Appendix — Saipan ex rel. Guerrero v. United States Department of the Interior

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APPENDIX A

UNITED STATES DISTRICT COURT

D. HAWAII

Civ. No, 72-3720.

The Peorpie or Saran, By and Through Herman Q,

Guerrero et al., Plaintiffs,

Unirep States Department or Interior et al.,

Governmental Defendants,

and

ConTINENTAL Airings, Ixc., a Nevada Corporation,

Corporate Defendant.

mma “March 26, —

* * * . * * * . * e

Order Granting Motions To Dismiss

Samvet P. Kiya, District Judge.

This ease involves the application of the National En-

vironmental 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’’).". Defendants

have moved to dismiss the Complaint on a variety of pro-

cedural and substantive grounds. These grounds raise the

issues now before the court.

1 The islands of the Trust Territory are located in the Western

Pacifie Ocean north of the Equator. There are approximately 96

island units, various small islands or atolls, which are scattered

over an oveanic area larger than the continent of Australia or con-

tinental United States. The islands total land area, however, is

only 687 square miles, and only 64 are regularly inhabited. See

Trust Territory of the Pacifie Islands 1960, 13th Annual Report

to the United Nations (Dept. of State publication 7183, 1961).

The High Commissioner is the highest official in the executive

branch of the Trust Territory Government. See infra at 655.

ZVOA RIO ECGS T RC

Plaintiffs, citizens of the Trust Territory who are resi-

dents of Saipan, Mariana Islands, allege that the action of

the High Commissioner in approving and later executing

a lease agreement with Continental Airlines, Ine. (herein-

after ‘‘Continental’’) to construct and operate a hotel on

public land adjacent to Micro Beach, Saipan, unlawfully

bypasses NEPA because no environmental impact state-

ment 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 Man-

dated Islands.?, An injunction is sought prohibiting the

implementation of the lease agreement until the environ-

mental impact of the hotel has been studied and evaluated.

In addition to the immediate parties to the lease (Con-

tinental 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 Govern-

ment. 7

On January 10, 1973, this court denied a temporary re-

straining order after a hearing and requested further brief-

261 Stat. 3301 (hereinafter ‘‘Trusteeship Agreement’’). The

Trusteeship Agreement was approved by the Security Council of

the United Nations on April 2, 1947, and by the President of the 4

United States on July 18, 1947, pursuant to a Joint Resolution 3

of Congress of that date.

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ing 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 prelimi-

nary injunction was postponed pending decision on the

motions to dismiss.

After extensive consideration, it is my reluctant conclu-

sion 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 lack-

ing 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 Gov-

ernment 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, de-

prive 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,

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whether it be because of diffidence, courtesy, general cul-

tural values or a long history of exposure to highhanded

outsiders, do not feel free to use a beach oceupied by tour-

ists.’? 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 Ad-

visory Board® for its consideration. The Board unani-

mously 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 District * and the High Commissioner by

3 All members of the Land Advisory Board are Trust Territory

citizens and are appointed by the Mariana Islands District Ad-

ministrator with the advice and consent of the Mariana Islands

District Legislature. 67 T.T.C. § 53. See footnote 4, infra.

‘Saipan is part of the Mariana Islands District. For the pur-

pose of administration, the islands of the Trust Territory are

grouped into six districts, each with its own administrator and

legislature. Subject to all territory-wide laws, the district gov-

ernments are primarily responsible for support of public education

and health, imposition and collection of sales taxes, construction

and maintenance of secondary roads, domestie relations, inheri-

tanee law, land law, issuance of licenses for wholesale business

and liquor control. 3 T.T.C. § 2.

Each district administrator is appointed by and serves at the

pleasure of the High Commissioner. 3 T.T.C. $51. In addition

to his duties as representative for the High Commissioner, the

district administrator is the chief executive officer of the district

government. 3 T.T.C. §52. (The court is informed that the

Code has been amended to require the advice and consent of the

Congress of Micronesia for all future appointments of district

administrators}.

— . .

VEE AL BER hie de one a

Dee LMI LS ays nk URE LEGGE INE ADI SDS FMD BT

letter dated October 20, 1970. See Exhibit B of the Com-

plaint.

For approximately one year no apparent action on the

hotel project was taken. Then on October 15, 1971, a Mi-

cronesian News Service® release announced that the Trust

Territory Government had tentatively approved a lease of

the site to Continental ‘‘with final approval awaiting re-

ceipt of the completed papers.”’ Complaint § 25. There-

after, protests against the proposal by various elected and

community leaders, the Saipan Municipal Council * and tie

Mariana Islands District Legislature were communicated

to the Interior Department and the High Commissioner.’

Nevertheless, the lease was executed by Continental and

High Commissioner Johnston on behalf of the Trust Terri-

tory 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,* id. art. 27, and

5 The Micronesian News Service is part of the Trust Territory

Government’s Department of Public Information.

6 The Saipan Municipal Council represents a third layer of gov-

ernment subordinate to the Trust Territory Government and the

Mariana Islands Distriet Government. Such councils are char-

tered by the High Commissioner when in his opinion such action

is warranted by tie cireumstances and by the stage of develop-

ment of the com:nunity. 4 T.T.C. §1. They are subject to all

territory-wide laws and all distriet laws of their respective dis-

tricts. 4 T.T.C. § 51.

7 Defendants have submitted a petition signed by various people

in the Mariana Islands District supporting construction of the

hotel. Defendants Exhibit 6. Plaintiffs admit that the project

‘‘ig not without support’? among the people of Saipan.

8 Plaintiffs allege that the hotel is to be eventually expanded to

500 rooms.

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with the prior written permission of the Trust Territory

Government to erect on the ‘‘publie 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. Jd.

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 Govern-

ment’’ prepare a detailed environmental impact statement

for ‘‘major Federal actions significantly affecting the qual-

ity of the human environment.’’

NEPA Is AppLlicaBLeE 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 opin-

ion, 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 in-

tent may be ascertained.’’

T am not persuaded, In my opinion, defendants miscon-

strue 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 Law® applied to a contract be-

tween 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 (coneurring 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 ad-

ministrative 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 be-

yond 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... .’?' Id. at 290, 69 S.Ct. at 580.

Thus the Court did not adopt the mechanical rule pro-

posed by defendants. Rather it looked to all available evi-

dence of legislative intent before it arrived at a decision.

® The Eight Hour Law was repealed August 13, 1962. 76 Stat.

360. It had provided that ‘‘|e]very contract hereafter made to

which the United States ... is a party... shall contain a pro-

vision that no laborer or mechanic doing any part of the work

contemplated by the contract, in the employ of the contractor or

any subcontractor . . . shall be required or permitted to work

more than eight hours in any one calendar day upon such work;

”?

10 Jt is interesting to note that while the United States does

not have sovereignty in the Trust Territory, it very definitely has

legislative control. As noted infra at 655, Department of the

Interior Order No. 2918, pt. IIT $2 provides that the Congress

of Micronesia may not enact legislation inconsistent with the

‘“treaties or international agreements’’ of the United States, *‘laws

of the United States applicable to the Trust Territory,’’ ‘‘Exee-

utive Orders of the President’? and ‘Orders of the Secretary of

the Department of Interior.’’ See also, 2 T.T.C. § 102.

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Though a differ nt result was reached, this is exactly the

procedure followed in Enewetak.™ Because this court con-

eluded that both the language and legislative history of

NEPA evidenced a congressional intent to apply the stat-

ute to all areas under United States control, the canon of

construction cited by defendants ‘‘whereby unexpressed

congressional intent may be ascertained’’ never became an

issue.

No other reasons appearing for a reconsideration of this

court’s decision in Enewetak, it is reaffirmed and defend-

ants’ arguments rejected.

VENUE Is Property Lamp 1n THE District or Hawa

Defendants Continental and High Commissioner John-

ston contend that venue is improperly laid in this district

because the Department of the Interior and its officials

have not legally or adequately been served with process.

Plaintiffs rely on 28 U.S.C. $1391(e) (Supp.1973) as

authorization for effective extra-territorial service:

A civil action in which each defendant is an officer

or employee of the United States or any agency thereof

acting in his official capacity or under color of legal

authority, or an agency of the United States, may...

be brought in any judicial district in which: (1) a de-

fendant in the action resides, or (2) the cause of action

arose, or (3) any real property involved in the action

is situated, or (4) the plaintiff resides if no real prop-

erty is involved in the action.

1 Indeed, in every reported case requiring judicial interpreta-

tion of the applicability of ambiguous legislation to the Trust

Territory, the courts have looked to all available evidence to dis-

cover the intent of Congress. See Aradanas v. Hogan, 155 F.Supp.

546 (D.Hawaii 1957) (Immigration and Nationality Act); Ap-

plication of Reyes, 140 F.Supp. 130 (D.Hawaii 1956) (Immigra-

tion and Nationality Act); Callas v. United States, 253 F.2d 838

2d Cir. 1958) (Tort Claims Act); Brunell v. United States, 77

F.Supp. 68 (S.D.N.Y.1948) (Tort Claims Act).

ae We oe Ee

It is first argued that the section is not applicable here

because the requirement that ‘‘each defendant’’ be an offi-

cer or employee of the United States is violated by the

joinder of Continental, a private corporation. Though this

argument is supported by the literal language of section

1391(e), it is obviously inconsistent with the spirit and

intent of the provision. See Judge Body’s discussion in

Powelton Civic Home Owners Ass’n v. Department of

Housing & Urban Development, 284 F.Supp. 809, 832-834

(E.D.Pa. 1968). The better rule, supported by virtually all

courts which have considered this problem,” is that the

requirement refers only to defendants who are beyond the

forum’s territorial limits. Thus the presence of Conti-

nental is simply not relevant to the extra territorial opera-

tion of section 1391(e).”

12 Powelton Civie Howe Owners Ass‘n. v. Department of Housing

& Urban Development. supra at 832-834; Liberation News Service

v. Eastland, 426 F.2d 1379, 1382 n. 5 (2d Cir. 1970); Kletschka

v. Driver, 411 F.2d 436, 442 (2d Cir. 1969) ; Brotherhood of Loco-

motive Engineers v. Denver & R.G.W. R.R., 290 F.Supp. 612, 615-

616 (D.Colo.1968), aff'd. on other grounds, 411 F.2d 1115 (10th

Cir. 1969); Coalition for United Community Action v. Romney,

316 F.Supp. 742, 746-747 (N.D.1IL1970) ; MeKenna v. Udall, 135

U.S.App.D.C. 335, 418 F.2d 1171, 1176 (1969); Heath v. Aspen

Skiing Corp., 325 F.Supp. 223, 229 (D.Colo.1971); Engiish v.

Town of Huntington, 335 F.Supp. 1369, 1373 (E.D.N.Y.1970),

aff'd. on other grounds, 448 F.2d 319 (2d Cir. 1971); Macias v.

Finch, 324 F.Supp. 1252, 1254-1255 (N.D.Cal.1970). Contra,

Chase Savings & Loan Ass’n. v. Federal Home Loan Bank Board,

269 F.Supp. 965, 967 (E.D.Pa.1967).

13 Defendant Continental resides in this district because it does

business here, see 28 U.S.C. § 1391(e) (Supp.1973), and was per-

sonally served pursuant to Rules 4(d)(3) and 4(b) of the Fed-

eral Rules of Civil Procedure. Defendant High Commissioner

Johnston wu: personally served in this district on January 15,

1973. He i425 not raised any specific venue objections although

he hzs moved this court to quash a subpoena issued to require

the ‘aking of his deposition. In view of my conclusion that the

Hig): Commissioner is an official of the Department of the Interior,

OO PL ERLE LOIRE EL IO LEIP LLIN, Se

10a

Secondly, it is asserted that with respect to the Interior

Department and its officials venue is improperly laid in this

district because none of the requirements set out in sub-

sections (1) through (4) of section 1391(e) have been met.

It is suggested that proper venue would be in Washington,

D. C., the official residence of these defendants.

It is not necessary to decide this question because the

Interior Department, Secretary Morton and Deputy Assist-

ant Secretary Carpenter have all waived their objections

to venue.* Because venue is a privilege personal to each

defendant, Continental and Johnson are precluded from

objecting that venue is improper as to the other defend-

ants. Camp v. Gress, 250 U.S. 308, 39 S.Ct. 478, 63 L.Ed.

997 (1919); McKenna v. Udall, 135 U.S.App.D.C. 335, 418

F.2d 1171, 1176-1177 (1969).

PuatntiFrrs Have STANDING

Defendants move on two separate grounds to dismiss the

Complaint because plaintiffs lack standing: (1) plaintiffs

have failed to allege the requisite interest in the contro-

infra, at 657-658, he would be subject to extra-territorial service

to the same extent as any other official in the Department. While

the APA exclusion precludes judicial review in most instances,

there is no reason to believe that it provides an exemption from

the venue statutes.

4The reason for their waiver is found in Exhibit B of the

Governmental Defendants Memorandum in Support of Motion

to Dismiss which is a letter from the Department of Interior to

the Department of Justice dated January 24, 1973. On page 7

it is stated:

5. We believe your Department is better qualified to eval-

uate the venue question. We might note, however, that since

General Constructors is a valuable precedent for the Hawaii

District, it might be better to stay there, particularly since

review would be in the Ninth Circuit which we think would

be more knowledgeable about and sympathetic to our position

than would the D.C. Circuit.

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versy as defined by Sierra Club v. Morton, 405 U.S. 727,

92 S.Ct. 1361, 31 L.Ed.2d 36 (1972); and (2) as nonresi-

dent aliens, plaintiffs have no standing to sue, relying on

Pauling v. McElroy, 107 U.S.App.D.C. 372, 278 F.2d 252

(1960). Both arguments are without merit.

In Sierra Club v. Morton, supra, the Sierra Club sought

a declaratory judgment and an injunction to restrain fed-

eral officials from approving an extensive skiing develop-

ment in the Mineral King Valley in the Sequoia National

Forest. The Supreme Court held that the Club lacked

standing because it had asserted no individualized harm to

itself or its members: ‘‘Nowhere in the pleadings or affi-

davits did the Club state that its members use Mineral

King for any purpose, much less that they use it in any

way that would be significantly affected by the proposed

actions of the respondents.’’ 405 U.S. at 735, 92 S.Ct. at

1366.

In the instant case plaintiffs clearly have alleged facts in

the Complaint which satisfy the Sierra Club test. Para-

graph 3 of the Complaint states that:

Most of the plaintiffs regularly use Micro Beach in

Saipan for swimming, fishing and pienicking, and re-

gard it as one of their favorite beach areas in Saipan.

They would be effectively deprived of their use of

Micro Beach if construction of the Continental hotel

takes place as presently contemplated.

In addition, paragraph 35 alleges that the hotel will create

a sewage problem, paragraphs 36 and 37 that it will dele-

teriously affect the power and water supply, and paragraph

39 that its height will have ‘‘a significant aesthetic effect

upon the people of Saipan.’’ By such allegations, plain-

tiffs have shown that they will be ‘‘adversely affected” by

the construction of the hotel and that they have more than

merely general ‘‘interest in the problem.’’ See Sierra Club

v. Morton, supra, 405 U.S. at 739-740, 92 S.Ct. 1361.

12a

Moreover, in view of this court’s conclusion that NEPA

is applicable in the Trust Territory, plaintiffs’ status as

nonresident aliens does not detract from their standing to

sue. Enewetak v. Laird, supra 353 F.Supp. at 820 n. 14.

Nor do they lack standing under the APA. Constructores

Civiles de Centroamerica, S. A. v. Hannah, 148 U.S.App.

