FSM SUPREME COURT APPELLATE DIVISION

Cite as M/V Kyowa Violet v. People of Rull, 15 FSM Intrm. 355 (App. 2007)

[15 FSM Intrm. 355]

APPEAL CASE NO. Y1-2006

ORDER

Decided: October 12, 2007

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:

HEADNOTES

Attorney and Client – Admission to Practice

When counsel was admitted pro hac vice conditioned upon his submission of certificates of good standing from all jurisdictions in which he is admitted along with a sworn statement that complied with the morals and character requirement imposed under FSM Admission Rule II(B), but counsel failed to submit certificates of good standing for two of the three jurisdictions he was admitted in, his request to appear pro hac vice will be denied. Upon the submission of another request to appear pro hac vice which contains all the relevant documentation needed for the court to issue a determination on the request to appear, the court will reconsider its ruling. M/V Kyowa Violet v. People of Rull ex rel. Ruepong, 15 FSM Intrm. 355, 361 (App. 2007).

Appellate Review – Motions

The time period for opposing a motion is seven days. But if service of the motion is made by mail, six additional days are added to the response period. M/V Kyowa Violet v. People of Rull ex rel. Ruepong, 15 FSM Intrm. 355, 361 n.2 (App. 2007).

Appellate Review – Motions

The appellate court, for good cause shown, may, upon motion, enlarge the time prescribed for doing any act, or may permit an act to be done after the expiration of such time. This differs significantly from the provisions found in the Civil and Criminal Procedure Rules, both of which require a party wishing to enlarge the time period for undertaking an act once the original time period for undertaking the act has expired to demonstrate that the failure to act within initially prescribed time period was the result of excusable neglect. M/V Kyowa Violet v. People of Rull ex rel. Ruepong, 15 FSM Intrm. 355, 362 (App. 2007).

Amicus Curiae

"Amicus curiae" literally means friend of the court. An amicus curiae is someone who is not a party to the lawsuit. An amicus curiae either petitions the court, or is asked by the court, to file a brief

in the matter because the amicus has a strong interest in the subject matter that is pending before the court. M/V Kyowa Violet v. People of Rull ex rel. Ruepong, 15 FSM Intrm. 355, 364 (App. 2007).

Amicus Curiae

An amicus curiae is expected to give the court information on some matter of law which the court may be doubtful upon, or calls the court's attention to a legal matter which has escaped, or might escape, the court's consideration. An amicus curiae's principal or usual function is to aid the court on questions of law. M/V Kyowa Violet v. People of Rull ex rel. Ruepong, 15 FSM Intrm. 355, 364 (App. 2007).

Amicus Curiae

When an amicus curiae undertakes to inform the court, he or she should act in good faith, make full disclosure on the point, and suppress nothing with the intent to deceive the court. This is true whether the amicus curiae acts as a neutral provider of information or legal insight, or has a partisan interest in the outcome of the litigation. M/V Kyowa Violet v. People of Rull ex rel. Ruepong, 15 FSM Intrm. 355, 364 (App. 2007).

Amicus Curiae; Appellate Review

The Appellate Procedure Rules specifically provide for amicus curiae participation. M/V Kyowa Violet v. People of Rull ex rel. Ruepong, 15 FSM Intrm. 355, 364 (App. 2007).

Appellate Review

Although it is appropriate for the FSM Supreme Court to consider United States courts' decisions as guidance in interpreting a similar appellate rule, when that U.S. rule was extensively rewritten in 1998, it is appropriate to consider only those U.S. court decisions that interpret the rule before its 1998 rewriting. M/V Kyowa Violet v. People of Rull ex rel. Ruepong, 15 FSM Intrm. 355, 364-65 (App. 2007).

Amicus Curiae; Appellate Review – Briefs, Record and Oral Argument

The amicus curiae's role in appeals is limited to addressing only those issues that the parties have raised. It would be inappropriate for an appellate court to consider any arguments or evidence that were not previously presented to and ruled upon by the trial court. Accordingly, a particular document that was not previously considered by the trial court and the references to it in an amicus curiae brief will be stricken from the record. The other arguments presented by the amicus curiae in its brief will be considered. M/V Kyowa Violet v. People of Rull ex rel. Ruepong, 15 FSM Intrm. 355, 365 (App. 2007).

Appellate Review – Briefs, Record and Oral Argument

A party whose position is being opposed by an amicus curiae brief may file a responsive brief. M/V Kyowa Violet v. People of Rull ex rel. Ruepong, 15 FSM Intrm. 355, 365 (App. 2007).

Amicus Curiae; Appellate Review – Briefs, Record and Oral Argument

An amicus curiae's motion to participate in oral argument will be granted only for extraordinary reasons, and in the absence of the presentation of any reason why an amicus curiae should be heard at oral argument, its request to participate in the oral argument will be denied. M/V Kyowa Violet v. People of Rull ex rel. Ruepong, 15 FSM Intrm. 355, 366 (App. 2007).

Appellate Review – Parties

A deceased party's personal representative may be substituted as a party, on motion filed by the representative or by any party with the appellate division clerk in accordance Civil Rule 25, or, if the deceased party has no representative, any party may suggest the death on the record and proceedings shall then be had as the appellate division may direct. M/V Kyowa Violet v. People of Rull ex rel.

[15 FSM Intrm 358]

Ruepong, 15 FSM Intrm. 355, 366 (App. 2007).

COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

This matter comes before the Court on various matters including:

1)  the parties' various motions filed in connection with the State of Yap's submission of an amicus curiae brief;

2)  the parties' respective notices of appeal, filed on July 18, 2007 by the Appellees/Cross-Appellants, and cross-appeal, filed on August 1, 2007, by the Appellants/Cross-Appellees, from an order issued by the trial court on June 6, 2007;

3)  the parties' stipulation to the substitution of one of the class representatives identified in the caption of this case; and

4)  the various submissions by the parties' respective counsel in furtherance of their request to appear pro hac vice in this appeal.

For the reasons set forth below, the Court hereby:

1)  grants the requests by David P. Ledger and Nenad Krek to appear pro hac vice in this case on behalf of the above-captioned Appellees/Cross-Appellants;

2)  denies the request of James P. Walsh to appear pro hac vice in this case on behalf of the above-captioned Appellants/Cross-Appellees. The Court will reconsider Mr. Walsh's request to appear pro hac vice in this case subject to the terms and conditions set forth below;

3)  grants the State of Yap's requested enlargement of time of one day, from July 16, 2007, to July 17, 2007, for the filing of its amicus curiae brief;

4)  grants the request by the above-captioned Appellants/Cross-Appellees to strike that portion of the State of Yap's amicus curiae brief that concerns the submission of evidence not previously presented to, or considered by, the trial court, from the record of this appeal;

5)  orders the above-captioned Appellants/Cross-Appellees to file their answer brief to the State of Yap's amicus curiae brief subject to the page limitations and briefing schedule set forth below;

6)  denies the State of Yap's request to appear at oral arguments in this case;

7)  orders that the caption of this appeal be corrected to show that "Paek Chae Un" is no longer a party to this case;

8)  grants the parties' stipulated request to substitute Chief John Mafel as the representative of the class of Plaintiffs-Appellees/Cross-Appellants in the place of the deceased Chief Andrew Reupong;

9)  orders the above-captioned Appellees/Cross-Appellants and Appellants/Cross-Appellees to

submit their additional briefs arising from their respective notices of appeal and cross-appeal, filed on July 18, 2007, and August 1, 2007, respectively, subject to the page limitations and briefing schedule set forth below; and

10)  schedules oral arguments in this case for January 17, 2008, at 10:00 a.m.

I.  Background

On May 2, 2007, the Court issued an Order designating the M/V Kyowa Violet, et al., as the Appellants/Cross-Appellees in this appeal. The People of the Municipalities of Rull and Gilman, were designated as the Appellees/Cross-Appellants. This designation was consistent with the parties' respective notices of appeal, filed by the M/V Kyowa Violet, et al., on October 27, 2006, and cross-appeal, filed by the People of the Municipalities of Rull and Gilman, on November 1, 2006.

In addition, the Court's May 2, 2007 Order required counsel who were not already authorized to appear before this Court, including David P. Ledger and Nenad Krek on behalf of the Appellants/Cross-Appellees, and James P. Walsh on behalf of the Appellees/Cross-Appellants, to take the appropriate steps towards obtaining permission to appear before this Court in this appeal. FSM App. R. 46(a); FSM Adm. R. IV(A). A subsequent May 23, 2007 Order provisionally granted the respective requests by Messrs. Ledger, Krek and Walsh to appear pro hac vice in this case, conditioned upon each counsel's submission of the various certificates of good standing from each jurisdiction where that counsel is or has been licensed to practice law, along with a sworn statement that complied with the morals and character requirement imposed under this Court's Rules of Admission. FSM Adm. R. II(B).

Thereafter, and based upon the briefing schedule set forth in the Court's May 2, 2007 Order, the Appellants/Cross Appellees filed their opening brief on May 31, 2007. In all, that brief is 39 pages in length. On July 2, 2007, the Appellees/Cross-Appellants filed their opening brief. This filing also included the Appellees/Cross-Appellants' response brief to the Appellants/Cross-Appellees' opening brief. The Appellees/Cross-Appellants' joint brief totals 44 pages. In turn, on July 23, 2007, the Appellants/Cross-Appellees filed their response brief to the Appellees/Cross-Appellants' opening brief, along with their reply brief to the Appellees/Cross-Appellants' responsive brief filed on July 2, 2007. In all, this filing by the Appellants/Cross-Appellees totals 22 pages. Lastly, on August 6, 2007, the Appellees/Cross-Appellants filed their reply brief to the Appellants/Cross-Appellees' response brief that was filed on July 23, 2007. This reply brief totals 13 pages.

In the meantime, however, on June 6, 2007, the trial court issued an order fixing an award of attorney's fees and costs to the Appellees/Cross-Appellants, who prevailed at trial. The Appellees/Cross-Appellants filed their notice of appeal of this Order on July 18, 2007. In turn, on August 1, 2007, the Appellants/Cross-Appellees filed their notice of cross-appeal of the trial court's June 6, 2007 order.¹

Although the trial court's June 6, 2007 order and other related filings were included in an amended certificate of record ready issued by the clerk, no additional briefing schedule was issued by the Court for the parties' to submit their respective briefs on the issues being appealed from the trial court's June 6, 2007 order. Nonetheless, on September 5, 2007, the Appellees/Cross-Appellants filed

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their principal brief on the issues on appeal from the trial court's June 6, 2007 order. Although this brief identifies the Appellees/Cross-Appellants as the "Appellants," it has a red cover which is used to designate the appellee in an appeal. See FSM App. R. 32. This brief totals 18 pages. The Appellants, in turn, on October 3, 2007, filed their response brief, which included their principal brief on the issues they raised in their cross appeal of the trial court's June 6, 2007 order.

