THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Citesas Ponape Enterprises Co. v. Bergen ,
6 FSM Intrm. 286 (Pohnpei 1993)

[6 FSM Intrm. 286]

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

vs.

LAURA BERGEN, LORENZO PADAHK, WALTER EKIEK,
BELERINO PHILLIP, HENRY PHILLIP, BERNARD JACK,
KUPTER LUCIOUS, LUCAS CARLOS, CONSTANTINE
SOLOMON, and ENERICO RODRIGUEZ,
Defendants.

CIVIL ACTIONS NO. 1992-138; 1992-153; 1993-002; 1993-020; 1993-074

MEMORANDUM OF DECISION

Andon L. Amaraich
Associate Justice

Hearing:  November 11, 1993
Decided:  November 16, 1993
Entered:  December 6, 1993

APPEARANCES:
For the Plaintiffs:          Daniel J. Berman, Esq.
                                       Rush, Moore, Craven, Sutton, Morry & Beh
                                       2000 Hawaii Tower
                                       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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[6 FSM Intrm. 287]

HEADNOTES
Civil Procedure ) Injunctions
     In exercising its broad discretion in considering whether to grant a preliminary injunction the court looks to four factors: 1) the likelihood of success on the merits of the party seeking injunctive relief, 2) the possibility of irreparable injury to the moving party, 3) the balance of possible injuries or inconvenience to the parties which would flow from granting or denying the relief, and 4) any impact on the public interest.  The object of a preliminary injunction is to preserve the status quo pending the litigation on the merits. Ponape Enterprises Co. v. Bergen, 6 FSM Intrm. 286, 288 (Pon. 1993).

Civil Procedure ) Injunctions
     A court may grant a preliminary injunction even if the moving party is not more likely than not to prevail, as long as the movant's position appears sufficiently sound to raise serious, nonfrivolous issues.  Ponape Enterprises Co. v. Bergen, 6 FSM Intrm. 286, 289 (Pon. 1993).

Civil Procedure ) Injunctions
     An injunction allowing defendants in a trespass action to remain on the land, harvest their crops, but preventing them from destroying any trees or expanding their cultivations or further entrenching their positions will prevent irreparable harm to the plaintiffs, balance the interests of the parties, and serve the public interest by preserving the status quo during the pendency of the  litigation.  Ponape Enterprises Co. v. Bergen, 6 FSM Intrm. 286, 289-90 (Pon. 1993).

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COURT'S OPINION
ANDON L. AMARAICH, Associate Justice:
     The plaintiffs filed motions seeking temporary restraining orders or preliminary injunctions in the above-referenced trespass actions involving land parcel numbers 046-A-01, 046-A-02, and 046-A-04 in Nett Municipality.  They asked that the defendants be enjoined from entering, cultivating, damaging, or doing any construction on the property.  On November 16, 1993, the Court entered a preliminary injunction against the defendants.  That preliminary injunction does not evict the defendants from the land, but does prohibit them from:

     (1)  expanding their farms, or clearing or cultivating any additional areas on the disputed land;

     (2)  destroying any trees on the land;

     (3)  constructing any houses or buildings on the land, or adding to or completing existing houses or buildings;

     (4)  dismantling or removing any of plaintiffs' property;

     (5)  interfering with the plaintiffs and the plaintiffs' employees when they come onto the land to do their work;

     (6)  inviting others onto the land to farm, build or live;

[6 FSM Intrm. 288]

     (7)  engaging in any physical violence or making any threats of physical violence.

At the time the preliminary injunction was issued the Court indicated that at a later date it would explain the basis for its decision, and it does so now.