D.C. 159, 459 F.2d 1183, 1189-1191 (1972). The footnote

in Pauling v. McElroy, supra 278 F.2d at 254 n. 3, to the

effect that ‘‘non-resident aliens ... plainly cannot appeal

to the protection of the Constitution or laws of the United

States’’ is an incomplete statement of the law.% There

are many instances where nonresident aliens have been

allowed to sue in United States courts to protect their

property or personal rights.”* Indeed, the Supreme Court

has said that ‘‘[a]lien citizens, by the policy and practice

of the courts of this country, are ordinarily permitted to

15 The District of Columbia Circuit has subsequently ‘‘clarified’’

its holding in Pauling v. McElroy. In Constructores Civiles de

Centroamerica, S.A. v. Hannah, supra 459 F.2d at 1190 n. 13, it

stated:

Citing Johnson v. Eisentrager, supra [339 U.S. 763, 70 S.Ct.

936, 94 L.Ed. 1255], we have denied standing to nonresident

aliens who have not alleged specific threatened injury in chal-

lenging the detonation of a nuclear device. Pauling v. Mec- .

Elroy, 107 U.S.App.D.C. 372, 278 F.2d 252 (1960). (Emphasis

added).

16 See, e.g., Wilderness Society v. Morton, 463 F.2d 1261 (D.C.

Cir.1972) (Canadian environmental group allowed to intervene

in federal district court suit testing Interior Secretary’s compli-

ance with NEPA prior to granting Alaska pipeline permits) ;

Constructores Civiles de Centroamerica, S.A. v. Hannah, supra

(Honduran corporation had standing to sue Agency for Inter-

national Development in connection with disqualification of the

corporation as a bidder on road construction contract) ; Puente

de Reynosa, S.A. v. City of McAllen, 357 F.2d 43 (5th Cir. 1966)

(Mexican corporation owning Mexican end of a Rio Grande River

bridge had standing to sue for injunction restraining construction

of new bridge by city on grounds that city had failed to secure

congressional consent for the new structure).

EE OT AIS OE

‘a

13a

resort to the courts for the redress of wrongs and the pro-

tection of their rights.’’ The Disconto Gesellschaft v. Um-

breit, 208 U.S. 570, 578, 28 S.Ct. 337, 339, 52 L.Ed. 625

(1908).

Accordingly, this court will not deny plaintiffs standing

in this suit because of their status as nonresident aliens

where no such congressional intent is manifested in either

NEPA or the APA.

ABSTENTION Not RequrrepD

Defendants note that an identical suit is pending in the

High Court of the Trust Territory and request that this

court abstain from further proceeding until such time as

that suit is concluded.

Without getting into the difficult question of what defer-

ence is required as a general rule with respect to cases

pending in the High Court, it does not appear that absten-

tion is required in this case. Although the case in the High

Court arose from the same transaction as did this one, it

does not include all the defendants named herein and it

appears that the primary issue remaining before that court

involves the construction of a Trust Territory statute not

at issue here. Moreover, the Chief Justice of the High

Court has entered an order denying a motion by Continen-

tal and the High Commissioner which sought to enjoin the

plaintiffs from pursuing their remedies in this court. He

also, on his own motion, stayed further proceedings in the

High Court during the pendency of the action in this court.

Under the circumstances, abstention would serve little

purpose and might well lead to unnecessary expense and

duplication of effort.

Tue Trust Territory GovernMent Is Nor a FEDERAL

Acency Svussect to Review Unper NEPA or toe APA

By its terms NEPA is applicable only to major actions

of ‘‘agencies of the Federal Government.’’ See 42 U.S.C.

SEEK SLOP AOA LEE RNIE NER APES IES pTLA BCDE BA PAPE PERE aT Nd

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$4332 (Supp.1973). Defendants assert that the Trust

Territory Government is not such an agency because (1)

the Trust Territory is a foreign country and its govern-

ment immune to suits in United'States courts, or alterna-

tively (2) that the Trust Territory Government is a gov-

ernment of a United States territory or possession within

the meaning of 5 U.S.C. § 701(b)(1)(C) and exeluded from

judicial review.”

Unter international law the Trust Territory occupies a

unique position. By virtue of Article 3 of the Trusteeship

Agreement the United States has ‘‘full powers of adminis-

tration, legislation, and jurisdiction’’ over the territory,

allowing in practical effect the exercise of full sovereign

power although technically sovereignty resides elsewhere."*

Beyond these full administrative powers normally granted

to administering authorities in United Nations trusteeship

7 The APA, which provides for judicial review of ‘‘ageney

action,”’ see 5 U.S.C. § 702, defines an agency as ‘‘each authority

of the Government of the United States, whether or not it is within

or subject to review by another ageney.”’ 5 U.S.C. §701(b)(1).

However, it is further provided that this definition does not in-

clude, inter alia, ‘‘the governments of the territories or possessions

of the United States.’’ 5 U.S.C. § 701(b)(1)(C).

18 As noted by Francis D. Sayre, United States Representative

in the Trusteeship Council and President of the Council, in his

learned article on ‘* Legal Problems Arising from the United Na-

tions Trusteeship System,’’ 42 Am.J.Int’l.L. 263, 271 (April, 1948) :

In the first place, there seems to be general concurrence with

respect to the present trust territories, as there was with re-

spect to the mandated territories, that wherever sovereignty

does rest it is not in the administering power. This view has

been re-enforced by statements of the United States, the

United Kingdom and Australia as administering authorities of

trust territories. Each of these has stated on separate occa-

sions that it does not regard its administration of the trust

territory as implying any claim of sovereignty.

OEE OLE TO LOONIE PELE SIENA UP RYE SOT LENGE OPN LEN OE i AO RIE HOT He Paste ON Nahe A ———

— _

Se eS Sten

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agreements,” the Trust Territory is the only area desig-

nated as a ‘‘strategic’’ trust. Trusteeship Agreement,

art. 1. This designation results in the United States being

responsible to the Security Council for administration of

the Trust Territory—where the United States possesses

veto power *’ —rather than the General Assembly. It also

permits preferential treatment of the United States in eco-

nomic and commercial matters,” and allows this country

unilaterally to declare all or any part of the islands a closed

area within which the United States may determine the

extent to which trustee functions shall be exercised and

from which it may bar anyone, including the United Na-

% After World War II. eleven trusteeships were set up pur-

suant to agreements between the United Nations and various na-

tions. The United States’ administration of the Trust Territory

and Australia’s administration of New Guinea are the only trust-

eeships still in effect.

2° See Article 27 of the Charter of the United Nations.

*1See Article 8(1) of the Trusteeship Agreement which pro-

vides:

In discharging its obligations under Article 76(d) of the

[United Nations] Charter . . . the administering authority

. Shall aceord to nationals of each Member of the United

Nations and to companies and associations organized in con-

formity with the laws of such Member, treatment in the trust

territory no less favourable than that accorded therein to

nationals, companies and associations of any other United

Nation except the administering authority. (Emphasis

added).

This article is the same as that contained in the draft trusteeship

agreement submitted by the United States. The comment ac-

companying the United States proposal made it clear that the

basis for preferential treatment of the United States was the

‘*strategic’’ status of the Trust Territory. See Draft Trustee-

ship Agreement for the Japanese Mandated Islands, With Arti-

cle by Article Explanatory Comments, (Department of State Pub-

lication, February 26, 1947) at 5-6, in 1 Whiteman, Digest of

Int'l Law 810-811 (Released June, 1963).

terms PALL COLE NS LLG ED LLM CLIENT SN A AOE” Bi se patee

16a

tions. See the dissent of Judge Lumbard in Callas v.

United States, 253 F.2d 838, 842-844 (2d Cir. 1958).

Finally, in common with all trusteeship agreements ne-

gotiated with the United Nations, the Trusteeship Agree-

ment may not be altered, amended or terminated without

the consent of the United States. Trusteeship Agreement,

art. 15.

The Congress authorized the President to vest the ad-

ministrative power conferred on the United States by the

Trusteeship Agreement ‘‘in such person or persons’’ to be

exercised ‘‘in such manner and through such agency or

agencies as the President .. . may direct or authorize.’’

48 U.S.C. §$1681(a) (Supp.1973). In Executive Order

11021, 3 C.F.R. 600 (1959-63 Compilation), 48 U.S.C. § 1681

(Supp.1973), the President delegated authority to the Sec-

retary of the Interior as follows:

oe ath Se ee + “> eR OMI

ss Rs eS eo

So ek ae cae

Th M eee

St pebeiceda et: tg

RAN POT WI

5 te IVE

Section 1. Responsibility of Secretary of the Inte-

rior. The responsibility for the administration of civil

government in all of the trust territory, and all execu-

tive, legislative, and judicial authority necessary for

that administration, are hereby vested in the Secretary

of the Interior. ... [T]he Secretary . .. shall take

such actions as may be necessary and appropriate to

carry out the obligations assumed by the United States

as the administering authority of the trust territory

under the terms of the trusteeship agreement and un-

der the Charter of the United Nations. ...

as Ie

22See Article 13 of the Trusteeship Agreement which provides:

The provisions of Article 87 and 88 of the [United Nations]

Charter [relating to reports, petitions, visits and question-

naires concerning non-strategic areas] shall be applicable to

the trust territory, provided that the administering authority

may determine the extent of their applicability to any areas

which may from time to time be specified by it as closed for

security reasons. (Emphasis added).

See also discussion in 1 Whiteman, supra at 824-830.

ESE IES CISC INLAY LT NEL ELIS TELE N SLI LY BING AEN MOR et oe SoH 4. SPIES BTN ACRN

17a

See. [sic] 2. Redelegation of authority. The execu-

tive, legislative, and judicial authority provided for in

section 1 of this order may be exercised through such

officers or employees of the Department of the Inte-

rior, or through such other persons under the jurisdic-

tion of the Secretary of the Interior, as the Secretary

may designate, and shall be exercised in such manner

as the Secretary, or any person or persons acting un-

der the authority of the Secretary, may direct or au-

thorize.

Pursuant to this authority, the Secretary issued a series of

Secretarial Orders dealing with the civil administration of

the Trust Territory which have been superseded and con-

solidated in Department of the Interior Order No. 2918

(December 27, 1968) (hereinafter ‘‘Order No. 2918’).

This Order, as amended, creates a basically republican

form of government in the Trust Territory with executive,

legislative and judicial branches.

Executive authority is vested in the High Commissioner

to ‘‘be exercised and discharged under the supervision and

direction of the Secretary.’’ Order No. 2918, pt. II § 1.

The High Commissioner is appointed by the President of

the United States with the advice and consent of the Sen-

ate. 48 U.S.C. §1681(a) (Supp.1973). Thus his authority

does not come from the people of the Trust Territory, nor

do they have any method of removing him when dissatisfied

with his actions or policies.

Legislative a.thority has been delegated to the Congress

ot Micronesia, consisting of a Senate and House of Repre-

sentatives, whose members are elected by the citizens of the

Trust Territory. Order No. 2918, pt. III §§ 1, 2, 5, 7 and 8.

The power of the Congress is circumscribed, however, by

the provisiox that it may not enact legislation inconsistent

with the laws of the United States applicable to the Trust

Territory, treaties or international agreements of the

United States, Executive Orders of the President or orders

terrrenasrmenennenneenenemnmemmsemenmen f

18a

of the Secretary of the Interior. Id. § 2. Moreover, every

bill passed by the Congress is subject to veto by the High

Commissioner. His veto may be overridden by a two thirds

majority of the entire membership of both Houses, but the

re-enacted bill is still subject to veto by the Secretary of

the Interior. The Secretary’s action is final and may not

be overridden. Id. § 13.

Judicial authority is vested in High Court which is inde-

pendent of the executive and legislative powers. Order

No. 2918, pt. IV. The Secretary appoints the’ Chief Jus-

tice and all Associate Justices free from any control by the

Congress of Micronesia.

In addition, Order No. 2918 specifies that the relations

of the Trust Territory Government with the Congress of

the United States on all legislative matters, including ap-

propriations, shall be conducted through the Department

of the Interior. Pt. II § 2. Likewise, contact with other

Federal agencies and communications with foreign govern-

ments and international bodies must go through and bé

cleared by the Department. Pt. II §§ 4 and 5.

Upon consideration of all of the above, it is my opinion

that the United States exercises a maximum degree of con-

trol which is inconsistent with the assertion that the Trust

Territory is a foreign country. My decision is reinforced

by the fact that there does not appear to have been any

significant delegation of authority to the citizens of the

Trust Territory.“ The United States, acting through the

Secretary of the Interior, controls the High Commissioner

and retains an absolute veto over all legislation enacted by

23 The court is informed that this situation will probably change

as a result of the Micronesian Future Political Status Talks now

under way between Ambassador Franklin Williams of the United

States and representatives of the Congress of Micronesia. See Of-

ficial Record of the Fourth Round of Micronesian Future Political

Status Talks (Released by the Office of Micronesian Status Nego-

tiations, Washington, D. C. 1972). However, at the time of the

filing of this action, Order No. 2918 was still in full effect.

OM Leah ETO EL $F VIS ae eS ieee

wed Slant BA ee Lat a et k

19a

the Congress of Micronesia. Accordingly, without deter-

mining exactly what status the Trust Territory occupies,

I hold that it is not a foreign country entitled to immunity

from suits in United States courts.

The cases cited by defendants for the proposition that

the Trust Territory is a foreign country are not to the con-

trary. Brunell v. United States, 77 F.Supp. 68 (S.D.N.Y.

1948) and Callas v. United States, 253 F.2d 838 (2d Cir.

1958) turn on a construction of the term ‘‘foreign country”’

as used in the Tort Claims Act. See 28 U.S.C. § 2680(k).

Similarly, Application of Reyes, 140 F.Supp. 130 (D. Ha-

waii 1956) and Aradanas v. Hogan, 155 F.Supp. 546 (D.

Hawaii 1957) construe the term ‘‘foreign state’’ as used in

the Immigration and Nationality Act. See 8 U.S.C. § 1101

(a)(14). None of these cases go outside the scope of the

particular act under consideration * and the legal status of

the Trust Territory Government was never an issue.

While avoiding the Trust Territory Government’s claim

of sovereign immunity as the government of a foreign

country, plaintiffs cannot also avoid the APA’s exclusion

of ‘‘the governments of the territories or possessions of

the United States’’ from judicial review. 5 U.S.C. § 701

(b)(1)(C). Admittedly, the Trust Territory is technically

not a territory or possession because the United States

does not have sovereignty. This distinction is immaterial,

however, because the legislative history of the APA makes

it clear that Congress intended to exclude from judicial

review all governments created pursuant to the authority

of Congress.

Senator McCarran, Chairman of the Senate Judiciary

Committee, made these remarks in reporting on the Sen-

24See Brunell v. United States, supra 77 F.Supp. at 69, 72;

Callas v. United States, supra 253 F.2d at 840; Application of

Reyes, supra 140 F.Supp. at 131-132; Aradanas v. Hogan, supra

155 F.Supp. at 547.

PROSENSE EE APR lt IEE D SoS LLIN PRD Pt PEL MG

ate Bill that, with only minor clarifications and corrections,

was enacted as the APA:

As it has been reported to the Senate, the committee

feels that it has avoided the mistake of attempting to

over-simplify this measure. It has not hesitated, there-

fore, to state functional classifications and exceptions

where those could be rested upon firm grounds. In so

doing, the committee has followed the undeviating

policy of dealing with types of functions as such and

in no case dealing with administrative agencies by

name. That point is important, and I will repeat it

if I may. The committee has not deviated from the

policy of dealing with types of functions as such, and

the bill in no case deals with administrative agencies

by name. (Emphasis added). 92 Cong.Ree. 2150

(1946).

This theme is reiterated in the House Judiciary Committee

Report:

Functional classifications and exemptions have been

made, but in no part of the bill is any agency exempted

by name. The bill is meant to be operative ‘across the

board’ in accordance with its terms, or not at all.

Where one agency has been able to demonstrate that

it should be exempted, all like agencies have been ex-

empted in general terms. (See sec. 2(a)). Where one

agency has shown that some particular operation

should be exempted from any particular requirement,

the same function in all agencies has been exempted.

No agency has been favored by special treatment.

(Emphasis added). H.Rep.No.1980, in 1946 U.S. Code

Cong. & Ad.News 1195, 1205.

