[Senate Report 111-197]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 405
111th Congress                                                   Report
                                 SENATE
 2d Session                                                     111-197

======================================================================



 
   CONVEYANCE OF CERTAIN SUBMERGED LANDS TO THE COMMONWEALTH OF THE 
                        NORTHERN MARIANA ISLANDS

                                _______
                                

                  May 24, 2010.--Ordered to be printed

                                _______
                                

   Mr. Bingaman, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 934]

    The Committee on Energy and Natural Resources, to which was 
referred the Act (H.R. 934) to convey certain submerged lands 
to the Commonwealth of the Northern Mariana Islands in order to 
give that territory the same benefits in its submerged lands as 
Guam, the Virgin Islands, and American Samoa have in their 
submerged lands, having considered the same, reports favorably 
there-on without amendment and recommends that the Act do pass.

                         Purpose of the Measure

    The purpose of H.R. 934 is to convey to the government of 
the Commonwealth of the Northern Mariana Islands (CNMI) the 
submerged lands surrounding the islands extending three 
geographical miles outward from the coastline.

                          Background and Need

    The Northern Mariana Islands are an archipelago of fourteen 
islands between the Philippines and Japan and extending north 
of Guam. The U.S. captured the islands in World War II and in 
1947 they became a district of the U.S.-administered, United 
Nations Trust Territory of the Pacific Islands. In accordance 
with the terms of the U.N. Trusteeship Agreement, the people of 
the Northern Mariana Islands expressed their desire for their 
future political status which was to join in political union 
with the U.S. Following bilateral negotiations, the Covenant to 
Establish a Commonwealth of the Northern Mariana Islands in 
Political Union with the United States of America (the 
``Covenant'') was approved in a U.N.-observed plebiscite in the 
Mariana Islands and by the U.S. Congress with the enactment of 
Public Law 94-241 in 1976.
    The Covenant defined the relationship between the U.S. and 
the CNMI, and provided for the establishment of self-government 
under a local constitution, but under the sovereignty of the 
U.S., and extended U.S. citizenship to the islands' residents. 
Article VIII provided for the transfer of real property from 
the Trust Territory Government to the new CNMI government, but 
disagreement arose regarding the status of submerged lands.
    In 1999, the CNMI filed a quiet title suit against the U.S. 
in the U.S. District Court for the Northern Mariana Islands, 
seeking a ruling that the CNMI holds title to the submerged 
lands underlying the internal waters, archipelagic waters, and 
territorial waters adjacent to the Northern Mariana Islands. 
The district court granted summary judgment in favor of the 
United States, based on the paramountcy doctrine. As 
established by the Supreme Court in United States v. 
California, 332 U.S. 19 (1947), and subsequent cases, the 
paramountcy doctrine holds that the United States possesses 
paramount rights over seaward submerged lands, as a function of 
national external sovereignty.
    On appeal, the U.S. Court of Appeals for the Ninth Circuit 
Court of Appeals affirmed the district court's judgment. CNMI 
v. United States, 399 F.3d 1057 (9th Cir. 2005). The Ninth 
Circuit held that the U.S. acquired paramount rights in the 
submerged lands off the shores of the CNMI based on the U.S. 
sovereignty over the CNMI pursuant to the Covenant. The court 
recognized, however, that Congress can, and has, transferred 
ownership of submerged lands to the states and other 
territories. The Court specifically cited the Submerged Lands 
Act, 43 U.S.C. 1301 et seq., which conveyed submerged lands up 
to three geographical miles from shore to the states, and the 
Territorial Submerged Lands Act, 42 U.S.C. 1705, which 
transferred submerged lands to the territories of Guam, the 
U.S. Virgin Islands, and American Samoa.
    The Territorial Submerged Lands Act, which became law in 
1974, two years before approval of the Covenant, did not 
include the CNMI, and CNMI remains the only U.S. territory that 
does not have title to its submerged lands. Legislation is 
needed to convey to the CNMI title to its submerged lands 
seaward of its coastline.

