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No. 05-457

In the Supreme Court of the United States

COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
SUE ELLEN WOOLDRIDGE
Assistant Attorney General
JAMES C. KILBOURNE
DAVID C. SHILTON
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

The "Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America," Pub. L. No. 94-241, 90 Stat. 263, provides that, upon termination of the governing United Nations Trusteeship Agreement, the Northern Mariana Islands would become a self-governing commonwealth in political union with, and under the sovereignty of, the United States. The question presented is whether the United States obtained paramount rights in, and powers over, oceanic submerged lands extending seaward of the coastline of the Northern Mariana Islands as a result of the covenant by the people of the Commonwealth to place themselves under the sovereignty of the United States.

In the Supreme Court of the United States

No. 05-457

COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-19) is reported at 399 F.3d 1057. The opinion of the district court (Pet. App. 21-79) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on Feb ruary 24, 2005. A petition for rehearing was denied on July 8, 2005 (Pet. App. 81). The petition for a writ of certiorari was filed on October 6, 2005. The jurisdiction of this Court is in voked under 28 U.S.C. 1254(1).

STATEMENT

Petitioner Commonwealth of the Northern Mariana Is lands (CNMI) brought this quiet title action against the United States under 28 U.S.C. 2409a, asserting a claim of jurisdiction over oceanic submerged lands and marine re sources from its coastline to a distance of 200 nautical miles. The district court ruled on cross-motions for summary judg ment that the United States has paramount authority over those lands and resources as a necessary and retained ele ment of its national sovereignty. Pet. App. 20-79. The court of appeals affirmed. Id. at 1-19.

1. In 1947, the United Nations Security Council entered into an agreement with the United States providing that the United States, as Trustee, would exercise non-sovereign over sight authority over the peoples of the Trust Territory of the Pacific Islands (TTPI). Pet. App. 24. In 1966, the six admin istrative districts of the TTPI petitioned the United States to establish a joint commission to consider the future political status of the TTPI. Id. at 25.

The Northern Mariana Islands (NMI) administrative dis trict entered into separate negotiations with the United States because it desired a closer and more permanent rela tionship with the United States than that sought by the other districts. Pet. App. 25. The NMI ultimately chose to become a commonwealth under United States sovereignty. That sta tus was embodied in the "Covenant to Establish a Common wealth of the Northern Mariana Islands in Political Union with the United States of America" (Covenant), signed by representatives of the NMI and the United States on Febru ary 15, 1975. See id. at 29-30. After endorsement by the NMI legislature and approval by vote of the people of the NMI, Congress enacted the Covenant as law. Pub. L. No. 94-241, 90 Stat. 263 (48 U.S.C. 1801 note); Pet. App. 82-97.

The Covenant defines the political relationship between the CNMI and the United States. Upon termination of the United Nations Trusteeship, the CNMI would become a self-governing commonwealth in political union with, and un der the sovereignty of, the United States. Covenant § 101; see Pet. App. 82. Section 104 of the Covenant provides that the United States would have complete responsibility for, and authority with respect to, foreign affairs and defense affecting the NMI. See ibid.

Section 801 of the Covenant provides for the disposition of property formerly owned by the TTPI Government:

All right, title and interest of the Government of the Trust Territory of the Pacific Islands in and to real prop erty in the Northern Mariana Islands on the date of the signing of this Covenant or thereafter acquired in any manner whatsoever will, no later than upon the termina tion of the Trusteeship Agreement, be transferred to the Government of the Northern Mariana Islands. * * *

Pet. App. 88-89.

In accordance with Section 201, the people of the NMI formulated and ratified a Constitution for the CNMI. Pet. App. 34. Article XI, Section 1 of the CNMI Constitution pro vides that "the submerged lands off the coast of the Common wealth to which the Commonwealth now or hereafter may have a claim of ownership under U.S. law are public lands and belong collectively to the people of the Commonwealth who are of Northern Marianas descent." Ibid. The Analysis of the Constitution of the Commonwealth of the Northern Mariana Islands, adopted by the NMI Constitutional Con vention, explained the effect of the United States assumption of sovereignty on jurisdiction over submerged lands:

