POHNPEI SUPREME COURT
TRIAL DIVISION
Cite as Micronesian Legal Services Corporation v. Ludwig ,
3 FSM Intrm. 241
(Pon. S. Ct. Tr. 1987)

[3 FSM Intrm. 241]

MICRONESIAN LEGAL
SERVICES CORPORATION,
Plaintiff,

vs.

LUTHER LUDWIGand his family,
Defendants.

CIVIL ACTION NO. 81-87

JUDGMENT

Before Judah C. Johnny
Associate Justice
Pohnpei Supreme Court
August 13, 1987

APPEARANCES:
     For the Plaintiff:            Stephen R. Skipton
                                            Micronesian Legal Services Corporation
                                            Pohnpei, FSM 96941
 
     For the Defendants:     Joseph S. Phillip
                                            Public Defender
                                            Pohnpei, FSM 96941

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HEADNOTES
Constitutional Law - Due Process;
Civil Rights
     The due process clause of the Pohnpei State Constitution, art. IV, 4, guarantees the right of due process articulated in the governing law.  Micronesian Legal Servs. Corp. v. Ludwig, 3 FSM Intrm. 241, 244 (Pon. S. Ct. Tr. 1987).

Public Lands
     The Pohnpei Public Lands laws do not provide for the disposal or lease of public lands in Kolonia Town by the Pohnpei Public Lands Authority.  Micronesian Legal Servs. Corp. v. Ludwig, 3 FSM Intrm. 241, 247 (Pon. S. Ct. Tr. 1987).

[3 FSM Intrm. 242]
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COURT'S OPINION
JUDAH C. JOHNNY, Associate Justice:
     Trial in this matter was held before me on May 8 and 20, 1984, at Kolonia, State of Pohnpei.

I.  Facts
     This matter involves two parcels of land, located in Kolonia Town, State of Pohnpei, particularly identified as Parcel No. 013-A-05, and No. 013-A-06, both commonly known as the "Mobil Oil residences."

     From the pleadings on file and evidence adduced at trial, I find that both of these parcels are part of public lands which were placed in the Pohnpei Public Lands Authority, a state legal entity created by state law to receive, and hold title to public lands in trust for the people of Pohnpei.  Both parcels were leased to the Mobil Oil Micronesia, and had been used primarily for staff housing.  Mobil Oil is also the lessee of a certain parcel of land at the Pohnpei Commercial Port on Takatik Island, upon which Mobil Oil maintains and operates a mobil plant, and services the State and vessels (both air and surface), with the supply of petroleum, oil and lubricants.

     By virtue of an agreement by which Public Lands Authority authorized Mobil Oil to transfer by construction, new staff housing on the Takatik Island premises, Mobil Oil Micronesia relinquished its lease rights to these land parcels nos. 013-A-05, and No. 013-A-06 effective January 1, 1987.

     Defendant Luther Ludwig is an employee of Mobil oil Micronesia, serving in the capacity of Assistant Manager for the Pohnpei office.  Defendant entered and occupied a Mobil Oil residence located on parcel 013-A-06 for three years prior to this action by virtue of his employment with Mobil Oil.  He occupies the premises to the present despite the reversion of the premises by Mobil Oil Micronesia, through its forfeiture of the lease agreement.

     Plaintiff Micronesia Legal Services Corporation is a publicly funded and legally incorporated non-profit semi-government organization, which is providing civil legal services to the citizens of Micronesia.  Plaintiff services through offices situated through the main islands formerly comprising the Trust Territory of the Pacific Islands, including the Marshalls with offices in Majuro, Kosrae, Truk, Saipan, Yap, Palau and Pohnpei.

     Plaintiff's Pohnpei office structure was burned down in December of 1986. Since that incident, plaintiff has been attempting to secure adequate temporary office space in order to restore full legal services to the people of Pohnpei.  It is in this effort that plaintiff negotiated and obtained a three year use agreement from Pohnpei Public Lands Authority for and over land parcels 013-A-5 and 013-A-06, including two houses located thereon which were built and occupied, but now relinquished by Mobil oil Micronesia.  Plaintiff's

[3 FSM Intrm. 243]

use agreement took effect on January 12, 1987.

