AG: DPL may not transfer any interest in public shorelines

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THE Department of Public Lands has discovered encroachments into public shoreline by various private entities and has inquired with the Attorney General’s Office as to the scope of both the restrictions and remedies. 

DPL posed two questions:

1) Can it allow construction on public lands within 150 feet of the shore’s high watermark?

2) If a person encroaches on public lands within 150 feet of the shore’s high watermark by construction, what remedies are available to DPL?

In response, AG Edward Manibusan said, as a general rule, DPL cannot allow permanent construction on public lands within 150 feet of the shore's high watermark.

DPL may only allow permanent construction on such lands if that construction is for a public purpose, he added.

“DPL cannot charge fees or fines, or provide permits, because these remedies implicitly grant an interest in the underlying public lands,” the AG said.

“DPL may prohibit the construction from occurring or require the construction to be removed. Alternatively, DPL may allow permanent construction for a public purpose. Permanent construction could therefore be allowed if that construction were transferred to DPL and that it is used solely for public purposes.”

According to the AG, “When the Constitution of the Commonwealth of the Northern Mariana Islands was ratified in 1977, it created the Marianas Public Lands Corporation. The MPLC was established to act as a steward of DPL’s public lands for the benefit of people of Northern Marianas descent within the context of several constitutional restrictions.”

These restrictions included a prohibition on MPLC transferring any interest in public lands within 150 feet of the shore's high watermark, the AG said.

“The MPLC had a limited constitutional lifespan, and was dissolved in 1994. Its responsibilities were succeeded by the Board of Public Lands, the Marianas Public Lands Authority, and then DPL. These entities inherited the MPLC's fiduciary responsibilities to people of Northern Marianas descent,” the AG stated.

“In 2010, Article XI, Section 5 was found to be constitutionally inoperative by the Commonwealth's Supreme Court. However, many of the limitations formerly placed on the MPLC by Article XI, Section 5 of the CNMI Constitution have been re-enacted as statutes and apply to DPL,” he added.

The prohibition on transferring any interest in public shoreline and power to prohibit the construction of permanent structures on public shoreline are among these re-enacted restrictions, the AG said.

“DPL may not transfer any interests in public lands, including charging fees or permits. It may instead prohibit permanent construction, or require that such construction be removed. Nevertheless, since DPL may allow construction for public purposes, otherwise impermissible permanent construction may be allowed to remain if it becomes public [by] the transfer of ownership rights to DPL and opening of access to the public.”

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