In view of this clearly expressed congressional intent to

operate ‘‘across the board’’ and exempt ‘‘all like agencies

... in general terms,’’ this court concludes that the Trust

Territory Government is excluded from review under sec-

pSRSORL EORTC Y LARC TAG IIR GE POG g LTT YMA EGP OTL RITES MOY 3 ti 88 LAIST BME ES GEE. AE IB CEE TAB

TORENT TY ERE RRA :

CN PCA Sete SAR SUSY aac ee ad

Ley eT

RSA S es

Peis

oe SIRR Ne ROR

Paden TAREE

21a

tions 701 to 706 of the APA. The fact that the United

States is technically without sovereignty in the Trust Ter-

ritory is, under the cireumstances, a distinction without a

difference.

This conclusion is supported by reference to United

States administration of American Samoa. Its govern-

ment is virtually identical to that of the Trust Territory

insofar as the power of the Secretary of the Interior or the

important Samoan governmental bodies are concerned.”

Judge Tavares of this district held that the APA exclusion

is applicable to the civil government in Samoa. General

Constructors Company of Nevada v. Morton, Civ. No. 71-

3409 (D. Hawaii decided September 16, 1971) (Unpublished

Opinion). Thus under the rule that all like agencies should

be exempted from the operation of the APA, the Trust

Territory Government should likewise be excluded.”

Plaintiffs argue that a distinction must be drawn between

the High Commissioner and the other branches of the Trust

Territory Government, and that in order to prevail they

need only establish that the High Commissioner is a ‘‘fed-

eral agent.’’? See Plaintiffs’ Memorandum in Response to

Defendants’ Motions to Dismiss at 3-18. While I accept

plaintiffs’ argument that under general principles of agency

law and court decisions defining the term ‘‘federal

23 Compare 48 U.S.C. §1661(¢) (Supp. 1973) with 48 U.S.C.

$1681(a) (Supp. 1973); Exeeutive Order No. 10264, 16 FR.

6419, with Executive Order No. 11021, 3 C.F.R. 1959; Department

of the Interior Order No. 2657, as amended, with Department of

the Interior Order 2918, as amended.

26 See Harris v. Boreham, 233 F.2d 110 (3rd Cir. 1956), where

it was held that the government of the Virgin Islands, including

two municipalities into which it was divided, was not a ‘‘federal

agency’’ within the meaning of the Tort Claims Act, nor was the

Superintendent of Publie Works of one of these divisions an offi-

cer or employee of a federal agency while he was supervising the

maintenance of streets even though his salary was paid from fed-

eral funds, and he was appointed by the Secretary of the Interior.

‘ PR Oe cyag ros Pew ad +9 " a OO A PPLE EE REISS =

- NELLIS GS ALLIS

Tar Se

ao 7 ° Se a eee _

22a

agency’’,*’ the High Commissioner and his immediate sub-

ordinates in the executive branch of the Trust Territory

Government are federal oflicials operating as a component

of the Department of the Interior, it does not alter my

conclusion that the APA exclusion is applicable in this

ease. To exempt federal officials serving as officers of the

governments of the territories and possessions from United

States laws governing federal agency action was obviously

the reason for the exclusion. Whether the Trust Territory

Government is considered as a whole, or the High Commis-

siouer by himself, the result is the same.**

Having concluded that the Trust Territory Govern-

ment is exempt from judicial review wider the APA it

follows that it is also immune under the provisions of

NEPA. No reason is apparent—and plaintiffs cite none—

why the same rules on the scope of review should not be

applied. Accordingly, the action of High Commissioner

Johnston approving and executing the lease agreement is

not ‘‘federal’’ action within the meaning of NEPA.

27 See,-e.g., Domenech vy. National City Bank, 294 U.S. 199, 55

S.Ct. 366, 79 L.Ed. 857 (1935): Standard Oil Co. of California

v. Johnson, 316 U.S. 481, 62 S.Ct. 1168, 86 L.Ed. 1611 (1942);

Korman v. Federal Housing Administrator, 72 App. D.C. 245,

113 F.2d 743 (1940); Lassiter v. Guy F. Atkinson Co., 176 F.2d

984 (9th Cir. 1949).

28 On the basis of affidavits submitted by the parties and testi-

mony at the hearing on the Motion for a Temporary Restraining

Order and again at the hearing on the Motions to Dismiss, it is

clear that plaintiffs’ allegations that the decision to approve the

lease agreement was made or dictated by officials in the Department

of the Interivr are without foundation. The lease approval was

a “‘local’’ deeision of the High Commissioner acting within the

scope of his duties as chief executive of the Trust Territory Gov-

ernment. The officials of the Interior Department did not nego-

tiate, counsel, advise or participate in the decision. Nor was the

lease ever sent to the Department for approval or coneurrence

in any form. Because unwarranted inferences of fact may not

preclude dismissal, see 2A Moore’s Federal Practice § 12.08, this

allegation has not been admitted for the purposes of these motions.

LEO LE LEELA EF LEN EIGI ICT LENGE LS OID LAO LEE STEERS AE SIE GO ES Ts OES Reem HO DP LOLI IIOP OR

V! pl Dent. tel le LO |

SS ee =

ee eae

;

23a

APPROVAL OF THE LEASE AGREEMENT Is Mazor AcTION

Wiruty THe Meaninc or NEPA

Though their argument is not entirely clear, it appears

that defendants assert not only that the High Commis-

sioner’s approval of the lease agreement is not federal

agency action but that it is not ‘‘major’’ action within the

meaning of NEPA.

This contention has been settled adversely to defendants

by Davis v. Morton, 469 F.2d 593 (10th Cir. decided

November 24, 1972). The issue in that case was whether

approval by the Secretary of the Interior of a 99-year lease

of Indian 'ands executed by an Indian tribe and a develop-

ment company constituted major federal action. The

United Stetes did not initiate the lease, was not a party,

possessed ro interest in either the lease or the develop-

ment, and did not participate financially or benefit from

the lease in any way. Nonetheless, the Court held that

‘‘approving leases on federal lands constitutes major fed-

eral action and thus must be approved according to NEPA

mandates.”’ 4 E.R.C. at 1738. See also, Greene County

Planning Board v. Federal Power Commission, 455 F.2d

412 (2d Cir. 1972) (License to construct a high voltage

power line coneeded by all parties to be a major action) ;

Izaak Walton League of America v. Schlesinger, 337 F.

Supp. 287 (D.D.C.1971) (Issuance of an interim operating

license for a nuclear power plant held to be major action) ;

City of New York v. United States, 337 F.Supp. 150 (E.D.

N.Y.1972) (Interstate Commerce Commission order author-

izing abandonment of a railroad line held to be major

action).

Thus it is clear that the approval and execution of the

lease of public lands in the instant ease is ‘‘major”’ action

within the meaning of NEPA.

Trust Territory Government Does Not Have Sovereicn

Immunity Wuen Svep For Vioiations or an Act OF

ConGREss

Defendants claim that action against High Commissioner

Johnston is actually directed against the Trust Territory

OT a SELLE OLLIE SOLE LLL SE LYREL EM lB ALE SLEEP LF ADEE LEE NE EES ECAR

ine Ls

and is therefore barred by sovereign immunity.” To the

extent that this claim is based on their previous argument |

that the Trust Territory is a foreign country, it has already

been rejected. However, defendants also argue that the

Trust Territory possesses attributes of sovereignty equiva-

lent to a state government, relying principally on Kawan-

anakoa v. Pollybank, 205 U.S. 349, 27 S.Ct. 526, 51 L.Ed.

834 (1907).

It appears to be clear that there are degrees or attributes

of sovereignty, and that a government may be entitled to

and enjoy some of these attributes without necessarily

having all of them.

In the Kawananakoa case, Justice Holmes held that the

Territory of Hawaii was immune from suit without its con-

sent on the following basis:

A sovereign is exempt from suit, not because of any

formal conception or obsolete theory, but on the logical

and practical ground that there can be no legal right

as against the authority that makes the law on which

the right depends....

As the ground is thus logical and practical, the doc-

trine is not confined to powers that are sovereign in

the full sense of juridical theory, but naturally is

extended to those that, in actual administration, orig-

inate and change at their will the law of contract and

properiy, from which persons within the jurisdiction

derive their rights. A suit presupposes that the de-

fendants are subject to the law invoked. Of course it

cannot be maintained unless they are so. But that is

not the case with a territory of the United States,

because the territory itself is the fountain from which

rights ordinarily flow. It is true that Congress might

2° Of course, sovereign immunity would be no defense if the

Trust Territory Government had been construed to be a federal

agency subject to judicial review under NEPA and the APA. See

Kalur v. Reser, 355 F.Supp. 1, 8-9 (D.D.C.1971).

MALI oh IM SE ELE LE TEED SAEED ALIE LDAP EGOS LE EIGN G PEIIL EBERT EL Sf PRE SILL! YALA ALO BIEL Ne OR Mette ionetet

25a

intervene, just as in the case of a state the Constitution

does, and the power that can alter the Constitution

might. But the rights that exist are not created by

Congress or the Constitution, except to the extent of

certain limitations of power. 205 U.S. at 353-354, 27

S.Ct. at 527. (Emphasis added).

In the instant case, the same principles apply.

As previously discussed, the Trusteeship Agreement

gives the United States full powers of legislation in the

Trust Territory. With respect to local matters, this power

has been delegated to the Congress of Micronesia along

the lines followed in organizing the territories and posses-

sions of the United States. On the basis of the principles

outlined in Kawananakoa, I believe that this delegation of

local legislative power gave the Trust Territory what has

(been referred to as ‘‘quasi-sovereignty’’ or ‘‘qualified

sovereignty,’’ carrying with it the attribute of immunity

from suit without its own consent. See Porto Rico v.

Rosaly y Castillo, 227 U.S. 270, 33 S.Ct. 352, 57 L.Ed. 507

(1913) ; People of Puerto Rico v. Shell Co., 302 U.S. 253, 58

S.Ct. 167, 82 L.Ed. 235 (1952); Harris v. Boreham, 233

F.2d 110 (3rd Cir. 1956); Harris v. Municipality of St.

Thomas and St. John, 212 F.2d 323 (3rd Cir. 1954).

This immunity, however, cannot be extended to include

suits under a statute of the United States applicable in the

Trust Territory. Such statutes confer rights which are not

dependent on local authority—indeed, they supersede local

law *—and thus are not within the rule set out in Kawan-

anakoa. Near the end of the opinion Justice Holmes

3° Order No. 2918, pt. III §2(b) provides:

Legislative Power. The legislative power of the Congress

of Micronesia shall extend to all rightful subjects of legisla-

tion, except that no legislation may be inconsistent with

. * * . * * 2 * 2 .

(b) laws of the United States applicable to the Trust Ter-

, Ae

26a

specifically notes that ‘‘the rights [under consideration]

... are not created by Congress or the Constitution, except

to the extent of certain limitations of power. 205 U.S. at

354-355, 27 S.Ct. at 527.

In my opinion, then, the delegation of legislative power

to the Congress of Micronesia which created a qualified

sovereignty in the Trust Territory as respects its own laws

did not create any immunity from suits under an act of

Congress such as NEPA. If there is immunity, it must be

found elsewhere.

Tue Trusteesuip Acreement Doers Not Vest PLAINTIFFS

Wira Inprvinvat Lecat Riecnts Wuicu May Be

Assertep Ix Tuts Covert

Plaintiffs allege that under the Trusteeship Agreement,

particularly Article 6(2) which states that the adminis-

tering authority shall ‘‘ protect the inhabitants against the

loss of their lands and resources,’’ the United States under-

took a ‘‘sacred trust’’*' which requires compliance with

NEPA in all major actions affecting the environment. In

support of their position, they cite Pyramid Lake Paiute

Tribe v. Morton, 354 F.Supp. 252 (D.D.C. decided Novem-

ber 9, 1972) and Davis v. Morton, 469 F.2d 593 (10th Cir.

decided November 24, 1972) which held that exacting fidu-

ciary standards governed the Secretary of the Interior’s

actions that affected respectively water and land rights of

American Indian tribes.

While the analogy to American Indians may be apt in

some respects, I do not believe that the principles of Pyra-

*! Article 73 of the Charter of the United Nations states that:

Members of the United Nations which have or assume re-

sponsibilities for the administration of territories whose peoples

have not yet attained a full measure of self-government rec-

ognize the principle that the interests of the inhabitants of

these territories are paramount, and accept as a sacred trust

the obligation to promote to the utmost ... the well-being of

the inhabitants of these territories. .. .’’ (Emphasis added).

27a

mid Lake Paiute Tribe and Davis can be relied upon in

this case. The ‘‘trust responsibility’’ of the United States

as administering authority of the Trust Territory arises

out of the Trusteeship Agreement. As discussed above,

this document designates the islands as a ‘‘strategic’’ area

and thus accords the United States unique and virtually

unfettered rights of administration. Under these cireum-

stances, it appears to be entirely inappropriate to apply

the usual rules of interpretation for trust agreements and

fiduciary obligations.

I conclude with Judge Keech in Pauling v. McElroy, 164

F.Supp. 390, 393 (D.D.C.1958) that:

The provisions of the .. . Trusteeship Agreement for

the Trust Territory of the Pacific Islands . . . are not

self-executing and do not vest any of the plaintiffs with

individual legal: rights which they may assert in this

Court. The claimed violations of such international

obligations and principles may be asserted only by dip-

lomatie negotiations between the sovereignties con-

cerned.

OrHER ALLEGATIONS

Finally, the pro forma allegations that the Complaint

does not ‘‘contain a short and plain statement of the claim’’

as required by Rule 8(a)(2) of the Federal Rules of Civil

Procedure, and that plaintiffs have been guilty of laches,

are without merit.

Therefore, based on my conclusion that neither the APA

nor NEPA provide for jndicial review of the actions com-

plained of and that the Trusteeship Agreement does not

vest plaintiffs with legal rights enforceable in this court,

the Motions to Dismiss are granted.

It is so ordered.

28a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_ No. 73-1769

Tue Peorie or Saipan, by and through Herman Q. Guer-

RERO, Lixo M. Ovoprat, Davin T. Aupan, Jesus A. Sasa-

moto, Justin §. Manetona, Nick Santos, Ben A. Guen-

RERO, JoHN Rosario, Ricu R. Marciano, Joaquin P.

VuLacomez, Plaintiffs and Appellants,

Vv.

Unirep States Department or Interior, Rocers C. B.

Morton, Secretary of Interior, Staxtey S. Carpenter,

Deputy Assistant Secretary of the Interior for Terri-

torial Affairs, Epwaro E. Jonnston, High Commis-

‘sioner of the Trust Territory of the Pacific Islands, all

individually and in their official capacities.

Governmental Defendants and Appellees.

' and .

ConTINENTAL Arrives, Ixc., a Nevada Corporation,

Corporate Defendant and Appellee.

[July 16, 1974]

Appeal from the United States District Court

for the District of Hawaii.

Before: Trasx and Goopwiy, Circuit Judges, and East,*

District Judge.

Goopwin, 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

* The Honorable William G. East, Senior United States District

_ Judge for the Distrigt of Oregon, sitting by designation.

- —_

? Pe ITS LN LT eS tad "JER"

29a

Airlines to construct and operate a hotel on public land

adjacent to Micro Beach, Saipan. Plaintiffs appeal a judg-

ment of dismissal.

Phe district court heid that tie Trust Territory govern-

ment 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. Hawaii 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, Sr‘pan, 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 recom-

mendation. that the area be reserved for public park pur-

poses, the !*ic:rict Administrator of the Marianas District

recommended approval of a lease. The High Commis-

sioner himself executed the lease on behalf of the Trust

Territory government. An officer appointed by the Presi-

dent 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 Terri-

tory government.

Following its execution in 1972, the lease was opposed

by virtually every official body elected by the people of

30a

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 Terri-

tory 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.’ Soon afterward, the plaintiffs filed this

action in the United States District Court for the District

of Hawaii, and the High Court thereupon stayed proceed-

ings before it pending the outcome of this action.

