Damarlane v Damarlane [2012] FMSC 7; 18 FSM Intrm. 177 (Pon. 2012) (9 February 2012)

FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2011-004

KADALINO DAMARLANE, MARGARET DAMARLANE, and MARY BERMAN,
Plaintiffs,

vs.

BRIAN DAMARLANE and PAULINO DAMARLANE,
Defendants.
_______________________________________________

ORDER OF DISMISSAL; MEMORANDUM

Martin G. Yinug
Chief Justice

Decided: February 9, 2012

APPEARANCE:

For the Plaintiffs: Mary Berman, Esq.

P.O. Box 163

Kolonia, Pohnpei FM 96941

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HEADNOTES

Compact of Free Association; Environmental Protection
Title 1 of the Compact governs the relationship between and amongst the parties to the Compact and its environmental protection section does not create a private cause of action since it provides that actions brought pursuant to that section may be initiated only by the FSM government. Damarlane v. Damarlane, [2012] FMSC 7; 18 FSM Intrm. 177, 179 (Pon. 2012).

Environmental Protection
No private cause of action exists under the FSM Environmental Act - Section 704 by its own terms limits enforcement of the Act to the Board and Section 502 is aspirational. Damarlane v. Damarlane, [2012] FMSC 7; 18 FSM Intrm. 177, 179-80 (Pon. 2012).

Separation of Powers - Judicial Powers
The court may hold the political branches to account for violations of the Constitution, but it cannot force them to choose one constitutional method over another. Damarlane v. Damarlane, [2012] FMSC 7; 18 FSM Intrm. 177, 180 (Pon. 2012).

Environmental Protection; Federalism - Abstention and Certification
When the plaintiffs have not stated a claim based on national law on which the FSM Supreme Court may grant relief and when all that remains is state law, including state environmental regulations, they have not persuaded the court to retain the case, and the court will therefore abstain. Damarlane v. Damarlane, [2012] FMSC 7; 18 FSM Intrm. 177, 181 (Pon. 2012).

Civil Procedure - Consolidation
The court will deny a motion to consolidate because an argument that a case must be consolidated with another so that the court can order the FSM Secretary of Human Resources to order the appropriate relief is a specious, spurious, and mendacious when the Secretary is not a defendant in either case and the plaintiffs' grievances against the defendants are based in state law, related to but independent of the claims in other case. Damarlane v. Damarlane, [2012] FMSC 7; 18 FSM Intrm. 177, 181 (Pon. 2012).

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COURT'S OPINION

MARTIN G. YINUG, Chief Justice:

This matter comes before the court on the plaintiffs' opposition to the court's sua sponte motion for abstention of December 21, 2011, and the plaintiffs' motion to consolidate this matter with Civil Action No. 2011-007. The court denies the motion to consolidate, grants its own motion to abstain, and dismisses this matter. A memorandum of the court's decision follows.

I. Background

This matter is one in a long series of litigation by the named plaintiffs ("the Damarlanes") against various defendants, all having to do with a causeway in the lagoon off of the plaintiffs' residence in Mesenpal, in the area of Awak, in U Municipality, in the state of Pohnpei. See, e.g., Damarlane v. Pohnpei Transp. Auth., Civil Action No. 1990-075; Berman v. Pohnpei, Civil Action No. 2008-036; Damarlane v. U Mun. Gov't, Civil Action No. 2011-001; and Berman v. FSM Nat'l Police, Civil Action No. 2011-007.

In this particular matter, the Damarlanes alleged the following causes of action: nuisance (including both noise pollution and pollution of parts of the lagoon just offshore from the Damarlanes' property); conversion (of stockpiled landfill material and of a restraining fence the Damarlanes built); violation of environmental laws; operation of a business allowing public consumption of alcohol on its premises without a valid alcoholic beverages consumption license; operation of a toilet or latrine that does not conform to state environmental regulations; operation of a business in a negligent manner under a theory of bartender liability; and, as to defendant Paulino Damarlane ("Paulino"), failure to pay plaintiff Mary Berman ("Berman") for services rendered in a prior case.

On December 21, 2011, this court issued an order granting a motion by defendant Brian Damarlane ("Brian") to set aside entry of default and denying the Damarlanes' motion for judgment by default against both defendants. The order also carried a sua sponte motion to abstain, providing the parties notice of and an opportunity to be heard on the motion. On January 13, 2011, the plaintiffs filed their opposition and a motion to consolidate. The defendants have not filed a response.

