Quid pro quo arrangement between CNMI and US government

Approximately 30 years ago on Feb. 15, 1975, the legislature of the Mariana Island District of the U.N. Trust Territory of the Pacific Islands signed with a delegation representing the United States the “Covenant.” Several months later, the U.S. Congress approved the arrangement and then President Gerald Ford signed Public Law 94-241 making the enactment official.

Under Article VIII, Section 802 (a) of the Covenant Agreement, it stipulates that the U.S. would lease for defense purposes approximately 18,182 acres of land (7,328 hectares) on Tinian, Saipan, and Farallon de Mendinilla for a period of 50 years, i.e., 1975 through 2025.

In Article VIII, Section 803 (b), the total funding granted by the U.S. for the property on the abovementioned islands was approximately $19,520,600 ($17.5 million for Tinian; $2 million for the Tanapag Harbor in Saipan; and $20,600 for Farallon de Medinilla). The language of Section 803 (b) includes “waters immediately adjacent” to the land on Tinian and Farallan de Medinilla.

In Section 803 (a) of the Covenant, it states “that the government of the United States has the option of renewing this lease for all or part of such property for an additional term of [50] years if it so desires at the end of the first term.” So if the U.S. desires to exercise the option to extend an additional 50 years, it will go from 2026 through 2076.

Section 803 (b) of the Covenant stipulates that “the government of the United States will pay to the government of the Northern Mariana Islands in full settlement of this lease, including the second [50] year term of the lease if extended under the renewal option, the total sum of $19,520,600.”

It appears that should the U.S. decide to extend the 50-year lease, then there would not be any monetary obligation to the CNMI due to the fact that the $19,520,600 incorporated the first 50-year lease, as well as the extension of the second 50-year lease when the first lease expires in 2025. In other words, what was allocated by the U.S. government in 1975 is all that the CNMI will appear to receive for the leasing right of the property of the abovementioned islands.

According to the National Sea Grant Law Center, the U.S. Congress passed in 1953 the Submerged Lands Act (SLA) that transferred ownership of submerged lands out to three nautical miles to coastal states. Subsequent to the passage of this Act, several states, including California, filed suit in federal court and did not win.

In 1976, the Fishery Conservation and Management Act of 1976 was made into law one year after the Covenant agreement was signed. The Act declared a 200-mile fishery conservation zone around the Mariana Islands. The Mariana Islands challenged this Act in court but to no avail.

The passage of the FCMA prompted CNMI legislators to create the “Submerged Lands Act” and “Marine Sovereignty Act.” Both of these statutes were enacted by the CNMI government in 1980. The Submerged Lands Act claimed ownership of the submerged lands out to 200 nautical miles and the Marine Sovereignty Act asserted authority over a 12-mile territorial sea and a 200-mile exclusive economic zone or “EEZ.”

A decade following the signing of the Covenant agreement, the Trusteeship Agreement of the U.S. and NMI terminated in 1986 and the Northern Mariana Islands became officially a self-governing commonwealth with similar status to Puerto Rico.

Nearly 10 years following the NMI becoming a commonwealth, the CNMI government unilaterally leased submerged lands to a developer for the construction of a marina in 1995. The following year in 1996, the Department of Interior asserted U.S. authority over the lands and required the developer to enter into a separate agreement with the United States. This action was challenged with a lawsuit filed by the CNMI government.

On Aug. 7, 2003, a lawsuit was filed (CNMI v U.S. Civil Action No. 99-0028) regarding the ownership of submerged lands. The U.S. District Court for the Northern Mariana Islands held that the U.S. government possesses superior rights to the submerged lands of the CNMI and the statutes claiming authority over those islands, i.e., Submerged Lands Act and Marine Sovereignty Act, are pre-empted by U.S. law and unenforceable because they are in direct conflict with several federal laws, including the Magnuson-Stevens Fishery Conservation and Management Act, which asserts a 200-mile EEZ regulated exclusively by Congress and federal agencies.

The U.S. District Court said that federal law is “the supreme law of the land” and state and territorial governments do not have the authority to legislate with regard to submerged lands without express federal legislation. Thus, Commonwealth statutes claiming authority over those lands are pre-empted by existing U.S. laws.

Furthermore, since there is “no federal legislation” granting the Mariana Islands ownership of and sovereignty over its submerged lands, the U.S. government has complete and full jurisdiction over the submerged lands.

The ruling in favor of the U.S. government was appealed by attorneys representing the CNMI. In March 2005, the CNMI lost its appeal in the U.S. District Court, which declared that all submerged lands in the Northern Marianas belong to the U.S. government.

The CNMI can appeal this decision before the 9th Circuit Court and, finally, before the U.S. Supreme Court. Because the federal court system is “backed up” and somewhat dilatory in terms of the processing of cases submitted, it would be extremely difficult to make any projection as to when the appeal would reach and eventually be reviewed and ruled on by the 9th Circuit, and/or Supreme Court of the United States.

Should the ruling by the U.S. District Court be held up by the 9th Circuit Court and/or Supreme Court, then the U.S. government will be able to do whatever they please in terms of utilizing the submerged lands. For example, companies would be able to negotiate leases regarding fishing or other industries with the U.S. government that pertain to these lands. The CNMI government would not be able to do anything other than “sit and watch.”

Subsequent to the recent overturning of the CNMI’s appeal in the U.S. District Court and granting the U.S. government rights over the submerged lands, local officials and private groups of the island community placed a request before the governor’s office that the issue of submerged lands be included in the Section 902 discussions. These discussions are supposed to provide the opportunity for the CNMI Governor or U.S. President to initiate negotiations on issues affecting the relationship between the Commonwealth and the U.S. Whether there will be any headway made in these discussions remains to be seen.

According to the Pacific Magazine, it appears that there will be an effort on the part of the CNMI government attorneys to try to persuade the U.S. Congress to pass legislation that includes the CNMI in the Submerged Lands Act, which grants some states and territories rights out to three nautical miles. Notwithstanding the fact that similar cases brought to court by several states had been lost, the attorneys for the CNMI said the situation for the CNMI is different due to the existence of the 1976 Covenant.

If all of the efforts by people in the island community, as well as in Washington D.C., to include the CNMI in the Submerged Lands Act for the U.S. are to no avail, then there will be absolutely no rights whatsoever for the CNMI government and/or indigenous peoples to be involved with the submerged lands that stretch out up to 200 nautical miles. If the CNMI government and/or residents of the island community want to do anything with submerged lands, they would have to go beyond the 200 miles to do it.

Quid pro quo is a Latin phrase that means “something for something” and identifies what each party in the agreement expects from one another. The quid pro quo arrangement involving the leasing of the island property for defense purposes for nearly $20 million appeared to be reasonable transaction for the CNMI representatives back in 1975. I wonder if they would take that same position today.

However, because there will not be a monetary requirement for any more than the $20 million, according to Article VIII, Section 803 (b), then who gained the most in this quid pro quo arrangement between the U.S. government and CNMI? I will let the island community provide the answer to that question.

With the issue of submerged lands rights now belonging to the U.S. government, unless the ruling by the U.S. District Court is overturned by the 9th Circuit Court and/or Supreme Court sometime in the distant future, then the U.S. government will have gained something that the entire island community considers precious and valuable, without having to give up anything at all.

The price of relinquishing title to the submerged lands when it agreed to U.S. sovereignty is an extremely high one given the fact that the activities, e.g., fishing, with these lands beneath the waters surrounding the islands are an integral part of the culture of the indigenous people and all of the residents of the CNMI.

Dr. Jesus D. Camacho
Delano, California