UN Charter Article 77 Territory Definition Caselaw Nahnken of Nett v United States of America (1994

8/6/2019 UN Charter Article 77 Territory Definition Caselaw Nahnken of Nett v United States of America (1994

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The defendant United States is sued in its capacity as former administering authority

of the Trust Territory of the Pacific Islands ("TTPI").

Transition of Authority

The United States could not assume responsibility for, or be held liable for, the

absence of separate adjudicatory body for public land disputes when the exclusive

authority to establish such a body had been transferred to the Ponape district

legislature. Nahnken of Nett v. United States (III), 6 FSM Intrm. 508, 528 (Pon.

1994).

Article 77 of the U.N. Charter states that U.N. trust territories include territories thenheld under League of Nations mandate, orwhich were detached from enemy states as

a result of World War Two.

Therefore, the status of the TTPI was that of a strategic trust under the general

jurisdiction of the Security Council and General Assembly of the U.N., administered

by the U.S. government. This is not the same legal status as a U.S. territory, either

incorporated or unincorporated, obtained by formal cession from another sovereign or

acquired through military conquest.1[3]

1[3] Justice White in the case Downes v. Bidwell, [1901] USSC 127; 182 U.S. 244,

311-12, 21 S. Ct. 770, 796, 45 L. Ed. 1088, 1115-16 (1901) (White, J., concurring)

noted a distinction between incorporated and unincorporated territories. The

former (e.g., Louisiana and Florida before statehood) were from the outset of

acquisition treated as an integral part of the United States in all respects. The

latter (e.g., Puerto Rico) were not recognized at the time of acquisition as an

integral part of the United States and all U.S. laws did not automatically apply to

them.

Nahnken of Nett v United States of

America (III) [1994] FMSC 3; 6 FSM
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Intrm. 508 (Pon. 1994) (26 September

1994)

FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 1993-026

Nahnken of Nett v. United States (III)

6 FSM Intrm. 508 (Pon. 1994)

THE ISO NAHNKEN OF NETT,

SALVADOR IRIARTE,

Plaintiff,

vs.

GOVERNMENT OF THE UNITED STATES

OF AMERICA, on its own and standing in

the place of THE TRUST TERRITORY OF THE

PACIFIC ISLANDS, THE POHNPEI PUBLIC

LANDS BOARD OF TRUSTEES, THE

ETSCHEITS and JOHN DOES 1-49,

Defendants.

__________________________________________

ORDER AND MEMORANDUM OF DECISION

Andon L. Amaraich

Associate Justice

Hearing: June 30, 1994

Decided: September 26, 1994

APPEARANCES:

For the Plaintiff: Mary Berman, Esq.

P.O. Box 163

Kolonia, Pohnpei FM 96941


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For the Defendant: Douglas Parkinson, Esq.

(United States) Law Offices of R. Barrie Michelsen

P.O. Box 1450


For the Defendant: Richard L. Counts, Esq.

(Public Lands Board) Assistant Attorney General

Office of the Pohnpei Attorney General


For the Defendants: Daniel J. Berman, Esq.

(Robert Etscheit, Jr.) Rush, Moore, Craven, Sutton, Morry & Beh

(Camille Etscheit) 2000 Hawaii Tower

745 Fort Street

Honolulu, HI 96813-3862

For the Defendants: Fredrick L. Ramp, Esq.

(Adams and Varner) P.O. Box 1480


* * * *

HEADNOTES

Civil Procedure - Res Judicata and Collateral Estoppel

A plaintiff who has previously litigated and lost his claim to a legal interest in

a certain property is collaterally estopped from claiming damages as a result of loss of

ownership or possession of the land because under the principle of collateral estoppel,

a cause of action which could have been litigated in the course of the original case

between the same parties is treated as litigated and decided with the former cause of

action. Nahnken of Nett v. United States (III), 6 FSM Intrm. 508, 516 (Pon. 1994).


4/29

Civil Procedure - Res Judicata and Collateral Estoppel; Civil Procedure - Joinder

In some cases failure to join an indispensable party may subject a judgment to

collateral attack, but failure to join a necessary party will not. A necessary party is one

who has an identifiable interest in the action and should normally be made a party to

the lawsuit, but whose interests are separable from the rest of the parties or whose

presence cannot be obtained; whereas an indispensable party is one to whom any

judgment, if effective, would necessarily affect his interest, or would, if his interest is

eliminated, constitute unreasonable, inequitable, or impractical relief. Nahnken of

Nett v. United States (III), 6 FSM Intrm. 508, 517 (Pon. 1994).

Civil Procedure - Joinder

The burden of joining absent parties rests with the party asserting their

indispensability. Nahnken of Nett v. United States (III), 6 FSM Intrm. 508, 518 (Pon.

1994).


Where land is not public land and where the Land Commission and TT High

Court had jurisdiction to adjudicate land claims even over public lands because the

authorized adjudicatory body for public lands had not yet been created the TT High

Court's land adjudication will have res judicata effect. Nahnken of Nett v. United

States (III), 6 FSM Intrm. 508, 518 (Pon. 1994).


Only truly exceptional cases warrant an exception to the normal presumption

ofres judicata, and such exceptions are to be confined within narrow limits. Where

there is no evidence a TT High Court judgment was obtained unfairly or worked a

serious injustice an FSM court cannot grant relief from it. Nahnken of Nett v. United

States (III), 6 FSM Intrm. 508, 519 (Pon. 1994).



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FSM courts are not bound to follow the precedents or reasoning of the TT

High Court in deciding cases, but must respect the resolution or outcome of a case as

between the parties and subject matter of the particular action adjudicated absent

constitutional defect or obvious injustice such as a plain usurpation of power.

Nahnken of Nett v. United States (III), 6 FSM Intrm. 508, 519-20 (Pon. 1994).


Where a party had imputed and actual notice of the dimensions of the land in

dispute in a previous litigation the same party cannot later attack the judgment for

either vagueness of description or lack of notice. Nahnken of Nett v. United States

(III), 6 FSM Intrm. 508, 520 (Pon. 1994).


A party who has litigated an action in his personal capacity cannot escape the

application of collateral estoppel and relitigate the action simply by claiming to act in

a different capacity. Nahnken of Nett v. United States (III), 6 FSM Intrm. 508, 520

(Pon. 1994).

Equity - Laches, Estoppel and Waiver

The basic elements of the doctrine of laches are 1) inexcusable delay or lack of

diligence by the plaintiff in bringing suit, and 2) injury or prejudice to the defendant

from plaintiff's delay. Delay is inexcusable when the plaintiff knew or had notice of

defendant's conduct giving rise to plaintiff's cause of action, and had prior opportunity

to bring suit. Nahnken of Nett v. United States (III), 6 FSM Intrm. 508, 522 (Pon.

1994).


Where the plaintiff did know or should have known of defendants' claims for

at least a decade, defendants should not have to be hauled into court to relitigate

issues decided over ten years before because it is prejudicial to the defendants who

had a reasonable right to assume that the TT High Court appellate decision had closed


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the matter in 1982. Nahnken of Nett v. United States (III), 6 FSM Intrm. 508, 523

(Pon. 1994).


