Impasse over submerged lands

The U.S. federal government has held hostage the rights to submerged lands surrounding Farallon de Pajaros, Maug, and Asuncion, over key provisions the CNMI government has balked at, as the terms go beyond what is required for transfer and binds the local government to expend large amounts of capital and resources on management plans that federal authorities could ultimately reject, and would unduly restrict the Commonwealth’s ownership of these lands, according to a letter Gov. Ralph DLG Torres sent to the Department of Interior yesterday and interviews with local senior and Cabinet officials with knowledge of negotiations.

Over two years since President Barack Obama exempted from transfer, among others, this three nautical mile stretch of lands around these islands within the Marianas Trench Marine National Monument—a largely unfunded mandate that also saw its seventh anniversary this month—negotiations for transfer have reached an impasse.

An official heavily involved with these talks has called the terms federal officials have pushed as “insulting.”

“The creation of the Marianas Trench Marine National Monument and the denial of ownership of our submerged lands and the unnecessarily challenging conditions set out in the draft patent and MOA are significant issues affecting the relationship between the United States and the CNMI,” Torres said in a letter to Interior Secretary Sally Jewel yesterday to reignite discussion.

“To be clear, the CNMI desires title to these submerged lands,” Torres also said. “We believe the federal government’s acquisition of these lands may be in violation of the terms and the spirit” of the Covenant which established a relations between the CNMI and U.S.

“The ball is in their court,” said Department of Lands and Natural Resources Secretary Richard Seman in an interview last week before Torres’ letter was sent. “We are waiting if they are going to come up with a new language that will still ascertain that particular request.”

Seman noted how legislation was passed to return lands back to the CNMI but because of Obama’s proclamation and exempt of transfer, “the Department of Interior utilized that particular provision to hold hostage those three islands under their jurisdiction.”

Concerns

Torres’ letter comes several months after negotiations reached a standstill in July when the late governor Eloy S. Inos found the federal government’s final position on a patent and memorandum of agreement for this transfer disagreeable with his concerns, Saipan Tribune learned.

The federal government offered to give the CNMI back the zero-to-three mile stretch of submerged lands within the monument. But this would be subject to a perpetual conservation easement—or the right to cross or use the land in perpetuity—that would continue even if the monument were abolished.

Federal authorities’ preferred agreement mandates that the CNMI prepare a management plan for those submerged lands that also must be approved by the federal government to be valid. The CNMI will have both permitting and enforcement responsibility for the transferred lands, but no money or technical assistance has been offered as a result of these new responsibilities, Saipan Tribune learned.

The federal government can also enter the property to determine compliance with the conservation easement and may revoke the grant at any time in the event that they determine that the CNMI is not in compliance.

In his letter, Torres articulates his concern with these provisions, explaining them as the “underlying reason” why the Commonwealth cannot agree to the terms of transfer proposed.

“The Commonwealth cannot agree to a conservation easement that endures beyond the federal conservation status the easement is designed to protect—it is not reasonable or necessary under” Obama’s proclamation to exempt transfer until MOA is agreed upon, Torres said.

“And frankly,” he added, “it is not logical.”

Funding

Torres also stresses points on a proposed management scheme over the submerged lands.

Management should either, one, remain under the control and management of the United States as part of the marine monument—with title to the lands still transferred to the CNMI—or two, the U.S. should assist and provide the CNMI with funding to research, write, and enforce a management plan consistent conservation, Torres said.

Funding would be crucial as—under proposed MOA—the CNMI must develop and pay for a “CNMI Submerged Lands Management Plan.”

Monument management officials would also “have sole discretion to certify” whether the plan is consistent with monument goals and transfer agreements.

“This process is outside the control of the CNMI and will be expensive and inefficient,” Torres said. “There is no guarantee that the federal officials will accept the CNMI’s plan.”

Torres asserts that—if the submerged lands should be managed consistent with the monument goals—then the lands should be governed by these plans. “The most efficient course of action…would be for the United States to manage the lands with the rest of the Monument,” Torres said.

However, the CNMI would accept management responsibilities, Torres said, “if federal funds were provided to draft and implement an appropriate management plan for which the CNMI would be responsible.”

Conservation

“The concern of the federal government is not bad,” said Seman. “They are just concerned that hopefully this three island units will remain in perpetuity even in the absence of the marine monument for the purpose of conservation. But that can happen even if reverts back, we can pass a local law that says” despite the 0 to 3 local ownership for the CNMI, the miles are “also a part of conservation area, instead of 0 to 1000 meter” protection areas under local law, where 0 to 1000 meters are considered no fishing zones.

“There is nothing wrong with zero to three” miles for conservation, Seman added “To make it an absolute conservation area.”

Sen. Arnold Palacios (R-Saipan), former DLNR secretary, described that a lot of commitments in the monument is “completely unfunded.”

He said for the small amount that has been availed—about $200,000 for a monument visitors’ center—plans were prepared and submitted for the federal government for review.

On the issue of federal easement into the territorial waters, Palacios said, “Who has management jurisdiction is the underlying question. “Who really has management jurisdiction?”

When asked if he thought the seven-year old monument’s potential has been realized, Palacios said, “No.”

“We ‘re close,” he added, “but until some of these major issues are resolved, I am not sure we can go anywhere. Thing could happen fairly fast” or not at all and “the issue will continue to languish.”