1 MILR (Rev.) 280

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 92-02
(NCT No. 26-003)

THADDEUS SAMSON, et al.,
Complainants-Appellants,

-v-

THE RONGELAP ATOLL LOCAL DISTRIBUTION AUTHORITY,
Respondent-Appellee.

ORDER DECLINING TO ENTERTAIN APPEAL

NOVEMBER 19, 1992

ASHFORD, C.J.

SUMMARY:

A Nuclear Claims Special Tribunal dismissed, without prejudice, a class action challenging the Rongelap Atoll Local Distribution Authority's distribution scheme that excluded nonresident owners of land rights on Rongelap. The Nuclear Claims Tribunal denied Complainants' Petition to Review, finding the case had been rendered moot by later amendments to the distribution scheme and that Complainants could still present their claims. The Supreme Court declined to entertain an appeal, because Complainants' rights to share in quarterly distributions were not affected by the Special Tribunal's and Tribunal's rulings and because neither abuse of discretion nor probable error in those rulings had been demonstrated.

DIGEST:

1. APPEAL AND ERROR – Nuclear Claims Tribunal and Special Tribunal: Section 6(3) of the Marshall Islands Nuclear Claims Tribunal Act (1987), as amended, clearly speaks in the disjunctive, permitting the Supreme Court to entertain an appeal from the final determination of the Tribunal or a Special Tribunal. It does not authorize a single appeal from both a final determination of the Special Tribunal and the determination of the Tribunal declining to review it.

2. NUCLEAR CLAIMS TRIBUNAL – Powers and Duties – Review of Special Tribunal’s Ruling: Under § 31(q) of the Marshall Islands Nuclear Claims Tribunal Act (1987), as amended, a refusal of the Tribunal to review the conclusions of a Special Tribunal would be based either upon (a) a finding by the Tribunal that the decision did not involve a matter of public importance, or (b) the Tribunal declining to exercise its discretion in favor of reviewing the decision.

3. APPEAL AND ERROR – Nuclear Claims Tribunal and Special Tribunal – Standard of Review: The standard for Supreme Court review of a finding by the Nuclear Claims Tribunal that the decision of a Special Tribunal did not involve a matter of public importance would be de novo if it is a mixed question of law and fact or clearly erroneous if it is a question only of fact.

4. APPEAL AND ERROR – Same – Same: The standard for Supreme Court review of the action of the Nuclear Claims Tribunal in declining to exercise its discretion in favor of reviewing the decision of a Special Tribunal is abuse of discretion.

5. APPEAL AND ERROR – Nuclear Claims Tribunal and Special Tribunal: The Supreme Court's current tentative view is that an appeal from a final determination of a Nuclear Claims Special Tribunal should not be entertained unless it suffers from one or more of the defects specified in the Marshall Islands Administrative Procedures Act 1979, §§ 17(7)(a) through (f).

6. APPEAL AND ERROR – Questions Reviewable – Record and Proceedings Not in Record: Appeals are on the record, without reference to current circumstances, other than those that render the appeal moot or otherwise justify departure from consideration of the record alone.

FACTS.

In June 1988, the Rongelap Local Government Council, acting as the Rongelap Atoll Local Distribution Authority ("Rongelap LDA") under the Marshall Islands Nuclear Claims Tribunal Act 1987 ("NCT Act"), 42 MIRC Ch. 1, adopted a quarterly distribution scheme covering the funds to be paid to the people of Rongelap under Article II, Section 4 of the Agreement Between the Government of the United States and the Government of the Marshall Islands for the Implementation of Section 177 of the Compact of Free Association (the "Section 177 Agreement").1 In November 1988, Appellants herein, as Complainants, filed a class action in the Nuclear Claims Tribunal under § 26 of the NCT Act challenging the Rongelap LDA's distribution scheme, which did not include them as recipients of portions of the quarterly payments. Complainants were not and had never been residents of Rongelap, but claimed land rights to wetos on Rongelap Atoll.2 The Respondent in the action was the Rongelap LDA. In April 1989, some amendments to the distribution scheme were adopted, reducing amounts previously distributable, but still excluding Appellants and the class they represented.