I. Jupicrau Review Unpver toe APA on NEPA

The district court, relying upon its earlier decision in

People of Enewetak v. Laird, 353 F.Supp. 811 (D. Hawaii

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 Terri-

tory government is a foreign government immune to suits

1The High Court concluded that the Trust Territory govern-

ment was not a ‘‘federal agency’’ and that the High Commissioner,

acting as its chief executive officer, was not subject to NEPA. The

court relied primarily upon the prior determination of the Secre-

tary of the Interior that ‘‘territorial governments, under the ju-

risdiction of the Secretary of the Interior, are not agencies or in-

strumentalities of the executive branch of the Federal Government

* * * [and] that the territorial governments are not organized

entities of the Department of the Interior.’’ Dept. Manual of

Dept. of Interior 150.1.4.

3la

in United States courts, it accepted the defendants’ alter-

nate contention that the local government is a government

of a United States territory or possession, within the mean--

ing of the exclusionary clause in the Administrative Pro-

cedure 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 reasened that the

same standards on the scope of review should be applied to

NEPA, and concluded that the action of the High Commis-

sioner in approving and executing the lease agreement was

not ‘‘federal’’ action covered by the National Environ-

mental Policy Act, 42 U.S.C. § 4332.3

* For the purpose of this chapter—

“*(1) ‘agency’ means each authority of the Government of

the United States, whether or not it is within or subject to

review by another agency, but does not include—

‘‘e* @

**(C) the governments of the territories or possessions of

the United States * * *.’? 5 U.S.C. § 701(b).

’““The Congress authorizes and directs that, to the fullest ex-

tent possible: * * * all agencies of the Federal Government shall—

‘‘* @ &

“*(C) inelude in every recommendation or report on pro-

posals for legislation and other major Federal actions sig-

nificantly affecting the quality of the human environment, a

detailed statement by the responsible official on—

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot

be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of

man’s environment and the maintenance and enhance-

ment of long-term productivity, and

(v) any irreversible and irretrievable commitments of

resources which would be involved in the proposed action

should it be implemented * * *,’’ 42 U.S.C. § 4322.

— PONE OMI CRN

32a

We affirm these conclusions of the district court. See

356 F.Supp. at 649-61.*

We recognize, as did the district court, that several deci-

sions 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 pur-

poses 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 vy. E. E. Black, Ltd.,

188 F.2d 558 (9th Cir.), cert. denied, 342 U.S. 826 (1951).°

Plaintiffs have not cited and we have not found a case

applying APA judicial review provisions to the Trust Ter-

ritory 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 govern-

ments of the territories or possessions of the United

States,’’ 5 U.S.C. § 701(b)(1)(C), and that the Trust Terri-

tory 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 imma-

terial, 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 regula-

tion, 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

4 See also Vermilya-Brown Co. v. Connell, 335 U.S. 377 (1948),

in support of the conclusion that NEPA applies to federal agencies

operating in the Trust Territory.

5 But see Porter v. United States, 496 F.2d 583 (Ct.Cl. May

15, 1974), holding that the Trust Territory government was not an

agency of the United States for the purpose of asserting jurisdic-

tion against the United States for an alleged breach of a contract

negotiated by officials of the Trust Territory government.

33a

limited to the applicability of the Federal Tort Claims Act

(see, e.g., Callas vy. United States, 253 F.2d 838 (2d Cir.),

cert. denied, 357 U.S. 936 (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 Con-

gress 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 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. 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 review-

able 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. TrustersHip 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

34a

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 dis-

trict court.

We cannot accept the full implications of this holding.

We do not dispute the district court’s conclusion that com-

pliance with NEPA was not required by the Trusteeship

Agreement. We do, however, disagree with the holding

insofar as it can be read to say that the Trusteeship Agree-

ment 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, 278 F.2d 252 (D.C. Cir.), cert.

denied, 364 U.S. 835 (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 Agreement’s grant of broad dis-

cretion to use the area for military purposes. See Trustee-

ship Agreement arts. 1, 5, 13, 61 Stat. 3301, 3302, 3304. We

do not find Pauling to support the defendants’ contention

here that the plaintiffs cannot invoke the provisions of the

Trusteeship Agreement to challenge the High Commis-

sioner’s power to lease local public !and for commercial

exploitation by private developers.

® Article 12 of the Trusteeship Agreement empowers the United

States ‘‘to enact such legislation as may be necessary to place the

provisions of this agreement in effect in the trust territory.’’ Our

conclusion that the actions of the Trust Territory government are

not subject to NEPA is an equivalent way of saying that Con-

gress has not, pursuant to Article 12, legislated to make NEPA

applicable to the Trust Territory government. Hence, in ap-

proving the lease agreement, the High Commissioner was under

no obligation to comply with NEPA. This is the same conclusion

as that reached by the High Court. See note 1, supra.

aS WAG, PRS See te ee, PO OD LS TNE RS Se FF | TN TT

1 ne Te Se ae ee

35a

The right of Rhodesian and American citizens to main-

tain an action in the courts of the United States seeking

enforcement of the United Nations embargo against Rho-

desia was recently recognized in Diggs v. Schultz, 470 F.2d

461 (D.C. Cir. 1972), cert. denied, 411 U.S. 931 (1973). On

the merits, the court denied specific relief because of Con-

gressional action which was held to have abrogated the

United Nations Security Council Resolution, but the right

to seek enforcement in federal court was firmly established.

That decision, if correct, suggests that the islanders here

can enforce their treaty rights, if need be in federal court.’

Article 73 of the United Nations Charter, 59 Stat. 1031,

1048, T.S. No. 993 (1945), which discusses non-self-govern-

ing territories generally, provides:

‘‘Members of the United Nations which have or

assume responsibilities for the administration of terri-

tories whose peoples have not yet attained a full mea-

sure of self-government recognize the principle that the

interests of the inhabitants of these territories are

paramount, and accept as sacred trust the obligation

to promote to the utmost, within the system of inter-

national peace and security established by the present

Charter, the well-being of the inhabitants of these ter-

ritories, and, to this end:

‘‘a. To ensure, with due respect for the culture of the

peoples concerned, their political, economic, social, and

educational advancement, their just treatment, and

their protections against abuses * * *.’’

See also United Nations Charter art. 76, describing the

basic objectives of the trusteeship system. Although the

plaintiffs have argued that these articles of the United

Nations Charter, standing alone, create affirmative and

T See Note, 14 Va. J. Int’1 L. 185 (1973), which comments upon

Diggs v. Schultz.

36a

judicially enforceable obligations, we assume without

deciding that they do not.

However, pursuant to Article 79 of the Charter,* the gen-

eral principles governing the administration of trust terri-

tories were covered in more detail in a specific trusteeship

agreement for the Trust Territory of the Pacific Islands.

See generally L. Goodrich, E. Hambro & A. Simons,

Charter of the United Nations: Commentary & Documents

502 (3rd ed. 1969). Specifically, Article 6 of the Trustee-

ship Agreement requires the United States to ‘‘promote the

economic advancement and self-sufficiency of the inhabi-

tants, and to this end * * * regulate the use of natural

resources’’ and to ‘‘protect the inhabitants against the loss

of their lands and resources * * *.’’

Defendants contend, though, that provisions of the Trust-

eeship Agreement, including Article 6, can be enforced only

before the Security Council of the United Nations. We

disagree, concluding that the Trusteeship Agreement can be

a source of rights enforceable by an individual litigant in

a domestic court of law.

® The terms of trusteeship for each territory to be placed un-

der the trusteeship system, including any alteration or amend-

ment, shall be agreed upon by the states directly concerned, in-

cluding the mandatory power in the case of territories held under

mandate by a Member of the United Nations, and shall be approved

as provided for in Articles 83 and 85.’’ Jnited Nations Charter

art. 79, 59 Stat. 1031, 1049.

® Unlike the other ten trusteeships set up after World War II,

pursuant to agreements between the United Nations and various

nations, the Trust Territory was designated as a ‘‘strategic’’ trust.

Trusteeship Agreement art. 1, 61 Stat. 3301. See 1 M. Whiteman,

Digest of International Law 766. This designation results in the

United States being responsible to the Security Council for the

administration of the Trust Territory—where the United States

possesses veto power (United Nations Charter art. 27, 59 Stat.

1041)—rather than to the General Assembly. United Nations

Charter art. 83(1), 59 Stat. 1050.

wl ee? ae” la Ww? LOLOL AGO PELL CME ELM OYE PRE GTO EL ee Sa ly ew ee

Pane Day (FF

2 UD er ek eee 2:

Rane ff Peo Ve ) eeey eres

37a

The extent to which an international agreement estab-

lishes affirmative and judicially enforceable obligations

without implementing legislation must be determined in

each case by reference to many contextual factors: the pur-

poses of the treaty and the objectives of its creators, the

existence of domestic procedures and institutions appropri-

ate for direct implementation, the availability and feasi-

bility of alternative enforcement methods, and the immedi-

ate and long-range social consequences of self- or non-self-

execution. See generally M. McDougal, H. Lasswell, & J.

Miller, The Interpretation of Agreements and World Public

Order; Principles of Content and Procedure passim (1967).

The preponderance of features in this Trusteeship Agree-

ment suggests the intention to establish direct, affirmative,

and judicially enforceable rights. The issue involves the

local economy and environment, not security; the concern

with natural resources and the coneern with political devel-

opment are explicit in the agreement and are general inter-

national concerns as well; th enforcement of these rights

requires little legal or administrative innovation in the

domestic fora; and the alternative forum, the Security

Council, would present to the plaintiffs obstacles so great

as to make their rights virtually unenforceable.

Moreover, the Trusteeship Agreement constitutes the

plaintiffs’ basie constitutional document (see Parry, The

Legal Nature of Trusteeship Agreements, 27 Brit. Year

Book Int’1 L. 164, 182-84 (1950), excerpted in 1 M. White-

man, Digest of International Law 893 (1963), and is codi-

fied into the law of the Trust Territory. 1 T.T.C. § 101(1).

For all these reasons, we believe that the rights asserted by

the plaintiffs are judicially enforceable. However, we see

no reason why they could not and should not have been

enforced in the High Court of the Trust Territory. The

district court found that:

‘¢* * * The lease approval was a ‘local’ decision of

the High Commissioner acting within the scope of his

duties as chief executive of the Trust Territory gov-

“rm

ta es

38a

ernment. The officials of the Interior Department

did not negotiate, counsel, advise or participate in the

decision. Nor was the lease ever sent to the Depart-

ment for approval or concurrence in any form * * *.’’

356 F. Supp. at 657 n.28.

Surely, the judicial branch of the Trust Territory govern-

ment has the authority to determine whether or not the

action of its chief executive complies with a provision in its

own constitutional document.

We recognize that the Trusteeship Agreement purports

to obligate the United States, not the individual who hap-

pens to be High Commissioner. Nonetheless, because of

the process of his appointment,’® the High Commissioner

1 Article 12 of the Trusteeship Agreement of 1947 authorized

the United States to enact such legislation as may be necessary to

implement the agreement. 61 Stat. 3304. At first, President Tru-

man gave the Navy administrative responsibility for the islands.

Exec. Order No. 9875, 12 Fed. Reg. 4837 (1947), 3 C.F.R. 658

(1943-48 Comp.). In i951 administration of the islands was

transferred to the Department of the Interior. Exee. Order No.

10265, 16 Fed. Reg. 6419 (1951), 3 C.F.R. 766 (1943-53 Comp.).

During the next two years, responsibility for administration of

parts of the Trust Territory was redelegated back to the Secre-

tary of the Navy. Exec. Order No. 10408, 17 Fed. Reg. 10277

(1952), 3 C.F.R. 906 (1949-53 Comp.); Exee. Order No. 10470,

18 Fed. Reg. 4231 (1953), 3 C.F.R. 951 (1949-53 Comp.). Not

until 1954 did Congress begin to legislate to implement the Trust-

eeship Agreement, and then it merely stated that, until it provided

further for its government, all governmental authority in the Trust

Territory rested with the President. Act of June 30, 1954, ch. 423,

$1, 68 Stat. 330, as amended, 48 U.S.C. §1681(a). Finally, in

1962 President Kennedy redelegated his authority for civil ad-

ministration of the entire Trust Territory to the Secretary of the

Interior. Exec. Order No. 11021, 27 Fed. Reg. 4409 (1962), 3

C.F.R. 600 (1959-63 Comp.). The Secretary of the Interior, in

turn, delegated executive authority for the Trust Territory to the

High Commissioner :

‘*The executive authority of the Government of the Trust

Territory, and the responsibility for carrying out the interna-

tional obligations undertaken by the United Nations with re-

——

39a

has the responsibility to act in a manner consistent with

the duties assumed by the United States itself in the

Trusteeship Agreement.

Thus, although we hold that the Trusteeship Agreement

is « source of individual legal rights, we also hold that, in

a case involving actions by the High Commissioner within

the scope of his duties as chief executive, these rights are

not initially enforceable in United States courts. Rather,

upon principles of comity, they should be asserted before

the High Court of the Trust Territory.

Admittedly, the substantive rights guaranteed through

the Trusteeship Agreement are not precisely defined. How-

ever, we do not believe that the agreement is too vague for

judicial enforcement. Its language is no more general than

such terms as ‘‘due process of law,’’ ‘‘seaworthiness,’’

‘‘equal protection of the law,’’ ‘‘good faith,’’ or ‘‘restraint

of trade,’? which courts interpret every day. Moreover,

the High Court can look for guidance to its own recently

spect to the Trust Territory, shall be vested in a High Com-

missioner of the Trust Territory and shall be exercised and

discharged under the supervision and direction of the Secre-

tary.’’ Dept. of Interior Order No. 2918, pt. IT, § 1, 34 Fed.

Reg. 157 (1969).

Meanwhile, the 1967 Congress provided that this High Commis-

sioner shall be appointed by the President and confirmed by the

Senate. Act of May 10, 1967, Pub. L. No. 90-16 § 2, 81 Stat. 15,

codified, 48 U.S.C. §1681a. See generally Note, A Macrostudy of

Micronesia: The Ending of a Trusteeship, 18 N.Y.L.F. 139 (1972).

Thus, as the district court here observed, the High Commis-

sioner’s authority ‘‘does not come from the people of the Trust

Territory, nor do they have any method of removing him when

dissatisfied with his actions or policies.’’ 356 F. Supp. at 655.

See also Societa A.B.C. v. Fontana & Della Rocca, [1955] 1.L.R.

76 (Court of Cassation, United Chambers, Italy 1954), quoted at

1 M. Whiteman, Digest of International Law 870-71, which held

that the Italian Trusteeship Administrator for Somaliland derived

his authority from the Italian state and, hence, was an organ of

that state.

40a

enacted environmental quality and protection act, T. T.

Pub. L. No. 4C-78 of Apr. 14, 1972, codified at 63 T.T.C.

$§ 501-509, to the relevant principles of international law

and resource use which have achieved a substantial degree

of codification and consensus (see Banco Nacional de Cuba

v. Sabbatino, 376 U.S. 398, 428 (1964)), and to the general

direction, aithough not necessarily the specific provisions,

of NEVA. Cf. Pyramid Lake Paiute Tribe of Indians v.

Morton, 354 F. Supp. 252 (D.D.C. 1972). These sources

shovld provide a sufficiently definite standard against which

to test the High Commissioner’s approval of a 50-year

lease of unique public lands to an American corporation,

allegedly in disregard of the protests of the islands’ elected

officials and without a showing of consideration of cultural

and environmental factors.

Since the High Commissioner claims to have been acting

pursuant *:- local statutes when he approved the lease to

Continental, if the High Court finds that his action violated

provisions of the Trusteeship Agreement, that court may

have to declare these statutes void either on their face or

void as applied by the High Commissioner. The order of

the United States Department of the Interior which estab-

lished the structure of the Trust Territory government for-

bids the legislative branch of the Trust Territory govern-

ment from enacting any legislation inconsistent with

‘*treaties or international agreements of the United States

***.? Dept. of Interior Order No. 2918, pt. ITI, § 2(a)

(1968). Because the Trusteeship Agreement is an inter-

national agreement of the United States, local legislation

inconsistent with it must fall.

