Supreme Court of Palau

We agree that the Tab Lineage holding applies here. While this Court has often listed the elements of a return of publics claim as requiring solelyolely that the claimant show that “(1) he or she is a citizen who has filed a timely claim; (2) [he or] she is either the original owner of the land, or one of the original owner’s ‘proper heirs;’ and (3) the claimed property is public land which attained that status by a government taking that involved force or fraud, or was not supported by either just compensation or adequate consideration,” the third enumerated element has, implied in the name of the claim itself, a sub-element—that the lands in question must be public. Koror State Pub. Lands Auth. v Giraked, 20 ROP 248, 251 (2013) (quoting Palau Pub. Lands Auth. v Ngiratrang, 13 ROP 90, 94 (2006)). Because a claimant cannot ask for the return of public lands without conceding that the government at some point took ownership of the lands, a Tochi Daicho listing that identifies the lands as public does not trigger the presumption of accuracy and its concomitant heightened standard of proof if the basis of return of public lands claim is that the taking preceded the Tochi Daicho survey. See also Ngirausui v Koror State Pub. Lands. Auth, 18 ROP 200, 204 (2011) (holding claimants in a return of public lands claim to the preponderance of the evidence standard despite an adverse Tochi Daicho listing); Kerradel v Ngaraard State Pub. Lands. Auth., 9 ROP 185, 185–86 (2002) (quoting Carlos v Ngarchelong State Pub. Lands. Auth, 8 ROP Intrm. 270, 272 (2001)) (distinguishing superior title claims, which have been subject to the Tochi Daicho presumption since “before the enactment of the Constitution,” from constitutionally-created return of public lands claims).

Although KSPLA actually concedes this crucial point about Tab Lineage in its briefing,^[4] it then argues that “the [Tab Lineage] Court determined that the Tochi Daicho listing[s] in return of public land claims are important in assisting the claimant’s burden of proof in showing that it owned the land prior to its taking.” But the portion of the Tab Lineage opinion relied upon by KSPLA only applies where the Tochi Daicho listing is in the claimant’s name and when the taking occurred after the Tochi Daicho survey. Because the Appellants in this case argue the existence of a taking prior to the Tochi Daicho survey, and because the Tochi Daicho listing for Tochi Daicho Lot 247 is not in a claimant’s (or any individual’s) name, the exception recognized in Tab Lineage is inapplicable here.

What we noted in Tab Lineage is that the Tochi Daicho, despite not being given presumptive weight, may have some relevance, such as where it assists or otherwise clarifies a return of public lands claim. Tab Lineage, 11 ROP at 168 n.7. The Tochi Daicho listing for TD 399, for example, clearly supports Kebekol’s claim that TD 399 was property of Iterir prior to any taking that may have occurred following the Tochi Daicho survey. So, assuming Kebekol were shown to be the proper successor in interest to Iterir, this would be relevant to a return of public lands claim for TD 399. However, because the Land Court found that the Lot is part of TD 247, and because we find no error in that conclusion, the relevant Tochi Daicho listing for the Lot is TD 247, which lists the land as held by the Japanese Government—meaning that any taking, as Appellants allege, had already occurred prior to the Tochi Daicho survey. This is the essence of what Tab Lineage held, and we can see no factual basis here for distinguishing this case. That is, the Appellants here must concede that the Lot became public at some point in time in order to pursue a return of public lands claim at all; thus, they need not rebut the Tochi Daicho presumption by clear and convincing evidence.

We wish to make a final note about this issue regarding the proper standard of proof in these cases. Both KSPLA and the Land Court have cited to a portion of dicta contained in Tmetbab Clan v Koror State Pub. Lands Auth, 16 ROP 91 (2008), which, on its face, contradicts the holding in Tab Lineage. That is, the Court in Tmetbab Clan indeed stated that, “[t]o meet the second element of a return of public lands claim, Appellant must overcome the Tochi Daicho, which states that Nanden [the land at issue in the case] was owned by Masaichi Kochi. To overcome the Tochi Daicho’s presumption of correctness, a claimant must . . . show . . . evidence that . . . would amount to clear and convincing evidence that the listing was wrong . . . .” Id. at 94 (emphasis added). However, this isolated statement, which implies that the clear and convincing standard should be applied with respect to one element of a return of public lands claim, but which we can find nowhere else in our case law,^[5] lacks precedential value. The portion of the opinion in which it is located focused on describing the basis for the Land Court’s opinion—it was not ruling on the validity of the Land Court’s application of the presumption. In fact, it could not have done so, because that portion of the Land Court’s opinion was not appealed.^[6] Indeed, the issue decided in Tmetbab Clan involved whether the Land Court improperly applied the prohibited doctrines of laches and stale demand in denying appellant’s return of public lands claims. After reviewing the record, this Court determined that the Land Court did not apply the prohibited doctrines and therefore affirmed the Land Court decision. Id. at 94. To the extent that Tmetbab Clan can be read to suggest the presumption applies in a return of public lands case, it is inconsistent with Tab Lineage and other cases correctly applying the law, and we hereby distance ourselves from this misleading dictum. Because the statement occurs in dicta and is not essential to the holding of the case, we decline to go so far as to overrule Tmetbab Clan.^[7]

