VOLUME 5, FSM SUPREME COURT INTERIM REPORTER
 
 
 
FSM SUPREME COURT TRIAL DIVISION
Cite as Damarlane v. PTA,
5 FSM Intrm. 1 (Pon. 1991)

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KADALINO DAMARLANE et al.
Plaintiffs,

v.

POHNPEI TRANSPORTATION
AUTHORITY et al.,
Defendants.

FSM Civ. No. 1990-075

OPINION
Edward C. King
Chief Justice
Decision Announced:  January 14, 1991
Opinion Issued:  January 21, 1991
 
APPEARANCES:
Pro Se, and for                         Mary Berman
the Plaintiffs:                             P.O. Box 310
                                                   Kolonia, Pohnpei  FM   96941
 
For the Defendants:
Pohnpei Transportation          Joses R. Gallen
Authority and State of              State Prosecutor
Pohnpei                                    State of Pohnpei
                                                   Kolonia, Pohnpei  FM   96941
 
 
FSM National Government     David Webster
                                                   Assistant Attorney General
                                                   Office of the Attorney General
                                                   P.O. Box PS-105
                                                   Palikir, Pohnpei  FM   96941
 
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HEADNOTES
Civil Procedure - Summary Judgment
     In considering a motion for summary judgment, the Court is required to

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view facts and draw inferences in a light as favorable to the party against whom the judgment is sought as may reasonably be done and the motion may then only be granted if it is clear that there is no genuine issue of material fact and that the moving party must prevail as a matter of law.Damarlane v. PTA, 5 FSM Intrm. 1, 3 (Pon. 1991).

Civil Procedure - Summary Judgment; Environmental Protection
      Where the national government, in previous appearances and filings, stated that no valid earthmoving permit was in effect the burden is on the national government at a motion for summary judgment to establish that there was a valid delegation of permit granting authority by the national government to the state officials.  Damarlane v. PTA, 5 FSM Intrm. 1, 6 (Pon. 1991).

Civil Procedure - Affidavit; Civil Procedure - Summary Judgment
     An affidavit which contains a bare conclusory statement without any specific factual basis therefor, is insufficient to raise a question of fact in a motion for summary judgment.  Damarlane v. PTA, 5 FSM Intrm. 1, 7 (Pon. 1991).

Constitutional Law - Due Process; Environmental Protection
     Although neither the Environmental Protection Act nor the earthmoving regulations contain any absolute requirement that a public hearing be held before an earthmoving permit may be issued, the issuance by national government officials of a permit authorizing earthmoving by a state agency without holding a hearing and based simply upon the application filed by the state agency and the minutes prepared by the state officials, is arbitrary and capricious where the dredging activities have been long continued in the absence of a national earthmoving permit and where the parties directly affected by those activities have for several months been vigorously opposing continuation of the earthmoving activities at the dredging site.  Damarlane v. PTA, 5 FSM Intrm. 1, 8 (Pon. 1991).
 
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COURT'S OPINION
EDWARD C. KING, Chief Justice:
        This opinion is written to explain further the decision of this Court announced in open court on January 14, 1991.
 
        Plaintiffs are various persons who live on, or claim interests in, land in Mesenpal, Awak, U Municipality, Pohnpei.  They assert a multiplicity of claims to the effect that the dredging and other earthmoving activities, undertaken by the Pohnpei Transportation Authority ("PTA") in the lagoon abutting Mesenpal to provide coral for the Pohnpei circumferential road paving project, are illegal.

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        The case is now before the Court on plaintiffs' motion for summary judgment.  In considering a motion for summary judgment, the Court is required to view facts and draw inferences in a light as favorable to the party against whom the judgment is sought as may reasonably be done.  Bank of Guam v. Island Hardware, Inc., 2 FSM Intrm. 281, 284 (Pon. 1986).  The motion may then be granted only if it is clear that there is no genuine issue of material fact and that the moving party must prevail as a matter of law.  Federated Shipping Co. v. Ponape Transfer & Storage, 4 FSM Intrm. 3, 4 and 14 (Pon. 1989).

        The Court's analysis begins with, and is influenced by, recognition that interests in land and questions of state law are at issue in this case.  This Court has repeatedly emphasized the strong state interests in having issues affecting land rights and other matters of state or local law resolved by state decision makers.Ponape Transfer & Storage v. Federated Shipping Co., 4 FSM Intrm. 37, 40-47 (Pon. 1989).  Therefore the Court has been reluctant to decide such issues without first giving consideration to the possibility of certifying the issues to state courts, or abstaining to permit state courts to resolve the issues.