Although the High Court has held that it lacks jurisdic-

tion over an agency of the United States or its officers in

the Trust Territory (see Schulz v. Peace Corps, 4 T.T.R.

428 (1969)), the Secretary of the Interior assures us that

his department did not participate in any way in the deci-

sion to grant a lease to Continental, and, hence, that Schulz

will not bar the High Court from hearing and deciding this

4la

case. If, in the proceedings before the High Court, it

should appear that the actions of the High Commissioner

cannot be effectively reviewed and tested against the duties

assumed by the United States in the Trusteeship Agree-

ment, either because his actions were controlled by a direc-

tive or regulation of the Secretary of the Interior which

the High Court considers nonreviewable or because the

High Court does not agree that it has the power to review

the High Commissioner’s actions against the standards

established in the Trusteeship Agreement, then the plain-

tiffs may refile this action in the United States District

Court for the District of Hawaii.

We recognize that the High Court has said earlier that

the Trusteeship Agreement does not create a trust capable

of enforcement through the courts. See Alig v. Trust Ter-

ritory of the Pacific Islands, 3 T.T.R. 603, 615-16 (1967).

We also recognize that, unless the High Commissioner

acted unconstitutionally or in violation of the law, the suit

against him might not be cognizable in the Trial Division

of the High Court because of the doctrine of sovereign

immunity. See also 6 T.T.C. § 252(2). Nonetheless, the

High Court is free to re-evaluate its position with regard

to the enforceability of the provisions of the Trusteeship

Agreement under Diggs y. Schultz, supra.’ It may con-

1 ** Appellees suggest that the prospects of significant relief by

means of the embargo are so slight that this relationship of in-

tended benefit is too tenuous to support standing. But this strikes

us as tantamount te saying that because the performance of the

United Nations is not always equal to its promise, the commitments

of a member may be disregarded without having to respond in

court to a charge of treaty violation. It may be that the particu-

lar economic sanctions invoked against Southern Rhodesia in this

instance will fall far short of their goal, and that appellants will

ultimately reap no benefits from them. But, to persons situated

as are appellants, the United Nations action constitutes the only

hope; and they are personally aggrieved and injured by the dere-

liction of any member state which weakens the capacity of the

world organization to make its policies meaningful.’’ Diggs v.

Schultz, 470 F.2d at 465.

CT Ry OD pe

PIE PTE: FP TES EG as

42a

clude, as we did, that as the judicial branch of a political

entity possessing many of the attributes of an independent

nation, that court has‘the power te hear a clainr that the

islands’ chief executive officer has violated terms of the

Trusteeship Agreement. If the High Court reaches this

conclusion, the doctrine of sovereign immunity would pro-

vide no basis for refusing to hear the action. See Malone

v. Bowdoin, 369 U.S. 643, 647 (1962); Larson v. Domestic

& Foreign Commerce Corp., 337 U.S: 682, 689-90, 701-02

(1949).

We hold, then, that the plaintiffs must initially pursue

their remedies in the local court. If our assumption that

the High Court has the power to review the decision of the ©

High Commissioner proves to be invalid, then the federal

district court mast assume jurisdiction of this case. We

refuse to leave the plaintiffs without a forum which can

hear their claim that the High Commissioner has violated

the duties assumed by the United States in the Trusteeship

Agreement.

Because it is possible that we may see this case again,

we comment briefly on one issue raised by the defendants.

Continental contends that it has acquired some equities by

proceeding with the construction of its hotel while its right

to do so is being litigated. Unless we misread the argu-

ment, Continental seems to be asserting that the damage

has been done, and that it is too late for courts to remedy

it. We note that Continental initiated bulldozing activities

at the Micro Beach without notice and while the High

Commissioner supposedly was giving further consideration

to the project. The plaintiffs’ action was commenced in the

High Court almost immediately afterward, and in federal

court within one and one-half months. We caution Con-

tinental that:

s<* * * TAlfter a defendant bas been notified of the

pendency of a suit seeking an injunction against him,

even though a temporary injunction be not granted, he

4?a

acts at his peril and subject to the power of the court

to restore the status, wholly irrespective of the merits

as they may be ultimately decided * * *.’’ Jones v.

S.E.C., 298 U.S. 1, 17 (1936), quoted in Nat’l Forest

Preservation Group v. Butz, 485 F.2d 408, 411 (9th

Cir. 1973).

The judgment of dismissal is affirmed as modified.

Trask, Circuit Judge, Concurring:

I join in the decision of the majority but follow a differ-

ent course to the common conclusion.

First of all, it appears clear to me that the Charter of

the United Nations is not self-executing and does not in

and of itself create rights which are justiciable between

individual litigants. Although under Article VI of the

Constitution’ treaties are cart of the supreme law of the

land, it was early held that to be immediately binding upon

our courts a treaty must be self-executing. Chief Justice

Marshall enunciated this principle in Foster v. Neilson, 27

U.S. (2 Pet.) 253, 314 (1829) :?

‘‘Our constitution declares a treaty to t the law of

the land. It is, consequently, to be regarded in courts

of justice as equivalent to an act of the legislature,

1“*This Constitution, and the Laws of the United States which

shall be made in Pursuance thereof; and all Treaties made, or which

shall be made, under the Authority of the United States, shall be

the supreme Law of the Land; and the Judges in every State shall

be bound thereby, any Thing in the Constitution or Laws of any

State to the Contrary notwithstanding.’’ U.S. Const. art. VI.

RS UU OS Rm PN

?The decision in Foster was overruled by United States v.

Percheman, 32 U.S. (7 Pet.) 51 (1883), in an opinion also written

by Chief Justice Marshall when new facts were brought to bear

upon the controversy, but the legal principle announced in Foster

was not undermined. See Valentine v. United States ex rel.

ase meal 299 U.S. 5, 10 (1936); Head Money Cases, 112 U.S.

580, 598-99 (1884); L. Henkin, Foreign Affairs and the Constitu-

tion 156-58 (1972) ; Comment, Criteria for Self-Executing Treaties,

1968 U. Ill. L.F. 238, 239.

TEE py Sg Pr POEL GEIS P SPE UE PRY aaa oer ed Pe LAER OLN IIS Ba PERE BOREL ILO Peers: r4 C

44a

whenever it operates of itself, without the aid of any

legislative provision. But when the terms of the stip-

ulation import a contract—when either of the parties

engages to perform a particular act, the treaty ad-

dresses itself to the political, not the judicial depart-

ment; and the legislature must execute the contract,

before it can become a rule for the court.’’

Unless a treaty is self-executing, in order to be cognizable

before the courts it must be implemented by legislation.

Otherwise it constitutes a compact between sovereign and

independent nations dependent for its recognition and en-

forcement upon the honor and the continuing self-interest

of the parties to it. If, however, the treaty contains lan-

guage which confers rights or obligations on the citizenry

of the compacting nations then, upon ratification, it be-

comes a part of the law of the land under Article VI. In

Head Money Cases, 112 U.S. 580 (1884), the Court said:

‘*A treaty, then, is the law of the land as an act of

Congress is, whenever its provisions prescribe a rule

by which the rights of the private citizen or subject

may be determined. And when such rights are of a

nature to be enforced in a court of justice, that court

resorts to the treaty for a rule of decision for the

ease before it as it would to a statute.’’ 112 US. at

398-99.

I find nothing in a reading of the Charter and nothing

has been called to my attention which would persuade me

to believe that the Charter itself creates individual rights

which may be enforced in the courts. There is little defini-

tive case law elucidating the issue of self-implementation

*The fact that a treaty was ratified by the President of the

United States upon the advice and consent of two-thirds of the

Senate, as was the United Nations Charter (Charter of the United

Nations, June 26, 1945, 59 Stat. 1031, 1213, T.S. No. 993 (effective

Oct. 24, 1945)), makes it a commitment of the nation but does not

necessarily impart rights and obligations to individual citizens.

EMM ee

45a

vel non. The appellants have referred to some of the cases

in which reference to the Charter has been made.*

Those cases are of questionable precedential value.

Looking in the opposite direction we find cases that are

subject to much the same criticism. The only case which

straightforwardly holds in broad terms that the Charter is

not self-executing is Pauling v. McElroy, 164 F. Supp. 390

(D.D.C. 1958), aff’d per curiam on other grounds, 278 F.2d

252 (D.C. Cir.), cert. denied, 364 U.S. 835 (1960). The Dis-

trict Court in Pauling stated:

‘‘The provisions of the Charter of the United Na-

tions, the Trusteeship Agreement for the Trust Terri-

*In concurring opinions in Oyama v. California, 332 U.S. 633,

649-50, 673 (1948), Justices Black, Douglas, and Murphy intimate

that Articles 55 and 56 of the Charter support a position pro-

seribing racial discrimination; a dissenting opinion in Hard v.

Hodge, 162 F.2d 233, 245 (D.C. Cir. 1947), rev’d 334 U.S. 24

(1948), is much the same. In an appeal from a contempt-of-

Congress conviction for the refusal of a United Nations’ employee

to answer whether anyone had aided her in obtaining employment,

Article 105 was discussed but the actual decision was based upon

other grounds. Keeney v. United States, 218 F.2d 843, 845 (D.C.

Cir. 1954). Diggs v. Schultz, 470 F.2d 461 (D.C. Cir. 1972), cert.

denied, 411 U.S. 931 (1973), was a case in which the plaintiffs

sought relief against the Secretary of the Treasury because of an

official authorization of importation of metals contrary to the

terms of a United Nations’ embargo in which the United States

had joined. Relief was denied because of the nonjusticiability

of the claim under the separation-of-powers doctrine, although the

court did hold that the plaintiffs had standing to litigate the issue

of the failure of the defendants to adhere to the Government’s

treaty obligations. In Diggs, however, the relevant provision of

the Charter, Article 41, had been implemented by Congress through

the enactment of 22 U.S.C. § 287c, which authorizes the President

to effectuate Article 41 sanctions and prescribes criminal penalties

for those individuals disobeying such Presidential orders. Indeed,

pursuant to this statutory authority, the President had issued

Executive orders banning the importation of the items in question.

Exec. Order No. 11,419, 3 C.F.R. 737 (1966-70 Comp.), 22 U.S.C.

§ 287¢ ; see Exec. Order No. 11,322, 3 C.F.R. 606 (1966-70 Comp.),

22 U.S.C. § 287c; see Diggs v. Schultz, 470 F.2d at 463.

ee Se tenes

46a

tory of the Pacific Islands, and the international law

principle of freedom of the seas relied on by plaintiffs

are not self-executing and do not vest any of the plain-

tiffs with individual legal rights which they may assert

in this Court. The claimed violations of such interna-

tional obligations and principles may be asserted only

by diplomatic negotiations between the sovereignties

concerned.’’ 164 F. Supp. at 393.

In Hitai v. Immigration & Naturalization Service, 343 F.2d

466, 468 (2d Cir. 1965), the court held that Article 55 of

the Charter was not self-executing. Both from the stand-

point of the inherent nature of treaty obligations and what

appears to me to be a plain reading of the language of the

Charter, I would hold it to be a compact between sovereign

nations neither intending to impart justiciable rights to

individuals nor implicitly doing so,

This position is fortified, it would seem, by the very fact

that the Charter provided for a system of trusteeship.

Chapter XI, which contains Article 73, is a mutual declara-

tion of the members of their responsibilities for the admin-

istration of territories whose peoples have not yet attained

a complete competence of self-government. Chapter XII

and Chapter XIII then provide for the International Trust-

eeship System for the administration and supervision of

those territories. Under those Articles a Trusteeship

Agreement was executed between the Security Council of

the United Nations and the United States, as administering

authority effective July 18, 1947, for the Territory of the

Pacific Islands. It provided the United States with the

5 Trusteeship Agreement for the Former Japanese Mandated

Islands, July 18, 1947, 61 Stat. 3301, T.L.A.S. No. 1665. The

Agreement was approved by the President on July 18, 1947, pur-

suant to the authority of a joint resolution ‘Of Congress of the

same date. 61 Stat. 397 (1947).

ILL II FE ILLIA LRN NOD VIE Be ee

EO PENAL LE LOI ALG CLS SE YBILY BIGEI IEE Pe ART AA IE:

47a

authority to enact a comprehensive system of government

under Article 6.°

Congress has empowered the President with authority

for the civil administration of the Territory until Congress

itself should further establish a system of government. 48

U.S.C. § 1681. Urder this statutory basis, a series of Exec-

utive orders delegated responsibility for government to the

Department of the Interior, see Exee. Order No. 11,021, 3

C.F.R. 600 (1959-63 Comp.), 48 U.S.C. $1681, and that

Department eventually promulgated a single document

combining previous orders into one basic order for the

Government of the Trust Territory of the Pacific Islands.

Dept. of Interior Order No. 2918, Dec. 27, 1968, 34 Fed.

Reg. 157 (1969). This consolidated order constituted a

mini-organie act creating legislative, executive, and judi-

cial branches of the Government with a Congress, a High

Commissioner as the Chief executive, and a High Court of

the Trust Territory with a Chief Justice and Associate

Justices appointed by the Secretary of the Interior.

I agree with the federal appellees and with the court in

Pauling v. McElroy, supra, that the Trusteeship Agreement

is not self-executing.’ Yet, a series of actions all ultimately

* Trusteeship Agreement, art. 12. Article 6 provides in perti-

nent part that the administering authority {the United States]

shall :

“*1. foster the development of such political institutions as

are suited to the trust territory and shall promote the devel-

opment of the inhabitants of the trust territory toward self-

government or independence . . .;

**2. promote the economic advancement and self-sufficiency

of the inhabitants . . .;

“3. promote the social advancement of the inhabitants . . o$

and

“*4. promote the educational advancement of the inhabi-

tants....’’ 61 Stat. at 3302-03.

7 The language of the Agreement, and in particular that of Ar-

‘ticle 6, the specific provision at issue in this suit, evinces a series

of general commitments undertaken by the United States in fur-

therance of particular social objectives. See note 6 supra. That

these phrases may become workable throngh judicial construction,

—— tN TNO REAP

48a

founded upon congressional authority have so executed the

Agreement that its provisions may now properly be re-

garded as judicially enforceable. Thus, the Agreement was

approved by the President pursuant to a joint resolution

of Congress, see note 5 supra, and implemented by Execu-

tive orders promulgated pursuant to congressional au-

thority, 48 U.S.C. § 1681. Finally, the Trust Territory

Government, created by the Department of the Interior, has

declared the Agreement ‘‘to be in full force and to have

the effect of law in the Trust Territory.’’ 1 T.T.C. § 101(1).

The Trust Territory Code provides:

“The Trial Division of the High Court shall have

original jurisdiction to try all causes, civil and crimi-

nal, including probate, admiralty, and maritime matters

and the adjudication of title to land or any interest

therein.”’ 5 T.T.C. § 53.

All decisions rendered in such matters are subject to review

by the Appellate Division under 55 T.T.C. §54(1)(a). It

thus appears to me as it does to the majority that juris-

diction does lie with the High Court to determine the

validity of the lease in accordance with its own law and

any other law affecting the lease or the lands to which the

lease is applicable. Based upon considerations of comity,

I agree that this cause should initially be addressed to the

High Court.

as the majority opines, does not detract from the probability that,

had the drafters of the instrument intended the document to have

the effect of a statute, more precise language delimiting the rights

of Micronesians would have been employed. Compare Head Money

Cases, 12 U.S. 580, 598-99 (1884); Hauenstein v. Lynham, 100

U.S. 483 (1879). Moreover, the Agreement, in Article 12, states:

‘“‘The administering authority shall enact such legislation

as may be necessary to place the provisions of this agreement

in effect in the trust territory.’’

