FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 1990-075
Damarlane v. United States
6 FSM Intrm. 357 (Pon. 1994)

IGNACIA DAMARLANE et al.,
Plaintiffs,

vs.

UNITED STATES OF AMERICA, POHNPEI
STATE, POHNPEI TRANSPORTATION
AUTHORITY, THE FEDERATED STATES OF
MICRONESIA, and JOHN DOES 1- 21,
Defendants.
__________________________________________

OPINION

Richard H. Benson
Associate Justice

Decided: March 23, 1994

APPEARANCES:

For the Plaintiff:	Mary Berman, Esq.
P.O. Box 163
Kolonia, Pohnpei FM 96941

For the Defendant:	Daniel J. Berman, Esq.
(United States)	Rush, Moore, Craven, Sutton, Morry & Beh
2000 Hawaii Tower
745 Fort Street
Honolulu, HI 96813-3862

For the Defendants:	Joi L. Saylor, Esq.
(Pohnpei State & PTA) Assistant Attorney General
Office of the Pohnpei Attorney General
Kolonia, Pohnpei FM 96941

For the Defendant:	Douglas Juergens, Esq.
(FSM)			Chief of Litigation
Office of the FSM Attorney General
P.O. Box PS‑105
Palikir, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Summary Judgment
Normally a Rule 12(c) motion for judgment on the pleadings is granted or denied upon the entire complaint, and the rule does not provide for partial judgment as in Rule 56(d) summary judgment, but where the briefing was exhaustive, full argument made, and such a judgment promotes an expeditious disposition of matters placed before the court, partial judgment may be granted. Damarlane v. United States, 6 FSM Intrm. 357, 359 (Pon. 1994).

Trusteeship Agreement
A breach of the Trusteeship Agreement by the United States does not give rise to a right to monetary damages by private citizens. Damarlane v. United States, 6 FSM Intrm. 357, 360 (Pon. 1994).

Statutes; Torts
Where a statute creates a cause of action and then places exclusive, original jurisdiction over all controversies arising from that cause of action in a particular court, another court will have no jurisdiction to entertain claims under that statute. Damarlane v. United States, 6 FSM Intrm. 357, 360 (Pon. 1994).

Torts
Various environmental acts that do not provide for a private citizen's cause of action for monetary damages cannot be used to create a duty for the breach of which damages may be awarded. Damarlane v. United States, 6 FSM Intrm. 357, 360-61 (Pon. 1994).

Property; Statutes of Limitation; Torts - Negligence
An action for damages for negligent surveying is not an action for the recovery of an interest in land, for which the twenty year statute of limitation would apply, therefore it may be barred by the lesser statue of limitations. Damarlane v. United States, 6 FSM Intrm. 357, 361 (Pon. 1994).

Torts - Damages
There is no authority to award punitive damages against a foreign national government even when it is otherwise liable for damages. Damarlane v. United States, 6 FSM Intrm. 357, 361 (Pon. 1994).

International Law
Under international law punitive damages are but rarely and then only reluctantly allowed against foreign national governments. Damarlane v. United States, 6 FSM Intrm. 357, 361 (Pon. 1994).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

This case came before me on the motion of the United States of America, filed March 3, 1992, for judgment on the pleadings, FSM Civ. R. 12(c), and for summary judgment, FSM Civ. R. 56.

The plaintiffs seek monetary damages for the injuries alleged to have occurred as a result of dredging and allied activities in the lagoon adjoining their property at Mensenpal, U Municipality, Pohnpei State. The United States is sued as the administering authority of the Trust Territory and as standing in the place of the Government of the Trust Territory of the Pacific Islands pursuant to section 174(c) of the Compact of Free Association.

The third amended complaint contains 12 causes of action for compensatory damages, and final cause action for punitive damages. The United States is a defendant eight of the causes of action.

The motion and supporting memorandum of the United States consists of 32 pages to which is attached several exhibits. The plaintiffs' opposition contains 24 pages, to which the United States replied with an 18 page memorandum plus exhibits. The plaintiffs then closed written argument by filing a 14 page response. Oral argument before former Chief Justice King was held April 1, 1992.

I recite this history to support my belief that the parties had a full opportunity to set out their respective positions, and did so. This factor is important because of the nature of the motion. The United States asks for dismissal of the complaint as to it. It does not distinguish between the two rules relied upon, FSM Civ. R. 12(c) and 56, nor describe the effect of considering matters outside of the pleadings, FSM Civ. R. 12(c). It fails to identify the ground upon which dismissal is warranted.

Because the briefing was exhaustive and the rules clear, I have considered most of the points raised by the United States as placing at issue whether the claims are those for which relief can be granted, a defense reserved under FSM Civil Rule 12(h)(2).

Normally a Rule 12(c) motion is granted or denied upon the entire complaint, and the rule does not provide for partial judgment as in Rule 56(d). This order does give partial judgment because the full argument allows me to understand the position of the parties and such a judgment promotes an expeditious disposition of matters placed before me. FSM Civ. R. 1; 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1369, at 537 n.23 (2d ed. 1990).

In this order I have only specified the partial relief granted the United States. Its motion as to causes of action not stated herein is denied.

