Land designation must be reconsidered

The land designation made by the Department of Public Land to the Department of Community and Cultural Affairs for the construction of a Palau bai needs to be reconsidered. We know that the attorney general did not thoroughly review DPL’s action.

The action taken raises very interesting administrative and constitutional arguments on interagency land use agreements. Even though it’s short of a freehold conveyance through deed, a land use agreement (with conditional public purpose provision) cannot preserve DPL’s fiduciary duty because DCCA does not have the same mission as DPL, and therefore lack fiduciary responsibility.

For instance, is the attorney general saying that DPL can transfer its fiduciary responsibility to DCCA? Truthfully, we are not lawyers but the idea of delegating land management responsibility from DPL to DCCA is suspect. Why not simply lease the land to a Palauan organization? Administratively, could DPL really approve the land designation and be completely absolved of any potential liability (that the public would expect DCCA to fully protect DPL)? The scheme is truly short-sighted and a contravention of the constitutional mandate of DPL to protect public lands.

The Legislature is not without authority to correct wrongs but seems like there is silence when votes seem to matter.

Article 11 permits freehold transfer to another government agency for a “public purpose.” But it didn’t define what it means. We presume it was left to the Legislature to determine the meaning, or maybe even the court, or through promulgation of DPL rules and regulations. We haven’t come across a definition. After the dissolution of the MPLC, and successor agencies, the DPL was created in 2006 to manage and administer public lands, presumably in the public interest.

DPL was delegated specific programs to administer: homesteads, private land exchanges, among others. We didn’t see any policy or anything regarding transfers on public lands from DPL to government agencies or autonomous public corporation. A transfer from DPL to a government agency land that is truly intended to be used by the agency for their delegated duties and responsibilities may be for public purpose. We would think that a “public purpose” may be for a park, school, or public facilities accessible to the public. As we understand it, a bai is limited to Palauan men; women and children and non-Palauans are not allowed. Wasn’t there a case in Palau years ago where an American was beaten up trying to enter a bai during a meeting.

Our food for thought:

1. Is “public purpose” legally defined somewhere? Does the bai use fit the definition? 

2. Is the law silent on “public purpose”? If so, is DPL delegated with the gap-filling authority to define “public purpose? Or, in the alternative, is DPL empowered to delegate land beyond the specific public purpose statutory programs, like homesteads, etc.? If yes, are there sufficient standards provided by the Legislature to guide DPL? Otherwise, if there is delegation but no standards, the Legislature would be abdicating its policy-making responsibilities to an administrative agency, which would constitute excessive delegation of legislative power. Where is the administrative restraint, Madam Secretary and also Mr. Attorney General? Contrary to separation of powers, we are witnessing a complete failure by our Legislature in monitoring agency actions. A resolution adopted in 2006 simply does not have any legal effect in 2018. Is it that difficult for the Legislature to adopt a new resolution? We need to make our Legislature accountable. Legislative review is paramount to avoid interagency arbitrary actions and decisions.

3. If the land designation exceeds DPL’s authority, the designation would be ultra vires and a breach of fiduciary duty.

4. We think constitutional challenges do not require taxpayer standing to sue. NMI citizens should have the inherent right to contest what may be proven to be unconstitutional land transfers or designations that would injure the interest of the citizens. The people are guardians of the Constitution and public lands. The attorney general cannot close its eyes under pretense that he was not aware of it when the agreement was under review. If he was not and then he finds out, his utmost duty is to revisit the action taken and right the wrong. Mr. Attorney General, we voted for you. Therefore you must act to look into the matter and make known your position. You cannot be silent. Your legacy is going down the tubes if you don’t act.

5. Although the DCCA is in possession of the land, that doesn’t necessarily mean the land is for a public purpose for the benefit of the people. 

6. Possession and the benefit that comes is not absolutely serving a public purpose; the presumption is always rebuttable.

7. Did the meeting resulting in the land designation comply with open government and transparency laws?

8. Was there a notice-and-comment public hearing before the land transfer was made?

Stanley Torres is a former member of the CNMI House of Representatives. Jack C. Muna is a private citizen.