Brief for the Respondent in Opposition — Saipan ex rel. Guerrero v. United States Department of the Interior

BK Woy Sod

Vt anil cote

SU R82 one ges

— | P 2 10"

Supreme Court of the United States” = a

Ocroser Term, 1974 Buu col

No. 74-622

Tue Prope or Sarran, by and through Herman Q.

Guerrero, Lino M. Oxopal, Davin T. ALDAN, -

Jesus A. Sasamoro, Justin S. Manctona, Nick

Santos, Ben A. Guerrero, Joun Rosario, Rick

R. Marciano, and Joaquin P. VILLAGOMEZ,

Petitioners,

vs.

Unrrep States DepaRTMENT OF THE INTERIOR;

Rocrxs C. B. Morton, Secretary of Interior;

Srantey S. Carpenter, Director of the Office of

Territories of the Department of the Interior;

Epwarp E. Jounston, High Commissioner of the

Trust Territory of the Pacific Islands,

Respondents,

and

ConTINENTAL AiRLINEs, Inc., a Nevada Corpora-

tion, Respondent.

Brief of Respondent Edward E. Johnston, High Com-

missioner of the Trust Territory of the Pacific Islands,

In Opposition to Petition for a Writ of Certiorari

Errie Cook Spariine

CarLos Hirosui Satu

Ricuarp Isami Miyamoto

Office of the Attorney General

Trust Territory of the Pacific Islands

Capitol Hill

Saipan, Mariana Islands 96950

Tel : 9325, 9364, 9365, 9437

Attorneys for Respondent

Edward E. Johnston

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105

LSE ALGLULOT, snags te 8

oes Te

aad

OE RTI

ITN

SUBJECT INDEX

Page

I i 1

Statutory Provisions Involved ................. 2

Statement of the Case 2.0.00... tecceccescsecceecesecsscccseecseeooees 2

Reasons for Denying the Petition 3

1. Federal Courts should not apply the National En-

vironmental Policy Act to the actions of the Gov-

ernment 0“ the Trust Territory of the Pacific

Islands, or those of the High Commissioner when

taken in his capacity as chief executive thereof

rn OP ME I 3

2. The Court of Appeals, in reaching its decision, has

maintained the proper balance between individual

rights and the promotion of self-government for

Micronesia ................. cipnpinabdlmenasees 6

I tel aceceet ee 7

~Kppendix

TABLE OF AUTILORITIES CITED

Statutes anp REGULATIONS

Pages

The National Environmental Policy Act, 42 U.S.C.

§ 4321-4335 2,3

The Trust Territory Environmental Quality Protec-

tion Act, 63 T.T.C. $$ 501-509 2,6

Trusteeship Agreement for the Former Japanese

Mandated Islands (61 Stat. 3301) 2, 3, 4,5

48 U.S.C.A.

§ 1681(a) 2,4

§ 168la 2,3

61 Stat. 397 (1947) 2, 6

Executive Order No. 11021 2, 3,4

Department of Interior Order No. 2918 2, 3,4

Trust Territory Code

1 T.T.C. § 101 ..... 2,4

OF es SE IE esrescscssitccnnsteniseiatensititnsecaigeiens - 2,6

6 T.T.C. § 357

Compact Between the People of Micronesia and the

United States of Ameriea ............... 7

eee ee

Supreme Court of the United States

Ocroser Term, 1974

No. 74-622

THe Preor.e or Saipan, by and through Herman Q.

Guerrero, Lixo M. Otopat, Davin T. ALpay,

Jesus A. Sasamoro, Justin S. Manciona, Nick

Santos, Ben A. Guerrero, Joun Rosario, Rick

R. Marctano, and Joaquin P. VitLacomeEz,

Petitioners,

vs.

Unirep Sraters DepaRTMENT OF THE INTERIOR;

Rocers C. B. Morton, Secretary of Interior;

Sran.tey S. Carrenter, Director of the Office of

Territories of the Department of the Interior;

Epwarp E. Jounstox, High Commissioner of the

Trust Territory of the Pacific Islands,

Respondents,

and

ConTINeNTAL AirLines, Ixc., a Nevada Corpora-

tion, Respondent.