Although the doctrine of laches cannot be asserted against government land,

where suit is prosecuted in the name of a government by a private individual laches

may apply as a bar. Nahnken of Nett v. United States (III), 6 FSM Intrm. 508, 523

(Pon. 1994).

Property; Trusteeship Agreement

A U.S. statute requiring aliens to dispose of landholdings within ten years of

acquisition never applied in the Trust Territory because the Trust Territory never had

the status of a U.S. territory and the U.S. Congress never specifically extended its

application to the Trust Territory. Nahnken of Nett v. United States (III), 6 FSM Intrm.

508, 524-25 (Pon. 1994).

Trusteeship Agreement

The Trusteeship Agreement does not provide individuals with a private cause

of action for damages for alleged breach of any of its provisions. Nahnken of Nett v.

United States (III), 6 FSM Intrm. 508, 526 (Pon. 1994).

Compact of Free Association

Although the Compact of Free Association waives U.S. sovereign immunity it

does not create new causes of action or remedies beyond what was available to private

litigants before the Compact. Nahnken of Nett v. United States (III), 6 FSM Intrm.

508, 526 (Pon. 1994).

Torts - Government Liability

Since by statute the Trust Territory government would be liable to private

litigants only under circumstances where a private person would be liable to the


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claimant for similar acts and because declaring title to the property could only be

accomplished by an administering governmental authority there is no tort for loss of

property for declaring title because private persons have no authority to declare title.

Nahnken of Nett v. United States (III), 6 FSM Intrm. 508, 527 (Pon. 1994).

Transition of Authority

The United States could not assume responsibility for, or be held liable for, the

absence of separate adjudicatory body for public land disputes when the exclusive

authority to establish such a body had been transferred to the Ponape district

legislature. Nahnken of Nett v. United States (III), 6 FSM Intrm. 508, 528 (Pon.

1994).

Torts - Government Liability

Any action of the Land Commission in excess of its statutory authority would

be actionable only against the Commission itself, not the United States since it was

not an agency of the U.S. government. Nahnken of Nett v. United States (III), 6 FSM

Intrm. 508, 528 (Pon. 1994).


Courts stand ready to assist litigants with claims that are well-grounded in law

and diligently brought. At the same time the courts must strive to ensure that the final

judgments fairly rendered are upheld, so that all interested parties may know when an

issue has been justly concluded. Parties are entitled to rely on the conclusiveness of

prior decisions. Nahnken of Nett v. United States (III), 6 FSM Intrm. 508, 529 (Pon.

1994).

* * * *

COURT'S OPINION

ANDON L. AMARAICH, Associate Justice:


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This purpose of this memorandum of decision is to discuss the reasoning of

the order granting defendants' motions for summary judgment and motion to dismiss

entered this day.

Parties

The plaintiff in this action is the Iso Nahnken of Nett,[1] Salvador Iriarte. He

brings suit against all defendants for loss of possession and use of approximately

1,362 acres in Nett Municipality currently owned by the Etscheit family, and seeks

relief in the form of monetary damages in the amount of $50,000,000.

The defendant United States is sued in its capacity as former administeringauthority of the Trust Territory of the Pacific Islands ("TTPI"). Plaintiff alleges the

United States government breached its duty under the Trusteeship Agreement and

laws of the Trust Territory to protect plaintiff as an indigenous person against loss of

property by allowing title to the lands at issue to pass to the Etscheits.

The defendant Pohnpei Public Lands Authority ("PLA"), which includes the

Public Lands Board of Trustees, is a division of the Pohnpei State Department of

Land, established under the Pohnpei Public Land Trust Act, S.L. 1L-155-87 (Pohnpei

State Legis., 4th Reg. Sess. 1987).[2] PLA is sued for allegedly breaching its duty to

hold and administer the property in this action as public lands in trust for the

indigenous people of Pohnpei, and specifically, in failing to return the land at issue to

the plaintiff as customary and traditional owner of the land.

Defendants Etscheits are sued collectively as claiming title to the lands at

issue.

Factual Background

The subject matter of this lawsuit concerns approximately 1,250 acres known

as "Mpomp," currently held under certificate of title by the Etscheit family, and

another approximately 112 acres situated in Sapwetik and Taketik islands, also owned

by the Etscheits.

The lengthy and complex history of the transactions concerning the land

involved in this action has been described in several other decided and pending cases.
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See, e.g., In re Etscheit Property, Civil Action No. 142-78 (Trust Territory High Court,

1980); Etscheit v. Adams, 6 FSM Intrm. 365 (Pon. 1994) (the partition case). Briefly,

the property known as Mpomp was leased to one Stanislaus Kubary in 1895. In 1903,

after Kubary's death, the land was auctioned by the German administering

government and purchased by Domenikus Etscheit, ancestor of the present Etscheit

defendants. The property was confiscated by the Japanese following World War I, and

returned to the Etscheits in 1927. The Japanese government regained the land through

forced sale in 1940-41. After the Second World War ended, the Etscheit family retook

possession of the land. In 1956 the Trust Territory government entered into a

Memorandum of Understanding ("MOU") with Florentine Etscheit recognizing the

Etscheit family as rightful owner of Mpomp, Sapwetik and Taketik, and quitclaim

deeds were issued accordingly in 1957 in exchange for a payment of money by

Florentine Etscheit and transfer of certain other property.

In 1978 the Etscheits filed a trespass action in the Trust Territory High Court

("TT High Court") against the Nanmwarki and Nahnken of Nett regarding Mpomp,

which became by consent of the parties a quiet title action.[3] The trial division of the

TT High Court ruled in favor of the Etscheits as owners of Mpomp. The defendants,

including the present plaintiff Iso Nahnken, appealed. The appellate division of the TT

High Court affirmed the decision of the trial court. Nanmwarki, Naniken of Nett v.

Etscheit Family, 8 TTR 287 (App. 1982). Pursuant to the decision of the TT HighCourt appellate division, the Pohnpei Land Commission issued certificates of title to

Mpomp to the Etscheits in 1983.

Sapwetik and Taketik were not part of the TT High Court litigation. Both were

named in the 1903 notice of sale to Domenikus Etscheit, and both were part of the

1957 conveyance from the Trust Territory to his widow, Florentine Etscheit. A

Determination of Ownership regarding Sapwetik was made in favor of the Etscheits

by the Pohnpei Land Commission in 1984; however, a certificate of title has not been

issued apparently because of state court litigation between members of the Etscheit

family as to the proper title holder.

I. PLAINTIFF'S THEORY OF THE CASE

Plaintiff asserts that as the Iso Nahnken he is the rightful owner and

administrator of the land at issue in this case. The theory behind his claims is

summarized as follows. Pohnpeian custom and an 1895 ruling by a Spanish official
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held that the "Chief of Nett" was the owner of the lands known as Mpomp. According

to the Spanish-era documents submitted by plaintiff, the Chief of Nett (the

Nanmwarki at the time) entered into a lease of the property to Stanislaus Kubary. The

lease was for life to Kubary, and then to his wife and descendants upon his death. The

subsequent 1903 estate sale by German officials to Domenikus Etscheit violated the

terms of the 1895 agreement between the Nanmwarki and Kubary, and therefore the

sale was void.