II. Analysis

A. Opposition to Abstention

The Damarlanes essentially argue that this court should not abstain because this matter is based upon a question of national law. In particular, they cite the FSM Environmental Protection Act, 25 F.S.M.C. 501 et seq., the Trust Territory's Toilet Facilities and Sewage Disposal Regulations, the Trust Territory's Marine and Fresh Water Quality Standard Regulations, and the Compact of Free Association ("Compact").

The Damarlanes made the following references to environmental laws in their complaint: "Environmental protection law prohibits toilets located within 50 feet of any body of water." Compl. 5. "The business does not dispose of its garbage in accordance with environmental laws." Id. 8. In their February 3, 2011 first motion for injunction, they cited Pohnpei State Environmental Protection Agency regulations for the first reference, and no other authority. 1st Mot. Inj. In their August 19, 2011 opposition to Brian's motion to set aside entry of default, they made an additional reference to environmental laws, namely, the allegation that the defendants "continue to tear up corals in the lagoon to create more illegal landfill, without a landfill permit . . .&#160ls.' Motn Mot. RelieRelief from Entry of Default at 1. They alleged these actions on the part of the defendants as part of the sis agument that the defendants were continuing bad faith activities. However, they diey did notd not offer evidence in support of these factual allegations; indeed, the allegation in the opposition is taken word-for-word from the accompanying Affidavit of Mary Berman. Finally, in their October 13, 2011 second motion for injunction, they omitted their previous reference to "tear[ing] up corals in the lagoon" and revert back to allegations about toilet facilities and garbage dumping only: "Here again, environmental regulations are involved. These include the toilet regulations and garbage regulations, which prohibit toilets located within 50 feet of water, and public garbage dumping in the mangrove wetlands adjoining the ocean. These regulations were provided to the court in the hearing held May 2011." 2d Mot. Inj. at 3.

1. The Amended Compact of Free Association.

The court begins its analysis with the Damarlanes' claim that Section 161 of the Compact of Free Association "provides that the FSM Government shall enact and enforce environmental protection laws substantively similar to the US [sic] environmental protection laws." Opp'n Abstention at 1 (emphasis in original). Section 161(b) reads, in full:

The Government of the Federated States of Micronesia shall continue to develop and implement standards and procedures to protect its environment. As a reciprocal obligation to the undertakings of the Government of the United States under this Article, the Federated States of Micronesia, taking into account its particular environment, shall continue to develop and implement standards for environmental protection substantively similar to those required of the Government of the United States by section 161(a)(3) prior to its conducting activities in the Federated States of Micronesia, substantively equivalent to activities conducted there by the Government of the United States and, as a further reciprocal obligation, shall enforce those standards.

Compact § 161 (as amended).[1] Title 1-"Governmental Relations"-governs the relationship between and amongst the parties to the Compact. Therefore, no private cause of action exists under the Compact. Further, Section 162, which governs judicial review, states specifically: "Actions brought pursuant to this section may be initiated only by the Government of the Federated States of Micronesia." Compact § 16(as amended) (emphasis adis added). Further, Section 162 provides judicial review not for actions by the National Government, but for actions by the Government of the United States of America ted States"). Compact of Frof Free Ass'n § 162, (as amended>

T

The Damarlanes have not named the United States as a defendant in this matter. Had they done so, they would still have no standing under the Compact to bring an action against tited States. Even if they hhey had standing under the Compact to bring an action against the United States, they have not alleged facts from which this court could discern a cause of action against the United States. In a previous action by the Damarlanes against the United States, not only did the United States prevail, but it was awarded the costs of its action. Damarlane v. United States, [1995] FMSC 50; 7 FSM Intrm. 350, 352-53 (Pon. 1995). If the Damarlanes were hoping through their argument once again to join the United States as a defendant in this matter, the court would find that such argument is sanctionable for attempting to relitigate res judicata.

2. FSM and Trust Territory Environmental Protection Laws

The Damarlanes further argue that their complaint is rooted in the Federated States of Micronesia Environmental Protection Act ("the Act"), 25 F.S.M.C. 501 et seq., as well as two particular Trust Territory regulations, which therefore implicates national law in this matter, despite their previous citations only to state environmental law.

First, the Damarlanes' belated assertion of national law is negligent at best, and possibly disingenuous. Not once did they cite national law for their claims in their pleadings and papers before the Order of December 21, 2011; to the contrary, they have consistently cited Pohnpei state environmental regulations, having attached copies of Pohnpei state environmental regulations not only in all of their motions for injunctive relief in this matter and in Civil Action Nos. 2011-001 and 2001-007, and in a motion to reconsider an order denying their motion for injunctive relief in Civil Action No. 2008-036. Either their counsel is incapable of presenting complete legal theories from the outset in one form of action, instead grasping at proverbial straws swaying in the wind; or their present assertion of national law bases is made in bad faith.