                          Legislative History

    On October 25, 2005, during the 109th Congress, the 
Committee on Energy and Natural Resources held a hearing on S. 
1831, legislation that contained language along the lines of 
H.R. 934 (S. Hrg. 109-291), but no further action was taken due 
to objections from the CNMI.
    H.R. 934 was introduced in the 111th Congress on February 
10, 2009, by the Delegate from the CNMI, Gregorio Kilili 
Sablan. It was reported by the House Committee on Natural 
Resources on June 23, 2009, H. Rept. 111-176, and passed the 
House on July 15, 2009, by a vote of 416 to 0.
    H.R. 934 was referred to the Committee on July 16, 2009. 
The Committee held a hearing on December 17, 2009 (S. Hrg. 111-
364), and ordered H.R. 934 favorably reported at a business 
meeting on May 6, 2010.

                        Committee Recommendation

    The Committee on Energy and Natural Resources, in open 
business session on May 6, 2010, by a unanimous voice vote of a 
quorum present, recommends that the Senate pass H.R. 934, as 
described herein.

                      Section-by-Section Analysis

    Section 1(a) amends the first section of Public Law 93-438 
(48 U.S.C. 1705; commonly known as the Territorial Submerged 
Lands Act), which conveys the submerged lands up to three 
geographical miles seaward from the coastlines of Guam, the 
Virgin Islands, and American Samoa, to the governments of those 
territories, by inserting ``the Commonwealth of the Northern 
Mariana Islands'' after ``Guam,'' every place it appears. The 
effect of the amendment is to convey to the government of the 
CNMI the lands covered by tidal waters up to three geographical 
miles from the coastline of the CNMI, on the same terms as 
submerged lands were conveyed to Guam, the Virgin Islands, and 
American Samoa.
    Subsection (b) provides that each reference of the date of 
enactment of Public Law 93-435 shall also be considered as a 
reference to the date of enactment of H.R. 934.

                    Cost and Budgetary Consideration

    H.R. 934--An act to convey certain submerged lands to the 
Commonwealth of the Northern Mariana Islands in order to give 
that territory the same benefits in its submerged lands as 
Guam, the Virgin Islands, and American Samoa have in their 
submerged lands.
    H.R. 934 would convey ownership of submerged lands to the 
Commonwealth of the Northern Mariana Islands (CNMI) from the 
mean high tide seaward to the point that is three geographical 
miles from its coast line. Under current law, those lands are 
owned by the United States. Based on information from the 
Department of the Interior, CBO estimates that implementing 
H.R. 934 would have no significant cost to the federal 
government. Enacting the bill would not affect direct spending 
or revenues; therefore, pay-as-you-go procedures would not 
apply.
    H.R. 934 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    On June 18, 2009, CBO transmitted a cost estimate for H.R. 
934 as ordered reported by the House Committee on Natural 
Resources on June 10, 2009. The two versions of the legislation 
are similar, and the CBO cost estimates are the same.
    The CBO staff contact for this estimate is Matthew 
Pickford. This estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

                      Regulatory Impact Evaluation

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out H.R. 934.
    The bill is not a regulatory measure in the sense of 
imposing Government-established standards or significant 
economic responsibilities on private individuals or businesses.
    No personal information would be collected by the Federal 
government. Therefore, there would be no impact on personal 
privacy.
    Little, if any additional paperwork would be required by 
the Federal government from the enactment of H.R. 934.

                   Congressionally Directed Spending

    H.R. 934, as reported, does not contain any congressionally 
directed spending items, limited tax benefits, or limited 
tariff benefits as defined in rule XLIV of the Standing Rules 
of the Senate.

                        Executive Communications

    The testimony provided by the Department of the Interior at 
the December 17, 2009 hearing on H.R. 934 follows:

  Statement for the Record, United States Department of the Interior, 
 Before the Senate Committee on Energy and Natural Resources Regarding 
   H.R. 934--Conveyance of Northern Mariana Islands Submerged Lands, 
                           December 17, 2009

