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Kerkur Clan v Koror State Public Lands Authority [2017] PWSC 28; 2017 Palau 36 (30 November 2017)

Cite as: 2017 Palau 36
Civil Appeal No. 16-016
Appeal from LC/B Nos. 09-137 through 09-154, 16-055

Decided: November 30, 2017

Counsel for Appellants

Kerkur Clan, represented by Dirrakerkur Nona Luii............................ Vameline S

Ibuuch Clan, represepresented by Mlechei Modesta Towai Tulob................ Moses Uludong

Ibuuch Clan, represented by Sonny Olu Tulob...................................... Moses Uludong

Estate of Ngeribongel Rechuld, represented by Nancy Wong............... Moses Uludong

Ngetchedong Clan, Represented by Dingelius Eugene Uehara............. Pro Se

Ngetchedong Clan, Represented by Dirradelbochel Benarda Ushibata. Pro Se

Ibuuch Clan, represented by Ngiraibuuch Paul Reklai.......................... Moses Uludong

Kerkur Clan, represented by Basilia Adelbai......................................... Moses Uludong

Counsel for Appellee

Koror State Public Lands Authority....................................................... Kassie McEntire

BEFORE: ARTHUR NGIRAKLSONG, Chief Justice
R. BARRIE MICHELSEN, Associate Justice
ALEXANDRO C. CASTRO, Associate Justice

Appeal from the Land Court, the Honorable Salvador Ingereklii, Associate Judge, presiding.

OPINION

PER CURIAM:

[ 1] appeal arises out of a df a dispute over ownership of land in Medalaii Hamlet, Koror State. The Land Court found that the land was public and that no private claimant had met their burden to pl on a return of public lanc lands claim.

NOTE ABOUT PARTIES TO THIS APPEAL

[ 2] Kerkur Cas represented ated at the Land Court hearing by Nona Luii and Ricardo Ngirkelau. The Clan's attorney was, and is, Vameline Singeo. The Clan filed an appeal andmely brief.
[ 3] Notwanding the above bove bove facts, Basilia Adelbai later filed a notice of appeal purportedly on behalf of Kerkur Clan, even though she was not listed as a representative of the Clan during the hearing, nor, for that matter, was she a witness at the hearing.
[ 4] Individuals wh not reprerepresentatives of a Clan or Lineage at the hearing below may not self-appoint themselves as representatives on appeal and file a brief^[1]. [ 5] Adelbai's ai's appealher therefore dismissed as an appeal filed by a non-party to the proceedings below.
[ 6] For the Ibuuch Clan, the chief title holder, Paul Reklai, was the primary witness at the Land Court hearing. Other witnesses were Kodep Dlutaoch and Christina Joseph. The Land Court caption of the case states the "representatives" of the Clan as Hilaria Lakobong, Mutero Uehara, and Baustina Uehara.

[ 7] Paul Reklai, Hilaria Lakobong, and Susan Ngirausui^[2] filed an appeal on behalf of Ibuuch Clan, but did not file a brief. On the same day, and at ame time, Modesta Towai Tulob and Sonny Olu Tulob, also puro purporting to represent Ibuuch Clan, filed an appeal and later filed a brief. Neither of these persons were listed as representatives of the Clan below, and their names appear in this case for the first time in their notice of appeal. Because persons cannot substitute themselves as representatives of a Clan or Lineage and replace the representatives who appeared below, their brief is stricken and their appeal is dismissed.^[3]
[ 8] Consequently, the Appellants in this case are: Kerkur Clan, represented by Nona Luii and Ricardo Ngirkelau; Ibuuch Clan, represented by Hilaria Lakobong; the Estate of Ngeribongel Rechuld; and Ngetchedong Clan.
[҈9] Because Ibuuch Clan Clan and Ngetchedong Clan failed to file briefs, we need only address the appeals of Kerkur Clan and the Estate of Ngeribongel Rechuld. The appeals of Ibuuch Clan and Ngetchedong Clan are dismissed pursuant to ROP R. App. Pro. 31(c) for failure to file briefs.

BACKGROUND

[ 10] The lotissue are in Medn Medalaii Hamlet, Koror State, just east of the court complex along Ernguul Road. The lots are all public land. The Land Court ultimately fouat no private claimant had met their burden to establish alsh all of the elements of a return of public lands claim. The court accordingly determined that KSPLA owned the lots.