In addition, on July 17, 2007, the State of Yap submitted its amicus curiae brief. However, and pursuant to the Court's Order of July 20, 2007, the State of Yap was granted an enlargement of time in which to file its amicus curiae brief up to, and including, July 16, 2007. Following the submission of its amicus curiae brief, the State of Yap sought an enlargement of time of one day, from July 16, 2007, to July 17, 2007, in which to file its amicus curiae brief.

The Appellants/Cross-Appellees have not only filed their opposition to the State of Yap's requested enlargement of time in which to file an amicus curiae brief, but they have moved to have the State of Yap's amicus curiae brief stricken from the record of this case. This opposition, in turn, generated a series of responsive and reply pleadings by the parties as well as the State of Yap.

Lastly, on August 23, 2007, the parties stipulated to the substitution of one of the Appellees/Cross-Appellants' class representatives: Chief Andrew Ruepong. The parties have advised the Court that Chief Andrew Ruepong died in March 2007. In the place of Chief Andrew Ruepong, the parties seek to substitute his oldest son, John Mafel, whom they have also identified as a Chief.

II.  Disposition of Pending Motions

A. Applications to Appear Pro Hac Vice

Following the issuance of the Court's May 23, 2007 Order provisionally granting the respective requests of Messrs. Ledger, Krek and Walsh to appear pro hac vice in this appeal, Messrs. Ledger, Krek and Walsh each submitted supplemental statements to their initial requests to appear before this Court.

In the case of Mr. Ledger, he has now submitted certificates of good standing from the jurisdictions of Hawai'i and the Commonwealth of the Northern Mariana Islands to accompany the certificate of good standing from the jurisdiction of Guam which he had previously submitted. In addition, Mr. Ledger has submitted a statement averring that he has never been found guilty of any crime or to be in violation of any standard of professional responsibility, and that he currently faces no criminal charges nor any allegations of having violated any standard of professional conduct.

Accordingly, David P. Ledger's request to appear pro hac vice in this appeal on behalf of the Appellants/Cross-Appellees is hereby granted.

Similarly, Mr. Krek, who previously submitted a certificate of good standing for only the jurisdiction of Hawai'i, has now submitted a certificate of good standing from the jurisdiction of New York. In addition, Mr. Krek has submitted an affidavit that shows that he has never been convicted of any crime or found to have violated any standard of professional responsibility, and that he currently faces no criminal charges, nor any allegations of having violated any standard of professional responsibility.

Accordingly, Nenad Krek's request to appear pro hac vice in this appeal on behalf of the Appellants/Cross-Appellees is hereby granted.

Lastly, Mr. Walsh, who previously submitted an illegible copy of a certificate of good standing

from the jurisdiction of California, has since submitted a legible copy of a certificate of good standing from that jurisdiction. To date, however, Mr. Walsh has not submitted certificates of good standing for either the jurisdiction of Washington State or the jurisdiction of the District of Columbia, both of which are jurisdictions where he is admitted to practice law. On the other hand, Mr. Walsh has submitted a revised statement averring that he has never been convicted of a crime or found to be in violation of a standard of professional conduct, nor does he currently face any criminal charges or any allegation of having violated any applicable standard of professional conduct.

Accordingly, at this time, in the absence of certificates of good standing from the jurisdictions of Washington State and the District of Columbia, Mr. Walsh's request to appear pro hac vice in this appeal on behalf of the Appellees/Cross-Appellants is denied. The Court will, however, upon submission of another request to appear pro hac vice in this case, which contains all the relevant documentation needed for this Court to issue a determination on Mr. Walsh's request to appear before this Court, reconsider this ruling.

B. State of Yap's Amicus Curiae Brief

As noted above, the State of Yap filed its amicus curiae brief on July 17, 2007. This is the date that the State of Yap's filing was postmarked by the FSM Post Office in Yap State. FSM App. R. 25(a) (filing may be accomplished by mail; briefs shall be deemed filed on the day of mailing).

The State of Yap, however, only sought an enlargement of time up to and including July 16, 2007, in which to file its brief, and the Court's July 20, 2007 Order granting this requested enlargement of time specified that the State of Yap's brief, in order to be timely filed, must be postmarked no later than July 16, 2007.²

1. Enlargement of Time to file Amicus Brief

In seeking an additional enlargement of time of one day – from July 16, 2007 to July 17, 2007 – in which to file the State of Yap's amicus curiae brief, counsel for the State of Yap explains that she

personally mailed the brief in question from the FSM post office, in Yap, on the afternoon of July 16, 2007.³ Counsel explains, however, that unbeknownst to her, mail received at the post office in Yap after 1:30 p.m. is postmarked for the following day. According to counsel for Yap State, this is due to a backlog of mail that has resulted from a cargo embargo that has been imposed by sole airline providing regularly schedule transportation service to the State of Yap.

In support of the State of Yap's requested enlargement of time, counsel for the State of Yap has submitted her own affidavit, attesting to when she personally mailed the amicus curiae brief for the State of Yap, along with the affidavit of Jamie Gilmar, who is a postal employee working at the FSM post office in Yap. Mr. Gilmar avers that due to the backlog of mail in Yap caused by a cargo embargo, all mail received after 1:30 p.m. is postmarked the following day. According to counsel for Yap State, this resulted in the State of Yap's amicus curiae brief being postmarked on July 17, 2007, rather than July 16, 2007, the date it was actually mailed.

