CNMI v. United States ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
COMMONWEALTH OF THE NORTHERN 
MARIANA ISLANDS,
Plaintiff-counter-claim-defendant- No. 03-16556
Appellant,
v.  D.C. No.
CV-99-00028-ARM
UNITED STATES OF AMERICA, OPINION
Defendant-counter-claimant-
Appellee.

Appeal from the United States District Court
for the District of the Northern Mariana Islands
Alex R. Munson, Chief District Judge, Presiding
Argued and Submitted
November 2, 2004—Honolulu, Hawaii
Filed February 24, 2005
Before: Robert R. Beezer, Susan P. Graber, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Beezer
2185
CNMI v. UNITED STATES 2187
COUNSEL
James D. Livingstone, Assistant Attorney General, Saipan,
MP, for the plaintiff-counter-claim-defendant/appellant.
David C. Shilton, United States Department of Justice, Wash-
ington, D.C., for the defendant-counter-claimant/appellee.
OPINION
BEEZER, Circuit Judge:
This appeal addresses ownership rights to the submerged
lands off the shores of the Commonwealth of the Northern
Mariana Islands [hereinafter “CNMI” or “Commonwealth”].
The CNMI filed this quiet title action against the United
States, requesting declaratory and injunctive relief to establish
the CNMI as the owner of the submerged lands underlying the
“internal,” “archipelagic,” and “territorial” waters adjacent to
the Commonwealth. The United States counterclaimed on the
title dispute and further sought a judgment decreeing two laws
passed by the CNMI legislature to be unenforceable assertions
of the Commonwealth’s ownership of the submerged lands.
2188 CNMI v. UNITED STATES
The district court entered summary judgment in favor of the
United States. The CNMI now appeals. We have jurisdiction
under 28 U.S.C. § 1291 and affirm.
I
The CNMI is a commonwealth government comprised of
sixteen islands in the West Pacific.1 Through a Covenant
agreement with the United States, the CNMI is under the sov-
ereignty of the United States but retains the “right of local
self-government.” Covenant to Establish a Commonwealth of
the Northern Mariana Islands in Political Union with the
United States of America §§ 101, 103, Pub. L. No. 94-241, 90
Stat. 263 (1976), reprinted in 48 U.S.C. § 1801 note [herein-
after “Covenant”]. As in previous opinions, see, e.g., United
States ex rel. Richards v. De Leon Guerrero, 4 F.3d 749, 751-
52 (9th Cir. 1993), we briefly summarize below the history of
the relationship between the United States and the people of
the islands included in the Commonwealth in order to provide
the legal background for this lawsuit.
A
Following World War II, the United Nations established
the “Trust Territory of the Pacific Islands” [hereinafter
“TTPI”] over Micronesian islands in the Pacific. The United
States “was not a sovereign over, but a trustee for the
[TTPI].” Wabol v. Villacrusis, 958 F.2d 1450, 1458 (9th Cir.
1992). The “paramount duty of the United States was to stew-
ard Micronesia to self government.” Temengil v. Trust Terri-
tory of the Pacific Islands, 881 F.2d 647, 649 (9th Cir. 1989)
(discussing Trusteeship Agreement for the Former Japanese
Mandated Islands, July 18, 1947, United States-United
1
The Northern Marianas are in the same geographic chain of islands as
Guam (which is the “Southern” Mariana). Stanley K. Laughlin, Jr., The
Law of United States Territories and Affiliated Jurisdictions § 21.1
(1995).
CNMI v. UNITED STATES 2189
Nations, art. 6, 61 Stat. 3301, T.I.A.S. No. 1665). Inhabitants
of the TTPI formed a Congress in 1965 to discuss the future
political alignment of the islands. See Stanley K. Laughlin,
Jr., The Law of United States Territories and Affiliated Juris-
dictions § 22.3 (1995). Representatives from one sub-group of
islands, the Northern Marianas, favored establishing closer
ties with the United States than representatives from the other
islands. Ultimately, a delegation from the Northern Marianas
entered into independent negotiations with the United States.
The Covenant formed out of those talks. In 1975, the North-
ern Mariana Islands legislature unanimously approved the
Covenant and 78.8% of voters in the Northern Marianas rati-
fied the agreement in a plebiscite vote. See De Leon Guer-
rero, 4 F.3d at 751. Congress enacted the Covenant into law
in 1976. Pub. L. No. 94-241, 90 Stat. 263 (1976).