Even assuming the sale was valid and interest in the land passed to the

Etscheit family, during World War II the Japanese bought the property from the

Etscheits. Plaintiff contends that this meant after the war title to the land became

vested in a Trust Territory official known as the "Alien Property Custodian," a

predecessor of the current PLA. Therefore, the lands formerly possessed by the

Etscheits became public land by virtue of the Japanese purchase, because under Trust

Territory laws and policy the Trust Territory government succeeded to title of all such

land to administer in trust on behalf of the indigenous inhabitants. The chain of title

thus went from the Japanese to the Alien Property Custodian to the present PLA. The

effect of this chain of title is that the formal deed of the land from the TTPI

government to Florentine Etscheit in 1957 was void, because the Alien Property

Custodian and the TTPI government were prohibited by existing laws and regulations

from issuing deeds to such property to non-indigenous persons. Thus, the land wasnever legally transferred to the Etscheits and is still held by the PLA. The PLA had a

legal duty under Trust Territory laws and Secretarial Order 2969 to hold public land in

trust for the indigenous people of Pohnpei, and breached that duty by failing to return

the Etscheit lands to the plaintiff as traditional administrator of Nett lands. The acts of

all three groups of defendants caused plaintiff to suffer loss and damages in the

amount of fifty million dollars.

Defendants PLA and the Etscheits have moved for summary judgment and

plaintiff has cross-moved for summary judgment. As a preliminary matter, the Court

must determine pursuant to FSM Civil Rule 56 whether there are any genuine issues

of material fact. At the hearing on June 30th plaintiff suggested that there is an issue

of fact whether plaintiff had notice of the certificate of title to Mpomp issued by the

Land Commission to the Etscheits. For the reasons which are discussed below, the

Court does not find that a genuine issue exists with regard to this question. The other

question raised by plaintiff at the hearing was whether the Land Commission followed

customs and traditions, and existing district law, when it issued the certificates of title.

This is a legal question, not a factual one.


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The only potentially material fact over which the parties fundamentally

disagree and have posited opposing authorities is the question whether the Iso

Nahnken of Nett traditionally had authority to own and administer lands in Nett for

the benefit of the people. Defendants refute such authority, citing sources which

mention only the Nanmwarki in discussing customary distribution of land in Pohnpei.

Plaintiff has submitted an affidavit from the former Nanmwarki of Nett, the late

Frederick Iriarte, stating that the Iso Nahnken holds joint authority with the

Nanmwarki over land distribution. The Court need not resolve this issue. Even

assuming that plaintiff's position is correct, and that as a general matter he has

standing to bring suit for damages for loss of land traditionally under his control, the

Court does not find this fact material to the summary judgment arguments before it

concerning the property and other facts of this case. Therefore, this case is ripe for

summary judgment as a matter of law under FSM Civil Rule 56. Bank of Guam v.

Island Hardware, 2 FSM Intrm. 281, 284 (Pon. 1986); FSM Dev. Bank v. Rodriguez

Corp., 2 FSM Intrm. 86, 87 (Truk 1985).

II. DEFENDANTS' ARGUMENTS

Defendants PLA and the Etscheits originally filed separate motions for

summary judgment, but by cross-stipulation have concurred with each other'spresentations. The Etscheits also join in the United States' motion to dismiss. Most of

the arguments of the United States in support of dismissing the action coincide with

those of the other defendants. In addition, the United States argues sovereign

immunity and lack of actionable conduct as grounds for dismissal of plaintiff's suit.

The defendants attack all of the public land statutes cited by plaintiff as

irrelevant to this case, since the property at issue is private property. None of the

public land laws give authority to the PLA to take over private property, nor do the

statutes give authority to third parties such as the plaintiff to bring suit based on the

PLA's failure to assert control over such land. D.L. 4L-153-78 states that the PLA is

bound by all existing leases entered into by the TTPI. Defendant PLA takes this

position with respect to the Etscheit lands. The TTPI government itself considered the

land to be private land, and the property has never been conveyed by any act of

government to the PLA.

Defendants reject plaintiff's argument that the TTPI government or the PLA

had any duty to turn over public lands in Nett to plaintiff for distribution, even


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assuming that the property in this case were to be classified as public land. There is no

provision in any of the public land laws stating such a requirement, nor is there any

provision providing a private cause of action for money damages against the TTPI or

PLA for failure to transfer public lands to a third party such as the Nahnken of Nett.

The defendants assert that this action is barred by the doctrine ofres judicata.

The plaintiff first asserted his rights over the land beginning in 1978, which caused

the Etscheits to bring Civil Action No. 142-78 in the TT High Court. That court held

in favor of the Etscheits. The Nahnken and Nanmwarki of Nett appealed and lost, and

the appellate division of the TT High Court ruled that plaintiff had no legal interest in

Mpomp. Therefore, defendants argue, the present case is simply another attempt by

the plaintiff to relitigate the earlier quiet title action.

Defendants also urge the Court to apply the same basis of decision as applied

by the TT High Court, the doctrine of laches or stale demand. Plaintiff cannot now

argue the validity of the original 1903 sale of the property to Domenikus Etscheit.

They contend that plaintiff had knowledge and opportunity to bring his claims for lost

use compensation at least as early as 1978 if not before.

In addition, this case should be barred by the statute of limitations. Defendants

contend that the case is not one concerning an interest in property such that the 20-

year statute of limitations would apply. Instead, defendants argue that the six-year

statute of limitation applies, and as a result the plaintiff's action is clearly precluded

since the cause of action would have arisen at the latest in 1983-84 with the Land

Commission's actions regarding title to Mpomp and determination of ownership of

Sapwetik.

III.RES JUDICATA

Plaintiff cites a number of Trust Territory statutes and regulations, Pohnpei

district and state laws, and Secretarial Order 2969 in support of his claim that the land

in this case reverted at some point in time to the Pohnpei PLA. These laws would be

relevant if the land at issue was indeed public land. The Court concludes that it is not.

In Civil Action No. 142-78, In re Etscheits' Property (Dec. 24, 1980), the trial

division of the TT High Court declared the Etscheit family to be the owners of

Mpomp. One of the findings of the trial court was that during World War II, "the land

in question was forcibly confiscated by the Japanese government and members of the


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Etscheit family were interned on Ponape by the Japanese." Opinion at 2. The 1956

Memorandum of Understanding stated the same conclusion, that the 1940-41 transfer

of Mpomp to the Japanese was a forced sale made under duress, and therefore void.

