IN THE SUPREME COURT OF THE REPUBLIC OF PALAU
APPELLATE DIVISION

CIVIL APPEAL NO. 09-023
(LC/B 08-1090 and LC/B 08-1091)

NGARAMEKETII AND RUBEKUL KLDEU
and MARGARITA BORJA DALTON

Appellants,

v

KOROR STATE PUBLIC LANDS AUTHORITY
Appellee.

Decided: 3 February, 2011

Counsel for Appellant Ngarameketii and Rubekul Kldeu: J. Roman Bedor
Counsel for Appellant Dalton: Mark P. Doran
Counsel for Appellee: J. Uduch Sengebau Senior

BEFORE: ARTHUR NGIRAKLSONG, Chief Justice; ALEXANDRA F. FOSTER, Associate Justice; RICHARD H. BENSON, Part-Time Associate Justice.

Appeal from the Land Court, the Honorable ROSE MARY SKEBONG, Associate Judge, presiding.

OPINION

PER CURIAM:

1. Ngarameketii and Rubekul Kldeu (also referred to in these proceedings as "Klobak er Oreor" or "Klobak") and Margarita Borja Dalton appeal the Land Court's determination of ownership awarding land known as Ngeremdiu on Ngeruktabel island to the Koror State Public Lands Authority (KSPLA). For the reasons stated below, we AFFIRM.

BACKGROUND

2. The property at issue is popularly known as the rock island Ngeremdiuthough Ngeremdiu is actually part of a larger rock island known as Ngeruktabel. It comprises Ngeremdiu Lot 001 and Ngeremdiu Lot 002 on Bureau of Lands and Surveys Worksheet "Ngeremdiu Island." Dalton filed a claim on November 29, 1988, for portions of Lot 002 referred to as Oimaderuul and the small adjoining beach of Kekerelechol, seeking return of public lands under Article XIII, Section 10 of the Palau Constitution. Ngarameketii and Rubekul Kldeu, through Alexander Merep as Rechucher-ra-Techekii, filed a claim of ownership on November 7, 2006, for the entire area of Ngeremdiu asserting that they hold superior title to the land. 

3. During a four day hearing before the Land Court, the claimants presented evidence in support of their claims. KSPLA introduced evidence showing that the Japanese Navy acquired Ngeremdiu in 1914 and that Ngeremdiu later passed to the Trust Territory government and eventually to KSPLA. KSPLA's records show that the District Land Office held a hearing in February 1956 to determine ownership of certain rock islands, including Ngeremdiu. The notice of hearing was published at various sites throughout Palau and stated that the islands were on record as belonging to the Japanese government, seized by the U.S. government, and now in control of the Alien Property Custodian, Trust Territory. Anyone claiming an interest in the land was required to attend the hearing. Several statements were received by the District Land Office, including one signed on February 29, 1956, by fourteen representatives of Koror and Peleliu, stating that Ngeremdiu was taken by the Japanese Navy in 1914, and that all the chiefs of Palau" signed a document at that time approving the transfer. Thereafter, the District Land Title Officer issued findings of fact to this effect. On November 28, 1956, the Land Title Officer issued a "Determination of Ownership" that Ngeremdiu is the property of the Trust Territory of the Pacific Islands. Additional documents submitted to the Land Court show that ownership of Ngeremdiu passed from the Trust Territory government to the Palau Public Lands Authority and ultimately to KSPLA through a series of quitclaim deeds and orders. KSPLA also produced lease agreements for parts of Ngeremdiu issued by the Trust Territory in 1959 and 1967, and an agreement signed in 2004 by KSPLA, Koror State Government, and Koror State Legislature, authorizing film production companies Clear Water Inc. and SEC Inc. to use certain rock islands (including Ngeremdiu) in filming the television show "Survivor."

4. Dalton does not dispute that Ngeremdiu was acquired by the Japanese in or around 1914. Her position is that Ngeremdiu was her family's land prior to the takeover. Dalton's tie to Ngeremdiu is through her adoptive father, Jesus Borja (Borja is actually Dalton's grandfather, but Dalton was raised by Borja and always considered him to be her father). Dalton testified that Borja told his children that in the early 1900s, he built two large canoes for Ibedul Louch, who, in exchange for the canoes, gave him the beach at Oimaderuul. 

