People of Saipan v. United States Dept. of Interior, Civ. No. 72-3720.

• Citation: 356 F. Supp. 645
• Decision Date: 20 March 1973
• Docket Number: Civ. No. 72-3720.
• Parties: The PEOPLE OF SAIPAN, By and Through Herman O. GUERRERO et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF INTERIOR et al., Governmental Defendants, and Continental Airlines, Inc., a Nevada corporation, Corporate Defendant.
• Court: U.S. District Court — District of Hawaii

356 F. Supp. 645

The PEOPLE OF SAIPAN, By and Through Herman O. GUERRERO et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF INTERIOR et al., Governmental Defendants, and Continental Airlines, Inc., a Nevada corporation, Corporate Defendant.

Civ. No. 72-3720.

United States District Court, D. Hawaii.

March 20, 1973.

Edward C. King, James E. Duggan, Daniel H. MacMeekin, Sionag H. MacMeekin, Moen, Truk, Eastern Caroline Islands, Samuel Withers, III, Micronesian Legal Services Corp., Saipan, Mariana Islands, for plaintiffs; Boyce R. Brown, Jr., Mattoch, Edmunds, Kemper & Brown, Honolulu, Hawaii, of counsel.

Jon T. Miho, Asst. U. S. Atty., Robert K. Fukuda, U. S. Atty., Honolulu, Hawaii, for Governmental defendants.

Carlos H. Salii, Asst. Atty. Gen., Trust Territory of the Pacific Islands, Saipan, Mariana Islands, for defendant Johnston.

Katsuro Miho, John D. McComish, Honolulu, Hawaii, for corporate defendant.

ORDER GRANTING MOTIONS TO DISMISS

SAMUEL P. KING, District Judge.

This case involves the application of the National Environmental Policy Act (hereinafter "NEPA"), 42 U.S.C. § 4321 et seq. (Supp.1973), to the official actions of the High Commissioner of the Trust Territory of the Pacific Islands (hereinafter "Trust Territory").¹ Defendants have moved to dismiss the Complaint on a variety of procedural and substantive grounds. These grounds raise the issues now before the court.

Plaintiffs, citizens of the Trust Territory who are residents of Saipan, Mariana Islands, allege that the action of the High Commissioner in approving and later executing a lease agreement with Continental Airlines, Inc. (hereinafter "Continental") to construct and operate a hotel on public land adjacent to Micro Beach, Saipan, unlawfully by-passes NEPA because no environmental impact statement was prepared or considered prior to approval of the lease, and is "an abuse of discretion" within the meaning of the judicial review provisions of the Administrative Procedure Act (hereinafter "APA"), 5 U.S.C. §§ 701-706, because the environmental implications of the project were not given bona fide consideration. It is further alleged that the High Commissioner has an affirmative fiduciary duty to comply with NEPA under the provisions of the Trusteeship Agreement for the Former Japanese Mandated Islands.² An injunction is sought prohibiting the implementation of the lease agreement until the environmental impact of the hotel has been studied and evaluated.

In addition to the immediate parties to the lease (Continental and the High Commissioner), plaintiffs have joined as defendants the Department of the Interior, Secretary of the Interior Rogers C. B. Morton and Deputy Assistant Secretary of the Interior for Territorial Affairs Stanley S. Carpenter. As discussed infra at 653, plaintiffs assert that the Department of the Interior has responsibility for the civil administration of the Trust Territory and that the High Commissioner acts as an agent of the Department in his role as chief executive of the Trust Territory Government.

On January 10, 1973, this court denied a temporary restraining order after a hearing and requested further briefing on the complex questions of law that had been raised. Thereafter defendants moved to dismiss and argument was heard on February 13, 1973. The hearing on the preliminary injunction was postponed pending decision on the motions to dismiss.

After extensive consideration, it is my reluctant conclusion that: (1) the Trust Territory Government is not a federal agency subject to judicial review under the APA or NEPA, and (2) the Trusteeship Agreement does not vest plaintiffs with individual legal rights which they may assert in this court. For these reasons, jurisdiction is lacking and the motions to dismiss are granted. The other grounds urged in support of dismissal are without merit, and are rejected.

Facts

On the basis of the well pleaded allegations of fact in the Complaint, which are taken as admitted for the purpose of these motions, it appears that sometime prior to October 20, 1970, Continental applied to the Trust Territory Government for permission to lease and build a hotel on public land at a site adjacent to Micro Beach, Saipan.

Micro Beach is a pleasant shaded beach which for many years has been the favorite beach of the people of Saipan. It is an important historical and cultural site and even during the previous German and Japanese administrations, it was set aside as an area to be preserved for use by the people of the island.

