Submerged lands ruling appealed

Asserting its claim over some 264,000-square miles of submerged lands in the Northern Marianas, the CNMI government has asked the U.S. Court of Appeals for the Ninth Circuit to have a full-panel rehearing on its dispute with the federal government.

The CNMI petitioned the Ninth Circuit Thursday for an en banc hearing on the ownership dispute, 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. An en banc proceeding will submit the issue for review before the full membership of the Ninth Circuit.

In his petition, assistant attorney general James Livingstone said that there have been conflicting judicial opinion regarding interpretation of ambiguities in the Covenant, including that of the submerged lands’ ownership.

While the appellate court recently upheld the federal government’s claim over submerged lands, Livingstone 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.

“The [Ninth Circuit] panel found an ambiguity in the Covenant—the agreement between the indigenous people in the Commonwealth and the United States—regarding title to submerged lands,” Livingstone said.

Instead of ruling pursuant to precedent, the Ninth Circuit effectively resolved the ambiguity against the CNMI and its people, Livingstone said.

“Beyond the intra-circuit conflict, the resolution of ambiguities in favor of the United States when interpreting the Covenant is especially troublesome,” he said. “When the people of the Commonwealth approved the Covenant, the United States served as the trustee of the people.”

Inherent problems in 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 are considered 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 on the Farallon de Mendinilla Island.

“If the panel’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,” he said.

The Ninth Circuit panel composed of judges Robert Beezer, Susan P. Graber and Jay S. Bybee issued a ruling last February that upheld the paramountcy of U.S. sovereignty over the CNMI.

The panel ruled that the CNMI lost its title to the submerged land 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.