GI MALALA and PULU TALALOTU
(for the Mauga family and Gi family), Plaintiffs,
AMERICAN SAMOA GOVERNMENT, Defendant,
Court of American Samoa
LT No. 10-01
 Filing a
Certificate of Irreconcilable Dispute upon the failure of dispute resolution
proceedings before the Secretary is a jurisdictional prerequisite to hearing a
controversy involving communal land.
action involves a dispute over communal land, but no Certificate of
Irreconcilable Dispute has been filed, the court may nonetheless issue
appropriate preliminary orders and stay proceedings, rather than dismissing the
action, until the certificate is filed.
 The “Mauga”
title is a paramount matai title of
American Samoa and the highest-ranking title in Pago Pago.
 A.S.C.A. § 43.1309(b) allows an application for an injunction with regard to
actions on communal land to be brought by two blood male matai members of the family, instead of the sa`o, if the sa`o
title is vacant.
ownership and easement rights extend to those uses that are incidental or
necessary to the reasonable use of the land.
of a thoroughfare is incidental or necessary to the reasonable use of such
 New sidewalk which was installed outside of the area previously used
by government for old road was determined to be within area reasonably required
for lateral support of the old road and therefore installation of such new
sidewalk was proper.
preliminary injunction is appropriate only when there is (a) a substantial likelihood that at trial
on the merits the applicant will prevail and obtain a permanent injunction, and
(b) great or irreparable injury will result to the applicant before a full and
final trial can be fairly held on the propriety of a permanent injunction.
Associate Justice, and LOGOAI, Chief Associate Judge.
Counsel For Plaintiffs,
Marshall Ashley and Jeffrey Waller
For Defendant, Fiti A. Sunia, Acting Attorney
General, and Tala Uiagalelei, Assistant Attorney General
OPINION AND ORDER
Plaintiffs Gi Malala (“Gi”) and Pulu Talalotu (“Pulu”) seek injunctive
relief against defendant American Samoa Government (“ASG”). The relief was initially aimed at preventing
construction of a sidewalk between the main public road and a rock wall in the
Village of Pago Pago. The requested
relief was modified to removal of the sidewalk by the time of hearing on the
application of Gi and Pulu for a preliminary injunction.
Pursuant to T.C.R.C.P. 65(a)(2), the Court consolidated the hearing on
August 28 and September 4, 2001, on the application by Gi and Pulu for a
preliminary injunction with the trial on the merits. Gi, Pulu, and counsel were present on both
[1-2] This controversy involves communal
land of the Mauga and Gi families and has not yet been mediated by the
Secretary of Samoan Affairs. Filing a
Certificate of Irreconcilable Dispute upon the failure of dispute resolution
proceedings before the Secretary is a jurisdictional prerequisite to proceeding
with this action. See A.S.C.A. § 43.0302(a); Meredith v. Koko, 28 A.S.R.2d
149, 150 (Land & Titles Div. 1996).
However, the Court can issue appropriate preliminary orders and stay
further proceedings, rather than dismiss the action, until the Certificate is
filed. See A.S.C.A. § 43.0303; Moeigogi v. Faleafine, 5 A.S.R.2d
131, 133 (Land & Titles Div. 1987).
Gi and Pulu requested, and the court issued, a temporary restraining
order to stop installation of the sidewalk temporarily. The order was served too late to prevent the
work. However, ASG installed the sidewalk knowing the unresolved objections
that Gi and Pulu had to it. This
circumstance provides sufficient cause to consider the substantive need for a
The boundary of the land in question fronts approximately 300 feet along
the public road through Pago Pago. The
side of the land towards the Village of Satala is the Mauga family’s communal
land, explicitly named “Gagamoe.” The
side towards the head of Pago Pago Bay is the Gi family’s communal land,
explicitly named “Legati.” However, the
name “Gagamoe” is a commonly used reference to both lands, and we will use the
name in this sense below.
[3-4] The “Mauga” title is currently
vacant. It is a paramount matai title of American Samoa and the
highest-ranking title in Pago Pago. The
“Gi” and “Pulu” titles are under the auspices of the “Mauga” title, and Gi and
Pulu are among the matai titleholders
who are responsible for the Mauga family’s affairs during the vacancy in the
title. “Gagamoe” is sacred land of the
Mauga family. An ancient rock wall is
situated inland from the rock wall next to the sidewalk. The ancient rock wall appears to be
associated with the traditional site of the Mauga guesthouse. Former holders of the Mauga title are buried
not far from the guesthouse site. According to the evidence, the Cession of
Tutuila and Aunu`u, formalizing the relationship of American Samoa with the
United States on April 17, 1900, was signed on “Gagamoe.” Gi and Pulu considered the installation of
the sidewalk to be disrespectful of the dignity of the “Mauga” title and thus
decided to bring this action to correct ASG’s affront. Given the vacant “Mauga” title, they have
standing to sue under A.S.C.A. § 43.1309(b).
Both the new paved public sidewalks and public road are integral parts of
the road project through Pago Pago that was recently undertaken and is
essentially completed. Along “Gagamoe,”
the new road lies in large part over the bed of the old road that was in
existence well in excess of 30 years.
