High Court wants DOJ to respond to NMI petition on submerged lands

The United States Supreme Court wants the U.S. Department of Justice to file its response to the CNMI govern-ment’s petition that seeks to review and reverse a ruling of an appellate court that affirmed the federal government’s ownership of some 264,000-square miles of submerged lands in the Northern Marianas.

James Livingstone, civil division chief of the CNMI’s Attorney General’s Office, views this development positively, noting that the Supreme Court rarely grants petition for review.

“We’re pleased with the Supreme Court’s order,” Livingstone said. “Somebody in the court is interested in the petition.”

If that was not the case, Livingstone said the Supreme Court could just go ahead and deny the petition after the DOJ, on behalf of the federal government, waived its right to respond to the petition.

Despite the DOJ’s waiver, the High Court directed the Office of the Clerk to request for the federal government’s response to the petition. Supreme Court clerk William K. Suter informed U.S. Solicitor General Paul D. Clement about the court’s decision, giving the federal government until Dec. 19 to file its response to the CNMI’s petition.

“Although your office has waived the right to file a response to the petition for a writ of certiorari…the court nevertheless has directed this office to request that a response be filed,” Suter said in a Nov. 18, 2005 letter to the solicitor general.

Livingstone and assistant attorney general Kenneth Barden petitioned the High Court for a writ of certiorari, which would compel the U.S. Court of Appeals for the Ninth Circuit to certify the records of the case to the Supreme Court for the latter’s review of possible errors by the appellate court.

The Ninth Circuit issued its judgment against the CNMI government last Feb. 24. In its ruling, the Ninth Circuit rejected the CNMI’s appeal against a Saipan federal court order that declared ownership of the submerged lands in favor of the federal government.

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. Last July 8, the Ninth Circuit junked the CNMI’s petition for a full-panel rehearing on the case.

Livingstone and Barden told the Supreme Court that the Ninth Circuit committed error when it interpreted a provision of the Covenant in favor of the federal government, not against it. That provision provided that ownership of real property in the Northern Marianas would be transferred from the Trust Territory government to the Commonwealth. The CNMI attorneys contend that submerged lands are considered real property, supporting that contention with federal case law.

“Moreover, the trustee-beneficiary relationship [between the U.S. and the Northern Marianas] created another implication that the Ninth Circuit refused to consider, despite this court’s precedent. Under the common law regarding trusts, the United States had to make clear to the people of the Commonwealth that it would obtain title to 99.9-percent of the property interests of the Commonwealth under the Covenant,” the CNMI attorneys said.

“This was not made clear to the people of the Commonwealth at all in the Covenant or during the negotiations. As such, the purported transfer is void,” they said.

The attorneys also stressed the statement made by the late Cong. Phillip Burton, who was the principal sponsor of the joint resolution approving the Covenant for the United States government. They quoted the lawmaker as saying: “All possible ambiguities should be resolved in favor of and to the benefit of the people and government of the Northern Mariana Islands.”

They also said that, when the federal government leased Farallon de Mendinilla Island and portions of Tinian from the CNMI, the leases included the waters immediately adjacent to those islands. They said the lease agreements showed that the federal government had recognized the CNMI’s ownership of submerged lands; otherwise, the leases would not have included the waters immediately adjacent to those islands.

The CNMI attorneys said the Ninth Circuit committed error when it did not consider the trustee-beneficiary relationship between the federal and CNMI governments.

“If the Ninth Circuit’s decision is not changed, a tragedy will result. The people of the Commonwealth will be divested not only of almost all their property, but also their cultural identity,” they said. “There are almost no natural land-based resources within the Commonwealth and there is a long history of dependence on the ocean resources in the history of this island community.”
Taking the matter to the Supreme Court has remained the CNMI government’s only judicial option after the Ninth Circuit denied its appeal and request for a full-panel rehearing. 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.