The Covenant’s ten articles detail the political relationship
between the United States and the CNMI. Of particular rele-
vance here is Article I. In addition to guaranteeing the Com-
monwealth the right of local self-government under the
sovereignty of the United States, see Covenant §§ 101, 103,
Article I provides that the Covenant, “together with those pro-
visions of the Constitution, treaties, and laws of the United
States applicable to the Northern Mariana Islands, will be the
supreme law of the Northern Mariana Islands.” Id. § 102.
Article I also establishes that the United States has “complete
responsibility for and authority with respect to matters relat-
ing to foreign affairs and defense.” Id. § 104.
Articles V, VIII and X of the Covenant also play central
roles in this dispute. Pursuant to Article V, only certain provi-
sions within the United States Constitution and other federal
laws are applicable to the Commonwealth. See id. §§ 501,
502. Article VIII addresses distribution of “Property” within
the Northern Marianas. In relevant part, Section 801 specifies
that:
All right, title, and interest of the Government of the
Trust Territory of the Pacific Islands in and to real
2190 CNMI v. UNITED STATES
property 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 termination of the Trusteeship Agreement, be
transferred to the Government of the Northern Mari-
ana Islands.
Finally, Article X controls how and when the provisions of
the Covenant come into force. Id. § 1003. Some provisions,
including Section 801’s transfer of property, became effective
immediately upon the Covenant’s approval. See id. § 1003(a).
Others, such as the right to local self-government, id. § 103,
required the additional approval of the Covenant’s Constitu-
tion, which occurred in 1978. See id. § 1003(b); Temengil,
881 F.2d at 650. The remainder became effective after the
official termination of the trusteeship in 1986. See Sagana v.
Tenorio, 384 F.3d 731, 733-34 (9th Cir. 2004), petition for
cert. filed, 73 U.S.L.W. 3355 (U.S. Dec. 6, 2004) (No. 04-
774). Included in this last category are the provisions estab-
lishing United States sovereignty and authority over foreign
affairs and defense of the Commonwealth. Covenant §§ 101,
104.
B
The CNMI brought this action under the Quiet Title Act, 28
U.S.C. § 2409a, requesting a declaration that the Common-
wealth holds title to, or for an order mandating that the United
States quitclaim any interests in, the submerged lands “under-
lying the internal waters, archipelagic waters, and territorial
waters adjacent to the Northern Mariana Islands.” The CNMI
further requested the court to enjoin the United States from
claiming ownership of the submerged lands. The United
States counterclaimed. After resolution of some procedural hur-
dles,2 both parties filed for summary judgment. The district
2
The CNMI filed two “largely identical” actions, one in 1997 and the
present suit in 1999. The 1997 action did not comply with provisions of
CNMI v. UNITED STATES 2191
court granted the United States’ motion, declaring that the
“United States possesses paramount rights in and powers over
the waters extending seaward of the ordinary low water mark
of the Commonwealth Coast and the lands, minerals, and
other things of value underlying such waters.”3 The court also
declared that the CNMI’s Marine Sovereignty Act of 1980, 2
N. Mar. I. Code §§ 1101 - 1143 (1999), and Submerged
Lands Act, 2 N. Mar. I. Code §§ 1201 - 1231 (1999), were
preempted by federal law. This appeal followed.
II
We review de novo the district court’s decision to grant or
deny summary judgment. Olsen v. Idaho State Bd. of Med.,
363 F.3d 916, 922 (9th Cir. 2004) (reviewing grant of sum-
mary judgment); Lee v. Gregory, 363 F.3d 931, 932 (9th Cir.
2004) (reviewing an appealable denial of summary judgment).
Summary judgment is proper when, viewing the evidence in
the light most favorable to the nonmoving party, there are no
genuine issues of material fact and the court determines that
the district court correctly applied the substantive law. Olsen,
363 F.3d at 922. We may affirm on any ground supported by
the record. Id.
The district court properly granted summary judgment to
the United States on the basis of the federal paramountcy doc-
the Quiet Title Act applicable only to states; the present 1999 action did.
In Northern Mariana Islands v. United States, 279 F.3d 1070, 1071 (9th
Cir. 2002), we held that because the CNMI must be treated as if it were
a state for purposes of the Quiet Title Act, the CNMI qualified for the state
exemption to the Act’s time-bar provision.