Second, no private cause of action exists under the Act to which the Damarlanes now cite. They claim that Section 704 of the Act provides a private cause of action. They could not be more wrong. Section 704 by its own terms limits enforcement of the Act to the Board: "Any person who violates any provision of this subtitle, or any permit, regulation, standard, or order issued or promulgated under this subtitle, shall be subject to enforcement action by the Board." 25 F.S.M.C. 704 (emphasis added). The subsections do not delineate actions available to other persons, but alternatives from which the Board may choose, as shown by the phrase "[s]uch enforcement action [by the Board] may include, but is not limited to . . .&#" i> The The Damarlamarlanes then claim that "[a] clean environment is a 'right secured by the laws of the FSM,' i.e. by the FSM EPA Act . . . ." Pls.'n Abstention at 3. t 3. They do not cite authority for the proposition that a clean environment is a "right"; rather, they proceed to argue that Section 502 of that Act is mandatory rather thairatior hory. The. The plai plain lann language of Section 502-"Public Policy"-shows that the section embodies intent and aspiration, rather than commandments. The Damarlanes may disagree with the specific methods governments choose to implement policy; nevertheless, it is the prerogative of the political branches of government to implement policy. The court may hold the political branches to account for violations of the constitution, but it cannot force them to choose one constitutional method over another. As the Damarlanes themselves acknowledge, "the FSM Environmental Protection Act and regulations [are] enforceable only by the FSM Secretary of HR." Id. Further, this acknowledgment is a better reading of Sierra Club v. Morton, [1972] USSC 84; 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972), than that which the Damarlanes suggest. In Sierra Club, the plaintiffs directly sued the United States Secretary of the Interior, rather than the private commercial entity whose plans to develop Mineral King Valley gave rise to the case.[2] Here, the Damarlanes are not suing the National Government official responsible, but private individuals.

Thus, even if the court accords to the Damarlanes the extreme courtesy of changing their entire legal theory of the case so as to raise questions of national law, they have not stated a claim, based on national law, upon which this court may grant relief. All that remains is state law, including state environmental regulations. They have not persuaded the court to retain this case, and the court therefore hereby grants its own motion to abstain and accordingly hereby dismisses this matter.

B. Motion to Consolidate

The Damarlanes argue in the alternative that this case should be consolidated with Civil Action No. 2011-007, whose title is Berman v. FSM National Police. They argue that this is a necessary joinder.

A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction . .&. shall be joined as a pa a party if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impeded the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the person's claimed interest.

FSM Civ. R. 19(a).

The Damarlanes argue that their analysis of the court's own motion to abstain demonstrates that this matter must be consolidated with Civil Action No. 2011-007. Specifically, they argue that "joinder . . . wouable ourt ourt to orde order the FSM Secretary of Human Resources to order appropriate relief . .㼠." Mot. Consolidatlidate at 4.

This iseciouurious and mendacious argument, worthy of Rule 11le 11 sanc sanctions: The FSM Secretary of Human Resources is not a defendant in eithis matter or Civil Action tion No. 2011-007. Further, the Damarlanes' grievances against Brian and Paulino Damarlane are based in state law, related to but independent of the claims in Civil Action No. 2011-007: even if the Damarlanes could prevail in that matter, they are not guaranteed victory in this matter. They seem now to believe that Rule 19 means that they must join all parties in one civil action simply because their grievances against these various defendants all stem from use of the same berm against whose existence they have been inveighing for more than twenty years. This is either an ignorant and incompetent or a dishonest reading of the rule. Most if not all issues directly related to the creation and existence of the berm were settled in Civil Action No. 1990-075, and the various uses of the berm which are the subjects of Civil Action Nos. 2008-036, 2011-001 and 2011-007, as well as this matter, are independent of the rights and responsibilities stemming from the creation of the berm.

For these reasons, therefore, the court hereby denies the Damarlanes' motion to consolidate.

III. Conclusion

For the reasons given above, the court hereby denies the Damarlanes' motion to consolidate, grants its own motion to abstain, and dismisses this matter.

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^[1] No significant differences exist in § 161(b) between the original Compact of Free Association and the Amended Compact of Free Association, which was codified in the United States as Pub. L. No. 108-188 [see 48 U.S.C. § 1901 n

^[2] The Damarlanes may also be interested to know that the Sierra Club was ultimately found not to have had the requisite standing to bring the suit.