     Following execution of its use agreement, plaintiff has moved upon the premises and began to remodel the structures.  Plaintiff has been prevented from doing remodeling work on the structure located on Parcel 012-A-06 because of defendant's and his family's occupancy irrespective of communications by plaintiff and the Public Lands Authority to vacate.  That leads to this dispute.

II.  Analysis and Conclusions
     Here, plaintiff claims exclusive right to the premises through the use agreement granted to it by the Public Lands Authority.  Plaintiff by this action, seeks ejectment of the defendant and his immediate family.  It asserts its rights on the power of Pohnpei Law D.L. No. 4L-69-76.  State Law D.L. No. 4L-69-76 establishes the Pohnpei Public Lands Authority, to be headed by a Board of Trustees.  It is vested with the power to receive, hold and dispose of public lands in this State.  Pertinent to this matter, the authority is given the power to "sell, lease, exchange, use, dedicate for public purposes, or make other dispositions of such public lands pursuant to District (State) Law."  Section 10(5).

     Clearly, if no other right of law stands in the way of the plaintiff, it shall prevail in this matter.  Thus, in the following discussions, I will attempt to analyze what right there may be, that exists in the defendant, that is capable of over-turning the asserted right of the plaintiff, or what law there may be, which is asserted or not asserted, that by its terms, stands to bar the plaintiff's asserted right to the premises.

     First, I will examine any right there may be of the Defendant.  Contrary to the allegations of the plaintiff, defendant asserts his right to the premises on the basis of his open, active occupancy and on an alleged letter of application for lease sent to the Public Lands Authority.  Notwithstanding that Public Lands Authority had not made indication of acceptance of his application, defendant contends that due process gives him right of notice in the process of the disposition of the parcels to the plaintiff.  Defendant's asserted right is argued in page three of its brief.  There the defendant asserts that he is a tenant in Parcel No. 013-A-06 by virtue of his employment with Mobil Oil.  He continues occupation after relinquishment of the premises by Mobil Oil on the assumed right claimed to have been acquired from his application to lease, and his open, active occupation of the premises.  It is that right that he now asserts having entitled him to notice under the due process clause of Article IV, Section 4 of the Pohnpei State Constitution.  He claims that the use agreement relied on by the plaintiff cannot prevail because it violates the mandate of S.L. No. 2L-41-80 which requires advertisement precedent to the granting of lease or use agreements, ignoring due process right of notice to be heard.

     Due process doe not inure to a party directly from Article IV, Section 4 of the Pohnpei State Constitution.  Putting it bluntly, the provision of Article IV, Section 4 providing that "no person may be deprived of life,

[3 FSM Intrm. 244]

liberty or property without due process of law" does not in itself create a right in the defendant.  A right is created in a person by law.  For instance, if a law in this state provides that, "any man who develops a part of the public land, owns the land to the extent that he develops," and a man so develops as provided by the law, he acquires a right of ownership of the land he developed by virtue of the law.  Once acquired, State may not take the land from him, without proper compensation, or without his consent, for it is denial of his rights to own and, therefore, denial of due process, guaranteed under Article IV, Section 4 of the Pohnpei Constitution.  A person's right must have been acquired under the law in order for him to have a right protected by the due process clause.  Consequently anyone in whom the law has not created a right, cannot assert protection by due process, on basis of Article IV, Section 4. Under the foregoing analysis, one asks, does the defendant have a right created by any law of this State by virtue of his occupancy of Parcel No. 013-A-06, or by virtue of his alleged application?