Since, under the Constitution of the ‘‘adminstering authority’’

(the United States), self-executing treaties are effective upon

ratification, this provision, as drafted, would not have been nec-

essary had the drafters intended the Agreement to be self-exec-

uting.

49a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 73-1769

Tue Peopuez or Sarpy, etce., et al., Appellants,

Unirep States DeparTMENT or INTERIOR, et al.,

Governmental Appellees,

and

ConTINENTAL ArR.iNEs, Inc., a Nevada Corporation,

Corporate Appellee.

Order

Appeal from the United States District Court

for the District of Hawaii.

Before: Trask and Goopwin, Circuit Judges, and Easrt,*

District Judge.

Appellants’ petition for rehearing, filed August 16, 1974,

is hereby

DeEnrep.

_-—S-

* The Honorable William G. East, Senior United States District

Judge for the District of Oregon, sitting by designation.

50a

APPENDIX C *

NATIONAL ENVIRONMENTAL POLICY ACT

(42 U.S.C. §§ 4321-4335; subchapter II omitted) :

§ 4321. Congressional declaration of purpose

The purposes of this chapter are: To declare a national

policy which will encourage productive and enjoyable har-~

mony between man and his environment; to promote ef-

forts which will prevent or eliminate damage to the en-

vironment and biosphere and stimulate the health and wel-

fare of man; to enrich the understanding of the ecological

systems and natural resources important to the Nation;

and to establish a Council on Environmental Quality.

Suscuapter L.—Po.icies anv Goats

§ 4331. Congressional declaration of national environmental

policy

(a) The Congress, recognizing the profound impact of

man’s activity on the interrelations of all components of

the natural environment, particularly the profound influ-

ences of population growth, high-density urbanization, in-

dustrial expansion, resource exploitation, and new and

expanding technological advances and recognizing further

the critical importance of restoring and maintaining en-

vironmental quality to the overall welfare and development

of man, declares that it is the continuing policy of the Fed-

eral Government, in cooperation with State and local gov-

ernments, and other concerned public and private organiza-

tions, to use all practicable means and measures, including

financial and technical assistance, in a manner calculated

to foster and promote the general welfare, to create and

maintain conditions under which man and nature can exist

in productive harmony, and fulfill the social, economic, and

other requirements of present and future generations of

Americans.

ee ee et ns PE eet = POD LOLI EPRI OIE I I EO LOPE Fn

5la

(b) In order to carry out the policy set forth in this

chapter, it is the continuing responsibility of the Federal

Government to use all practicable means, consistent with

other essential considerations of national policy, to im-

prove and coordinate Federal plans, functions, programs,

and resources to the end that the Nation may—

(1) fulfill the responsibilities of each generation as

trustee of the environment for succeeding generations;

(2) assure for all Americans safe, healthful, pro-

ductive, and esthetically and culturally pleasing sur-

roundings ;

(3) attain the widest range of beneficial uses of the

environment without degradation, risk to health or

safety, or other undesirable and unintended conse-

quences ;

(4) preserve important historic, cultural, and natu-

ral aspects of our national heritage, and maintain,

wherever possible, an environment which supports

diversity and variety of individual choice;

(5) achieve a balance between population and re-

source use which will permit high standards of living

and a wide sharing of life’s amenities; and

(6) enhance the quality of renewable resources and

approach the maximum attainable recycling of deplet-

able resources.

enjoy a healthful environment and that each person has a

responsibility to contribute to the preservation and en-

hancement of the environment.

§ 4332. Cooperation of agencies; reports; availability of in-

formation; recommendations; international and na-

tional coordination of efforts

The Congress authorizes and directs that, tc the fullest

extent possible: (1) the policies, regulations, and public

i ema FeO ee a a aE ee ae ee ee ee Aen Tone =

PLE: a ae

lh as

52a

laws of the United States shall be interpreted and admin-

istered in accordance with the policies set forth in this

chapter, and (2) all agencies of the Federal Government

shail—

(A) utilize a systematic, interdisciplinary approach

which will insure the integrated use of the natural and

social sciences and the environmental design arts in

planning and in decisionmaking which may have an

impact on man’s environment;

(B) identify and develop methods and procedures,

in consultation with the Council on Environmental

Quality established by subchapter II of this chapter,

which will insure that presently unquantified environ-

mental amenities and values may be given appropriate

consideration in decisionmaking along with economic

and technical considerations;

proposals for legislation and other major Federal ac-

tions significantly affecting the quality of the human

environment, a detailed statement by the responsible

official on—

(i) the environmental impact of the proposed

action,

(ii) any adverse environmental effects which

cannot be avoided should the proposal be imple-

mented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term

uses of man’s environment and the maintenance

and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commit-

ments of resources which would be involved in the

proposed action should it be implemented.

SLEEP FOIE EL PEE EE ILD. OT, PL GIL INE AO

53a

Prior to making any detailed statement, the respon-

sible Federal official shall consult with and obtain the

comments of any Federal agency which has jurisdic-

tion by law or special expertise with respect to any

environmental impact involved. Copies of such state-

ment and the comments and views of the appropriate

Federal, State, and local agencies, which are author-

ized to develop and enforce environmental standards,

shall be made available to the President, the Council

on Environmental Quality and to the public as pro-

vided by section 552 of Title 5, and shall accompany

the proposal through the existing agency review proc-

esses;

(D) study, develop, and describe appropriate alter-

natives to recommended courses of action in any pro-

posal which involves unresolved conflicts concerning

alternative uses of available resources;

(E) recognize the worldwide and long-range char-

acter of environmental problems and, where consistent

with the foreign policy of the United States, lend ap-

propriate support to initiatives, resolutions, and pro-

grams designed to maximize international cooperation

in anticipating and preventing a decline in the quality

of mankind’s world environment;

(F) make available to States, counties, municipali-

ties, institutions, and individuals, advice and informa-

tion useful in restoring, maintaining, and enhancing

the quality of the environment;

(G) initiate and utilize ecological information in the

planning and development of resource-oriented proj-

ects; and

(H) assist the Council on Environmental Quality

established by subchapter II of this chapter.

d4a

§ 4333. Conformity of administrative procedures to national

environmental policy

All agencies of the Federal Government shall review

their present statutory authority, administrative regula-

tions, and current policies and procedures for the purpose

of determining whether there are any deficiencies or in-

consistencies therein which prohibit full compliance with

the purposes and provisions of this chapter and shall

propose to the President not later than July 1, 1971, such

measures as may be necessary to bring their authority and

policies into conformity with the intent, purposes, and

procedures set forth in this chapter.

§ 4334. Other statutory obligations of agencies

Nothing in section 4332 or 4333 of this title shall in any

way affect the specific statutory obligations of any Federal

agency (1) to comply with criteria or standards of

environmental quality, (2) to coordinate or consult with

any other Federal or State agency, or (3) to act, or refrain

from acting contingent upon the recommendations or

certification of any other Federal or State agency.

§ 4335. Efforts supplemental to existing authorizations

The policies and goals set forth in this chapter are

supplementary to those set forth in existing authorizations

of Federal agencies.

55a

APPENDIX D

TRUSTEESHIP AGREEMEN’? FOR THE

FORMER JAPANESE MANDATED ISLANDS

(61 Stat. 3301)

PREAMBLE

Wuereas Article 75 of the Charter of the United Nations

provides for the establishment of an _ international

trusteeship system for the administration and supervision

of such territories as may be plazed thereunder by subse-

quent agreement; and

Wuereas under Article 77 of the said Charter the

trusteeship system may be applied to territories now held

under mandate; and

Wueneas on 17 December 1920 the Council of the League

of Nations confirmed a mandate for the former German

Islands north of the equator to Japan, to be administered

in accordance with Article 22 of the Covenant of the League

of Nations; and

Wuereas Japan, as a result of the Second World War,

has ceased to exercise any authority in these islands;

Now Tuererore, the Security Council of the United

Nations, having satisfied itself that the relevant articles of

the Charter have been complied with, hereby resolves to

approve the following terms of trusteeship for the

Pecific Islands formerly under mandate to Japan.

ArtTicte 1

The Territory of the Pacific Islands, consisting of the

islands formerly held by Japan under mandate in accord-

ance with Article 22 of the Covenant of the League of

Nations, is hereby designated as a strategic area and

placed under the trusteeship system established in the

Charter of the United Nations. The Territory of the

vere nrer were ys meacprraneermrnreae, GLP DELO Te AS LAF

56a

Pacific Islands is hereinafter referred to as the trust

territory.

ARTICLE 2

The United States of America is designated as the

administering authority of the trust territory.

Articitz 3

The administering authority shall have full powers of

administration, legislation, and jurisdiction over the ter-

ritory subject to the provisions of this agreement, and may

apply to the trust territory, subject to any modifications

which the administering authority may ‘consider desirable

such of the laws of the United States as it may deem

appropriate to local conditions and requirements.

_ Articte 4

The administering authority, in discharging the obliga-

tions of trusteeship in the trust territory, shall act in

accordance with the Charter of the United Nations, and

the provisions of this agreement, and shall, as specified

in Article 83(2) of the Charter, apply the objectives of

' the international trusteeship system, as set forth in

Article 76 of the Charter, to the people of the trust

territory.

ArtTIcLe 5

In discharging its obligatious under Article 76(a) and -

Article 84, of the Charter, the administering authority shall

ensure that the trust territory shall play its part, in

accordance with the Charter of the United Nations, in the

maintenance of international peace and security. To this

end the administering authority shall be entitled:

1. to establish naval, military and air bases and to

erect fortifications in the trust territory;

57a

2. to station and employ armed forces in the territory;

and

3. to make use of volunteer forces, facilities and

assistance from the trust territory in carrying out the

obligations towards the Security Council underiaken in

this regard by the administering authority, as well as for

the local defense and the maintenance of law and order

within the trust territory.

Articite 6

In discharging its obligations under Article 76(b) of the

Charter, the administering authority shall:

1. foster the development of such political institu-

tions as are suited to the trust territory and shall promote

the development of the inhabitants of the trust territory

toward self-government or independence as may be appro-

priate to the particular circumstances of the trust territory

and its peoples and the freely expressed wishes of the

peoples concerned; and to this end shall give to the in-

habitants of the trust territory a progressively increasing

share in the administrative services in the territory; shall

develop their participation in government; and give due

recognition to the customs of the inhabitants in providing

a system of law for the territory; and shall take other

appropriate measures toward these ends;

2. promote the economic advancement and self-sufficiency

of the inhabitants, and to this end shall regulate the use of

natural resources; encourage the development of fisheries,

agriculture, and industries; protect the inhabitants against

the loss of their lands and resources; and improve the

means of transportation and communication;

3. promote the social advancement of the inhabitants

and to this end shall protect the rights and fundamental

freedoms of all elements of the population without dis-

crimination; protect the health of the inhabitants; control

PRLS IOL EE ARIES IOLA ABB CBRE DG LEE PEEL AAA LPI

58a

the traffic in arms and ammunition, opium and other

dangerous drugs, and alcoholic and other spiritous

beverages; and institute such other regulations as may be

necessary to protect the inhabitants against social abuses;

and

4. promote the educational advancement of the in-

habitants, and to this end shall take steps toward the

establishment of a general system of elementary education ;

facilitate the vocational and cultural advancement of the

population; and shall encourage qualified students to

pursue higher education, including training on the pro-

fessional level.

ArticLe 7

In discharging its obligations under Article 76(c), of

the Charter, the administering authority shall guarantee

to the inhabitants of the trust territory freedom of con-

science, and, subject only to the requirements of public

order and security, freedom of speech, of the press, and of

assembly ; freedom of worship, and of religious teaching;

and freedom of migration and movement.

ARTICLE 8

1. In discharging its obligations under Article 76(d) of

the Charter, as defined by Article 83(2) of the Charter,

the administering authority, subject to the requirements of

security, and the obligation to promote the advancement of

the inhabitants, shall accord ‘o nationals of each Member

of the United Nations and to companies and associations

organized in conformity with the laws of such Member,

treatment in the trust territory no less favourable than

that accorded therein to nationals, companies and

associations of any other United Nation except the

administering authority.

2. The administering authority shall ensure equal treat-

ment to the Members of the United Nations and their

nationals in the administration of justice.

Pa od

4 ettes 18

59a

3. Nothing in this Article shall be so contrued as to

accord traffic rights to aircraft flying into and out of the

trust territory. Such rights shall be subject to agreement

between the administering authority and the state whose

nationality such aircraft possesses.

4, The administering authority may negotiate and

conclude commercial and other treaties and agreements

with Members of the United Nations and other states,

designed to attain for the inhabitants of the trust territory

treatment by the Members of the United Nations and other

states no less favourable than that granted by them to the

nationals of other states. The Security Council may

recommend, or invite other organs of the United Nations

to consider and recommend what rights the inhabitants of

the trust territory should acquire in consideration of the

rights obtained by Members of the United Nations in the

trust territory.

ARTICLE 9

The administering authority shall be entitled to constitute

the trust territory into a customs, fiscal, or administrative

union or federation with other territories under United

States jurisdiction and to establish common services

between such territories and the trust territory where such

measures are not inconsistent with the basic objectives of

the International Trusteeship System and with the terms

of this agreement.

ArticLte 10

The administering authority, acting under the provisions

of Article 3 of this agreement, may accept membership in

any regional advisory commission, regional authority, or

technical organization, or other voluntary association of

states, may cooperate with specialized international bodies,

public or private, and may engage in other forms of inter-

national cooperation.

AO SOE 7 PEE EPO REE LONI Y, eee)

60a

Articiz 11

1. The administering authority shall take the necesssary

steps to provide the status of citizenship of the trust

territory for the inhabitants of the trust territory.

2. The administering authority shall afford diplomatic

and consular protection to inhabitants of the trust territory

when outside the territorial limits of the trust territory or

of the territory of the administering authority.

Articie 12

The administering authority shall enact such legislation

as may be necessary to place the provisions of this agree-

ment in effect in the trust territory.

ARTICLE 13

The provisions of Articles 87 and 88 of the Charier

shall be applicable to the trust territory, provided that the

administering authority may determine the extent of their

applicability to any areas which may from time to time be

specified by it as closed for security reasons.

Articte 14

The administering authority undertakes to apply in the

trust territcry the provisions of any international con-

ventions and recommendations which may be appropriate

to the particular circumstances of the trust territory and

which would be conducive to the achievement of the basic

objectives of Article 6 of this agreement.

Articte 15

The terms of the present agreement shall not be altered,

amended or terminated without the consent of the ad-

ministering authority.

LONE RS FEO LE ER NAB TT Tp PLR nai AL PE iy ee

6la

Agticiz 16

The present agreement shall come into force when

approved by the Security Council of the United Nations

and by the Government of the United States after due

constitutional process.

42 U.S.C. § 1681(a)

Until Congress shall further provide for the govern-

ment of the Trust Territory of the Pacific Islands, all

executive, legislative, and judicial authority necessary for

the civil administration of the Trust Territory shall

continue to be vested in such person or persons and shall be

exercised in such manner and through such agency or

agencies as the President of the United States may direct

or authorize.

EXECUTIVE ORDER NO. 11021

(3 C.F.R. 1959-63 Comp. at 600)

Wuereas the Trust Territory of the Pacific Islands was

placed under the trusteeship system established in the

Charter of the United Nations by means of a trusteeship

agreement approved by the Security Council of the United

Nations on April 2, 1947, and by the United States Govern-

ment on July 18, 1947, after due constitutional process

(hereinafter referred to as the trusteeship agreement) ;

and

Wuereas the United States of America was designated

under the terms of the trusteeship agreement as the

administering authority of the Trust Territory referred

to above (hereinafter referred to as the trust territory) ;

and

Wueress the United States has heretofore assumed

obliga‘ions for the civil administration of the trust

territory and has carried out such civil administration

DOLE LL IE NE LION NOIR mee aT ee

62a

under the provisions of Executive Orders Nos. 9875 of

July 18, 1947, 10265 of June 29, 1951, 10408 of November

10, 1952, and 10470 of July 17, 1953; and

Wuereas thereunder the Secretary of the Navy is now

responsible for the civil administration of the Northern

Mariana Islands except the Island of Rota and the Seecre-

tary of tke Interior is responsible for the civil administra-

tion of all of the remainder of the trust territory; and

Wuereas it appears that the purposes of the trusteeship

agreement can best be effectuated at this time by placing in

the Secretary of the Interior responsibility for the civil

administration of all of the trust territory:

Now, TuereroreE, by virtue of the authority vested in

me by the Act of June 30, 1954 (68 Stat. 330: 48 U.S.C.

