Edwel H. Santos, Chief Justice, Carl Kohler1 and Judah C. Johnny, Associate Justice on March 20, 1992.
Introduction
This matter was brought to the Appellate Division of the Pohnpei Supreme Court upon joint request of the attorneys filed on July 23, 1991, pursuant to an order of the Supreme Court of the Federated
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States of Micronesia certifying certain issues to this Court for determination.
The issues certified are:
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 mail [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?
On August 9, 1991, an order issued by Chief Justice Edwel H. Santos accepted for consideration and decision those certified issues.
The Appellants Argument
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
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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, (herein after PTA v. Damarlane), the Appellants argue that "the Pohnpei State Supreme Court found that taking of marine areas by the government without notice or compensation are, unconstitutional". (Appellant's Response Brief, pp. 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 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 or any previous 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,
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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, "Land law on Pohnpei as stated in the German Title Document 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." (1 TTR 3 (Ponape 1951)).
The Appellees' Argument
The crux of the Government argument is that "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-typ-es~of lands are-also-vested in the 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
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right recognized by customary law has been interpreted to be different than that of ownership of the abutting upland." (Appellees' Reply Brief, pp. 4-5" The Government contended, however, that the plaintiff/appellants are entitled to a payment of just compensation for depreciation of the value of the reef and fishing grounds damaged to fish mail which they may have constructed." (Reply Brief, p. 9).
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) owned 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, pp. 1 and 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 extend of customary law referred to above, the Court thus took upon
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itself the task of discovering and declaring the applicable customs referred to in 67 TTC 2 to complete the job.
Because the issues require determination of Pohnpei State law which include received law implanted in our statute law and customary law 2, we feel it is appropriate to break the issues into subissues so as to avoid any flouting of where received law or customary law is applicable. Thus the issues are broken down and answered in the following manner:
As to Issue No. 1:
(1) Under Pohnpei State law, do owners of the land adjacent to the lagoon 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 first part of issue No, 1 as "No."
(2) Under Pohnpei State law 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?
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We answer the second part of issue No. 1 as "No, simply possessing a permit does not grant a permitee any property rights in the reef and lagoons of Pohnpei." Some affirmative action will be necessary to be undertaken by such permitee 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 permitee.
As to issue No. 2:
(1) Under Pohnpei State law, including Article XII,.Section 6 of the Pohnpei Constitution, if reef 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?
We answer the first part of Issue No.2 as "No."
(2) Under Pohnpei State law, including Article XII, Section. 6 of the Pohnpei Constitution, if fish mail [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?
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We answer the second part of Issue No. 2 in the following manner:
"No." The holdings in the Trust Territory cases of Protestant Mission v. Trust Territory, 3 TTR 26 (1965), Tulenkun v. Government of Utwe, 5 TTR 628 (1972), and Simiron v. Trust Territory and State of Truk, 8 TTR 615 (1988) cited infra would not allow compensation as claimed by the plaintiff-appellants.
"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 puiDlic purpose with just compensation) by the People of Pohnpei in the Constitution of Pohnpei which came into force on November 8, 1984 would since allow just compensation; provided the fish mail was constructed pursuant to the dictate of customary law as a joint enterprise of the villagers, supervised by the village chief, managed, maintained and own common by the villagers; provided further that if the construction of the fish mail was by an individual, prior 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 mail under the circumstances described in the issue.
Reasons supporting our answers to the issues follow:
A. Historical and Customary Considerations.
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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 Kosraie and beyond, and Katau Peidi refers to the West as far as Yap. Isokelekel who invaded the reign of the Saudeleurs came from Kosraie, 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 a 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 within them. (PTA v. Damarlane, PCA No. 25-91, March 14, 1991, at p 9.). It would follow that if any damage was sustained to the reefs, submerged lands, or corals, it
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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 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." (PCA 25-91, at page 11). This was the state of the customary land law and practice in effect in Pohnpei up to the German land reform of 1912.
3. Fisher wrote that the German administration claimed ownership of all submerged land. "It was widely known on Ponape that all property from the high water mark 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. (Fischer, Land Tenure Patterns, p. 127 quoted in Protestant Mission v. Trust Territory, 3 TTR 26, 31 ).
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4. Upon assuming its U.N. Trust obligation, the Government of the Trust Territory (hereinafter TT) promulgated section 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 public purposes. It is not at 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 Appendix C in Fisher, Land Tenure Patterns, at page 157. This affirms the view that luhwen wei (municipal land) which we find to include submerged land was land owned by Municipalities on December 1, 1941.
5. With respect to fish mail 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
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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 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 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 mail without any sanction from the Village Chief.
Fishing and all other rights in the lagoon area outside the shore-reef or tidal-flat were enjoyed by all the residents of the municipality off whose shore that particular section of the lagoon lay. Fisher, Land Tenure Patterns, p. 125.
