CNMI AG: U.S. Military Could Use Eminent Domain To Take Land

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Manibusan says bill preventing leases would have not practical effect

By Cherrie Anne E. Villahermosa

SAIPAN, CNMI (Marianas Variety, June 11, 2015) – Attorney General Edward Manibusan says the bill introduced by Senate Floor Leader Arnold I. Palacios cannot prevent the U.S. military from taking the land it desires through eminent domain — "the right of a government or its agent to expropriate private property for public use, with payment of compensation."

Palacios’s Senate Bill 19-42 proposes to prohibit the Department of Public Lands from leasing any public land for military live-fire or bombing activity.

On Tuesday evening in the House chamber, the Senate Committee on Resources, Economic Development and Programs conducted a public hearing on the measure.

Not a lot of people showed up, but AG Manibusan was one of the officials who submitted a written comment regarding the bill.

He said the measure will not prevent the military from using the land it already leases in the commonwealth for live-fire exercises. "But it can prevent the United States from consensually leasing additional land for these purposes."

However, Manibusan said "the bill cannot prevent the United States from taking the land it desires through eminent domain which could be a far worse outcome for the commonwealth than if the land were leased."

He said the measure, if enacted, will "discourage the United States from using the first option, increasing the odds that the plan would be abandoned but also increasing the odds of costly and time-consuming litigation that would give the people of the commonwealth less control over the acquisition process than if the Department of Public Lands were permitted to negotiate freely with the United States."

The AG said the existing lease between the U.S. and the CNMI concerns 17,799 acres on Tinian, 177 acres on Saipan and all of Farallon de Medinilla.

"This lease is governed by the Covenant and its accompanying Technical Agreement Regarding Use of Land to be leased by the U.S. in the NMI. Neither the Covenant nor the Technical Agreement prohibit the use of these lands for live-fire or bombing exercises nor do they allow the commonwealth to make unilateral changes to the lease to insert those terms," Manibusan said.

"As a result, the commonwealth cannot add these conditions to the use or the lands the U.S. already leases under the Covenant. It is unclear whether this bill’s restrictions would apply if the lease is renewed as provided in Covenant Section 803 (a)."

He said the "provision of the Covenant allows the CNMI to conduct negotiations for lease agreements. The CNMI representatives would be DPL [but] the Legislature is just as much a part of the government of the NMI as the DPL and because the department is an executive branch agency, the Legislature may lawfully constrain its actions."

He added, "Therefore, if the Legislature prohibits the lease of public lands to the U.S. for a certain purpose, the DPL must follow that prohibition."

However, "the federal government is not required to follow laws established by its political subdivisions. There is no requirement in the Covenant that the federal government follow CNMI law when leasing land."

Palacios’s bill, the AG said, "would only prevent DPL from entering a prohibited lease. It would not restrain the US."

"In practical terms," he added, "this means that if DPL and the U.S. entered into a lease that violated this bill, the CNMI would only be able to sue the department but not the U.S. This bill only restricts the department from leasing public lands for certain military activities. It does not restrict the other methods of transferring land under Section 806 (b) of the Covenant such as purchase or land exchange."

The AG said even if S.B. 19-42 is enacted, "the U.S. may still acquire the land and use it for military purposes through the eminent domain process. The Covenant allows the United States to use eminent domain to acquire property to the same extent and in the same manner as it has and can exercise the power to use eminent domain to lease property."

Northern Island Mayor Jerome Aldan also submitted written comments in support of the bill.

Aldan said the intent of the bill is "commendable as it recognizes the scarce amount of land mass in the CNMI and understands the importance of the government to preserve the remaining land in the CNMI for future generation."

Aldan, who is against the proposal to use Pagan for military activities, said his greatest "concern is the potential destruction of the beautiful and pristine island of Pagan if the military uses the entire island for continuous and uninterrupted training activities."

DPL Secretary Pete A. Tenorio, a Covenant negotiator, attended the public hearing and said that just saying no to the military proposal would create a bad precedent for the CNMI.

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