THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Nimeisa v. Department of Public Works,
6 FSM Intrm. 205 (Chuuk S. Ct. Tr. 1993)

[6 FSM Intrm. 205]

FUMIANA NIMEISA,
Plaintiff,

vs.

DEPARTMENT OF PUBLIC WORKS
and CHUUK STATE,
Defendants,

vs.

PATEN and PAULI,
First Intervenors,

BUENI ROMINO,
Second Intervenor.

CSSC-CA. NO. 151-90

OPINION AND JUDGMENT

Wanis R. Simina
Associate Justice
Chuuk State Supreme Court

Trial:  November 23-24, 1992
Decided:  September 15, 1993

APPEARANCES:
For the Plaintiff:               Charles Greenfield, Esq.
                                          Thomas J. Schweiger, Esq.
                                          Micronesian Legal Services Corporation
                                          P.O. Box D
                                          Weno, Chuuk FM 96942

For the Defendant:          Joseph Muritok (Deputy Attorney General)
                                          Office of the Chuuk Attorney General
                                          P.O. Box 189
                                          Weno, Chuuk FM 96942

[6 FSM Intrm. 206]

For both Intervenors:       Anter Chipen
                                          Private Trial Counselor
                                          Weno, Chuuk  FM 96942

*    *    *    *

HEADNOTES
Custom and Tradition ) Chuuk; Property ) Public Lands
     The people of Chuuk have always considered themselves to have rights and ownership of the tidelands, and thereby hold the property rights in them, throughout all of the several foreign administrations.  These traditional and customary claims came down from time immemorial. Nimeisa v. Department of Public Works, 6 FSM Intrm. 205, 208 (Chk. S. Ct. Tr. 1993).

Constitutional Law ) Chuuk; Property ) Public Lands
     The Chuuk State Constitution recognizes all traditional rights and ownership over all reefs, tidelands, and other submerged lands subject to legislative regulation of their reasonable use. Nimeisa v. Department of Public Works, 6 FSM Intrm. 205, 209 (Chk. S. Ct. Tr. 1993).

Constitutional Law ) Chuuk; Constitutional Law ) Interpretation
     When a constitutional provision is ambiguous and no constitutional convention journal was ever compiled then the constitutional convention reports may be consulted to discern the framers' intent.   Nimeisa v. Department of Public Works, 6 FSM Intrm. 205, 209 (Chk. S. Ct. Tr. 1993).

Constitutional Law ) Chuuk; Property ) Public Lands
     It was the intent of the framers of the Chuuk State Constitution to return the rights and ownership of all reefs, tidelands (all areas below the ordinary high watermark), and other submerged lands to the individual people of Chuuk State.  Nimeisa v. Department of Public Works, 6 FSM Intrm. 205, 210 (Chk. S. Ct. Tr. 1993).

Constitutional Law ) Chuuk; Transition of Authority
     Statutes and case law inherited from the Trust Territory are invalid to the extent that they are inconsistent with the state constitution which is the supreme law of Chuuk.  Nimeisa v. Department of Public Works, 6 FSM Intrm. 205, 210 (Chk. S. Ct. Tr. 1993).

Constitutional Law ) Chuuk; Constitutional Law ) Interpretation
     In deciding whether the new rule should be applied retroactively from the date of the court's judgment, or prospectively when rendering judgments on new constitutional rules, courts are to be guided by the following three factors: 1) the purpose to be served by the particular new rule; 2) the extent of reliance which had been placed upon the old rule; and 3) the effect on the administration of justice of a retroactive application of the new rule.  Nimeisa v. Department of Public Works, 6 FSM Intrm. 205, 210-11 (Chk. S. Ct. Tr. 1993).

Constitutional Law ) Chuuk; Constitutional Law ) Interpretation
     Where there has been good-faith reliance on an old rule, and retroactive application of the new rule would defeat such reliance, and where retroactive application would only unjustifiedly burden the administration of justice with meritless claims doubting the good faith reliance on the old rule, the new constitutional rule will apply to the parties of the case and be given prospective effect.  Nimeisa v. Department of Public Works, 6 FSM Intrm. 205, 211-12 (Chk. S. Ct. Tr. 1993).

