Cite as M/V Kyowa Violet v. People of Rull ex rel. Mafel,16 FSM Intrm. 49 (App. 2008)

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APPEAL CASE NO. Y1-2006

BEFORE:

Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Ready E. Johnny, Associate Justice, FSM Supreme Court
Hon. Benjamin Rodriguez, Temporary Justice, FSM Supreme Court*

*Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei

APPEARANCES:

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HEADNOTES

Appellate Review – Standard of Review – Civil Cases

On appeal, issues which are questions of law are reviewed de novo. M/V Kyowa Violet v. People of Rull ex rel. Mafel, 16 FSM Intrm. 49, 58, 59, 61, 62 (App. 2008).

Appellate Review – Standard of Review – Civil Cases

In reviewing an issue de novo, an appellate court applies the same standard in reviewing the trial court's grant of summary judgment as that initially employed by the trial court itself, i.e., whether there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. M/V Kyowa Violet v. People of Rull ex rel. Mafel, 16 FSM Intrm. 49, 58 (App. 2008).

Appellate Review – Standard of Review – Civil Cases; Marine Resources; Property – Tidelands

A trial court case that when affirmed on appeal held that the decision – that the State of Pohnpei and not its municipalities owned the marine areas in Pohnpei – concerned only Pohnpei and not the other three FSM states, is clearly not controlling precedent for the resolving issues unique to the State of Yap, including the interpretation of its Constitution and Code when, unlike Pohnpei, Yap not only repealed the relevant Trust Territory Code provision, but Yap's Constitution expressly recognizes the traditional rights and ownership over the natural resources and the marine space within the state of Yap. M/V Kyowa Violet v. People of Rull ex rel. Mafel, 16 FSM Intrm. 49, 58 (App. 2008).

Marine Resources; Property – Tidelands

The State of Yap's ownership of public lands as provided for at 9 Y.S.C. 901, is not mutually exclusive with the traditional rights of ownership over these lands and related marine resources by the people of Yap through the tabinaw, as recognized in the Yap Constitution. M/V Kyowa Violet v. People of Rull ex rel. Mafel, 16 FSM Intrm. 49, 58 (App. 2008).

Appellate Review – Standard of Review – Civil Cases; Constitutional Law – Case or Dispute – Standing

Whether a party has standing to sue is a question of law reviewed de novo on appeal. M/V Kyowa Violet v. People of Rull ex rel. Mafel, 16 FSM Intrm. 49, 59 (App. 2008).

Appellate Review – Standard of Review – Civil Cases

The standard of review for findings of fact is whether the trial court's findings are clearly erroneous. A finding is clearly erroneous when the appellate court, after reviewing the entire body of the evidence and construing the evidence in the light most favorable to the appellee, is left with the definite and firm conviction that a mistake has been committed. For an appellate court to find that a trial court's finding is in error it must determine that the finding was clearly erroneous. M/V Kyowa Violet v. People of Rull ex rel. Mafel, 16 FSM Intrm. 49, 60 (App. 2008).

Civil Procedure – Class Actions; Marine Resources

The mere fact that there is someone outside the class who believes that they also have an interest in the damaged marine space would not preclude an award of damages to the class plaintiffs, provided the class could demonstrate that they had such an interest. M/V Kyowa Violet v. People of

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Rull ex rel. Mafel, 16 FSM Intrm. 49, 60 (App. 2008).

Appellate Review – Standard of Review – Civil Cases

The trial court was free to accept or reject the testimony that the reef in question is owned by Tomil and that the people of neighboring Rull had some fishing rights in the waters surrounding the reef, and the reviewing court will only set aside those findings of fact when there is no credible evidence in the record to support the finding as the trial court had the opportunity to view the witnesses and the manner of their testimony. M/V Kyowa Violet v. People of Rull ex rel. Mafel, 16 FSM Intrm. 49, 60 (App. 2008).

Evidence – Expert Opinion

The Rules of Evidence expressly permit an expert witness to testify that he had made assessments of the damage to submerged reefs in numerous other cases, and, as such, the trial court was free to assess whatever weight it saw fit with regard to the expert's testimony when determining the damages that should be assessed. M/V Kyowa Violet v. People of Rull ex rel. Mafel, 16 FSM Intrm. 49, 60-61 (App. 2008).

Evidence – Expert Opinion

Expert opinions have no such conclusive force that there is an error of law in refusing to follow them. It is for the trier of fact to decide whether any, and if any what, weight is to be given to such testimony. Even if the testimony is uncontroverted the trier of fact may exercise independent judgment. M/V Kyowa Violet v. People of Rull ex rel. Mafel, 16 FSM Intrm. 49, 61 (App. 2008).

Civil Procedure – Class Actions

When the plaintiff class was certified to include only those people who "owned" the natural resources and who were unable to use those resources as a result of the oil spill and when the services provided by the chiefs, by contrast, are not a natural resources, much less a resource that is "owned"; when the chiefs are not even compensated for their services; and when no evidence demonstrated that anyone was unable to use the chiefs' services while their attention was purportedly diverted due to the oil spill, the trial court's refusal to issue a separate award of damages to the plaintiff class for the "diverted services" of the Yap chiefs, who were purportedly drawn away from their traditional duties to tend to the maritime mishap, is not error. M/V Kyowa Violet v. People of Rull ex rel. Mafel, 16 FSM Intrm. 49, 61-62 (App. 2008).

Torts – Damages

The law does not permit an injured party to recover double for the same damage. Compensatory damages are just that – compensation to make the victim whole again. M/V Kyowa Violet v. People of Rull ex rel. Mafel, 16 FSM Intrm. 49, 62 (App. 2008).

Torts – Damages

Compensation for an injury is not doubled simply because the plaintiff has two different causes of action on which to base that recovery. Only the injury itself is compensated. However, if the specific damages in question are properly a component of the total damages resulting from negligence, then they be recovered from the tortfeasor, as a tortfeasor is responsible for all damages flowing from his actions. M/V Kyowa Violet v. People of Rull ex rel. Mafel, 16 FSM Intrm. 49, 63 (App. 2008).

Marine Resources; Torts – Damages

When the class plaintiffs successfully pursued two separate causes of action arising from the same incident, negligence and nuisance, and were awarded compensatory damages, including damages for the physical damage to the reef and marine area as well as their loss of use of this resource, their purported discomfort and annoyance does not generate an additional, separate award of damages since

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the compensatory damages that were awarded, which flowed from the negligence claim, addressed the loss related to the use of property including any discomfort or annoyance that may have been experienced. Any additional award of damages for their nuisance claim would have resulted in a double recovery. M/V Kyowa Violet v. People of Rull ex rel. Mafel, 16 FSM Intrm. 49, 63 (App. 2008).