5. According to Dalton, Borja would spend a few weeks at the beach and a few weeks in Koror through the 1930s, and moved to Aimeliik during World War II. Emilio, Borja's son, stayed nearby at Ngerkekangel beach (also referred to as Dave Shay's beach) after Borja left Oimaderuul for Aimeliik. Dalton further stated that Emilio and his family left Ngerkekangel beach after his wife was injured by a Japanese soldier's grenade. After the war, Borja, along with Dalton who was born in 1942, returned occasionally to the beach. During this time, Borja maintained the beach area, clearing plants and growing corn. In 1959, Borja and his family moved to Guam, where he died about a year later. 

6. Dalton testified that when she returned to Palau in 1977, her uncle, Ngirturong, told her to take care of the beach because it is her family's land. Dalton hired local men to help her clear the beach area, and in 1979, she built an A-frame house on the beach. She made improvements to the house in the early 1980s, and later built a few summer houses." 

7. Dalton also produced a handwritten note found among Borja's possessions that she believes to be in Borja's handwriting. The note, written in Spanish and purportedly translated by Father Felix K. Yaoch on April 9, 1980, reads: 

Notes on Land Parcels in Rock-Islands. Oimaderuul, as well as Ngerchumelbailechol, parts of Ngeremdiu in Ngeruktabel, 2 parcels of land along the sea (with beaches), belong to Jesus Borja y Leon Guerrero, native of Guam and resident of Palau. He was born in the year 1884 and took up residence in Palau in the year 1894, when he was 10 years of age. He also established residence in Malakal in the year 1946. 

According to Dalton, at no point did anyone, including the other claimants in this action, object to Borja's and Dalton's presence on the beach. In fact, Dalton testified that people would contact her for permission to use what many refer to as "Margie's beach." It was not until 2004, as preparations were being made to film "Survivor," that she was informed by KSPLA that her improvements on Ngeremdiu, including her houses, would have to be removed.

8. The other claimants, Ngarameketii and Rubekul Kldeu, contend that Ngeremdiu is a traditional hamlet of Koror under the authority and control of the chiefs of Koror. They contend that Ngeremdiu's status as chutem buai, or community property, has never been altered and that KSPLA cannot show that Ngarameketii and Rubekul Kldeu ever released control over Ngeremdiu. 

9. After considering the evidence presented, the Land Court issued a written decision finding that Ngeremdiu is public land subject to the procedures set forth in 35 PNC ' 1304(b). It concluded that the Japanese government acquired Ngeremdiu in 1914 with the knowledge and agreement of the chiefs of Palau, and that through a series of transactions, ownership was properly transferred to the Trust Territory government and eventually to KSPLA. It found that Dalton failed to establish that Borja owned any portion of Lot 002, and failed to establish that Oimaderuul was taken from her family by force or fraud or without adequate compensation. Further, the Land Court found that Ngarameketii and Rubekul Kldeu knew that Ngeremdiu was public land under the control of the government, and that they failed to prove superior title. 

STANDARD OF REVIEW

10. We review the Land Court's findings of fact for clear error. See Ngerungel Clan v. Eriich, 15 ROP 96, 98 (2008). Under this high standard, we will deem the Land Court's findings clearly erroneous only if such findings are so lacking in evidentiary support that no reasonable trier of fact could have reached the same conclusion. See Palau Pub. Lands Auth. v. Tab Lineage, 11 ROP 161, 165 (2004). The Land Court's determinations of law are reviewed de novo. See Sechedui Lineage v. Estate of Johnny Reklai, 14 ROP 169, 170 (2007).

ANALYSIS 

A. Dalton's Claim

11. We start with Dalton's claim for return of public lands under Article XIII, Section 10 of the Palau Constitution and its enabling statutes. As noted, Dalton claims only portions of Ngeremdiu Lot 002 known as Oimaderuul and the immediate surrounding areas (the parties refer to the entire area as Oimaderuul or the beach). 

12. The Land Claims Reorganization Act of 1996, 35 PNC '' 1301 et seq., provides that ownership of public land shall be returned to any citizen of Palau who can prove (1) she is a citizen who has filed a timely claim; (2) she is either the original owner of the land, or one of the original owner's proper heirs; and (3) the claimed property is public land previously acquired by a government through force or fraud, or without just compensation or adequate consideration. See 35 PNC ' 1304(b); Markub v. Koror State Pub. Lands Auth., 14 ROP 45, 47 (2007); Palau Pub. Lands Auth. v. Ngiratrang, 13 ROP 90, 93-94 (2006). "[T]he burden of proof remains on the claimants, not the governmental land authority, to establish by a preponderance of the evidence, that they satisfy all the requirements of the statute.'" Ngaraard State Pub. Lands Auth. v. Tengadik Clan, 16 ROP 222, 224 (2009) (quoting Ngiratrang, 13 ROP at 94). Here, the Land Court concluded that Dalton failed to prove the second and third elements. 