     Defendant does not bring to court an existing law that governs or creates a legal right in him to the premises in dispute because no law provides such right to him.  In fact, my own search of the existing laws of the State of Pohnpei fails to uncover a legal provision which gives legal right in a tenant of a parcel of public land which has not been advertised for lease or use a type of land-holding right that the defendant is claiming to possess.  Defendant is not asserting possession of a right to lease or use the premises; rather, he is asserting the right to be heard in the negotiation proceedings which culminates into the use agreement given the plaintiff.  Defendant relies on various provisions of the existing laws, governing the disposition of public lands by the Public lands Authority, in Pohnpei, such as the absence of a designation by law of resolution of the parcels as being available for lease or use, (D.L. No. 4L-69-76 (5) and D.L. 2L-153-82).  It is clear, therefore, that the defendant has no prevailing right over the plaintiff to the premises.  In fact, he possess no legal right to occupy, lease, or use the premises.

     I shall next determine whether there is a law, or resolution that operates to bar plaintiff's asserted right to the parcels under the use agreement, granted to it by the Public Lands Authority.  In so doing, I am required to consult the laws that govern the disposition of public lands in Pohnpei.

     Genesis among those laws is D.L. No. 4L-69-76, which was enacted to create the Ponape District Public Lands Authority (now Pohnpei State Public Lands Authority) in order to receive public lands for the people of Pohnpei, when public lands was returned to the people of Micronesia from the trust administration of the United States government as the administering authority under terms of the United Nations Trusteeship Agreement, and the United State Department of Interior Secretarial Order No. 2969.  Section 10 of D.L. 4L-69-76 grants the powers, duties, legal capacities and characteristics of the Public Lands Authority.  In subsection 5, Authority is given the power,

[3 FSM Intrm. 245]

To sell, lease, exchange, use, dedicate for public  purposes, or make other disposition of such public lands pursuant to district law.

     The apparent restricting clause in sub-section (5) is the reading, "pursuant to district law."  And this is the catchall provision of the law to examine.

     The power of subsection (5) was subsequently defined by the State Legislature some two years later by the enactment of D.L. No. 4L-153-78. Section 1 of that law reads in part,

The Board of Trustees of the Ponape District Public Lands Authority, hereinafter referred to as `Authority' is empowered and authorized to execute leases and other use agreements in regard to public lands held in trust by the Authority and designated as available for lease or use by Resolution of the Ponape District Legislature to Trust Territory citizens or corporations or business associations wholly owned by citizens of the Trust Territory, for periods of not more than twenty-five years, including renewals.....

D.L. No. 4L-153-78 was amended in 1980 by S.L. No. 2L-41-80.  Section 1 was changed merely in phraseology, reading,

The Board of Trustees of the Ponape State Public Lands Authority, hereinafter referred to as `authority,' is empowered and authorized to execute leases and other use agreement in regard to public lands held in trust by the Authority and designated as available for lease or use by State Law or by Resolution of the Ponape State Legislature to Trust Territory citizens, or corporations or businesses wholly owned by citizens of the Trust Territory or holding valid foreign investment permits for period of not more than twenty-five years, including renewals ....

The changes of words and additional phrases are as underlined.  D.L. No. 4L-153-78, as amended by S.L. No. 2L-41-80, was further amended in 1982 by S.L. No. 2L-153-82.  While Section I was further amended, phraseology of portion of section I as quoted above was not changed.  Thus, section 1 of S.L. No. 2L-135-82 continues to read,

The Board of Trustees of the Ponape State Public Lands Authority, hereinafter referred to as the `Authority', is empowered and authorized to execute leases or use agreement in regard to public lands held in trust by the Authority  and designated as available for lease or use by State Law  or Resolution of the Ponape State Legislature to Trust Territory citizens, or corporations or businesses wholly

[3 FSM Intrm. 246]

owned by citizens of the Trust Territory holding valid foreign investment permits for periods of not more than twenty-five years, including renewals.

This is the existing law, and it is the law that concerns the conclusions of this matter.