1681) and as President of the United States, it is ordered

as foilows:

Section 1. Responsibility of Secretary of the Interior.

The responsibility for the administration of civil gov-

ernment in all of the trust territory, and all executive,

legislative, and judicial authority necessary for that ad-

ministration, are hereby vested in the Secretary of the

Interior. Subject to such policies as the President mey

from time to time prescribe, and in harmony with applicabie

law, and, where advantageous, in collaboration with other

departments and agencies of the Government, the Secretary

of the Interior shall take such actions as may be necessary

and appropriate to carry out the obligations assumed by

the United States as the administering authority of the

trust territory under the terms of the trusteeship agreement

and under the Charter of the United Nations: Provided

however, That the authority to specify parts or all of the

trust territory as closed for security reasons and to

determine the extent to which Articles 87 and 88 of the

Charter of the United Nations shall be applicable to such

closed areas, in accordance with Article 13 of the trustee-

AP Oey ogo *, " .

ares ~~ For ee SE Meta. Oe ee ee 8 ee Ee i ie ek ARO ore ma

63a

ship agreement, shall be exercised by the President: And

provided further, That the Seerctary of the Interior shall

keep the Secretary of State currently informed of activities

in the trust territory affecting the foreign policy of the

United States and shall consult with the Secretary of

State on questions of policy concerning the trust territory

which relate to the foreign policy of the United States, and

that all relations between the departments and agencies of

the Government and appropriate organs of the United

Nations with respect to the trust territory shall be

conducted through the Secretary of State.

Section 2. Redelegation of authority. The executive,

legislative, and judicial authority provided for in section

1 of this order may be exercised through such officers or

employees of the Department of the Interior, or through

such other persons under the jurisdiction of the Secretary

of the Interior, as the Secretary may designate, and shall

be exercised in such manner as the Secretary, or any

person or persons acting under the authority of the Sec-

retary, may direct or authorize.

Section 3. Cooperation with Department of the Interior.

The executive departments and agencies of the Govern-

ment shall cooperate with the Department of the Interior

in the effectuation of the provisions of this order.

Section 4. Prior Orders. To the extent not heretofore

superseded or otherwise rendered inapplicable, the fol-

lowing are hereby superseded:

(1) Executive Order No. 10265 of June 29, 1951.

(2) Executive Order No. 10408 of November 10, 1952.

(3) Executive Order No. 10470 of July 17, 1953.

Section 5. Saving provisions, (a) Existing laws, regula-

tions, orders, appointments, or other acts promulgated,

made, or taken by the Secretary of the Interior or his

delegates under the authority of Executive Order No.

ELLE” II DOLE E LAE OLLI TOLER EG I xe PLLPESNTE LO ED ONE IY TO,

eed nti bee Ce eae

64a

10265, as amended and in effect immediately prior to the

effective date of this order, shall remain in effect until

they are superseded in pursuance of the provisions of this

order.

(b) Nothing contained in this order shall be construed

as modifying the rights or obligation of the United States

under the provisions of the trusteeship agreement or as

affecting or modifying the responsibility of the Secretary

of State to interpret the rights and obligations of the

United States arising out of that agreement.

Section 6. Effective date. The provisions of this order

shall become effective on July 1, 1962.

/s/ Joun F. Kennepy

The White House

May 7, 1962.

DEPARTMENT OF THE INTERIOR ORDER NO. 2918

Whereas, pursuant to the Trusteeship Agreement

between the United States and the Security Council of

the United Nations, the United States has undertaken to

promote self-government in the Trust Territory of the

Pacific Islands; and

Wueneas, Department of the Interior Order No. 2876

of January 30, 1964, as amended, set forth the extent and

nature of the authority of the Government of the Trust

Territory of the Pacific Islands; and

Wuenreas, Department of the Interior Order No. 2882

of September 28, 1964, as amended, created the Congress of

Micronesia and granted legislative authority thereto; and

Wuenreas, it is appropriate that the two aforesaid basic

Orders, as amended, be modified in minor particulars, con-

solidated in one basic order, and reissued, with all amend-

ments therein incorporated,

c= PF EP EI EE IM,

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65a

Now Tuererore, the following single basic Order

respecting the Government of the Trust Territory of the

Pacific Islands is issned :

PART IL Purpose

The purpose of this Order is tto delimit the extent and

nature of the authority of the Government of the Trust

Territory of the Pacifie Islands (hereinafter called ‘the

Trust Territory’’), as it will be exercised under the

jurisdiction of the Seeretary of the Interior (hereinafter

called ‘‘the Secretary’’), pursuamt to Executive Order No.

11021 of May 7, 1962, and to preseeribe the manner in which

the relationships of the Government of the Trust Territory

shall be established and maintained with the Congress,

the Department of the Interior amd other Federal agencies,

and with foreign governments amd international bodies.

Part Il. Executive Avruorrry

Section 1. The executive authority of the Government of

the Trust Territory, and the responsibility for carrying

out the international obligations wndertaken by the United

Nations with respect to the Trust Territory, shall be vested

in a High Commissioner of the Trust Territory and shall

be exercised and discharged uamder the supervision and

direction of the Secretary.

The Secretary shall appoint «a Deputy High Commis-

sioner, who shall have all the powers of the High Com-

missioner in the case of a vacamcy in the office of High

Commissioner or the disability wr temporary absence of

the High Commissioner.

Section 2. The relations of the Government of the Trust

Territory with the Congress of the United States on all

legislative matters, including «appropriations, shall be

conducted through the Departmemt of the Interior.

Section 3. With freedom to consult directly with the

Secretary when necessary, the Hligh Commissioner of the

66a

Trust Territory shall normally communicate with the

Secretary of the Interior through the Director of the

Office of Territories. The High Commissioner shall be

responsible for all United States property in the Trust

Territory which is required for the operation of the Govern-

ment of the Trust Territory and for which the Department

of the Interior has administrative responsibility. The

High Commissioner shall perform such other fanctions for

the Department of the Interior in the Trust Territory as

may be delegated to him by the Secretary.

Section 4. Initial contact by the Government of the

Trust Territory with Federal agencies outside the Depart-

ment of the Interior on other than routine matters shall be

established through the Office of Territories of the De-

partment of the Interior. Once the relationship has been

established, direct contact between the Government of the

Trust Territory and the Federal agencies concerned may

be maintained, in which event the Office of Territories

shall be kept informed of significant developments in the

relationship.

Section 5. Communications of the Government of the

Trust Territory with foreign governments and inter-

national bodies shall be cleared through the Department of

the Interior for transmittal by the Department of State,

unless some other procedure is approved by the Secretary

of the Interior.

Section 6. In exercising his authority the High Com-

missioner shall obtain prior Secretarial approval of any

significant deviation from the budget justification presented

to the Congress, and any significant transfer of funds

between programs or between administration and construc-

tion funds.

PART IIL. Lecotstative Avtuority

Section 1. Organization. The Legislature of the Trust

Territory of the Pacific Islands shall be known as the

: entre S|

DO it SE hk oO et —

bad

67a

**Congress of Micronesia’’ and shall consist of two Houses,

the Senate and the House of Representatives. The two

Houses shall sit separately except as otherwise provided

herein.

When the Congress shall convene, each House shall

organizeby the clection of one of its number as presiding _

officer and such presiding officer shall be:designated by the

title of ‘President of the Senate’? or ‘Speaker of the,

House of Representatives,” as the case may be. When

the Congress meets in joint session, the Speaker of the

House of Representatives shall preside.

Section 2. Legislative Power. The legislative power

of the Congress of Micronesia shall extend to all rightful

subjects of legislation, exeept that no legislation may be

inconsistent with

(a) treaties or international agreements of the United

States;

(b) laws of the United States applicable to the Trust

Territory ;

States and orders of the Secretary of the Interior; or

(d) Sections 1 through 12 of the Code of the Trust

Territory.

No law shall be passed by the Congress imposing any

tax upon property of the United States or property of the

Trust Territory of the Pacifie Islands; nor shall the

property of nonresidents be taxed at a higher rate than

the property of residents. No import or export levies shall

be imposed on goods transported between or among the

Districts of the Trust Territory, as described in Section 39

of the Code of the Trust Territory, or any political sub-

division thereof, and the levy of duties on goods imported

Pe Le AE cata LENE Db LIAO ne 9 CR a

68a

into the Trust Territory is hereby reserved to the Congress

of Micronesia and the High Commissioner.

Section 3. Powers of the High Commissioner. At the

opening of a legislative session and at any time thereafter

the High Commissioner may submit to the Congress and

recomunend the enactment of legislation.

Section 4. Budget. Money bills enacted by the Congress

of Micronesia shall not provide for the appropriation of

funds in excess of such amounts as are available from

revenues raised pursuant to the tax laws and other revenue

laws of the Trust Territory: Provided, That the Secretary

of the Interior shall, from time to time, define the term

‘revenue’ as used herein, so as generally to exclude there-

from all sums attributable to user charges or service

related reimbursements to the Government of the Trust

Territory. Prior to his final submission to the Secretary

of the Interior of requests for Federal funds necessary for

the support of governmental functions in the Trust

Territory, the High Commissioner shal] prepare a pre-

liminary budget plan. He shall submit such plan to the

Congress of Micronesia in joint session for its review and

recommendations with respect to such portions as relate to

expenditures of funds proposed to be appropriated by the

Congress of the United States. With respect to such

portions of the preliminary budget plan, the High Com-

missioner shall adopt such recommendations of the

Congress as he may deem appropriate, but he shall transmit

to the Seeretary of the Interior all recommendations he has

not adopted.

Section 5. Membership. For the purpose of representa-

tion in the Congress, the Trust Territory is divided into

six districts as described in Section 39 of the Code of the

Trust Territory.

The Senate shall consist of twelve members, who shall

be known as ‘‘Senators,’”’ of which each District shall

elect two.

OI AO Le

69a

The House of Representatives shall consist of twenty-one

members, who shall be known as ‘‘Representatives,’’ and

who shall be elected from each District as follows:

In the Mariana Islands District, three;

In the Marshall Islands District, four;

In the Palau District, three;

In the Ponape District, four;

In the Truk District, five;

In the Yap District, two.

Each of the six Administrative Districts shall be sub-

divided initially into single member election districts of

approximately equal population, in such manner as the

High Commissioner shall determine, and each such election

district shall elect one of the Representatives to which the

Administrative District is entitled. Future subdivisions

shall be established by law.

Election districts shall be reapportioned every 10 years

on the basis of population, but each District (as described

in Section 39 of the Trust Territory Code), shall be en-

titled to at least two representatives. The first such reap-

portionment shall be made in 1971.

Section 6. QuatrricaTion or Lecrstators. In order to be

eligible to election as a member of the Congress a person

shall:

(a) be a citizen of the Trust Territory for at least five

years;

(b) have attained the age of twenty-five years at the time

of his election; and

described in Section 59 of the Code of the Trust Territory),

from which he is elected for at least one year next preceding

his election.

70a

No person who has been expelled from the Congress for

giving or receiving a bribe or for being an accessory there-

to, and no per:on who has been convicted of a felony by

any court of the Trust Territory, a court of one of the

States of the United States, or any court with the juris-

diction of a district court of the United States, shall sit in

the Congress unless the person so convicted has received a

pardon restoring his eivil rights.

Section 7. Fraxcutse. The franchise shall be vested in

residents of the Trust Territory who are citizens of the

Trust Territory and eighteen years of age or over. Addi-

tional qualifications may be prescribed by the Congress:

Provided, That no property, language, or income qualifi-

cation shall ever be imposed or required of any voter, nor

shall any discrimination in qualification be made or based

upon literacy, tribal custom, or social position, nor upon

difference in race, color, ancestry, sex or religious belief.

Section 8. Gexerat Exvections. General elections shall

be held biennially in each even-numbered year on the first

Tuesday following the first Monday in November: Pro-

vided, That in the event of a natural disaster or other Act

of God, the effect of which precludes holding the election

on the foregoing date, the High Commissioner, with the

approval of the Secretary of the Interior, may proclaim a

later election date in the affected election district or dis-

tricts. All elections shall be held in accordance with such

procedures as this order and the laws of the Trust Terri-

tory may prescribe. Legislators shall be chosen by secret

ballot of the qualified electors of their respective district.

Section 9. Term or Orrice. Each Senator shall hold

office for a term of four years.

Representatives shall each hold office for a term of two

years.

The terms of all members of the Congress shall com-

mence at noon on the third day of January following their

election, except as otherwise provided by law.

7la

Section 10. Disqvatirication or GoverNMENT OFFICERS

AND Empioyees. Any person employed by any branch of

the Government of the Trust Territory, or any political

subdivision thereof, shall be accorded leave without pay,

for a period not to exceed 30 days prior to and including

the day of the election, for the purpose of seeking election

to the Congress. If any such person is elected, be shall

resign from his employment with the Government of the

Trust Territory, or ary political subdivision thereof, prior

to the date vpon which his term of office commences.

No person serving as a member of a legislative body of

any political subdivision of the Government of the Trust

Territory shall be eligible, while so serving, to serve as a

member of the Congress of Micronesia.

No member of the Congress shall receive any compen-

sation, other than that provided for in this order, from the

Government of the Trust Territory or any political sub-

division thereof.

Section 11. Sessions. There shall be a regular session

of the Congress held in each year beginning on the second

Monday of July and continuing for not to exceed 45 con-

secutive calendar days. In each odd numbered year there

shall also be a regular session of the Congress beginning

on the second Monday in January and continuing for not

to execed 15 consecutive calendar days.

The High Commissioner may call special sessions for

such period of time and at such time and place, as in his

opinion the publie interest may require. No legislation

shall be considered at any special session other than that

specified in the call therefor or in any special message by

the High Commissioner to the Cougress while in such ses-

sion.

Section 12. Exactixe Ciavse. The enacting clause of

all bills shall be: ‘‘ Be it enacted by the Congress of Micro-

nesia.’’ and no law shall be enacted except by bill. Bills

i SAI ee BETES

72a

may originate in either House, and may be amended or al-

tered or rejected by the other.

Section 18. Vero py the Hien Commissioner. Every

bill passed by the Congress shall, before it becomes a law,

be presented to the High Commissioner. If the High Com-

missioner approves the bill, he shall sign it. If the High

Commissioner disapproves the bill, he shall, except as

hereinafter provided, return it, with his objections, to the

Congress within ten consecutive calendar days after it

shall have been presented to him. If the High Commis-

sioner does not return the bill within such period, it shall

be a law in like manner as if he had signed it, unless the

Congress by adjournment prevents its return, in which

case it shall be a law if signed by the High Commissioner

within thirty days after it shall have been presented to

him; otherwise it shall not be a law.

When a bill is returned by the High Commissioner to

the Congress with his objections, each House may proceed

to reconsider it. If the bill is repassed by both Houses of

the Congress by a two-third’s majority of the entire mem-

bership of each House, it shall again be presented to the

High Commissioner, If he does not approve it within 20

days, he shall send it together with his comment thereon

to the Secretary of the Interior. Within $0 days after its

receipt by him, the Secretary of the Interior shall either

approve or disapprove the bill. If he approves it, it shall

become a law; otherwise it shall not. The foregoing pro-

vision shall not preclude the reconsideration by the Con-

gress during either of the 1969 regular Sessions of any bill

returned by the High Commissioner during the 1968 Ses-

sion.

