Nett business license holders arrested in separate cases for trespass and other charges


By Bill Jaynes
The Kaselehlie Press
November 12, 2016
Kolonia, Pohnpei—Over the last several weeks, several arrests have been made that center on use of land issues. All of the arrests involved people who had business licenses from the Nett District Government.
When we tried to contact the Nett District Administrator for comment on the issuance of business licenses for businesses operating on State or potentially Kolonia Town Government (KTG) land, the employee who answered the phone promptly hung up. The phone remained busy and we were unable to get a comment from the Nett District Administrator.
Over a month ago three women were arrested on the Dekehtik causeway by Pohnpei State Police officers. Their businesses were closed and they were told that they would be re-arrested if they re- entered the structures they had built on the causeway. The women returned and re-opened their businesses and were re-arrested on the following week.

Attorney Marstella Jack said that she is defending the women against charges of trespassing and obstruction of justice. She said that all three of the women had Nett Business Licenses.
According to Nixon Aldan, Kolonia Town Prosecutor, earlier this week, a man was arrested by Kolonia Town Police for operating a business in Kolonia Town without a Kolonia Town business license and for trespass. That man also had a business license issued by Nett District Government. Quite some time ago he built a small store on the grounds of what KTG claimed is the Pohnpei Public Market, which belongs to Kolonia.
The Kolonia Town Court convicted him on November 2 and ordered him to pay a fine of $30 or face 30 days in jail for operating a business without a license. For trespass he also was ordered to “remove, demolish and vacate” the Kolonia Town property within 48 hours. That time period was set to expire on November 4 at 10:30 in the morning.
Aldan said that at 9:30 on that morning the KTG representatives were summoned to Pohnpei State Court for a hearing on a Temporary Restraining Order filed by the defendant. The motion for the TRO was based essentially on the fact that KTG had not performed a survey to determine whether the business was on the grounds of the Pohnpei Public Market or on the Pohnpei State easement.
Marstella Jack is also representing the business owner on the KTG matter. She argued in her application for TRO at the Pohnpei State Court that if the business license was on Pohnpei land then Kolonia Town cannot convict for trespass and order the building removed. She also predicted that “there is the high possibility that this removal could incite physical altercations or verbal confrontations between the Nett people doing business around the Public Market area and the Kolonia Town Police based on the outstanding controversial boundary dispute matter pending before the Pohnpei Appellate Court (Appeal No. 7-2014; PCA No. 16-2013),” the application for TRO said.
A former Pohnpei State Attorney General testified at Kolonia Town Court that the State had in fact issued an eviction notice to the business owner in 2014 at the same time they issued eviction notices to businesses and residents occupying the area in and around the Pohnpei Public Market. He testified that he didn’t know if the building was actually inside the Public Market or outside of it because a survey hadn’t been done.
The court granted the TRO and ordered Public Lands to do a survey on the area.
Later that morning, KTG Court Justice Gustin Harris issued a warrant of arrest for the business owner.
KTG Police were not able to execute the arrest warrant on Sunday November 6, “due to strong resistance” by a high ranking Pohnpei State Police officer who is the defendant’s brother, Aldan claimed.
On the afternoon of November 7, Kolonia Town Police went to the property to arrest the business owner. Nett Police responded based on a purported executive order requiring their police to protect the business owner. Pohnpei State Police also arrived on the scene and a war of words began as Jack had predicted in her application for TRO.
Kolonia Police did make the arrest and placed the business owner in custody.
On Wednesday, November 9 the defendant was brought before Judge Harris for a contempt hearing. Harris sentenced him to 90 days incarceration.
That afternoon KTG was again summoned to the Pohnpei State Court for a hearing on a writ of Habeas Corpus, which can be issued if a person is unlawfully restrained. The application for the writ claimed that the just harbors a “hatred toward the” business owner “because of the ongoing controversial boundary dispute between Kolonia Town and Nett District on who owns the waterfront area.” It said that the business owner believes that his arrest was made under false pretenses.
The application also argued that the arrest warrant should not have been issued because the defendant had filed an appeal at the Kolonia court which should have stayed any action on demolishment of the disputed business.
The Court issued the writ and released the business owner.
On Thursday of this week, the Pohnpei State Supreme Court held several people in KTG in contempt of court for violating the TRO by issuing the arrest warrant and then executing it. The Court did not fine them or otherwise sentence them.
Aldan said that he didn’t agree with that ruling because the TRO was to keep KTG from demolishing the structure which they never intended to do. The KTG court required the defendant to do so rather than the KTG government.
However, the arrest warrant was issued because the business owner failed to demolish the structure so the court ruled contempt.
We spoke with Director Nelson Pelep who told us that the surveyors were at that time performing the survey that was called upon and the results had not yet come in. He indicated that he would not let us know the results of that survey.
On Friday, Martin Jano who represents KTG claimed that the survey had been completed and verified that the business in question was entirely on the property of the Pohnpei Public Market. He also claimed that it wouldn’t have mattered if the survey had been on the property of Pohnpei State. It is still in Kolonia Town and should have had a Kolonia Town business license.
We could not verify either of those claims before press time.
Jack’s closing argument at Kolonia Town Court argued that KTG could not convict for trespass if the business was on the Pohnpei State easement. That would be a matter for Pohnpei State to decide and KTG would have no jurisdiction in the matter. She argued that KTG also would not have had the right to issue a business license for a business to operate on land that is not under their control. It could not authorize a person to trespass on State land by the issuance of a business license. She gave as example the arrest of Nett business license holders by Pohnpei State for trespass on the causeway, which is a State easement.
She raised the question in her closing argument as to whether or not the issuance of a business license by Kolonia Town would have meant permission to trespass on KTG’s land if the business is inside of the Public Market. “If it is located within the Public Market area, then he (the business owner arrested this week) is indeed trespassing as that area has been leased to Kolonia Town Government,” she wrote.
Currently the State Court issued TRO is still in effect barri