The new road is wider than the old road, but most of the expansion is
seaward, on the side opposite “Gagamoe.”
Pedestrians could previously walk along unpaved areas immediately
adjacent to both sides of the old road. Now paved sidewalks exist on both sides
of the new road and extend in both directions well beyond “Gagamoe.” Thus, the safety of the road system in Pago
Pago has been enhanced for both vehicles and pedestrians.
At the Gi family’s end, the sidewalk straddles the bed of the old road
and is approximately four feet from the rock wall. The sidewalk gradually strays further from
the old roadbed. It is almost, if not
entirely, off the roadbed at the Mauga family’s end, but there it is
approximately 10 feet from the rock wall. The best estimate is that approximately 300
square feet of the sidewalk is off the old roadbed and on previously unpaved
The precise means of ASG’s acquisition of the bed of the old road is not
entirely clear from the evidence. To the
extent that the old road, followed the same path taken by the public road that
was in place in 1900, ASG acquired title to the land by condemnation. See
A.S.C.A. § 37.2050. Over time, the old
road that was in place when the present renovation was initiated may have moved
away from the 1900 road in some areas throughout Pago Pago. However, even if this is true, the witnesses
testifying at the hearing in this action gave us the impression that the owners
of the land affected by any changes in the roadway throughout the years
dedicated their land to this purpose. In
any event, given the length of time the public has used the old road as it
existed when the present road project began, at the very least ASG acquired an
easement in the roadbed. See Warnack
v. Coneen Family Trust, 879 P.2d 715, 723 (Mont. 1994); Sese v.
Leota, 9 A.S.R.2d 25, 33 (Land & Titles Div. 1988); 25 Am. Jur. 2d Easements and Licenses § 56 (1995); see also
Swift v. Kniffen, 706 P.2d 296, 302 (Alaska 1985) (affirmative permission,
not mere acquiescence, required to refute prescriptive easement). Based on the evidence at hand, it is
uncontroverted that the old road in existence immediately before the present
road rehabilitation project was and remains part of the public domain by title
or easement. We therefore find that ASG rightfully installed the portion of the
sidewalk over the old roadbed adjacent to “Gagamoe.”
[5-7] Public roads are not, however,
totally defined by the traveled portion the road. Virtually all paved roads have an engineering
requirement of lateral support to maintain the paved portion of the road. Land ownership and easement rights extend to
those uses that are incidental or necessary to the reasonable use of the
land—this includes maintenance of thoroughfares. See
Le`i v. Olo, 25 A.S.R.2d
33, 36-37 (App. Div. 1993); Pasadena v. California-Michigan Land & Water
Co., 110 P.2d 983, 986 (Cal. 1941);
25 Am. Jur. 2d Easements
and Licenses § 83 (1995). We
find no basis to except the road at issue.
The evidence does not establish the exact extent of adjacent land that
was needed for lateral support of the old road.
However, the area of the sidewalk outside of the old roadbed is well
within the area reasonably required for this purpose. We therefore also find
that ASG rightfully installed the portion the sidewalk outside of the old
roadbed adjacent to “Gagamoe.”
 A preliminary injunction is
appropriate only when there is (a) a substantial
likelihood that at trial on the merits the applicant will prevail and obtain a
permanent injunction, and (b) great or irreparable injury will result to the
applicant before a full and final trial can be fairly held on the propriety of
a permanent injunction. A.S.C.A. §
43.1301(j). Gi and Pulu have established
neither of these criteria and, therefore, are not entitled to a preliminary
injunction. We further conclude that ASG
is entitled to dismissal of this action on both the jurisdictional/procedural
ground of the lack of a Certificate of Irreconcilable Dispute issued by the
Secretary of Samoan Affairs and the substantive ground of ASG’s property
interests in the land upon which the new sidewalk is situated.
Although we will dismiss this action, we will add that we do not condone
the way ASG has handled this dispute. Gi
and Pulu acted in this matter on the basis of their obligations to protect the
interests of the Mauga family while the “Mauga” title is vacant and on their
good-faith belief that ASG was wrongfully taking the Mauga family’s communal
land. While ASG met with Pago Pago
chiefs on several occasions to discuss the new road project and made some
efforts to meet concerns about the project, it is evident that the prevailing
attitude of ASG’s representatives was to go forward with the project, using
whatever land was necessary for the roadway and sidewalks, and resolve the
authority issue later. This approach is
impermissible. See Am. Samoa Const. art. I, § 2; A.S.C.A. §§ 37.2001, 37.2010; Am. Samoa
Gov’t v. Isumu, 4 A.S.R. 141, 143 (Land & Titles Div. 1974); see also U.S. Const. amend. V & amend. XIV, §
1. It is also disrespectful and is all
too prevalent in ASG’s land dealings with the owners of land standing in the
way of a project. Gi and Pulu would likely
have been satisfied if ASG’s representatives had shown more sensitive insight,
concern, and respect for the customs and traditions of the Mauga family.
In any event,
ASG is still entitled to dismissal of this and accordingly, it is dismissed.
It is so