If any bill presented to the High Commissioner shall

contain several items of appropriation of money, he may

object to one or more of such items, or any part or parts

thereof, while approving the other items or parts of the

73a

bill. In such case he shall append to the bill, at the time of

signing it, a statement of the item or items, part or parts

thereof, to which he objects, and the item or items, part or

parts thereof, so objected to shall have the effect of being

vetoed.

Section 14. Avsournment. Neither House may ad-

journ for more than two consecutive days nor may either

House adjourn sine die without the concurrence of the

other House.

Section 15. Pusuication or Laws. The High Commis-

sioner shall cause the resolutions and laws to be published

within 30 days after they become law, and shall make

provision for their distribution to public officials and sale

to the public.

Section 16. Procepure.

(a) Qvorum. A majority of the members of each House

shall constitute a quorum of such House for the transac-

tion of business, A smaller number may adjourn from day

to day and may compel the attendance of absent members

in such manner and under such penalties as each House

may provide.

(b) Reapinc or Brrrs—Passace. A bill in order to be-

come a law shall pass two readings in each House, on

separate days, the final passage of which in each House

shall be by a majority vote of all the members of such

House, which vote shall be entered upon the journal.

(ec) Tittr. Every legislative act shall embrace but one

subject and matters properly connected therewith, which

subject shall be expressed in the title; but if any subject

shall be embraced in an act which shall not be expressed

in the title, such an act shall be void only as to so much

thereof as shall not be embraced in the title.

(d) CertiFIcaATION oF Brits From onNE Howse TO THE

oTHER. Every bill when passed by the House in which it

talk oa RR aaa a ee De ec EA ee i 505 oe

Divetetutartectcssdcinans Sis eh ws taiens

74a

originated, or in which amendments thereto shall have

originated, shall immediately be certified by the presiding

officer and sent to the other House for consideration.

(e) AMENDMENT aNv Revisions sy Rererence. No law

shall be amended or revised by reference to its title only;

but in such case the aet, as revised, or section or subsee-

tion as amended, shall be re-enacted and published at full

length.

(f) Lanevace. All legislative proceedings shall be con-

ducted in the English language: Provided, That knowledge

of the English language shall not be a qualification for

membership in the Congress. Nothing herein shall limit

the right of a member to use his native language if he

lacks fluency in English, and the Congress shall provide for

interpretation into English in such eases.

(g) Jovurnat. Each House shall keep a journal of its

proceedings, and publish the same in English.

(h) Pvusiic Sessions. The business of the Congress,

and of the Committee of the Whole, shall be transacted

openly and not in secret session.

(i) Procepvrat AutnHority. The Congress shall be the

sole judge of the elections and qualifications of its mem-

bers, shall have and exercise all the authority and attri-

butes inherent in legislative assemblies, and shall have the

power to institute and conduct investigations, issue sub-

poenas to witnesses and other parties concerned, and ad-

minister oaths.

Section 17. Immunity. No member of the Congress of

Micronesia shall be held to anawer before any tribunal

other than the Congress for ang#speech or debate in the

Congress, and the members shafl in all cases, except trea-

son, felony, or breach of the peace, be privileged from ar-

rest during their attendance at the sessions of the Con-

gress and in going to and from the same.

75a

Section 18, Compensation AND Expenses, Each mem-

ber of the Congress shall be entitled to receive an annual

salary of $3,500, and the President of the Senate and the

Speaker of the House of Representative. shall each be en-

titled to receive an additional $500, all of which amounts

shall be payable from funds appropriated by the Congress

of the United States, when such funds are appropriated

pursuant to estimates submitted by the Secretary of the In-

terior. Each member shall also be entitled to receive,

from funds available to and appropriated by the Congress

of Micronesia, travel expenses, an expense allowance, and

per diem at the standard Trust Territory Government

rates for each day the member is in a travel status to and

from sessions of the Congress, while in session, or while

on other official legislative business. Per diem shall not

be payable to members of the Congress for a regular or a

special session when such session is held on the island of

their residence. The term ‘‘official legislative business”’

shall mean only legislative business authorized by the

Chairman of the pertinent Committee of the Congress of

Micronesia and performed by one or mere members of

that Committee, as designated by the Chairman. Travel

shall be performed by the most expeditious and direct

means: Provided, That compensation, travel, expense al-

lowances, and per diem shall not be allowed in excess of

such amounts as may be budgeted therefor.

Section 19. ComrensaTion anp Expenses, IntErtm™ Pro-

vision. Effective for the period beginning January 1,

1, 1969, and ending June 30, 1969, members and officers of

the Congress of Micronesia shall be entitled to compen-

sation, travel expenses, an expense allowance, and per

diem at the rates prescribed in Section 18 of this order,

but all such compensation, travel, expense allowances, and

per diem shall be paid from funds available to and appro-

priated by the Congress of Micronesia.

Pe ee

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76a

Section 20. AproiIntTMENT TO NEW OFFicEs. No member

of the Congress shall, during the term for which he was

elected or during the year following the expiration of the

term for which he was elected, be appointed to any office

which was created by the Congress during such term.

Section 21. Vacancies. Whenever, prior to six mont!is

before the date of the next general election, a vacancy oc-

curs, the High Commissioner shall eall a special election

to fill such vacancy. In case of a vacancy occurring within

six months of the next general election, no special election

shall be held and the District Administ:ator of the District

wherein such vacancy arises may fill sueh vacancy by ap-

pointment.

Section 22. Conversion ryto a Unicamerat Bopy. At

its July 1969 regular session, the Congress shall convene

in joint session to consider whether the bicameral legis-

lature should be continued, or whether the legislature

should be converted into a unicameral body. The final

recommendation to the High Commissioner shall be

adopted by a majority vote, and the recommendation shall

be submitted to the High Commissioner and by him to the

Secretary of the Interior.

Section 23. Lecistative Counset. The Congress of

Micronesia may by joint resolution nominate a legislative

counsel of its own choosing. The salary and other benefits

available to such legislative counsel shall be established

and paid by the Congress of Micronesia. The Congress of

Micronesia may make budgetary provision for such sup-

porting staff for the legislative counsel and the legislature

as it may deem necessary.

Section 24. Amenpment. This Part may be amended

only by further order of the Secretary of the Interior.

The Congress may, during any regular session, by a two-

thirds majority vote of the membership of each House,

recommend to the High Commissioner the amendment of

any Section of this Part. The High Commissioner shall

sothze

= ~ 8 SBE |

77a

iransmit such reeommendation, together with his own ree-

ommendations thereon, to the Secretary of the Interior.

PART IV. Jupicia, AuTHoRITY

The judicial authority of the Government of the Trust

Territory shall be vested in a High Court for the Trust

Territory and such other courts as may be established pur-

suant to law. The Secretary shall appoint the Chief Jus-

tice and Associate Justices of the High Court, may make

temporary appointments when a vacancy exists, and in

addition may appoint temporary judges to serve on the

High Court. The judicial authority shall be independent

of the executive and legislative powers. Budgetary re-

quests for the territorial judiciary, with supporting justifi-

eation, shall be drawn up by the Chief Justice of the Trust

Territory and submitted for the approval of the Depart-

ment of the Interior by the High Commissioner of the

Trust Territory as a separate item in the annual budget

for the Trust Territory. The High Commissioner should

eall the attention of the Secretary to any question which

he may have regarding the budget for the judiciary.

PART V. GENERAL

Prior Orvers. Department of the Interior Order No. 2876

of January 30, 1964, as amended, and Department of the

Interior Order No. 2882 of September 28, 1964, as amended,

are hereby superseded. Except for Order No. 2902 dated

November 15, 1967, as amended, provisions of other prior

orders of the Department of the Interior, insofar as they

are inconsistent with the provisions of this order, are

hereby superseded. Existing laws, regulations, orders, ap-

pointments, or other acts in effect immediately prior to

the effective date of this order shall remain in effect until

they are superseded pursuant to the provisions of this

order.

/s/ Stewart L. Uparn

Secretary of the Interior

December 27, 1968

PENT ERR RE AG IC RT B IS

SALLE CEE DE A CRIT EON a

78a

ORDER NO. 2918, AMENDMENT No. 1

Wuereas, on December 27, 1968 the Secretary of the In-

terior promulgated Secretarial Order No. 2918 relating

to the Government of the Trust Territory of the Pacific

Islands; and

Wuereas, the said Order No. 2918 in Section 4 of Part

III limited the appropriation of funds by the Congress of

Micronesia to those amounts available from revenues

raised pursuant to the tax laws and other revenue laws in

the Trust Territory; and

Wrereas, Section 11 of Part III provided that regular

sessions of the Congress of Micronesia were to be held in

July of each year and January of alternate years; and

Wuereas, Section 13 of Part III establishes the proce-

dure for approval and disapproval of laws passed by the

Congress of Micronesia; and

Wuereas, Section 16 (e) of Part III relates to amend-

ment and revision of legislation by reference; and

Wuenreas, Section 18 of Part III provides for the salary

and expenses of members of the Congress of Micronesia;

and

Wuereas, certain revisions in Sections 1 and 3 of Part

III are also desirable to clarify the organization of the

Congress of Micronesia and the submission of legislation to

the Congress of Micronesia by the High Commissioner

prior to a legislative session.

Now THererore, Secretarial Order No. 2918 is amended

in the following particulars, the amendments to be effective

as of the date of this Amendment except as otherwise pro-

vided:

1. The second paragraph of Section 1 of Part III of

the said Order No. 2918 is hereby amended to read as fol-

lows:

‘‘When a Congress convenes, each House shall organize

by the election of one of its number as presiding officer

MAN I

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79a

and such presiding officer shall be designated by the title of

‘President of the Senate’ or ‘Speaker of the House of Rep-

resentatives,’ as the case may be. When the Congress

meets in \joint session, the Speaker of the House of Rep-

resentativyes shall preside.’’

2. Sedation 3 of Part III of the said Order No. 2918 is

hereby amended to read as follows:

‘*Section| 3. Powers oF THE Hico Commissioner. The

High Comniiss:oner may submit to the Congress prior to

and during any legislative session legislation for its con-

sideration.’’

3. pree 4 of Part IIT of the said Order No. 2918 is

hereby amended to read as follows:

‘*Section 3. Buverr. Money bills enacted by the Congress

of Micronesia | shall not provide for the appropriation of

funds in excess of such amounts as are available or esti-

mated to be available from revenues raised pursuant to the

tax laws and other revenue laws of the Trust Territory:

ProviveD, that the Secretary of the Interior shall, from

time to time, define the term ‘revenue’ us used herein, so

as generally to exclude therefrom all sums attributable to

user charge or service related reimbursements to the Gov-

ernment of the Trust Territory.’’

‘*Prior to his final submission to the Secretary of the

Interior of requests for Federal funds necessary for the

support of governmental functions in the Trust Territory,

the High Commissioner shall prepare a preliminary budget

plan. He shall submit such plan to the Congress of Mi-

cronesia or the appropriate authorized committee or com-

mittees thereof for its review and recommendations with

respect to such portions as relate to expenditures of funds

proposed to be appropriated by the Congress of the United

States. With respect \to such portions of the preliminary

budget plan, the High\Commissioner shall adopt such rec-

ee tee ee Ne ee aan Se ee ee _ = . .

Pad 2 Seat = AL ah a ELIE RE VGN EIA DES. LP IIE EISEN Pees er

80a

ommendations of the Congress or the appropriate autho-

rized commitiee or committees thereof as he shall deem

appropriate, but he shall transmit to the Secretary of the

Interior all recommendations he has not adopted.’’

‘*For Fiseal Years 1971 and 1972, the Congress of Mi-

cronesia is authorized $125,000 from Federal grants appro-

priated to the Trust Territory of the Pacific Islands by the

Congress of the United States, for operation and expenses

of the Congress of Micronesia. For succeeding fiscal years,

the Congress of Micronesia may request continuing or addi-

tional funds for its operations and expenses. Such requests

shall be incorporaied in the High Comraissioner’s prelim-

inary budget plan for processing as set forth in this sec-

tion.’’

4. The first paragraph of Section 11 of Pari III of the

said Order No. 2918 is hereby amcnded to read as follows,

such amendment to become effective January 1, 1971:

‘‘Section 11. Sesstons. There shall be a regular session

of the Congress held in each year beginning on the second

Monday in January and continuing for not to exceed 50

consecutive calendar days.’’

5. Section 13 of Part III of the said Order No. 2918

is hereby amended to read as follows, such amendment to

become effective January 1, 1971:

‘‘Section 13. APPROVAL OR DISAPPROVAL BY THE HicH Com-—

MISSIONER. Every bill passed by the Congress shall be cer-

tified by the presiding officers and clerks of both Houses and

shall thereupon be presented to the High Commissioner.

he approves, he shall sign the bill and it shall become

law. If the High Commissioner disapproves, he shall so

indicate and return it with his objections to the Congress

within ten consecutive calendar days after it shall have

been presented to him. If the High Commissioner takes

no action and does not return the bill within such period,

it shall be a law in like manner as if he had signed it, un-

less the Congress by adjournment prevents its return.

8la

The High Commissioner shall have 30 days to consider

bills presented to him less than ten days before adjourn-

ment or presented after adjournment. If he approves, he

shall sign the bill and it shall become law. If the High

Commissioner disapproves, he shall so indicate and return

it with his objections to the Congress within thirty consecu-

tive calendar days after it shall have been presented to

him. If the High Commissioner takes no action and does

not return the bill within such period, it shall be a law ix

like manner as if he had signed it.

When a bill is disapproved and returned by the High

Commissioner to the Congress with his objections, each

House may proceed to reconsider it. If such a bill is re-

passed by both Houses of the Congress by a two-thirds

majority of the entire membership of each House (one

reading being required in each House for such passage), it

shall be presented again to the High Commissioner. If he

does not approve it within twenty days after presentation,

he shall send it together with his comments thereon to the

. Seeretary of the Interior. Within sixty dey after its receipt

by him, the Secretary of the Interior shall either approve

or disapprove the bill. If he approves it, it shall become

a law; otherwise it shall not.

If any bill presented to the High Commissioner shall

contain several items of appropriation of money, he may

object to one or more such items, or any part or parts

thereof, while approving the other items or parts of the

bill. In such case he shall append to the bill, at the time of

signing, a statement of the item or items, part or parts

thereof, so objected to, and the item or items, part or parts

thereof so objected to shall have the effect of being vetoed.”’

6. Section 16 (e) of Part III of the said Order 2918

is hereby amended to read as follows, such amendment to

become effective January 1, 1971:

‘‘Section 16(e). A.iENDMENT AND Revision By REFERENCE

ProuisiteD. No law or section of the law shall be amended

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82a

or revised by reference to its title only, but in every in-

stance such amendment or revision of the law or section

thereof shall be published at full length and in its entirety

as amended or revised and shall be re-enacted.’’

7. Section 18 of Part III of the said Order No. 2918 is

hereby amended to read as follows;

3 ‘*Section 18. Compensation anp Expenses. The members

; of the Congress of Micronesia shall receive compensation

for their services and expenses as may be preseribed by

: law. Such compensation and expenses shall be from funds

available to and appropriated by the Congress of Micro-

nesia. The Congress may at no time increase the salaries

of the incumbents during the current Congress. If the

Congress of Micronesia should provide for an increase in

the annual compensation paid to members for their services

such increase will apply to succeeding Congresses only,

Per diem, if paid to the members of Congress, shall be in

compliance with the standard Trust Territory rates, Com-

pensation, expenses, per diem, ete., shal] not be allowed in

excess of such amounts as may be budgeted therefor,’’

8. Section 21 of Part III of the said Order No. 2918 is

hereby amended to read as follows, said amendment to be-

come effective January 1, 1971:

**Section 21. VacaNncigs.

(a). Whenever a vacancy in the membership of the

House of Representatives occurs, the Speaker of the House

of Representatives shall notify the Pigh Commissioner

and the High Commissioner shall then call a special election

to fill such vacancy: Provided, that no special election shall

be held if such vacancy occurs less than ninety days prior

to the next succeeding general election,

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.