Appellate Review – Standard of Review – Civil Cases

An abuse of discretion occurs when 1) the court's decision is clearly unreasonable, arbitrary, or fanciful; 2) the decision is based on an erroneous conclusion of law; 3) the court's findings are clearly erroneous; or 4) the record contains no evidence on which the court rationally could have based its decision. Such abuses must be unusual and exceptional; an appeals court will not merely substitute its judgment for that of the trial judge. M/V Kyowa Violet v. People of Rull ex rel. Mafel, 16 FSM Intrm. 49, 64 (App. 2008).

Attorney's Fees – Court-Awarded – Private Attorney General; Torts – Damages

The private attorney-general doctrine makes no distinction in the award of attorney's fees based upon the overall amount of damages that are awarded, nor does it differentiate between an award of monetary damages from injunctive relief. Attorney's fees not otherwise awardable, may be awarded under the private attorney general doctrine only when the lawsuit has met certain requirements, including vindicating rights that benefit a large number of people, when the private parties were required to file suit to enforce those rights because a government authority was unable to do so, and when the rights enforced are of great social importance. M/V Kyowa Violet v. People of Rull ex rel. Mafel, 16 FSM Intrm. 49, 65 (App. 2008).

Attorney's Fees – Court-Awarded – Private Attorney General; Torts – Damages

When private citizens are pursuing purely civil claims – the tort of negligence – against other private citizens and the Yap government could not have undertaken any action to vindicate the plaintiffs' rights pursued, an award of attorney's fees under the private attorney-general doctrine is erroneous. It is thus an abuse of discretion for the trial court to award attorney's fees and costs under the private attorney-general doctrine in a case in which the government could not have taken any action to vindicate the rights of the people affected. M/V Kyowa Violet v. People of Rull ex rel. Mafel, 16 FSM Intrm. 49, 65 (App. 2008).

Attorney's Fees – Court-Awarded – Private Attorney General; Torts – Damages

The private attorney general theory permits government reimbursement of a party's attorney fees when it must hire its own attorney to enforce a right shared by a large number of people, when it is in the public interest. The theory recognizes that the government does not always adequately protect the rights of citizens, and that people who successfully defend the rights of the public at their own cost deserve to have their attorney fees paid for, as if they had been provided the services of a "private attorney general." M/V Kyowa Violet v. People of Rull ex rel. Mafel, 16 FSM Intrm. 49, 65 (App. 2008).

COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

This appeal, initiated by the above-captioned Appellants Kyowa Violet, Kyowa Shipping Company, Ltd., Pacific Line Trading, Inc. (Panama), and Toritec Co., Ltd. (collectively referred to as "Kyowa Violet"), arises from an incident in Yap Harbor, on December 26, 2002, in which the vessel Kyowa Violet struck a submerged reef while entering the Tomil Channel in an attempt to dock. This

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resulted in an oil spill along the coastline of the inner reef area in Yap. This, in turn, necessitated a ban on marine activities in certain parts of Yap through May 26, 2004.

Following trial, the Plaintiff class, which was defined to include the above-captioned Appellees the People of the Municipalities of Rull and Gilman of Yap State, by and through their Chiefs John Mafel, Thomas Falgnin and James Limar (collectively referred to as the "People of Rull and Gilman"), see People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 12 FSM Intrm. 192, 196 (Yap 2003), was awarded $2,950,638 in damages. People of Rull and Gilman v. M/V Kyowa Violet, 14 FSM Intrm. 403 (Yap 2006). The trial court also awarded the People of Rull and Gilman, as the prevailing party, attorney's fees and costs under the private attorney-general doctrine. Id. Thereafter, the trial court issued an order fixing this award of fees and costs. People of Rull and Gilman v. M/V Kyowa Violet, 15 FSM Intrm. 53 (Yap 2007).

Kyowa Violet appeals the trial court's award of damages as well as the award of attorney's fees and costs under the private attorney-general doctrine, while the People of Rull and Gilman appeal the trial court's refusal to award certain additional damages to them. Both Kyowa Violet and the People of Rull and Gilman appeal the trial court's subsequent order fixing the People of Rull and Gilman's award of attorney's fees at $595,943.75, and costs at $122,390.87.¹

For the reasons set forth below, we affirm the trial court's award of damages to the People of Rull and Gilman. As such, the Kyowa Violet's appeal of that portion of the trial court's order awarding damages to the People of Rull and Gilman for the incident at issue here is hereby denied, as is the cross-appeal filed by the People of Rull and Gilman, which seeks a review of the trial court's failure to award certain additional damages to them.

Further, we reverse and vacate the trial court's award of attorney's fees and costs to the People of Rull and Gilman under the private-attorney general doctrine. As such, we grant the Kyowa Violet's appeal before us as to that portion of the trial court order awarding attorney's fees and costs under the private attorney-general doctrine. Because we reverse and vacate the trial court's award of attorney's fees and costs under the private attorney-general doctrine, both parties' respective appeals of the trial court order concerning the amount of attorney's fees and costs awarded to the People of Rull and Gilman are dismissed as moot.

Judgment shall be entered accordingly.

I. BACKGROUND

The trial court record shows that the Kyowa Violet made glancing strikes on five separate areas of the reef, causing varying degrees of damage to the coral reef and damaging the ship's bottom. This incident resulted in an oil spill. The oil spread on the surface of the water of the inner reef and was pushed by the wind in a west/southwesterly direction. The entire coastline of the inner reef area from Colonia to the tip of Gilman Municipality peninsula was affected to some degree by the spilled oil. In all, some 2,258 residents of the municipalities of Rull and Gilman were affected. Although efforts were undertaken throughout all of 2003 and into 2004 to address the oil spill, not all of the oil could be removed from the marine environment. As noted, the ban on marine activities in the affected area continued until May 26, 2004.

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In all, some 1,436 square meters of coral was damaged by the Kyowa Violet. In addition, some 60,000 square meters of mangrove stands were oiled in varying degrees as a result of the Kyowa Violet incident. During the period in which marine activities were banned in the affected areas, the people of Rull and Gilman were forced to obtain marine food and subsistence from other sources. After the ban, the average fish catch was reduced by 40-50%, while the crab catch declined by 50-80%. Clams were not found after the ban lifted.

