Berman v Pohnpei [2019] FMSC 22; 22 FSM R. 300 (Pon. 2019) (29 July 2019)

FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 2008-036

MARY BERMAN and KADALINO DAMARLANE,
Plaintiffs,

vs.

POHNPEI STATE GOVERNMENT and POHNPEI
TRANSPORTATION AUTHORITY,
Defendants.
_____________________________________________

ORDER GRANTING RELIEF

Larry Wentworth
Associate Justice

Hearing: June 10-11, 2019
Decided: July 29, 2019

APPEARANCES:

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

For the Defendants: Judah C. Johnny
Assistant Attorney General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Appellate Review - Decisions Reviewable - Final Decision Defined
A final order is a final decision. A final decision is one which ends the litigation on the merits and leaves nothing for the court to do but enforce the final order or execute the judgment. Berman v. Pohnpei, 22 FSM R. 300, 302 (Pon. 2019).

Appellate Review - Decisions Reviewable - Final Decision Defined; Judgments - Relief from Judgment - Grounds
An order that Pohnpei seek an earthmoving permit to remove a dredging berm was a final decision because it ended the litigation and did not contemplate further court action other than the enforcement of that order. Berman v. Pohnpei, 22 FSM R. 300, 302 (Pon. 2019).

Judgments - Relief from Judgment - Grounds
Under Civil Procedure Rule 60(b)(5), a party may obtain relief from a judgment or a final order when 1) the judgment has been satisfied, released, or discharged, or 2) a prior judgment upon which it is based has been reversed or otherwise vacated, or 3) it is no longer equitable that the judgment should have prospective application. Berman v. Pohnpei, 22 FSM R. 300, 303 (Pon. 2019).

Judgments - Relief from Judgment - Grounds
The Rule 60(b)(5) provision that permits relief from a final order or judgment on the ground that it is no longer equitable that the judgment have prospective application, properly applies only to final decisions with prospective effect. Berman v. Pohnpei, 22 FSM R. 300, 303 (Pon. 2019).

Judgments - Relief from Judgment - Grounds
Rule 60(b)(5) may not be used to challenge the legal conclusions on which a prior judgment or order rests, but the Rule provides a means by which a party can ask a court to modify or vacate a judgment or order if a significant change either in factual conditions or in law renders continued enforcement detrimental to the public interest. The party seeking relief bears the burden of establishing that changed circumstances warrant relief, but once that party carries this burden, a court abuses its discretion when it refuses to modify an order in light of such changes. Berman v. Pohnpei, 22 FSM R. 300, 303 (Pon. 2019).

Judgments - Relief from Judgment - Grounds
The movants have established that significantly changed circumstances warrant relief under Rule 60(b)(5) when the significant changes in the factual conditions of the dredging berm make it no longer equitable that the 1991 administrative agency decision and the dredging permit conditions have prospective application and when the changed circumstances have rendered the enforcement of the final order that the defendants seek a permit to remove the dredging berm detrimental to the public interest. Berman v. Pohnpei, 22 FSM R. 300, 304 (Pon. 2019).

* * * *

COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

The court, on June 10 and 11, 2019, held an evidentiary hearing on the defendants’ Motion for Relief from Order, filed April 23, 2019, and the plaintiffs’ Response to State’s Motion for Relief from Judgment under FSM Civ. R. 60 with Exhibits A-I, filed May 22, 2019. For the reasons that follow, the defendants’ motion for relief is granted.

I. PROCEDURAL BACKGROUND

The appellate division remanded this matter "to the trial court for it to develop a further record on and consider the effect and enforceability of the April 11, 1991 administrative agency decision and the terms of the dredging permits issued to Pohnpei," and to "rule on whether the April 11, 1991 decision and the permits validly issued require the P[ohnpei] T[ransportation] A[uthority] to apply for a permit to remove the berm and whether they are enforceable against Pohnpei and the PTA." Berman v. Pohnpei, 19 FSM R. 111, 116 (App. 2013).

After briefing and an August 31, 2018 hearing, the court ruled that:

The April 11, 1991 administrative agency decision and all of the dredging permits issued to Pohnpei contain a requirement that Pohnpei and the Pohnpei Transportation Authority, once the permitted dredging is done, shall apply to the national government for an earthmoving permit to remove the berm constructed and used during the dredging at the Mesenpal dredge site.