BACKGROUND
     This is an action in trespass.  The plaintiffs are foreign development corporations doing business in Pohnpei, and the heirs of Florentine Etscheit, some of whom are FSM citizens.  The defendants are all citizens of the FSM and residents of Pohnpei State. The above-referenced cases are five out of a total of nineteen trespass actions that the same plaintiffs have filed involving land parcel numbers 046-A-01, 046-A-02, and 046-A-041.  The plaintiffs state that they are the owners and lessees of the parcels and that this is demonstrated by the certificates of title that the Land Commission issued to the heirs of Florentine Etscheit.  They allege that the defendants have entered onto the land without permission and that preliminary relief is necessary to, inter alia, stop the defendants from cutting down trees and clearing areas that the plaintiffs had been cultivating as a forest.  The plaintiffs also complain that their farming operations are being hampered by the presence of the defendants' farms and activities on the land. The plaintiffs predict that more persons will be encouraged to come onto the land if the Court delays the eviction of the defendants.

     The defendants oppose preliminary relief, arguing that the plaintiffs are not proper owners and lessees of the land because the defendants have been in possession of the land since 1947 and because the heirs of Florentine Etscheit are noncitizens who are disqualified from owning land pursuant to article XIII, section 4 of the FSM Constitution.

DISCUSSION
     In considering whether to grant a preliminary injunction pursuant to FSM Civil Rule 65 this Court "is required to exercise broad discretion and weigh carefully the interests of both sides in order to arrive at a fair and equitable result."  Ponape Transfer & Storage v. Pohnpei State Pub. Lands Auth., 2 FSM Intrm. 272, 275 (Pon. 1986).  The Court has looked to four factors to guide its exercise of discretion under Rule 65.  Those factors are: (1) the likelihood of success on the merits of the party seeking injunctive relief, (2) the possibility of irreparable injury to the moving party, (3) the balance of possible injuries or inconvenience to the parties which would flow from granting or denying the relief, and (4) any impact on the public interest.  Id. at 275-77; Ponape Transfer & Storage v. Federated Shipping Co., 3 FSM Intrm. 174, 177 (Pon. 1987).  The object of a preliminary injunction is to preserve the status quo pending the litigation on the merits.  Penn v. San Juan Hotel, Inc., 528 F.2d 1181, 1185 (10th Cir. 1975); District 50, United Mine Workers of Am. v. International Union, United Mine Workers of Am., 412 F.2d 165, 168 (D.C. Cir. 1969); Benson Hotel Corp. v. Woods, 168 F.2d 694, 696 (11th Cir. 1948).  After reviewing the submissions of the parties, and considering the four factors identified in Ponape Transfer & Storage, the Court has concluded that it is appropriate to grant a preliminary injunction that maintains the status quo during the pendency of the litigation.  The preliminary injunction allows the defendants to remain on the

[6 FSM Intrm. 289]

land to tend their farms, but prohibits them from expanding those farms, further entrenching their positions on the land, or engaging in certain other activities that would interfere unreasonably with the plaintiffs operations.

Likelihood of Success On the Merits:
     This Court's decision in Ponape Transfer & Storage, 2 FSM Intrm. at 277-78, states that one factor to be considered before granting a preliminary injunction is the likelihood that the moving party will prevail on the merits.  The decision in that case made clear, however, that a preliminary injunction could be granted even if the Court is not convinced that the moving party will more likely than not prevail, as long as the movant's position "appears sufficiently sound to raise serious, nonfrivolous issues."  Id. at 278.

     The defendants contend that the plaintiffs cannot prevail in their trespass actions because the heirs of Florentine Etscheit are not the proper owners of the land.  Unfortunately for the defendants, however, that argument is largely foreclosed by the summary judgment decision this Court issued in related cases on August 17, 1993.  See In re Parcel No. 046-A-01, 6 FSM Intrm. 149 (Pon. 1993).  In its decision the Court stated that the certificates of title that the Land Commission had issued to the heirs of Florentine Etscheit in 1983 for parcels 01, 02, and 04, were dispositive proof of ownership as against all the defendants except those who could show both that they had an individual interest in the land dating back to the determination proceedings and that they were not given notice of those proceedings.  Id. at 156-57.  Eight of the defendants in the instant case have not presented any factual evidence suggestive of an individual interest in the land dating back to the determination proceedings.2  Therefore, there is substantial reason to believe that, under the Court's summary judgment decision of August 17th, the plaintiffs will prevail against these eight defendants as well.  This weighs heavily in favor of granting the preliminary injunction against those defendants.