The trial court found that the Plaintiff class, which comprised the People of Rull and Gilman Municipalities, had standing to sue for the damage to the marine resources caused by the incident involving the Kyowa Violet. As the trial court explained:

Under Yap traditional rights and ownership of natural resources and marine areas inside the Yap fringing reef – the rights to use and exploit, to the exclusion of all others, the marine resources of particular areas of the submerged lands inside the fringing reef around Yap – stem from a concept called a tabinaw. A tabinaw entails rights, duties and obligations for its members, and includes families and households. But a tabinaw is more than a concept. A tabinaw includes an estate in identifiable land and specific areas within the Yap fringing reef within which a tabinaw member can exploit the marine resources. (For instance, the tabinaw estate of Man'ol in Rull, owns the fishing rights that connect to the reef where the Kyowa Violet grounded.) A tabinaw member can only exploit marine resources in the marine area that appertains to his tabinaw. Each village includes a number of tabinaw.

Kyowa Violet, 14 FSM Intrm. at 416.

Following the trial court's ruling that the People of Rull and Gilman had standing to sue for the damages as a class arising from the incident at issue here, the parties stipulated that the various Kyowa Violet Appellants would be jointly and severally liable for any damages shown by the evidence to have been caused by the grounding of and oil spill from the Kyowa Violet. This left only the issue of damages to be adjudicated at trial.

As noted above, the People of Rull and Gilman were awarded $2,950,638 in damages. This included $861,600 for damage to the submerged reef that the Kyowa Violet hit. The trial court based this award of damages upon a valuation of $600 per square meter for the damaged reef. With 1,436 square meters of reef damaged, this totals $861,600.

The trial court's award also included $724,685 in damages for approximately 60,000 square meters in oiled mangroves as follows: $261,902 for heavily oiled mangroves based upon $17 per square meter for 15,406 square meters; $361,500 for moderately oiled mangroves based upon $12 per square meter for 30,125 square meters; and $101,283 for lightly oiled mangroves based upon $7 per square meter for 14,469 square meters.

In addition, the trial court awarded damages of $1,172,423 for the lost marine resources harvest, and $191,930 in damages for not being able to access the marine area at issue here. These damages were calculated to be $85 per member of the class. With a Plaintiff class of 2,258 people, this totaled $191,930 in damages awarded to the People of Rull and Gilman.

The trial court did not, however, award damages for "diverted services," which purportedly arose from the lost time that the Chiefs spent addressing this maritime mishap rather than assisting the People of Rull and Gilman in their normal, daily activities, and for the discomfort and annoyance related to the oil spill. Similarly, the trial court did not award additional damages for any "discomfort" or "annoyance"

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that the People of Rull and Gilman may have experienced beyond the damages that they established at trial.

The trial court further found that an award of attorney's fees to the Plaintiff class under the private attorney-general doctrine was appropriate because the pursuit of this case vindicated the rights of a large number of people in Yap State. As noted above, the Plaintiff class included 2,258 people, which the trial court found to be significant when compared to Yap State's total population.

In fixing its award of attorney's fees the trial court found that the reasonable hourly rate for an award of fees was $125 per hour, which was based upon the prevailing rate charged for local attorneys in the FSM. Because one of the attorney's representing the Plaintiff class, Daniel Berman, maintains an office in the FSM, the trial court found that this hourly rate, rather than any higher charged outside of the FSM, was appropriate. The trial court also found that the contribution by another attorney representing the Plaintiff class, James Walsh, was so significant, that the hourly rate for his service could be doubled. Using the "lodestar" approach, which produces a reasonable attorney's fee award by multiplying the number of hours reasonably expended on the case by the reasonable hourly rate, see Herman v. Municipality of Patta, 12 FSM Intrm. 130, 137 (Chk. 2003), the trial court fixed the award of attorney's fees at issue at $595,943.75. This award disregarded certain hours of attorney time that the People of Rull and Gilman had sought to be awarded.

The trial court also awarded the People of Rull and Gilman costs under the private-attorney general doctrine. In all, the People of Rull and Gilman were awarded costs of $122,390.87. This included an award of $1,500 for an expert witness fee.

II. ISSUES ON APPEAL

In all, Kyowa Violet presents five issues on appeal. The first two issues concern the trial court's findings that the People of Rull and Gilman not only had standing to pursue their claims of damage, but that their claim for damage to the marine resources was a recognized claim. According to Kyowa Violet, the trial court erred in determining that the Plaintiff class and not the State of Yap owned the submerged reef and surrounding marine resources. Kyowa Violet further maintains that trial court erred in recognizing the cause of action that the Plaintiff class pursued – a cause of action based upon damage to the submerged reef and surrounding marine resources.

Two additional issues raised by Kyowa Violet concern the trial court's award of damages to the Plaintiff class in the face of insufficient evidence. According to Kyowa Violet, there was insufficient evidence to support the trial court's finding that the Plaintiff class owned the area of reef that was damaged. In addition, Kyowa Violate argues that there was insufficient evidence to support the amount of damages awarded by the trial court.

Lastly, Kyowa Violet argues that the trial court abused its discretion in awarding the Plaintiff class attorney's fees and costs under the private attorney general doctrine.

In their cross-appeal, the People of Rull and Gilman present two issues, both of which concern the trial court's refusal to award certain additional damages to them, including damages for diverted services as well as damages for discomfort and annoyance.

With regard to the trial court's subsequent order fixing the award of attorney's fees and costs to the Plaintiff class, the People of Rull and Gilman argue that the trial court abused its discretion in awarding attorney's fees at only $125 per hour. According to the People of Rull and Gilman, the trial court should have awarded attorney's fees at the prevailing rates charged in other jurisdictions because

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there were no attorneys within the FSM who could represent the Plaintiff class. In addition, the People of Rull and Gilman challenge the trial court's award of only $1,500 in costs for an expert witness fee, arguing that the award of costs for this particular expert witness should have been $430,180.98, based upon his level of participation in the case.

In their cross-appeal on the award of attorney's fees and costs, Kyowa Violet maintains that because the People of Rull and Gilman were relatively unsuccessful at trial, no attorney's fees should have been awarded as they were not the "prevailing" party. According to Kyowa Violet, while the People of Rull and Gilman sought damages in excess of $32,000,000, they were only awarded damages of $2,950,638, an amount that does not reflect any serious measure of success for a prevailing party. Kyowa Violet further maintains that any award of costs under the private attorney-general doctrine is inappropriate based upon the prevailing case law from the United States, which the trial court relied upon in awarding the fees and costs at issue here.

A. Ownership of Submerged Reef and Standing

1. Arguments on Appeal

Kyowa Violet maintains that the trial court erred when it rejected the case of Pohnpei v. KSVI No. 3, 10 FSM Intrm. 53 (Pon. 2001), as well as the provisions of the Trust Territory Code at 67 TTC 2 as controlling precedent in determining who owns the marine resources in Yap State. Kyowa Violet maintains that only Yap State has standing to sue for the damages at issue here.

