THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Ponape Enterprises Co. v. Luzama ,
6 FSM Intrm. 274 (Pohnpei 1993)

[6 FSM Intrm. 274]

PONAPE ENTERPRISES CO., POHNPEI AGRICULTURAL DEVELOPMENT INC., CAROLINE ISLAND DEVELOPMENT CO.
and HEIRS OF FLORENTINE ETSCHEIT,
Plaintiffs,

vs.

KOROPINO LUZAMA, ANDERA LUZAMA, KERMAN YAMADA,
ROY WILLIAM, WELSIN LUZAMA, ROSENDO SANTIAGO,
DOMINGO PADAHK, UBER LIGORIO, ROSALINDA
NAKASONE, and CASMIRO NENNIS,
Defendants.

CIVIL ACTIONS NO. 1992-137; 1992-139; 1992-140; 1992-141; 1992-142; 1992-144; 1992-145; 1992-146; 1992-147; 1992-149

MEMORANDUM OF DECISION

Andon L. Amaraich
Associate Justice

Hearing:  November 11, 1993
Decided:  November 16, 1993
Entered:  December 1, 1993

APPEARANCES:
For the Plaintiffs:          Daniel J. Berman, Esq.
                                       Rush, Moore, Craven, Sutton, Morry & Beh
                                       745 Fort Street
                                       Honolulu, HI 96813

For the Defendants:     Elizabeth Keys
                                       Micronesian Legal Services Corporation
                                       P.O. Box 129
                                       Kolonia, Pohnpei FM  96941
 
                                       Delson Ehmes, Esq.
                                       P.O. Box 1018
                                       Kolonia, Pohnpei FM  96941

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HEADNOTES
Appeal and Certiorari ) Stay; Civil Procedure ) Injunctions
     A court may modify an injunction to preserve the status quo during the pendency of an

[6 FSM Intrm. 275]

appeal.  Ponape Enterprises Co. v. Luzama, 6 FSM Intrm. 274, 276-77 (Pon. 1993).

Appeal and Certiorari ) Stay
     While a supersedeas bond is a prerequisite to granting a stay from a money judgment, no such bond is required in order to obtain a modification of an injunction pending appeal.  It may be granted upon such terms as to bond or otherwise as the court considers for the security of the adverse party's rights.  Ponape Enterprises Co. v. Luzama, 6 FSM Intrm. 274, 277 (Pon. 1993).

Appeal and Certiorari ) Stay
     The criteria for granting a stay pending appeal under Rule 62 are: 1) whether the appellant has shown that without the stay he will be irreparably harmed; 2) whether issuance of the stay would substantially harm other parties interested in the proceedings; 3) whether the public interest would be served by granting a stay; and 4) whether the appellant has made a strong showing that he is likely to prevail on the merits of the appeal.  Ponape Enterprises Co. v. Luzama, 6 FSM Intrm. 274, 277-78 (Pon. 1993).

Appeal and Certiorari ) Stay
     When summary judgment is granted enjoining trespassing farmers, removing the farmers from the land while their appeal is pending might more substantially alter the status quo than a stay allowing them to remain on the land.  Ponape Enterprises Co. v. Luzama, 6 FSM Intrm. 276, 278 (Pon. 1993).

Appeal and Certiorari ) Stay
     A stay on appeal may be granted even when the moving party has less than a 50% chance of success if the question is a difficult one, or an issue of first impression about which respectable minds might differ.  Ponape Enterprises Co. v. Luzama, 6 FSM Intrm. 274, 279 (Pon. 1993).

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COURT'S OPINION
ANDON L. AMARAICH, Associate Justice:
     Under the Court's Summary Judgment Order of August 17, 1993, ten defendants were found to be trespassing on land parcel numbers 046-A-01, 046-A-02, and 046-A-04, and were permanently enjoined from farming, building, or otherwise going onto the property without the plaintiffs' permission.1  On November 16th, the Court granted the defendants' requests that the injunction be modified pending appeal in order to allow them to tend to their existing farms and gardens while awaiting a decision by the appellate division.  Pursuant to FSM Civil Rule 62(c), the August 17th injunction was temporarily modified as follows:

   (1)  defendants are allowed to remain on the land to maintain their farms;

[6 FSM Intrm. 276]

   (2)  the defendants are prohibited from expanding their farms or from clearing or cultivating any additional areas on the land;

   (3)  the defendants are prohibited from destroying any trees on the land;

   (4)  the defendants are prohibited from any further construction of houses or buildings on the land, and from adding to or completing existing houses or buildings;

   (5)  the defendants are prohibited from dismantling or removing any of the plaintiffs' property;

   (6)  the defendants are prohibited from interfering with the plaintiffs and the plaintiffs' employees when they come onto the land to do their work;

   (7)  the defendants are prohibited from inviting others onto the land to farm, build or live;

   (8)  all parties are prohibited from engaging in any physical violence or making any threats of physical violence.

The Order modifying the injunction stated that at a later date the Court would explain the basis for its action, and it does so now.