In their opposition, filed on August 10, 2007, the Appellants/Cross-Appellees maintain that the State of Yap has failed to demonstrate good cause that would warrant granting it an enlargement of time for the filing of its amicus curiae brief a day late. According to counsel for the Appellants/Cross-Appellees, the State of Yap was late filing its amicus brief because counsel for the State of Yap "waited until 'the last possible moment' to put its brief in the mail on July 16, 2007." Counsel for the Appellants/Cross-Appellees argues that as soon as a cargo embargo was imposed the State of Yap and its counsel should have made an inquiry to determine what impact, if any, there might be on mail leaving the State of Yap. Counsel maintains that if this had occurred, Yap State's untimely action at issue could have been avoided.

In its reply pleading, filed on August 28, 2007, counsel for Yap State argues, inter alia, that the practice of postmarking outgoing mail at the FSM post office in Yap is an activity that is outside of her control, as well as the control of the State of Yap. The other comments offered by counsel for the State of Yap in reply to the opposition pleading filed by the Appellants/Cross-Appellees are irrelevant to determining whether the State of Yap should be granted an enlargement of time in which to file its amicus brief.

Under FSM App. R. 26(b), the Court, for good cause shown, may, upon motion, enlarge the time prescribed for doing any act, or may permit an act to be done after the expiration of such time. This differs significantly from the provisions found at FSM Civ. R. 6 and FSM Crim. R. 45, both of which require a party wishing to enlarge the time period for undertaking an act once the original time period for undertaking the act has expired to demonstrate that the failure to act within initially prescribed time period was the result of excusable neglect. See Bualuay v. Rano, 11 FSM Intrm. 139 (App. 2002).

Under the circumstances presented here, the Court finds good cause for granting the State of Yap's requested enlargement of time of one day, from July 16, 2007, to July 17, 2007, in which to file its amicus brief. Accordingly, the Clerk of Court is hereby instructed to accept the State of Yap's brief for filing as of the date that that pleading was postmarked by the post office: July 17, 2007.

2. Motion to Strike Amicus Curiae Brief

On August 3, 2007, the Appellants/Cross-Appellees filed a motion to strike the State of Yap's amicus curiae brief from the record of this case. Both the Appellees/Cross-Appellants and the State of Yap have filed opposition pleadings to this motion; the Appellees/Cross-Appellants' opposition pleading was filed on August 15, 2007, while the State of Yap's opposition pleading was filed on August 28, 2007. The Appellants/Cross-Appellees, in turn, filed their respective reply pleadings to these opposition pleadings, on August 15, 2007, and August 29, 2007.

In their motion to strike the State of Yap's amicus curiae brief, the Appellants/Cross-Appellees argue that the State of Yap's brief is "an insultingly transparent, improper attempt to introduce new evidence not [previously] presented at trial." The evidence in question is a purported agreement that allegedly evidences the transfer of certain rights over an area of land that includes submerged tidewater lands from private individuals to the State of Yap in 1994.

In its amicus curiae brief, the State of Yap has presented this documentary evidence in support of its position that it is the people, rather than the government, of Yap State, acting through the Chiefs of their municipalities, who have standing to sue to recover for damage to the submerged tidewater lands, based upon their traditional rights over these submerged lands.

According to the Appellants/Cross-Appellees, however, the documentary evidence offered by Yap State is not only irrelevant, it is inadmissible hearsay evidence that, in any event, has never presented to the trial court. Citing to Wiggins Bros., Inc. v. Department of Energy, 667 F.2d 77, 83 (Emer. Ct. App. 1981), the Appellants/Cross-Appellees argue that an amicus curiae, like a party to an appeal, cannot be allowed to submit evidence that was not presented at trial.

In Wiggins, the United States Court of Emergency of Appeals reversed a trial court decision that concerned the classification of certain property subject to regulation by the United States Department of Energy. The amicus curiae in Wiggins, who supported the appellees, argued for the trial court decision to be affirmed based, inter alia, upon certain arguments and evidence that were at issue in other pending cases, none of which had been considered by the trial court whose decision was on appeal.

The court in Wiggins held that while it would consider certain issues raised by the amicus curiae, in the absence of exceptional circumstances, an amicus curiae could not be permitted to expand the scope of an appeal to implicate issues that were not presented by the parties, nor would an amicus curiae be "entitled to introduce additional evidence (particularly evidence offered in another action after entry of the judgment which is the subject of this appeal)," which had not been before the trial court. Wiggins Bros., Inc. v. Department of Energy, 667 F.2d 77, 83 (Emer. Ct. App. 1981) (citing National Comm'n on Egg Nutrition v. Fed. Trade Comm'n, 570 F.2d 157, 160 n.3 (7th Cir. 1977) (amicus brief raising constitutional challenge to regulations for first time on appeal to be disregarded), cert. denied, 439 U.S. 821 (1978); Knetsch v. United States, 364 U.S. 361, 81 S. Ct. 132, 5.L. Ed 2d 128, 134 (1960); In re Oskar Tiedemann & Co., 289 F.2d 237 (3d Cir. 1961)).