The appellate division of the TT High Court in reviewing the trial court decision did

not reverse this finding. Plaintiff in this action has not presented any evidence to

overcome the presumption of validity of the finding. The legal conclusion from this

fact is that title to Mpomp never passed to the Japanese government during World War

II. M.C. Dransfield, Annotation, Ratification of Contract Voidable for Duress 77

A.L.R.2d 426 (1961); 17A Am. Jur. 2d Contracts 234 (1991). Title would have had

to have effectively passed to the Japanese for plaintiff to prevail on his argument that

the land is public land and not private property. All of the definitions of "alien

property" or "public lands" in the laws plaintiff cites refer to Japanese owned land.[4]

It follows that if the Japanese never owned the land, none of the public land

laws apply. This Court has already concurred in previous published opinions with the

TT High Court's finding that the 1940-41 sale was forced. See Etscheit v. Adams, 6

FSM Intrm. 365, 370 (Pon. 1994). I therefore conclude that the property in question

was never owned by the Japanese government. As such it did not revert in title to the

Alien Property Custodian and its successor entity, the PLA.[5]The conclusion that this

property was not alien property or public land is implicit in the TT High Court's

decision, affirmed on appeal in Nanmwarki, Nahnken of Nett v. Etscheit Family, 8TTR 287 (App. 1982). The ruling of the TT High Court that the Nahnken of Nett does

not own Mpomp is res judicata. It follows that the plaintiff is collaterally estopped

from claiming damages as a result of loss of ownership or possession of the land.

Under the principle of collateral estoppel, a cause of action which could have been

litigated in the course of the original case between the same parties is treated as

litigated and decided with the former cause of action. Berman v. FSM Supreme Court,

6 FSM Intrm. 109, 112 (Pon. 1993); Ittu v. Charley, 3 FSM Intrm. 188, 190 (Kos. S.

Ct. Tr. 1987); 46 Am. Jur. 2d Judgments 417 (1969). Plaintiff's claims for damagesin this lawsuit for deprivation of use of the Etscheit property is directly dependent

upon establishing a legal interest in the property, the very issue plaintiff litigated and

lost earlier in the TT High Court. Plaintiff cannot thus disassociate his claims in this

lawsuit from the prior conclusive judicial determination that he has no interest in

Mpomp. See Williams v. Ward, 556 F.2d 1143, 1154-55 (2d Cir. 1977) (fact that

remedy sought in second action differs from that sought in first action does not suffice

to differentiate underlying claim to defeat application ofres judicata).
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This Court has recently reiterated, as plaintiff admits,[6]the validity and

conclusiveness of the TT High Court rulings concerning this property. See Ponape

Enterprises Co. v. Soumwei, 6 FSM Intrm. 341, 344 (Pon. 1994); In re Parcel No.

046-A-01, 6 FSM Intrm. 149, 159 (Pon. 1993). Plaintiff argues nonetheless that the

TT High Court decisions should not be given res judicata effect for the following

reasons:

(1) The TT High Court lacked jurisdiction because it failed to join the PLA as

an indispensable party.

(2) The TT High Court lacked jurisdiction because it did not possess

jurisdiction over the property at issue.

(3) Section 176 of the Compact of Free Association, which states that "final

judgments in civil cases rendered by any court of the Trust Territory of the Pacific

Islands shall continue in full force and effect," is qualified by the clause "subject to

the constitutional power of the courts of . . . the Federated States of Micronesia to

grant relief from judgments in appropriate cases," and U.S. case law holds that courts

may refuse to apply the doctrine ofres judicata to avoid manifest injustice.

(4) The FSM Supreme Court is not bound to abide by the decisions of the TT

High Court, as held by the Court in United Church of Christ v. Hamo, 4 FSM Intrm.

95 (App. 1989); FSM v. Oliver, 3 FSM Intrm. 469 (Pon. 1988).

(5) The TT High Court judgment should not be given res judicata effect for all

the land called Mpomp now at issue, since that court did not specify the size and

boundaries of Mpomp in its decision.

(6) The TT High Court cases involved the plaintiff as a party only in his

personal capacity, and therefore the decisions should not bind plaintiff in the current

lawsuit since he is acting as representative of the people of Nett.

Each of these arguments will be addressed in turn.

(1) Plaintiff argues that the PLA should have been joined as an indispensable

party in the TT High Court civil action, and that failure to do so renders the judgment

void and subject to collateral attack. He cites several authorities for the principle that

failure to join an indispensable party may render the judgment void. Most of the

sources cited state only the well-established principle that in order for a judgment to
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be valid the issuing court must have had jurisdiction over the subject matter, 47 Am.

Jur. 2d Judgments 1064 (1969); 50 C.J.S. Judgments 617 (1947), and that a party

that originally consented to the jurisdiction of the court may later raise a claim that the

same court lacked subject matter jurisdiction because jurisdiction does not originate

from consent of the parties. 47 Am. Jur. 2d Judgments 1081 (1969); Grubb v. Public

Utilities Comm'n of Ohio,[1930] USSC 98; 281 U.S. 470, 475, 50 S. Ct. 374, 377, 74

L. Ed. 972, 977 (1930).

Relevant to plaintiff's argument are two cases, Stevens v. Loomis,[1964]

USCA1 76; 334 F.2d 775 (1st Cir. 1964) and Bank of California v. Superior Court of

San Francisco, 106 P.2d 879 (Cal. 1940). These cases indeed hold that in some cases

failure to join an indispensable party may subject the judgment to collateral attack.

Both cases, however, make a distinction between "indispensable" and "necessary"

parties. A necessary party is one who has an identifiable interest in the action and

should normally be made a party to the lawsuit, but whose interests are separable

from the rest of the parties or whose presence cannot be obtained. Bank of California,

106 P.2d at 884. Failure to join necessary parties does not defeat jurisdiction. Id.

In the Bank of California case, concerning distribution of a decedent's estate,

some of the named defendants moved for an order to join other absent legatees as

indispensable parties. The trial court denied the motion and petitioners applied for awrit of prohibition against the trial court. The appellate court ruled that the absent

parties were necessary but not indispensable parties because their interests were

separable and capable of independent adjudication. Id. at 885. An indispensable party

is "one to whom any judgment, if effective, would necessarily affect his interest, or

would, if his interest is eliminated, constitute unreasonable, inequitable, or impractical

relief . . . ." Stevens, 334 F.2d at 777.

In the instant case the most that could be said is that PLA was a necessary

party at the time the TT High Court action was brought. The PLA could, if it chose to,

have intervened and asserted an independent right to the property in question based on

the public land laws. It could still have brought such a claim after the decision against

the Nanmwarki and the Nahnken was rendered. It is significant, however, that PLA

did not make any effort on its own to assert such a claim at the time, nor did the

Nahnken, as a party to the TT court action, make any motion under T.T.P.I. Civ. Pro.

R. 19 to join PLA as a co-defendant. The Nahnken did not raise the issue of PLA's

joinder until 11 years after the litigation had been completed. The burden of joining
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absent parties rests with the party asserting their indispensability. Sierra Club v. Watt,

608 F. Supp. 305 (D. Cal. 1985). Plaintiff in this case has not met this burden.

(2) Plaintiff's argument that the TT High Court lacked jurisdiction over the

property in this matter is grounded in the belief that the land was public land and

therefore subject only to PLA adjudication pursuant to Secretarial Order 2969. As

discussed above, this premise is incorrect. Nothing in the FSM Constitution or the

Trust Territory statutes prevented the TT High Court from exercising jurisdiction over

land disputes, be it private or public land.