[6 FSM Intrm. 207]

Constitutional Law ) Chuuk; Property ) Public Lands
     The constitutional grant of ownership of the tidelands back to the rightful individual owners, shall be given prospective application only.  Nimeisa v. Department of Public Works, 6 FSM Intrm. 205, 212 (Chk. S. Ct. Tr. 1993).

Evidence
     The plaintiff, whose duty it is to introduce evidence to prove her case by a preponderance of the evidence, carries the burden of proof.  This "burden of going forward with the evidence," or "burden of producing evidence," lies with the party who seeks to prove an affirmative fact. Nimeisa v. Department of Public Works, 6 FSM Intrm. 205, 212 (Chk. S. Ct. Tr. 1993).

*    *    *    *

COURT'S OPINION
WANIS R. SIMINA, Associate Justice:

I.  PARTY CLAIMS
     The plaintiff's complaint seeks damages from the department of Public Works and the Chuuk State Government as defendants in the above-captioned civil matter for breach of contract, negligence, and for failure to compensate the plaintiff for sand that was taken out of tideland alleged to be owned by the plaintiff, through her predecessors of the UN Clan.  Plaintiff alleges that the government had agreed to pay her to remove sand from her tideland, known as "Nefat," located in Sopou Village, on the island of Uman, in the State of Chuuk, but that during the removal of the sand, the government's negligence destroyed all the marine habitats, seashells, etc, in Nefat.  Plaintiff further claims that Chuuk State Government has utterly failed to compensate her for taking the sand as was agreed, and for destroying all the marine habitats and seashells and fishing traps by its negligence.  Accordingly, plaintiff seeks damages from the defendant for breach of contract and negligence.

     The intervenors Paten and Pauli claim to have an interest in the tideland known as "Nefat" and argue that said tideland is owned by them through their predecessors of the Fesinim Clan, that the Fesinim Clan is the original owner of said tideland, and that Nefat does not belong to the UN Clan as alleged by the plaintiff, nor to the plaintiff.  These intervenors also claim that the government of Chuuk State, through its Department of Public Works, requested permission from them to take sands from said tideland and promised compensation that would be paid to these intervenors, by the government, at a later date.  Allegedly, to date, no such compensation has ever been made by the government to these intervenors.

     The second intervenor, Bueni Romino, claims an interest in part of the tideland of Nefat on the grounds that part of his small island, located within the bounds of Nefat, was eroded by the sea water.  As a result, part of his island is now tideland, within the bounds of Nefat.  He therefore argues that this area of tideland that was once his small island, belongs to him.  Further, he claims that the government also promised him compensation for taking sand from said tideland, but after requesting payment, no compensation was ever made to him. He also asserts that he has rights of ownership in part of the tideland of Nefat as coming down from his ancestors from the Fesinim Clan, that this clan is the original owner of the tideland Nefat, and that the small Island in Nefat is the property of the Fesinim Clan.

[6 FSM Intrm. 208]

     Both intervenors also made claims of damages based on the negligence of the defendant when removing the sand from the tideland.

II.  LEGAL ANALYSIS
A.  Constitutional Issues
     The first legal issue to be addressed is whether the tidelands1 of Chuuk State belong to individual Chuukese land owners, in accordance with Chuukese tradition and custom, or whether the tidelands are the property of the government of Chuuk State.

     67 TTC 1 states: "that all marine areas below the ordinary high watermark belongs to the government, is hereby affirmed as part of the law of the Trust Territory."  There are some exceptions to this section, but it is not necessary to discuss them in this opinion.
 
     In the case of Ungeni v. Trust Territory, 8 TTR 366 (App. 1983) it was held that because the government could not prove the existence of the Japanese Proclamation (Rule of Law), all marine areas below the ordinary high watermark were owned by individuals or groups of individuals.  However, the case of Simiron v. Trust Territory, 8 TTR 615 (App. 1988) overruled the Ungeni case, and declared that all marine areas below the ordinary high watermark were considered owned by the government.