Complainants and Respondent filed Cross Motions for Summary Adjudication and Respondent filed a Motion to Dismiss. It appears there was no evidentiary hearing and the motions were submitted and decided upon affidavits, a stipulation and written memoranda.3 The Special Tribunal ruled on December 29, 1989: (1) it had jurisdiction to hear the Complaint, (2) the Rongelap LDA had discretion in proper circumstances to limit distribution to compensation for personal injury, (3) no Marshallese custom precluded that limitation and (4) payments to the Iroij Imata Kabua were tribute and not compensation for damage to land.4 The Special Tribunal denied Complainants' Motion for Summary Adjudication and granted the Respondent's Motion to Dismiss the Complaint, but without prejudice.5

On January 21, 1990, the Rongelap LDA amended the distribution scheme in its entirety. The new distribution scheme6 specifically allowed individuals of Rongelap blood holding land rights in Rongelap, but who had never lived on Rongelap, to be recipients of portions of the quarterly distribution if they met criteria entitling them to be classified as "contributing to the community." Shortly thereafter, Complainants timely petitioned the Nuclear Claims Tribunal ("Tribunal"), under § 31(q) of the NCT Act, for review of the Special Tribunal's ruling.

The Tribunal, on February 3, 1992, filed its Order denying the Petition for Review. The Order noted: (1) on the basis of the January 1990 amendment to the distribution scheme, the Complaint was moot, (2) individuals having rights to distribution on the basis of land rights were not precluded from claiming those distributions in § 23, NCT Act, claims for loss or damage to property, and (3) issues related to the customary practice of "ekkan" were not central to the resolution of the case.7 On March 4, 1992, Complainants appealed to this Court under the provisions of § 6(3), NCT Act.

SCOPE OF THE APPEAL.

Appellants' Notice of Appeal identified as the order appealed from the Tribunal's Order dated February 3, 1992, declining to review the Order of the Special Tribunal dated December 29, 1989. The Notice, however, alleged errors of both the Tribunal and the Special Tribunal. This Court does not believe the statute authorizes double-barreled appeals. Section 6(3), NCT Act, states that "final determinations …. issued by the Tribunal or by the Special Tribunal, if a request for review by the Tribunal under § 31(q) is denied or is not acted upon within 30 days, shall …. be appealable to the Supreme Court within 30 days from the date of the final determination …. of the Tribunal or within 30 days from the date that review by the Tribunal of the final determination …. of the Special Tribunal is denied or is not acted upon for 30 days.

[1] Section 6(3) clearly speaks in the disjunctive, permitting this Court to entertain an appeal from the final determination of the Tribunal or a Special Tribunal. It does not appear that, as was attempted in this case, the appeal to be entertained can be one from both final determination of the Special Tribunal and the determination of the Tribunal declining to review the Special Tribunal's determination. Further, the standards of review for those determinations would be different.

This Court has determined not to entertain the appeal (whether it is from the determination of the Tribunal or the Special Tribunal), but as an aid to parties appearing before the Tribunal and Special Tribunal, the Court in this case has undertaken to examine all of the grounds urged for it to entertain the appeal.

STANDARDS GOVERNING REVIEW.

Standard governing review of a Tribunal determination not to review a determination of the Special Tribunal.