Plaintiff misinterprets Secretarial Order 2969, section 3(b) to mean that since

the effective date of that order, December 28, 1974, the Trust Territory courts and

Ponape District Land Commission had no authority to adjudicate claims involvingpublic lands. Section 3 authorized the district legislature to "establish an adjudicatory

body to resolve claims disputes as to titles or rights in land transferred to the district

legal entity [PLA]." No such adjudicatory body was in existence at the time the

Etscheits brought their civil action in 1978. Plaintiff, however, would interpret section

3 to mean that even in the absence of such an adjudicatory body, the TT High Court

and Land Commission had no continuing jurisdiction over claims involving public

lands. There is no language in the Secretarial Order to support such a view.

Section 3 states further that "no such body [created by the district legislature]

shall have the authority to redetermine any claim or dispute as to right or title to land

between parties or their successors or assigns where such claim or dispute has already

been finally determined or is in the process of being determined either by a Land Title

Officer, by a Land Commission or a court of competent jurisdiction, and all final

determinations arising therefrom shall be res judicata." (emphasis added). Plaintiff

would have the underlined portion of this provision mean that only claims resolved as

of the effective date of the Secretarial Order are to be given res judicata effect. The

Order should not be interpreted to leave a void in authority to adjudicate land claims,

however, which would be the result if plaintiff's argument is accepted. The underlined

portion can only logically refer to the effective date of establishment of the new

adjudicatory body by the district legislature. Therefore, in 1978, the Land

Commission and TT High Court had proper jurisdiction consistent with the provisions

of S.O. 2969 over the property known as Mpomp, even if one were to accept

plaintiff's characterization of the property as public land.


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(3) Section 176 of the Compact of Free Association directs that final

judgments of the TT High Court remain in effect after the effective date of the

Compact. The courts of the FSM are given the authority, consistent with the

Constitution, to grant relief from prior judgments of the TT High Court "in

appropriate cases." This is consistent with the Transition Clause, FSM Const. art. XV,

which also directs that judgments of the TT courts continue unaffected except as

modified in accordance with constitutional provisions.

Plaintiff suggests that based on this authority of the FSM Supreme Court to

grant relief from prior judgments, the decisions of the TT High Court in this instance

should not be given res judicata effect. Plaintiff has not shown, however, that the

judgments were afflicted with some constitutional infirmity. The argument that the TT

High Court lacked jurisdiction fails as discussed above.

Plaintiff's other contention in this regard is that U.S. cases have not applied res

judicata or collateral estoppel to previous judgments when doing so would result in

manifest injustice or override important public policy. The rule, however, is that only

truly exceptional cases warrant an exception to the normal presumption ofres

judicata, and that such exceptions are to be confined within narrow limits. 18 Charles

A. Wright et al., Federal Practice and Procedure 4426, at 268 (1981).

The principal case on which plaintiff relies, Moch v. East Baton Rouge Parish

School Bd.,[1977] USCA5 813; 548 F.2d 594 (5th Cir. 1977), involved a class action

challenging the apportionment of a school board. The suit was dismissed for failure to

state a claim. The same plaintiffs then brought a second action two years later

challenging the same apportionment. This suit was dismissed on res judicata grounds,

citing the first decision. The Fifth Circuit held that a fundamental change in applicable

law after the first decision was rendered made application of estoppel in the second

action inappropriate. The change in law, regarding the Fifth Circuit and Supreme

Court's opinions on the main issue presented in the case, would have yielded a

different result on plaintiff's claims. I do not find the Moch case in any way analogous

to the case at bar. There has been no fundamental change in the law at a constitutional

level regarding the claims of plaintiff between 1978 and today.

Other cases cited by plaintiff do not help his argument. In United States v.

LaFatch, [1977] USCA6 671; 565 F.2d 81 (6th Cir. 1977), res judicata was not

applied to an earlier judgment where the result would be to allow defendant to benefit

from extortion at the expense of the government; the appellate court viewed this as
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this Court normally will refuse to review the correctness of an earlier Trust Territory

High Court judgment, which has become final through affirmance on appeal or

through lack of timely appeal. Claims that the earlier judgment is ill-reasoned, unfair,

or even beyond the jurisdiction of the High Court typically will not be sufficient to

escape the doctrine ofres judicata.

Hamo, 4 FSM Intrm. at 107. Hamo was a rare case, indeed the only one in the history

of this Court, where the normal presumption that the original court issuing the

judgment acted within its jurisdiction was overcome by evidence of "plain usurpation

of power" outside the pale of the law. Id. at 108. The case at bar presents no such

evidence of improper extension of jurisdiction.

Taken together, the Oliver and Hamo cases reinforce rather than undercut the

principle that TT court judgments are to be given res judicata effect barring extreme

circumstances such as fraud or complete lack of jurisdiction. The cases also hold that

this Court is not bound to follow precedents or reasoning of TT High Court cases in

deciding disputes before it. Plaintiff confuses the fundamental difference between

following a decision as setting a precedent for future cases, and recognizing the

resolution or outcome of a case as between the parties and subject matter of the

particular action adjudicated. The former is rendered optional in the discretion of thecourt by the Judicial Guidance Clause and the holdings of Hamo and Oliver; the latter

is required absent constitutional defect or obvious injustice by the FSM Constitution,

article XV and section 176 of the Compact, as well as Hamo.

(5) The TT High Court was not bound to set out the precise dimensions of the

property in its opinions. The appellate division of this Court has held that boundaries

need not be determined prior to declaring ownership of a parcel of land referenced by

name or general description. Wito Clan v. United Church of Christ, 6 FSM Intrm. 129,

133 (App. 1993). The Court takes judicial notice of an order issued by the trial judge

in Civil Action 142-78 on August 26, 1980, which states that by stipulation the matter

to be tried was "ownership of the land confined within the boundaries of Land

Commission Sketch 166-1." The Order designates Land Commission Sketch 166-1 as

an official court exhibit. The Respondents' (Nanmwarki and Nahnken of Nett) Trial

Brief in Civil Action 142-78, at 5 (Dec. 12, 1980),[7] states that in a pretrial conference

on October 31, 1980, "the parties agreed that the petitioners will amend their

pleadings, and this case will be a quiet title action as to all the land contained in

Sketch No. 166-1." Judicial notice is also taken that the area of the land confined
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within the boundaries of Sketch 166-1 totals approximately 5,019,432 square meters,

or slightly more than 1,250 acres. Therefore, plaintiff must be charged with at least

imputed notice, if not actual notice, that the property designated "Mpomp" by the trial

court included all of the acreage shown on Sketch 166-1. [8] Whether or not this

accorded with the historical definition of the area of Mpomp is immaterial, since the

plaintiff had notice of what was being litigated and consented.[9]

Therefore, the TT High Court trial court judgment, affirmed on appeal, can not

be attacked for either vagueness of property description or lack of notice to the

Nahnken.

