The sky is falling!

You say you never heard of the Smiling Cove Marina dock takeover by Fish and Wildlife until the poor tourists were already standing in the sun for hours waiting to go have fun on Managaha and you saw it on TV? Neither did I or anyone else except insiders. How did this happen without any public knowledge? Why no public hearings or posting of the new, likely illegal, regulations for public comment? Because the Department of Lands and Natural Resources claimed it was an “emergency” and used the emergency loophole to ramrod the new Fish and Wildlife regulations into immediate effect as if a real emergency had taken place. No such emergency existed then or now. There were no different circumstances two days before the Sept 9, 2019, secret filing of an emergency declaration or two weeks or two months or a year before. It was a move as phony as a 3-dollar bill. They simply screamed “emergency, the sky is falling, the sky is falling” and got away with it…so far.

Take a look for yourself https://cnmilaw.org/pdf/cnmiregister/2019_Volume_41/2019_Number_09.pdf

A renowned attorney, well-versed in federal and CNMI laws regarding how these two wayward government agencies may operate, legally confided in me that the “emergency” declaration and the regulations themselves are likely indefensible if challenged in court. (boat operators association take note). This professional also points out that, while 2 CMC Section 5107 allows Fish and Wildlife to operate a revolving account (the Game Conservation Fund) that does not require appropriation for monies collected by DFW, it is only allowed for permits, licenses, penalties and fines as might befit an organization dedicated to preserving fish and wildlife instead of operating a commercial marina. Notice there is no mention of keeping any money collected for tourist fees or docking rents. The Office of the Public Auditor may want to take note of what monies are collected, under what categories and how they are disbursed later. Are they being used for game conservation?

An additional issue crops up when a government entity like DFW is federally funded, which it is. With respect to “when a federal funded agency such as DFW collects money in a separate fund, the feds often consider that money to be “program income.” Program income normally must be spent in a manner congruent with the federal grant. You can’t just use it for anything. The basic theory is that federal money has generated the income and therefore it must be used like federal money.’ This obligates accounting practices, and a host of regulatory restrictions as to the money’s use. I’m sure they will be watching.

And another issue. Is there regulatory authorization for DFW/DLNR to do what they are doing? An agency cannot simply make up new fees—they must be authorized by law. Is there such an authorizing law? What is it? When was it enacted?

And another issue. Since DLNR operates the Outer Cove and DFW only has regulations authorizing it to operate the Smiling Cove, how is DFW involved in the closure of the Outer Cove to commercial traffic? By whose authorization?

And another issue. Remember, the whole rationale behind their “emergency” declaration is safety. Someone made a determination that Outer Cove wasn’t safe. Such a determination would fall within the jurisdiction of (a) the U.S. Coast Guard and/or (b) CNMI Boating Safety. Maybe even the Department of Public Works. But DLNR or DFW certainly would not have that authority. Just who declared the Outer Cove Marina unsafe? What authority gives them the right to do so? What are the parameters of safety that are supposedly violated and, specifically, how were they measured?

While we are taking a closer look at the so-called emergency, here are the reasons given by DLNR in the official emergency declaration as quoted in the Commonwealth Register Volume 41 Number O9 September 28, 2018 Page 042788:

1. Outer Cove Marina has been unsafe for public use for loading passengers and customers is imminent; 2. Commercial operators using Outer Cove Marina for loading passengers and customers will thus be unable to utilize Outer Cove Marina; 3. Because Outer Cove Marina is unsafe, DLNR has allowed operators to utilize the Transient Dock within Smiling Cove Marina for loading and unloading of passengers; 4. No regulations are currently in place governing this use of the Transient Dock within Smiling Cove Marina; 5. These regulations will allow DLNR to regulate the use of the Transient Dock, collect appropriate fees for the maintenance and operation of the Transient Dock, and ensure the safety of the public.

No. 1 gets a D—in freshman English for sentence structure but does admit that, past tense, Outer Cove has been unsafe all along while under DLNR jurisdiction.

Take a close look at reason No. 5. According to that, the hundreds of thousands of dollars DLNR wants to extort from boat operators and tourists is to be used to “for the maintenance and operation of the Transient Dock.” In other words, the director’s assurance that they would fix up the Outer Cove in a recent interview would not be allowed under the reasoning they used to declare the “emergency” in the first place. As mentioned in last week’s column, it’s all a hoax. There is no emergency, they don’t intend to use the money for anything other than their secret purchase of the Transient Dock from the feds on time payments. Specifically DFW/DLNR didn’t have the money and has a payment due in December of $80,000, of which they have $12 so they have invented this “emergency” to take the funds at the point of the government gun and use them for their agencies’ own purposes.

Why do I care? Because they are doing irreparable harm to our watersports, Managaha transfer, and sunset cruise tourism industries. Those are a very big part of tourism and nearly all of our incoming tourists visit Managaha and/or participate in watersports while they are here. Why should you care? Because tourism is our Commonwealth’s only viable income producing industry. It’s where the money comes from for nearly everything else we do.

One last word. The perpetrators of this Outer Cove hoax, DLNR, are the same folks that are asking to be given carte blanc ruling power over the Marpi area and want to be in sole charge of all the tourist sites up there under the guise of calling them public parks, which DLNR will control. What “emergencies” can we expect to find up there once they have their hands on it? What “fees” will be charged to get into those parks? Where will the black money really go? How long will the lines of buses and vans bearing tourists be as they queue up to the toilet-less sites? DLNR has had the toilets locked at Smiling Cove for years, literally years, rather than maintain them for their marina customers. Now that is the kind of customer service we want ruling over our Marpi memorials and visitor sites. Not.

End of Rant. Thanks for reading Sour Grapes! Next week, something entirely different.

White paper on black money:
Details are grey,
May age with time to yellow,
Opposition sees red,
Taxpayers green with envy.
—MS Quotes

The corruption of the best things gives rise to the worst.
—David Hume