July 17, 2012 Pohnpei, FSM-If a hearing scheduled for July 25 doesn't resolve a long standing land dispute, Pohnpei is on the hook to reimburse $123,683.19 to the U.S. Department of the Interior (DOI). If the dispute is not resolved during the hearing the reimbursement check must be dated and sent to the Office of Insular Affairs (OIA) no later than the next day.
Pohnpei spent money provided by a Compact infrastructure sector grant to conduct preliminary engineering of public land just south of the hospital it designated for the construction of a Pohnpei Primary Health Care facility. If built the facility will house an extension of the Pohnpei State Hospital dedicated to preventative, rather than the curative medicine the hospital already practices.
Without being specific FSM officials would say only that the project will cost "a few" million dollars.
Meanwhile Robert Hadley built the "4J" store and sakau market on the public land designated for the project and legal battles ensued. The health care project has been stalled since then and because Pohnpei has been unable to get the land problem resolved DOI wants its money back.
Trial Counselor Vince Kallop who represents Mr. Hadley said today that in the 1980's his client applied for permission to homestead on the land in question but never received an answer from the Board of Trustees after repeated attempts. He claims that in 2003 Hadley built a home on the land and later built the business.
Kallop continues to argue that the Nanmwahrki of Nett gave Hadley the land.
The AG's office said that even if that were the case the transaction was never made legal.
Kallop said that in 2006, a geographic survey was conducted on the land around the house but that no one told his client what was going on. "There was no due process," Kallop claims.
Kallop argued in court that in July of 2010 the Office of the Pohnpei State Attorney General signed off on Mr. Hadley's application to cut the pavement so that he could get utilities services to the property. Kallop said that the application requires a plat drawing of the property; a cadastral map, and that the AG's office should have known when it signed the application that it was signing off to allow utilities to be installed on land that belonged to Pohnpei State if that was what they believed. He argues that the AG's signature on the application was a tacit admission that Hadley had a right to be on the property.
Kallop said that instead, two months after the AG's office signed the application for his client to cut the pavement the State filed a suit to evict him from the land on which he'd built his business.
The end result of the court proceeding on the eviction was that the State Supreme Court Justice Nickontro Johnny ruled in favor of Pohnpei State, ruling that the State had the right to evict Mr. Hadley from the property.
Hadley had lost but his counselor battled on and filed a notice of appeal. While waiting for the appeal brief to be filed, the court issued a stay on the eviction order. Because of the stay, Pohnpei State could not proceed with its plan to build the Primary Health Care facility.
The Clerk of the court provided notice of the certification of the record on October 3, 2011. From that day, Kallop had 60 days to file his brief in support of his appeal. But he didn't make that deadline. Early December 2011 passed and Hadley's counselor did not file an appeal brief.
As soon as the deadline passed, Assistant Attorney General Ira Shiflett filed a motion to deny the appeal and to lift the stay that prevented Pohnpei State from evicting Mr. Hadley from the property so that the State could proceed with the Primary Health Care project.
Shifflett filed six other motions requesting the court to lift the stay, one motion each month; each more tersely worded than the one before.
In June of 2012, six months after the deadline had passed, Kallop filed the appeal brief on behalf of his client.
Mr. Kallop claimed that the Attorney General's office had filed all of his motions for dismissal of the appeal in the wrong court saying they should have been filed in the court of appeals. But Pohnpei State doesn't have a court of appeals. If appeals are granted they are heard by a panel of judges.
The appeal brief was short and essentially presented the same arguments that Kallop presented in the original court hearing.
Associate Justice Nickontro Johnny has scheduled a hearing in his chambers on July 25 to consider the matter of whether or not the appeal brief filed that was filed six months after the deadline should be accepted or dismissed.
Shiflett is unwilling to make any prediction about what the outcome of that hearing could be. "For all I know this whole thing could still be several months from resolution," he said, and shrugged his shoulders.
Meanwhile, in June, the Pohnpei State Attorney General's office filed an additional claim against Mr. Hadley requesting the court to award Pohnpei State a reimbursement of the money it will lose if they are unable to proceed with the Primary Medical Care facility.
Kallop filed a motion to dismiss the new claim. The court denied that motion and scheduled a preliminary hearing on that separate matter for the morning of July 18, 2012.