Submerged lands appeal junked

The U.S. Court of Appeals for the Ninth Circuit has junked the request of the CNMI government for a full-panel rehearing on its dispute with the federal government over 264,000-square miles of submerged lands in the Northern Marianas, leaving the Commonwealth with a slim chance in obtaining judicial relief favoring its claim of ownership.

Elevating the matter of ownership before the U.S. Supreme Court remains the option left for the CNMI to assert its ownership of the submerged lands. But the High Court hears only a very small percentage of all the cases being elevated to it for appeal.

Assistant attorney general James Livingstone said he plans to appeal the case before the nation’s High Court, since Gov. Juan N. Babauta earlier instructed him to pursue any avenue of relief in connection with the CNMI government’s claim over the submerged lands.

“This [CA] ruling is obviously disappointing. But the CNMI has another opportunity to appeal to the U.S Supreme Court and hopefully it will fare better,” Livingstone said.

But Livingstone said he has yet to confer with the governor on the appellate court’s decision to find out whether Babauta would affirm his earlier position to exhaust all avenues regarding the submerged lands claim, including elevating the issue before the High Court.

The CNMI has 90 days within which to appeal the case before the Supreme Court. Livingstone said he received a copy of the Court of Appeals ruling dated July 8 last Friday. He said the appellate court order denying the request for an en banc rehearing did not specify any reason for the denial. An en banc proceeding would have submitted the issue for review before the full membership of the Ninth Circuit.

Should the Commonwealth finally decide to go ahead with the Supreme Court appeal, it has to file a petition within the prescribed period, asking the SC to hear the case. If the petition is granted, the SC may then proceed to hear the merits of the case. If the petition were denied, the CNMI government would be left with no more judicial option to claim ownership of submerged lands under its territorial waters.

The CNMI, however, still has extrajudicial means for possible relief, as negotiations between the Commonwealth and federal governments have been ongoing.

A task force composed of various CNMI government officials has earlier suggested the Covenant 902 negotiations as the proper forum to address the issue.

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 United States. Lt. Gov. Diego T. Benavente reportedly flew to Washington, D.C. for the 902 negotiations, which could include the submerged lands issue.

Sometime in January 2004, 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. The CNMI Attorney General’s Office then said that the judge’s ruling rested any jurisdictional confusion that might arise regarding law enforcement matters.

“Specifically, it ensures that the CNMI can fully enforce local laws applicable to fish, wildlife and coral reef protection, public health and safety, immigration, and criminal conduct within three nautical miles of its shores,” the AGO said. “In essence, the stay guarantees that all local enforcement efforts can continue unimpeded and without challenge.”

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.

Notwithstanding out-of-court negotiations, judicial proceedings continued. The CNMI government appealed the trial court decision before the Ninth Circuit, which upheld the federal government’s sovereignty over the Commonwealth and the former’s claim over submerged lands. The CNMI then petitioned the Ninth Circuit for an en banc rehearing, which was also denied.

In filing the petition for rehearing, Livingstone said that there have been conflicting judicial opinions regarding interpretation of ambiguities in the Covenant, including that on submerged lands ownership. He noted that a prior decision by the Ninth Circuit mandated that ambiguities should be resolved in favor of indigenous people and against the United States.

Livingstone said that the Ninth Circuit found an ambiguity in the Covenant regarding title to submerged lands. But instead of ruling pursuant to precedent, the Ninth Circuit effectively resolved the ambiguity against the CNMI and its people, he said.

Livingstone also noted that the United States served as the trustee of the Commonwealth people when they approved the Covenant. Inherent problems on dealings between trustees and beneficiaries should be interpreted against the trustee, he said.

Livingstone also cited the Covenant’s Section 801, which specifically ceded real property in the Northern Marianas from the Trust Territory government to the Commonwealth. Citing precedent rulings such as those issued during the trusteeship, Livingstone asserted that submerged lands have been considered as real property.

“There are almost no natural land-based resources within the Commonwealth. As a result, their identity is completely intertwined with the marine resources the United States now unjustly attempts to take. Indeed, this case involves who owns as much as 99.9-percent of the property in the Commonwealth,” Livingstone said.

Livingstone also noted that the cost of the benefits of a U.S. territory was costly for the Commonwealth, citing the U.S. military’s renewable 50-year lease of the Farallon de Mendinilla Island.