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YOSIWO P. GEORGE, Chief Justice:
Plaintiffs filed a Verified Complaint, Summons and Motion for a Temporary Restraining Order on June 3, 2004. Defendants Kosrae State Government and Governor Rensley A. Sigrah, in his official capacity, filed an Opposition to Application for Temporary Restraining Order on June 4, 2004. Acting Attorney General Arthur Buck also filed a Motion to Appear on June 4, 2004. The Motion for Temporary Restraining Order was heard on June 4, 2004. Plaintiffs were represented by Canney Palsis, MLSC. Arthur Buck, Acting Attorney General, appeared for the Defendants Kosrae State Government
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and Governor Rensley A. Sigrah, in his official capacity ("State"). Governor Rensley A. Sigrah, was reportedly off-island and did not appear at the hearing in his individual capacity.
As a preliminary matter, Mr. Buck's Motion to Appear was heard first. I found that the Motion and supporting documents complied with GCO 2001-5, Rule Three and therefore granted Mr. Buck's Motion to Appear. Mr. Buck shall appear as counsel of record for Defendant State, and Rensley A. Sigrah, in his official capacity as Governor of Kosrae State, in this matter Wright Abraham, Administrative Officer for the Department of Public Works, testified on behalf of the Plaintiffs as a hostile witness. Bruce Howell, Director of Public Works and Lupalik Wesley, Administrative Specialist, Land Management, testified for the State.
After hearing from the parties, consideration of the record and applicable law, I found that immediate and irreparable harm will result to the Plaintiffs, and that the other criteria for injunctive relief weigh in favor of granting injunctive relief for the Plaintiffs. Therefore, I granted the Plaintiffs' Motion and entered a Temporary Restraining Order against the Defendants.
Based upon the evidence presented at the hearing, I find the following facts. This dispute centers upon land known locally as Puk, located in Lelu Municipality, where Defendants are attempting to develop a quarry for the extraction, crushing and production of crushed rock or gravel, also called aggregate, for use in road maintenance and construction projects, etc. The Plaintiffs own land downland or oceanside of the proposed quarry site. Defendant Rensley Sigrah, in his individual capacity, is a co-owner of the new quarry site, which is upland or mountainside of the Plaintiffs' land. Defendant State wishes to develop this new quarry site and extract the gravel.
In October 2003, the Tenwak quarry, the only operating gravel production quarry on Kosrae, closed down because the agreement between the land owner and the State had expired. It was possible to extend the agreement to allow continued quarry operations. However, the State declined to extend the agreement as the land owner was seeking an increase in the payments. Therefore gravel production came to a halt in October 2003. The last haul of gravel aggregate from the Tenwak quarry by Black Micro Corporation was made in February 2004. There is little gravel currently available at the Public Works area, however it is limited to government use. The State is in desperate need of gravel for use in road maintenance, house, school and other construction projects.
Following closure of the Tenwak quarry, the State began looking for another quarry site. Public notice was not given regarding State's search for a new quarry site. The new quarry site project was not advertised for competitive bidding. However, the geologic identification of potential quarry sites was consulted. Although other sites were available for a quarry, including sites that had been used previously by the State for a quarry, the Puk site was chosen by the State as the site for the development of the next State quarry. Parcel 090-K-06 was chosen as the new quarry site and the Lease Agreement was executed, even though the testimony failed to clearly indicate that testing had been completed to determine whether the quality of the rock on the parcel would be suitable for the production of aggregate.
Plaintiff Tulensa and the other Heirs of Nena Sigrah are the owners of parcel 090-K-11, which is located oceanside of parcel 090-K-06. Parcel 090-K-11 contains an existing access road, which provides access to upland parcels 090-K-12 and 090-K-06. Plaintiff Shiro Sigrah, the son of the sole surviving heir of Simon Killin and the other heirs are the owners of parcel 071-K-14, which is also located oceanside of parcel 090-K-06. Parcel 090-K-06 is the quarry site which is owned in fee simple by Rensley, Berlin and Leonard A. Sigrah, as tenants-in-common.