Brief of Respondent Edward E. Johnston, High Com-

missioner of the Trust Territory of the Pacific Islands,

In Opposition to Petition for a Writ of Certiorari

QUESTIONS PRESENTED

1. Whether the National Environmental Policy Act

should apply to actions taken by the Government of the

Trust Territory of the Pacifie Islands, in conformity with

local laws but independently of the Secretary of the Interior.

2

2. Whether the federal courts should interfere with the

judicial and political process of the Trust Territory of

the Pacific Islands.

STATUTORY PROVISIONS INVOLVED

The National Environmental Policy Act, Subchapter I,

42 U.S.C. $§ 4321-4335 is set out in Appendix C at 50a of the

Petition.

The Trusteeship Agreement (61 Stat. 3301), 48 U.S.C.A.

§ 1681(a), Executive Order No. 11021, and De ..rtment cf

the Interior Order No. 2918 are set out in Appendix D at,

respectively, 55a, 61a, 6la, and 64a of the Petition.

48 U.S.C.A. § 1681a is set out in Appendix A at 1a of

this Brief in Opposition. 1 T.T.C. § 101 is set out in Appen-

dix B at 2a of this Brief in Opposition. The Trust Territory

Environmental Quality Protection Act, 63 T.T.C. $§ 501-509,

is set out in Appendix C at 3a of this Brief in Opposition.

61 Stat. 397 is set out in Appendix D at 11a of this Brief in

Opposition. 6 T.T.C. § 357 is set out in Appendix FE at 12a

of this Brief in Opposition.

STATEMENT OF THE CASE

The petitioners herein are citizens of the Trust Territory

of the Pacific Islands also known as Micronesians, and are

residents of Saipan, Mariana Islands District. Respondents

are the Department of the [nterior of the United States;

Roger C. B. Morton, Secretary of the Interior; Stanley S.

Carpenter, Director of the Office of Territories of the De-

partment of the Interior; Edward E. Johnston, High Com-

missioner of the Trust Territory of the Pacific Islands; and

Continental Air Lines, Inc., a Nevada corporation.

The Trust Territory of the Pacific Islands, which incluces

Saipan, Mariana Islands District, is administered by the

United States pursuant to a Trusteeship Agreement for

"oer" IN LE OF ERS PSA IE AFTEIS A SWOT NESE TE OSE LM OE ht BEM

—_ MIE LOG 8 TRAY ABB OURE LOD ET AAPOR apt

3

the Former Japanese Mandated Islands, between the Gov-

ernment of the United States and the Security Council of

the United Nations (Petition, Appendix D, 55a).

Petitioners’ contention is that execution of a lease of

public land adjacent to Miero Beach, Saipan, Mariana

Islands District, which was processed and approved by the

High Commissioner pursuant to local law, was improperly

found by the District Court of the District of Hawaii to be

a local action not in violation of the National Environmental

Policy Act (Petition, Appendix A, la-27a).

Petitioners further contend that the execution of said

lease to a foreign corporation was a violation of the Trustee-

ship Agreement.

REASONS FOR DENYING THE WRIT

1. Federal Courts Should Not Apply the National Environmental

Policy Act to the Actions of the Government of the Trust

Territory of the Pacific Islands, or Those of the High Com-

‘missioner When Taken. in His Capacity as Chief Executive

Thereof Pursuant to Local Laws.

The National Environmental Policy Act applies by its

terms to “.. . agencies of the Federal Government .. .” 42

U.S.C.A. § 4332 (Petition, Appendix C, 51a-53a).

The United States of America is merely designated as

the Administering Authority under and pursuant to the

Trusteeship Agreement for the Former Japanese Mandated

Islands. Art. 2 (Petition, Appendix D, 56a). Because the

Trust Territory is neither a possession nor a territory of

the United States, a fortiori, it is not a federal agency. The

High Commissioner, who is appointed by the President, is

the chief executive officer of the Trust Territory. 48 U.S.C.A.