3
The district court did “not address [the] aspect of the Commonwealth’s
complaint” involving submerged lands under “internal” waters because the
United States did not contest ownership of these submerged lands. North-
ern Mariana Islands v. United States, No. 99-0028, 2003 WL 22997235,
at *15 n.16 (D. N. Mar. I. Aug. 7, 2003) (order granting United States’
motion for summary judgment). We likewise limit our analysis to the sub-
merged lands addressed by the district court’s summary judgment.
2192 CNMI v. UNITED STATES
trine. This doctrine instructs that the United States, as a “func-
tion of national external sovereignty,” acquires “paramount
rights” over seaward submerged lands. United States v. Cali-
fornia, 332 U.S. 19, 34 (1947). Because the United States did
not expressly cede its paramount rights to the submerged
lands at issue here, summary judgment in favor of the United
States was proper.
A
[1] We discussed the origins of the paramountcy doctrine
in Native Village of Eyak v. Trawler Diane Marie, Inc., 154
F.3d 1090, 1092-95 (9th Cir. 1998) (Eyak I). We briefly
review that history here. The Supreme Court established the
paramountcy doctrine through a series of cases between the
federal government and shoreline states. In California, the
Court held that the national government had paramount rights
to submerged lands off the shores of states created from for-
mer United States territories. 332 U.S. at 38. The Court based
its decision on theories of national interest and defense, con-
cluding that because the sea had customarily been within the
realm of international law, the federal government had an
overriding interest in maintaining authority over these areas
that were subject to international dispute and settlement. Id.
at 34-36. As the Court explained a few years later in United
States v. Louisiana, 339 U.S. 699, 704 (1950):
The marginal sea is a national, not a state concern.
National interests, national responsibilities, national
concerns are involved. The problems of commerce,
national defense, relations with other powers, war
and peace focus there. National rights must therefore
be paramount in that area.
[2] The Supreme Court has extended this doctrine to apply,
presumably, to all coastal states. In United States v. Texas,
339 U.S. 707, 717-19 (1950), the Court held on the basis of
“equal footing” and national interest principles that even a
CNMI v. UNITED STATES 2193
state previously possessing both “dominium” (ownership) and
“imperium” (governmental powers and sovereignty) over its
marginal sea as an independent sovereign lost that authority
upon entry into the Union. See id. at 719 (“[A]lthough domin-
ium and imperium are normally separable and separate, this is
an instance where property interests are so subordinated to the
rights of sovereignty as to follow sovereignty.”) (footnote
omitted). A quarter-century later, the Court again invoked
national interest principles to establish in United States v.
Maine, 420 U.S. 515, 519 (1975), that the federal government
had paramount rights to submerged lands off the coasts of
even Atlantic states that claimed to be successors in title to
the original colonies.4
[3] Although the Supreme Court’s paramountcy decisions
all involved states as parties, “the paramountcy doctrine is not
limited merely to disputes between the national and state gov-
ernments.” Eyak I, 154 F.3d at 1095. We held in Eyak I that
a claim of exclusive aboriginal title to submerged lands was
inconsistent with the paramountcy doctrine.5 We reasoned that
“[a]ny claim of sovereign right or title over the ocean by any
party other than the United States, including Indian tribes, is
equally repugnant to the principles established in the para-
mountcy cases.” Id.
The national interest principles that support the para-
mountcy doctrine do provide some limitation on its scope.
The doctrine does not apply to land under “inland navigable
4
Connecticut was not a defendant in Maine, “apparently because that
State borders on Long Island Sound, which is considered inland water
rather than open sea.” Maine, 420 U.S. at 517 n.1.
5
We granted initial en banc hearing of the appeal in the subsequent liti-
gation in Eyak Native Village. Eyak Native Vill. v. Daley, 364 F.3d 1057
(9th Cir. 2004). The en banc panel vacated the district court’s grant of
summary judgment and remanded with instructions, while retaining juris-
diction over all future proceedings related to that litigation. Eyak Native
Vill. v. Daley, 375 F.3d 1218 (9th Cir. 2004) (en banc) (Eyak II). The en
banc proceedings left undisturbed this court’s decision in Eyak I.