[12 FSM Intrm. 517]
On about March 4, 2004, a Lease Agreement for Government Use of Private Land Quarry was executed for parcel 090-K-06 ("quarry parcel"). The negotiations for the lease of the quarry parcel were conducted between Director of Public Works, Bruce Howell and Rensley Sigrah. However, only Leonard A. Sigrah, one of the co-tenant owners of parcel 090-K-06, signed the Lease Agreement as "Lessor." The Lease Agreement provides for payment of fees for surface rights rental, for royalty payments for unprocessed rock and soil, processed aggregate and armor rock, and for payment for tree and crop damage. The Lease Agreement further provides that the authorized representative for the Government is the Governor of the State of Kosrae or his designee as provided in writing. The value of the Lease Agreement for the Lessor for initial three years exceeds $12,000 for rental payments and crop damage. The royalty payments have not been estimated. The State cost for development of the quarry site is $35,000 for crusher equipment relocation, as well as costs for development of the quarry site itself and for construction of an access road, for which costs have not been estimated. There are additional costs associated with providing compensation for use of adjacent parcel 090-K-08, owned by the Heirs of Sapino Sigrah. There has been another Lease Agreement signed by Bob S. Sigrah, as Lessor, for use of parcel 090-K-08, which provide compensation for land rental, crop damage and royalty fees for rock. The State estimates that an additional ten weeks of daily site preparations will be needed to begin rock crushing operations so that aggregate will be available by October 2004.
Plaintiffs allege that in April 2004, the Department of Public Works entered the quarry parcel through 090-K-11 and started to clear the area by grading, landscaping and excavating the area. Defendant State entered the quarry parcel through the parcel owned by Tulensa Sigrah and the Heirs of Nena Sigrah ("Tulensa"), and widened the existing access road through Tulensa's land and allegedly destroyed his crops. Plaintiff Tulensa did not give consent to the Defendants to cross, landscape or clear parcel 090-K-11, nor to widen the access road, nor to destroy his crops. Plaintiff Tulensa then blocked off the access road on May 7, 2004 to prevent future entrance by the Defendants.
On May 11, 2004, Plaintiff Tulensa found that the barricades he had placed across the access road had been removed. On May 11, 2004, Plaintiff Tulensa, through counsel, sent a letter to the State requesting the State to cease and desist encroaching upon his property. On May 17, 2004, the State again entered Plaintiff Tulensa's property again without his consent. Plaintiff Tulensa's counsel contacted Mr. Wright Abraham, Administrative Officer for Public Works, who agreed to stop all quarrying activities upon Plaintiff Tulensa's land. The State admitted that they had widened the access road through Tulensa's land without his consent and may have destroyed his crops.
Mr. Wesley had investigated the access road through Plaintiff Tulensa's land. He tried to negotiate access through Plaintiff Tulensa's land using the existing access road. Although the State was willing to compensate Plaintiff Tulensa for use of the access road, the negotiations were not successful.
Thereafter, the State approached Plaintiff Shiro Sigrah and the Heirs of Richard Sigrah ("Plaintiff Shiro") for the use of parcel 071-K-14 and proposed a lease for an access road. During review of the lease, the State testified that Hapical R Sigrah gave an oral consent for the State to proceed with the construction of the access road. However, later, Hapical R Sigrah withdrew her consent and verbally asked the State to cease all activities on parcel 071-K-14. The Defendant did not do as requested. On June 2, 2004 the State, without consent of the Plaintiff Shiro or Hapical R Sigrah, against entered his land and continued with land clearing and quarry activities. Mr. Abraham instructed the Public Works employees to enter the Plaintiffs' land upon the advice of Rensley Sigrah, because the Defendants were behind the schedule of their quarry project. The State admitted that they had entered upon and cleared Shiro's land without his renewed consent and may have destroyed his crops.
Plaintiffs' Complaint and the Motion for Temporary Restraining Order followed.
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II. Analysis) Standard for Granting Injunctive Relief
This Court must consider four criteria in determining whether to grant injunctive relief:
1. The likelihood of success on the merits of the party seeking injunctive relief;
2. The possibility of irreparable injury to the plaintiff;
3. The balance of possible injuries or inconvenience to the parties which would result from granting or denying injunctive relief; and
4. The impact upon the public interest.
Palik v. Henry, 9 FSM Intrm. 309 (Kos. S. Ct. Tr. 2000). Preserving the status quo pending litigation on the merits is the purpose of injunctive relief. Id. In arriving at a fair and equitable result this Court carefully weighs the interests of both sides and exercises broad discretion. Wakuk v. Kosrae Island Credit Union, 7 FSM Intrm 195, 196 (Kos. S. Ct. Tr. 1995).