        It is not clear that there is no genuine issue of material fact as to plaintiffs' claims of trespass, breach of contract, nuisance and violation of Pohnpei State environmental laws.  For this reason and because the claims involve matters of state law, summary judgment is denied as to those claims.  Similarly, the assertions that plaintiff's constitutional rights of equal protection and due process have been violated raise factual issues, and therefore may not be resolved by summary judgment and must be denied.

        There are however issues of strictly national law which do demand immediate attention.  The attention of the parties and the Court up to the present stage of this litigation has focused on whether PTA's activities are in violation of the FSM national Environmental Protection Act, 25 F.S.M.C. 501 et seq. (Supp. 1987), and the national earthmoving regulations.  II FSM Regs., Earthmoving, Parts 1 through 7. For the reasons hereafter explained, the Court on January 14 has now held that plaintiffs are entitled to summary judgment on these issues of national law.

I.  The Statute and Regulations
A.  Environmental Protection Act
        In 1984, the Congress of the Federated States of Micronesia, "recognizing the profound impact of man's activity on the interrelations of all components of the national environment, particularly the profound influences of . . . resource exploitation . . . and recognizing further the critical importance of restoring and maintaining environmental quality for the overall welfare and development of man," enacted the Federated States of Micronesia Environmental Protection Act, declaring it to be the "policy of the Federated States of Micronesia, in cooperation with State and municipal governments and other concerned and public and private organizations," to:

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use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic and other requirements of present and future generations of the Federated States of Micronesia.

25 F.S.M.C. 502(1) (Supp. 1987).

    The Act called for establishment within the Office of the President of an Environmental Protection Board.  Id. 601(1).  The Board was assigned a sweeping mission, "to protect the environment, human health, welfare and safety and to abate, control, and prohibit pollution or contamination of air, land, and water."  Id. 609. The Board was specifically vested with power to:

establish and provide for the continuing administration of a permit system whereby a permit shall be required for the discharge by any person of any pollutant in the air, land or water, or for the conduct by any person of any activity, . . . which . . . may result in the discharge of any pollutant in the air, land, or water . . . .

25 F.S.M.C. 610(6) (Supp. 1987).

    In enacting this legislation, Congress made plain its intention that the Board's regulatory powers would extend to state and local, as well as to national, activities. The term "person" is defined comprehensively as including "the Federated States of Micronesia, a State, municipality, political subdivision, a public or private institution, corporation . . . association . . . or company organized or existing under the laws of the Federated States of Micronesia or any State or country . . . .  Id. 503(3).

    Subsequently, in November 1987, as part of governmental reorganization legislation, the Board's powers under the Environmental Protection Act were transferred to "the Secretary of Human Resources or his designee."  Pub. L. No. 5-21, 10 (5th Cong., 1st Reg. Sess. 1987).

B.  Earthmoving Regulations
    In November 1988, the Secretary of Human Resources, pursuant to 25 F.S.M.C., adopted Earthmoving Regulations.  These regulations define "earthmoving" as "any . . . activity which disturbs or alters the surface of the land, a coral reef or bottom of a lagoon, including . . . excavations, dredging, embankments . . . and the moving, depositing, or storing of soil, rock, coral, or earth."  II FSM Regs., Earthmoving, Part 1, 1.3(f).

    Specifying that "all earthmoving activities within the Federated States of

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Micronesia shall be conducted in accordance with these regulations," id., Part 2, 2.1, the regulations require a written erosion and sedimentation control plan and the use of various control methods and facilities.  Id. 2.2 & 2.3.

    The principal mechanism for assuring compliance with these regulatory mandates is the imposition of a permit requirement.  The regulations provide that a person wishing to engage in an earthmoving activity "shall first obtain a permit from the Secretary for the proposed activity."  Id. , Part 3, 3.1.  The permit application must be accompanied by an erosion and sedimentation control plan.Id. 3.2(b).

II. Factual and Procedural Background
      Nobody questions that the Mesenpal dredging activities, including the current plan to remove the dike for use of the sand, rock, dirt and crushed coral in paving the circumferential road, constitute earthmoving activities within the meaning of the earthmoving regulations.  Indeed, PTA originally sought and obtained an FSM permit, issued on August 19, 1988, authorizing dredging at the Mesenpal site up through February 28, 1989.  However, when this litigation was initiated on September 25, 1990 that earlier FSM permit had expired and had not been replaced.  Thus, on October 18, plaintiffs' motion for preliminary injunction was granted and the activities at Mesenpal were enjoined.

    Subsequently, on November 21, 1990, the Pohnpei Department of Health Services issued a permit.  The State defendants then moved for the preliminary injunction to be set aside.  However, no assertion was made during the December 11 hearing on that motion that the Pohnpei permit either fulfilled, or obviated, the need for a national permit.  Indeed, counsel for the national government at that hearing stated the view that a national permit is required and that none existed. Accordingly, the Court denied the motion of PTA and Pohnpei State for setting aside the injunction on grounds that the requirements of national law had not been met.