In their opposition, Yap State acknowledges that while the documentary evidence in question was not presented to the trial court, there was testimony from one of the traditional Chiefs of Yap State who alluded to the transaction that is purportedly evidenced by the agreement at issue here. Citing to the trial court record, counsel for Yap State maintains that this testimony was offered in support of the argument that submerged tidewater lands in Yap are controlled by private individuals in Yap State, a finding that was purportedly expressly entered by the trial court in its determination that the people of Rull and Gilman municipalities in Yap State had standing to recover for damages to these submerged tidewater lands.

Yap State further argues that rather than introduce new evidence at appeal, it is instead simply attempting to advise the Court on its position – past and current – regarding the traditional control over submerged tidewater lands in Yap State. According to Yap State, the evidence in question is a public document which this Court may take judicial notice of under the Court's Rules of Evidence, or, failing that, exercise its discretion in determining what weight, if any, to place upon the evidence in this appeal.

In their opposition pleading, the Appellees/Cross-Appellants similarly argue that the State of Yap's submission of this purported land sale agreement is entirely appropriate, noting that the only limitation placed on amicus curiae is that they may not include in their briefs any issues not already raised by the parties. According to the Appellees/Cross-Appellants, the Appellants/Cross-Appellees' challenge to the State of Yap's amicus curiae brief is not legal, but rather personal, based upon differences of opinion with the current officials in Yap State government, and its legal counsel.

In its respective reply pleadings, filed on August 15, 2007, and August 29, 2007, the Appellants/Cross-Appellees maintain that neither the State of Yap nor the Appellees/Cross-Appellants have presented any legal argument to justify this Court's consideration of any documentary evidence that has not previously been presented to, and considered by, the trial court. According to the Appellants/Cross-Appellees, while the trial court may have been able to take judicial notice of the document in question, there is no basis for this Court to do so, as the role of this Court in the appellate process is to determine whether the trial court erred in its adjudication of the underlying matter.

"Amicus curiae" literally means friend of the court. 4 Am. Jur. 2d Amicus Curiae § 1, at 320 (rev. ed. 1995). An amicus is someone who is not a party to the lawsuit. Instead, an amicus curiae either petitions the court, or is asked by the court, to file a brief in the matter because the amicus has a strong interest in the subject matter that is pending before the Court. Black's Law Dictionary 83 (7th ed. 1999).

An amicus curiae is expected to give the court information on some matter of law which the court may be doubtful upon, or calls the court's attention to a legal matter which has escaped, or might escape, the court's consideration. 4 Am. Jur. 2d Amicus Curiae § 6, at 326 (rev. ed. 1995). "An amicus curiae's principal or usual function is to aid the court on questions of law." Id. When "an amicus curiae undertakes to inform the court, he or she should act in good faith, make full disclosure on the point, and suppress nothing with the intent to deceive the court." Id. This is true whether the amicus curiae acts as a neutral provider of information or legal insight, or has a partisan interest in the outcome of the litigation. Id.

This Court's Rules of Appellate Procedure specifically provide for amicus curiae participation, see FSM App. R. 29, and amicus curiae have appeared before this Court on several occasions. See, e.g., Chuuk v. Secretary of Finance, 9 FSM Intrm. 424, 425 (App. 2000) (Congress); Senda v. Creditors of Mid-Pacific Constr. Co., 7 FSM Intrm. 664, 665 (App. 1996) (FSM and Pohnpei); Constitutional Convention 1990 v. President, 4 FSM Intrm. 320, 320-21 (App. 1990) (Congress and Kosrae); Innocenti v. Wainit, 2 FSM Intrm. 173, 177 n.2 (App. 1986) (FSM).

This, however, appears to be the first occasion in which an amicus curiae appearing before this Court has attempted to present evidence which has not previously been presented to the trial court whose decision is on appeal. Rule 29 of this Court's Rules of Appellate Procedure was modeled after Rule 29 of the Rules of Appellate Procedure for Federal Courts in the United States. Thus, it is appropriate for this Court to consider decisions from courts in the United States as guidance in interpreting FSM App. R. 29. It should be noted, however, that Rule 29 of the Federal Rules of Appellate Procedure in the Unites States was extensively rewritten in 1998. Thus, it is appropriate for this Court to consider only those court decisions from courts in the United States that interpret Rule 29

of Appellate Procedure for the Unites States Federal Courts prior to its rewriting in 1998.

In addition to the Wiggins decision discussed above, there are additional decisions from courts in the United States which define the limited role of amicus curiae in appeals to addressing only those issues that have been raised by the parties. For example, in National Commission on Egg Nutrition v. Federal Trade Commission, 570 F.2d 157 (7th Cir. 1977), cert. denied, 439 U.S. 821 (1978), the court dismissed that portion of an amicus curiae brief that presented a constitutional challenge to certain regulations because the arguments raised had not previously presented to and ruled upon by the trial court. Similarly, in American Meat Institute v. Environmental Protection Agency, 526 F.2d 442, 449 (7th Cir. 1975), the court ruled that an argument not presented at trial and not raised on appeal is not properly before an appellate court.

In the matter at hand, upon consideration of these decisions from courts in the United States, and upon reflection of the appellate process, it would be inappropriate for the Court to consider any arguments or evidence that have not previously been presented to and ruled upon by the trial court. Although the trial court in this appeal considered and ruled upon the parties' respective arguments on the issue of standing to recover damages to submerged tidewater lands in Yap State, the particular document that Yap State has submitted in its amicus curiae brief in support of the Appellees/Cross-Appellants' position was not previously considered by the trial court. Accordingly, neither that document, nor the related reference to that document in Yap State's amicus curiae brief, found at page 2, lines 16-23, shall be considered in this appeal, and are hereby stricken from the record of this case. The Court will, however, consider the other arguments presented by Yap State in its amicus curiae brief.