1. The likelihood of success on the merits of the party seeking injunctive relief.
As to the likelihood of success on the merits, a court may grant injunctive relief so long as the movant's position raises serious, non-frivolous issues. Palik v. Henry, 9 FSM Intrm. 309 (Kos. S. Ct. Tr 2000). A Court may grant injunctive relief even if the moving party is not more likely than not to prevail, so long as the Plaintiffs' position appears sufficiently sound to raise serious non-frivolous issues. Ponape Enterprises Co. v. Bergen, 6 FSM Intrm. 286 (Pon. 1993).
Here, both Plaintiffs Tulensa and Shiro allege trespass by the Defendants, damage and destruction of their crops and damage to their land. The State has admitted that it has widened the access road on Tulensa's land and possibly damaged his crops without Tulensa's consent because the State believed it had an implied lease and therefore could legally take those actions. The State has admitted that it has entered and cleared Shiro's land and possibly damaged his crops without Shiro's consent as a result of Hapical's oral permission. Plaintiffs' allegations, coupled with the State's admissions, support Plaintiffs' claims based upon trespass and negligence. These are serious, non-frivolous claims that have resulted in damage to Plaintiffs' land and crops.
The State argues that they hold the likelihood of success on the merits on three grounds. First, the State claims that they hold an implied easement over the existing access road which crosses through Tulensa's parcel 090-K-11, to provide access to parcel 090-K-12 and ultimately the quarry parcel. Second, the State claims access through the Plaintiffs' parcels through easement by prescription and third, the State claims that ultimately, it has the right to forcibly purchase land for an access road pursuant to Kosrae State Code, Section 11.103. Another argument made by the State was that the parcel boundaries were disputed, but later on agreed to by the parties.
Kosrae State Code, Section 11.615(3) provides that land held under a certificate of title is subject to any right of way over the land in question, whether or not the right of way is stated in the certificate of title. Kosrae State Code, Section 11.615(4)(a) further provides that a pre-existing easement or other right appurtenant to the land remains appurtenant to the land even if it is not described in the certificate. Accordingly, Tulensa's ownership of parcel 090-K-11 is subject to the pre-existing right of way which existed at the time that the original certificate of title was first issued either by the Kosrae State Land Commission or the Kosrae Land Court. This pre-existing right of way, also referred to as the "access road," passes with and remains necessarily attached to parcel 090-K-11, until
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it is cut off in a lawful manner. Therefore, the access road, as it existed on the date of issuance of the original certificate of title for parcel 090-K-11, may be utilized for access to the upland parcels 090-K-12 and 090-K-06.
Kosrae State Code, Section 11.615 does not give the holder or user of an existing right of way the right to widen or modify the right of way without consent of the landowner. This was apparently the original interpretation by the State as well, as Mr. Wesley tried to negotiate use of the Plaintiff Tulensa's access road through parcel 090-K-11 for compensation by the State. The State does not appear likely to prevail on the merits of this claim.
The State claims access across the Plaintiffs' land through an easement by prescription. As the State correctly states, easement by prescription is a doctrine under which one can acquire ownership of land if he, without the owner's permission, uses the land openly, notoriously, exclusively and continuously for the statutory period under a claim of right. Palik v. Kosrae, 5 FSM Intrm. 147, 154 (Kos. S. Ct. Tr. 1991). The statutory period for easement by prescription is an action for the recovery for an interest in land is twenty years. Kos. S.C. § 6.2503(1)(b).
With respect to Shiro's land, parcel 071-K-14, there has been no evidence provided by the State that it has used a right of way or access road through parcel 071-K-14 for the statutory period of twenty years. With respect to Tulensa's land, parcel 090-K-11, there has been no evidence provided by the State that it has used access road through parcel 090-K-11 for the statutory period of twenty years, except the assertion by State's counsel that the old narrow trail had been there for years. The access road across parcel 090-K-11, in its newly widened condition, has only existed for two months or less, falling far short of the statutory period for easement by prescription. Therefore, it appears that the State has not met the statutory time requirements for its claim of easement by prescription. The State does not appear likely to prevail on the merits of this claim.