In any event, the controlling law on this issue is that “a claimant seeking the return of land pursuant to Article XIII [of the Constitution] and § 1304 nee rebut the Tochi Dahi Daicho,” because “in a return of public lands case pursuant to Article XIII and § 1304, taimant does not seek seek tllenge the government’s ownership of the land.”8221; Tab Lineage, 11 ROP at 168. Accordingly, the Tochi Daicho preion should not have been applied in the context of these rese return of public lands claims, so we reverse the decision of the Land Court and remand for further review under the preponderance of the evidence standard. We note, however, that this instruction on remand in no way suggests that the Land Court is required to engage in a retrial of the case. The Land Court is to review the evidence in the record under the preponderance of the evidence standard, and, upon determining whether either Appellant has met her burden under this standard, issue a new Determination of Ownership.

II. Further Arguments on Appeal

Appellants also raise a number of dubious factual challenges and legal arguments on appeal, which this Court declines to address at length. Suffice it to say, factual challenges that amount to little more than conclusory statements about the Land Court’s discretionary task of weighing the evidence border on the frivolous. For example, claiming that (1) “the Land Court should have looked at the evidence presented and [found] that the land before it was part of the land known as Takudel and taken by Japan and their nationals,” (2) that “the evidence indisputably establish[es] that Ngiraked owned TD Lot 247 at the time it was taken by the Japanese Government,” (3) that the court, when considering a hypothetical possibility, “[found] or conclu[ded] that the Japanese acquisition of TD Lot 247 was made in a proper manner,” and (4) that the court’s alleged “finding or conclusion was the result of pure speculation,” belies a fundamental misapprehension of the nature of the standard of review on factual matters.

We note these factual arguments, unsuccessful as they may be, to remind the parties what we have stated on numerous occasions: “[w]here there are two permissible views of the evidence, the court’s choice between them cannot be clearly erroneous.” Koror State Pub. Lands Auth. v Giraked, 20 ROP 248, 250 (2013) (quoting Rengchol v Uchelkeiukl Clan, 19 ROP 17, 21 (2011) (citing Ngirmang v Oderiong, 14 ROP 152, 153 (2007))) (emphasis added); Isechal v Umerang Clan, 18 ROP 136, 142 (2011) (same); Children of Masang Marsil v Napoleon, 18 ROP 74, 77 (2011) (same). See also Ngirakesau v Ongelakel Lineage, 19 ROP 30, 34 (2011) (citing Remeskang v West, 10 ROP 27, 29 (2002)) (“It is not clear error for the Land Court to give greater weight to certain evidence so long as one view of the evidence supports the fact finder’s decision.”); Ebilklou Lineage v Blesoch, 11 ROP 142, 144 (2004) (quoting ROP v Ngiraboi, 2 ROP Intrm. 257, 259 (1991)) (“It is not the appellate panel’s duty to reweigh the evidence, test the credibility of witnesses, or draw inferences from the evidence.”).

“Given the standard of review, an appeal that merely re-states the facts in the light most favorable to the appellant and contends that the Land Court weighed the evidence incorrectly borders on frivolous.” Giraked, 20 ROP at 250. While the Land Court erred when it applied a heightened burden of proof to Appellant’s claims, we do not see any indication that the Land Court improperly disregarded admissible evidence, relied on inadmissible evidence, came to an unsupportable conclusion, or otherwise did anything to leave us with “a definite and firm conviction that an error [of fact] has been made” as to any of the Land Court’s intermediate factual findings prior to its ultimate decision. See Rengchol v Uchelkeiukl Clan, 19 ROP 17, 21 (2011). So, while Appellants are entitled to a review of their claims under the preponderance of the evidence standard, for which limited purpose we now remand this case, in the event that the Land Court determines Appellants also have failed to meet their burden under the preponderance standard this Court will not be inclined to hear further argument attempting to re-litigate factual issues already decided by the trial court.^[8] Even to the extent that some of these factual arguments may be supported by some evidence in the record, none constitute anything even resembling a potentially meritorious ground for appeal.

Moreover, Appellant’s legal arguments unrelated to the Tochi Daicho presumption, including, but not limited to, estoppel and res judicata, were either not presented to the Land Court in the underlying action or are so clearly unsupported by the record that they do not warrant serious consideration. Accordingly, we deem them waived or appropriate for dismissal without further discussion.

