Proceedings by Trust Territory for Condemnation of the Property of Lojelan Kabua, Re [1987] TTLawRp 2; 8 TTR 581 (10 February 1987)

8 TTR 581

IN THE MATTER of the PROCEEDINGS by the TRUST TERRITORY OF THE PACIFIC ISLANDS, Plaintiff –Appellee

for CONDEMNATION of the PROPERTY of LOJELAN KABUA, et al., Defendants-Appellants

Civil Appeal No. 325

Appellate Division of the High Court

Marshall Islands District

February 10, 1987

Appeal by landowners of judgment in action for condemnation by Trust Territories for the use of the United States Department of the Army. The Appellate Division of the High Court, Munson, Chief Justice, held that Trust Territory had authority to condemn land for the use of the United States Department of the Army, that such condemnations constituted a "public use," that trial court's determination as to amount of just compensation needed to be remanded, that Eminent Domain Statute did not violate due process, and that trial court erred in determining amount of interest to which property owners were entitled, and therefore the case was affirmed in part, and remanded in part.

1. Eminent Domain-Generally

Trust Territory of the Pacific Islands clearly has the power to acquire land by eminent domain. 10 TTC § 1 et seq.

2. Eminent Domain-Generally

Scope of Trust Territory's eminent domain power is subject to the limitation that there be payment of just compensation and that any taking be for a public use.

3. Trusteeship-Trusteeship Agreement-Generally

One of the express purposes of the Trusteeship Agreement is for the administering authority to ensure that the Trust Territory plays its part in maintaining international peace and security.

4. Eminent Domain-Generally

Trust Territory has the authority to condemn lands for the use of the United States Department of the Army when an agreement for the use of the privately owned land cannot be negotiated with the landowners.

5. Eminent Domain-Public Use

Trust Territory has no authority to condemn land unless the condemnation is for the benefit of the people of the Trust Territory.

6. Eminent Domain-Public Use

Whether a "use" is in fact a "public use" is ultimately a judicial question.

7. Eminent Domain-Public Use

Trial court properly found that Trust Territory's condemnation of land for the use of the United States Department of the Army constituted a "public use."

8. Evidence-Weight

The weighing of evidence in a condemnation proceeding is within the sole province of the fact-finder, and an appellate court must not reweigh the evidence.

9. Evidence-Expert Testimony

Trier of fact is not found by expert testimony and may disregard the testimony of such expert witnesses if their testimony was not convincing.

10. Eminent Domain-Compensation

In condemnation proceeding, trial court's determination as to the amount of just compensation to be awarded was remanded, where there was no indication how the final award figure was reached.

11. Constitutional Law-Retroactive Effect

A constitutional provision that goes into effect after an event has taken place has only prospective effect and not retroactive effect on such event unless clearly designed to that end.

12. Eminent Domain-Generally

In the Trust Territory, landowners are afforded greater protection against condemnation than those in the United States. 10 TTC § 57.

13. Eminent Domain-Hearing

In the absence of any statutory requirement that a pre-taking hearing must take place, a landowner is only entitled to be heard on the amount of just compensation that the government owes as a result of the taking.

14. Eminent Domain-Statutory Provisions

In condemnation proceeding where use of the property was for a period of years, and not an outright taking, statutory requirement that property owner execute a quitclaim deed in favor of government was not applicable. 10 TTC § 57 (c).

15. Judgments-Interest

The allowance of interest in a condemnation proceeding is a matter of individual discretion.

16. Eminent Domain-Compensation

In condemnation proceeding, where property owners would have to give up their right to challenge the validity of the taking of the property if they withdrew compensatory funds deposited with the court, property owners' rights under Trust Territory Bill of Rights were denied. 1 TTC § 4.

17. Eminent Domain-Compensation

In a condemnation proceeding, where amounts deposited for benefit of property owners were constructively unavailable, trial court on remand was ordered to award interest until the date the property owners were given the opportunity to withdraw the deposited funds.

Counsel for Appellants:	GEORGE M. ALLEN (CADWALADER,
		WICKERSHAM & TAFT) Honolulu Hawaii 96813
Counsel for Appellee:	PATRICIA K. WALL ( HODDICK,
		REINWALD, O'CONNOR & MARRACK) Honolulu, Hawaii 96813

Before MUNSON, Chief Justice, LAURETA*, Associate Justice, BENSON **, Associate Justice

*United States District Court Judge, District of the Northern Mariana Islands, designated as Temporary Associate Justice by the United States Secretary of the Interior.