Finally, the State claims that it has the right to forcibly purchase and build an access road pursuant to Kosrae State Code, Section 11.103. The acquisition of interests in private land by the State for a public purpose without the consent of the interested parties is permitted under the Kosrae State Constitution, Article XI, Section 5. This constitutional provision requires specific procedures to be followed, which are set forth in Kosrae State Code, Section 11.103. The procedures require that the State first negotiate with each interested party, provide a written statement of the public purpose for which the interest is sought and negotiate in good faith. If the negotiations are not successful, the State may begin a court action to acquire the interest in land. The Court recognizes that the authority and procedure for the State to acquire interests in private land are provided by our State Constitution and by State Law. The Court also takes judicial notice that court action has never been initiated by the State to forcibly acquire an interest in private land. The Court accepts the State's argument that it does have statutory authority to acquire interests in land, include a right of way or access road, through court action, pursuant to Section 11.103(2). However, this provision has never been utilized by the State to forcibly purchase an interest in private land for a public purpose through court action. Therefore, due to a complete absence of court decisions applying or interpreting Kosrae State Code, Section 11.103(2), this Court cannot conclude that the State is likely to prevail on the merits of this claim.
Both Plaintiffs Tulensa and Shiro have established serious non-frivolous claims of trespass and negligence, resulting in damage to land and crops. The likelihood of the Plaintiffs' success on the merits of these claims is high. The Plaintiffs' have satisfied this criteria in favor of granting of injunctive relief.
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2. The possibility of irreparable injury
Plaintiffs claim that the State has already committed irreparable injury to their land through bulldozing, grading and other quarry related activities. The State's activities have altered and damaged the Plaintiffs' land and their crops. An injury which tends to destroy an estate will be treated as an irreparable injury justifying the issuance of a temporary retraining order. Palik v. Henry, 9 FSM Intrm. 267, 269 (Kos. S. Ct. Tr. 1999). Clearing, bulldozing and grading land, damage and destruction of crops are injuries which tend to destroy an estate, and are accepted as irreparable injuries. This Court has always considered the customary importance of land for Kosraeans and any actions to damage land and crops as significant. The Plaintiffs will continue to suffer damage to their land and crops by the State's continued clearing, bulldozing, grading and quarrying activities without injunctive relief. The Plaintiffs' have satisfied this criteria in favor of granting of injunctive relief.
3. The balance of possible injuries or inconvenience to the parties which would result from granting or denying relief.
The Plaintiffs claim serious and irreparable damage to their land and crops from the Defendants due to their trespass, clearing, grading and quarrying related activities on the site. The potential injury to the Plaintiffs through damage to their land is significant and permanent. The granting of injunctive relief will protect the Plaintiffs against continued trespass, damage and destruction of their land and crops by the State.
The State claims irreparable injury to the State by a lack of gravel if the quarry site preparations shut down through injunctive relief. The State claims that road maintenance and construction will come to a stop and that many people will become unemployed. Based upon State's Exhibit "B," it appears that the last sale of gravel from the Tenwak quarry was made in February 2004, nearly four months ago. The State has failed to demonstrate why a delay of a few more weeks in producing gravel would result in irreparable harm to the State. While the Court recognizes the convenience and importance of having well maintained roads, home and school construction, the State has not demonstrated why it is unable to produce or purchase gravel from other quarry sites. The State's testimony indicated that the Tenwak quarry was shut down because a new lease arrangement could not be reached, and not because rock was no longer available from that quarry. There may be other sites available throughout the State, with direct access, which are suitable for a quarry. Furthermore, it is possible that the State and Plaintiff Shiro will not reach agreement on a new access road through parcel 071-K-14. The denial of injunctive relief will allow the State to continue to trespass upon the Plaintiffs' land and continue the damage and destruction to their land and crops. The State's continued trespass and damage to Plaintiffs' land and crop will increase the State's liability for the payment of damages to the Plaintiffs.
Having carefully considered the balance of possible injuries or inconvenience to the parties in the granting or denial of injunctive relief, I conclude that the balance weighs in favor of granting relief for the Plaintiffs.
4. The impact upon the public interest
The critical importance of land in Micronesia is echoed throughout the FSM Constitution and National Laws, the Kosrae State Constitution and State Laws. Ownership of land in the Federated States of Micronesia and in the State of Kosrae is limited and special procedures must be followed for the State to acquire interests in private land. Because of the special importance that land has in Kosraean society, the State has substantial interests in assuring that land issues are settled fairly. Nena v. Kosrae, 5 FSM Intrm. 417, 424 (Kos. S. Ct. Tr. 1990). It is the public interest that the State deal fairly with issues involving land and to respect rights of owners of private land. It is in the public
[12 FSM Intrm. 521]
interest that the State to comply with State Laws, including the procedures specified in Kosrae State Code, Section 11.103, in acquiring an interest in private land, such as a lease or easement or right of way. It is not in the public interest for the State to commit torts such as trespass, negligence, property or crop damage, or to engage in acts that will subject the State to liability. It is not in the public interest to permit the State to violate the rights of owners of private land.