2194 CNMI v. UNITED STATES
waters such as rivers, harbors, and even tidelands down to the
low water mark.” California, 332 U.S. at 30 (discussing Pol-
lard’s Lessee v. Hagan, 44 U.S. (3 How.) 212 (1845)). This
limitation reflects the different concerns present with “inter-
nal” and “external” submerged lands: the state interest dimin-
ishes, and the national interests increases, as the land in
question moves further into the open sea. See id. at 29-35.
B
Allegiance to the paramountcy doctrine compels us to
begin with the presumption that the United States acquired
paramount rights to the disputed submerged lands off the
CNMI’s shores as a function of sovereignty. As we have held
in Eyak I, the underlying principles of this doctrine apply
“with equal force” to relationships other than that between
states and the federal government. 154 F.3d at 1096. Through
the Covenant, the Commonwealth agreed to United States
sovereignty and received (among other benefits) protection
and security in return. As the Court recognized in California,
the United States’ foreign affairs obligations demand that the
national government have authority to control areas of
national concern. See 332 U.S. at 35-36. Absent an express
indication to the contrary, we will not presume the parties
intended a different arrangement here.
The CNMI principally challenges the reliance on the para-
mountcy cases for two reasons.6 First, the Commonwealth
contends that the paramountcy doctrine is inconsistent with
the Covenant’s limitations on the application of federal law to
6
We are unpersuaded by the Commonwealth’s other arguments as well.
We do not reach whether the CNMI government may properly raise an
aboriginal title claim on behalf of its native inhabitants because our deci-
sion in Eyak I forecloses an aboriginal title challenge to our paramountcy
holding. See 154 F.3d at 1095-97. We also refuse to extend common law
trust principles to an international agreement that constituted, on the part
of the people of the Northern Mariana Islands, “a sovereign act of self-
determination.” See Covenant pmbl.
CNMI v. UNITED STATES 2195
the CNMI. Second, the CNMI argues alternatively that the
Covenant’s transfer of real property creates a “recognized
exception” to the paramountcy doctrine. We disagree on both
counts.
1
The CNMI first asserts that the unique relationship between
the United States and the CNMI makes the paramountcy doc-
trine inapplicable. According to the CNMI, federal law
applies to the Commonwealth only to the extent that it is con-
sistent with the Covenant. The CNMI argues that because the
rationale for the paramountcy doctrine is based on foreign
commerce, foreign affairs, and national defense powers found
within the United States Constitution, the doctrine cannot
apply to the CNMI because the Covenant does not expressly
provide the United States with this same constitutional author-
ity over the Commonwealth.
[4] We do not dispute that “ ‘the authority of the United
States towards the CNMI arises solely under the Covenant.’ ”
Sagana, 384 F.3d at 734 (quoting Hillbloom v. United States,
896 F.2d 426, 429 (9th Cir. 1990)). But the CNMI’s argument
wrongly assumes that the paramountcy doctrine and the Cove-
nant are inconsistent. The paramountcy doctrine draws its
authority from the inherent obligations placed on the sover-
eign governing entity to conduct international affairs and con-
trol matters of national concern. See California, 332 U.S. at
35-36; see also Eyak I, 154 F.3d at 1096 (“This principle
applies with equal force to all entities claiming rights to the
ocean[.]”). The Covenant unquestionably places these powers
and obligations in the United States. See Covenant § 101
(establishing a Commonwealth “in political union with and
under the sovereignty of the United States of America”); id.
§ 104 (providing the United States with “complete responsi-
bility for and authority with respect to matters relating to for-
eign affairs and defense”). The CNMI’s attempt to
differentiate between a paramountcy doctrine based on pow-
2196 CNMI v. UNITED STATES
ers found solely in the United States Constitution and one that
is incorporated through the Covenant separates the doctrine
from its rationale.
[5] “ ‘[O]nce low-water mark is passed the international
domain is reached.’ ” Eyak I, 154 F.3d at 1094 (quoting
Texas, 339 U.S. at 719). The submerged lands addressed by
the district court’s summary judgment fit this description.
Because the Covenant places sovereignty and foreign affairs
obligations in the United States, the paramountcy doctrine
applies.
2
The CNMI next argues in the alternative that the Covenant
transferred the submerged lands to the Northern Mariana
Islands, thereby meeting a recognized exception to the para-
mountcy doctrine that allows Congress to cede its paramount
authority over seaward submerged lands. The fact that the
United States may provide the submerged lands to the CNMI
does not mean it has done so here. Neither the text of the Cov-
enant nor the actions taken by the parties during and after the
negotiations lead to a conclusion that such a transaction took
place.
