THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Damarlane v. United States,
7 FSM Intrm. 167 (Pohnpei 1995)

[7 FSM Intrm. 167]

IGNACIA DAMARLANE et al.,
Plaintiffs,

vs.

GOVERNMENT OF THE UNITED STATES,
on its own behalf and in the place of the
GOVERNMENT OF THE TRUST TERRITORY
OF THE PACIFIC ISLANDS et al.,
Defendants.

CIVIL ACTION NO. 1990-075

ORDER

Richard H. Benson
Associate Justice

Hearing:  January 19, 1995
Decided:  April 17, 1995
Reconsidered and Amended:  June 30, 1995

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

For the Defendant:     Daniel J. Berman, Esq.
(United States)           Rush, Moore, Craven, Sutton, Morry & Beh
                                     2000 Hawaii Tower
                                     745 Fort Street
                                     Honolulu, HI 96813-3862
 
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HEADNOTES
Statutes of Limitation
     Subsequent to the effective date of the Compact the two-year statute of limitations applies to trespass and nuisance suits against the Trust Territory of the Pacific Islands.  Jurisdiction over claims for acts or omissions of the government of the Trust Territory of the Pacific Islands is limited to those arising prior to the effective date of the Compact of Free Association.  Damarlane v. United States, 7 FSM Intrm. 167, 168 (Pon. 1995).

Civil Procedure ) Pleadings
     Where a plaintiff in response to interrogatories does not list "funding" as one of the defendant's acts constituting a violation and plaintiffs' amended pretrial statement does not state that "funding"

[7 FSM Intrm. 168]

is a ground for liability, plaintiffs' allegation in their complaint that "funding" gave rise to liability will be deemed abandoned.  Damarlane v. United States, 7 FSM Intrm. 167, 169 (Pon. 1995).

Constitutional Law ) Taking of Property
     The mere act of the United States' funding the FSM and Pohnpei does not subject it to liability for a taking because its involvement was insufficiently direct and substantial to warrant such liability and because one government is not liable for a taking by officials of another government for merely advocating measures that other government should take.  Damarlane v. United States, 7 FSM Intrm. 167, 169-70 (Pon. 1995).

Constitutional Law ) Taking of Property
     An unconstitutional taking occurs whenever a public entity substantially deprives a private party of the beneficial use of his property for a public purpose.  Therefore where neither the Trust Territory nor a U.S. government agency could be considered a public entity in the FSM after the effective date of the Compact they are legally incapable of committing a taking after that date.  Damarlane v. United States, 7 FSM Intrm. 167, 170 (Pon. 1995).

Civil Procedure ) Pleadings
     A court has inherent power to strike those portions of a pretrial statement that do not comport with its order for pretrial statements.  Damarlane v. United States, 7 FSM Intrm. 167, 170 (Pon. 1995).

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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This case came before me for oral argument on January 19, 1995, on the motions of the United States for summary judgment, or in the alternative that I reconsider my earlier denial entered March 24, 1994, and for striking the plaintiffs' pretrial statement.

Summary Judgment
     The United States seeks the dismissal of counts alleging nuisance, trespass and an unconstitutional taking of property.  In each count the defendant is alleged to have committed those acts in that it "allowed and funded unpermitted earthmoving."  Third amended complaint filed on March 19, 1991.  The dredging occurred during two periods, 1978-81 and 1986-90.  Because of discovery the plaintiffs contend that this second period began in 1983.  This amendment is not opposed by the United States.  My order entered March 24, 1994 dismissed the allegations of nuisance and trespass occurring in the first period of 1978-81.  Damarlane v. United States, 6 FSM Intrm. 357, 361 (Pon. 1994).

Fourth and Fifth Causes of Action
     The tort claims of nuisance (Count IV) and trespass (Count V) are subject to the six year statute of limitation.  6 F.S.M.C. 805.  However for the reasons explained in Alep v. United States, 6 FSM Intrm. 214, 220 (Chk. 1993), the two year U.S. statute governs this case.

     The extent of jurisdiction of this court over claims for acts or omissions of the government of the Trust Territory of the Pacific Islands is limited to those arising prior to the effective date of the Compact of Free Association, that is, November 3, 1986.  This date is then the latest date at which

[7 FSM Intrm. 169]

the statute of limitations could begin.  This action was not commenced by November 3, 1988, and so the nuisance and trespass claims against the United States standing in the place of the Trust Territory of the Pacific Islands must be dismissed.

     As stated above the three counts all allege that the United States "allowed and funded unpermitted earthmoving."  As to the funding allegation, it appears that the plaintiffs have abandoned that claim.  I reach this conclusion because of the following two reasons.

     1.  The first set of interrogatories of the United States filed January 2, 1992 asked in question 1(a) and (b) that the plaintiffs identify the defendants "responsible for and engaging in act(s) or omission(s) constituting the violation" and specify the "facts, acts or omissions constituting the violations."  The answer of the plaintiffs did not specify any act of funding by the United States or its agencies and employees. Interrogatory 2 repeated the same interrogatory as to any plaintiffs' claims not covered in interrogatory 1.  Again, funding was not covered in the plaintiffs' answer.

