DPL flip-flops on Managaha access

Acting Public Lands secretary Pedro I. Itibus has rescinded his one-month-old decision, resulting again in the prohibition of marine sports operators, such as banana boat and parasail tour operators, from picking up customers on Managaha Island for their tours unless they are Tasi Tours or its subcontractors. Tasi Tours holds an exclusive concession contract to operate on Managaha.

Some of the affected marine sports operators expressed yesterday their disappointment with the Department of Public Lands, and are considering legal action against DPL.

“We are opposed to DPL’s decision to reverse its position in May. They are making it harder for businesses like us to survive. We are reviewing the matter and we might file a legal complaint against DPL,” said Cora Pangelinan, co-owner of Island Marine Sports, told Saipan Tribune.

Rep. Ray Tebuteb (R-Saipan) and Rep. Ray Yumul (R-Saipan) separately questioned yesterday DPL’s authority to restrict “commerce” and decision to disallow marine sports operators from picking up customers on Managaha when the transactions were made prior to these tourists going to the island.

Itibus, in an “open letter” to the public sent to the media on Thursday, said that when DPL issued its December 2011 letter, it was not adopting a new rule but was only explaining the rights granted under DPL’s contract with Tasi Tours.

He said in his Thursday letter that there is no support in the language of the contract for making a distinction between tours sold on Managaha and those sold prior to the customer reaching Managaha.

Itibus said the clear language of the concession agreement shows that exclusivity is based upon the location of the activity (the tour)—not the location of the sale of the tour.

“In conclusion, the contract shows Public Lands must restrict the conduct of tours from Mañagaha Island, including parasailing and banana boat tours, to the company, which holds the contract rights to the exclusive concession and its subcontractors,” Itibus said.

The acting DPL secretary said “other marine sports operators may not pick up customers from Mañagaha Island and then take them on water sports tours.”

“Any statement or suggestion by Public Lands to the contrary is hereby rescinded. It makes no difference whether these tours were pre-sold or not. It makes no difference whether the tour is one-way from Mañagaha Island or a round-trip. Any tour from Mañagaha Island must be conducted by or sanctioned by the exclusive concessionaire,” he said.

As this is a matter of contract rights, Itibus said no further public comment is needed or sought. “Public Lands will resume enforcing these excusive rights immediately,” he added.

Pangelinan of Island Marine Sports said their legal counsel is now reviewing DPL’s “public notice” that rescinded its May decision on the matter. The May decision reversed DPL’s December 2011 letter.

In December, DPL said that marine sports operators are not supposed to pick up tourists on Managaha unless they are Tasi Tours or its subcontractors. In May, DPL reversed that position. This week, DPL went back to its December 2011 position.

Gary Orpiano, owner of Amigo Aquatic Sports, said yesterday that DPL’s latest decision will result in another big business loss to marine sports operators.

“At a time when we are trying to revive the Managaha-to-Managaha market, they reversed their position and that is restricting us from reviving that market. Especially with additional flights we are anticipating to arrive on Saipan, we would like to continue to have a business. Now we have to adjust our operations again,” Orpiano said.

Manny Alvarez of Seahorse Inc. said he reserves comment about the issue.

Rep. Ray Tebuteb (R-Saipan) said it is “disturbing” to learn that DPL changed its mind one month after making a decision on the matter. In his view, DPL is making it hard for legitimate marine sports operators to engage in business.

Rep. Ray Yumul (R-Saipan), for his part, said his concern is more about DPL’s authority to restrict operators from conducting business on federal waters at a time when the CNMI still does not have control over 3 miles out.

“We are in a very precarious situation. The U.S. Constitution specifically grants the federal government power to regulate commerce among the several states, and the CNMI is considered a state, when it comes to commerce,” Yumul said.

He said DPL cannot restrict water sports operations not held on public lands, and when the package is not even sold on Managaha.

“How do you prohibit commerce on federal waters? My main concern is if water sports operators takes DPL to federal court, it will require money to defend it and we don’t have that kind of resources,” he said.

Yumul suggested that all parties involved—DPL, Tasi Tours and its subcontractors, and other marine sports operators—should come to an agreement to avoid costly litigation.

“Tourism is our last main industry. The last thing you want tourists to see is a big fight between the government and marine sports operators,” he added.

Since 2001, Tasi Tours and Transportation Inc. has held exclusive concession rights on Managaha, a world renowned snorkeling site visited by over 60 percent of all tourists who come to the CNMI each year.