[Article XI,] Section 1 includes all submerged lands to which the Commonwealth now or at any time in the future may have any right, title or interest. The United States is the owner of submerged lands off the coasts of the states under territorial waters. The states have no rights in these lands beyond that transferred by the United States. The federal power over these lands is based on the provi sions of the United States Constitution with respect to defense and foreign affairs. Under aticle 1 [sic], section 104, of the Covenant, the United States has defense and foreign affairs powers with respect to the Commonwealth and thus has a claim to the submerged lands off the coast of the Commonwealth as well. Section 1 recognizes this claim and also recognizes that the Commonwealth is enti tled to the same interest in the submerged lands off its coasts as the United States grants to the states with re spect to the submerged lands off their coasts. Under this section, any interest in the submerged lands granted to the states or to the Commonwealth in the future also will become part of the public lands of the Commonwealth.

Pet. App. 35-36 (quoting U.S. Exh. 15, C.A. E.R. 1178).

CNMI officials nevertheless later suggested that the CNMI might have permanent jurisdiction over offshore sub merged lands without regard to whether Congress has trans ferred title to those lands. Pet. App. 39. The CNMI legisla ture enacted statutes in 1979 and 1980 asserting that the CNMI had exclusive jurisdiction over submerged lands and offshore marine resources "out to the ocean to a distance of two hundred nautical miles," and providing for the granting of leases for the development of petroleum or minerals in that area. Id. at 41-42. The legislation purports to assert that the CNMI has sovereignty over a twelve-mile territorial sea, as measured from straight archipelagic baselines, as well as a 200-mile exclusive economic zone measured from the same baselines. Id. at 42.

On November 3, 1986, President Reagan issued Proclama tion No. 5564, declaring that the United Nations Trusteeship was terminated with respect to the NMI. See 51 Fed. Reg. 40,399; Pet. App. 45-46. In accordance with Section 1002 of the Covenant, see id. at 96, the President proclaimed that Sections 101 and 104, among others, would become effective on November 4, 1986, and that, as of that date, "[t]he Com monwealth of the Northern Mariana Islands in political union with and under the sovereignty of the United States of Amer ica is fully established." 51 Fed. Reg. at 40,400. United States officials thereafter made several offers to sponsor leg islation that would grant the CNMI authority to control sub merged lands and marine resources to a distance of three miles from the coastline, but the CNMI declined those offers. Pet. App. 48.

2. The CNMI filed two related actions under the Quiet Title Act (QTA), 28 U.S.C. 2409a, claiming exclusive jurisdic tion over submerged lands and marine resources from the low-water mark of its coastline to a seaward distance of two hundred nautical miles. The district court initially dismissed the actions as barred by the QTA's 12-year statute of limita tions, 28 U.S.C. 2409a(g). The court of appeals reversed, hold ing that the CNMI petitioner should be treated as a State for purposes of this provision, which makes an exception for "an action brought by a State." 28 U.S.C. 2409a(g); see Northern Mariana Islands v. United States, 279 F.3d 1070, 1073 (9th Cir. 2002).

On remand, the parties filed cross-motions for summary judgment. In a lengthy opinion, the district court dismissed the CNMI's claim of title to the offshore submerged lands, and it granted the United States' counterclaim for a declara tory judgment. See Pet. App. 21-79. The court ruled that the United States possesses paramount rights over the waters extending seaward of the ordinary low-water mark and over the lands, minerals, and other things of value underlying such waters. The court concluded that the United States acquired paramount authority over the submerged lands lying seaward of the CNMI's coastline as an incident of the United States' acquisition of external sovereignty under Article I of the Cov enant. See id. at 49.

The district court determined that this Court's decisions, beginning with United States v. California, 332 U.S. 19, sup plemented by 332 U.S. 804 (1947), established that the United States' paramount authority over submerged lands seaward of the low water mark is vested in the United States as a nec essary element of national external sovereignty. Pet. App. 50- 51 (also citing United States v. Louisiana, 339 U.S. 699 (1950); United States v. Texas, 339 U.S. 707 (1950); and United States v. Maine, 420 U.S. 515 (1975)). The court con cluded that the "paramountcy doctrine" developed in those cases applies to United States territories as well as to States. Id. at 51-52.