3. Response to Amicus Brief

In their July 23, 2007 opposition to the State of Yap's requested enlargement of time in which to file its amicus curiae brief, see supra note 2, the Appellants/Cross-Appellees seek clarification as to whether they may also file a brief responding to the State of Yap's amicus curiae brief.

In their opposition filed on August 10, 2007, the Appellees/Cross-Appellants argue that the Court's Rules of Appellate procedure do not contemplate, nor provide for, response briefs to an amicus curiae brief that is filed by a state government. As the Appellees/Cross-Appellants explain, because the amicus curiae supports the Appellees/Cross-Appellants, the amicus curiae brief merely adopts the position espoused by the Appellees/Cross-Appellants in their brief.

In their reply, filed on August 10, 2007, the Appellants/Cross-Appellees note that Rule 29 of this Court's Rules of Appellate Procedure does allow a party whose position is being opposed by an amicus curiae to file a responsive brief. The Appellants/Cross-Appellees further argue that based upon the existing briefing schedule established by the Court, by the time the State of Yap filed and served its amicus curiae brief, on July 17, 2007, the Appellants/Cross-Appellees had no time to incorporate their response into the brief they filed on July 23, 2007.

FSM App. R. 29 provides that an amicus curiae shall file its brief within the time allowed the party whose position the amicus curiae is supporting, whether for affirmance or reversal, unless the court allows for later filing, in which event the court shall specify within what period an opposing party may answer. Thus, in contrast to the assertions of the Appellees/Cross-Appellants, FSM App. R. 29 clearly does allow for a party whose position is being opposed by an amicus curiae to file a response brief. Moreover, in this case, the July 23, 2007 filing by the Appellants/Cross-Appellees, which was made on the heels of the State of Yap's filing of its amicus curiae brief, was the last briefing that the Appellants/Cross-Appellees made in this case.

Accordingly, the Appellants/Cross-Appellees may, if they so desire, file an answer brief to the State of Yap's amicus curiae brief. If they choose to do so, the Appellants/Cross-Appellees shall file their response brief within 14 days after this Order is issued. Any submission made by the Appellants/Cross-Appellees shall not exceed ten pages in length. In addition, and consistent with the Court's ruling above, the Appellants/Cross-Appellees may not introduce any evidence not previously presented to the trial court, nor may the Appellants/Cross-Appellees present any issue or argument not raised on appeal and presented in the amicus curiae brief of Yap State.

No other response briefs or reply briefs to any submission made by the Appellants/Cross-Appellees shall be permitted by the State of Yap or the Appellees/Cross-Appellants unless so authorized by this Court.

4. Request to appear at oral argument

In its amicus curiae brief, the State of Yap requests permission to appear at oral arguments in this case. In support of this request, however, Yap State provides no reason, compelling or otherwise, as to why its participation at the oral arguments in this case is necessary.

FSM App. R. 29 provides that a motion of an amicus curiae to participate in oral arguments will be granted only for extraordinary reasons. Accordingly, under these circumstances, and in the absence of the presentation of any reason why the State of Yap should be heard at oral argument – extraordinary or otherwise – the State of Yap's request to participate in the oral arguments in this case is denied.

C. Substitution of Class Representative

As noted above, the parties have stipulated to the substitution of Chief Andrew Ruepong, who is now deceased, with John Mafel, who has been identified as the elder son of the late Chief Andrew Ruepong and described as "Chief John Mafel." Andrew Ruepong, who was a member of the class of Plaintiffs in this case, was one of three representative of that class. According to counsel for the parties, the other two representatives of the class of Plaintiffs, who are identified in the caption of this appeal, agree that Chief John Mafel should succeed the late Chief Andrew Ruepong as the third class representative of the class of Plaintiffs. It appears from the trial court record that Chief John Mafel is also a member of the class of Plaintiffs seeking to recover damages and that his substitution is consistent with the appointment of a member of the class to serve as a representative of the class.

FSM App. R. 43 provides for the substitution of a party if that party dies after a notice of appeal is filed or while a proceeding is otherwise pending in the Supreme Court appellate division. FSM App. R. 43(a). Under FSM App. R. 43, the personal representative of the deceased party may be substituted as a party, on motion filed by the representative or by any party with the clerk of the appellate division in accordance with the provision of Rule 25, or, if the deceased party has no representative, any party may suggest the death on the record and proceedings shall then be had as the appellate division may direct.⁴

Accordingly, and based upon the stipulation of the parties, Chief John Mafel is hereby substituted

as a representative of the class of Plaintiffs in the place of the prior representative, the late Chief Andrew Reupong. All future filings in this case shall reflect this substitution in the caption of the case.

D. Correction of Caption of Appeal

A review of the trial court record in this case shows that the named Defendant Paek Chae Un was dismissed as a named party by the trial court. A review of the parties' respective briefs shows that this action by the trial court is not an issue on appeal. Accordingly, it is appropriate for the caption of this case to be corrected to omit any reference to Paek Chae Un as a named party to this appeal. All future filings in this case shall reflect this correction to the caption of this case.