At issue in KSVI No. 3 were competing claims of ownership between the State of Pohnpei and one of its municipalities over the submerged reef and surrounding marine resources that were damaged when the KSVI # 3 ran aground off Kitti Municipality in the State of Pohnpei. The court in KSVI No. 3 concluded that only the State of Pohnpei owned the marine area in question and, as such, only the State of Pohnpei had standing to pursue a claim from damage to this property arising from the maritime incident in question.

Section 2 of Title 67 of the Trust Territory Code, which is applicable as the governing law of Pohnpei, provides that the areas below the ordinary high water mark belong to the government. According to Kyowa Violet, the marine areas in Yap were transferred to the District of Yap pursuant to Trust Territory Secretarial Order 2969, effective December 28, 1974. Kyowa Violet maintains that Yap State then became the succeeding government body to take possession of these lands. Kyowa Violet maintains that the Trust Territory Government was able to convey this interest due to the provisions of 67 TTC 2. Kyowa Violet maintains that the Yap District Government thereafter codified a law, now known as Section 101 of Title 9 of the Yap State Code, which provides that the "State Government . . . hold[s] title to public lands within the State in trust for the people of the State, to manage or dispose of the same, and to provide for the conveyance of public lands to the State Government pursuant to Secretarial Order 2969."

According to Kyowa Violet, if the court in KSVI No. 3 ruled that the State of Pohnpei owned the submerged tidewater lands in Pohnpei as a result of the provisions of 67 TTC 2, then that same conclusion must certainly apply to the State of Yap. Kyowa Violet argues that unlike Pohnpei, the State of Yap specifically enacted a law expressly accepting the conveyance of land set forth in Secretarial Order 2969. To Kyowa Violet, the enactment reflects Yap State's intention that it – and it alone, and not any individuals, municipalities, or tabinaw – would own the lands within its borders.

Kyowa Violet concludes that not only does the State of Yap have standing to sue for damages to the tidewater lands, including the marine resources, but that even if the People of Rull and Gilman

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have an interest in these lands, only the State of Yap has the authority to sue to recover for damage to these lands. Kyowa Violet cites to the provisions of Section 101-102 of Title 9 of the Yap State Code which states that the State of Yap will hold title to public lands in trust for the people of Yap, and authorizes the Yap State Government o administer and regulate the use of these public lands. Kyowa Violet further cites to the State of Yap=s authority to enforce environmental laws which govern any claims concerning damage to the reefs and surrounding marine areas. 18 Y.S.C. §§ 401 et seq., and 1501 et seq.

Kyowa Violet maintains that it was not only erroneous for the trial court to conclude that the Plaintiff class owned the marine resources in question, but to also conclude that the Plaintiff class had a cause of action for damages to these resources based upon the provisions set forth in Title 18 of the Yap State Code. Chapter 201 et seq., of Title 18 of the Yap State Code governs fishing rights within the State of Yap, while Chapter 401 et seq., of Title 18 of the Yap State Code governs injuries to resources within the State of Yap.

2. Trial Court Record

The trial court certified the class of Plaintiffs as follows:

All residents of Rull and Gilman municipalities who were unable to use the natural resources appertaining to these municipalities following the oil spill from the Kyowa Violet on December 26, 2002, and who, by tradition own the natural resources affected by this oil spill in common with other residents, including but not limited to the reef, the water column, the fish and other marine life, the mangroves, and any other affected resources.

People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 12 FSM Intrm. 192, 196 (Yap 2003).

In certifying the People of Rull and Gilman as a class, the trial court found that the People of Rull and Gilman had standing to recover damages as they appear to have suffered actual injuries and damages in the form of their rights to harvest and engage in other uses of marine resources as a result of the oil spill, as well as possible damage to the reef and waters that may last into the future. The trial court concluded that the Plaintiffs class's interest in these marine areas arose under their recognized Yapese traditional rights, and that their interest was sufficient to from a claim.

The trial court explained that "own the natural resources" means own the right to use or exploit the natural resources to the exclusion of others, as the people of Rull and Gilman have the right to do through the tabinaw. This right of ownership over the use and exploitation of the natural resources exists as a result of the Yap State Constitution and Yapese traditional rights and ownership over natural resources. The Yap Constitution provides that the State of Yap recognizes traditional rights and ownership of natural resources and areas within the [State's] marine space . . . ." Yap Const. art. XIII, § 5. Yap State law not only provides that "[t]raditionally recognized fishing rights wherever located within the State Fishery Zone and internal waters shall be preserved and respected," 18 Y.S.C. § 207, but that "private rights of action for civil damages" for damage to coral reefs, sea grass areas and mangroves are also recognized. 18 Y.S.C. § 402(c). As the trial court explained:

Under Yap traditional rights and ownership of natural resources and marine areas inside the Yap fringing reef – the rights to use and exploit, to the exclusion of all others, the marine resources of particular areas of the submerged lands inside the fringing reef around Yap – stem from a concept called a tabinaw. A tabinaw entails rights, duties and obligations for its members, and includes families and households. But a tabinaw is more than a concept. A tabinaw includes an estate in identifiable land and specific areas within

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the Yap fringing reef within which a tabinaw member can exploit the marine resources. . . . A tabinaw member can only exploit marine resources in the marine area that appertains to his tabinaw. Each village includes a number of tabinaw.

Kyowa Violet, 14 FSM Intrm. at 415.

The trial court also expressly rejected the applicability of the case of KSVI No. 3, as it may apply to Yap State. The trial court found that this case was only applicable to the State of Pohnpei, as only the law of the State of Pohnpei was at issue in that case. In addition, the trial court noted while 67 TTC 2 remained applicable in Pohnpei, that provision of the Trust Territory Code was no longer applicable law in Yap State. The trial court found that not only had that provision of the Trust Territory Code been repealed by the Yap State Legislature, but both the Yap State Constitution and the Yap State Code, both of which recognized traditional rights of ownership in the reefs and marine resources of the State of Yap, now superseded the Trust Territory Code. As noted above, these traditional rights were now exercised by the tabinaw.

3. Discussion

On appeal, questions of law are reviewed de novo. FSM Dev. Bank v. Arthur, 14 FSM Intrm. 234, 249 (App. 2006). Issues which are questions of law are reviewed de novo. Pohnpei v. AHPW, Inc., 14 FSM Intrm. 1, 14 (App. 2006); Ponape Island Transp. Co. v. Fonoton Municipality, 13 FSM Intrm. 510, 513 (App. 2005). In reviewing an issue de novo, an appellate court applies the same standard in reviewing the trial court's grant of summary judgment as that initially employed by the trial court itself, i.e., whether there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Tafunsak v. Kosrae, 7 FSM Intrm. 344, 347 (App. 1995).