     It can be seen that the catchall phrase in the limitation on the power and authority of the Public Lands Authority to dispose of public lands in Pohnpei, under D.L. No. 4L-69-76, Section 10 (5), is "pursuant to District law," and under D.L. No. 4L-153-78, as amended is, "and designated as available for lease or use by State law or by Resolution of the Ponape State Legislature."  These catchall phrases obviously impose a limitation upon the power of Public Lands Authority to dispose of public lands held by it in trust for the people of Pohnpei. Under these provisions, the Public Lands Authority cannot and does not have power to "sell, lease, exchange, use, dedicate for public purposes, or make other disposition of such public lands", until the Pohnpei State Legislature shall have by Law and Resolution designated as available" such public lands for that purpose.  Given that limitation, I shall now examine, whether or not the Pohnpei State Legislature has designated Parcel 013-A-05 and/or 013-A-06 as available for lease or use, so that the Public Lands Authority may dispose of them in the nature that parties have alleged in this action.

     While the parties failed to provide any lead in this respect, the court takes notice that on July 4, 1979, by Legislature Resolution No. 227, L.D. 1, the Pohnpei State Legislature, under D.L. No. 4L-69-76 as amended and D.L. No. 4L-153-78, designated as available for lease or use agreement, the following portions of public lands,

     "1.     Public Lands and other public real property in the area now comprising Kolonia Town; and
     "2.     . . .; and
     "3.     . . .; and
     "4.      . . . ."

     Clearly L.R. 227 lifted the limitation upon Public Lands Authority to execute agreements for lease or use in parcel of public lands in Kolonia  Town, of which, Parcels 013-A-05 and 013-A-06 are a part.  Parties failed also to lead this court to a subsequent act of the State Legislature, which is crucial in the subsequent act of the State Legislature, which is crucial in the determination of their rights in this action.  Someone once said, "A judge rarely performs his functions adequately unless the case before him is adequately presented."  (Louis D. Brandeis)  Nevertheless, in 1985, June 12 to be precise, the State Legislature adopted Legislature Resolution No. 80-85 which reads in pertinent part,

BE IT RESOLVED by the First Pohnpei Legislature, Second Regular Session, 1985, that Legislature Resolution No. 227,

[3 FSM Intrm. 247]

L.D. 1 passed by the Fourth Ponape State legislature on July 4, 1979, 'Declaring certain areas of public land held or to be held by the Ponape State Public Lands Authority available for lease or use agreement' is repealed in its entirety; ... (emphasis added).

     It is clear, therefore, that the intent of the Pohnpei State Legislature under these laws, is that the power given the Public Lands Authority is conditioned upon specific authorization of the Legislature.  It follows, therefore, in response to the question as to whether there is a law or resolution which stands in the way of the Plaintiff to obtain relief as sought in this court, that D.L. No. 4L-69-76, as amended, and especially L.R. No. 80-85, clearly stand in the way.  The Public Lands Authority was not empowered nor authorized to execute any lease or use agreement affecting the right of the public over parcels 013-A-05 and 012-A-06 on January 12, 1987.

     Parcels 013-A-05 and 013-A-06 have been reverted to the trust custody of the Public Lands Authority or any authority that by law they may be held, and shall be held and disposed of according to the laws as discussed here, until otherwise amended or repealed.

     This court is cognizant of the enactment of S.L. No. 1L-155-87, which took effect on July 29, 1987, repealing D.L. No. 4L-69-76.  It notes, nevertheless, that the grant of power of the newly established Pohnpei Public Lands Trust, as shown in Section 11(b), remains the same.

III.  Judgment
     It is ORDERED, ADJUDGED AND DECREED:

     1.     The agreement between Public Lands Authority and Plaintiff, entered into on January 12, 1987 granting use right of Parcels 013-A-05 and 013-A-06 to Plaintiff, is null and void.

     2.     Defendant and those claiming under him have no legal right of possession, lease or use in Parcels 012-A-05 and 013-A-06, including any improvements thereon.

     3.   This matter is dismissed.

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