Those pesky legalities…

At the Department of the Interior’s business opportunities conference in Los Angeles, Governor Babauta told an AP reporter that he had struck a multi-million dollar deal with Azmar founder Ken Moore to mine Pagan.

I would like to remind the Governor and Azmar’s other stanch supporters, senators Luis Crisostimo, Joseph Mendiola and Joaquin Adriano, that regardless of what deal was made in Los Angeles, they are all bound by the limits of their authority. They don’t get to simply invent a “certificate” that would authorize Azmar to strip-mine Pagan, thereby bypassing Coastal Resources Management, the Historic Preservation Office, the Environmental Protection Agency, the Division of Environmental Quality, the Department of Land and Natural Resources, Fish and Wildlife, etc., just because they want to. Nor do they get to circumvent other aspects of the law, such as Sec. 9 of Public Law 3-39 and 2 CMC 4831 that prohibits MPLA from issuing a permit when the HPO has notified MPLA of its concern that the issuance of a permit to Azmar may pose a hazard to the preservation of historic artifacts. This law was verified by the Office of the Attorney General.

Hopefully Azmar is not leading potential pozzolan buyers to believe that such a certificate would give them the rights to Pagan’s pozzolan. Last year, Azmar falsely represented that they were in possession of a mining permit from MPLA to another customer, Texas-based Consolidated American Energy Resources Inc. CAER canceled their sales agreement with Azmar when they learned of the deception.

It is easy for Ken Moore and his supporters to ignore calls for full disclosure and community participation, but it is quite another to circumvent the law in regards to these agencies, any one of which can block mining. There is no way around it—any company that wants to mine Pagan must get the necessary permits and permissions from all these agencies before work can begin. CRM and HPO have already reminded MPLA and the community of their jurisdictions in the matter.

HPO’s concerns are well-founded. Despite his rhetoric, Ken Moore’s actions demonstrate a consistent and blatant disregard for the law when it interferes with his goal of collecting rare and valuable artifacts. His removal of a WWII machine gun from an historic site in 1999 is already well-known (although Moore insists on characterizing the confiscation by then HPO Director Joseph Guerrero as a generous “donation”). But as disturbing and illegal as this incident was, what followed is much more alarming.

After the confiscation of the machine gun and the accompanying heated discussion between Ken Moore and HPO, Moore could no longer claim ignorance of the fact that to remove artifacts from the CNMI is illegal. Yet well after the incident, Moore created Azmar International, and his new company included the following now famous verbiage in their contract for prospective employees: “Section 9: HISTORIC ARTIFACTS AND ANTIQUITIES—Any and all historic artifacts or antiquities located, retrieved, or the location of which become known, are the sole property of Employer. Employee shall not, at any time or in any manner, either directly or indirectly, divulge, disclose or communicate to any person, firm or corporation, in any manner whatsoever, any information concerning any historical artifacts or antiquities owned by Employer.”

Moreover, “Section 17: BREACH” states “In the event of a breach of the terms and/or provisions 8, 9, 10 or 11, Employer shall be entitled to liquidated damages in the amount of $200,000.00.”

Not surprisingly, Azmar spokesman Don Farrell told the Saipan Tribune that the document was forged. But on the following day, Azmar attorney Jeffrey Finley confirmed in a letter to Marianas Variety that the employment contract was indeed authored by Azmar. In Ken Moore-style rhetoric, Finley then went on to make a preposterous attempt to characterize the artifacts clause as “fairly standard language in contracts related to explorations [that] is not unlike the accepted language that every corporation uses in regard to discoveries that occur during the course of employment.”

Nice try, Finley, but the CNMI public does know how to read, and Section 9 of the employment contract reads like an indictment. And, although the legalese of public law is a bit more challenging, I can assure you that there is no shortage of CNMI attorneys and legislators who have no trouble reading and understanding the CNMI Constitution and the public laws that define how public lands are to be managed. So the “certificate” idea is not going to fly either.

As for the idea of giving access to Pagan to a company with a record of going after historic artifacts, let’s hope our government is not that foolish. Might as well give a child the keys to the candy store!

Peter J. Pangelinan Perez
for PaganWatch