** Associate Justice, Federated States of Micronesia Supreme Court, designated as Temporary Associate Justice by the United States Secretary of the Interior.

MUNSON, Chief Justice

On April 1, 1966, appellee, the government of the Trust Territory of the Pacific Islands (TTPI) filed Civil Action No. 294 for the condemnation of Eniwetok, Gellinam, and Omelek islands located in Kwajalein Atoll, Marshall Islands. The interest to be acquired by the appellee was for use rights for an indefinite period, with the United States Department of the Army taking immediate possession. Pursuant to 10 TTC § 57 (b), the appellee deposited the sum of $2,750 with the clerk of the court. On August 8, 1966, $445 was deposited, and after a second amended complaint and declaration of taking were filed on May 12, 1969, the appellee deposited $23,247 for a total of $26,442.

This action involved a lengthy procedural history that resulted in a second condemnation action being filed by the appellee on May 2, 1978. The second action, Civil Action No. 20-78, was filed while Civil Action No. 294 was pending, and sought to condemn an exclusive use interest of the same property as in Civil Action No. 294. Instead of an indefinite time period, the length of time for the use was set from May 2, 1978 to December 31, 1981, with the appellee acquiring an option to renew every five years. Appellee deposited an additional $21,750 with the clerk of the court. On July 26, 1978, appellee moved to amend the interest sought in Civil Action No. 294 to a leasehold interest for the period of April 2, 1966 through May 2, 1978. The trial court granted the motion and the two actions were consolidated for the purpose of trial. On July 29, 1978, pursuant to a stipulation filed between the parties and an order by the trial court, appellants withdrew $44,997 from the total amount of $48,192 which the appellee had deposited with the court.

The trial court, in its Memorandum Opinion entered March 28, 1979, held that the appellee, acting as an agent for the United States, took the islands for a "public use" pursuant to 10 TTC § 54. The court found that the fair value for the use of the three islands was:

For the period April 1, 1966 to May 2, 1978:

Gellinam	$ 7,250
Omelek	18, 125
Eniwetok	29,000
	$54,375

For the period May 2, 1978 to December 31, 1981 :

Gellinam	$11,000
Omelek	27,500
Eniwetok	44,000
	$82,500

On July 17, 1979, the trial court entered a judgment for the appellants awarding the above-stated amounts, less the amount that the appellants had withdrawn, and awarded interest of three percent per annum pursuant to 10 TTC § 57 (b), on the deposited amounts until withdrawn by the appellants. The landowners appealed.

The issues presented for review are:

1. Does the TTPI have the authority to condemn the islands for the use of the United States Department of the Army;
2. Did the trial court err in finding that the condemnations of the islands for the use of the United States Department of the Army constitute a "public use";
3. Did the trial court err in its determination of the amount of just compensation to which appellants were entitled;
4. Does the Trust Territory's Eminent Domain Statute, 10 TTC § 57, violate due process because:

(a) it does not provide for a pre-taking hearing; or

(b) it requires appellants to execute a quitclaim deed prior to withdrawing deposited funds;

5. Did the trial court err in determining the amount of interest to which the appellants were entitled.

[1, 2] Relative to the first issue, the TTPI clearly has the power to acquire land by eminent domain.^[1] This authority is codified in 10 TTC § 1 et seq., and has been judicially upheld in Ngiralois v. T. T.P.I., 4 T.T.R. 517, 520 (App. Div. 1969). The scope of the TTPI's eminent domain power is subject to the limitation that there be payment of just compensation and that any taking be for a public use. Ngiralois, 4 T.T.R. at 521. The trial court noted that

[i]t is conceded by the Trust Territory Government that it is condemning the islands solely for the use of the United States Department of the Army in carrying out its responsibilities in the operation of the Kwajalein Missile Range, a component of the weapon testing systems of the Department of the Defense of the United States Government.

We first consider whether the TTPI has the authority to condemn the islands for the use of the United States Department of the Army. A document entitled "Land Agreement Trust Territory of the Pacific Islands^[2] (here-within referred to as Agreement) , dated September 15, 1955, between the Secretary of the Navy, acting on behalf of the Department of the Army, and the Secretary of the Interior^[3] provided the TTPI with the authority to condemn lands for the use of the United States.

Appellants urge that the Agreement does not govern in this case. Appellants cite an opinion in a prior appeal of this case,^[4] wherein this court expressed concern over whether the TTPI was acting within its taking authority:

[T]he government exercises a sovereign function when it employs the power of eminent domain. Yet, in meeting the obligations assigned to it under the Inter-Agency Agreement it acts ostensibly not as a sovereign, but as an agent in the procurement of land for a purpose having no clear relationship to the government functions it was created to perform.

