People of Saipan, By and Through Guerrero v. U.S. Dept. of Interior

Decision Date16 July 1974
Docket NumberNo. 73-1769,73-1769
Parties, 4 Envtl. L. Rep. 20,723 The PEOPLE OF SAIPAN, By and Through Herman Q. GUERRERO, et al., Plaintiffs and Appellants, v. UNITED STATES DEPARTMENT OF INTERIOR et al., Governmental Defendants andAppellees, and Continental Airlines, Inc., a Nevada corporation, CorporateDefendant and Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Samuel Withers, III, Edward C. King (argued), Daniel H. MacMeekin, Micronesian Legal Services Corp., Saipan, Mariana Islands, for plaintiffs and appellants; Richard A. Falk, Princeton University, Princeton, N.J., of counsel on the brief.

Charles W. Kenady (argued) of Cooper, White & Cooper, San Francisco, Cal., for defendant and appellee Continental Air Lines.

Carlos Salii, Asst. Atty. Gen. (argued), Saipan, Mariana Islands,

Jacques B. Gelin, Atty., Dept. of Justice, Washington D.C., for defendants and appellees.

Before TRASK and GOODWIN, Circuit Judges, and EAST, * District judge.

ALFRED T. GOODWIN, Circuit Judge:

Plaintiffs, citizens of the Trust Territory of the Pacific Islands (known also as Micronesia), sued in the district court to challenge the execution by the High Commissioner of the Trust Territory of a lease permitting Continental Airlines to construct and operate a hotel on public land adjacent to Micro Beach, Saipan. Plaintiffs appeal a judgment of dismissal.

The district court held that the Trust Territory government is not a federal agency subject to judicial review under the Administrative Procedure Act (APA), 5 U.S.C. 701-706, or the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., and that the Trusteeship Agreement does not vest plaintiffs with individual legal rights which they can assert in a federal court. The court's opinion is published at 356 F.Supp. 645 (D.Haw.1973). We affirm the judgment, but, for the reasons set out below, we do so without prejudice to the right of the plaintiffs to refile in the district court should the High Court of the Trust Territory deny that it has jurisdiction to review the legality of the actions of the High Commissioner.

The facts are set out in detail in the district court opinion. In brief, Continental applied in 1970 to the Trust Territory government for permission to build a hotel on public land adjacent to Micro Beach, Saipan, an important historical, cultural, and recreational site for the people of the islands. Pursuant to the requirements of the Trust Territory Code, 67 T.T.C. 53, Continental's application was submitted to the Mariana Islands District Land Advisory Board for its consideration. In spite of the Board's unanimous recommendation that the area be reserved for public park purposes, the District Administrator of the Marianas District recommended approval of a lease. The High Commissioner himself executed the lease on behalf of the Trust Territory government. An officer appointed by the President of the United States with the advice and consent of the Senate (48 U.S.C. 1681a), the High Commissioner is the highest official in the executive branch of the Trust Territory government.

Following its execution in 1972, the lease was opposed by virtually every official body elected by the people of Saipan. Indeed, the record in this case shows that the High Commissioner's decision was officially supported only by the United States Department of the Interior, the Trust Territory Attorney General (a United States citizen), and the District Administrator of the Marianas District (appointed by the High Commissioner, serving directly under him, and subject to removal by him).

Later in 1972, an action against some of the parties here was commenced before the High Court of the Trust Territory to enjoin construction of the hotel. The High Court, while denying defendants' motions to dismiss on certain nonfederal causes of action, held that NEPA did not apply to actions of the Trust Territory government, as plaintiffs had contended. 1 Soon afterward, the plaintiffs filed this action in the United States District Court for the District of Hawaii, and the High Court thereupon stayed proceedings before it pending the outcome of this action.

I. JUDICIAL REVIEW UNDER THE APA OR NEPA

The district court, relying upon its earlier decision in People of Enewetak v. Laird, 353 F.Supp. 811 (D.Haw.1973), again held that NEPA applies to federal agencies operating in the Trust Territory. It also held that approval of the lease agreement was 'major' action, within the meaning of NEPA. However, although the district court rejected the defendants' contention that the Trust Territory government is a foreign government immune to suits in United States courts, it accepted the defendants' alternate contention that the local government is a government of a United States territory or possession, within the meaning of the exclusionary clause in the Administrative Procedure Act, 5 U.S.C. 701(b)(1)(C). 2 Having concluded that the Trust Territory government was exempt from review under the APA, the district court reasoned that the same standards on the scope of review should be applied to NEPA, and concluded that the action of the High Commissioner in approving and executing the lease agreement was not 'federal' action covered by the National Environmental Policy Act, 42 U.S.C. 4332. 3 We affirm these conclusions of the district court. See 356 F.Supp. at 649-661. 4

We recognize, as did the district court, that several decisions have held governments of United States territories to be agencies of the federal government. However, these cases all involved a determination of agency for such purposes as income taxation, Bell v. Commissioner, 278 F.2d 100 (4th Cir. 1960), or the applicability of the Portal-to-Portal Act of 1947, Kam Koon Wan v. E. E. Black, Ltd., 188 F.2d 558 (9th Cir.), cert. denied, 342 U.S. 826, 72 S.Ct. 49, 96 L.Ed. 625 (1951). 5 Plaintiffs have not cited and we have not found a case applying APA judicial review provisions to the Trust Territory or applying even similar review standards to the civil government of any territory or possession.