The CNMI correctly asserts that, despite the national con-
cerns underlying the paramountcy doctrine, Congress can
transfer ownership of submerged lands to the states or other
entities. Congress has done so in the past. See, e.g., Sub-
merged Lands Act of 1953, 43 U.S.C. §§ 1301, 1311 (trans-
ferring submerged lands up to three miles from shore back to
the states); see also Maine, 420 U.S. at 525-27 (observing that
the Court held the Submerged Lands Act constitutional in
Alabama v. Texas, 347 U.S. 272 (1954)).
The CNMI argues that the Covenant effected a similar
transfer. The core of the CNMI’s argument is that the transfer
of “real property” in Section 801 of the Covenant includes
CNMI v. UNITED STATES 2197
seaward submerged lands. As noted above, Section 801 pro-
vides that “[a]ll right, title and interest of the Government of
the [TTPI] in and to real property in the Northern Mariana
Islands . . . will, no later than upon the termination of the
Trusteeship Agreement, be transferred to the Government of
the Northern Mariana Islands.” Although the Covenant does
not define real property, the Commonwealth notes that the
Quiet Title Act itself specifically includes disputes over “tide
and submerged lands.” 28 U.S.C. §§ 2409a(i) - (l). If such
lands were not “real property,” the Commonwealth argues,
such suits could not be brought under the Quiet Title Act.
We are hesitant to ascribe an implicit intent to cede para-
mount rights over seaward submerged lands on this basis.
There is a significant distinction between the statutory trans-
fers relied on by the CNMI and the alleged transfer in the
Covenant: the statutes cited by the Commonwealth explicitly
apply to submerged lands. See 43 U.S.C. § 1301 (defining
submerged lands); 48 U.S.C. § 749 (defining and conveying
submerged lands to Puerto Rico); 48 U.S.C. § 1705 (describ-
ing and conveying submerged lands to Guam, the Virgin
Islands and American Samoa). The transfer found in Hawaii’s
Statehood Act is also informative. In addition to transferring
to the new state all lands formerly held by the Territory as
well as title to certain public lands held by the United States,
this act also expressly made the Submerged Lands Act appli-
cable to the new state. See Pub. L. No. 86-3, 73 Stat. 4 (1959).
What these statutes demonstrate is that Congress knew how
to grant submerged lands when it so desired. The fact no ref-
erence to submerged lands appears in the Covenant counsels
against implying such a meaning here.
Ambiguity in drafting is far from novel, even within the
limited universe of paramountcy cases. California raised an
argument similar to the one the CNMI makes here, arguing
that the state’s Enabling Act ratified a territorial boundary that
included a three-mile marginal sea. California, 332 U.S. at
29-30. Although the Court’s opinion did not focus on this
2198 CNMI v. UNITED STATES
assertion, judging from the Court’s favorable decision for the
United States, this argument apparently carried little weight.7
[6] A strong presumption of national authority over sea-
ward submerged lands runs throughout the paramountcy doc-
trine cases, and we extend that same presumption to the case
at hand.8 Absent express indication to the contrary, the owner-
ship of seaward submerged lands accompanies United States
sovereignty. The Covenant lacks such an expression.
[7] The CNMI can point to no language in the Covenant
that expressly addresses submerged lands. Instead, the Com-
monwealth urges us to consider the expansive records of the
Covenant’s negotiations and history to extract the agree-
ment’s meaning. The district court’s analysis of the extrinsic
evidence relied on by the Commonwealth is persuasive. We
conclude that there exists no genuine issue of material fact
because the evidence is not “such that a reasonable jury could
return a verdict for the nonmoving party.” Thrifty Oil Co. v.
Bank of Am. Nat’l Trust & Sav. Ass’n, 322 F.3d 1039, 1046
(9th Cir. 2003) (internal quotation marks omitted). The CNMI
cannot overcome the paramountcy doctrine because there is
7
In Texas, the Court avoided a similar issue by relying on an “equal
footing” clause rationale not available here. See 339 U.S. at 714.