§ 1681a (Appendix A, 1a); Part TT, $1, Department of the

Interior Order No. 2918 (Petition, Appendix D, 65a). A

basically republican form of government has heen created

a

4+

in the Trust Territory of the Pacific Islands with executive,

legislative and judicial branches. Parts I, III and IV, De-

partment of the Interior Order No. 2918 (Petition, Appendix

D, 65a-77a). It is true that the Secretary of the Interior does

have responsibility for administration of the Trust Terri-

tory. Executive Order No, 11021 (Petition, Appendix D,

62a-63a); see 48 U.S.C._A. $1681(a) (Petition, Appendix

D, 61a). However, the existence, purpose and functioning

of the Congress of Micronesia, elected by the citizens, can-

not be ignored.

The Trusteeship Agreement, in giving full powers of

administration, legislation and jurisdiction, states that the

United States '

“,.. may apply to the Trust Territory, subject to any

modifications which the administering authority may

consider desirable such laws of the United States as it

may deem appropriate to local conditions and require-

ments.” Art. 3 (Petition, Appendix D, 56a).

. On this question of applicability of United States laws to

the Trust Territory,

“Additional laws applicable to Trust Territory. The

following are declared to be in full force and to have the

‘effect of law in the Trust Territory of the Pacific

‘Islands:

(1) the Trusteeship Agreement;

(2) such laws of the United States, as shall, by their

own force, be in effect in the Trust Territory, including

the Executive Orders of the President and orders of

the Secretary of the Interior; .. .” 1 T.T.C. $101

(Appendix B, 2a).

It is our 2ontention that the phrase “by their own force”

means that the Trust Territory of the Pacific Islands must

be, specifically stated in such United States laws in order

for them to apply to the Trust Territory. In other words,

5

when a given federal statute, such as the National Environ-

mental Poliey Act, fails to specifically mention the Trust

Territory of the Pacific Islands, by name, within its cover-

age, then the courts must not extend the coverage of such

federal statute by reading into it a non-expressed intent

of the lawmakers. By its own terms, the Trusteeship Agree-

ment does not require the United States to apply its laws

to the Trust Territory. Article 3 of the Trusteeship Agree-

ment merely gives the United States discretionary power

to apply its laws to the Trust Territory. Furthermore, the

phrase “subject to any modifications which the adminis-

tering authority may consider desirable such laws of the

United States as it may deem appropriate to local conditions

and requirements” clearly indicates that the United States

in applying any of its laws to the Trust Territory may

modify that particular law to effectively deal with such

local conditions and requirements. In other words, the

United States is not required by the Trusteeship Agreement

to extend its laws in toto or at all to the Trust Territory.

Given these broad discretionary powers, the United States

must, therefore, make its intention to apply a particular

law to the Trust Territory of the Pacific Islands abundantly

clear.

This requirement of clearly manifested intent is inherent

in the authority and increasing role of the Congress of

Micronesia in the legislative process. The terms of the

Trusteeship Agreement and the voluntary action of the

Administering Authority in delegating its legislative au-

thority to the Congress of Micronesia appear to preclude

courts from extending a particular federal statute, such as

the National Environmental Policy Act, to the Trust Ter-

ritory of the Pacifie Islands in the absence of a specific

reference to the Trust Territo~y. This is particularly true

6

in this case because the Congress of Micronesia has since

enacted a law to protect the environment. 63 T.T.C. § 501-

509 (Appendix C, 3a-10a).

2. The Court of Appeals, in Reaching Its Decision Has Main-

tained the Proper Balance Between Individual Rights and the j

Promotion of Self-Government for Micronesia (Petition, Ap-

pendix B, 28a-49a).

Article 6 of the Trusteeship Agreement requires the |

administering authority not only to “. .. protect the inhabi-

tants against the loss of their land and resources . . .” but

also to “. . . foster the development of such political insti-

tutions as are suited to the trust territory and shall pro-

mote the development of the inhabitants of the trust terri-

tory toward self-government as may be appropriate. . .”.

Article 6 (Petition, Appendix D, 57a-58a). The obligation

for political development of Micronesia started when the

Trusteeship came into force upon its approval by the Presi-

dent on July 18, 1947, pursuant to the authority of a joint

resolution of Congress of the same date. 61 Stat. 397 (Ap-

pendix D, lla).

Throughout this period, the people of Micronesia have :

accepted and learned to live with the provisions of the

Trust Territory Code which states that “Unless and until

the Congress of the United States provides for an appeal

tc a court created by Act of Congress, the decisions of

the Appellate Division of the High Court shall be final.”