Order That Pohnpei Seek Earthmoving Permit at 1-2 (Sept. 4, 2018). The court therefore concluded "that even though those permits have expired, the term requiring the berm’s removal once the dredging ceased remains valid after the permits’ expiration date. If it were otherwise, then the term would be meaningless." Id. at 2.

The court thus ordered the State of Pohnpei and the Pohnpei Transportation Authority to, "within a reasonable time, apply to the national government for an earthmoving permit to remove the dredging berms at the Mesenpal dredge site." Id. As the court had also remarked from the bench during the August 31, 2018 hearing, it noted that:

neither side was interested in complete compliance with the removal terms. The plaintiffs desire that a portion of the berm remain to protect the shoreline from erosion since the mangrove trees that used to perform that function are no longer there, and the defendants question the wisdom of removing the parts of the berm where twenty-foot coconut palms are now growing.

Id. The court concluded that it could not then "determine the exact outcome of the required permit application." Id. In other words, the permit application might be denied or it might be granted on terms other than those that the plaintiffs sought or considered desirable.

On December 19, 2018, the court held a further status conference. During this conference, the defendants informed the court (and the plaintiffs) that they had learned that the national government had delegated the permit-issuing authority to the state and that the Pohnpei Public Lands Board of Trustees may now be the agency to handle dredging permit applications. (Later filings indicated that the Pohnpei Environmental Agency was now the proper agency.) The defendants also stated a need to first assess the site to help determine the time, cost, feasibility, and advisability of removing the Mesenpal dredge site berm.

The court granted the defendants time to complete an environmental site assessment before applying for a permit. The defendants’ report was submitted on April 22, 2019. And on April 23, 2019, based on that report, the defendants filed their Motion for Relief from Order, with supporting exhibits. The plaintiffs filed their response on May 22, 2019. The June 10-11, 2019 evidentiary hearing ensued.

II. STANDARD FOR GRANTING RELIEF

The court’s September 4, 2018 order requiring Pohnpei to seek an earthmoving permit was a final order. It was based on the court’s legal conclusion that, even though the dredging permits had expired, the permit terms required the berms’ removal remained valid and in effect ever since. The order was thus final.

A final order is a final decision. Chuuk v. Davis, 9 FSM R. 471, 473 (App. 2000). A final decision is one which ends the litigation on the merits and leaves nothing for the court to do but enforce the final order or execute the judgment. Esau v. Penrose, 21 FSM R. 75, 78 (App. 2016); Salomon v. Mendiola, 20 FSM R. 357, 360 (App. 2016); Heirs of George v. Heirs of Tosie, 15 FSM R. 560, 562 (App. 2008). The September 4, 2018 order was a final decision since it ended the litigation and did not contemplate further court action other than the enforcement of that order. See Barrett v. Chuuk, 16 FSM R. 229, 233 (App. 2009).

The defendants now seek relief from that final order which required the defendants to seek a dredging permit to remove the Mesenpal dredging berms. Under Civil Procedure Rule 60(b)(5), a party may obtain relief from a judgment or a final order when "[i] the judgment has been satisfied, released, or discharged, or [ii] a prior judgment upon which it is based has been reversed or otherwise vacated, or [iii] it is no longer equitable that the judgment should have prospective application." It is the last Rule 60(b)(5) ground - that prospective application of the final order is no longer equitable - on which the defendants’ request for relief turns.

The Rule 60(b)(5) provision that permits relief from a final order or judgment on the ground that "it is no longer equitable that the judgment have prospective application," properly applies only to final decisions with prospective effect. FSM Dev. Bank v. Arthur, 15 FSM R. 625, 634 (Pon. 2008) (Rule 60(b)(5)’s "no longer equitable" provision does not apply to money judgments). Furthermore,

Rule 60(b)(5) may not be used to challenge the legal conclusions on which a prior judgment or order rests, but the Rule provides a means by which a party can ask a court to modify or vacate a judgment or order if "a significant change either in factual conditions or in law" renders continued enforcement "detrimental to the public interest."