E. Briefing Schedule

As noted above, the Court previously designated the M/V Kyowa Violet et al., as the "Appellants" for the purposes of establishing a briefing schedule in this appeal. Although the Court is inclined to once again designate the M/V Kyowa Violet et al., as the "Appellants" in connection with the parties' respective notices of appeal and cross appeal of the trial court's June 6, 2007 order, the Court takes note of the fact that the Appellees/Cross-Appellants, the People of Rull and Gilman Municipalities, have already filed their principal brief on the issues they have raised on appeal of the trial court's June 6, 2007 order, while the Appellants/Cross-Appellees, the M/V Kyowa Violet et al., have, in turn, filed their response brief, which includes their principal brief on the issues they have raised in their cross appeal of the trial court's order at issue here. It is unclear why the Appellees/Cross-Appellants filed their brief, as no briefing schedule was ever issued by the Court for the parties' respective appeals arising from the trial court's June 6, 2007 order. Equally problematic is the fact that the brief filed by Appellees/Cross-Appellants served as their opening brief for their appeal of the trial court's June 6, 2007 order, yet it contained a red cover sheet, which is used to designate the brief of an appellee.

Accordingly, in lieu of striking the parties' September 5, 2007 and October 3, 2007 filings, and in adherence with the Court's prior designation of the M/V Kyowa Violet et al., as the Appellants in the parties' respective appeal and cross-appeal of the trial court's June 6, 2007 order, as well as the original briefing schedule previously established by the Court, the parties are hereby ordered to file their additional briefs arising from their respective appeals of the trial court's June 6, 2007, as follows:

1)  the Appellants/Cross Appellees, M/V Kyowa Violet et al., shall file their principal brief on the issues they are appealing from the trial court's June 6, 2007 order, in the form of a supplement to the principal brief that they previously filed on May 31, 2007. In light of the page limitations imposed on briefs, and given that the principal brief previously filed by the Appellants/Cross-Appellees is 39 pages in length, the Appellants/Cross-Appellees' supplemental brief covering the issues on appeal from the trial court's June 6, 2007 order shall not exceed 11 pages in length. The Court notes that on October 3, 2007, the Appellants/Cross-Appellees filed their response brief to the Appellees/Cross-Appellants' principal brief on the issues raised by the Appellees/Cross-Appellants in their appeal of the trial court's June 6, 2007 order. In doing so, the Appellants/Cross-Appellees included their principal brief on the issues they raised on their cross appeal of the trial court's June 6, 2007 order. Accordingly, this portion of the Appellants/Cross-Appellees' October 3, 2007 filing shall be deemed the supplement to their principal brief previously filed on May 31, 2007. The Court further notes that the Appellants/Cross-Appellees' October 3, 2007 filing, which is 24 pages in length, of which 16 pages constitutes their response brief while the remaining 8 pages constitutes their opening brief, complies with the page limitations previously established by the Court in the original briefing schedule in this case, i.e., the Appellant's opening brief on the issues raised in their cross appeal of the trial court's June 6, 2007 order does not exceed 11 pages;

2)  the Appellees/Cross Appellants, the People of Rull and Gilman Municipalities, shall file their principal and response briefs in the form of a supplement to the combined principal and response brief they previously filed on July 2, 2007. As noted above, because the Appellees/Cross-Appellants have already filed what appears to constitute their principal brief to the issues they are appealing from the trial court's June 6, 2007 order, their supplemental brief need only include their response to the supplement to the principal brief filed by the Appellants/Cross-Appellees on October 3, 2007. In complying with FSM App. R. 28(a), and based upon the lengths of both the combined principal and response brief previously filed by the Appellees/Cross-Appellants on July 2, 2007, which totals 44 pages, of which 35 pages is dedicated to the Appellants/Cross-Appellees' appeal and 9 pages is dedicated to the Appellees/Cross-Appellants' cross-appeal, and the principal brief on the issues arising from the appeal of the trial court's June 6, 2007 order, filed on September 5, 2007, which totals 18 pages, the Appellees/Cross Appellants' supplemental response brief may not exceed 15 pages in length. In addition, this supplemental response brief shall be filed within thirty days from the date of service of the Appellants/Cross-Appellees' October 3, 2007 filing;

3)  the Appellants/Cross Appellees shall file their brief that responds to the principal brief filed by the Appellees/Cross-Appellants on September 5, 2007, in the form of a supplemental response brief to the brief they previously filed on July 23, 2007. As noted above, the Appellant's have already filed this response brief on October 3, 2007. Accordingly, the Court shall deem this filing the Appellants/Cross-Appellees' supplemental response. Further, at 16 pages in length, this filing complies with the page limitations imposed upon the parties' briefs as set forth in the original briefing schedule established by the Court. As such, the Appellants/Cross-Appellees may file a reply to the Appellees/Cross-Appellants' response brief in the appeal of the trial court's June 6, 2007 order. If the Appellants/Cross Appellees choose to file a reply brief, in light of their prior filing on July 23, 2007, which totals 22 pages, of which 7 pages is dedicated to their response brief while 15 pages is dedicated to their reply brief, the Appellees/Cross Appellants' supplemental reply brief may not exceed 10 pages in length. If the Appellants/Cross-Appellees choose to file a reply brief as provide herein, they shall do so within 14 days of service of the Appellees/Cross-Appellants' response brief to the issues raised by the Appellants/Cross-Appellees in their principal brief on the issues raised in their cross-appeal;

4)  the Appellees/Cross Appellants may, within 14 days after the issuance of this order, file a reply brief in the form of a supplemental brief to the reply brief they previously filed on August 6, 2007. This supplemental reply brief shall be the reply to the response brief filed by the Appellants/Cross-Appellees on October 3, 2007, in connection with the Appellees/Cross-Appellant's appeal of the trial court's June 5, 2007 order. In light of the reply brief previously filed by the Appellees/Cross-Appellants on August 6, 2007, which totals 13 pages, any supplemental reply brief they choose to file may not exceed 12 pages in length.