     While the government has been considered to be the lawful owner of the tidelands of Chuuk State since the Simiron case, the government had given back some of the traditional rights that the people of Chuuk State had at the time the Japanese Administration abolished those rights.  These included the right to use fish weirs or traps (including both types erected in shallow and deep water) and such rights to erect, maintain and control the use of these weirs or traps, and other rights where such rights were not in conflict with the inherent rights of the government as the owner of all marine areas below the ordinary high watermark.

     What the Simiron case really meant to the Chuukese people, especially all the Chuukese tidelands owners, was that they were deprived of many of their rights to their property over the marine areas below the ordinary high watermark.

     The ownership of the tidelands has been an important issue since the Trust Territory government took over the administration of the islands in Micronesia. The people of Chuuk State have always considered themselves to have rights and ownership of the tidelands, and thereby hold the property rights in them, throughout all of the several foreign administrations.  These traditional and customary claims came down from the great, great, great ancestors, from time immemorial.

     These ancient claims or rights of ownership of the marine areas below the ordinary high watermark and everything in them were held by the Chuukese until Japan took over the Administration of Micronesia, and in so doing took over the rights and ownership of all marine areas below the ordinary high watermark.  This was done by virtue of a Japanese Proclamation which

[6 FSM Intrm. 209]

was alleged to have declared all the marine areas below the ordinary high watermark to belong to the government.  This is the original basis of the Trust Territory government's claim of ownership of the tidelands, which resulted in the Trust Territory government enactment of 67 TTC sections 1 and 2, and later, the overruling the Ungeni case so as to proclaim that all tideland belonged to the government.  Until now this is the present position and status of the tidelands in Chuuk State.

     However, the Chuuk State Constitution, article IV, section 4 states: "Traditional Rights ) Traditional Rights over all reefs, tidelands, and other submerged lands including their water columns, and successors rights thereto, are recognized.  The Legislature may regulate their reasonable use."  Chk. Const. art. IV, 4 (emphasis added).

     Because the emphasized part of section 4 of article IV of Chuuk State Constitution is ambiguous, we turn to the State Constitutional Convention Reports since there has not been any State Constitutional Convention Journal ever compiled.

     The Committee on Civil Liberties has been assigned Delegate Proposal No. 150, jointly with the Committee on General Provisions together with Delegate Proposals No. 161, 171, and 176, all these proposals relate to the rights of ownership and use of tidelands reefs, and other submerged lands in Chuuk State, entitled:  "A proposal Relating to Private Property Interests in and of the Waters of Chuuk State."

     It is clear from the intent of the members of the Committee on Civil Liberties and the members of the Committee on General Provisions that all traditional rights and ownership shall be recognized, as fully set out in their Report to the Chuuk State Constitutional Convention dated October 17, 1988.  SCREP No.19 was submitted clarifying the recommendations on this Committee Proposal reflecting the true intent of the Committees on Civil Liberties and General Provisions, as set out in paragraph 2 of the letter of the Committee on Civil Liberties as follows:

     In Chuuk, rights to these tidelands, reef, and other submerged lands have always been regarded as privately owned and controlled pursuant to custom and tradition, even though the various administering authorities of Chuuk over the years have exercised various forms of control over them, and, indeed, have disputed such ownership.  It is the intent of your committee to have the Constitution declare the true situation with respect to the ownership of these rights, . . . .

     Committee Proposal No. 19 put in this way:

ARTICLE NO.           

Section           The ownership of all rights to existing reefs, tidelands, and other submerged lands according to tradition and custom is recognized, and the State Legislature shall provide by law for determining disputed claims to their ownership and may regulate their reasonable use.

 Id. (omissions in original).

     The Proposal was obviously amended when said Proposal was transmitted to the Committee on Style and Arrangement.  However, this Committee endorsed and recommended a favorable adoption of this Proposal to be passed by the State Constitutional Convention with certain amendment.