13. Dalton contends that the Land Court erred in finding that Borja did not own the beach prior to 1914, when it was acquired by the Japanese. She emphasizes that her testimony regarding the transfer from Ibedul Louch to Borja is undisputed, and that the handwritten note by Borja confirms the transfer. However, the Land Court was not required to accept her version of events, even if it was not directly rebutted. See Estate of Ngiramechelbang v. Ngardmau State Pub. Lands Auth., 12 ROP 148, 151 (2005) (noting the clearly established precedent that a judge may choose to disbelieve even uncontroverted evidence" (citing Ngerungor Clan v. Mochouang Clan, 8 ROP Intrm. 94, 96-97 (1999)). Though Dalton was told that the beach at Ngeremdiu was her family's land, and she improved the beach without interference for many years starting in the late 1970s, she was unable to produce any evidence to corroborate her story of how Borja came to own the beach. The Land Court discounted the handwritten note purportedly found among Borja's possessions in Guam because, among other things, it lacked any information regarding how Borja came to own the beach. In contrast, KSPLA presented documentary evidence that the chiefs of Palau properly transferred Ngeremdiu to the Japanese Navy in 1914. 

14. "It is not the appellate panel's duty to reweigh the evidence, test the credibility of witnesses, or draw inferences from the evidence." Ebilklou Lineage v. Blesoch, 11 ROP 142, 144 (2004) (citing ROP v. Ngiraboi, 2 ROP Intrm. 257, 259 (1991)). And upon review of the record, there are no grounds for upsetting the Land Court's findings and conclusions. Inasmuch as Dalton cannot show that Borja was the original owner of Ngeremdiu, her argument that the Land Court erred in finding that there was no fraud or force in the government's acquisition of the land is moot.

B. Ngarameketii and Rubekul Kldeu's Claim

15. In contrast to Dalton's return of public lands claim, Ngarameketii and Rubekul Kldeu argue that they hold superior title to Ngeremdiu. "[I]t is important to bear in mind that the two types of claim[s] are fundamentally different, with different burdens of proof and different defenses applicable to each." Espong Lineage v. Airai State Pub. Lands Auth., 12 ROP 1, 5 (2004). Unlike a return of public lands case in which the claimant does not dispute the government's ownership of the land or the occupying power's previous acquisition, a claimant asserting superior title is claim[ing] the land on the theory that it never became public land in the first place.'" Id. (quoting Kerradel v. Ngaraard State Pub. Lands Auth., 9 ROP 185, 185 (2002)). "Such a claimant stands on equal footing with the governmental entity claiming the land, but the claimant must confront the availability of affirmative defenses not available to the government in Article XIII claims.'" Id. (quoting Kerradel, 9 ROP at 186 n.2). 

16. As noted, Ngarameketii and Rubekul Kldeu contend that Ngeremdiu was, and still is, a traditional hamlet of Koror. It is considered chutem buai, the use of which is controlled by the village chiefs. They assert that nothing in the record shows that Ngarameketii and Rubekul Kldeu consented to the transfer of Ngeremdiu to the Japanese government or any other authority, and therefore the Land Court erred in finding that Ngeremdiu became government-owned public land. Accordingly, all subsequent transfers of ownershipfrom the Japanese to the Trust Territory government to the Palau Public Lands Authority to KSPLAmust be invalid. Moreover, according to Ngarameketii and Rubekul Kldeu, the Trust Territory government had a sacred duty to protect the interest of the Council of Chiefs of Koror, and therefore it should have made additional efforts to ensure that the Klobak participated in the 1956 hearing before the District Land Office. 

17. At the outset, it is important to define the scope of the claim under the circumstances of this case. This case does not require the Court to delve into the role of state land authorities versus traditional leaders in the administration of public land. Cf. e.g., House of Traditional Leaders v. Koror State Gov't, CA 09-004, slip op. at 10 (Feb 9, 2010); Gibbons, 13 ROP 156. Here, the question on appeal is whether the Land Court's findings that Ngeremdiu is public land, and that the Klobak failed to establish superior title, are clearly erroneous in light of the evidence presented. 

