Mandated CNMI Land Compensation Payment Called ‘Unconstitutional’

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Bill’s author critical of governor, Dept. Public Lands refusal to pay

By Haidee V. Eugenio

SAIPAN, CNMI (Saipan Tribune, Sept. 19, 2014) – Over 200 Saipan landowners should not expect to get paid today from the $800,000 Managaha landing fee, after the Office of the Attorney General and the Department of Public Lands said yesterday that the local law that provides for the land compensation payments is "unconstitutional."

Saipan and Northern Islands Legislative Delegation chair Rep. Ray Tebuteb (Ind-Saipan) separately insisted yesterday that Saipan Local Law 18-19 does not violate the NMI Constitution, that DPL should pay landowners $800,000 by today’s deadline, and that Gov. Eloy S. Inos should have vetoed the bill if the Executive Branch really believed the measure is unconstitutional.

Instead, Tebuteb said, the governor—along with OAG and DPL—allowed the local bill to become law without the governor’s signature on July 19.

"If there is an obvious problem with the law, why was there no veto? Why did the AG stay silent for 25 days, which is five days longer than the constitutional requirement of 20 days, while the bill became law? Now that the law is law, instead of paying what is owed, why does DPL wait 60 days to claim that the law is unconstitutional and issue a press release instead of issuing the checks?" Tebuteb said in a statement after an interview with reporters on Capital Hill.

DPL also brought up yesterday a 2006 legal opinion that stated partly that the department has the exclusive authority to manage and dispose of public lands in the CNMI, which necessarily includes Managaha Island.

The same 2006 legal opinion states that Public Law 13-16, which makes a one-time appropriation of Managaha landing fees for the Marianas Visitors Authority to revitalize the tourism industry, is also unconstitutional.

Tebuteb, in an interview, said permits and fees to go on Goat Island are kept and spent by the Tinian municipality and not DPL.

"So why can’t Managaha landing fees be appropriated by the Saipan delegation? These are not land leases that DPL gets to manage but these are fees paid by tourists and not by the lessee for Managaha," Tebuteb said.

As of yesterday, it is not known whether DPL faces any sanction for not complying with a local law, whereas DPL or the Executive Branch’s planned certified question—as advised by OAG—has yet to reach the court.

Besides those owed land compensation payments on Saipan, other intended beneficiaries of Saipan Local Law 18-19 were the NMI Museum of History and Culture and the Northern Marianas Descent Corp., which were supposed to get $100,000 each by mid-October.

DPL, in a statement, said OAG advised the department that making payments from the Managaha landing and user fees pursuant to SLL 18-19 "would be an unconstitutional act."

"To resolve the issue, DPL and the Legislature are cooperating in seeking to submit a certified question to the Supreme Court concerning the constitutionality of SLL 18-19," DPL said.

DPL said the question revolves around whether the Managaha landing and user fees are revenues generated from the management and disposition of public lands, which DPL is constitutionally required to remit to the Marianas Public Land Trust, or whether the Legislature may appropriate such funds.

The issue is also currently pending on a motion before the Superior Court in Commonwealth v. Lot No. 353 New G, Civil Action No. 97-0266. In that civil case, the court appointed Tebuteb as administrator.

DPL said yesterday that if the courts opine that SLL 18-19 is constitutional, "DPL will proceed to make payments to land claimants within the Third Senatorial District equally by percentage pursuant to SLL 18-19."

"If the courts rule that SLL 18-19 is unconstitutional, however, the Legislature will need to appropriate payments to land claimants from the general fund or other sources not prohibited by the NMI Constitution," DPL said.

The Executive Branch, through the advice of OAG, plans to submit a certified question to the court.

But two opposing parties have to agree before submitting such certified question to the court. In this case, the other party is the Saipan delegation while the other is the governor or the Executive Branch, or DPL or OAG.

As chairman of the Saipan delegation, Tebuteb said he has to get the consensus of Saipan lawmakers who voted to pass the local bill, believing that appropriating Managaha landing fees for land compensation, among other things, does not violate the Constitution.

"Do we really need a certified question? Do we really need to go to court to enforce the law? After winning their cases in the courts, do we need to insult our people further by making them wait for the court to take up this issue of how to pay for the judgments?" Tebuteb said in a statement later in the day.

He made it "crystal clear" that he does not want this matter tied up in the courts.

"But if DPL does not want to release the funds and the administration does not want to follow a law that it enacted, then of course I will do whatever I can to expedite a certified question. But this is a last resort," he said.

Tebuteb also questioned whether DPL is trying to personalize the issue by bringing up certain court cases.

"I hope not. This case is not about me. There are many families that are being adversely affected by the administration’s refusal to follow the law. My family is just one of many. Let’s keep in mind where these judgments came from in the first place. The courts. People won their cases in the court and these are legitimate debts. It is shameful that DPL and the administration would seek to use the courts to delay the rightful distribution of judgments even further," he said.

To reiterate his point, Tebuteb said the Legislature’s position is that the Managaha fees are totally different from regular DPL public land lease revenue.

Managaha visitors do not lease or rent Managaha for $5 a day, he said.

"If they did, then DPL would have a valid claim and MPLT should be demanding back payments with interest. However, the landing fee that is charged to visitors is like a temporary license fee or the cost of admission, like the parking fee at the airport. You are paying to enter public property and enjoy certain services, you are not paying to own or possess it. It is that simple," he said.

Tebuteb added that he personally wonders if OAG is "trying to avoid enforcing the law."

"If they had issues with the law, they could have advised the governor of these concerns and if he agreed, he could have simply vetoed the bill. Going to the courts will delay the matter and that seems to be what they want. I was hoping to avoid it but I cannot force DPL and the AG’s Office to follow the law," he added.

The local bill that became SLL 18-19 was authored by Rep. Anthony Benavente (Ind-Saipan). He said once DPL distributes the $800,000 payments to landowners, he would introduce another local bill that appropriates $2 million in Managaha landing fee also to compensate landowners whose Saipan properties were used by the government for public roads, wetlands, and ponding basins.

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