B. Statutory Considerations- German Period:
1. Included in its program of land distribution to private families and individuals in Pohnpei, the German Administration in 1912
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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 by 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 also be an error that ought, according to the concept of justice of the people of Pohnpei, Section 11, Art. 10, Constitution of Pohnpei, to be understood and corrected.
3. German Governor Kersting made an explanatory note to Article 6 of the Code specifically stating, ". . . All mangroves that has not yet been distributed is a part of the remainder of the district
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[luhwen wehi]." (PCA No. 25-91, at page 17). Mangroves are grown on submerged lands and such submerged lands were declared as part of the luhwen wehi.
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 this fact takes support as Fisher wrote -- ". . . the municipal boundaries were marked all the way out to the outer reef". (Fisher, Land Tenure Patterns, p. 126). It follows then that "luhwen wei" as the term is used in the German Land Code and as understood by Pohnpeians 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 categories, of 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
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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 to the shore and build boat and canoe houses, etc." (PCA 254 91, Appendix E, pp. 62-65).
6. Having acquired the status of trust property, if an individual wanted to gain any right or interest in any portion of the land which were under the ocean (submerged land), reef, etc., he would have to secure permission from the Nanmwarki and the Governor jointly. Land of this sort may be given away only by the Nanmwarki jointly with the Governor. (See Appendix C in PTA v. Damarlane, PCA 25-91). 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, an ambiguity is inherent in the definition which led many people to think that all categories of luhwen wei were included in the definition ascribed to public land as briefly described under Part A 4 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
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Pohnpei via the Pohnpei Public Lands Authority [and its successor in law] belong to the residents of the respective municipalities within Pohnpei." (Emphasis supplied).
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 of individuals who own lands abutting the ocean or lagoon over certain development made on or over the area of the land below the highwater mark or within lagoons of Pohnpei. For the sake of clarity, we cite the entire section as follows:
"Section 2. Rights in areas below high watermark.
(1) That portion of the law established during the Japanese administration 3 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, with the following exceptions.
(a) Such rights in fish weirs or traps [maii] (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
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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 oflandaabutting 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 mangrove trees or abutting land.
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(f) Any legal interest or title in marine areas below the ordinary high watermark specifically granted to an individual or a group of individuals by the Trust Territory or any previous administering authority, or recognized as a legal right or rights, shall not be affected by this section.
(2) Written notice 4 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."
Trust Territory High Court's decisions interpreting the application of Section 2 of title 67 of the Code are found in a number of cases. For example,
a. In 1958, in the case of Ngiraibiochel v. Trust Territory, 1T.T.R. 485, a case in Palau District, the Trust Territory High Court held that "on a date uncertain the Japanese Administration had declared all land below the high water mark 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.
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"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."
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 edition, 67 TTC 2 (1) (b) in the 1980 edition, held that "waters in dispute suitable for 'big fishing' are owned by family group of 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, (Yap District), 2 TTR 205.
c. In another action to determine fishing rights in certain part of the Truk lagoon, Teresia v. Neikina, (Truk District) 5 TTR 228, the Trial Division of the High Court held that under Trukese custom fishing rights on a reef depend upon transfers from predecessor owners 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."
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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, (Kosraie, Ponape District, 5 TTR 628, 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 (Ponape District), 3 TTR 26, the TT High Court declared what it found to be the law governing shore lands as it affected Pohnpeian 5 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 Governments with the exception of three private mangrove reserves which had
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been specifically granted by the German Government", 3 TTR 3, citing Fisher, Land Tenure Patterns, p. 127. .
"There is no universal and uniform law as to land under tide waters, and great caution is necessary in applying precedents in one state to cases arising in another state, citing Shively v. Bowlby, 14 S.Ct. 548 (1894), 3 TTR 31.
"In 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. 3 TTR 33.
"Under common law title in soil of sea is in sovereign except insofar as individual has acquired rights in it by express grant, prescription, usage, or by legislation. 3 TTR 30.
"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. 3 TTR 30.
"No right to filled-in land is created under Trust Territory Code, and only certain rights already in existence were preserved by the Code. (TTC Sections 24 and 32 (f)) [Code 1966 edition]. And finally, the Protestant Mission Court held that "Rights of government to fill in areas owned by it below high-water mark and to retain ownership of, and to expressly authorized others to do so regardless of wishes of owners of adjoining upland, is recognized in United States." 3 TTR 32.
Quite recently two other interesting cases were decided by the TT High Court, Appellate Division, in Chuuk State, dealing with the same issue of rights of individual land owners abutting the shore.
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f. The case of Nipwech Ungeni, et al , v. Trust Territory, 8 TTR 366 (August 22, 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 'prior wrongs' was inapplicable to the alleged Japanese Proclamation".
g. Yositaro Simiron, Plaintiff-Appellant v. Trusts Territory of the Pacific Islands, State of Truk, Defendants-Appellees, 8 TTR 615 (1988). This case was decided by the same Appellate Division by Justices Hefner, Judge of CNMI Trial Court and Mamoru Nakamura, Chief Justice 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 seeking compensation for the destruction of these 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. Nipwech Ungeni was thus overruled.