    Mr. Chairman and members of the Committee on Energy and 
Natural Resources I am pleased to appear before you today on 
behalf of the Department of the Interior to support enactment 
of legislation that would convey the three geographical miles 
of submerged lands adjacent to the Northern Mariana Islands to 
the Government of the Northern Mariana Islands. The 
Administration would strongly support this bill if amended to 
address the issues outlined below.
    The bill is intended to give the Commonwealth of the 
Northern Mariana Islands (CNMI) authority over its submerged 
lands from mean high tide seaward to three geographical miles 
distant from its coast lines.
    It has been the position of the Federal Government that 
United States submerged lands around the Northern Mariana 
Islands did not transfer to the CNMI when the Covenant came 
into force. This position was validated in Ninth Circuit Court 
of Appeals opinion in the case of the Commonwealth of the 
Northern Mariana Islands v. the United States of America. One 
consequence of this decision is that CNMI law enforcement 
personnel lack jurisdiction in the territorial waters 
surrounding the islands of the CNMI without a grant from the 
Federal Government.
    At present, the CNMI is the only United States territory 
that does not have title to the submerged lands in that portion 
of the United States territorial sea that is three miles 
distant from the coastlines of the CNMI's islands. It is 
appropriate that the CNMI be given the same authority as her 
sister territories.
    I have three comments on the bill, and then a 
recommendation. First, the Territorial Submerged Lands Act, 
which became public law in 1974, contains several sections that 
refer to the territories by name. H.R. 934 inserts the CNMI's 
name only in section 1, but not in section 2, which reserves 
military rights and navigational servitudes. In order to 
achieve consistency, the Department recommends that the CNMI be 
included in all provisions of the Territorial Submerged Lands 
Act where other territories are named.
    Second, H.R. 934 includes language interpreting ``date of 
enactment'' in the original act as meaning ``date of 
enactment'' of H.R. 934 when referencing the provisions of H.R. 
934. For those who will later interpret the statute, it would 
be helpful if the interpretation is included in the main 
statute itself, rather than being relegated to a separately 
listed amendment or reference note.
    Third, on January 6, 2009, by presidential proclamation, 
the Marianas Trench Marine National Monument was created, 
including the Islands Unit, comprising the submerged lands and 
waters surrounding Uracas, Maug, and Asuncion, the northernmost 
islands of the CNMI. While creation of the monument is a 
historic achievement, it should be remembered that the leaders 
and people of the CNMI were and are these three islands' first 
preservationists. They included in their 1978, plebiscite-
approved constitution the following language:

                     ARTICLE XIV: NATURAL RESOURCES

    Section 1: Marine Resources. The marine resources in the 
waters off the coast of the Commonwealth over which the 
Commonwealth now or hereafter may have any jurisdiction under 
United States law shall be managed, controlled, protected and 
preserved by the legislature for the benefit of the people.
    Section 2: Uninhabited Islands. . . . The islands of Maug, 
Uracas, Asuncion, Guguan and other islands specified by law 
shall be maintained as uninhabited places and used only for the 
preservation and protection of natural resources, including but 
not limited to bird, wildlife and plant species.
    It is important to note that the legislature has never 
taken action adverse to the preservation of these northern 
islands and the waters surrounding them. The people of the CNMI 
are well aware of their treasures. CNMI leaders consented to 
creation of the monument because they believed that the 
monument would bring Federal assets for marine surveillance, 
protection, and enforcement to the northern islands that the 
CNMI cannot afford.
    If enacted as passed by the House, H.R. 934 would become a 
public law enacted subsequent to the creation of the monument. 
H.R. 934's amendments to the Territorial Submerged Lands Act 
would convey to the CNMI the submerged lands surrounding 
Uracas, Maug, and Asuncion without addressing the effect of 
this conveyance on the administrative responsibilities of the 
Department of the Interior and the Department of Commerce. 
Presidential Proclamation 8335 establishes shared management 
responsibilities for the Marianas Marine National Monument 
between the Department of the Interior and the Department of 
Commerce. The proclamation further states that the ``Secretary 
of Commerce shall have the primary management responsibility . 
. . with respect to fishery-related activities regulated 
pursuant to the Magnuson-Stevens Fishery Conservation and 
Management Act (16 U.S.C. Sec. Sec. 1801 et seq.) and any other 
applicable authorities.'' The proclamation provides that 
submerged lands that are granted to the CNMI ``but remain 
controlled by the United States under the Antiquities Act may 
remain part of the monument'' for coordinated management with 
the CNMI. The Department of the Interior seeks to harmonize all 
interests in the waters surrounding the CNMI's three 
northernmost islands and provide sufficient control over the 
submerged lands and waters of the monument to enable co-
management of the Islands Unit of the monument. Thus, the 
Department recommends that language be included in H.R. 934 
referencing the proclamation that created the monument, 
including the Federal and CNMI roles. Such harmonizing language 
is intended to protect the Islands Unit of the monument and at 
the same time acknowledge the prescient and historic 
conservation effort of the leaders and people of the CNMI in 
protecting Uracas, Maug, and Asuncion, and their surrounding 
waters.
    I have appended to my written statement legislative 
language that would (1) address the submerged lands surrounding 
the Northern Mariana Islands to the Government of the Northern 
Mariana Islands, and (2) clearly address the three issues of 
concern to the Department that I raised here today. The 
Department of the Interior strongly supports H.R. 934 if it is 
amended to include the legislative language provided. The 
Department of the Interior looks forward to the Commonwealth of 
the Northern Mariana Islands gaining rights in the submerged 
lands surrounding them similar to those accorded her sister 
territories.
    Be it enacted by the Senate and House of Representatives of 
the United States of America in Congress assembled, that Public 
Law 93-435 (48 U.S.C. 1705) is amended:
    (a) by inserting the words `the Commonwealth of the 
Northern Mariana Islands,' after the word `Guam,' wherever it 
appears, and
    (b) by adding at the end the following language:
    `Sec. 7. All provisions of this Act that refer to ``date of 
enactment'', shall, when applicable to the Commonwealth of the 
Northern Mariana Islands, mean the date of enactment of the 
amendment that included the Commonwealth of the Northern 
Mariana Islands in this Act.
    `Sec. 8. Nothing in this Act is intended to amend, repeal, 
or otherwise alter the Marianas Trench Marine National Monument 
as described in Presidential Proclamation 8335 dated January 6, 
2009, including the proclamation's provisions that reference 
the management responsibilities of the Secretaries of the 
Interior and Commerce and the rights, responsibilities of 
officials of the Commonwealth of the Northern Mariana Islands.'

