Taotao Tano’s position on the marine monument proposal

In the beginning, this marine national monument sounded like it was the right thing to do with our three northernmost islands for it apparently would bring the CNMI several benefits—national media attention, further education in marine and conservation studies, millions in federal funding, and jobs and scientists from all over the world. We appreciate all this good news but we have to hold off a minute as we have some serious questions as to the intent of the U.S. federal government when it applies the paramountcy doctrine in both cases filed with the Ninth Circuit of Appeals by our government. We lost both of those cases, and we are especially concerned with the arguments raised by our government and also with whether the United States is following its own stated intent in those cases: foreign affairs and defense.

On Feb. 24, 2005, the CNMI brought this action under the Quiet Title Act, 28 U.S.C. § 2409a, requesting a declaration that the Commonwealth holds title to—or for an order mandating that the United States quitclaim any interests in—the submerged lands “underlying the internal waters, archipelagic waters, and territorial waters adjacent to the Northern Mariana Islands.” The CNMI further requested the court to enjoin the United States from claiming ownership of the submerged lands. The United States counterclaimed. After resolution of some procedural hurdles, both parties filed for summary judgment. The district court granted the United States’ motion, declaring that the “United States possesses paramount rights in and powers over the waters extending seaward of the ordinary low water mark of the Commonwealth coast and the lands, minerals, and other things of value underlying such waters.” The court also declared that the CNMI’s Marine Sovereignty Act of 1980, 2 N. Mar. I.Code § 1101-1143 (1999), and Submerged Lands Act, 2 N. Mar. I.Code § 1201-1231 (1999), were preempted by federal law. The CNMI appealed this decision to the Ninth Circuit Court of Appeals.

The Supreme Court established the paramountcy doctrine through a series of cases between the federal government and shoreline states. In one case regarding the state of California, the court held that the national government had paramount rights to submerged lands off the shores of states created from former United States territories (332 U.S. at 38, 67 S.Ct. 1658). The Court based its decision on theories of national interest and defense, concluding that because the sea had customarily been within the realm of international law, the federal government had an overriding interest in maintaining authority over these areas that were subject to international dispute and settlement. Id. at 34-36, 67 S.Ct. 1658. As the court explained a few years later in United States v. Louisiana, 339 U.S. 699, 704, 70 S.Ct. 914, 94 L.Ed. 1216 (1950): The marginal sea is a national, not a state concern. National interests, national responsibilities, national concerns are involved.The problems of commerce, national defense, relations with other powers, war and peace focus there. National rights must therefore be paramount in that area.

Taotao Tano’s questions and would like clarification as to what the court’s decision means in terms of national interest vs. a national monument to be placed in our northernmost islands. The United States arguments in both cases were of paramountcy doctrine, which draws its authority from the inherent obligations placed on the sovereign governing entity to conduct international affairs and control matters of national concern. See California, 332 U.S. at 35-36, 67 S.Ct. 1658; see also Eyak I, 154 F.3d at 1096 (“This principle applies with equal force to all entities claiming rights to the ocean[.]”). The Covenant unquestionably places these powers and obligations in the United States. See Covenant § 101 (establishing a Commonwealth “in political union with and under the sovereignty of the United States of America”); id. § 104 (providing the United States with “complete responsibility for and authority with respect to matters relating to foreign affairs and defense”). The CNMI’s attempt to differentiate between a paramountcy doctrine based on powers found solely in the U.S. Constitution and one that is incorporated through the Covenant separates the doctrine from its rationale.

Since we now have this question and concern, we believe that the case should be brought back to court and challenged; if not, then we should be given the opportunity to hold off on this monument proposal until our non-voting delegate to U.S. Congress is elected into office and has the opportunity to raise these important issues before Congress. Before that, we must ensure that we put the right person with experience in legal matters, who is legal minded and with the legal expertise to address this in Congress and deliver what is in our best interest before any national monument is put in place. This is not to say that a national monument is a bad idea, but we the people of the Commonwealth, the Northern Mariana descent Chamorro and Carolinian people of the land, must be given the due regard and respect to address such an important question pertaining to the paramountcy doctrine applied in the taking of our Submerged lands.

To rush into this national monument without clarifications on an important question and concern will be an injustice to the Northern Mariana descent people of the land, to include that the United States government will be endangering human lives if it actually authorizes such a monument to be put in place, contradicting its actual intent and purpose when they applied the paramountcy doctrine to take control and full authority of our submerged lands.