8
We also note, but do not rely on, the general presumption inherent in
public land cases that transfer of title from the federal government is not
lightly inferred. See Guam ex rel. Guam Econ. Dev. Auth. v. United States,
179 F.3d 630, 638 (9th Cir. 1999) (citing United States v. Union Pac. R.R.
Co., 353 U.S. 112, 116 (1957)). Such a presumption does not apply with
respect to grants to Native Americans. See id. (citing County of Yakima v.
Confed. Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 269
(1992)); but cf. United States v. Washington, 157 F.3d 630, 645-46 (9th
Cir. 1998) (discussing circumstances in which the equal footing doctrine
limits the implied transfer of non-oceanic submerged lands to Indian
tribes). Because our decision does not rely on this general presumption,
we do not find it necessary to decide whether the canons of construction
applicable to Indian treaties should also apply to inhabitants of the CNMI.
Cf. Guam, 179 F.3d at 638 (declining to decide the issue with respect to
natives of Guam).
CNMI v. UNITED STATES 2199
no clear intention on the part of the United States to cede its
authority off the shores of the Commonwealth that it is obli-
gated to protect.
The CNMI places substantial emphasis on two orders by
the Secretary of Interior to support its position. The purpose
of Secretarial Order No. 2969, 40 Fed. Reg. 811 (1974), was
to implement a 1973 policy statement by the United States. Id.
at 812. The order empowered local district legislatures within
the TTPI to create legal entities “to hold title to public lands
within the district.” Id. at 812. This order expressed
“[l]imitations” on the transfer of, inter alia, “submerged
lands.” Id. It required the local legislatures to reserve “the
right of the central government of the [TTPI] to regulate all
activities affecting conservation, navigation, or commerce in
and to the navigable waters and tidelands, filled lands, sub-
merged lands and lagoons.” Id. at 812. As the district court
found, this order was not even implemented in the Northern
Mariana Islands.
Secretarial Order No. 2989, 41 Fed. Reg. 15,892 (1976),
applied solely to the Northern Marianas and became effective
shortly after the Covenant’s approval. The order addressed the
interim governing trust administration of the Northern Mari-
anas. One of its provisions transferred title to “public lands”
from the TTPI to another administrator, the United States
“Resident Commissioner.” Id. at 15896. There is no indica-
tion in this order that the United States contemplated a perma-
nent divestment of the paramount rights that the United States
would obtain upon assuming sovereignty. Under the terms of
the Covenant, the United States did not obtain that sover-
eignty until after the termination of the trust relationship. See
Covenant § 1003. Read in context of the Covenant, Order
2989 demonstrates at most the recognition by the United
States that the paramountcy doctrine could not apply until the
United States acquired that sovereignty.
Other extrinsic evidence further erodes the CNMI’s claim.
Position papers by the Commonwealth have, on prior occa-
2200 CNMI v. UNITED STATES
sions, described the Covenant’s lack of discussion about sub-
merged lands as a “curious blind spot” within the agreement.
We have relied in previous opinions on the Marianas Political
Status Commission’s “authoritative” “Section-by-Section
Analysis of the Covenant” to assist us in discerning the mean-
ing of the Covenant. See Fleming v. Dep’t. of Pub. Safety, 837
F.2d 401, 408 (9th Cir. 1988), overruled on other grounds,
DeNieva v. Reyes, 966 F.2d 480, 483 (9th Cir. 1992); see also
Sagana, 384 F.3d at 734 (referencing the Analysis). Like the
Covenant itself, this Analysis does not address submerged
lands, shedding no light on this issue.
The official9 analysis to the CNMI Constitution does not
help the Commonwealth’s position, either. This document
acknowledges that the United States “has a claim to the sub-
merged lands off the coast of the Commonwealth” based on
the paramountcy doctrine. It explains that the CNMI’s Consti-
tution “recognizes this claim and also recognizes that the
Commonwealth is entitled to the same interest in the sub-
merged lands off its coasts as the United States grants to the
states.” Analysis of the Constitution of the Commonwealth of
the Northern Mariana Islands 144 (Dec. 6, 1976). We agree.
Absent express language to the contrary, the CNMI is entitled
to the same interest in the seaward submerged lands as that of
the states when they submitted to the sovereignty of the
United States. As the paramountcy cases established, that
state interest is inferior to the federal rights. Although states
have acquired greater control over submerged lands through
congressional action, no similar legislation has provided anal-
ogous rights to the CNMI.