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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's court held that the s 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, issues of foreign law were questions of law not of fact. "Thus, Nipwech's treatment of the issue as one of fact on which the government bears the burden is argued to be incorrect and shall be over ruled, thereby allowing application of Section 2 and affirmance of the trial court. 8TTR 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 reciting that Japanese law deemed those lands to be sovereign." 8 TTR 621.
[pg. 24]
On the basis of the foregoing, 67 TTC Section 2, as delimited by certain decisional law of the Trust Territory High Court was the law of the islands constituting the Trust Territory. It became law of Pohnpei following the transition of Government.
The return of Public Lands to the local entities re-established title in common to these categories of land in their rightful owners, the respective municipalities and the residents thereof. To use the language of the Quit Claim Deed effecting the transfer of title to such lands, we note: "the Government of the TTPI, by these presents, does remise, release, and quit claim to the Ponape District Public Lands Authority, its successors and assigns, all its right, title and interest in and to . . . all public lands as defined in Section 2 (c) of said Secretarial Order Number 2969 located below the ordinary high watermark within the geographical boundaries of the Ponape District, Trust 16 Territory of the Pacific Islands, as defined in Section 1 (5)7 of Title 3 of 17 the Trust Territory Code . . . in trust for the people of Ponape District in i s accordance with the provisions of . . . Secretarial Order Number 2969."
Finally when the People of Pohnpei ratified the Constitution of Pohnpei, they declared at Sections 1 and 2 of Article I,
[pg. 25]
"The territory of Pohnpei comprises the islands and reefs of Pohnpei, a marine space of two hundred nautical miles measured outward from appropriate baselines, the sea bed, subsoil, water column, insular and continental shelves, and any other territory and waters belonging to any island of Pohnpei by historical rights, custom, or legal title." Sec. 1, Art. I.) "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 arid-waters." (Sec. 2, Art I.)
Conclusion.
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
[pg. 26]
and ownership by citizens of the TTPI of all submerged lands within Pohnpei. Subsection (a) preserves to the people in general certain customary fishing rights and subsection (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 (c) prescribes rights of owners of abutting land to construct and to own certain specified constructions [i]f 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 (d)), and subsection (e) preserves traditional and customary rights of individual land owner, clan, family or municipality to control the use of materials, including corals below the high water mark, subject to and limited by the inherent rights of the Public Land Trust Board as trustees for the benefit of all people.
3. By the ratification of the Constitution of Pohnpei, the People declared that islands and reefs of Pohnpei, sea bed, subsoil, waters connecting islands and reefs are part of Pohnpei under its jurisdiction.
4. State Law No. 1 L-155-87, repealing its forerunner D.L. No. 4L-69-76, designated the Board of Public Land Trust to hold title to the property in question in trust to the Peoples of Pohnpei.
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
[pg. 27]
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 the 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 4, Section 4 of the Constitution of Pohnpei.
So Ordered, 17 February 1995.
/s/ /s/
Carl Kohler Judah C. Johnny
Associate Justice Associate Justice
/s/
Edwel H. Santos
Chief Justice
Entered: February 20, 1995
/s/
Acting Clerk, Appellate Division
[footnotes]
1 Justice Carl Kohler passed away before the Opinion was finalized, thus under the rule of necessity the remaining two justices of the three judges-panel signed the Opinion.Back to Opinion
2 We are indebted to our beloved brother Carl Kohler, deceased, for his wisdom, knowledge and experience in the Pohnpeian customary law which contributed immensely to the making of this decision.Back to Opinion
3 See the Trial Court Conclusion in PTA, et al.. v. Damarlane, PCA 25-91, appearing on pages 43 through 44.Back to Opinion
consider the property its own if the individual does not contest. PTA, et al... v. Damarlane, citing Edayaoch v. Timarong, 7 TTR 54, at page 60. Thus subsection (2) is invalid to the extent that the failure of an individual landowner 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.Back to Opinion
5 It is hard to reconcile the statement by Mr. Fisher 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 rights to use shore lands and the reefs (Appendix E in PCA 25-91), it would be rather illogical for Mr. Fisher 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.Back to Opinion
6 The forerunner of section 2 (1) was section Section 32 in the TT Code, 1966 edition. 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's 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 Government 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's opinion.Back to Opinion
7 Sec. 1 (5) Ponape District, consisting of those islands of the Trust Territory, and the territorial waters thereof, which lie within the area beginning at a point 0 degree latitude 154 degree east longitude, thence north to a point 11 degrees north latitude 154 degrees east longitude, thence east to a point 11 degrees north latitude 158 degrees east longitude, thence southeast to a point 08 degrees 10' north latitude 161 45' east longitude, thence south to a point 0 degree latitudeBack to Opinion
161 degrees longitude, thence west to the place of beginning." (3 TTC 1 (5)).