[Senate Report 111-197]
[From the U.S. Government Publishing Office]
Calendar No. 405
111th Congress Report
SENATE
2d Session 111-197
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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.