9
We have previously noted that the Northern Mariana Islands’ Constitu-
tional Convention officially adopted this analysis. See Sablan v. Santos,
634 F.2d 1153, 1154 (9th Cir. 1980), superseded by statute on other
grounds as recognized by Gioda v. Saipan Stevedoring Co., 855 F.2d 625,
628-29 (9th Cir. 1988).
CNMI v. UNITED STATES 2201
3
As the CNMI acknowledges, when the people of the North-
ern Mariana Islands and the United States entered into the
Covenant agreement in 1975, “both parties had reason to seek
a union.” Both parties received benefits from this agreement.
That the newly formed Commonwealth subsequently objected
to the loss of title to submerged lands as result of agreeing to
United States sovereignty is as unavailing to the CNMI as that
same argument was to states in California, Texas, Louisiana
and Maine. The CNMI’s position is even less persuasive
given that the Covenant was negotiated after the paramountcy
doctrine had become well-settled law.
We recognize the importance of the submerged lands sur-
rounding the CNMI to the culture, history and future of the
Northern Mariana Islands. We also trust that the Supreme
Court was cognizant of the similar importance of submerged
lands to coastal states. See, e.g., California, 332 U.S. at 40.
The Supreme Court established the paramountcy doctrine in
spite of these circumstances, leaving it to Congress to provide
remedies for the states if it so chose. That same avenue is
available here.
III
[8] The Commonwealth admits that its Submerged Lands
Act, 2 N. Mar. I. Code §§1201 - 1231,10 and Marine Sover-
eignty Act of 1980, 2 N. Mar. I. Code §§ 1101 - 1143,11 “com-
10
The Commonwealth’s Submerged Lands Act controls the manage-
ment of submerged lands owned by the CNMI. The CNMI legislature
declared through this act, as amended, that the CNMI government has
authority over “all submerged lands in the Northern Mariana Islands.” See
PL 6-13 § 1 (1988) (codified as amended 2 N. Mar. I. Code § 1201 note).
11
The Marine Sovereignty Act of 1980 declares “that the sovereignty of
the Commonwealth extends beyond its land area to its internal waters,
archipelagic waters, and territorial sea.” 2 N. Mar. I. Code § 1114 (a). The
2202 CNMI v. UNITED STATES
bine to assert the Commonwealth’s ownership of the
submerged lands” in dispute. Because we hold that the United
States has paramount rights to the submerged lands at issue
here, see supra, a declaration of ownership (or sovereignty)
over these submerged lands is directly contrary to federal law.
See Texas, 339 U.S. at 719 (“[T]his is an instance where prop-
erty interests are so subordinated to the rights of sovereignty
as to follow sovereignty.”). The district court properly held
that the Commonwealth’s Submerged Lands Act and Marine
Sovereignty Act of 1980 are preempted by federal law. Cf.
Hines v. Davidowitz, 312 U.S. 52, 67 (1941) (“Our primary
function is to determine whether . . . [state] law stands as an
obstacle to the accomplishment and execution of the full pur-
poses and objectives of Congress.”).
IV
We hold that the United States acquired paramount interest
in the seaward submerged lands, as defined by the Supreme
Court in California, found off the shores of the Common-
wealth of the Northern Mariana Islands.12 Laws passed by the
CNMI legislature to the contrary are inconsistent with the par-
territorial sea has an outer limit of 12 miles from the “baseline” (the line
segment designating the border of the archipelagic waters). Id. § 1123.
This Act also declares that the CNMI has “sovereign rights” in an “exclu-
sive economic zone,” which is the area of sea immediately beyond the ter-
ritorial sea, generally to a distance of 200 miles from the baseline. Id.
§§ 1114(b), 1124. The Act also provides that it does not “impose any
impediment to any lawful action taken by the government of the United
States for the defense and security of the Commonwealth or of the United
States.” Id. § 1136.
12
We express no opinion as to the specific contours of the boundaries
of these waters and we do not read the district court’s summary judgment
as doing so, either. Cf. California, 332 U.S. at 26 (“[T]here is no reason
why, after determining in general who owns the three-mile belt here
involved, the Court might not later, if necessary, have more detailed hear-
ings in order to determine with greater definiteness particular segments of
the boundary.”).
CNMI v. UNITED STATES 2203
amountcy doctrine and are preempted by federal law. The dis-
trict court’s grant of summary judgment for the United States
is AFFIRMED.