     For the other two defendants covered by the preliminary injunction the situation is somewhat more complex.  Defendant Enerico Rodriguez submitted an affidavit stating that he entered onto the land and began developing it in 1981, and defendant Walter Ekiek states that his grandfather gave him the land to work in 1972.  Therefore, it is at least possible that these defendants will be able to show that they have claims to the land dating back to the determination proceedings.  Nevertheless, in order to prevail on the merits they would still have to prove: that they do in fact have interests in the land dating back to the determination proceedings; that such interests are superior to those of the Etscheit family; and that they did not receive adequate notice, constructive or otherwise, of the determination proceedings. Therefore, there remain "serious, nonfrivolous issues" with respect to these two defendants and a preliminary injunction to preserve the status quo is appropriate under Ponape Transfer & Storage.

Irreparable Harm:
     The plaintiffs claim that the defendants are engaging in rapid clearing, cultivation and construction techniques that will have serious, long-term, adverse effects on the plaintiffs' projects.  Steve Nix, the Director of plaintiff Caroline Island Development Company, stated that the

[6 FSM Intrm. 290]

defendants have destroyed many of the larger trees that the plaintiff had left on the land as part of an effort to maintain the forest, and that it will be ten or more years before the forest will be able to recover.  The Court is satisfied that such tree destruction and rapid clearing of land will cause irreparable harm to the plaintiffs if it is allowed to occur, especially considering that the defendants are subsistence farmers who almost certainly would be unable to financially compensate the plaintiffs after litigation.

Balance of Interests:
     The Court has tailored its preliminary injunction with the balance of interests of the two sides in mind.  The defendants argued that granting a preliminary injunction would harm them because eviction would prevent them from harvesting the crops on which they rely for their subsistence and would interrupt their continuous possession of the land, which they claim entitles them to rights under the Public Trust Lands Distribution Act of 1980 ("Entryman's Act"), Pon. S.L. 2L-43-80, 3.  The preliminary injunction issued by the Court, however, does not evict the defendants from the land and therefore causes neither of the harms identified by the defendants.
 
     The plaintiffs argued that a preliminary injunction prohibiting the defendants from entering the land was necessary to stop the defendants from engaging in such activities as destroying trees, rapidly clearing and cultivating new areas on the property, and building houses.  Although the Court has not evicted the defendants from the land, it has prohibited them from engaging in the types of activities that the plaintiffs voiced concern about.  The Court is not persuaded at this time that evicting the defendants from the land will be necessary to keep them from destroying trees, clearing new areas, and so on.  After reviewing the submissions, and listening to the plaintiffs' presentation, the Court is not persuaded that any of the defendants covered by this order are currently pursuing, or planning to pursue, any of the types of harmful activities described by the plaintiffs.  If they are, the Court's injunction specifically prohibits them from proceeding with such activities.

Public Interest:
     In this case the Court believes that allowing the defendants to remain on the land but preventing them from expanding their cultivations or further entrenching their positions will serve the public interest by preserving the status quo during the pendency of this litigation.  This course does not deprive the defendants of the crops they depend on for their subsistence, but also keeps the interference with the plaintiffs' operations to a minimum.

     The Court was not persuaded that the public interest lies elsewhere by the plaintiffs' prediction that potential trespassers will be encouraged to come onto the land if the Court delays the eviction of the defendants during the pendency of these trespass actions.  The Court has already declared the defendants in ten of the related cases involving land parcels 046-A-01, 02, and 04 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 remains convinced that removing the defendants from the land now would more substantially alter the status quo, than allowing them to remain on the land.

     For the reasons discussed above, the Court believes it is appropriate to maintain the status quo by granting the preliminary injunction described above.

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Footnotes:
 
1.  On August 17, 1993, the Court granted summary judgment to the plaintiffs in ten of the cases:  Civil 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 (Pon. 1993).
 
2.  The defendants have submitted affidavits by four persons who state facts indicating that they may have interests in the land dating back to 1947. However, none of those persons are defendants in these cases.