CONCLUSION

Because the Tochi Daicho presumption does not apply to a return of public lands claim, the decision of the Land Court is REVERSED. The Land Court’s findings and

Determination of Ownership are VACATED, and the case is REMANDED for a review of the evidence and redetermination of whether either Appellant has met her burden under the preponderance of the evidence standard. Following such a determination, a new Determination of Ownership shall issue.

SO ORDERED, this 6^th day of March, 2015.

R. ASHBY PATE

Associate Justice

HONORA E. REMENGESAU RUDIMCH

Associate Justice Pro Tem

KATHERINE A. MARAMAN

Part-Time Associate Justice

^[1] Although Appellant Giraked requests oral argument, we determine pursuant to ROP R.App.P. 34(a) that oral argument is unnecessary to resolve this matter.
^[2] George Kebekol brings this claim in the name of his mother, Rose Kebekol. This bears no significance from a legal perspective, so they are referred to collectively as Appellant Kebekol.
^[3] While it is clear that the Land Court required Appellant Giraked to rebut the Tochi Daicho presumption by clear and convincing evidence, it is unclear to what standard of proof the Land Court held Appellant Kebekol. The Land Court headed its Findings of Fact as being "[b]ased on the preponderance of the credible evidence," suggests that the claims were considered entirely under the preponderance standard. However, in a series of enumerated paragraphs under that heading, the Land Court proceeded to note that Appellant Giraked was required to rebut the Tochi Daicho presumptions by clear and convincing evidence, yet makes no such mention with regards to Appellant Kebekol's claims. Because the Land Court held at least one claimant to the clear and convincing evidence standard, and because we can find no reason in the record or the law why the Kebekol and Giraked claims would be subject to different standards of proof, we infer that the Land Court applied clear and convincing standard to both claimants.
^[4] See Appellee’s Opp. 8–9 (quoting Tab Lineage, 11 ROP at 168 n.7) (“In determining this, the Court in [Tab Lineage] stated therefore that ‘the evidentiary standard for challenging a Tochi Daicho presumption of ownership is thus inapplicable in such cases.’”).
^[5] In fact, Tmetbab Clan appears to be the only case cited by the parties or found by the Court in which the presumption was applied in a return of public lands case at all. But c.f., Ngirausui, 18 ROP at 204 (cited by Appellee despite applying the preponderance of the evidence standard in a return of public lands claim against an adverse Tochi Daicho listing).
^[6] In the underlying Land Court case in Tmetbab Clan, the Land Court applied the Tochi Daicho presumption and found that claimants failed to present any evidence that the Japanese National listed in the Tochi Daicho as the owner of the land had wrongfully acquired the land – a fundamental element of a return of public lands claim – but the appellants did not contest this on appeal. See also Ebilklou Lineage v Blesoch, 11 ROP 142, 144 (2004) (applying the presumption in a superior title claim, but quoted in Tmetbab Clan merely to explain the nature of the presumption). It is unclear from the record why, given our decision in Palau Public Lands Authority v Tab Lineage, 11 ROP 161 (2004), the application of the presumption was not appealed (and consequently was not addressed by the Appellate Division). Compare Palau Pub. Lands Auth. v Ngiratrang, 13 ROP 90, 93–94 (2006) (“At all times, the burden of proof remains on the claimants, not the governmental land authority, to establish, by a preponderance of the evidence, that they satisfy all the requirements of [35 PNC § 1304(b)]”), with Kerradel v Ngaraard State Pub. Lands Auth., 14 ROP 12, 15 (2006) (“Because this is not a return of public lands case, Kerradel has the burden of showing by clear and convincing evidence that the Tochi Daicho listing was wrong.”) (emphasis added).
^[7] Although certainly misleading, the statement from Tmetbab Clan relied upon by KSPLA and the Land Court occurs in the text immediately after our Court’s correct statement of the law—“Appellant bears the burden of establishing by a preponderance of the evidence that he or she satisfies all the requirements of 1304(b).” Tmetbab Clan, 16 ROP at 94 (citing Ngiratrang 13 ROP at 93-94). Read in context—as opposed to selectively plucked from the paragraph—a more reasonable reading of the statement is as a broader reference, albeit ambiguous, to the relevance of the Tochi Daicho listing in a case involving an individual owner’s name appearing in the Tochi Daicho. Because Tmetbab Clan involved just such a listing—as opposed to a Tochi Daicho listing showing the land was held by a public entity, which is the case here as it was in Tab Lineage—Tmetbab Clan is distinguishable on this ground as well.

^[8] We would be remiss if we did not remind the parties of ROP R. App. Proc. 38, which provides that “[i]f the Appellate Division determines that an appeal is frivolous, it may award just damages, including attorney’s fees, to the Appellee.