Sunday, December 11, 2016

10 Facts About Submerged Lands in the Marianas


Bucky Taotaotasi 

(Angelo O'Connor Villagomez)

I've been stewing on this blog for months now.  Back in February the Saipan Tribune ranan article about forming a commission to secede from the United States.  This in of itself is something I support, forming a commission to understand the Commonwealth's relationship to the United States. 

In my travels across the Pacific and Caribbean I've visited American, Dutch, French, and English territories, as well as sovereign states and semi-sovereign states, and I've noticed that different political relationships and levels of sovereignty have their pros and cons. 

One of the benefits of our relationship to the United States is military protection and vast amounts of funding and economic opportunities.  On the other hand, our governor will never receive the sort of global attention or have the same influence the president of Palau wields as a head of state. 

On the other hand, the Northern Marianas don't have to negotiate tuna treaties and Compact of Free Association treaties every couple of years to keep the lights on and the government running. 

There is nothing wrong with exploring alternate avenues of governing ourselves.  Puerto Rico flirts with statehood and independence every other year, so why not us?

That was a long rambling opening paragraph for a blog post that's supposed to be about submerged lands.  In the article, several commenters at a public hearing for the commission bring up submerged lands as one of the reasons for secession.  The comments confuse actions taken by President Ronald Reagan, President George W. Bush, and the United States Supreme Court.  I'd like to set the facts straight.

Submerged lands are an important issue for the Northern Marianas and it's important that people have all of the facts.  When we make decisions about what we pass down to our children, our actions need to be framed in terms of "what is," and not, "what should be," or "what may be someday."  The CNMI has a 40-year old relationship with United States that is spelled out in the Covenant and that has been interpreted by the courts over the years.  Our decisions must be based in these realities.

I admit that one could go to college, graduate school, and law school and not learn everything there is to know about submerged lands, the high seas, and international treaties, but here are 10 things that I've picked up over the years, with a particular focus on the CNMI.  If you disagree with any of my statements, I encourage you to leave a comment:

1.  The Covenant is older than UNCLOS and the Exclusive Economic Zone.
The Covenant was signed by negotiators on February 15, 1975 and approved unanimously by the Mariana Islands District of the United Nations Trust Territory of the Pacific Islands two days later. The US Congress enacted the Covenant into law the following year. The Covenant is now Public law No. 94-241 (read the law here).  I challenge you to read the Covenant and find any mention of sea, ocean, or submerged lands.

The United Nations Convention on the Law of the Sea, the international treaty which creates the 200 mile Exclusive Economic Zone, was negotiated around the same time as the Covenant Negotiations, but the negotiations were not concluded until 1982 and the treaty did not come into force until 1994.

I suspect that the submerged lands were not specifically addressed in the Covenant because the United States had not yet claimed an EEZ.  The historical documents from the First CNMI Constitutional Convention show that delegates were at least aware of submerged lands, but they were not included.

2.  The writers of the CNMI Constitution recognized United States ownership of the submerged lands.
Submerged lands were not an issue in the early days of the Commonwealth.  The official analysis to the CNMI Constitution approved by the delegates to the Constitutional Convention (one of whom was my father, former Justice Ramon G. Villagomez) acknowledges that the United States “has a claim to the submerged lands off the coast of the Commonwealth” based on the paramountcy doctrine.   It explains that the CNMI's Constitution “recognizes this claim and also recognizes that the Commonwealth is entitled to the same interest in the submerged lands off its coasts as the United States grants to the states.”

3.  President Reagan created the EEZ in 1983.
The United States still has not ratified UNCLOS to this day, but President Reagan declared the 200 mile EEZ on March 10, 1983 (read the declaration here). President Reagan's proclamation included the Northern Marianas "to the extent consistent with the Covenant and the United Nations Trusteeship Agreement."

4. The CNMI sued for the full 200 mile EEZ and lost in 2005
Later, the CNMI and the United States did not agree on who owned the submerged lands, so they sued each other.  The Northern Mariana Islands Legislature passed the Marine Sovereignty Act of 1980 and the Submerged Lands Act, but they were declared preempted by the US District Court.  The CNMI appealed and lost.  In simple language,  the court found that because the Northern Marianas did not ask the United States to cede the rights to the submerged lands during the Covenant negotiations, they were not granted (you can read the appeal here).  The court describes how state submerged lands were conveyed to Hawaii, Guam, American Samoa, and the US Virgin Islands.  At the time of the case, this had not taken place with the CNMI.  The CNMI appealed to the US Supreme Court, but they denied the request for review.

5.  The CNMI government accepted the Supreme Court Decision.
legal opinion in the Commonwealth Register penned by former Attorney General Matt Gregory reads, "the Commonwealth retains no authority over the exclusive economic zone surrounding the archipelago."  The legal opinion goes on to describe the internal waters under the authority of the CNMI.

6.  The CNMI did not ask the U.S. Congress for state submerged lands until 2009
In 2005, the US Court of Appeals spelled out that because submerged lands were not addressed in the Covenant, the remedy for obtaining state submerged lands (from 0-3 miles) was the U.S. Congress.  Delegate Greg "Kilili" Sablan introduced submerged lands legislation as the first bill ever introduced by a Member of Congress from the CNMI (For those of you with a short memory, Kilili became our first delegate in 2009).

7. State submerged lands were granted to the CNMI in 2013
The U.S. House of Representatives unanimously passed Kilili's submerged lands bill in 2009, 2011, and 2013.  The U.S. Senate did not take up the law for several years for political reasons, but the law was  eventually introduced in the Senate by Ron Wyden and Lisa Murkowski and passed in 2013.  President Obama signed the law in September 2013.

8. Since 2014, the CNMI has controlled state waters for the first time ever
In January 2014, President Obama signed a proclamation transferring ownership around the submerged lands around nine of the 14 CNMI islands to the CNMI government.  Submerged lands around the three northernmost islands were withheld pending negotiations regarding the Marianas Trench Marine National Monument.  The submerged lands around Tinian and Farallon de Medinilla were withheld for military reasons.  I personally believe the US government was wrong in both situations, but I'm just one guy.  The issues around the Northern Islands are being worked out and you can comment on them right now.  I'm not sure the status of the military islands.

UPDATE: The submerged lands around the 3 northernmost islands were conveyed to the CNMI for the first time in history in December 2016.

9.  You are the owner of the submerged lands
As an American citizen, you can contact any government agency and ask questions about issues related to, well, just about anything, including submerged lands.  The government holds these and other natural resources in trust and manages them on your behalf for the benefit of all American people.  You can get involved in any issues related to submerged lands or other natural resources by writing to government agencies and leaders, attending public hearings, or expressing your First Amendment rights in other ways.  In fact, if you want to call the White House, here's the phone number: 202-456-1111

10.  There was no transfer of ownership of submerged lands with the designation of the Mariana Trench Marine National Monument
George W. Bush created the Mariana Trench Marine National Monument in 2009 in the federal waters and federal submerged lands around three of our Northern Islands and the Mariana Trench.  There was a transfer of management from one federal agency to another federal agency for the part of the monument now managed as a National Wildlife Refuge.  But as an American citizen living in the CNMI, local or federal management doesn't really matter to you because you are represented by both governments.  You are the owner of these natural resources, and the monument ensures some of these important and unique natural resources will be passed on to future generations.

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