The district court also noted that, while Congress may transfer submerged lands out of federal ownership, Section 801 of the Covenant did not effect such a transfer because it did not contain language indicating an intent to convey sub merged lands to the CNMI. Pet. App. 53-59. The court like wise ruled that the CNMI's enactment of legislation purport ing to confirm the CNMI's claim of title to the submerged lands was ineffective, because the federal paramountcy doc trine (and United States legislation enacted pursuant to the United States' paramount rights to waters seaward of the low- water mark) occupy the field in the case of oceanic submerged lands and because the CNMI statutes are in direct conflict with several specific federal laws. Id. at 75-78.

3. The court of appeals affirmed. Pet. App. 2. The court of appeals first reviewed this Court's paramountcy decisions and rejected the CNMI's argument that the paramountcy doctrine should not apply in this case. Id. at 6-11. The court specifically observed that it had previously ruled in Native Village of Eyak v. Trawler Diane Marie, Inc., 154 F.3d 1090 (9th Cir. 1998), cert. denied, 527 U.S. 1003 (1999), that the paramountcy doctrine extends to claims to offshore areas raised by any party, and not only to the claims of States. Pet. App. 10-11.

The court also rejected the CNMI's claim that Section 801 of the Covenant vested the CNMI with the oceanic submerged lands at issue. Pet. App. 12-14. The court noted that, when Congress transfers submerged lands to States and territories, it uses precise language directly referring to such lands. Id. at 13. The court concluded that Section 801's reference to transferring title to "real property in the Northern Mariana Islands" was not sufficiently clear to defeat the United States' paramount rights to offshore areas. Id. at 13-14.

The court accordingly held that "the United States ac quired paramount interest in the seaward submerged lands," that the CNMI's contrary laws "are inconsistent with the paramountcy doctrine," and that the district court's judgment should be affirmed. Pet. App. 19.

ARGUMENT

The court of appeals correctly ruled that the United States has acquired and retained paramountcy over the sub merged lands seaward of the CNMI's coastline and that fed eral law preempts the CNMI's legislative attempts to assert jurisdiction over those lands. That decision does not conflict with any decision of this Court or of any other court of ap peals. Further review is not warranted.

1. Petitioner is mistaken in asserting (Pet. 9-14) that the court of appeals failed to follow this Court's paramountcy decisions. Those decisions establish that the United States controls oceanic submerged lands as a function of its national sovereignty. As the Court stated in Texas, supra, "once low-water mark is passed the international domain is reached. Property rights must then be so subordinated to political rights as in substance to coalesce and unite in the national sovereign." 339 U.S. at 719.

The Court explained in Texas that the Republic of Texas was a sovereign entity before it sought admission to the Un ion. As a separate republic, Texas claimed sovereignty and ownership rights extending a distance of three marine leagues from its coastline. 339 U.S. at 713. The situation changed, however, when Texas joined the United States:

The United States then took her place as respects for eign commerce, the waging of war, the making of treaties, defense of the shores, and the like. In external affairs the United States became the sole and exclusive spokesman for the Nation. We hold that as an incident to the transfer of that sovereignty any claim that Texas may have had to the marginal sea was relinquished to the United States.

Id. at 718. Similarly, when the United States became sover eign over the NMI in 1986 through the creation of the com monwealth, any claim that the CNMI had to the marginal sea was relinquished. See Maine, 420 U.S. at 522 (federal govern ment has paramount rights in the marginal sea as an attribute of its external sovereign powers "[w]hatever interest the States might have had immediately prior to statehood").

The United States and the NMI shared that understand ing of the connection between sovereignty and rights to oce anic submerged lands at the time that they entered into the Covenant. The section-by-section analysis of the Covenant, prepared by the Marianas Political Status Commission, states that the sovereignty conferred by Section 101 of the Covenant would not differ from the sovereignty that the United States enjoys over States and over other United States territories:

The United States will have sovereignty, that is, ulti mate political authority, with respect to the Northern Mariana Islands. The United States has sovereignty with respect to every state, every territory and the Common wealth of Puerto Rico. United States sovereignty is an essential element of a close and enduring political rela tionship with the United States, whether in the form of statehood, in the traditional territorial form, or as a com monwealth.