(6) The plaintiff in his amended complaint requests damages for his loss of use

of the property in question. He does not claim damages for or on behalf of the peopleof Nett. He has not brought the present case as a class action. He comes before this

Court, therefore, in the same posture as an individual party that he assumed in the TT

High Court litigation, and is bound by the judgment rendered.

Even if the Court were to construe the plaintiff to be acting as representative

for the people of Nett in the present action, plaintiff can not escape application of

collateral estoppel to his present claims based on the same set of facts regarding

Mpomp simply by claiming to act in a different capacity. 50 C.J.S. Judgments 756

(1947); 46 Am. Jur. 2d Judgments 538, 539 (1967).

IV. LACHES

Because plaintiff's entire claim is based on characterizing the land at issue as

public land, and in the foregoing analysis the Court rejects this premise, I need not

discuss other issues raised by the parties. However, I note that even if the Court were

to accept plaintiff's argument that the land in question was and is public land,independent grounds exist for granting summary judgment in favor of defendants and

dismissing the action.

The Court finds that plaintiff's claim for damages from loss of use of Mpomp

is foreclosed by the doctrine of laches. With regard to plaintiff's renewed challenge to

the validity of the land transfers concerning this property dating from 1895 to the time

of the TT High Court litigation, this Court concurs with the ruling of the TT High

Court appellate division: "It is our position that the trial court was correct in finding

that the appellants [Nanmwarki and Nahnken of Nett] are barred by the equitable
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doctrine of laches or stale demand from asserting any right or title to the land known

as `Mpomp.'" Nanmwarki, 8 TTR at 291. It is far too late in the day to reallege the

various flaws that might have occurred in the transfers of this property from the Lepen

Nett to Kubary to Domenikus Etscheit, and continuing through the Japanese and Trust

Territory administrations.

The basic elements of the doctrine of laches are (1) inexcusable delay or lack

of diligence by the plaintiff in bringing suit, and (2) injury or prejudice to the

defendant from plaintiff's delay. Costello v. United States, [1961] USSC 19; 365 U.S.

265, 282, 81 S. Ct. 534, 543, 5 L. Ed. 2d 551, 562 (1961). Delay is inexcusable when

the plaintiff knew or had notice of defendant's conduct giving rise to plaintiff's cause

of action, and had prior opportunity to bring suit. 27 Am. Jur. 2d Equity 162 (1966);

Whitney v. Fox, [1897] USSC 109;166 U.S. 637, 17 S. Ct. 713, 41 L. Ed. 1145

(1897) (laches should apply where the delay in assertion of rights is not adequately

explained and such circumstances have intervened in the condition of the opposing

party as to render it unjust to him that plaintiff's cause of action should succeed). The

principle has been previously applied in this Court when a party has failed to assert its

rights for a lengthy period and the opposing party has relied on the first party's

nonassertion of those rights. NIH Corp. v. FSM, 5 FSM Intrm. 411, 414 (Pon. 1992);

KCCA v. Tuuth, 5 FSM Intrm. 118 (Pon. 1991), rev'd on other grounds, 5 FSM Intrm.

375 (App. 1992).

The basic factors supporting application of laches are present in this case. The

defendants' claims were apparent in the first instance in 1957 when the TTPI

government quitclaim deeds to the property were issued to the Etscheits; in the second

instance when the Etscheits brought their civil action in 1978 against the present

plaintiff; and in the third instance in 1983 when the Land Commission issued a

certificate of ownership to Mpomp to the Etscheit family.

Even if one were to assume the date of notice most favorable to plaintiff's

position, 1983, the result is that it took ten years for the plaintiff to bring the present

lawsuit. Plaintiff offers no excuse for this delay of a decade, except to allege that he

had no notice of the issuance of certificates of title to the Etscheits by the Land

Commission until 1992-93. This assertion is undercut in at least two ways. Plaintiff by

his own admission states that he was aware of final denial of his claims by the Land

Commission in 1983 - at page 1 of his Cross-Motion for Summary Judgment, he

responds to defendant PLA's charge that he failed to exhaust administrative remedies

prior to bringing suit by stating, "No further steps need to be taken to finally deny the
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Iso Nahnken's claim. Issuance of title to the Etscheits is the most final possible denial

in writing of the Iso Nahnken's claim to those lands." Second, knowledge of the

relevant law regarding issuance of certificates of title following court determinations

of ownership must be imputed to plaintiff, the losing party in TT High Court case.

Section 108(5) of Title 67 of the Trust Territory Code states:

If a claim has been referred by a commission to the trial division of the high court

without any determination by the commission, the trial division of the high court

shall, after the time for appeal from its decision has expired without any notice of

appeal having been filed or after an appeal duly taken has been determined, certify its

decision, as modified by the appellate division if that has happened, to the land

commission involved. The land commission shall then issue a certificate of title based

on a determination of the commission as provided in section 117 of this chapter.

Section 117 of Title 67 states that the Land Commission shall issue a certificate of

title which "shall be conclusive upon all persons who have had notice of the

proceedings and all those claiming under them and shall be prima facie evidence of

ownership as therein stated against the world . . . ." It is not unreasonable to hold

plaintiff, who was represented by competent counsel at trial and on appeal,

responsible for the knowledge that once a court made a determination of ownershipthe Land Commission was required to issue a certificate of title pursuant to the court's

ruling. There was no need for, and indeed the Land Commission was not authorized to

conduct, separate additional proceedings requiring public notice on the issue of

ownership of Mpomp prior to issuing certificates of title to the Etscheits. See 67 TTC

112.

The Court concludes that plaintiff did know or should have known since 1983

of the Etscheits' title to the 1,250 acres of Mpomp. Yet plaintiff did not raise his claim

for money damages for loss of the property until 1993. A change of attorneys years

after the fact and discovery of new legal arguments does not overcome the application

of laches to bar claims that could have been made at least ten years earlier. Prejudice

to the defendant in permitting such claims to go forward is readily apparent in this

case, since all parties opposing this action had a reasonable right to assume that

litigation over the property was closed in 1982 with the TT High Court appellate

decision. Defendants should not have to be hauled into court again to relitigate issues

decided ten or more years ago.


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Plaintiff has suggested that laches may not be asserted against government

lands. As discussed above, the land at issue is not government land. Even if it were,

plaintiff has not cited relevant supporting authority for his view. In suits brought by

the U.S. government it has been held that laches cannot be asserted as a defense

against claims founded on sovereign right or exercise of a governmental function. 27

Am. Jur. 2d Equity 156 (1966). However, this exemption is personal to the sovereign

and does not pass to another litigant. Id. Specifically, where a suit is prosecuted in the

name of the government but on behalf of an individual, laches may apply as a bar. Id.

Thus in this case if the land in question were government land, the inapplicability of

laches would be only with respect to the government as the party bringing the later

claim, not a third party private individual charging breach of duty by the government.