BACKGROUND
     The defendants based the request that the original August 17th injunction be stayed or modified pending appeal on the fact that they had planted large amounts of crops on the land that would likely die if not tended.  They stated that they depended on these crops for their subsistence.  In addition, the defendants argued that the plaintiffs' interests in barring them from the land was minimal because there were other defendants against whom summary judgment had not been granted and those defendants would be farming on the land for the meantime anyway.  The plaintiffs, on the other hand, argued that a stay or modification of the injunction should be denied because the defendants were interfering with the plaintiffs' ability to use and develop the land.  They stated that the defendants were cutting down trees and clearing areas that the plaintiffs had been reforesting, and that the plaintiffs' farming was being hampered not only because the defendants' own farms got in the way of operations, but also because defendants had made threats of physical violence to the plaintiffs' employees.  The plaintiffs also argued that if the Court allowed the defendants to stay on the land during the pendency of their appeals it would encourage others to trespass.

DISCUSSION
     FSM Civil Rule 62(c) states:

     When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.

     It is well-settled that Rule 62(c) is expressive of the Court's power to preserve the status quo

[6 FSM Intrm. 277]

pending appeal. McClatchy Newspapers v. Central Valley Typographical Union No. 46, 686 F.2d 731, 734 (9th Cir. 1982); Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1003 (5th Cir. 1969).2  The Court believes that this is an appropriate case to exercise that power by temporarily modifying the injunction in the manner stated above.  The modifications allow the defendants to remain on the land to tend their farms and gardens, but are designed to limit the defendants' interference with the plaintiffs operations, and to keep the defendants from expanding the farms or doing anything to further entrench their positions.  If the conditions are adhered to, and the Court expects the defendants to adhere strictly, then no significant hardship will fall on the plaintiffs from allowing the defendants to remain on the land during the pendency of their appeals.  If, on the other hand, the conditions are not strictly adhered to by a particular defendant the Court may act under Rule 62 to restore the original August 17th injunction excluding that individual from the land.

     The plaintiffs' "foremost" argument against granting a stay was that the defendants had not posted a supersedeas bond equivalent to full security. According to the plaintiffs, such a bond is an absolute prerequisite to the granting of a stay and plaintiffs claim that full security here is $683,150.00. See Aff. Steven Nix para. 29.  However, while a supersedeas bond may be required for a stay of a money judgment under Rule 62(d), it is clear that no such bond is required in order to obtain a modification of an injunction pending appeal, which is governed by subsection (c), rather than subsection (d), of the rule.  See FSM Civ. R. 62(a) ("The provisions of subdivision (c) of this rule govern the suspending, modifying, restoring, or granting of an injunction during the pendency of an appeal.")  A modification of an injunction pending appeal may be granted under subsection (c) "upon such terms as to bond or otherwise as [the Court] considers proper for the security of the rights of the adverse party."  Id. (emphasis added).  The plaintiffs did not discuss subsection (c), or explain how their claim that a supersedeas bond was a requirement here could be squared with the language of that subsection.  The Court believes that, for purposes of subsection (c), the security of the plaintiffs' rights will be adequately protected through strict enforcement of the prohibitions placed on the defendants' activities under the modified injunction.

     The plaintiffs also argue that the defendants have not met the criteria for granting a stay pending appeal under Rule 62.  The plaintiffs state that those criteria are: (1) whether the appellant has shown that without the stay he will be irreparably harmed; (2) whether issuance of the stay would substantially harm other parties interested in the proceedings; (3) whether the public interest would be served by granting a stay; and (4) whether the appellant has made a strong showing that he is likely to prevail on the merits of the appeal.  The United States Supreme Court has looked to those criteria in applying Federal Rule of Civil Procedure 62(c), which contains language identical to FSM Civil Rule 62(c).  Hilton v. Braunskill, 481 U.S. 770, 776, 107 S. Ct. 2113, 2119, 95 L. Ed. 2d 724, 733 (1987); see also 31A Am. Jur. 2d Federal Practice and Procedure 1096, at 398 (1982).  Neither of the parties identifies any FSM cases adopting these criteria and the Court is aware of none, but since FSM Civil Rule 62 is drawn from Rule 62 of the United States Federal Rules of Civil Procedure, decisions of United States courts construing Federal Civil Procedure Rule 62 are a legitimate source of guidance as to the meaning of the FSM rule.  Andohn v. FSM, 1 FSM Intrm. 433, 441 (App. 1984).  Moreover, the Court believes that the standards articulated in Hilton v. Braunskill provide a useful framework for deciding whether to grant relief under Rule 62, and

[6 FSM Intrm. 278]

hereby adopts those standards.  This Court has already approved almost identical standards in the context of requests for preliminary injunctions under FSM Civil Rule 65, a rule which, like Rule 62(c), empowers the Court to maintain the status quo during litigation.  See Ponape Transfer & Storage v. Pohnpei State Pub. Lands Auth., 2 FSM Intrm. 272, 275-77 (Pon. 1986).

     The plaintiffs argue that the defendants cannot show irreparable harm because no concrete structures have been built and the defendants were allowed 30 days under the original injunction to remove any crops from the land.   The plaintiffs' argument ignores the fact that the defendants have stated that they depend on these farms for their subsistence.  Eviction of a subsistence farmer would have very serious and likely irreparable consequences for the health and well-being of that farmer and his or her family. Moreover, while it is not disputed that the defendants' houses are relatively insubstantial, the Court declines to evaluate the importance of those houses to the families involved solely in terms of the materials used to construct them.  If anything, the fact that the houses are not concrete militates in favor of granting a stay because if the appellees are successful they will be able to remove the houses easily after the appeal.  As far as the 30-day period for removal of crops, it is obvious that much of what a farmer plants does not ripen within 30 days.  Therefore, it is highly unlikely that the defendants would be able to harvest the crops they have already planted in the absence of a stay.

     The plaintiffs argue that granting the stay will substantially harm them.  They have submitted a number of affidavits stating that the defendants have made threats of physical violence to plaintiffs' employees and state further that the defendants have continued to burn the forest and cut down the trees necessary to plaintiffs' operation and to plans for maintaining the forest as a long-term renewable resource.  The plaintiffs also claim that the defendants have encouraged other trespassers to come onto the land.

     It may be that the defendants' past activities have disrupted the plaintiffs' operations in ways that will take considerable time, effort and expense to mend.  However, after reviewing the submissions, and listening to the plaintiffs' presentation, the Court is not persuaded that any of the ten defendants have been responsible for a single significant incident of land clearing, tree destruction, or construction since the Court granted summary judgment in August.  Certainly, there was no evidence that many of the defendants were engaging in such activities or other acts that would disturb the status quo that existed when summary judgment was granted.  The specific prohibitions stated in the Court's modified injunction should further discourage the defendants from engaging in the activities that the plaintiffs have complained of.

     In addition, the plaintiffs failed to show the Court that additional individuals had come onto the land since August 17th to begin farming operations.  Nor does the Court think that its decisions can reasonably be seen as encouraging other farmers who may be thinking of entering onto the land.  The Court has declared the ten defendants to be trespassers and unless that decision is reversed on appeal the individuals will be forced to leave their houses and farms on the disputed land in the relatively near future.  That is hardly an inducement to potential trespassers who are deciding whether to expend time and energy to cultivate the land.  Therefore, the Court believes that removing the defendants from the land now would more substantially alter the status quo, than allowing them to remain on the land.

     The Court is very concerned about the threats of violence that the plaintiffs state have been made to their employees by some of the defendants.  The testimony and affidavits on this subject leave little doubt that such threats have been made.  Counsel for the defendants argued that no action had been taken regarding these alleged threats and that if they were made, they were not

[6 FSM Intrm. 279]

meant seriously.  Counsel's claim is essentially that the threats were merely a means of intimidating the plaintiffs' employees, not a statement of actual intention to do violence.  Even if that is true, the defendants' threats are completely unacceptable and are condemned by this Court.  Future threats of that kind are explicitly prohibited by the Court's modified injunction.

     The plaintiffs also claim that the defendants have failed to demonstrate a likelihood that they will prevail on appeal.  The plaintiffs argue that there is little chance that the defendants will succeed since the appeal does not raise any arguments besides those that were rejected by this Court's decision on summary judgment.  However, the defendants do not have to convince the trial court that its decision is likely to be reversed on appeal.  Relief under Rule 62 may be granted even when the moving party has less than a 50% chance of success.  Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843-44 (D.C. Cir. 1977).  It is enough if the question is a difficult one, id. at 845, or an issue of "first impression" about which "respectable minds might differ," Providence Journal Co. v. Federal Bureau of Investigation, 595 F.2d 889, 890 (1st Cir. 1979).  Obviously, the Court believes that its summary judgment decision correctly applied the law to the facts of this case. However, the Court also recognizes that the questions involved here are difficult ones.

     For the reasons discussed above, the Court believes it is appropriate to maintain the status quo by modifying the injunction during the pendency of the appeal, or until such time as this Court is persuaded that circumstances have changed sufficiently to alter the balance of interests.

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Footnotes:
 
1.  A total of nineteen trespass cases have been filed by the same plaintiffs against various individuals.  All these actions involve parcels 046-A-01, 046-A-02, and 046-A-04.  This decision concerns only the defendants in those ten cases in which summary judgment was granted: Civil Action Nos. 1992-137; 1992-139; 1992-140; 1992-141; 1992-142; 1992-144; 1992-145; 1992-146; 1992-147; 1992-149.  In re Parcel No. 046-A-01, 6 FSM Intrm. 149, 157-58 (Pon. 1993).
 
2.  Neither the submissions of the parties nor the Court's own research uncovered any FSM decisions that applied FSM Civil Rule 62(c).  However, FSM Civil Rule 62 is drawn from Rule 62 of the United States Federal Rules of Civil Procedure, so decisions of the United States courts construing Federal Rule of Civil Procedure 62 are a legitimate source of guidance as to the meaning of the FSM rule.  Andohn v. FSM, 1 FSM Intrm. 433, 441 (App. 1984).