Mariana Islands Lacks Authority Over Its Submerged Lands

Commonwealth of the Northern Mariana Islands v. U.S., Civil Action No. 99-0028 (D. N. Mar. I. filed Aug. 7, 2003).

Stephanie Showalter, J.D., M.S.E.L.

The United States District Court for the Northern Mariana Islands recently held that the United States possesses superior rights to the submerged lands of the Commonwealth of the Northern Mariana Islands. Consequently, Commonwealth statutes claiming authority over those lands are pre-empted by U.S. law.

Background
The Commonwealth of the Northern Mariana Islands (Commonwealth or Mariana Islands) has a unique and special relationship with the United States. In 1947, the United States agreed to act as Trustee for the Trust Territory of the Pacific Islands, which included the Mariana Islands. In the late 1960s, a number of countries within the Trust Territory began exploring their political options with the U.S. On February 15, 1975, the United States agreed that, upon the termination of the Trusteeship Agreement in 1986, the Mariana Islands would become a self-governing commonwealth, similar in status to Puerto Rico.

Almost immediately, questions arose regarding control of the submerged lands of the Mariana Islands. In January 1978, pursuant to the Fishery Conservation and Management Act of 1976, the United States declared a 200-mile fishery conservation zone around the Mariana Islands. The Mariana Islands challenged the U.S. action in court, but to no avail.1 In response, the Mariana Islands enacted two statutes claiming sovereignty over their submerged lands and marine resources. In the “Submerged Lands Act,” the Mariana Islands claimed ownership of the submerged lands out to 200 nautical miles. With the “Marine Sovereignty Act of 1980,” the Mariana Islands asserted authority over a twelve-mile territorial sea and a 200-mile exclusive economic zone (EEZ). In 1995, the Mariana Islands unilaterally leased submerged lands to a developer for the construction of a marina. In 1996, the Department of Interior asserted U.S. authority over the lands and required the developer to enter into a separate agreement with the U.S. The Mariana Islands again filed suit.

Submerged Lands
Under the “paramountcy doctrine,” the United States has paramount authority over the submerged lands of coastal states and territories seaward of the low water mark.2 This authority can be transferred to a state or territory, but such a transfer requires a “clear, express and unequivocal Congressional enactment.”3 For example, in 1953, Congress passed the Submerged Lands Act (SLA). The SLA transferred ownership of submerged lands out to three nautical miles to coastal states. In a similar manner, Guam, the Virgin Islands, and American Samoa gained control over their submerged lands through the Territorial Submerged Lands Act.
For the Mariana Islands to claim ownership of their submerged lands, Congress must expressly pass ownership to the Commonwealth. That has not happened yet. Section 101 of the Covenant detailing the rights and responsibilities of the U.S. and the Mariana Islands grants the U.S. complete sovereignty over the Mariana Islands at the termination of the Trusteeship Agreement. The Covenant contains no express reservation of the Commonwealth’s ownership of the submerged lands. Furthermore, Congress has refrained from enacting legislation transferring ownership of the submerged lands to the Mariana Islands, indicating an intent to retain ownership. The District Court held that until such legislation is enacted by Congress, the United States has paramount authority over the submerged lands of the Mariana Islands.

The Statutes
Federal law is “the supreme Law of the Land.”4 State and territorial governments do not have the authority to legislate with regard to submerged lands without express federal legislation. As mentioned above, there is no federal legislation granting the Mariana Islands ownership of and sovereignty over its submerged lands. In addition, the Commonwealth’s statutes are in direct conflict with several federal laws, including the Magnuson-Stevens Fishery Conservation and Management Act, which asserts a 200-mile EEZ regulated exclusively by Congress and federal agencies. If valid, the statutes of the Mariana Islands would nullify any federal law claiming the EEZ exclusively for the U.S. The court ruled that because the United States has paramount authority over the submerged lands and the statutes are in direct conflict with federal laws, the Commonwealth’s “Submerged Lands Act” and “Marine Sovereignty Act of 1980” are pre-empted and, therefore, unenforceable.

Conclusion
The United States possesses superior rights over the submerged lands of the Northern Mariana Islands. As a result, Commonwealth statutes claiming authority over those lands are pre-empted by existing U.S. laws.

ENDNOTES
1. See Hillblom v. United States of America, 896 F.2d 426, 431 n.3 (9th Cir. 1990) (U.S. assertion of fisheries jurisdiction was a lawful exercise of federal authority).
2. Commonwealth of the Northern Mariana Islands v. U.S., Civil Action No. 99-0028 at 35 (D. N. Mar. I. filed Aug. 7, 2003).
3. Id. at 40.
4. U.S. Const. Art. VI.

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