[6 FSM Intrm. 210]

     The members of the Committee on Style and Arrangement, upon receiving the copy of the Committee Proposal No. 19, made only a few minor changes as reflected in SCREP No. 101, dated December 12, 1988.  This Committee Proposal No. 19 COW; D-1 incorporated all the amendments therein as stated in the last paragraph of SCREP. No. 101, dated December 12, 1988, and states: "With the incorporation of these amendments, your Committee recommend the adoption of this proposal as amended, on second reading."

     Furthermore, Committee Proposal No. 19; Committee of the Whole (COW) Draft 1 (COW D-1) and Style and Arrangement.  Draft 1 (SA D-1), in Chuukese language it states this way:

SPUN        .
 
TETTER          .  Meinisin nemenem fan pungun eorenien sou-nono, ika pwan io kewe siwninir won meinisin ekkewe wooch, noono tori nemochikiset me ekkewe mei wor ikenai fan pungun eoreni a fen affat me pwano pwe an aramas.  Ewe Anepungun Chuuk epwap pwal fori Annukun eaean.

     The intent here both in Chuukese and English is crystal clear for this court to declare at this point that, it is the intent of the Chuuk State Constitutional Convention to return the rights and ownership of all reefs, tidelands (all areas below the ordinary high watermark), and other submerged lands to the individual people of Chuuk State.

Conclusion
     In light of the above discussion of the intent of article IV, section 4 of the Chuuk State Constitution, it is the opinion of this court that section 4, article IV, of the Chuuk State Constitution overrules the case of Simiron v. Trust Territory, 8 TTR 615 (App. 1988) and 67 TTC 2.  By virtue of this holding, the Simiron case and section 2 of title 67 of the Trust Territory Code, are no longer the valid law of Chuuk State.

     In the case at bar, the government did not put forward any evidence.  However, it strongly argued, citing 67 TTC 2, and Simiron v. Trust Territory, 8 TTR 615 (App. 1988), that all areas below the ordinary high watermark were owned by the government.

     This contention is no longer consistent with the present law of Chuuk State. Since the Chuuk State Constitution "is the supreme law of the State of Chuuk," Chk. Const. art. II, 1, any statutes are invalid to the extent that they are inconsistent with the state constitution.  67 TTC 2 is inconsistent with article IV, section 4 of the Chuuk State Constitution mandating the return of the rights and ownership of all the areas below the ordinary high watermark to the Chuukese people.

     This opinion does not in any way alter or limit the rights of owners of abutting land to claim ownership of any materials, coconuts, or other small objects deposited on the shore or beach by action of the water or falling from trees located on the abutting land, to the extent that they may have such rights by either custom or agreement.

Effective Date of the Court's Ruling
     When rendering judgments on new constitutional rules, there is an extensive body of case law dealing with the issue of whether the new rule should be applied retroactively from the date of the Court's judgment, or prospectively.  In deciding this issue, Courts are to be guided by the

[6 FSM Intrm. 211]

following three factors: 1) the purpose to be served by the particular new rule; 2) the extent of reliance which had been placed upon the old rule; and 3) the effect on the administration of justice of a retroactive application of the new rule. George K. Chamberlin, Annotation, United States Supreme Court's Views as to Retroactive Effect of its Own Decisions Announcing New Rules, 65 L. Ed. 2d 1219 (1981); Brown v. Louisiana, 447 U.S. 323, 100 S. Ct. 2214, 65 L. Ed. 2d 159 (1980); Hankerson v. North Carolina, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306 (1977); Tehan v. United States, 382 U.S. 406, 86 S. Ct. 459, 15 L. Ed. 2d 453 (1966).

     In applying these established factors to the case at bar, the Court here must ascertain whether the granting of tideland ownership back to individual owners should be considered effective as of the date of this judgment, and thus prospective in nature, or as of the date of the official enactment of the Chuuk State Constitution, and thus retrospective to a limited degree.  The Court begins its analysis on this issue by addressing the first factor ) the purpose of the new rule established in this case:

     The purpose of recognizing the traditional tideland ownership rights of Chuukese individuals was to restore the ownership of the tidelands in this state in accordance with Chuukese customs and traditions, and conversely, to divest the government of its claims of ownership over the tidelands, since the time of the Japanese occupation.  The people of Chuuk State had long considered themselves to be the true and rightful owners of the tidelands, and article IV, section 4 of the Chuuk State Constitution was intended to effectuate those beliefs with the force of law.