C.A. E.R. 1062.1 As that analysis further notes, "[t]he com monwealth relationship embodied in the Covenant is pat terned after the relationship between the United States and Puerto Rico as well as the relationship between the United States and the Territory of Guam." Id. at 1060.2

The CNMI Constitution and its official analysis, adopted soon after the Covenant, correspondingly recognize that the CNMI, like the States and other territories, shall have no rights in offshore submerged lands unless and until the United States transfers such lands to the CNMI. See pp. 3-4, supra. The court of appeals accordingly had no reason to depart from familiar and well-established priniciples. It cor rectly concluded that, when the United States obtained sover eignty over the CNMI, the United States also obtained para mountcy over its offshore areas as a normal incident of the transfer of sovereignty. See Pet. App. 9-11, 16-17.3

There is no basis for the CNMI's assertion (Pet. 12) that the Covenant conveys oceanic submerged lands to the CNMI. Section 801 of the Covenant (Pet. App. 88-89) notes that the CNMI's new government would acquire the "real property" previously owned by the Trust Territory government. Section 801, however, makes no reference to submerged lands. As the court of appeals recognized, when Congress has approved the transfer of offshore submerged lands to States or territories, it has used specific language expressly referring to such lands. Pet. App. 13. Section 801 accordingly is insufficient to divest the United States of title to the submerged lands at issue here. See United States v. Texas, 339 U.S. at 717 ("Do minion over navigable waters and property in the soil under them are so identified with the sovereign power of govern ment that a presumption against their separation from sover eignty must be indulged.") (quoting United States v. Oregon, 295 U.S. 1, 14 (1935)). See Pet. App. 12-17.

2. The CNMI is also mistaken in contending (Pet. 10-12, 14-17) that the lower courts erred by failing to construe the Covenant under principles applicable to Indian treaties. The CNMI acknowledges (Pet. 10) that "[t]he indigenous people of the Commonwealth-the Chamorro and Carolinian peo ple-are not a recognized Indian tribe." It nevertheless as serts (Pet. 11) that the Covenant should be construed as if it were an Indian treaty because "the people of the Common wealth were in a similar conquered state during the negotia tions, as many Indian tribes were." Petitioner cites no prece dent, however, that supports extending the Indian treaty can ons of construction to the Covenant or to other such agree ments that govern the United States' relations with its terri tories.

The CNMI's proposed extension is unwarranted because there is no basis for treating the Covenant as if it were an Indian treaty. The United States did not "conquer" the peo ple of the NMI. After the defeat of Japan, the United Nations designated the United States to be the administering author ity of the Trust Territory, and the Trusteeship Agreement provided that the United States shall "promote the develop ment of the inhabitants of the trust territory toward self-government." Trusteeship Agreement for the Former Japanese Mandated Islands, July 18, 1947, Art. 6(1), 61 Stat. 3302. See People of Saipan v. United States Dep't of Interior, 502 F.2d 90, 95 (9th Cir. 1974), cert. denied, 420 U.S. 1003 (1975). That process culminated in the Covenant, which was "a sovereign act of self-determination" by the people of the NMI. Pet. App. 10 n.6 (quoting Covenant preamble, Pub. L. No. 94-241, 90 Stat. 264).

The people of the NMI freely determined that their future relationship with the United States would involve a common wealth form of government under which all aspects of exter nal sovereignty would be ceded to the United States. The NMI could have chosen a different political relationship with the United States, such as "free association," which other Trust Territory districts adopted. Under that form of associ ation, the NMI would have obtained rights to offshore sub merged lands, but at the price of losing advantages of coming under the external sovereignty of the United States. As the court of appeals recognized, the "trust principles" that the CNMI urges have no application in this context. Pet. App. 10 n.6.4

Moreover, the cases that the CNMI cites for the proposi tion that courts resolve ambiguities in treaties with Indians in their favor have not involved offshore lands and waters. As the Ninth Circuit recognized in Native Village of Eyak v. Trawler Diane Marie, Inc., supra, federal paramountcy prin ciples preclude claims by Indians to lands underlying the ocean. See 154 F.3d at 1095. For that reason as well, there would be no basis for applying principles governing the con struction of Indian treaties to find an implicit conveyance of oceanic submerged lands in this case. See Inupiat Cmty. of Arctic Slope v. United States, 548 F. Supp. 182, 187 (D. Alaska 1982) (applying federal paramountcy to reject claims of Alaska Natives to the outer continental shelf), aff'd, 746 F.2d 570 (9th Cir. 1984), cert. denied, 474 U.S. 820 (1985).

