Court takes OAG’s motion to dismiss E-Land suit under advisement

The Superior Court has taken under advisement the Office of the Attorney General’s most recent motion to dismiss the lawsuit filed by the Mariana E-Land Corp. against the Department of Public Lands over the cancellation of their lease agreement.

After hearing arguments from both parties last Wednesday regarding the OAG’s motion for dismissal, Superior Court Associate Judge Joseph Camacho took the matter under advisement, saying he will issue a ruling in the case.

In his motion to dismiss, John Lowrey, OAG Civil Division chief and counsel to DPL, asked the Superior Court to dismiss E-land’s lawsuit with prejudice for failing to state a claim. To dismiss a case with prejudice means the case will be permanently dismissed and cannot be filed again.

“E-Land has failed to state a claim for relief for all causes of action, and its complaint should be dismissed with prejudice and without leave to amend, because any amendment would be futile,” Lowrey said.

In addition, he said, DPL lawfully rescinded the notice of award because the proposed lease did not comply with DPL regulations. “Because DPL’s decision to rescind the notice of award to E-Land was lawful and required by regulations, E-Land cannot prevail on its claim for injunctive relief,” he said.

He explained that E-Land never formed a contract with DPL regarding the RFP, and any lease agreement would need to be approved by the attorney general and Legislature before it could take effect.

Lowrey added that a lease that does not comply with DPL’s regulations is void, and must be rejected as outside of DPL’s legal capacity. Had the attorney general not rejected the lease, it would still have been void, Lowrey added.

“Even if the attorney general did not reject the lease, and DPL did not rescind the notice of award to E-Land, DPL could not agree to E-Land’s suggested changes to the lease and the parties would not have been able to execute a final lease. Assuming that DPL accepted E-Land’s suggested changes, the attorney general did not reject the lease, and the lease was not yet discovered to be void ab initio for failure to comply with DPL’s regulations, the CNMI Legislature would still have to approve the lease. Per Commonwealth law, DPL ‘may not transfer an interest in more than five hectares of public land for use for commercial purposes without approval of the Legislature in a joint session,’” Lowrey said.

On July 2021, E-Land, which owns and operates Kensington Hotel Saipan, Coral Ocean Golf Resort, and Pacific Islands Club, sued DPL and acting secretary Sixto Igisomar, in his official capacity, for the cancellation of the Mariana Resort property lease agreement.

In its suit, E-Land asked the court to issue a temporary restraining order and a preliminary injunction to prevent DPL and/or the acting secretary from reissuing RFP20-RED004 until such time that the court has ruled on E-Land’s complaint.

In August 2021, Camacho issued a preliminary injunction preventing DPL from reissuing RFP-RED004 pending a determination of the merits of the plaintiff’s complaint.