[2-4] Under § 31(q), NCT Act, the Tribunal must first find that the decision involves a matter of public importance and, if it does, the Tribunal may review the special Tribunal's conclusion. The refusal of the Tribunal to review the conclusions of a Special Tribunal would be based, therefore, either upon (a) a finding by the Tribunal that the decision did not involve a matter of public importance, or (b) the Tribunal's declining to exercise its discretion in favor of reviewing the decision of the Special Tribunal.8 The standard for this Court's review of the action of the Tribunal in case (a) would be either de novo if it is a mixed question of law and fact,9 or clearly erroneous if it is a question only of fact,10 and in case (b) would be abuse of discretion.11

The Tribunal's Order dated February 3, 1992 made no mention of any lack of public importance in the determination of the Special Tribunal. Rather, its denial of the review requested was expressly based upon findings that the issue determined by the Special Tribunal was moot and that Complainants were entitled to pursue their claims under § 23, NCT Act. Nothing has been presented to this Court that leaves it with the firm conviction that the Tribunal clearly erred in declining to review the Special Tribunal's Order dated December 29, 1989.

Standards governing exercise of discretion to entertain an appeal from a final determination on the merits.

[5] In its Order filed November 20, 1992, in Defender of the Fund, et al. v. Rongelap Atoll LDA, 1 MILR (Rev.) 289 (Nov 20, 1992) (NCT No. 27-001), this Court stated its current tentative view that an appeal from a final determination, on the merits, of the Tribunal should not be entertained unless it appeared likely that the determination appealed from suffered from one or more of the defects specified in the Marshall Islands Administrative Procedures Act 1979 (6 MIRC Ch. 1, §§ 17(7)(a) through (f)). For the reasons set forth in that Order, this Court holds the same view with respect to entertaining appeals from the Special Tribunal. The defects of which Appellants complain do not appear to fall within the ambit of § 17(7), but will be hereinafter specifically discussed.

ERRORS ALLEGED.

Questions of law relating to issues of custom and tradition.

Appellants contend that the Special Tribunal failed to understand either the general obligations of custom and tradition or the specific meaning of the term "ekkan" and the Tribunal compounded the error by finding that the issues relating to "ekkan" were not central to the resolution of the case. These are the grounds underlying Appellants' assertion that the distributions by the Rongelap LDA are not in accordance with custom.

In its ruling, the Special Tribunal noted that when "custom is firmly established and widely known, the courts will take judicial notice of it," but when "there is a dispute as to the existence of custom and a court is not satisfied as to its existence or applicability, custom becomes a mixed question of law and fact. In such case the party relying upon alleged custom must prove it by evidence satisfactory to the court."12 Had there been a full evidentiary hearing, it is possible that Appellants could demonstrate that the Special Tribunal's ruling on custom was erroneous because it was against the weight of satisfactory evidence. It is not probable, however, that such could be demonstrated merely by the affidavits, stipulation and written memoranda of counsel. Further, the dismissal was without prejudice and the Tribunal noted that persons in Complainants class are entitled to pursue their claims under § 23, NCT Act.

Questions of law relating to the constitutional issue of equal protection.

The Special Tribunal made a thorough review of Appellants' equal protection claim13 and found that it was not substantiated. Appellants' memorandum in support of the appeal fails to demonstrate probable error in the ruling. To the extent the memorandum relies on facts not in the record before the Special Tribunal, those facts will not be considered by this Court.

Public importance of the issues involved.

As already discussed,14 the Tribunal based its refusal to review the decision of the Special Tribunal, not upon any lack of public importance, but upon other grounds. This supposed issue, therefore, need not be addressed.

Questions of procedure with regard to the Tribunal's denial of Appellants' Petition for Review.

[6] Appellants complain that the Tribunal did not timely act upon the Petition for Review and that it relied solely on documents filed more than two years earlier without attempting to determine current circumstances prior to denying the petition. The delay of the Tribunal in acting upon the Petition for Review, if unreasonably long, would not constitute a basis for entertaining the appeal inasmuch as Appellants could have sought review by this Court when the Tribunal failed for thirty days to act upon the request for review.15 Further, it is elementary that appeals are on the record, without reference to current circumstances, other than those that render them moot or otherwise justify departure from consideration of the record alone.

Exclusive authority of this Court to provide judicial review of the Tribunal's final determinations.

