NMI takes submerged lands issue to Supreme Court

The CNMI government has taken the dispute over 264,000-square miles of submerged lands in the Northern Marianas to the U.S. Supreme Court, filing Thursday a petition that seeks to review and reverse a ruling of an appellate court that affirmed the federal government’s ownership of the lands.

Assistant attorneys general James Livingstone and Kenneth Barden petitioned the High Court for a writ of certiorari, which would compel the U.S. Court of Appeals for the Ninth Circuit to certify the records of the case to the Supreme Court for the latter’s review of possible errors by the appellate court.

The Ninth Circuit issued its judgment against the CNMI government last Feb. 24. In its ruling, the Ninth Circuit rejected the CNMI’s appeal against a Saipan federal court order that declared ownership of the submerged lands in favor of the federal government.

The appellate court ruled that U.S. sovereignty over the submerged lands is paramount and that the Covenant that established a special political union between the Commonwealth and the federal government supported the latter’s control over those lands. It said that the CNMI lost its title to the submerged land when it agreed to U.S. sovereignty. Last July 8, the Ninth Circuit junked the CNMI’s petition for a full-panel rehearing on the case.

Livingstone and Barden told the Supreme Court that the Ninth Circuit committed error when it interpreted a provision of the Covenant in favor of the federal government, not against it. That provision provided that ownership of real property in the Northern Marianas would be transferred from the Trust Territory government to the Commonwealth. The CNMI attorneys contend that submerged lands are considered real property, supporting that contention with federal case law.

“Moreover, the trustee-beneficiary relationship [between the U.S. and the Northern Marianas] created another implication that the Ninth Circuit refused to consider, despite this court’s precedent. Under the common law regarding trusts, the United States had to make clear to the people of the Commonwealth that it would obtain title to 99.9 percent of the property interests of the Commonwealth under the Covenant,” the CNMI attorneys said.

“This was not made clear to the people of the Commonwealth at all in the Covenant or during the negotiations. As such, the purported transfer is void,” they said.

The attorneys also stressed the statement made by the late Cong. Phillip Burton, who was the principal sponsor of the joint resolution approving the Covenant for the United States government. They quoted the lawmaker as saying: “All possible ambiguities should be resolved in favor of and to the benefit of the people and government of the Northern Mariana Islands.”

They also said that, when the federal government leased Farallon de Mendinilla Island and portions of Tinian from the CNMI, the leases included the waters immediately adjacent to those islands. They said the lease agreements showed that the federal government had recognized the CNMI’s ownership of submerged lands; otherwise, the leases would not have included the waters immediately adjacent to those islands.

The CNMI attorneys said the Ninth Circuit committed error when it did not consider the trustee-beneficiary relationship between the federal and CNMI governments.

“The [Ninth Circuit] panel could not explain how the United States fulfilled its trustee obligations to the Commonwealth if the Commonwealth lost its submerged lands in the Covenant,” they said. “When the people of the Commonwealth approved the Covenant, they were the beneficiaries of the U.N. Trusteeship and the United States was the trustee.”

“If the Ninth Circuit’s decision is not changed, a tragedy will result. The people of the Commonwealth will be divested not only of almost all their property, but also their cultural identity,” they said. “There are almost no natural land-based resources within the Commonwealth and there is a long history of dependence on the ocean resources in the history of this island community.”

Taking the matter to the Supreme Court has remained the CNMI government’s only judicial option after the Ninth Circuit denied its appeal and request for a full-panel rehearing. The CNMI, however, still has extrajudicial means for possible relief, as negotiations between the Commonwealth and federal governments have been ongoing.

A task force composed of various CNMI government officials has earlier suggested the Covenant 902 negotiations as the proper forum to address the issue. Section 902 of the Covenant provides that the CNMI Governor or the U.S. President may initiate negotiations on issues affecting the relationship between the Commonwealth and the United States.