Although the hotel site is not directly on the beach, its proximity makes "it inevitable that construction of a hotel there will greatly reduce the desirability of Micro Beach to the people of Saipan and will, as a practical matter, deprive them of use of their most popular beach. In any society, a large increase in the number of persons using a beach or similar recreation area can greatly reduce the desirability of the area as a place to visit and relax. This is particularly true in Saipan, where many of the people, whether it be because of diffidence, courtesy, general cultural values or a long history of exposure to highhanded outsiders, do not feel free to use a beach occupied by tourists." Complaint ¶ 21.

In addition, it is alleged that construction of the hotel will triple the number of hotel rooms presently on Saipan resulting in further strain on the already overburdened power and water supplies, and damage to the ocean and reef by increased amounts of sewage discharge.

Pursuant to the requirements of the Trust Territory Code (hereinafter "T. T.C."), the Continental application was submitted to the Mariana Islands District Land Advisory Board³ for its consideration. The Board unanimously recommended against the application suggesting that the area be reserved for public park purposes. This decision was communicated to the District Administrator of the Marianas District⁴ and the High Commissioner by letter dated October 20, 1970. See Exhibit B of the Complaint.

For approximately one year no apparent action on the hotel project was taken. Then on October 15, 1971, a Micronesian News Service⁵ release announced that the Trust Territory Government had tentatively approved a lease of the site to Continental "with final approval awaiting receipt of the completed papers." Complaint ¶ 25. Thereafter, protests against the proposal by various elected and community leaders, the Saipan Municipal Council⁶ and the Mariana Islands District Legislature were communicated to the Interior Department and the High Commissioner.⁷ Nevertheless, the lease was executed by Continental and High Commissioner Johnston on behalf of the Trust Territory Government on January 1, 1972.

The lease is for an initial period of 30 years with options to extend for two additional periods of 10 years each. Lease Agreement, arts. 1 and 2. Continental is granted the right to construct 200 rooms on the premises,⁸ id. art. 27, and with the prior written permission of the Trust Territory Government to erect on the "public beach and in the waters of the lagoon adjacent thereto, facilities and structures, including docks and ramps related to and connected with marine and beach activities" of Continental's hotel. Id. art. 6.

It is undisputed that defendants have not complied with the requirements of NEPA, specifically section 4332(2)(C) which requires that "all agencies of the Federal Government" prepare a detailed environmental impact statement for "major Federal actions significantly affecting the quality of the human environment."

NEPA Is Applicable In the Trust Territory

Defendants first ground in support of their motions to dismiss is that NEPA is not applicable to federal agencies operating in the Trust Territory. They urge this court to reconsider its recent decision in Enewetak v. Laird, 353 F.Supp. 811 (D. Hawaii decided January 19, 1973) holding that NEPA does apply to such agencies. It is argued that because there is no specific language in NEPA extending the statute's coverage to the Trust Territory, this court must restrict its application to the territorial jurisdiction of the United States. Foley Brothers, Inc. v. Filardo, 336 U.S. 281, 69 S.Ct. 575, 93 L.Ed. 680 (1949), is cited for this proposition, particularly language at page 285 of the opinion, 69 S.Ct. at page 576 which states that "the canon of construction which teaches that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States . . . is a valid approach whereby unexpressed congressional intent may be ascertained."

I am not persuaded. In my opinion, defendants misconstrue the thrust of the canon by ignoring the qualifying phrase "unless a contrary intent appears."

The question before the Court in Foley Brothers was whether the Eight Hour Law⁹ applied to a contract between the United States and a private American contractor for work performed on a construction project in Iraq and Iran. As noted by Justice Frankfurter, a literal reading of the statute would have resulted in its application since by its terms it covered "every contract made to which the United States . . . is a party." 336 U.S. at 291-292, 69 S.Ct. at 581 (concurring opinion). Instead, the Court looked to the Act as a whole, id. at 285-286, 69 S.Ct. 575, its legislative history, id. at 286-288, 69 S.Ct. 575, and administrative interpretations of it. Id. at 288-291, 69 S.Ct. 575. Finding nothing in any of this material that indicated a congressional purpose to extend the Act's coverage beyond the territorial jurisdiction of the United States, the Court concluded that the law was "inapplicable . . . in a foreign country over which the United States has no direct legislative control. . . ."¹⁰Id. at 290, 69 S. Ct. at 580.

Thus the Court did not adopt the mechanical rule proposed by defendants. Rather it looked to all available evidence of legislative intent before...