In the matter at hand, the trial court decision in the case of KSVI No. 3 has since been affirmed. Kitti Mun. Gov't v. KSVI No. 3, 13 FSM Intrm. 503 (App. 2005). Although this occurred after trial in this matter was held, this Court, in affirming the trial court's ruling in KSVI No. 3 stated that the decision – that the State of Pohnpei and not its municipalities owned the marine areas in Pohnpei – concerned Pohnpei and not the other three states within the FSM. Thus, the decision rendered in KSVI No. 3 is clearly not controlling precedent for the resolution of the issue at hand, which involves issues unique to the State of Yap, including the interpretation of its Constitution and Code. Indeed, unlike Pohnpei, Yap State not only repealed the relevant provision of the Trust Territory Code that the KSVI No. 3 decision was based upon, 67 TTC 2, but the State of Yap's Constitution expressly recognizes the traditional rights and ownership over the natural resources and the marine space within the state of Yap.

The trial court never adjudicated the issue of exclusive ownership over the reef and surrounding marine resources. Indeed, the State of Yap was never named as a party to this case and any adjudication of this particular issue would have required that the State of Yap be joined as a necessary and indispensable party. Instead, the trial court was only concerned with determining whether the Plaintiff class had standing to pursue their claims of economic damage arising from the damage to the reef and the surrounding marine area based upon their ownership of the natural resources. The trial court explained that "'own the natural resources'" meant "'own the right to use or exploit the natural resources to the exclusion of others . . . through the tabinaw.'" Thus, the trial court merely recognized that the State of Yap's ownership of public lands as provided for at 9 Y.S.C. 901, is not mutually exclusive with the traditional rights of ownership over these lands and related marine resources by the people of Yap through the tabinaw, as recognized in the Yap Constitution. That the State of Yap might choose to not also pursue a similar cause of action does not change this result.

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Based upon our review of the applicable law, including the Yap State Constitution and the Yap State Code, as set forth above, we affirm those portions of the trial court order which concern its certification of the Plaintiff class as well as its recognition of the Plaintiff class's right to pursue a claim against Kyowa Violet for the damages at issue here. On appeal, issues of law are reviewed de novo. Rodriguez v. Bank of FSM, 11 FSM Intrm. 367, 377 (App. 2003). Whether a party has standing to sue is a question of law reviewed de novo on appeal. FSM v. Udot Municipality, 12 FSM Intrm. 29, 40 (App. 2003).

In conclusion, we find that the trial court's determination that the Plaintiff class had standing to pursue their claims based upon their recognized traditional rights of ownership over the marine space at issue was not erroneous, nor was the trial court's conclusion that the Plaintiff class could pursue a cause of action for such damages.

B. Award of Damages

As noted above, the trial court awarded damages to the plaintiff class totaling $2,950,638 for the damaged reef, oiled mangroves, and lost fisheries and access to swim and bathe. This award of damages included various components, including an award of $861,600 for damage to the submerged Tomil reef that the Kyowa Violet hit. The trial court based this award of damages upon a valuation of $600 per square meter for the damaged reef. With 1,436 square meters of reef damaged, at $600 per square meter, this totals $861,600.

1. Issues on Appeal

Kyowa Violet argues that any award of damages for damage to the Tomil reef by the Kyowa Violet contradicts the trial court's certification of the Plaintiff class as having the exclusive right to exploit the natural resources of this reef. Kyowa Violet maintains that while the trial court certified the Plaintiff class as including all the people of Rull and Gilman who own the submerged reef at issue in this case "to the exclusion of others," the trial court awarded damages to the Plaintiff class in the face of evidence that the reef area of Tomil was not exclusively owned by them. Specifically, the Kyowa Violet cites to the trial court's finding that "[a]lthough the People of Tomil Municipality claim the damaged part of the reef as their own, they do not dispute that the people from Rull have some fishing rights to this reef." Kyowa Violet also cites to the trial court's conclusion that "the tabinaw estate of Man'ol in Rull, owns the fishing rights that connect to the reef where the Kyowa Violet grounded." According to the Kyowa Violet, if the tabinaw estate of Man'ol in Rull owns these fishing rights exclusively, then the entire Plaintiff class would be precluded from recovering any damages to the reefs in these areas.

Kyowa Violet raises an additional issue on appeal concerning the sufficiency of the evidence to support the amount of damages that the trial court awarded to the People of Rull and Gilman. According to Kyowa Violet, although they do not contest the trial court's finding that 1,463 square meters of reef was damaged in the incident involving the Kyowa Violet, they believe that the trial court's calculation of damages at $600 per square meter was clearly erroneous and not supported by the record.

In support of this argument, Kyowa Violet maintains that the only evidence presented to the trial court concerning a valuation of these damages was the testimony of Dr. Richmond, who was an expert witness testifying on behalf of the People of Rull and Gilman. Kyowa Violet notes that Dr. Richmond testified that he had previously assessed the damage to the reef in another case in Yap involving West Fayu at $304 per square meter, and because of the factors present in the case at hand, including the fact that the reef area was closely inhabited, he doubled the value to $608 per square meter, which the trial court apparently rounded to an even $600 per square meter, as Kyowa Violet so contends.

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According to Kyowa Violet, the case involving West Fayu, People of Satawal ex rel. Ramoloilug v. Mina Maru No. 3, 10 FSM Intrm. 337 (Yap 2001), was a separate case, to which they were not a party. As such, they maintain that the decision in that case could not apply to them, nor should Dr. Richmond have been allowed to testify about how he calculated the valuation of damages in that case. Kyowa Violet further maintains that Dr. Richmond never provided any basis for his determination that the damages in West Fayu should have been valued at $304 per square meter. Instead, Kyowa Violet argues that Dr. Richmond estimated the total cost of replacing the damaged reef in that case through regeneration of the coral, plus any clean up costs, and, based upon the size of the reef area, the cost was found by the trial court to be $304 per square meter. According to Kyowa Violet, there was no evidence offered to show the actual costs to regenerate the damaged reef in this case, as there was in the West Fayu case.

2. Discussion

The standard of review for findings of fact is whether the trial court's findings are clearly erroneous. MPohnpei v. AHPW, Inc., 14 FSM Intrm. 1, 24 (App. 2006). A finding is clearly erroneous when the appellate court, after reviewing the entire body of the evidence and construing the evidence in the light most favorable to the appellee, is left with the definite and firm conviction that a mistake has been committed. For an appellate court to find that a trial court's finding is in error it must determine that the finding was clearly erroneous. Livaie v. Weilbacher, 13 FSM Intrm. 139, 143 (App. 2005).