STANDARD OF REVIEW

[ 11] “view the Land Cond Court’s conclusions of law de novo and its findings of fact for clear error.” Kebekol v. KSPLA, 22 ROP 38, 40 (2015). &#The factual determinations of the lower court will be set aset aside only if they lack evidentiary support in the record such that no reasonable trier of fact could have reached the same conclusion. Where there are several plausible interpretations of the evidence, the Land Court’s choice between them shall be affirmed even if this Court might have arrived at a different result.” Eklbai Clan v. KSPLA, 22 ROP 139, 141 (2015) (quotation omitted).

DISCUSSION

I. Appellant Estate of Ngeribongel Rechuld

[ 12] The Estate of Nongel Reel Rechuld argued below that certain of the lots had been a mesei cultivated by Ngeribongel Rechuld before it wasn by the Japanese. The Land Court found that the Estate had not established “who owno owned the land at the time of such taking” and that “there was insufficient evidence to establish that Ngeribongel owned the claimed lots immediately before it became public land.”
[ 13] On appeal, ttate makes akes essentially identical arguments to Ibuuch Clan. The Estate argues that the Land Court erred in not delaying the hearing until it could secure counsel and erred in awarding lotKSPLA that the land authorithority had not claimed. These arguments fail for the reasons discussed above for Ibuuch Clan.
[ 14] The Estate’s onfo effort to address the Land Court’s evidentiary findings is to state in a single sentence that the lots “became public lands after the Japanese seized them from Ngeribongel Rechuld who had been cultivating the land.” The brief does not cite to any record evidence. Generously construed, this could be an argument that the Estate presented sufficient evidence to prevail. “Challenges regarding the sufficiency of evidence in Land Court proceedings are questions of fact, which we review for clear error.” Elsau Clan v. Peleliu SPLA, 20 ROP 87, 88 (2013). “Because of this high burden, challenges to the sufficiency of the evidence in Land Court proceedings are extraordinarily unsuccessful.” Id. (citation omitted). Without citing to record evidence supporting the Estate’s claim, or directly addressing the Land Court’s findings, the brief does not meet the high burden to show clear error, and this Court affirms the Land Court’s finding.

II. Appellant Kerkur Clan

[ 15] The laaimed by Kerkur rkur Clan is located across the M-dock road from the Koror court complex, bounded on the north by Ernguul Road and on the east by Ngerbeched RoaThe southern boundary is a surveyor’s line based on t on the mapped lots.) The hearing covered two large lots along Ernguul Road (Cadastral Lot Nos. B012-009 and 0036, “Lots 9 & 36”) where the Public Works and the Ministry of Education buildings are located. The hearing also covered a dozen or so smaller lots to the south.
[ 16] As explained belor the the purposes of Kerkur Clan’s appeal, the hearing area can be divided into two parts: (1) land known as Ngeritou/i>, which was part of “Claim 83”; and (2) everythine.

[ 17] DirrakeNona Luii testifestified that Kerkur Clan owned all of the lots before the Land Court. Similar to the witness for Ibuuch Clan, Luii testified the land was Kerkan’s share of land given by the Ibedul. Luii stated ated the land was taken by the Japanese, who paid only token compensation for the relocation of plants and houses. Luii and other clan witnesses testified that Kerkur Clan’s lands extended well beyond those before the Land Court, including down along Ernguul Road to Neco Plaza. The various claim forms and exhibits submitted by the clan included some that were relevant to the lots being heard, but many pertained on their face to lots outside the hearing area.
[ 18] The most relevant exhibits pertained to “Claim 83” which referred to proceedings before the Palau District Land Title Officer in 1955-56. In 1955, Ngirakerkur Adelbai submitted a claim for two tracts of landrred to as Ngeritouchel chel and Kerkur. The hearing documents include a sketch with length measurements for the perimeter of the claim along with area calculations. The documents do not, however, definitively fix the location of the tracts relative to a known geographic point—in other words, although the sizes of the tracts are well defined, it is not clear precisely where the tracts are located. In 1956, the hearing officer, D.W. LeGoullon, found thatgeritoeritouchel and Kerkur “were formerly the property of the Kerkur Clan.” “The land Ngeritouchel was taken by the Japanevy in 1915 [and] no evidence of any payment for the land cand can be found.” “The land Kerkur was taken by the Japanese Government in 1929. The Government paid the clan 1000 yen for moving houses off the land and for damages to plants and trees.” Despite these findings, the officer issued a Determination of Ownership to the Trust Territory Government.^[4]
[ 19] In ate 1980’s, vas, various representatives of Kerkur Clan, including Luii, filed return of public lands claims in the area. It does not appear, however, that any representative of the claumented these claims with Bith BLS at any point prior to the hearing. At some point prior to the Land Court hearing in 2016, a clan representative worked with a BLS employee to superimpose a rectangular(ish) orange box on the BLS Worksheet that covered some of the smaller southern lots. The orange box is labeled “Claim 83.”