III.  Conclusion

In conclusion, and for the reasons set forth above, the Court hereby:

1)  grants the requests by David P. Ledger and Nenad Krek to appear pro hac vice in this case on behalf of the above-captioned Appellees/Cross-Appellants;

2)  denies the request of James P. Walsh to appear pro hac vice in this case on behalf of the above-captioned Appellants/Cross-Appellees. The Court will reconsider Mr. Walsh's request to appear pro hac vice in this case subject to the terms and conditions set forth above;

3)  grants the State of Yap's requested enlargement of time of one day, from July 16, 2007, to July 17, 2007, for the filing of its amicus curiae brief;

4)  grants the request by the above-captioned Appellants/Cross-Appellees to strike that portion of the State of Yap's amicus curiae brief that concerns the submission of evidence not previously presented to, or considered by, the trial court, from the record of this appeal;

5)  orders the above-captioned Appellants/Cross-Appellees to file their answer brief to the State of Yap's amicus curiae brief subject to the page limitations and briefing schedule set forth above;

6)  denies the State of Yap's request to appear at oral arguments in this case;

7)  orders that the caption of this appeal be corrected to show that "Paek Chae Un" is no longer a party to this case;

8)  grants the parties' stipulated request to substitute Chief John Mafel as the representative of the class of Plaintiffs-Appellees/Cross-Appellants in the place of the deceased Chief Andrew Reupong;

9)  orders the above-captioned Appellees/Cross-Appellants and Appellants/Cross-Appellees to submit their additional briefs arising from their respective notices of appeal and cross-appeal, filed on July 18, 2007, and August 1, 2007, respectively, subject to the page limitations and briefing schedule set forth above; and

10)  schedules oral arguments for January 17, 2008, at 10:00 a.m.

Footnotes:

¹ Although the July 18, 2007 notice of appeal filed by the Appellees/Cross-Appellants could have been docketed based upon its filing in the 2007 calendar year, e.g., "Y3-2007," etc., FSM App. R. 45; FSM App. R. 3, and thereafter consolidated with the matter at hand, that notice of appeal was instead docketed in the matter at hand as "Y1-2006."

² Following the issuance of the Court's July 20, 2007 Order, the Appellants/Cross-Appellees, on July 23, 2007, filed their opposition to the State of Yap's requested enlargement of time at issue here. As the record shows, the State of Yap filed its requested enlargement of time by facsimile on July 3, 2007; the accompanying certificate of service shows that the Appellants/Cross-Appellees were served with this pleading, through their counsel, via first class mail, on July 2, 2007. Under FSM App. R. 27(a), the time period for opposing a motion is seven days; if service of the motion is made by mail, six additional days are added to the response period. FSM App. R. 26(c). Thus, any opposition to the State of Yap's July 3, 2007, requested enlargement of time to file an amicus curiae brief should have been filed by July 16, 2007. FSM App. R. 26(a) (if last day in the period for undertaking act is Saturday, Sunday or legal holiday, period to act is extended to next business day). In the Appellants/Cross-Appellees's July 23, 2007 opposition pleading, counsel for the Appellants/Cross-Appellees acknowledges being served with a copy of the State of Yap's requested enlargement of time via mail, on July 6, 2007. Although counsel for the Appellants/Cross-Appellees explains why he believes there was a delay in his submission of an opposition pleading, there has been no request to enlarge the time period for the submission of any such opposition pleading, nor has there been any request for the Court to reconsider its July 20, 2007 Order, granting the State of Yap an enlargement of time. Accordingly, no further consideration need be given to either that portion of the Appellants/Cross-Appellees' July 23, 2007 filing that constitutes an opposition to the requested enlargement of time at issue here, or to the related portion of the opposition and reply filings made by the parties on August 10, 2007. That portion of the Appellants/Cross-Appellees' July 23, 2007 pleading that contains an alternative request for instructions on the filing of a responsive brief to the State of Yap's amicus curiae brief, however, is addressed below.

³The State of Yap's requested enlargement of time at issue here was initially filed by facsimile on July 27, 2007. This pleading was also accompanied by a request to file by facsimile. See FSM GCO 1990-01. Prior to the Court issuing any ruling on the State of Yap's request to file its requested enlargement of time by facsimile, the original copy of the State of Yap's requested enlargement of time was received by the Court for filing on August 8, 2007. Under these circumstances, and in the absence of any demonstrated basis for filing by facsimile, the Court will only accept the August 8, 2007 filing by the State of Yap.

⁴ Although FSM App. R. 43(c) provides for the substitution of public officials who are named as a party to a case, and who die while that case is pending appeal, Chief Andrew Reupong was appearing in this case as a member of the class of Plaintiffs seeking damages, and as a representative of that class. Although he is designated as a "Chief," a review of the trial court record shows that Andrew Reupong was not named as a party to the case as a public official.