18. For the most part, the arguments presented on appeal by Ngarameketii and Rubekul Kldeu are the same ones presented to the Land Court. The record shows that the Land Court considered the evidence put forward by Ngarameketii and Rubekul Kldeu along with that of the other claimants. At the hearing, Ngarameketii and Rubekul Kldeu presented only general testimony about the role of the village chiefs in administering chutem buai. And, even accepting as true that the Klobak once had control over the rock islands including Ngeremdiu, the Land Court concluded that the evidence overwhelmingly supports KSPLA's position that any such control over Ngeremdiu was relinquished in 1914. Multiple documents recovered from the District Land Office support the Land Court's conclusion that the chiefs of Palau consented to the transfer. Though Ngarameketii and Rubekul Kldeu contend that KSPLA's records are insufficient to establish a valid transfer, the Land Court's conclusion on this point cannot be considered clearly erroneous. See Sechedui Lineage, 14 ROP at 170, 171 ("It is not clear error for the Land Court to credit one proffer of evidence over another so long as one view of the evidence supports the factfinder's decision."). Ngarameketii and Rubekul Kldeu's reliance on Orrenges Thomas v. Trust Territory, 8 TTR 40 (1979) (noting that where only three of eighteen clans approved the transfer of land, the transfer cannot be effective against those clans that did not participate), and Edeyaoch v. Timarong, 7 TTR 54, 62 (Tr. Div. 1974) (finding no evidence in the record that the plaintiff, who was listed as the owner in the Tochi Daicho, sold the lots in question), is misplaced under these circumstances. 

19. Moreover, Ngarameketii and Rubekul Kldeu's claim is premised on the contention that Ngeremdiu never became public land in the first place. See Espong Lineage, 12 ROP at 5; see also Tab Lineage, 11 ROP at 167-68 (noting that where the land at issue is listed in the Tochi Daicho as under government control, a claimant asserting superior title must show by clear and convincing evidence that such a listing is wrong). However, as noted by the Land Court, the record reflects that for decades, KSPLA and its predecessors have exercised complete control over Ngeremdiu as public land through, among other things, lease transactions, contracts, and letters. Ngarameketii and Rubekul Kldeu were well aware of KSPLA's authority over Ngeremdiu. For example, Alexander Merep, who submitted the November 6, 2006 claim for Ngeremdiu on behalf of the Ngarameketii and Rubekul Kldeu, testified that he previously filed claims of ownership over certain public lands, including Ngeremdiu, on behalf of KSPLA when he was the director. 

20. As repeatedly noted by this Court, the Land Court's findings of fact will be reversed only if the findings so lack evidentiary support in the record that no reasonable trier of fact could have reached the same conclusion." Dilubech Clan v. Ngeremlengui State Pub. Lands Auth., 9 ROP 162, 164 (2002). Here, the Land Court's determination that Ngeremdiu is public land under the control and authority of KSPLA is sufficiently supported by the record.

21. In the alternative, Ngarameketii and Rubekul Kldeu briefly contend that Ngeremdiu is a resource" within twelve miles of Koror State, and thus is rightly under the Klobak's authority pursuant to Article I, Section 2 of the Palau Constitution. To this end, they argue that the Article I, Section 2's reference to "State" is not a reference to the state government but instead to the traditional "beluu" administered by the council of chiefs in this case Beluu ra Oreor. However, Ngarameketii and Rubekul Kldeu provide no authority in support of this broad interpretation, and "it is not the Court's duty to interpret this sort of broad, sweeping argument, to conduct legal research for the parties, or to scour the record for any facts to which the argument might apply." See Idid Clan v. Demei, CA 09‑013, slip op. at n.4 (July 12, 2010). Regardless, the Land Court's finding that KSPLA holds title to Ngeremdiu as public land is supported by the record, thus undermining Ngarameketii and Rubekul Kldeu's argument on this point.

CONCLUSION

22. For the reasons stated above, the decision of the Land Court is AFFIRMED.

SO ORDERED, this 3rd day of February, 2011.

ARTHUR NGIRAKLSONG
Chief Justice

ALEXANDRA F. FOSTER
Associate Justice

RICHARD H. BENSON
Part-Time Associate Justice