B. The Land Court’s Decision

[ 20] After taring, the Land Land Court found that all of the lots were public land, “under complete control of the government since the 1950s.” The court noted1956 finding that Ngeritouchel and Kerkur had> had been previously owned by Kerkur Clan. The court then found that Kerkur Clan “failed to monument the lots it claims before the court.” “The area outlined in orange and designated as Claim 83 on Court Exhibit 1 [the BLS Worksheet] was superimposed there by [BLS] personnel as instructed by Ngirakerkur Debed Luii after he found out that the lot (Lot C32 B 17) he originally claimed for the clan was all mangrove.”^[5]
[ 21] The Land Couen analyzedlyzed the clan’s return of public lands claim. Cf., e.g., KSPLA v. Idid Clan, 22 ROP 21, 24 (2015) (a return of public lands claimant must “show that he o: (1) is a citizen who file filed a timely claim; (2) 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 which attained that status by a [wrongful] government taking”). The court first found that of the various 1988 claim forms introduced by Kerkur Clan, only one was timely and pertained to the lots at issue. This was Nona Luii’s December 27, 1988 claim on behalf of the clan to: “sel ngarngii a blil a Evence Beches eriou ra Public Works el nguu sel keburs el molmuut er tial komisteba er chelechal taem el mo nguu a shop ra Francis Toribiong e merael el mora keburs ra Ngermesekiu” [“The place where Evence Beches’ house is located below the Public Works including the mangrove all the way to the dump site today including Francis Toribiong’s shop all the way to the Mangroves at Ngermesekiu”].
[ 22] Turt found that this deis description did not cover several of the lots at issue, including the larger northern Lots 9 & 36 along Ernguul Road. The Court concluded that Luii’s testimhat Kerkur Clan owned lots lots outside the December 27, 1988 claim or the 1955 Claim 83 could noperly expand thed the clan’s claim at the hearing. See Idid Clan v. Demei, 17 ROP 221, 226 (2010). The court also noted that the 1950’s cl(including Claim 83) did not include the greater area Luii Luii claimed at the hearing, which indicated to the court that clan did not own the other lots. See Idid Clan v. Olngebang Lineage, 12 ROP 111, 115-16 (2005).
[ 23] The December 288 claim laim describes the boundaries of the clan’s land in fairly general terms, but may roughly correspond to the Nguchel area of Claim 83. (The Kerkur area of Claim 83 was across Ngerbeched Road Road, and so outside of the hearing area.) The court found that Kerkur Clan had not established that it owned land other that Ngeritouchel and also “failed to show wrongful taking” of any land outside of Ngeritouchel.
[ 24]Land Court found that Keat Kerkur Clan owned Ngeritouchel and that it had been wrongfully taken from them by the Japanese. (KSPLA also conceded this.) er, the court found “that Kerkur Clan failed to proveprove that the area outlined in orange and designated as Claim 83 on Court Exhibit 1 is the proper location of its claim under Claim 83.” Although Kerkur Clan had owned Ngeritouchel, the clan did not establish where Ngeritouchel was: the clan “failed to show its exact location.”