It is also in the public interest to assure that materials such as gravel are available for road maintenance and construction projects, as this assists continued employment in the construction trade, and provides benefits the people of Kosrae.
Having considered the impact of injunctive relief upon the public interest, I find that the public interest weighs in favor of the State protecting rights of owners of private land, assuring compliance with State Laws and avoiding liability through its actions. The impact upon public interest weighs in favor of granting relief for the Plaintiffs.
This Court has carefully considered the four criteria in determining whether to grant injunctive relief for the Plaintiffs. Based upon the evidence presented at the hearing and applicable law, I find that the four criteria weigh in favor of granting injunctive relief for the Plaintiffs. Accordingly, I granted the Plaintiffs' Application for a Temporary Restraining Order as specified below.
III. Temporary Restraining Order.
A Temporary Restraining Order is entered against the Defendants as follows:
1. Defendants shall not take any action, cause, instruct or consent to any action to be taken to trespass, access, bulldoze, clear, landscape, or grade land, or to damage or destroy crops, or otherwise interfere with Plaintiffs' parcels 090-K-11 and 071-K-14, except that the State shall expeditiously remove all its equipment from parcel 090-K-06 as soon as possible, but no later than Wednesday, June 9, 2004. The State may utilize parcels 090-K-11 and/or 071-K-14 to remove their trucks, bulldozers and other equipment, provided that all further damage or destruction to Plaintiffs' crops and land is prevented.
2. This Temporary Restraining Order applies to all Defendants, their family members, their officers, agents, servants, employees, attorneys and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.
3. This Temporary Restraining Order shall remain in effect for 14 days, until June 18, 2004, 5 p.m., unless it is modified earlier by written order of this Court. Injunctive relief beyond June 18, 2004 shall be considered at the hearing set for June 14, 2004.
4. Any violation of the terms of this Temporary Restraining Order may result in a proceeding for contempt of court, and subject the offender to penalties, including fines and imprisonment.
IV. Order for Briefing and Documents.
The evidence received at the hearing raises important issues which are related to the State's actions on Plaintiffs' parcels. The State relies upon Kosrae State Code, Section 11.103, to argue their ultimate right to obtain, either through negotiation or through forced purchase in a court action, an easement or access road for access to the quarry site. This statutory provision entitled "State Acquisition of Land" applies to the acquisition of interests in private land, which includes purchases of land in fee simple, and also other interests such as leases, easements for access roads and rights of
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way. Section 11.103(1) provides that "[t]he State acquires an interest in private land at the direction of the Governor." Pursuant to this provision, it is the Governor who directs the acquisition of an easement or right of way across Plaintiffs' land, either through negotiation or through purchase. Accordingly, it is also the Governor who directs the acquisition of the lease interest in parcel 090-K-06, in which Rensley A. Sigrah, in his individual capacity, is a co-tenant fee simple owner. Consequently, the Lease Agreement for parcel 090-K-06, which was executed under the authority of Section 11.103(1), under the direction of the Governor, creates the appearance of impropriety and conflict of interest. Furthermore, the timing and manner in which parcel 090-K-06 was selected for the quarry site, negotiations were conducted and the Lease Agreement was executed, without public notice, without bidding procedures and without testing the suitability of the rock therein for aggregate production, raises issues of public trust, transparency of government operations and propriety of the these actions under State Law.
Accordingly, the State is ordered to file a memorandum on the compliance of the Lease Agreement for Government Use of Private Land Quarry for parcels 090-K-06 & 090-K-10 with applicable State Laws, including State Law 8-45 (codified at Kosrae State Code, Section 10.215); State Law 8-52 (codified at Kosrae State Code, Title 20); and the Financial Management Regulations, Parts III and IV.
The State is also ordered to file copies of the Certificates of Title for parcels 090-K-06, 090-K-10, 090-K-11, and 090-K-12. The memorandum and documents shall be filed no later than Friday, June 11, 2004.
V. Status Hearing.
A status hearing is set for June 14, 2004 at 10 am. The parties shall provide the status of negotiations regarding this matter, as appropriate. The hearing shall also provide Defendant Rensley A. Sigrah the opportunity to appear in his individual capacity in this matter. The hearing shall consider Plaintiffs' request for continued injunctive relief, if necessary.
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