In other words, the Nahnken can not stand in the place of either the Trust Territory

government or a branch of the former district or state government of Pohnpei, such as

PLA, in invoking a sovereign rights exemption from laches as a bar to suit. This is

especially true in light of the fact that all of the governmental entities involved in this

lawsuit concur that the land at issue has been lawfully owned by the Etscheits for the

entire relevant time period.

Plaintiff's claims to Sapwetik and Taketik are barred by laches for similar

reasons. Although not part of the TT High Court actions concerning ownership of

Mpomp, both areas were included in the 1956 MOU and 1957 quitclaim deeds. Forthe reasons discussed above,seesupra note 7, the Nahnken must be charged with

notice of the Etscheits claim to these areas at least as early as December 1978. He has

not asserted any claim to them in court until 1993. Sapwetik was the subject of Land

Commission proceedings in 1984, and the Land Commission issued a Determination

of Ownership in favor of the Etscheits on October 22, 1984. The plaintiff claims that

he cannot be bound by this determination because he had no notice of the

proceedings. The record indicates, however, that plaintiff was present at the Land

Commission proceedings representing Nett municipality's claim to the property. SeeTranscript of Testimonies of Hearing to Land T-75119 and T-75120 (Sapw[i]tik

Island), attached as Exhibit "A" to Etscheit Defendants' Motion to Supplement

Summary Judgment Memorandum (July 4, 1994).1[0] The record also shows that

plaintiff was served with notice of formal hearings regarding this matter on at least

one occasion.1[1] The Land Commission decision, stating Determination of Ownership

of Sapwetik was found in favor of the Etscheits, was issued as a public notice. See Ex.

"E" to Etscheits' Motion to Supplement. Therefore, plaintiff knew or should have

known that the Etscheits were the publicly declared owners of Sapwetik at least as of

October 22, 1984.1[2]
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With regard to Taketik there apparently has been no Land Commission

determination of ownership. However, plaintiff has had notice and opportunity to

raise a claim for loss of use of Taketik at least since 1978, when he had cause to be

aware of the 1956 MOU and 1957 deeds including Taketik. Plaintiff alleges that he

has only recently become aware that the Etscheits acquired a few acres in Taketik, but

provides no evidence to rebut the documents submitted by defendants dating from the

outset of the TT High Court litigation indicating that plaintiff was made aware of the

contents of the 1956 MOU and 1957 deeds.

V. APPLICATION OF 48 U.S.C. 1501ET SEQ.

Plaintiff argues that 48 U.S.C. 1501 et seq., and 1503 in particular,required the Etscheits as aliens to dispose of any landholdings in the Trust Territory

within ten years of acquisition. As a result, the 1957 quitclaim deed to the Etscheits by

the Trust Territory government was illegal and void.

48 U.S.C. 1501 et seq. was enacted by the U.S. Congress in 1887 and

amended in 1897. Plaintiff has cited no authority for extending this particular statute

to the TTPI, created in 1947 by the United Nations Trusteeship Agreement for the

Former Japanese Mandated Islands ("Trusteeship Agreement," entered into force July

18, 1947, 61 Stat. 397, T.I.A.S. No. 1665, 8 U.N.T.S. 189). Plaintiff suggests that the

TTPI was akin to an organized U.S. territory and included by inference within the

purview of the U.S. Code provision since the U.S. Congress never stated at any time

after the creation of the TTPI that this particular statute did not apply.

Plaintiff misunderstands the legal status of the TTPI. Article 1 of the

Trusteeship Agreement states that the TTPI is designated as a "strategic area and

placed under the trusteeship system established in the Charter of the United Nations."

The trusteeship system is described and defined at arts. 75-91 of the United NationsCharter. Article 77 of the U.N. Charter states that U.N. trust territories include

territories then held under League of Nations mandate, or which were detached from

enemy states as a result of World War Two. Article 83 states that the Security Council

must approve the terms of any trusteeship agreement relating to strategic areas, as

well as any amendments of terms. Article 87 provides that the U.N. General Assembly

and the Trusteeship Council (composed of Security Council members) shall monitor

on a continuing basis the administration of the trust territories. Under article 2 of the

Trusteeship Agreement, the U.S. is designated the administering authority of the


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TTPI. Therefore, the status of the TTPI was that of a strategic trust under the general

jurisdiction of the Security Council and General Assembly of the U.N., administered

by the U.S. government. This is not the same legal status as a U.S. territory, either

incorporated or unincorporated, obtained by formal cession from another sovereign or

acquired through military conquest.1[3]

This fact was the basis of decision in Gale v. Andrus, 643 F.2d 826 (D.C. Cir.

1980), a case construing whether the U.S. Freedom of Information Act, 5 U.S.C.

551, applied to the TTPI. The court in Gale concluded that "[u]ltimate review of the

Trust Territory remained in the hands of the United Nations Trusteeship Council and

Security Council." Gale, 643 F.2d at 829. With regard to what U.S. laws applied to the

TTPI, article 3 of the Trusteeship Agreement provided that the United States "may

apply to the trust territory, subject to any modifications which the administering

authority may consider desirable such of the laws of the United States as it may deem

appropriate to local conditions and requirements." Trusteeship Agreement art. 3. In

accordance with the Trusteeship Agreement, therefore, the Gale court concluded that

"[t]he laws of the United States do not automatically apply to the Territory unless they

are specifically made applicable by Congress." Gale, 643 F.2d at 830 (emphasis in

text). Article 3 has been interpreted to mean that for any particular U.S. statute to

apply to the TTPI, Congress must have specifically manifested such an intent either in

the language of the statute itself or in the legislative history. Id. at 834; People ofEnewetak v. Laird, 353 F. Supp. 811, 815 (D. Haw. 1973). There is no such intent

shown with respect to 48 U.S.C. 1501 et seq., and the statute has never been

amended to include the TTPI. Therefore I conclude that the statute does not apply to

the TTPI.

VI. SOVEREIGN IMMUNITY OF THE UNITED STATES

The plaintiff contends that the United States breached its duty to ensure that

all Trust Territory laws and regulations were enforced, and is liable to plaintiff for

damages as a result. The U.S. duty was breached in two principal ways: (1) by

allowing the Alien Property Custodian to quitclaim Mpomp in 1957, and by allowing

the Land Commission to issue certificates of title to Mpomp in 1983 and a

Determination of Ownership to Sapwetik in 1984.

The actions of the Trust Territory government and the Alien Property

Custodian in 1956-57, and the Pohnpei Land Commission in 1983-84, are not
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actionable by plaintiff as against the United States for recovery of damages for the

reasons discussed above regarding laches and res judicata. Aside from these grounds

and taking as correct plaintiff's assertion of the property in this case as being public

land, plaintiff cannot maintain this action against the U.S. for reasons of sovereign

immunity and lack of actionable conduct.1[4]

The first breach by the U.S., according to plaintiff, concerns the actions of the

Trust Territory government in transferring the property to the Etscheits in 1956-57.

This violated article 6(2) of the Trusteeship Agreement by failing to protect the TTPI

inhabitants from loss of lands.

