FSM SUPREME COURT TRIAL DIVISION
Cite as Damarlane v. FSM ,
8 FSM Intrm. 119 (Pon. 1997)

[8 FSM Intrm. 119]

IGNACIA DAMARLANE, KADALINO DAMARLANE,
BENSIS DAMARLANE, GREGORIO DAMARLANE,
JOAQUIM CANTERO and MATTEO PRIMO,
Plaintiffs,

vs.

FEDERATED STATES OF MICRONESIA, POHNPEI
STATE GOVERNMENT and POHNPEI
TRANSPORTATION AUTHORITY,
Defendants.

CIVIL ACTION NO. 1995-121

ORDER AND MEMORANDUM

Richard H. Benson
Associate Justice

Decided:  July 4, 1997

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

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

For the Defendants:   Todd Richards, Esq.
(Pohnpei & PTA)        Assistant Attorney General
                Pohnpei Department of Justice
                P.O. Box 1555
                Kolonia, Pohnpei FM 96941

*    *    *    *

[8 FSM Intrm. 120]

HEADNOTES
Civil Procedure ) Res Judicata
     The doctrine of res judicata bars the relitigation by parties or their privies of all matters that were or could have been raised in a prior action that was concluded by a final judgment on the merits, which has been affirmed on appeal or for which time for appeal has expired.  Damarlane v. FSM, 8 FSM Intrm. 119, 120 (Pon. 1997).

Civil Procedure ) Dismissal
     A motion to dismiss for failure to state a claim may be granted only if it appears to a certainty that no relief could be granted under any state of facts which could be proven in support.  Damarlane v. FSM, 8 FSM Intrm. 119, 121 (Pon. 1997).

Environmental Protection
     The FSM Environmental Protection Act does not provide for a citizen's claim for damages.  Damarlane v. FSM, 8 FSM Intrm. 119, 121 (Pon. 1997).

Civil Procedure ) Dismissal; Environmental Protection; Property ) Tidelands
     Claims for damages for violation of the FSM Environmental Protection Act and for damage based on an alleged property interest in the reef and lagoon adjoining plaintiffs' land will be dismissed for failure to state a claim for which relief may be granted.  Damarlane v. FSM, 8 FSM Intrm. 119, 121 (Pon. 1997).
*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     I have before me the defendant FSM's Renewed Motion for Summary Judgment, filed April 18, 1997, and the FSM's Motion to Dismiss for Failure to State a Claim, filed May 3, 1996, which motion defendants State of Pohnpei and Pohnpei Transportation Authority have joined and adopted.  The summary judgment motion is granted and the motion to dismiss is granted in part.  My reasons follow.

I.  Renewed Summary Judgment Motion
     The summary judgment motion is brought on the ground that the claims of Ignacia Damarlane, Kadalino Damarlane, Bensis Damarlane, and Gregorio Damarlane are barred by res judicata.  That doctrine bars the relitigation by parties or their privies of all matters that were or could have been raised in a prior action that was concluded by a final judgment on the merits, which has been affirmed on appeal or for which time for appeal has expired.  Nahnken of Nett v. United States, 7 FSM Intrm. 581, 586-87 (App. 1996); Berman v. FSM Supreme Court (II), 7 FSM Intrm. 11, 16 (App. 1995); United Church of Christ v. Hamo, 4 FSM Intrm. 95, 106 (App. 1989).

     The Damarlane plaintiffs in this case were plaintiffs in and the defendants in this case were defendants in Damarlane v. United States, Civil Action No. 1990-075.  That case went to trial on July 20, 1995 on all the Damarlanes' claims up to the date of trial.  Judgment was entered for the defendants on all claims.  See Damarlane v. United States, 7 FSM Intrm. 350 (Pon. 1995).  The judgment was affirmed on appeal.  Damarlane v. United States, 8 FSM Intrm. 45, reh'g denied, 8 FSM Intrm. 70 (App. 1997).