FIRST AND THIRD CAUSES OF ACTION

The first cause of action alleges that the United States had a duty under the "Trusteeship Agreement for the Trust Territory of the Pacific Islands and various laws of the FSM, TTPI and United States" regarding protection of the environment and protecting the plaintiffs from loss of their land and resources. The plaintiffs allege that the United States breached that duty.

The third cause of action alleged a duty under the Trusteeship Agreement and "various United States Federal environmental protection laws . . . ."

In its motion the United States invited the plaintiffs to identify the statutes relied upon in these two causes of action. In their opposition the plaintiffs identified the statutes which appear in the next paragraph.

The United States contends that neither the Trusteeship Agreement or any of the statutes can be a basis for the plaintiffs' claims in these causes of action. A careful consideration of the arguments presented leads to the following conclusions of law:

1. Trusteeship Agreement. A breach of the Trusteeship Agreement by the United States does not give rise to a right to monetary damages by private citizens. Alep v. United States, 6 FSM Intrm. 214, 217 (Chk. 1993).

2. National Environmental Policy Act, 42 U.S.C. § 4321 et seq. This act cannot be the basis of a claim against the United States standing in the place of the Trust Territory because an action of the Trust Territory is not "federal action" within the meaning of the act. People of Saipan v. Department of Interior, 502 F.2d 90, 96 (9th Cir. 1974).

The motion does not address the availability of the National Environmental Policy Act as a basis for a cause of action against the United States.

3. Water Pollution Prevention and Control Act, 33 U.S.C. § 1251 et seq. This act gives private citizens no right of action for monetary damages, and this act cannot therefore be a basis for the plaintiffs' claim for damages.

4. Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. This act provides that "the United States district courts shall have exclusive original jurisdiction over all controversies under this Act . . . ." 42 U.S.C. § 9613(b) (emphasis added). Therefore this court has no jurisdiction to entertain any claims brought under this act.

In addition, the plaintiffs have not exhausted the administrative remedies of the act.

Accordingly, this act cannot be the basis for any claim for monetary damages by the plaintiffs.

5. Rivers and Harbors Act, 33 U.S.C. § 401 et seq. This act has not been made applicable to the Trust Territory, authorizes no citizen's action for damages, and is applicable only to the "navigable waters of the United States," not to the Trust Territory. Plaintiffs conceded the act's inapplicability at oral argument.

This act cannot be the basis for plaintiffs' claim.

6. Air Pollution Prevention and Control, 42 U.S.C. § 7401 et seq. Nothing in the act demonstrates its applicability to the Trust Territory and it fails to provide for monetary damages by a citizen.

This act cannot be a basis for plaintiffs' claim.

7. Noise Control Act, 42 U.S.C. § 4902 et seq. This act does not provide for, or imply, a citizen's action for monetary damages for injuries suffered as a result of a violation.

The act does not provide a basis for the plaintiffs' claims.

SECOND CAUSE OF ACTION

The plaintiffs allege that the United States had a duty under the Trust Territory Environmental Quality Protection Act, 63 TTC 501 et seq., and that the United States breached that duty resulting in the damages for which relief was sought. The United States again contends that the act fails to provide for a citizen's claim for damages, nor should such a right be implied. This contention, supported by argument and authorities, is not disputed by the plaintiffs.

I therefore conclude that the Trust Territory Environmental Quality Protection Act cannot be a basis for the plaintiffs' second cause of action.

Judgment on this cause of action is awarded the United States against the plaintiffs.

FOURTH AND FIFTH CAUSES OF ACTION

The plaintiffs allege that the United States permitted and funded earthmoving operations which resulted in the creation of a nuisance and constituted a trespass for which monetary relief is sought.

The United States contends that these actions are barred by the statute of limitations. The complaint sets out dredging occurring in 1978-1981 and in 1986-1990. As to the earlier dredging, any action for a nuisance or trespass which may have resulted is barred by the statute of limitations. The plaintiffs cannot therefore use the effects of that dredging in support of their claim for damages.

TWELFTH CAUSE OF ACTION

The plaintiffs allege that the United States in the "1970s" negligently surveyed their property resulting in a loss of their land for which damages are sought. This claim is barred by the statute of limitations. (This is not a claim for the recovery of an interest in real property for which the 20 year statute would prevail).

Judgment on this count is awarded the United States against the plaintiffs.

THIRTEENTH CAUSE OF ACTION

The plaintiffs allege that the acts of the United States were done maliciously, etc., justifying an award of punitive damages. The United States contends such an award is without support in reason or the authorities. The plaintiffs have not furnished any case or treatise authority in support of punitive damages being awarded by the court of one country against a foreign government. I have not found any authority authorizing such an award. 8 Marjorie M. Whiteman, Digest of International Law 1215 (1967) (under international law "punitive damages are but rarely and then only reluctantly allowed" against foreign national governments); 6 TTC 253 (government of the Trust Territory not liable for punitive damages). Cf. 28 U.S.C. § 1606 (even when foreign governments not immune from damages punitive damages will not be awarded).

Judgment on this cause of action is awarded in favor of the United States against the plaintiffs.

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