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Damarlane v Pohnpei Transportation Authority [1990] FMSC 19; 4 FSM Intrm. 347 (Pon. 1990) (28 October 1990)

[1990] FMSC 19; 4 FSM Intrm. 347 (Pon. 1990)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

FSM CIVIL ACTION 1990-075

KADALINO DAMARLANE AND MARY BERMAN
AND KADALINO DAMARLANE'S PREDECESSORS IN INTEREST
Plaintiffs

V

POHNPEI TRANSPORTATION AUTHORITY,
POHNPEI LAND COMMISSION, STATE OF POHNPEI
AND THE NATIONAL GOVERNMENT OF THE
FEDERATED STATES OF MICRONESIA
Defendants

BEFORE: The Honorable Edward C. King, Chief Justice, FSM Supreme Court

APPEARANCES: For the Plaintiffs: Mary Berman; For Defendant Pohnpei State: Joses R. Gallen, State Attorney, Pohnpei State; For the Defendant FSM: David Webster, Assistant Attorney General, FSM Attorney General's Office

OPINION: October 28, 1990

HEADNOTE

Statutes
Civil Procedure - Injunctions
Earthmoving regulations themselves represent a governmental determination as to the public interest, and the clear violation of such regulations may therefore be enjoined without a separate court assessment of the public interest and balancing of hardships between the parties. Damarlane v. Pohnpei Transp. Auth., [1990] FMSC 19; 4 FSM Intrm. 347, 349 (Pon. 1990).

COURT'S OPINION

EDWARD C. KING, Chief Justice:

A preliminary injunction hearing was held today at which time all parties were present or represented by counsel. Mary Berman represented the plaintiffs, Joses Gallen represented the Pohnpei defendants, and David Webster was present on behalf of the national government.

Plaintiffs seek injunctive relief to enjoin the dredging activities currently being performed by the Pohnpei Transportation Authority at Mesenpal, Awak Pah, U Municipality, Pohnpei.

At the conclusion of oral argument on the motions, the Court, counsel and parties drove to the dredging site and viewed the operations taking place. It is apparent that the plaintiffs here, who live on the land which abuts the lagoon where the dredging operations are taking place, are greatly affected by these dredging operations. The dredging makes noise, dust and dirt, and radically affects the quality of the landscape, sea water and sea life in their living area.

The Court finds that the dredging operations being carried out at Mesenpal constitute an earthmoving operation as defined in the Earthmoving Regulations adopted by the FSM Secretary of Human Resources on October 31, 1988 and approved by President John R. Haglelgam on November 7, 1988. Those regulations define "earthmoving" as "any...activity which disturbs or alters the surface of the land, a coral reef or bottom of the lagoon, including, but not limited to excavations, dredging, embankments, land reclamation in a lagoon...and the moving, depositing or storing of soil, rock, coral, or earth." II FSM Regs., Earthmoving, pt. 1, § 1.3(f). The regulations are not limited to national activities but cover earthmoving activities conducted by any "person." "Person" is defined as:

“the Federated States of Micronesia, a State, municipality, political subdivision, a public or private institution, corporation, partnership, joint venture, association, firm, or company organized or existing under the laws of the Federated States of Micronesia or any State or country, or a lessee or other occupant of property, or individual, acting singly or as a group.”

Id. § 1.3(1).

The earthmoving regulations specifically require that, "Any person who engages in an earthmoving activity within the Federated States of Micronesia shall first obtain a permit from the Secretary for the proposed activity." Id. pt. 3, 3.1. Counsel for the defendants concedes that there is no current valid permit for the dredging operation being conducted at Mesenpal.

It is plain then that the operations are taking place in violation of the earthmoving regulations. Thus there can be no question as to the likelihood of plaintiffs' success on the merits concerning the illegality of the current dredging activities.

Normally, a court attempting to determine whether a preliminary injunction should issue considers additional factors such as the hardship which may be imposed upon the party sought to be enjoined, and the public interest. Ponape Transfer & Storage v. Pohnpei State Public Lands Auth., [1986] FMSC 21; 2 FSM Intrm. 272 (Pon. 1986). Here, however, the earthmoving regulations, adopted by the Secretary of Human Resources pursuant to authorization granted by 25 F.S.M.C. 610, as amended by Public Law No. 5-21, themselves represent determinations that the public interest requires assurance that earthmoving activities are to be carried in a manner consistent with environmental concerns and that this public interest shall prevail over any competing interests. The permit requirement is not subject to a balancing of hardships test but instead is applicable without exception. Thus, in light of the undisputed fact that the current dredging operations at the Mesenpal site are in violation of the earthmoving regulations, those activities must be enjoined.

So ordered the 18th day of October, 1990.