[8 FSM Intrm. 121]

     The Damarlane plaintiffs' claims in that case are the same as the claims in this case, or are all based on the same issues that were raised or could have been raised in the earlier proceeding.  I therefore conclude that res judicata bars the Damarlane plaintiffs' claims.  The motion for summary judgment against those plaintiffs is hereby granted.  There being no just reason for delay, let judgment be entered against Ignacia, Kadalino, Bensis, and Gregorio Damarlane.  FSM Civ. R. 54(b).

II.  Dismissal for Failure to State a Claim
     The FSM seeks dismissal (and the other defendants have joined in this motion) of the plaintiffs' complaint to the extent that it is based on the existence of a private cause of action derived from the enforcement provisions of Title 25 of the FSM Code, and dismissal of the plaintiffs' claims for compensation for damage to the reef and lagoon adjacent to their properties.  The defendants contend that these claims fail to state a claim for which relief can be granted and are thus subject to dismissal.  FSM Civ. R. 12(b)(6).  The motion does not seek dismissal of plaintiff Joaquim Cantero's claim for compensation for the alleged taking of an easement or of plaintiff Matteo Primo's claim for compensation for the destruction of a fish mahi.  Those claims remain.

     I may grant a motion to dismiss for failure to state a claim "only if it appears to a certainty that no relief could be granted under any state of facts which could be proven in support."  Faw v. FSM, 6 FSM Intrm. 33, 37 (Yap 1993).

A.  Title 25 Private Cause of Action
     The plaintiffs contend that the FSM Environmental Protection Act, 25 F.S.M.C. 501 et seq., gives them a right of action to seek damages for its violation and injunctive relief.  The Act's enforcement provisions, 25 F.S.M.C. 703-707, are similar to, but a simplified version of the Trust Territory Environmental Quality Protection Act, 63 TTC 506-509 (also codified at 25 F.S.M.C. 301-309).  The Trust Territory Act does not, as a matter of law, to provide for a citizen's claim for damages.  Damarlane v. United States, 6 FSM Intrm. 357, 361 (Pon. 1994) (various environmental protection acts do not provide for a private right of action for damages).  I conclude that, as a matter of law, the FSM Environmental Protection Act does not provide for a citizen's claim for damages either.  There are therefore no set of facts that could be proven which would entitle the plaintiffs to damages for the defendants' alleged failure to comply with the Act.  The motion is granted as to an action for damages under Title 25.  But at this point in the litigation I cannot conclude that it appears certain that there is no state of facts that could be proven to support a claim for injunctive relief.

B.  Compensation for Damage to Reef and Lagoon
     The highest state court has determined that, as a matter of Pohnpei state law, landowners have no compensable property interest in the adjoining reef and lagoon.  Damarlane v. United States, 7 FSM Intrm. 56 (Pon. S. Ct. App. 1995). The plaintiffs now contend that I should disregard that decision because its author was biased toward the plaintiffs' counsel in that case.

     That state court appellate decision has been faithfully applied by the FSM Supreme Court.  It was adhered to by the trial division in Civil Action No. 1990-067, and that adherence was affirmed by the appellate division.  Damarlane v. United States, 8 FSM Intrm. at 52-53.  I will not disregard that decision now. Claims for compensation for damage to the adjoining reef and lagoon are hereby dismissed for failure to state a claim.

[8 FSM Intrm. 122]

III.  Conclusion
     Accordingly, because it is certain that no state of facts could be proven that would entitle the plaintiffs to damages based on the FSM Environmental Protection Act or to damages based on an alleged property interest in the adjoining reef or lagoon, the motion to dismiss is granted in those parts.  The motion for summary judgment against the Damarlane plaintiffs is also granted. The defendants shall file their answers to those claims still outstanding within ten days of notice of this order.  FSM Civ. R. 12(a)(1).
                                                                                                                                                                                                                                                                                                           
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