Here, underlying Kyowa Violet's argument about the conflicting claims of ownership over the Tomil reef is the assumption that damages cannot have been awarded if there was any "common" ownership interest over the submerged reef between the People of Rull and Gilman and any other individuals outside of the class claiming to own the same property. This argument ignores the trial court's certification of the Plaintiff class as those people in Rull and Gilman Municipalities who were affected by the oil spill, based upon their ownership interests in the marine space in question. This interest would arise regardless of where any particular ownership interest is located within the affected marine space. Thus, the mere fact that there is someone outside the class who believes that they also have an interest in the damaged marine space would not preclude an award of damages to the People of Rull and Gilman, provided the class could demonstrate that they had such an interest. As noted above, the trial court never adjudicated who owned which portion of the reef affected by the Kyowa Violet oil spill.

That aside, a review of the trial court record shows that there were various witnesses who testified about the ownership of and damage to the marine area that was at issue in this case. Specifically, the trial court was presented with the testimony of witnesses who each testified about a different ownership interest in the submerged reef where the Kyowa Violet ran aground. Chief Thomas Falgnin testified that the estate of Man'ol owns the reef where the Kyowa Violet ran aground. This was corroborated by Chief Andrew Ruepong. Steven Mar, the son of Peter Giltaman, however, testified that the reef in question is owned by Tomil, but that the people of neighboring Rull had some fishing rights in the waters surrounding the reef. In considering this testimony and the issues that the trial court was faced with adjudicating, the trial court was free to accept or reject the testimony presented to it. Rodriguez v. Bank of the FSM, 11 FSM Intrm. 367, 374 (App. 2004) (reviewing court will only set aside findings of fact when there is no credible evidence in the record to support the finding as the trial court had the opportunity to view the witnesses and the manner of their testimony).

The record further shows that Dr. Richmond not only testified that he had made assessments of the damage to submerged reefs in numerous other cases, including the West Fayu case, but that he testified as an expert witness on the issue. The Rules of Evidence expressly permit an expert witness

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to testify about such matters. As such, the trial court was free to assess whatever weight it saw fit with regard to Dr. Richmond's testimony when determining the damages that should be assessed in this case. Setik v. Sana, 6 FSM Intrm. 549, at 553-54 (Chk. S. Ct. App. 1994) ("the opinion testimony of experts is just that: opinion testimony). Expert opinions have "'no such conclusive force that there is an error of law in refusing to follow them.'" Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S. Ct. 724, 729, 88 L. Ed. 967, 972 (1944). It is for the trier of fact "'to decide whether any, and if any what, weight is to be given to such testimony.'" Id. at 627, 64 S. Ct. at 729, 88 L. Ed. at 973. Even if the testimony is uncontroverted the trier of fact "'may exercise independent judgment.'" Id. at 628, 64 S. Ct. at 729, 88 L. Ed. at 973 [citations omitted]).

Based upon our review of the record here, we are not left with the firm conviction that the trial court erred in any way in awarding damages to the People of Rull and Gilman for the damage to the Tomil reef, nor are we convinced that the trial court erred in assessing those damages at $600 per square meter based upon the evidence presented. Accordingly, and for the reasons set forth above, we affirm the trial court's award of damages to the Plaintiff class at issue here.

3. Issues on Cross-Appeal

In their cross-appeal, the People of Rull and Gilman maintain that the trial court erred when it failed to award them damages separate and apart from the other damages they were awarded for both the "diverted services" of their traditional chiefs as well as for the discomfort and annoyance they suffered as a result of the oil spill.

a. Diverted Services

In all, the People of Rull and Gilman sought $439,916 in damages for diverted services based upon the time that their traditional chiefs were purportedly required to spend tending to matters related to the oil spill at issue here, rather than performing their traditional duties.

The trial court, however, found that the claim for "diversion services" was not recoverable by the class plaintiffs, as that class was certified. As the trial court explained, the claim is "not a claim that the chiefs have in common with the other class members or a claim within the class claims as the class was certified."

The trial court further distinguished the recovery of these damages from the similar type of damages that were recovered in the Amoco Cadiz oil spill. In the case of the Amoco Cadiz, the ship owner was unable to clean up its oil spill and as such, it asked the French government to intervene. Under French law, in such instances, the salary of the government employees involved in the cleanup is subject to recovery. Not only is there no such law in the FSM or Yap State, but the trial court record shows that neither the Kyowa Violet nor the People of Rull and Gilman requested the Yap State government to assist in the oil clean up. Instead, and as the trial court record reflects, the Kyowa Violet undertook that clean up effort on their own. As the trial court noted, the Yap chiefs are not government employees, let alone employees earning a specified salary that could be used as a measurement of damages. In re Oil Spill of Amoco Cadiz, 954 F.2d 1279, 1310-13 (7th Cir. 1992).

Issues of law are reviewed de novo on appeal. George v. Nena, 12 FSM Intrm. 310, 313 (App. 2004). According to the People of Rull and Gilman, the trial court's findings ignore the fact that the Plaintiff class suffered the loss of services that would have otherwise been performed by their chiefs. This argument, however, does not overcome the fact that the plaintiff class was certified to include only those people who "owned" the natural resources and who were unable to use those resources as a result of the oil spill. As the trial court found, the services provided by the chiefs, by contrast, are not

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a natural resources, much less a resource that is "owned." By all accounts, the chiefs are not even compensated for their services. Nor does the trial court record reveal the presentation of any evidence demonstrating that there was anyone who was unable to use the services of the chiefs while their attention was purportedly diverted due to the oil spill.

Accordingly, under these circumstances, and based upon the trial court's certification of the Plaintiff class, we cannot assign any error to the trial court's refusal to issue a separate award of damages to the Plaintiff class for the "diverted services" of the Yap State Chiefs who were purportedly drawn away from their traditional duties to tend to the maritime mishap at issue here.

b. Damages for Discomfort and Annoyance

A review of the trial court record shows that the trial court's award of damages to the Plaintiff class for physical damage to the reef as well as their use of the reef as a result of the oil spill was based upon both trespass and negligence theories of recovery. This included an award of damages for "lost swimming" opportunity – the period when they could not access the affected water areas for swimming and bathing.

The record, however, shows that the trial court found that "[t]here was no evidence that the class as a whole, or any particular class member, suffered any physical injury from the oil spill or that any emotional distress resulted in physical manifestation." The trial court, citing to Narruhn v. Aisek, 13 FSM Intrm. 97, 99 (Chk. S. Ct. App. 2004) (damages for mental distress only awarded when evidence is presented showing that distress physically manifested itself), concluded that in the absence of such evidence, no award of damages would be allowed for mental anguish.