     In regards to the second factor, courts have often emphasized that "a significant, though not necessarily controlling, criterion is whether or not there has been good-faith reliance on an old rule."  Chamberlin, supra, 65 L. Ed. 2d at 1237.  Further, "[w]here there has been good-faith reliance on an old rule, and retroactive application of the new rule would defeat such reliance, this has been considered a factor in favor of denying the new rule retroactive effect."  Id. Specifically, the courts have held that new rules should not be applied retroactively where such application would "invalidate transactions which occurred before the date of the overruling decision," and that "where parties have entered into certain transactions in reliance on the law which existed while a certain case had not yet been overruled, such transactions should not be subsequently invalidated through the retroactive application of the new rule announced in the case which overruled the earlier case."  Id. at 1237 n.63 (citing Douglass v. County of Pike, 101 U.S. 677, 25 L. Ed. 968 (1880); Gelpcke v. Dubuque, 68 U.S. 175, 17 L. Ed. 520 (1864)).

     In this present case, prior to this opinion, the old rule was thought to be in accordance with the Simiron case, even after the passage of the Chuuk State Constitution.  After the Chuuk State Constitution was ratified and became effective, it was not at all clear, absent a judicial ruling on the matter, whether the new constitution, in article IV, section 4, had necessarily changed the rule of law established just a few years prior in the Simiron case.  Accordingly, until the issuance of this opinion, a party's reliance on the continued vitality of the Simiron ruling would seem to have been well founded in law, and therefore in good faith.

     With the above considerations in mind, the second factor would seem to indicate that the ruling of this opinion should be given prospective application. Further, such prospective application would still effectuate the purpose of the new rule as considered in the first factor, without imposing any undue hardships on parties who had acted in good faith reliance upon the old rule.  The last matter that must be resolved then, is the third and final factor:

     Courts have held that it is also significant to determine the effect which retroactivity of a

[6 FSM Intrm. 212]

rule would have upon "the administration of justice."  Chamberlin, supra, 65 L. Ed. 2d at 1240.  This includes considerations of substantial burdens that would result from such retroactivity.  A retroactive application of the new rule delivered in this opinion, applied in accordance with considerations of the second factor above, would involve the courts in flood of litigation pivoting on the sole issue of the government's good or bad faith reliance upon the old rule, in the years between the time of Constitution's official validity and the issuance of this judicial opinion.  The Court has already noted in the above discussion that any reliance upon the old rule, prior to this opinion's publication, would be well justified in law and consequently made in good faith reliance on the old rule.  It is therefore the opinion of the Court that the administration of justice would only be burdened by a retroactive application of this new rule, and such burdens would not be justified by meritless claims doubting the good faith reliance on the old rule of law.

Conclusion
     In conclusion, in order to best effectuate the purpose of this new rule, to protect the justified reliance on the old rule, and avoid any unnecessary burdens on the administration of justice, the holding of this Court, based on article IV, section 4 of the Chuuk State Constitution, which grants ownership of the tidelands back to the rightful individual owners, shall be given prospective application only, from the date of the issuance of this order and judgment. Accordingly, this said new constitutional rule shall apply to the parties in this present case, and shall be deemed to be the effective law of Chuuk State from the date of this opinion forward only.  Claims arising before the issuance of this order shall be considered in accordance with the old rule, as declared in the Simiron opinion.

