# Appendix — Saipan ex rel. Guerrero v. United States Department of the Interior > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0519%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1975 - **Citation:** 420 U.S. 1003 ## Text la 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, V. 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 2a 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. a QB P,P LENE LIN LOLI LIEN IO EE REN, ES ARATE SEN Ng ER REIN NASR LIA Fe BTM Si eT NE ait RAY A Wh at RE a mvs nea 0A ia Aan DACA SUDAN OR = rere OSIM 3a 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, Pe LYRE DT ARE OO IRE PEE oF EOD GREAT TS OLS AE ASV BOREAL et 4a 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}. 3 — . . VEE AL BER hie de one a Dee LMI LS ays nk URE LEGGE INE ADI SDS FMD BT 5a 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. ™ BERN regress: mapetcnenc meet 4d heal ihe adie 88 iit SUN Aaah Sa Sienna Vol ACN SE PI eT RD real Eo ode ae ate Sas PRSS INL ay ante nlt. Maj idtes A ote ee 6a 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.”’ 7a 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. SB ODOLPI MT. HRD mS Bh D ~ 52 he 4 bir Et ose > he BOOM ERE. ERIC LL Pee 8a 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 9a 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. POI, < FRY PETA TOI LIRIAS WG IOWO MOOT ce Tet ie ie a " PB ce meres: LEG DLL IST IVCE NLL IIGEE SF OLA TIES LE AIRS LO Tees SD AHS lla 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 Ym ‘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 l4a $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 ——— — _ 4 > Se eS Sten r oe % lia 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 gt 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. ... i 3 : i ie 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 ak ae va 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 a. ; 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 i) 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, v. 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. (c) The Congress recognizes that each person should 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; (C) include in every recommendation or report on 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. ay 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 e [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0519%3A2. Public record. Not legal advice.