AG: Military can still acquire lands using eminent domain

The U.S. military can still acquire lands in the Commonwealth even if a bill is passed to prohibit the CNMI’s Department of Public Lands from entering into leases with the military, according to a written opinion by Attorney General Edward Manibusan.

Manibusan gave the opinion Tuesday evening during a public hearing on Senate Bill 19-42, which was introduced by Sen. Arnold Palacios (R-Saipan) to prohibit the lease of public land for live fire and bombing exercises. It would also require leases of public lands for other military activities to be approved by two-thirds majority of registered voters.

According to the Manibusan, SB 19-42 “adequately restrains the DPL from leasing public lands to private actors for military purposes, but the determination of whether it effectively prevents live fire and bombing exercises by the U.S. requires an analysis of other laws.”

He also said the existing lease between the U.S. and Commonwealth governments is governed by the Covenant and its accompanying Technical Agreement.

“Neither the Covenant nor the Technical Agreement prohibit the use of these lands for live fire or bombing exercises, nor do they allow the Commonwealth to make unilateral changes to the lease to insert those terms,” Manibusan said.

According to him, the CNMI Legislature can prohibit DPL from leasing out the land. “However, the federal government is not required to follow laws established by its political subdivisions. Therefore, this bill would only prevent the DPL from entering a prohibited lease. It would not restrain the U.S.”

So if DPL and U.S. government enter into a lease that violates this bill, the Commonwealth would only be able to sue its own department, the AG added.

Also, the measure does not restrict other methods of transferring land, such as purchase or land exchange, he pointed out.

Manibusan added that there are other methods of transferring land, and one is through the “eminent domain” process.

According to him, the Covenant allows the U.S. to use eminent domain to acquire property “to the same extent and in the same manner as it has and can exercise the power of eminent domain in a State of the Union.”

At the moment, the U.S. has other options. One is to negotiate with DPL to lease the land on terms that are acceptable to both parties, cancel the proposal, and file an eminent domain lawsuit and the U.S. District Court determine the cost and condition of use, the AG said.

In his recommendations, Manibusan said SB 19-42 cannot prevent the military from using the land it already leases.

The bill also cannot prevent the U.S. from taking the land it desires through eminent domain, which could be a far worse outcome for the Commonwealth than if the lands were leased, he added.

The bill as proposed also seeks to put military leases of public land to be submitted to the public for approval but Manibusan said this raises the question of who would be allowed to vote on this. “If leases for public lands are put to a vote, it is unlikely that the vote would be restricted to people of Northern Marianas descent,” he said, citing the Davis v. Commonwealth Election Commission decision.

‘Unnecessary’

In his own written comment, DPL Secretary Pete A. Tenorio said the bill is “unnecessary because the Legislature already has the obligation and duty to approve and disapprove certain leases per Article 11 of the Constitution.”

Tenorio said this section requires the Legislature’s approval in a joint session for all leases of public lands that the more than 5 hectares.

Tenorio said with or without SB 19-42, the Constitution still requires the Legislature to first approve it for it to take effect.

The DPL chief further said one problem he sees is that “we don’t know what the U.S. is willing to pay,” and that “we would never know what is being offered unless discussion are conducted aimed at establishing some kind of fair market value for public lands that the military would be interested in leasing, such as Pagan, in its entirety or portion of it.”

“The decision of whether to entertain the military’s request to lease public lands on Pagan rests with you as the representatives of the people and the governor, as head of our government,” Tenorio, in his letter, said.