The Trusteeship Agreement does not provide individuals with a private cause

of action for damages for alleged breach of any of its provisions. Alep v. UnitedStates, 6 FSM Intrm. 214, 217 (Chk. 1993); Temengil v. Trust Territory of the Pacific

Islands, [1989] USCA9 629; 881 F.2d 647, 653 (9th Cir. 1989). Therefore plaintiff

cannot maintain his action on these grounds.

Plaintiff relies further on Secretarial Order 3039, section 3(a), which mandated

that the High Commissioner of the Trust Territory continue "to exercise all authority

necessary to carry out the obligations and responsibilities of the United States under

the 1947 Trusteeship Agreement, in order to ensure that no action (sic) are taken that

would be inconsistent with the provisions of such Trusteeship Agreement, this Order,

and with existing treaties, laws, regulations, and agreements generally applicable in

the Trust Territory of the Pacific Islands." No authority has been found for interpreting

this Order as providing a private right of action for money damages against the U.S.

government based on alleged breach by the High Commissioner.

Plaintiff has cited section 174(d) of the Compact of Free Association as a basis

for suing the U.S. Section 174(d) waives the sovereign immunity of the U.S. in the

courts of the FSM for certain types of claims, among them tort cases "in whichdamages are sought for . . . damage to or loss of property occurring where the action

is brought."

Since this case is one "in which damages are sought for . . . loss of property

occurring where the action is brought," section 174(d) would appear to allow

plaintiff's action on its face. Section 174(d) is a limited waiver of sovereign immunity.

It must be read in conjunction with section 174(c), which allows for courts of the

FSM to adjudicate claims against the Trust Territory government, or the United States

in its place. Section 174(c) does not create new causes of action or remedies beyond
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what was available to private litigants before the Compact. See Alep, 6 FSM Intrm. at

219. What was available to private plaintiffs in tort actions against the Trust Territory

can be found at 6 TTC 251(1)(c), which permitted

[c]ivil actions against the government of the Trust Territory on claims for money

damages, accruing on or after September 23, 1967, for injury or loss of property, or

personal injury or death caused by the negligent or wrongful act or omission of any

employee of the government while acting within the scope of his office or

employment, under circumstances where the government of the Trust Territory, if a

private person, would be liable to the claimant in accordance with the law of the place

where the act or omission occurred.

6 TTC 251(1)(c). Therefore, as applied to the facts of this case, plaintiff cannot rely

on section 174(c) and (d), or 6 TTC 251(1)(c), to maintain a lawsuit against the

United States for any actions of government employees resulting in loss of property to

plaintiff prior to September 23, 1967.

In regard to alleged tortious actions of Trust Territory (or the United States

standing in its place) after September 23, 1967, the government is subject to liability

for loss of property only under circumstances where a private person would be liable

to claimant for similar acts. See Ikosia v. Trust Territory, 7 TTR 275, 277 (Yap 1975).

Under the facts as alleged by plaintiff, there is no tortious action in depriving plaintiff

of the use of the property in question for which a private person could be held liable

because the acts complained of, i.e. declaring title to the property in the Etscheits,

could only be accomplished by the administering governmental authority.1[5] If a

private person attempted to transfer title to public lands to the Etscheits it would not

constitute a tort resulting in loss of property because the entire act would be void from

inception. The Court concludes therefore that plaintiff's suit is not of a class to which

the United States government has waived its immunity.

With regard to the actions of the Pohnpei Land Commission concerning this

property, the Court does not find any actionable conduct attributable to the United

States. Secretarial Order 2969, section 3 gave the district legislature "exclusive

authority" to create a legal entity with exclusive responsibility and supervision of

public lands. This grant of authority provided for the creation of the PLA. Section 3 of

S.O. 2969 also gave the district legislature the authority to create a new adjudicatory

body to resolve disputes relating to public lands transferred to PLA. As has been
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discussedsupra, the Ponape district legislature had not created this new adjudicatory

body as of 1983-84, when the Land Commission acted with respect to the property in

this case. The United States could not assume responsibility for the absence of another

adjudicatory body for public land disputes as authorized by section 3(b) of S.O. 2969,

since the exclusive authority to establish such a body had been transferred to the

Ponape district legislature. No legal authority has been found for the proposition that

the United States could have and should have forced the Pohnpei district legislature to

act in establishing a public lands adjudicatory body.

Section 4 of S.O. 2969 gave the High Commissioner authority to convey all

right, title and interest of the TTPI government in public lands to the district legal

entity created under section 3. The High Commissioner exercised this authority with

respect to Pohnpei by execution of a quitclaim deed to all public lands defined by

Secretarial Order 2969, section 2(c) to the PLA on February 15, 1979. 1[6] Therefore,

after February 15, 1979, the United States no longer retained any interest in or

administrative responsibility for public land in Pohnpei.

Similarly, even accepting as correct plaintiff's contention that the Land

Commission possessed no authority to decide ownership or issue certificates of title to

the property in this case, such action cannot be construed to create liability of the

United States government. The Land Commission was established by 67 TTC 101,102 under the administrative authority of the Trust Territory chief of lands and survey.

This fact did not make the Land Commission an agency of the United States

government. See McComish v. Commissioner, 580 F.2d 1323, 1328 (9th Cir. 1978);

Porter v. United States, 496 F.2d 583, 589 (Ct. Cl. 1974) (holding that the Trust

Territory government was not a U.S. federal agency). Therefore any action of the

Land Commission in excess of its statutory authority would be actionable only against

the Commission itself, not the United States.

For all of the above reasons, the plaintiff's action against the United States is

dismissed.

CONCLUSION

As against defendants Pohnpei Public Lands Authority and the Etscheits,

plaintiff may not recover on his claims as a matter of law on grounds of res judicata.

Regardless of the veracity of his allegations, his claims are barred by laches. As

against the United States, the action must be dismissed for failure to state a claim
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upon which relief may be granted, FSM Civ. R. 12(b)(6), on grounds of sovereign

immunity and lack of a showing of actionable conduct by the U.S.

With regard to the property known as Mpomp, the Court notes that the

plaintiff had his day in court long ago and was not deprived in any way of a full and

fair opportunity to litigate all of his claims based on ownership of the land at that

time. With regard to Sapwetik and Taketik, the Court finds that plaintiff must be held

at minimum with a responsibility and reasonable opportunity to have discovered and

challenged the Etscheits' claim of ownership and any damages to plaintiff resulting

thereof at least ten years ago. This is not a case in which public information was

purposely concealed or made unavailable absent extraordinary effort. The Court

stands ready to assist litigants with claims that are well-grounded in law and diligently

brought. At the same time the Court must strive to ensure that the final judgments

fairly rendered are upheld, so that all interested parties may know when an issue has

been justly concluded. In the case at bar, all of the defendants were entitled to rely on

the conclusiveness of prior decisions recognizing ownership of the property in the

Etscheit family. To allow plaintiff to question this conclusiveness after passage of a

decade in the form of a request for damages would ill serve the interests of justice and

the judicial system of this young nation.

UN Charter Article 77 Territory Definition Caselaw Nahnken of Nett v United States of America (1994

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