The appellate court concluded that,

[a]ny such determination of the effect and validity of an eminent domain proceeding pursuant to the Inter-Agency Agreement is a matter that should be made in the first instance by the Trial Court.

The trial court found that the TTPI could act as an agent for the United States under the terms of the Agreement and condemn lands needed for the use of the Department of the Army. We agree.

Provision No. 2 of the Agreement states that certain lands in the Trust Territory "shall be made available under a use and occupancy agreement . . . for such a period of time as the [Department of the Army may require] and provided always that such use be consistent with the purposes of the Trusteeship Agreement."

Article 5 of the Trusteeship Agreement states:

In discharging its obligations under Article 76 (a) ^[5] and Article 84^[6] of the Charter, the administering authority shall ensure that the trust territory shall play its part, in accordance with the Charter of the United Nations, in the maintenance of international peace and security. To this end the administering authority shall be entitled:

1. to establish naval, military and air bases and to erect fortifications in the trust territory;

2. to station and employ armed forces in the territory; and

3. to make use of volunteer forces, facilities, and assistance from the trust territory in carrying out the obligations towards the Security Council undertaken in this regard by the administering authority, as well as for the local defense and the maintenance of law and order within the trust territory. (Emphasis added.)

[3, 4] One of the express purposes of the Trusteeship Agreement is for the administering authority to ensure that the Trust Territory plays its part in maintaining international peace and security. The condemnation of the lands by the TTPI for the use of the United States Department of the Army to provide military bases is one means of assistance that is reasonably designed to ensure international peace and security.

Provision No. 3 of the Agreement states:

In any instance where an agreement for the use of privately owned land cannot be negotiated, it shall be the responsibility of the Government of the Trust Territory to acquire such land or interest therein as may be required and to thereafter make the same available for use upon receipt of fair and just compensation.

This provision means that the TTPI has the authority to condemn lands for the use of the Department of the Army when an agreement for the use of the privately owned land cannot be negotiated with the landowners.

[5] Appellants claim that the TTPI has no authority to condemn lands unless the condemnation is for the benefit of the people of the Trust Territory. We agree, and this is exactly what happened in this case. Trust Territory citizens derived a benefit from the presence of military bases since such presence ensures international peace and security and at the same time the administering authority through the Trust Territory Government fulfilled the obligations imposed on it by Article 5 of the Trusteeship Agreement. Specifically, the administering authority made use of the assistance from the Trust Territory Government's power of eminent domain to establish the military bases that are the subject of this opinion.

The second issue is whether the trial court erred in finding that the appellee's condemnation of the islands for the use of the United States Department of the Army constituted a "public use."

[6, 7] The term "public use" is incapable of a precise and comprehensive definition of universal application. Although it is defined in 10 TTC § 3 (2) as any use determined by the High Commissioner to be a public use, it is well recognized that whether the use was in fact a public use is ultimately a judicial question. Rindge Co. v. Los Angeles County, 262 U.S. 700, 43 S. Ct. 689 (1923); Ngiralois v. TTPI, 4 T.T.R. 517, 522 (App. Div. 1969). Appellants urge that there is no public use of the condemned islands by the United States Department of the Army, that there is no relationship between the condemnation of these islands and the defense of Trust Territory inhabitants, and claim that because the land is not a military base and is being used for research and development purposes, there is no Micronesian public use. The trial court found that

Kwajalein Missile Base is in fact a military base, and the three islands condemned in these Actions are just an extension of the missile testing efforts of the United States Army and the United States Air Force. Not only does the Missile Range receive missiles from Vandenberg Air Force Base in California, but it also launches missiles from Kwajalein Atoll. The fact that it is primarily a research facility does not alter the fact that it is a military base within the scope and intent of Article V of the Trusteeship Agreement.

We agree. The provisions of the United Nations Charter and the Trusteeship Agreement do not make the distinction between a military base that supports a research facility and a military base that does not. All that is required is that the TTPI's exercise of eminent domain power be rationally related to a conceivable public purpose. See Hawaii Housing Authority v. Midkiff, 104 S. Ct. 2862 (1985); Berman v. Parker, 348 U.S. 26 (1954). In this case, the public purpose is the maintenance of international peace and security as provided for in both the United Nations Charter and the Trusteeship Agreement. The TTPI's condemnation of the land for the use of the United States Department of the Army as an extension of Kwajalein Missile Base was therefore a public use and the trial court's finding was not erroneous.