We also recognize, again as did the district court, that the APA exclusionary clause excludes only 'the governments of the territories or possessions of the United States,' 5 U.S.C. 701(b)(1)(C), and that the Trust Territory is not a territory or possession, because technically the United States is a trustee rather than a sovereign. We agree with the district court that this distinction is immaterial, however, because the intent of Congress was to exclude from APA review all governments of this general type created pursuant to the authority of Congress.

Plaintiffs have cited several judicial decisions, a regulation, and one Tax Court decision stating that the Trust Territory is not a territory or possession of the United States. However, the holding of the judicial decisions is limited to the applicability of the Federal Tort Claims Act (see, e.g., Callas v. United States, 253 F.2d 838 (2d Cir.), cert. denied, 357 U.S. 936, 78 S.Ct. 1384, 2 L.Ed.2d 1550 (1958); Brunell v. United States, 77 F.Supp. 68 (S.D.N.Y.1948)), and the regulation and the Tax Court decision both involve federal income taxation. See Treas.Reg. 1.931-1(a)(1); Richard W. Benfer, 45 T.C. 277 (1965). We do not read these decisions and the regulation to be inconsistent with our conclusion that Congress intended the government of the Trust Territory, like that of territories and possessions, to be immune from judicial review under the APA.

Finally, we note that the Trusteeship Agreement, in which the United Nations designated the United States to be the administering authority of the Trust Territory, states that the United States shall 'promote the development 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. 3301, 3302, T.I.A.S. No. 1665. This clear statement of intent on the part of the United Nations to foster self-government in the Trust Territory constrains us not to hold that the actions of the local government are reviewable in the same manner as the actions of domestic federal administrative agencies, in a federal district court several thousand miles from the islands.

For these reasons and for those expressed in the opinion of the district court, we affirm the conclusion of that court that neither the Trust Territory government nor the High Commissioner alone is a 'federal agency' as that term is used in making actions reviewable under the APA or NEPA.

II. TRUSTEESHIP AGREEMENT

Plaintiffs also asserted below and assert here that the action of the governmental defendants in leasing public land to an American corporation against the expressed opposition of the elected representatives of the people of Saipan and without compliance with NEPA is a violation of their duties under the Trusteeship Agreement. The district court rejected this argument, holding that the Trusteeship Agreement did not vest the citizens of the Trust Territory with rights which they can assert in a district court.

We cannot accept the full implications of this holding. We do not dispute the district court's conclusion that compliance with NEPA was not required by the Trusteeship Agreement. 6 We do, however, disagree with the holding insofar as it can be read to say that the Trusteeship Agreement does not create for the islanders substantive rights that are judicially enforceable.

The district court relied for its conclusion on language in Pauling v. McElroy, 164 F.Supp. 390, 393 (D.D.C.1958), aff'd on other grounds, 107 U.S.App.D.C. 372, 278 F.2d 252, cert denied, 364 U.S. 835, 81 S.Ct. 61, 5 L.Ed.2d 60 (1960). Pauling concerned an attempt to enjoin United States officials from proceeding with nuclear tests in the Marshall Islands, an area within the trusteeship. The controversy there, unlike the one here, involved the Trusteeship...

To continue reading

Request your trial
66 cases
  • Dickey v. Davis
    • United States
    • U.S. District Court — Eastern District of California
    • September 12, 2019
  • Robinson v. Salazar
    • United States
    • U.S. District Court — Eastern District of California
    • August 6, 2012
  • Corporation of the Presiding Bishop v. Hodel
    • United States
    • U.S. District Court — District of Columbia
    • May 30, 1986
    ...as overseer of the government of American Samoa, his decision would not be reviewable under the APA. See People of Saipan v. Dept. of Interior, 502 F.2d 90, 95 (9th Cir.1974), cert. denied, 420 U.S. 1003, 95 S.Ct. 1445, 43 L.Ed.2d 761 Even if this Court were to consider the Secretary's acts......
  • Tel-Oren v. Libyan Arab Republic
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • February 3, 1984
    ...denied, 364 U.S. 835, 81 S.Ct. 61, 5 L.Ed.2d 60 (1960); Dreyfus v. Von Finck, 534 F.2d at 30; People of Saipan v. Department of Interior, 502 F.2d 90, 100-03 (9th Cir.1974) (Trask, J., concurring), cert. denied, 420 U.S. 1003, 95 S.Ct. 1445, 43 L.Ed.2d 761 (1975); Sei Fujii v. State, 38 Cal......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT