Submerged lands appeal junked

The CNMI has lost its appeal against a U.S. District Court decision declaring that all submerged lands in the Northern Marianas belong to the United States.

The 9th Circuit Court of Appeals ruled Friday to affirm a Saipan federal court’s decision upholding the sovereignty of the United States over some 264,000-sqm of submerged lands in the Northern Marianas.

The appellate court ruled that U.S. sovereignty over the CNMI’s submerged lands is paramount and that the Covenant that established a special political union between the Commonwealth and the federal government supported the latter’s control over those lands.

It said that the CNMI lost its title to the submerged land when it agreed to U.S. sovereignty, a similar decision in the claims of other territorial jurisdictions such as California, Texas, Louisiana and Maine.

The appellate court said that, while it recognizes the importance of the submerged lands to the CNMI people’s culture, history, and future, the “paramountcy doctrine” that asserts U.S. sovereignty over the islands prevail.

Public information officer Peter Cllaghan pointed out, though, that the 9th Circuit decision was decided by a three-judge panel, leaving the CNMI two more chances to appeal the decision: before the entire 9th Circuit Court and, finally, before the U.S. Supreme Court.

“That’s what we’re going to do,” Callaghan said.

At the same time, he said the local government would bring the issue to the U.S. Congress to ensure that the CNMI gets certain rights to submerged lands.

“We’re going to work behind the scene with the U.S. Congress to get a law passed that includes the CNMI in the Submerged Lands Act, which grants some states and territories rights out to different mileages,” he said.

Earlier, CNMI government lawyers conceded that all states and jurisdictions who brought similar cases to court had lost but they said the CNMI situation is different because of the existence of the 1976 Covenant.

In the 18-page opinion, however, which was penned by Judge Robert R. Beezer, the appellate court junked the CNMI government’s appeal and also declared two CNMI laws asserting ownership of the submerged lands—the CNMI’s Marine Sovereignty Act of 1980 and the Submerged Lands Act—as unenforceable.

“Because the United States did not expressly cede its paramount rights to the submerged lands at issue here, summary judgment in favor of the United States was proper,” Beezer said.

Citing precedent cases, it said that submerged lands and the marginal sea are a national concern, not a state concern. “National interests, national responsibilities, national concerns are involved. The problems of commerce, national defense, relations with other powers, war and peace focus there. National rights must therefore be paramount in that area.”

The circuit—with Beezer, Susan P. Graber and Jay S. Bybee sitting as judges—rejected the CNMI government’s argument that the unique relationship between the United States and the Commonwealth makes the paramountcy doctrine inapplicable.

The circuit also cited provisions of the Covenant, which places powers and obligations on national concern to the United States. It said the Covenant provided the United States with “complete responsibility for and authority with respect to matters relating to foreign affairs and defense.”

It also rejected the CNMI government’s argument that the ownership of real property on the islands devolved to it upon the termination of the trusteeship, saying that it is hesitant to ascribe an implicit intent on the part of the federal government to cede paramountcy rights over submerged lands.

“The fact that the United States may provide the submerged lands to the CNMI does not mean that it has done so here. Neither the text of the Covenant nor the actions taken by the parties during and after the negotiations lead to a conclusion that such a transaction took place,” the ruling stated.

The ruling came about despite efforts to amicably settle the dispute, with CNMI representatives earlier negotiating with their federal counterpart. Local officials and private groups have formed a task force that asked the Babauta administration to include the dispute in the 902 negotiations.

Section 902 of the Covenant provides that the CNMI Governor or the U.S. President may initiate negotiations on issues affecting the relationship between the Commonwealth and the U.S.

The task force, chaired by Rota mayor Benjamin Manglona, consists of Saipan mayor Juan Borja Tudela, Northern Islands Mayor Valentin Taisakan, Tinian and Aguigan Mayor Francisco Borja, attorney general Pamela Brown, Lands and Natural Resources secretary Richard Seman, Saipan Chamber of Commerce president Alex Sablan, among others.

Lawmakers—including Sen. Henry H. San Nicolas and Reps. Claudio Norita and Arnold Palacios—form part of the task force. The Coastal Resources Management Office is also member to the task force.

Sometime in January last year, Saipan’s federal court Chief Judge Alex R. Munson temporarily stayed his ruling on the submerged lands case pursuant to an agreement between CNMI and federal attorneys. CNMI and federal attorneys agreed, however, that the CNMI could not sell or lease out the submerged lands and alienate any interest in oil, gas and minerals.

According to the AGO, negotiations between federal and local authorities resulted in the temporary stay. U.S. Interior Deputy Assistant Secretary David Cohen and the U.S. Department of Justice had talks with the CNMI Governor’s Office and the AGO. (With Liberty Dones)