what is the main issue, purpose of the Marine Monument in the CNMI?
Thursday, October 23, 2008 Page 1 of 2
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.
Page 2 of 2
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.
Gregorio Cruz Jr.
Taotao Tano CNMI Inc.
Taotao Tano position on proposed marine monument: Part II
Further review of the Pew Charitable Trust and Friends of the Marianas issues as to why they fully support the marine monument proposal is the report of illegal fishing activities taking place around and in the exclusive economic zone at our northernmost islands, especially long-liner vessels from Asian countries. Recent reports of the U.S. Coast Guard intercepting illegal foreign fishing vessels further support their concerns and at times the blame was pointed at our local government for not monitoring these areas. We would like to point out further our concerns and issues regarding this matter which reflects back to the Paramount Doctrine we mentioned earlier in terms of sovereignty, foreign affairs and defense matters as being the sole reason we lost our rights to ownership over our submerged lands as indigenous Northern Mariana-descent Chamorros and Carolinians.
Taotao Tano would like to bring everyone's attention back to our Covenant Agreement in Political Union with the United States, specifically Section 104. This section provides that the United States will have complete responsibility for and authority with respect to foreign affairs and defense of the Northern Mariana Islands. This section had been included in order to make very clear that the United States will have this authority. The concept of sovereignty is closely tied to foreign affairs and defense matters. Throughout the American political family, foreign affairs and defense is a federal responsibility, as made explicit in the U.S. Constitution and the Paramount Doctrine. Again, it totally contradicts the issues as to why a monument should be substituted in place of foreign affairs and defense matters, especially with our three northernmost islands. Our government has long been mistakenly blamed for not being able to do anything such as patrol our borders around our northernmost islands and uninhabited islands but border control is a federal responsibility as stipulated in the Paramount Doctrine and Section 104 of our Covenant Agreement. Our government is bound by the U.S. Constitution to act on any local legislation seeking to take back our submerged lands, and in fact questions are still lingering between the difference of "submerged lands and real property," which was not clear in our Covenant Agreement.
Therefore, we must hold off on this monument proposal until clarity is achieved, and a solid agreement is made and that everything being said, offered, negotiated, or promised is put down in black and white and signed by both our government and the federal government to ensure that we strike a balance, understanding and respect for one another. We must be given the opportunity to retain our submerged lands and the waters surrounding them within a reasonable distance such as a 9-12 mile ownership.
Gregorio Cruz Jr.
President, Taotao Tano CNMI Inc.
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