Full-panel rehearing considered

A judge from the U.S. Court of Appeals for the Ninth Circuit has ordered the federal government to respond to the CNMI government’s request for a full-panel rehearing on the dispute over some 264,000-square miles of submerged lands in the Northern Marianas.

The CNMI Attorney General’s Office views this development with optimism, saying that the Commonwealth has a good chance of obtaining a favorable ruling on its request for an en banc rehearing. An en banc proceeding will submit the issue for review before the full membership the Ninth Circuit.

Circuit Judge Robert Beezer ordered the U.S. government to respond to the CNMI’s petition for rehearing earlier this month. The U.S. Department of Justice opposed the petition last Friday.

Assistant attorney general James Livingstone said that the appellate court does not ordinarily grant a rehearing petition. He noted that, pursuant to an appellate procedure rule, no en banc hearing or rehearing will be ordered unless it is deemed necessary to maintain uniformity of the court’s decisions or the proceeding involves a question of exceptional importance.

Under the rules, no response may be filed to a petition for an en banc consideration unless the court orders a response.

Livingstone filed the petition for rehearing more than a month ago, after the appellate court’s three-man panel upheld earlier this year the federal government’s sovereignty over the Northern Marianas and claim over the submerged lands.

In his petition, Livingstone said that there have been conflicting judicial opinion regarding interpretation of ambiguities in the Covenant, including that on submerged lands ownership. He noted that a prior decision by the Ninth Circuit mandated that ambiguities should be resolved in favor of indigenous people and against the United States.

Livingstone said that the Ninth Circuit found an ambiguity in the Covenant regarding title to submerged lands. But instead of ruling pursuant to precedent, the Ninth Circuit effectively resolved the ambiguity against the CNMI and its people, he said.

Livingstone also noted that the United States served as the trustee of the Commonwealth people when they approved the Covenant. Inherent problems on dealings between trustees and beneficiaries should be interpreted against the trustee, he said.

Livingstone also cited the Covenant’s Section 801, which specifically ceded real property in the Northern Marianas from the Trust Territory government to the Commonwealth. Citing precedent rulings such as those issued during the trusteeship, Livingstone asserted that submerged lands have been considered as real property.

“There are almost no natural land-based resources within the Commonwealth. As a result, their identity is completely intertwined with the marine resources the United States now unjustly attempts to take. Indeed, this case involves who owns as much as 99.9-percent of the property in the Commonwealth,” he said.

Livingstone also noted that the cost of the benefits of a U.S. territory was costly for the Commonwealth, citing the federal military’s renewable 50-year leasehold to the Farallon de Mendinilla Island.

David C. Shilton, an attorney at the Justice department, opposed the request for an en banc rehearing, reiterating that the Supreme Court has consistently held that paramount rights in offshore submerged lands vest in the federal government as a function of national external sovereignty.

Shilton also said that there is no intra-circuit conflict after the appellate court earlier decided against the CNMI in the submerged lands dispute.

“The Northern Mariana Islands could have chosen ‘free association,’ as other Trust Territory districts did, and thereby obtained rights to offshore submerged lands, but at the price of losing the advantages of Commonwealth status,” Shilton said. “The United States did not have a trust obligation to force the people to choose an option that would have retained rights to offshore submerged lands.”

In a ruling last February, the Ninth Circuit panel composed of judges Beezer, Susan P. Graber and Jay S. Bybee upheld the paramountcy of U.S. sovereignty over the CNMI. The panel ruled that the CNMI lost its title to submerged lands when it agreed to U.S. sovereignty, a similar decision in the claims of other territorial jurisdictions such as California, Texas, Louisiana and Maine.

The appellate court said that, while it recognizes the importance of the submerged lands to the CNMI people’s culture, history, and future, the paramountcy doctrine asserting U.S. sovereignty over the islands prevail. Citing precedent cases, it said that submerged lands and the marginal sea are a national concern, not a state concern.