C. Kerkur Clan’s Appeal

[ 25] The claes two argumentsments. It first argues that it met its burden to establish the statutory requirements for a return of public lands and the Land Court erred in ng its claim because the clan failed to monument it. The sThe second argument is less clear, but generally challenges the court’s treatment of the superimposed “Claim 83” on the BLS Worksheet.
[ 26] The brief is not specific about what lots the clan is appealing. However, the brief does not undermine the trial court’s determinations for any land de of Ngeritouchel/Claim 83. Among other things, the Land Court found that thet the clan had not shown it had filed a timely claim to land outside that area, or, assuming it had, the clan had not shown that land was wrongfully taken from it. Kerkun has not provided any basi basis to reverse either of those findings. Accordingly, to the extent the clan is appealing the determinations for any lots outside of Ngeritouchel, this court affirms the Land Court.
[ 27] As to Ngeritouche, ti>, the clan is correct that a failure to monument, in and of itself, is not a standalone basis to deny a claim. BLS is requto coordinate mandatory monumentation sessions with all claimants prior to Land Court hearihearings. See 35 PNC §§ 1307, 1309. Statutory notice of monumentation must “clearly explain” “in both English and Palauan” “the date of monumentation, that attendance by claimants or their representatives is mandatory, and the penalties for failure to attend.” 35 PNC § 1309(c)(2). “A claimant who fails to personally attend or send an authorized representative to a scheduled monumentation may not contest the boundary determinations and monumentation resulting from the session.” 35 PNC § 1307(d). Kerkur Clan does not contend that BLS failed to provide notice, or that a clan representative attended; therefore, the clan “may not contest the boundary determinations and monumentation resulting from the session.” But this appears to be the extent of the statutory consequence. A claimant could still come to court and assert that they owned demarcated lots monumented by another claimant or established by BLS. Kerkur Clan is correct that it would be error for the Land Court to deny a claim solely on the basis that the claimant did not monument it.
[ 28] However, that is not what the Land Court did. The court did take issue with the clan’s failure to monument and follow BLS procedures. Some of turt’s language in the decision suggests that it might have denied the claim solely only on this basis—which might be error. But the Land Court’s core rationale is that the clan had simply failed to show the location of Ngeritouchel. In other words, the court found that the clan had not established if Ngeritouchel was wholly or partly within the hearing area, and, if so, where within the hearing area its boundaries are. Even if the Land Court’s statements about monumentation are erroneous, the court’s finding about being unable to fix the location of Ngeritouchel provides an independent basis to affirm.
[ 29] Given the foregoing, there are two separate problems with the clan’s arguments for reversal, one legal and one factual. The legal problem is that the clan is equating the Land Court’s finding that the clned Ngeritouchel witi>with a finding that the clan established ownership of public land being heard by the court. The Land Court was adjudicating ownership of land only within a designated hearing area. The clan’s burden was to show that it was the original owner of some demarcated portion of that land. Showing that it owned Ngeritouchel is only sufficient if it can establish that Ngeritouchel is a particular portion of the land at issue in the hearing. The factual problem is that the clan has not pointed to evidence that would establish that the location of Ngeritouchel is as shown by the superimposed orange “Claim 83” box on the Worksheet. As discussed below, the clan concedes that the orange box is not an accurate superimposition of Ngeritouchel. Thus the clan’s first argument fails.
[ 30] Kerkur Clan&#8217cond aond argument relates to the superimposition of the orange “Claim 83” box on the BLS Worksheet. The clan arguet the Land Court ordered this superimposition but then denied the clan’s claim becausecause they relied on the superimposition. The factual history of the superimposition is muddled.^[6] Assuming the superimposition shown on the BLS Worksheet was done pursuant to court order, the Land Court’s statement that “the Court cannot, and will not allow, claimants to superimpose [a] sketch of their alleged claims on preferred areas without monumenting the lots they claim” lends some support to the clan’s argument. Ultimately, however, the argument does not work. First, the Land Court order did not purport to excuse the clan, even assuming it could, from mandatory monumentation; the court noted that the superimposition would “add clarity to these proceedings.” Second, the clan is reading the Land Court’s “will not allow claimants to superimpose” language out of context. The Land Court’s bottom line finding was “that Kerkur Clan failed to prove that the area outlined in orange and designated as Claim 83 on [the Worksheet] is the proper location of its claim under Claim 83.” Stated differently, the court found that the clan did not show that the superimposition was accurate. Thus the clan’s second appellate argument also fails.

D. The Underlying Issue of Ownership of Ngeritouchel