OWNERSHIP OF NEFAT
     The only remaining issue that needs to be addressed here is who the legal owner of Nefat is, as between the plaintiff and intervenors.  The plaintiff carries the burden of proof whose duty it is to introduce evidence to prove that she is the owner of said property in dispute, by a preponderance of the evidence. Sometimes this is called the "burden of going forward with the evidence," or the "burden of producing evidence," and it lies with the party who seeks to prove an affirmative fact.  29 Am. Jur. 2d Evidence 123 (1967); Chk. Evid. R. 301.  In this case at bar, Plaintiff, having alleged ownership of the tideland property, has the burden of proving her allegations by a preponderance of the evidence.

     In the case at bar, there is conflicting evidence as to the original owner of said tideland.  Plaintiff alleged in her testimony that the clan lineage of UN own the said tideland, as passed down from their great ancestors of the UN clan.  There was conflict in the testimony by the second witness for the plaintiff, part of which undermined the testimony and position of the plaintiff.

     Intervenor's Paten and Pauli's testimony showed that the tideland in dispute is owned by the members of her Fesinim Lineage, passing down to their children from their grand ancestors to the first intervenors.

     The second intervenor, Bueni Romino also testified that he knows that the tideland Nefat as originally owned by the Fesinim clan, and not by the UN clan. There was a small Island located in the tideland of Nefat which belongs to the Fesinim clan.  His ancestors only gave away the tideland Nefat to their children on Paten's side as the owner of Nefat and not Fumiana Nimeisa.

     Second intervenor, Bueni Romino is a member of Paten and Pouli's grandfather.  Their

[6 FSM Intrm. 213]

grandfather is one of the members of Fesinim lineage.  Bueni Romino as a member of Fesinim clan, still retains the ownership of the small Island which still stands in the tideland of which part of it was eaten away by the action of the water there.

     In this case and as in law the plaintiff has the burden of proving her ownership of said tideland by a preponderance of evidence of which the plaintiff failed to meet the standard of proof in civil matter in this particular case.

     However, First Intervenor, Paten and Pauli did prove their ownership of said tideland by presenting evidence which sufficiently refuted plaintiff's evidence of ownership of the tideland of "Nefat."

     Based on the evidence presented in this civil matter, it is therefore the opinion of this court that the plaintiff failed to prove her rights and ownership of the tideland Nefat, located in Sopou Village, on Uman Island, in Chuuk State, by the requisite standard in Civil Action.  Therefore, Plaintiff has no interests or title of ownership in the tideland of Nefat.

     It is also the opinion of the court that the second intervenor, Bueni Romino, did prove their respective claims that they have some rights and ownership of said tideland.

     The Chuuk State Government is also liable to pay compensation to the true owners, in amount commensurate to the damage occurred to their tideland by taking the sand in said tideland without compensation.  Chuuk State has no rights and ownership in the tideland known as "Nefat" located in Sopou Village, Uman Island, Chuuk State.

III.  JUDGMENT
     Based on the evidence and the laws applicable on the issues raised in the above civil matter, the judgment of the Court is as follows:

          1.  The tideland known as Nefat located in Sopou Village, Uman Island, Chuuk State, belongs to the first Intervenors, Paten and Pauli, except the area claimed by Second Intervenor, Bueni Romino, in Nefat, where it was a land but was, in fact, eaten away by the action of the water, belongs to Bueni Romino.

          2.  Plaintiff Fumiana Nimeisa has no rights or ownership of the tideland Nefat nor do her successors in interests.  They are not allowed to go in said tideland without expressed permission from the owner by virtue of this opinion and judgment.

          3.  Based on their contract and negligence claims, the First Intervenors, Paten and Pauli are entitled to be compensated, and Chuuk State shall pay an amount of fifteen thousand dollars ($15,000.00), and likewise, the Chuuk State Government shall pay to the Second Intervenor Bueni Romino an amount of five thousand dollars ($5,000.00).  This compensation shall be paid to the intervenors respectively, no later than 120 days from the date of the issuance of this order.

          4.  Each party shall bear its own court costs and expenses.

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Footnote:
 
1.  Tidelands are defined as those areas below the ordinary high water mark. The ordinary high water mark is the point at which the water and abutting land intersect at high tide.  The depth or distance to which individually owned sections of tideland will extend must be determined by the customs and any applicable agreements concerning such tidelands.