Horne v. Flores, 557 U.S. 433, 447, 129 S. Ct. 2579, 2593, 174 L. Ed 2d 406, 416 (2009) (quoting Rufo v. Inmates of Suffolk County Jail, [1992] USSC 8; 502 U.S. 367, 384[1992] USSC 8; , 112 S. Ct. 748, 760[1992] USSC 8; , 116 L. Ed. 2d 867, 886, 887 (1992)). "The party seeking relief bears the burden of establishing that changed circumstances warrant relief, but once a party carries this burden, a court abuses its discretion ‘when it refuses to modify an [order] in light of such changes.’" Id. (citation omitted) (quoting Agostin v. Felton, [1997] USSC 61; 521 U.S. 203, 215[1997] USSC 61; , 117 S. Ct. 1997, 2006, 138 L. Ed 2d 391, 409 (1997)).

III. ANALYSIS

The defendants seek relief from the court’s recognition of, and from the prospective application of, the April 11, 1991 administrative agency decision and dredging permit terms because the factual conditions have changed significantly since then.

A. Factual Findings

1. The Mesenpal berm was in active dredging use in 1990.

2. The 1991 administrative agency decision required that the berm be removed once Mesenpal was no longer used as a dredge site.

3. The 1992 environmental assessment by Dr. James E. Margos, a recognized environmental impact expert, concluded that the most environmentally and ecologically sound method to restore the site was to remove the berm down to a depth of one foot below the waterline, by hauling or, preferably, by dumping it into the deep dredged area within the berm. Such dumping onsite in the existing dredged area would have been an efficient and quick restoration action. The residual berm structure below the waterline would protect the shoreline from coastal hazards such as waves and storm surges. Dr. Margos’s alternative restoration suggestion was for complete berm removal and restoration of the long shore drift patterns and twenty years or more of coral regeneration in the dredged area to peak.

4. The last dredging off the Mesenpal berm was some time in the 1990s.

5. No action was taken to remove the Mesenpal berm or regenerate the corals after the dredging ended.

6. For the last dozen years or more, Brian Damarlane has been conducting a business on the Mesenpal berm, which he characterizes as a picnic resort, and which the plaintiffs assert is an illegal drinking establishment and a public nuisance.

7. Plaintiff Kadalino Damarlane asserts that a small portion of the berm is filled land that, under Pohnpei state law, he should be granted clear title to and be permitted to build a residence thereon. He has filed paperwork with the necessary state agencies to acquire title but the matter has not yet been resolved. The plaintiffs, naturally, ask that this part of the berm not be subject to any Mesenpal site restoration order.

8. In the more than a quarter century since Dr. Margos’s site assessment report, vegetation, including over 50 coconut palms, some up to twenty feet in height, have taken root on the Mesenpal berm.

9. In the more than a quarter century since Dr. Margos’s site assessment report, there has been substantial marine life recovery in the dredged area. Removal of the berm, or dumping the berm into the dredged area, would degrade the current marine environment, which has shown substantial recovery, and it would take substantial time before environmental recovery would again begin to restore the marine environment.

10. Pohnpei estimates that it would cost around $510,000 and take 180 days to remove the Mesenpal berm. This would entail four excavators at $640 a day (the commercial rate), $56 a day for a site supervisor, plus dump trucks to remove large trees and other items. Even if this cost could be offset by the commercial sale of removed fill, the up-front cost is quite substantial and not currently readily available. It is unknown where the funds would come from because the work would be done by the Pohnpei Environmental Protection Agency whose budget is separate from the state’s.

11. It is unknown if the business operator on the Mesenpal berm would have to be compensated if the berm were removed.

12. The court thus finds that removal of the Mesenpal berm would entail substantial, non-recoverable costs, would degrade the current marine life environmental recovery, and would further cause a substantial setback to the marine environment’s current recovery and substantial restoration.

B. Warranting Relief

The significant changes in the factual conditions of the Mesenpal berm makes it no longer equitable that the 1991 administrative agency decision and the dredging permit conditions (which the court’s September 4, 2018 order ratified) have prospective application. Thus, the significantly changed circumstances have rendered the enforcement of the (final) order that the defendants seek a permit to remove the Mesenpal berm detrimental to the public interest. The defendants have therefore established that these changed circumstances warrant relief under Rule 60(b)(5).

IV. CONCLUSION

Accordingly, the defendants’ motion for relief is granted. Since the court has now completed the one task that the appellate division, on remand, assigned to it, this case is hereby closed.

* * * *