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‘MPLA refund demand to CUC is unlawful’
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Posted on Jan 11 2006
The Marianas Public Lands Authority’s demand that the Commonwealth Utilities Corp. refund MPLA’s past power and water payments in exchange for public land is unlawful, the Attorney General’s Office said.
Assistant attorney general Alan J. Barak issued the legal opinion in view of MPLA’s attempt to secure a refund of four years’ paid utility bills.
CUC’s payment is being set as a precondition to transferring five land parcels which CUC’s partner—the CNMI Water Task Force—needs in order to site water tanks.
“MPLA’s demand violates the board’s strict fiduciary duty to people of Northern Marianas descent because it stops their receipt of a necessity, the safe, affordable 24/7 drinking water that the WTF is trying to provide them by siting the planned storage tanks on public land, and because it would simply increase [MPLA’s] operating funds,” Barak said.
He explained that the amount MPLA was trying to recover from CUC would have been paid from the board’s operating funds. “These are the funds that the board can specifically withhold from transfer to the [Marianas Public Land Trust], the funds that are designated for payment of board operating expenses.”
Thus, reimbursing MPLA for its past utility bill payment would effectively provide MPLA with a profit, Barak noted.
The assistant attorney general also said that MPLA does not have the power to demand payment for its transfer of land to another agency. In fact, MPLA’s enabling act suggests that such payment is unlawful.
“In particular, the MPLA demand requires a refund of an ordinary expense of agency operations for no reason other than the board apparently sees an opportunity to extract value from the public’s use of public lands when the public badly needs the land. This is a function far beyond the scope of the MPLA’s authorized activities. Indeed, it is distressingly similar to the publicly condemned behavior of some businesses which, at times of disaster, charge excessive prices for food and water,” Barak said.
CUC itself is prohibited by law from providing the refund, he added.
“MPLA must make the requested transfer to CUC of these five small parcels for the stated public purposes, without charge,” Barak concluded.