In this case, the People of Rull and Gilman do not challenge the trial court's finding that there was a lack of evidence to support an award of damages for mental anguish. Instead, the People of Rull and Gilman argue that the trial court erroneously misconstrued their request for damages for discomfort and annoyance as one for mental anguish, the latter of which is a personal injury. The People of Rull and Gilman argue that the damage award they are seeking is one uniquely associated with their claim for nuisance to their land – an injury to their property and not their person – arising from the oil spill at issue here. Thus, the People of Rull and Gilman argue that such an award of damages should be made separately and distinctly from any claim for physical damage to the reef as well as the claims arising from their inability to use the reef and surrounding marine areas.

The People of Rull and Gilman further argue that there was sufficient evidence presented to show their unique level of discomfort and annoyance as a result of the oil spill, in addition to any other damages that they were entitled to recover. For example, the People of Rull and Gilman cite to the testimony of an expert witness, Dr. Whitelaw, who explained that it would require a damage award of $4,753,270 to compensate the Plaintiffs for their purported discomfort and annoyance. According to the People of Rull and Gilman, Dr. Whitelaw's testimony was based upon his projections of the cost that would be incurred in creating social programs to help the Plaintiffs cope with the loss of enjoyment of their lands that they had experienced as a result of the oil spill.

On appeal, issues of law are reviewed de novo. George, 12 FSM Intrm. at 313. The law does not permit an injured party to recover double for the same damage. AHPW, Inc. v. FSM, 12 FSM Intrm. 544, 556 (Pon. 2004). As this Court has explained, compensatory damages are just that – compensation to make the victim whole again. Moses v. M.V. Sea Chase, 10 FSM Intrm. 45, 50 (Chk. 2001). Thus, where a defendant's negligence proximately causes the plaintiff's home to be unsanitary and uninhabitable, the measure of damages is the replacement value of the personal property lost and the fair market value of a replacement rental house for the time that the plaintiff's house was

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uninhabitable. Sandy v. Chuuk, 7 FSM Intrm. 316, 318 (Chk. S. Ct. Tr. 1995).

Compensation for an injury is not doubled simply because the plaintiff has two different causes of action on which to base that recovery. Only the injury itself is compensated. M.V. Sea Chase, 10 FSM Intrm. at 50. Thus, while a civil rights violation claim and a battery claim are separate causes of action, when both claims arise from the same incident that resulted in the same personal injury, the court cannot award the same amount of damages for each claim. Instead, if the damage award for the civil rights claim fully compensates the victim for his personal injury, the court will not award additional damages for the battery claim, as doing so would result in a double recovery. This is a windfall that over compensates the plaintiff. Atesom v. Kukkun, 10 FSM Intrm. 19, 23 (Chk. 2001).

However, if the specific damages in question are properly a component of the total damages resulting from negligence, then they be recovered from the tortfeasor, as a tortfeasor is responsible for all damages flowing from his actions, including injuries related to medical care and treatment. Primo v. Refalopei, 7 FSM Intrm. 423, 430 (Pon. 1996). Thus, for example, medical expenses related to a personal injury claim may be recovered as they are properly a component of the personal injury claim. Amayo v. MJ Co., 10 FSM Intrm. 371, 376 (Pon. 2001) (travel expenses that are reasonable and also related to obtaining the medical care are recoverable as a part of the compensatory damage award). Similarly, as a separate item of damages, and in addition to the costs of repairs, a plaintiff is entitled to be compensated for the loss of the use of his property. Elymore v. Walter, 9 FSM Intrm. 450, 457 (Pon. 2000). However, an award of damages for loss of the use of a car that is substantially more than the original price, or current value, of the car would result in an inappropriate windfall to the plaintiff. Id. at 457. Similarly, no additional damages will be awarded for the "'sentimental value'" of the lost items when the plaintiff's pain and suffering has already been compensated, because these damages already encompass the "'sentimental value'" of the lost items. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 239 (Kos. S. Ct. Tr. 2001). See Amayo v. MJ Co., 10 FSM Intrm. 244, 252 (Pon. 2001) (pain and suffering serves as a convenient label under which a plaintiff may recover not only for physical pain but also for fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, terror, or ordeal. It covers disfigurement and deformity, impairment of ability to work or labor, anxiety or worry proximately attributable to an injury and mental distress caused by impairment of the enjoyment of life and it includes anxiety and embarrassment from disfigurement or limitations on activities).

In the matter at hand, the People of Rull and Gilman successfully pursued two separate causes of action arising from the same incident: negligence and nuisance. Having prevailed at trial, the People of Rull and Gilman were awarded compensatory damages, including damages for the physical damage to the reef and marine area in question as well as their loss of use of this resource. Although they argue that their purported discomfort and annoyance should have generated an additional, separate award of damages, we cannot agree with this proposition. Instead, the compensatory damages that were awarded in this case, which flowed from the claim of negligence, addressed the loss related to the use of property including any discomfort or annoyance that may have been experienced. Any additional award of damages for their nuisance claim would have resulted in a double recovery. Similarly, the People of Rull and Gilman have not shown that their purported discomfort and annoyance was a separate component of the compensatory damages that they were awarded, which the trial court purportedly overlooked.

Under these circumstances, we cannot assign any error to the trial court's refusal to award damages to the People of Rull and Gilman for annoyance and discomfort, separate and apart from the damages already awarded to them based upon their claims of negligence and trespass.

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C. Private Attorney-General Doctrine

In the matter at hand, the trial court found that this particular class action lawsuit vindicated rights benefiting a large number of people – some 2,258 people of Rull and Gilman municipalities. The trial court further found that the State of Yap was in no position to vindicate these rights and that the rights enforced – protecting the marine environment and related resources – were of significance to Yap, as the marine area was a salient feature of Yap's social and geographical configuration.

This Court has previously recognized that attorney's fees can be awarded under the private attorney-general theory. In FSM v. Udot Municipality, 12 FSM Intrm. 29, 56 (App. 2003), this Court, citing Damarlane v. United States, 8 FSM Intrm. 45 (App. 1997), recognized that attorney's fees not otherwise be awardable, would be awarded under the private attorney general doctrine only when the lawsuit met certain requirements, including vindicating rights that benefit a large number of people, when the private parties were required to file suit to enforce those rights because a government authority was unable to do so, and when the rights enforced are of great social importance. In Damarlane, the Court recognized that "[t]he private attorney general theory ha[d] never been applied in the FSM, [but declined to] adopt it in th[at] case," noting that even if it had, the prevailing party had not shown that it meet the criteria. Damarlane, 8 FSM Intrm. at 55 (citing Kaufman & Broad-South Bay v. Unisys Corp., 822 F. Supp. 1468 (N.D. Cal. 1993) (award of fees under private attorney general action allowed if suit (a) enforces an important right affecting the public interest and (b) confers a significant benefit upon the general public or a large class of persons, if (c) the necessity and cost to plaintiff in bringing its private enforcement action outweighs its stake in the action) and Yslava v. Hughes Aircraft Co., 845 F. Supp. 705 (D. Ariz. 1993) ("private attorney general doctrine" allows recovery of attorneys' fees in discretion of court if a party has vindicated a right that (1) benefits a large number of people, (2) requires private enforcement, and (3) is of societal importance)).