III. The New National Government Assertions
    Against this background, the Court has been extremely surprised by the national government's new positions, taken now, for the first time, in response to plaintiffs' motion for summary judgment.  Both tiers of this new two-level approach are completely novel to this case, at odds with anything represented by the national government at any hearing prior to this one.

    For the following reasons the Court has concluded that neither of these new contentions is sufficient to raise an issue of fact or law and that the issuance of a summary judgment in favor of plaintiffs is required as a matter of law.

A.  The Delegation Theory
 
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    The national government begins its response to plaintiffs' motion for summary judgment by saying that "a chronology of key events is important to a full understanding of the facts of the case."  The first "fact" is the first of the new contentions:  "In September 1989 the FSM delegated its authority to issue earthmoving permits to Phonpei (sic) State."

      It is by no means clear that the Secretary would be permitted, as a matter of law, to delegate his permit granting authority under the regulations to some other person or official.  The statutes do seem to contemplate some power of delegation.  As already pointed out, the Reorganization Act transfers the powers of the former Environmental Protection Board to the Secretary "or his designee." Pub. L. No. 5-21, 10.  Moreover, the Environmental Protection Act authorizes the Secretary to enter into "written cooperative agreements with the States" to permit a state or state agency to act "as an agent . . . in implementing programs at the State level" or to perform "any other activities within the jurisdiction" of the Secretary.  25 F.S.M.C. 701(1).  Yet, it is by no means clear that the statutory authorization of "written cooperative agreements" could justify abdication by the Secretary of duties and responsibilities assigned to him under the Act.

      Moreover, the earthmoving regulations assign duties directly to specific national officials and do not authorize delegation of those duties.  The regulations say only that the erosion and sedimentation control plan must be filed with the FSM Department of Human Resources, and that the permit must be obtained from the FSM Secretary of Human Resources.  II FSM Regs, Earthmoving, Part 1, 1.3(d) and (n), Part 2, 2.1, and Part 3, 3.1.  No possibility of delegation is referred to.

    However, the Court need not determine now whether such a delegation of the Secretary's powers and responsibilities under the regulations could be lawful for, in its present form, the mere statement that such a delegation of powers has taken place is inadequate to place this question into issue.  The national government apparently has assumed that the burden is on the plaintiffs, as the party moving for summary judgment, to establish the absence of any delegation of permit granting authority by the national government to state officials.  While such a showing by the plaintiffs normally might be required, any such need is obviated in this case because of previous events.  In two written opinions already issued in this litigation the Court has found that no national earthmoving permit existed.  An injunction has been issued and then confirmed, because requirements of national law had not been satisfied.  In the December 11, 1990 hearing, even after the State permit had been issued, all defendants, including the national government, conceded that no action had been taken in compliance with the national statute or regulations.

    In light of this background, the record already, as of December 11, 1990, indicated that no action had been taken by any officials which could be construed as satisfying the requirements of the FSM Environmental Protection Act or of the FSM Earthmoving Regulations.  If a factual issue now is to be raised on this point, it is incumbent upon the defendants to raise it.  In an apparent attempt to do so the government relies upon an affidavit of Dr. Eliuel K. Pretrick, the FSM Secretary of the Department of Human Resources,

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which says, "On or about September 1989 the authority to issue and supervise work under Earthmoving Permits was delegated to State of Pohnpei pursuant [to] 25 F.S.M.C. 701.  From and since that date the State of Pohnpei has exercised exclusive authority over the issuance and supervision of work under Earthmoving Permits."

    The bare conclusory statement that authority "was delegated," without any indication as to how that delegation was accomplished, is insufficient to raise a question of fact.  Cf. Ittu v. Charley, 3 FSM Intrm. 188, 193 (Kos. S. Ct. Tr. Div. 1987). ("An affidavit which merely sets out conclusions or beliefs of the affiant, but which shows no specific factual basis therefor, is inadequate.").

    This is particularly so in light of the fact that 25 F.S.M.C. 701 (Supp. 1987), the only provision which might arguably permit such a delegation, requires that there be a "written cooperative agreement."  At this late stage of the proceedings, the failure to produce any document which might conform to that description is fatal to the government's attempt to suggest that a lawful delegation may have occurred.