While it is true that this Court has exclusive authority to review final determinations of the Tribunal, that fact is irrelevant to the question whether, in a particular case, this Court should review the final determination of the Tribunal or a Special Tribunal.

OTHER ISSUES.

The foregoing discussion disposes of questions numbered 2, 3, 4, 7 and 8 in Appellants' Notice of Appeal.

Question 1 therein does not state a determination made by either the Special Tribunal or the Tribunal, neither of which purported to rule that the January 21, 1990 amendment to the distribution scheme provided "a realistic basis and sufficiently clear procedures" for qualifying persons to receive distributions on the basis of land rights. Therefore, alleged Question 1 will not be considered.

Questions numbered 5 and 6 in the Notice of Appeal refer to events occurring subsequent to the ruling of the Special Tribunal and that are outside of any record that could be presented to this Court of proceedings before the Special Tribunal and the Tribunal. Therefore, they will not be considered.

Because the rights of Appellants, whatever they may be, to share in quarterly distributions have not been precluded either by the action of the Special Tribunal or the Tribunal and because neither abuse of discretion by the Tribunal nor probable error in the conclusions of the Special Tribunal have been demonstrated, this Court declines to entertain the appeal.

S. Joshua Berger, Defender of the Fund, and William Graham, Public Advocate, for Complainants-Appellants
E. Cooper Brown for Respondent-Appellee

___________

1Free Association Agreement. Signed June 25, 1983. Entered into force October 15, 1986. Treaties in Force, 1987.

2See Complaint, a copy of which is attached as Exhibit 6 to Appellee's Memorandum in Opposition to Appeal.

3See pages 4 and 6 of the Special Tribunal's Preliminary Ruling on the cross Motions for Summary Adjudication of Issues and Respondent's Motion to Dismiss ("Preliminary Ruling"), a copy of which is attached as Exhibit 1 to Appellee's Memorandum in Opposition to Appeal, and page 2 of the Special Tribunal's Ruling on Cross Motions for Summary Adjudication of Issues and Respondent's Motion to Dismiss ("Ruling"), a copy of which is attached as Exhibit 2 to Appellee's Memorandum in Opposition to Appeal.

4Ruling, pp. 18-19.

5Ruling, p. 1.

6See Exhibit 4 to Appellee's Memorandum in Opposition to Appeal.

7See Order, a copy of which is attached as Exhibit 3 to Appellee's Memorandum in Opposition to Appeal, at page 2.

8The text of § 31(q), NCT Act, reads: The Tribunal may, upon the filing of a timely petition for review and provided that the Tribunal finds that the decision involves a matter of public importance, review the Special Tribunal's conclusions and, if appropriate, orders or any part thereof. The Tribunal may render its own decision or remand, in part or in whole, to the Special Tribunal for reconsideration.

9Lobo v. Jejo, 1 MILR (Rev.) 224 (Jan 2, 1991); United States v. Lindsey, 877 F.2d 777, 783 (9th Cir. 1989).

10Abner, et al., v. Jibke, et al., 1 MILR (Rev.) 3 (Aug 6, 1984); Ebot v. Jablotok, 1 MILR (Rev.) 8 (Aug 6, 1984); Nakap v. Lokkon, 1 MILR (Rev.) 69 (Feb 5, 1987); RepMar v. Timothy, 1 MILR (Rev.) 270 (Aug 13, 1992). See, also, 27 MIRC Ch. 2, § 66(2).

11Under the abuse of discretion standard, a reviewing court cannot reverse unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors. Abatti v. Commissioner, 859 F.2d 115, 117 (9th Cir. 1988).

12Ruling, p.6.

13Ruling, pp. 13 to 17.

14See preceding page.

15Section 6(3), NCT Act. This Court is not called upon at this time to decide whether the appeal was required to be filed within 30 days after the Tribunal had failed, for 30 days, to act upon the request for review.