Submerged lands case hits dead end

The U.S. Supreme Court yesterday junked the CNMI government’s petition to review and reverse a ruling of an appellate court, which affirmed the federal government’s ownership of some 264,000-square miles of submerged lands in the Northern Marianas.

This development fully exhausts the CNMI’s judicial remedy in its claim over the submerged lands.

The High Court decision did not come as a surprise, though, as CNMI’s assistant attorney general James Livingstone earlier said that the high tribunal rarely grants such petitions.

The CNMI has commenced extrajudicial relief even before the High Court junked the petition through negotiations with the federal government.

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.

There has been no statement yet from the CNMI if it will also resort to legislative remedies by bringing up the issue before the U.S. Congress.

Livingstone and assistant attorney general 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 on Feb. 24, 2005, rejecting 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 CNMI’s 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.

The High Court junked the CNMI’s petition, which claimed that the Ninth Circuit committed error when it interpreted a provision of the Covenant in favor of the federal government, not against it. The CNMI had contended that the Covenant provision declared the transfer of ownership of real property in the Northern Marianas the Trust Territory government to the Commonwealth. The CNMI had asserted the submerged lands are real property.

The CNMI had also impugned the validity of the federal government’s claim over the submerged lands, saying that the United States did not make clear during the Covenant negotiations that it would take ownership of the submerged lands.

The CNMI had also pointed out 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. It had argued that 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.