In their appeal, Kyowa Violet argues that the case at hand actually resulted in the issuance of a very substantial private money judgment to a select group of people – the plaintiff class – and it did so to the exclusion of anyone who was not a member of the plaintiff class. In addition, Kyowa Violet maintains that in doing so, the Plaintiff class pursued their case to the detriment of everyone else in Yap by claiming to own the submerged reef and marine resources, thereby extinguishing any notion of public ownership over the marine area in question. Kyowa Violet maintains that the private attorney-general doctrine is designed to award attorney's fees when a plaintiff vindicates the rights of a large number of other people, without obtaining a personal monetary benefit in the form of a judgment.

An abuse of discretion occurs when 1) the court's decision is clearly unreasonable, arbitrary, or fanciful; 2) the decision is based on an erroneous conclusion of law; 3) the court's findings are clearly erroneous; or 4) the record contains no evidence on which the court rationally could have based its decision. Panuelo v. Amayo, 12 FSM Intrm. 365, 372 (App. 2004). Such abuses must be unusual and exceptional; an appeals court will not merely substitute its judgment for that of the trial judge. Id. at 372.

In arguing that the trial court abused its discretion in awarding attorney's fees under the private attorney-general doctrine, Kyowa Violet distinguishes the matter at hand from Udot on the basis that Udot did not involve the issuance of a money judgment, but instead resulted in the FSM being enjoined from disbursing certain public funds in the absence of a fair and transparent process for doing so. To ensure that others were not discouraged from engaging in such public-interest litigation in the future, an award of attorney's fees under the private attorney general doctrine was necessary.

Kyowa Violet also cites to numerous cases in other jurisdictions which purport to stand for the principle that attorney's fees should only be awarded under a private attorney general theory when the

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"cost of the claimant's legal victory transcends his personal interest, that is, when the necessity for pursuing the lawsuit placed a burden on the plaintiff out of proportion to his individual stake in the matter." Woodland Hills Residents Ass'n v. City Council of Los Angeles, 593 P.2d 200, 213 (Cal. 1979). See Hammond v. Agran, 120 Cal. Rptr. 2d 646, 650-51 (Cal. Ct. App. 2002).

The private attorney-general doctrine makes no distinction in the award of attorney's fees based upon the overall amount of damages that are awarded, nor does it differentiate between an award of monetary damages from injunctive relief. Instead, and this Court has recognized, attorney's fees not otherwise be awardable, may be awarded under the private attorney general doctrine only when the lawsuit met certain requirements, including vindicating rights that benefit a large number of people, when the private parties were required to file suit to enforce those rights because a government authority was unable to do so, and when the rights enforced are of great social importance.

Here, the People of Rull and Gilman's pursuit of this case arguably resulted in the vindication of an issue of societal importance – preserving the marine resources for later use – that benefited a large number of people – some 2,258 class members – given Yap's limited population. This is similar to the case of Udot, in which a large number of people benefited from having a municipality undertake the private enforcement of the constitutional separation of powers that resulted in greater accountability in the use of public project funds by requiring the FSM Congress to legislate within its constitutional limits.

Unlike the situation in Udot, however, the case at hand involved private citizens pursuing purely civil claims – the tort of negligence – against other private citizens. Indeed, having recognized that the Plaintiff class had standing to recover damages for the maritime mishap that occurred here, the trial court recognized that the individuals of Yap State have unique customary rights of ownership over the marine resources through the tabinaw. Indeed, this would preclude any government effort to vindicate any rights associated with damage to the marine ecosystem, thereby requiring any such causes of action to be pursued by private citizens.

Under these circumstances, and since the Government of Yap could not have undertaken any action to vindicate the rights that the People of Rull and Gilman pursued, an award of attorney's fees under the private attorney-general doctrine is erroneous. As this Court explained in the case of Udot:

The private attorney general theory permits government reimbursement of a party's attorney fees when it must hire its own attorney to enforce a right shared by a large number of people, when it is in the public interest. The theory recognizes that the government does not always adequately protect the rights of citizens, and that people who successfully defend the rights of the public at their own cost deserve to have their attorney fees paid for, as if they had been provided the services of a "private attorney general."

FSM v. Udot Municipality, 12 FSM Intrm. at 36 n.4.

As noted above, an abuse of discretion occurs when, inter alia, the court's decision is based on an erroneous conclusion of law. In the matter at hand, we conclude that it was error for the trial court to award attorney's fees and costs under the private attorney-general doctrine in a case in which the government could not have taken any action to vindicate the rights of the people affected. Accordingly, we vacate that portion of the trial court order awarding attorney's fees and costs to the People of Rull and Gilman under the private attorney-general doctrine as well as the trial court's subsequent order fixing an award of those fees and costs. As such, the remaining issues presented on appeal, including the challenges to the actual amount of attorney's fees and costs awarded to the Plaintiff class, are

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hereby dismissed as moot.

III. CONCLUSION

In conclusion, and for the reasons set forth above, we affirm the trial court's award of damages to the People of Rull and Gilman. As such, the Kyowa Violet's appeal of that portion of the trial court's order awarding damages to the People of Rull and Gilman for the incident at issue here is hereby denied, as is the cross-appeal filed by the People of Rull and Gilman, which seeks a review of the trial court's failure to award certain additional damages to them.

Further, we reverse and vacate the trial court's award of attorney's fees and costs to the People of Rull and Gilman under the private-attorney general doctrine. As such, we grant the Kyowa Violet's appeal before us as to that portion of the trial court order awarding attorney's fees and costs under the private attorney-general doctrine. Because we reverse and vacate the trial court's award of attorney's fees and costs under the private attorney-general doctrine, both parties' respective appeals of the trial court order concerning the amount of attorney's fees and costs awarded to the People of Rull and Gilman are dismissed as moot.

Judgment shall be entered accordingly.

¹ Pursuant to the Court's earlier Order, the Kyowa Violet Appellants were designated as the "appellant" for the purposes of filing briefs in these appeals and cross appeal. FSM App. R. 28(h).