    2.  A New National Permit - The second of the government's two new contentions is also described in the chronology set out in the government's response to plaintiffs' motion for summary judgment:

Notwithstanding FSM's prior delegation to Pohnpei State of the authority to issue and monitor earthmoving permits, and because the plaintiff's (sic) have complained that PTA does not have a valid FSM Earthmoving Permit on 29 December of 1990 FSM issued permit No. EP-112-90 on the basis of a thorough review of the minutes of the 1 November 1990 public hearing.

     This statement, too, is supported by the Pretrick affidavit, which says, "an FSM Earthmoving Permit was issued to the Phonpei (sic) Transportation Authority 29 December 1990."  A copy of the permit, authorizing "coral dike removal" at Mesenpal, Awak, U, is attached to the affidavit.  These documents establish that the Secretary issued a national government permit on December 29.

    The remaining task is judicial review, pursuant to the provisions of the Environmental Protection Act:  "The Court shall declare the . . . permit . . . invalid if it finds that it . . . is arbitrary and capricious."  25 F.S.M.C. 706(2).

      It is perfectly understandable, in human terms, that national government officials sometimes may wish to accommodate the desires of state officials by simply acceding to the wishes of those officials in approving any earthmoving proposed by an agency of the state.  That plainly is what has occurred here.  The Court notes that the permit conditions contained in the December 29 national permit, two pages in length, are identical in form, content and

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typeface with the state permit issued on November 21, 1990.

    Neither the statute nor the earthmoving regulations are amenable to such a cooperative frame of mind and the consequent rubber-stamping of wishes and decisions of other persons.  At a minimum, the national statute and regulations require good faith, independent determinations by an appropriate national government official.  It is clear that no such determination has been made here and that no careful consideration has been given by the Secretary of Human Resources to the environmental implications of the proposed earthmoving activities.

    Neither the Environmental Protection Act nor the earthmoving regulations contain any absolute requirement that a public hearing be held before an earthmoving permit may be issued.  The regulations merely say that such a hearing may be held.  II FSM Regs, Earthmoving, Part 3, 3.2(d).  However, under the circumstances of this case, where dredging activities have been long continued in the absence of a national earthmoving permit, and where parties directly affected by those activities have for several months been vigorously opposing continuation of earthmoving activities at the site, the Court finds as a matter of law that issuance by national government officials of a permit authorizing earthmoving by a state agency, without holding a hearing and based simply upon the application filed by the state agency and the minutes prepared by state officials, is arbitrary and capricious.  The national permit issued on December 29 therefore is invalid.

IV.  Government and Laws
      This Court holds no view as to how the competing values of development and environmental preservation should be weighed in the Federated States of Micronesia.  It may well be that the high-sounding phrases of the Environmental Protection Act, and the pervasive coverage of the Earthmoving Regulations, are beyond the needs, aspirations and resources of the Federated States of Micronesia.  Surely it is apparent that officials whose actions are under review in this case have viewed the statutory and regulatory requirements simply as artificial obstacles to be ignored or, if that is not possible, to be slipped around.

      Yet it should be remembered that these laws, in contrast to many statutes and regulations which this Court is asked to enforce, are not merely provisions carried over from the Trust Territory Code.  The Environmental Protection Act, with its soaring rhetoric and optimistic calls for cooperative agreements, environmental impact statements and enforcement actions, was enacted by the elected representatives of the people, the national Congress, and was signed into law by the President.  The extraordinarily comprehensive Earthmoving Regulations were promulgated by the current Secretary of Human Resources.

    Fundamental to democratic self-government is the idea that the laws enacted by representatives elected by the people will reflect the values of most of the people and therefore will be respected and enforced.

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    The mission of the judiciary merely is to interpret and uphold the laws that are enacted.  Normally, these laws should coincide with, and reflect, the will of the people and the judicial task should not be a confounding or disturbing one.  In the circumstances of this case, something seems to have gone awry.  The judiciary finds itself having to insist that national government officials carry out in good faith duties they have voluntarily undertaken.

    If a law of the Federated States of Micronesia calls for actions which the people and officials of this nation consider inappropriate, the law should be reviewed and perhaps revised.  Continued disparity between legal mandates and actions of the officials charged with enforcing the laws inevitably will breed disrespect for the laws, and for government itself.

V.  Conclusion
    The Court finds and declares that no sufficient actions have been taken by FSM national government officials to authorize the continuation of earthmoving activities at the Mesenpal site.  Until the environmental implications of the proposed activities, including the impact upon the plaintiffs in this case, are assessed in good faith by the FSM Secretary of Human Resources in accordance with the requirements of the Earthmoving Regulations, no valid national earthmoving permit may be issued, and Pohnpei Transportation Authority and all other government officials and their agents must be enjoined from further activities on the Mesenpal site.  Summary judgment to this effect is granted to the plaintiffs.  Plaintiffs' motion for summary judgment as to all other claims is denied.

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