US govt: NMI changing its arguments

IN MOTION TO DIMISS FEDERALIZATION SUIT

By Kristi Eaton
Reporter

Monday, January 26, 2009

Lawyers for the U.S. government have once again asked a federal court to dismiss the CNMI's lawsuit against federalization, saying the Commonwealth has changed its argument from one of economic harm to a breach of self-governance.

Lawyers for the federal government filed the motion to dismiss before the U.S. District Court for the District of Columbia on Friday.

The CNMI first filed the lawsuit in September, and the U.S. government filed a motion to dismiss in December. The CNMI then filed their opposition to the motion earlier this month, with the federal government now giving their final reply.

In the motion to dismiss, the lawyers stated that the Commonwealth's initial argument for the lawsuit was economical, but now it is saying that provisions of the Consolidated Natural Resources Act harms their right to self-governance.

“The CNMI attempts in its opposition to reframe all of its alleged injuries as injuries to the CNMI's right to self-governance,” the motion stated. “However, this characterization does not square with the complaint, which is replete with allegation after allegation that the challenged provisions of the Consolidated Natural Resources Act...will allegedly inflict economic harm-all of which are conjectural and do not confer standing under Article III of the Constitution. The court should not accept the CNMI's last-minute recasting of the harms alleged as injuries to self-governance.”

Secondly, the lawyers wrote, the governor does not have authority to bring this action because CNMI law specifically states that the CNMI Attorney General is responsible for bringing any suit. In the earlier opposition, the CNMI stated that the Commonwealth-not the governor-is the plaintiff in the case.

However, the U.S. government said, the action was initiated, pursued and paid for by the Office of the Governor. Although the Office of the Attorney General was consulted before outside counsel Jenner & Block LLC was retained, as acting Attorney General Gregory Baka has publicly stated and was written in the opposition, “the Commonwealth is not a person or entity that can have 'consultations' with public officials on its own. The CNMI is a political entity, and the Commonwealth acts only when a public official having the authority to act on its behalf does so. The question is: Who acted on behalf of the CNMI in bringing this lawsuit?” the motion states.

Moreover, Howard Willens appears as special counsel to the governor, not as Assistant Attorney General as he has appeared in other cases, the U.S. government wrote. On Friday, the motion notes, Willens entered his appearance as special counsel to the Office of the Governor, not as an Attorney General for the case.

The provisions of the Immigration and Nationality Act that the CNMI takes offense at are actually meant to soften the potential hard effects of the sudden application of the law, the motion said.

“If the CNRA simply applied the immigration laws without a transition period-as it lawfully could have done, as even the CNMI appears to concede by agreeing that there is authority to apply Title 8 to the CNMI-then on the transition date, every alien in the CNMI (other than U.S. lawful permanent residents) would be unauthorized to work and immediately removable, because they would all simply be unauthorized aliens present without inspection and work authorization,” the motion stated. “The drafters recognized that such an effect would be unwanted and damaging, and took this into account.”

Lastly, the lawyers for the U.S. wrote, the court should dismiss the case because the CNMI cannot allege any facts supporting the relief claimed.

“The CRNA was an appropriate act of Congress because it is consistent with the Covenant,” according to the motion.