     2.  My order for pretrial statements entered April 28, 1994 reads in part:

     (a)  as to each count, and naming the defendant(s) against which the claim is made, list the witnesses, documents and other tangible evidence they rely upon to prove the count giving a concise statement of the expected testimony of each witness, and of the pertinent portion of the other evidence.

     (b)  as to each count, set out the legal theory and the principal authorities which support it.

     The plaintiffs' amended pretrial statement was filed on June 2, 1994 in response to this order.  Pages 16-19 of the statement refer to the plaintiffs' case against the United States.  Funding is not stated as a ground for liability of the United States.

     The claim that the United States allowed the unpermitted earthmoving is based upon the issuance of dredging permits by the Army Corps of Engineers.  The last permit was issued June 26, 1986.  The Engineers' authority in this area was derived from the Water Pollution Prevention and Control Acts (Clean Water Act) 33 U.S.C. 1251 et seq. which was applicable in the Trust Territory of the Pacific Islands.

     Accordingly, counts IV and V must be dismissed as to the United States on its own behalf and as to the United States standing in the place of the Trust Territory of the Pacific Islands.

Sixth Cause of Action
     The sixth count alleges an unconstitutional taking of property.  It alleges that "allow[ing] and fund[ing] unpermitted earthmoving" constituted violations of the FSM Constitution's protection of due process of law and equal protection and the prohibition against indefinite land use agreements.

     As explained above, I concluded that the plaintiffs have abandoned their contention concerning funding.  Nonetheless the plaintiffs have moved that I reconsider this conclusion and rule on the merits.  The plaintiffs contend that the allegation concerning funding was incorporated by reference from the factual allegation portion of their pretrial statement into the portion of their pretrial statement concerning this defendant.  The plaintiffs are correct that they referred to funding by reference.  I may now proceed to the legal merits because the parties have already fully briefed and argued this issue.  I find that as a matter of law I must still dismiss this allegation.  I conclude that the mere act of funding

[7 FSM Intrm. 170]

by the United States does not subject it to liability for a taking because its involvement was insufficiently direct and substantial to warrant such liability. Langenegger v. United States, 756 F.2d 1565, 1572 (Fed. Cir. 1985) (U.S. funding of agrarian reform program in El Salvador does not subject U.S. to liability for a taking because involvement not sufficiently direct and substantial and because one government not liable for a taking by officials of another government for merely advocating measures that other government should take).

     I make the following observations:  "A taking occurs whenever a public entity substantially deprives a private party of the beneficial use of his property for a public purpose."  Fountain v. Metropolitan Atlanta Rapid Transit Auth., 678 F.2d 1038, 1043 (11th Cir. 1982).  Beginning November 3, 1986, when the trusteeship was terminated and the Compact of Free Association came into effect between the Federated States of Micronesia and the United States neither the Trust Territory nor the United States Army Corps of Engineers could be considered a "public entity" in the Federated States of Micronesia.  Therefore the defendant United States was legally incapable of having committed a taking on and after November 3, 1986.  The defendant's motion is granted insofar as it relates to occurrences on and after November 3, 1986.

     Therefore whatever cause of action the plaintiffs may have against the defendant United States accrued as of that date, at the latest, which is when the statute of limitations started running.  Furthermore, the Trust Territory apparently transferred all of its governmental powers concerning earthmoving permits to the government of the Federated States of Micronesia by a Memorandum of Understanding effective December 27, 1985.  If this is correct, the Trust Territory of the Pacific Islands became incapable of any taking involving earthmoving after December 27, 1985.

     From what I have before me (the arguments of the parties and the above observations) I cannot say that the defendant is entitled to a judgment as a matter of law that allowing the earthmoving before November 3, 1986 did not result in a taking.  For the reasons stated the United States is entitled to a dismissal of Counts IV and V.  As to Count VI the United States is entitled to a dismissal of the allegation that funding of unpermitted earthmoving resulted in a taking.  The United States is also entitled to a dismissal of Count VI of the allegation that it allowed earthmoving on or after November 3, 1986 that resulted in a taking.

Motion to Strike
     My order of April 28, 1994 required the filing of pretrial statements and set out specifics that must be included in the plaintiffs' statement.  On June 2, 1994, the plaintiffs filed their amended pretrial statement which concerned itself with the claims against the United States at pages 16-19.

     On June 20, 1994, the United States moved to strike the statement on the grounds that it based the claims on statutes which had been ruled inapplicable in my order of March 23, 1994 and embraced counts that had already been dismissed.

     I conclude that the plaintiffs' statement does not meet the requirements of my April 28, 1994 order.  Pursuant to the inherent power of the court, the portion dealing with the United States is stricken.

     The plaintiffs are to file and serve by May 1, 1995, an amended statement as to the defendant United States and dealing with the one count remaining against the United States.  This amended statement shall comport with the requirements of the April 28, 1994 order.

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