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill, H.R. 934, as ordered reported, are shown as follows 
(new matter is printed in italic and existing law in which no 
change is proposed is shown in roman):

                         ACT OF OCTOBER 5, 1974


                          (Public Law 93-435)


AN ACT to place certain submerged lands within the jurisdiction of the 
 governments of Guam, the Virgin Islands, and American Samoa, and for 
                             other purposes

    Be it enacted by the Senate and House of Representatives of 
the United States of America in Congress assembled, That (a) 
subject to valid existing rights, all right, title, and 
interest of the United States in lands permanently or 
periodically covered by tidal waters up to but not above the 
line of mean high tide and seaward to a line three geographical 
miles distant from the coastlines of the territories of Guam, 
the Commonwealth of the Northern Mariana Islands, the Virgin 
Islands, and American Samoa, as heretofore or hereafter 
modified by accretion, erosion, and reliction, and in 
artificially made, filled in, or reclaimed lands which were 
formerly permanently or periodically covered by tidal waters, 
are hereby conveyed to the governments of Guam, the 
Commonwealth of the Northern Mariana Islands, the Virgin 
Islands, and American Samoa, as the case may be, to be 
administered in trust for the benefit of the people thereof.
    (b) There are excepted from the transfer made by subsection 
(a) hereof--
          (i) * * *

           *       *       *       *       *       *       *

    Upon request of the Governor of Guam, the Commonwealth of 
the Northern Mariana Islands, the Virgin Islands, or American 
Samoa, the Secretary of the Interior may, with or without 
reimbursement, and subject to the procedure specified in 
subsection (c) of this section convey all right, title, and 
interest of the United States in any of the lands described in 
clauses (ii), (iii), (iv), (v), (vi), (vii), or (viii) of this 
subsection to the government of Guam, the Commonwealth of the 
Northern Mariana Islands, the Virgin Islands, or American 
Samoa, as the case may be, with the concurrence of the agency 
having custody thereof.

           *       *       *       *       *       *       *

    (d)(1) The Secretary of the Interior shall, not later than 
sixty days after the date of enactment of this subsection, 
convey to the governments of Guam, the Commonwealth of the 
Northern Mariana Islands, the Virgin Islands, and American 
Samoa, as the case may be, all right, title, and interest of 
the United States in deposits of oil, gas, and other minerals 
in the submerged lands conveyed to the government of such 
territory by subsection (a) of this section.

                                  