3. Contrary to the CNMI's suggestion (Pet. 17-18), there is no reason to believe that the court of appeals' decision will adversely affect the CNMI's residents by restricting access to fishing or other traditional ocean-based pursuits, or that it will have a negative impact on cultural identity. The decision does not prevent use of the oceanic resources; it merely rec ognizes that the United States has paramount authority over the offshore areas unless and until Congress acts to give the CNMI control over those areas. The CNMI, which asserts a claim of sovereignty to offshore areas within 200 miles of its coastline, has resisted the United States' overtures to provide it with the same measure of ownership that the States and other territories enjoy-title to a three-mile limit. See Pet. App. 48; see, e.g., Submerged Lands Act, 43 U.S.C. 1301 et seq. In light of that history, the CNMI's claim of unfair treatment is unpersuasive.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
SUE ELLEN WOOLDRIDGE
Assistant Attorney General
JAMES C. KILBOURNE
DAVID C. SHILTON
Attorneys

FEBRUARY 2006

1 The lower courts have treated the section-by-section analysis as an "authoritative" guide to the meaning of the Covenant provisions. See Pet. App. 16; A & E Pac. Constr. Co. v. Saipan Stevedore Co., 888 F.2d 68, 71 n.4 (9th Cir. 1989); Fleming v. Department of Pub. Safety, 837 F.2d 401, 408 (9th Cir.), cert. denied, 488 U.S. 889 (1988); see also Northern Mariana Islands v. Atalig 723 F.2d 682, 686 n.8 (9th Cir.), cert. denied, 467 U.S. 1244 (1984).

2 The Solicitor of the Department of the Interior determined in 1958 that this Court's paramountcy cases apply to submerged lands offshore of the Territory of Guam. See Rights of Abutting Upland Property Owners to Claim Title to Reclaimed Land Produced by Filling on Tidelands and Submerged Lands Adjacent to the Territory of Guam, 65 Interior Dec. 193 (1958) (C.A. E.R. 1669, 1671-1674). In accordance with that conclusion, Congress has conveyed to Guam submerged lands within three miles of its coastline. See Territorial Submerged Lands Act, Pub. L. No. 93-435, 88 Stat. 1210 (48 U.S.C. 1705). Congress has also granted the Commonwealth of Puerto Rico ownership rights in submerged lands seaward of its coastline. See 48 U.S.C. 749. Congress has not taken any similar action with respect to the CNMI.

3 Article V of the Covenant, entitled "Applicability of Laws," sup ports that conclusion. Pet. App. 85-88. Section 502(a)(2) of that Article provides that the laws of the United States that are in existence on January 9, 1978, and that "are applicable to Guam and which are of general application to the several States," will apply to the CNMI "as they are applicable to the several States," unless otherwise provided in the Covenant. Id. at 86. Section 502(a) accordingly confirms that the paramountcy doctrine applies to the CNMI, just as it applies to Guam and to the various States.

4 The CNMI's reliance (Pet. 11) on a statement made by Repre sentative Burton, floor manager for the joint resolution, is misplaced. He entered his remark about resolving ambiguities in favor of the people and government of NMI into the Congressional Record on March 18, 1976, after final House consideration and approval, on March 11, 1976, of Senate amendments to the House Joint Resolution. See 122 Cong. Rec. 6147-6149, 7272-7273 (1976). A floor manager's statements about a bill cannot be accorded weight when, as here, they were not made available to Congress before it took action on the bill. National Ass'n of Greeting Card Publishers v. United States Postal Serv., 462 U.S. 810, 833 (1983); see generally Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 644 n.17 (1981) ("Courts, of course, should be wary of relying on the remarks of a single legislator.").