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Thursday, April 24, 2014

US withholds transfer of 5 islands’ submerged lands

President Barack Obama signed a proclamation yesterday temporarily withholding the transfer to the CNMI of submerged lands around five islands that are either part of a national marine monument or under lease to the U.S. military. Gov. Eloy S. Inos and the Legislature’s request for a firm 180-day timeline to come up with a co-management plan, among other things, was not considered.

This means the CNMI controls only the submerged 3-mile lands around nine of its 14 islands, until management deals can be completed on the rest.

The CNMI is the last U.S. coastal state or territory to own its offshore lands.

Obama exempted from the transfer to the CNMI the control of submerged lands around Farallon de Pajaros (Uracas), Maug, and Asuncion that are part of the Marianas Trench Marine National Monument, as well as Tinian and Farallon de Medinilla that are under lease to the U.S. military.

The Jan. 15 (Jan. 16, CNMI time) presidential proclamation came some four months after the enactment of a law conveying submerged lands to the CNMI.

The president had 120 days—or until Jan. 16—to hold lands that have a federal purpose.

The submerged lands around the CNMI’s three northernmost islands will remain in federal hands pending an agreement for “coordination of management that ensures the protection of the marine national monument with the excepted area,” Obama said in his presidential proclamation.

Similarly, the submerged lands around U.S. military leases on Tinian and FDM will be transferred to the CNMI upon an agreement that “ensures protection of military training within the excepted area,” the proclamation adds.

Delegate Gregorio Kilili C. Sablan (Ind-MP), in a statement yesterday, said he has already written to the president and the governor, urging them to complete negotiations on both agreements as quickly as possible.

“Having worked for five years to win enactment of Public Law 113-34, which conveys ownership to the people of the Northern Mariana Islands, I am deeply committed to seeing this transfer completed without further undue delay,” Sablan said.

At Sablan’s request, U.S. Sens. Ron Wyden and Lisa Murkowski introduced S. 256 or the submerged lands legislation that became U.S. Public Law 113-34. It gives the CNMI control of the underwater coasts of its islands.

Resolving issues

Press secretary Angel Demapan said yesterday that despite the governor and the Legislature’s concerns, the administration still expected that the presidential proclamation would happen anyway, although the governor “was hopeful that the proclamation, before being finalized, would’ve heeded the recommendations he made in an effort to safeguard the interest of the people of the Commonwealth.”

“Governor Inos appreciates that the President intends to withhold conveyance of the affected areas on a temporary arrangement and desires to resolve the issue of formulating management plans as soon as possible,” Demapan told Saipan Tribune.

In order to achieve this, the governor has tasked legal counsel Wes Bogdan to take the lead in working with the CNMI members of the Marianas Trench Monument Advisory Council and federal officials to reach mutually agreeable management plans.

“Still, Governor Inos believes that his recommended action items would have ensured the timely and fair completion of these plans. The governor had asked the president to one, require the parties to come up with a plan within 180 days following the proclamation, and secondly, to include a process to resolve outstanding issues should negotiations reach an impasse,” Demapan said.

Senate floor leader Ray Yumul (Ind-Saipan) said he “could only contemplate now how negotiating future leases with the federal government will be like.”

Yumul was the original author of a Senate resolution asking Obama to delay the withholding of transfer and give a 180-day period to resolve the issues through Covenant 902 talks. Before it was adopted on Tuesday, the resolution became sponsored by the full CNMI Senate.

Permanent vs temporary ownership

Sablan said U.S. Public Law 113-34 added the CNMI to the Territorial Submerged Lands Act, which transferred ownership of lands around Guam, the U.S. Virgin Islands, and American Samoa to local control in 1974.

In the case of Guam, the U.S. Virgin Islands, and American Samoa, the federal government retained “permanent ownership of lands,” Sablan said.

He added that Apra Harbor and other coastal areas of Guam were handed over to the U.S. Navy, as were an underwater range off of St. Croix in the Virgin Islands.

The U.S. Department of the Interior and the U.S. Department of Commerce were given control of American Samoa’s submerged lands surrounding the Rose Atoll National Wildlife Refuge, Sablan said.

“But in the case of the Northern Marianas, the President decided on a temporary arrangement,” Sablan pointed out.

He said once co-management agreements are completed that address federal concerns in the marine monument’s islands unit and around the military-leased lands, the remaining submerged lands can be transferred to the CNMI.

‘Obama commitment’

Acting Assistant Secretary for Insular Affairs Eileen Sobeck said the conveyance reflects the administration’s “longstanding, strong support for granting the CNMI rights similar to those accorded other territories for their surrounding submerged lands.”

“We have also consulted extensively with CNMI leaders and gained an understanding regarding the need for a protective management plan for the submerged lands off military-use islands and in the national marine monument,” she said.

Sobeck added that the CNMI people are well aware of their treasures and supported the creation of the monument “because they believed it will bring federal assets for marine surveillance, protection and enforcement to the Northern Islands.”

“This [Obama] administration remains committed to working expeditiously with CNMI leaders to protect the outstanding resources in the national marine monument,” Sobeck said.

Marine monument

Sablan reiterated that the proclamation that President Bush signed in 2009 after negotiation with then-CNMI governor Benigno R. Fitial creating the Marianas Trench Marine National Monument anticipated that the submerged lands around Maug, Uracas, and Asuncion in the monument might not be conveyed to the CNMI until there was an agreement between the Commonwealth and the federal government on how those submerged lands would be managed.

The islands are designated as “uninhabited places” to be used “only for the preservation and protection of natural resources” by Article 14 of the Commonwealth Constitution.

But Sablan said water and wildlife pass between the man-made boundary separating the monument and the Marianas. So federal and Commonwealth managers will have to coordinate in order to ensure compliance with the CNMI constitutional restrictions and with any federal regulations that apply in the monument, he said.

It has been over five years since Bush and Fitial completed their agreement on the monument.

“It’s high time for both sides to work out the management issues,” Sablan said.


In the case of the submerged lands around Tinian and FDM, Sablan said the lease to the U.S. military already includes the surrounding waters, as well as the surface lands on those two islands.

“The Commonwealth’s founding fathers, who negotiated the Covenant and the Technical Agreement regarding the use of federally leased lands pursuant to Sections 802 and 803 of the Covenant, decided that the lease would include the ‘waters immediately adjacent’ to the leased areas,” he said.

Sablan said the lease for Tinian and FDM that the governor, the Legislature, the Marianas Public Land Corp. and the Commonwealth Ports Authority signed off on in 1983 contained the same language.

The U.S. also paid the CNMI based on the understanding they were getting access to the waters around the islands as well as the dry land.

“Of course, the federal courts decided in 2005 that the Commonwealth did not own those waters, which is why I had to get Public Law 113-34 enacted. But the lease has proven itself over the last 31 years. The Saipan-Tinian ferry and other shipping has gone back and forth past the military lands without any problem. Fishermen have had the access that was specifically guaranteed in the Technical Agreement to the Covenant,” Sablan said.

The delegate said it “may be that as the military steps up the pace of training, new issues could arise.

“But the lease has some flexibility built into it, as any 100-year agreement must. The people who signed the Covenant and who wrote the lease knew what they were doing and certainly understood they needed to protect the rights of the people of the Northern Marianas,” Sablan added.

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