6 T.T.C. $357 (Appendix EF, 12a). Although the people

of the Trust Territory would probably want to have a |

right to appeal cases to this court because of the great

respect for this court held by Micronesians in general, the

fact that decisions of the Appellate Division of the High

Court are final has given the High Court the same degree

of respect and stature given to “courts of last resort.”

OIE LOL ID Lip ig A AIG ALLO LES BEL IE LILI MLL I SLE LLLP SLED AE LALLA BANE EERE. AUTRE NEVI SS BH —————

7

The United States Government, through its representa-

tives, and the Congress of Micronesia, through its Joint

Committee on Future Status, have for several years now,

been conducting negotiations for a future political status

of the Trust Territory of the Pacific Islands. Viewed in

the light of the Proposal of the Joint Committee on Future

Status of the Congress of Micronesia dated July 12, 1974,

for a “Compact Between the People of Micronesia and the

United States of America”, there is contemplated a future

government of Micronesia having full responsibility for

and authority over all matters which relate to the internal

affairs of Micronesia. (Appendix F, 13a-38a).

The decision of the Court of Appeals has maintained

the delicate balance between individual rights and promo-

tion of Micronesian self-government. In effect that decision

has maintained the integrity and respect for the High

Court of the Trust Territory which, given on-going status

negotiations, will be again a “court of last resort” for

Micronesians.

CONCLUSIONS

Based on the foregoing grounds, the judgment and

opinion of the Court of Appeals for the Ninth Cireuit

should be allowed to stand, and a writ of certiorari should

not issue.

Respectfully submitted,

By Erriz Cook Spartina

Errre Cook SparLiInG

Cartos Hrrosnt Sai

Ricwarp Tsamt Mryamoto

Office of the Attorney General

Trust Territory of the Pacifie Islands

Capitol Hill

Saipan, Mariana Islands 96950

Tel : 9325, 9364, 9365, 9437

Attorneys for Respondent

Edward E. Johnston

(Appendix Follows)

Appendix A

48 U.S.C. § 16814.

Any appointment made on or after May 10, 1967 to the

office of the High Commissioner of the Trust Territory of

the Pacific Islands shall be made by the President by and

with the advice and consent of the Senate.

2a Appendix

Appendix B

1 T.T.C. § 101.

The following are declared to be in full force and to have

the effect of law in the Trust Territory of the Pacific

Islands:

(1) the Trusteeship Agreement;

(2) such laws of the United States, as shall, by their

own force, be in effect in the Trust Territory, inelud-

ing the Executive Orders of the President and orders

of the Secretary of the Interior;

(3) laws of the Trust Territory and amendments

thereto;

(4) District Orders heretofore promulgated by the

District Administrators of the Trust Territory and

Emergency District Orders promulgated by the Dis-

trict Administrators in accordance with Section 108

of this Chapter ;

(5) the acts of legislative hodies convened under

charter from the High Commissioner when these acts

are approved by the High Commissioner or otherwise

become law as may be provided by charter or the laws

and regulations of the Trust Territory; and.

(6) duly enacted Municipal Ordinances.

Appendix ns 3a

Appendix C

Environmental Quality Protection Act

(63 T.T.C. §§ 501-509)

§501. Short title. This Subchapter may be cited as the

“Trust Territory Environmental Quality Protection Act.”

$502. Public policy. The people of the Trust Territory

of the Pacific Islands are dependent upon the air, land, and

water resources of the islands for public and private water

supply, for agricultural, industrial, recreational uses, and

as a basis for tourism. Therefore, it is declared to be the

publie policy of the Trust Territory of the Pacific Islands,

and the purpose of this Subchapter to achieve and main-

tain such levels of air, land and water quality as will pro-

tect human health, welfare and safety and to the greatest

degree practicable prevent injury to plant and animal life

and property, as will foster the comfort and convenience

of its people and their enjoyment of health, life and prop-

erty and will promote the economic and social develop-

ment of the Trust Territory of the Pacific Islands and

facilitate enjoyment of its attractions.

§ 503. Definitions. The following words, for the pur-

voses of this Subchapter, shall have the following mean-

ings:

(1) “Director of Health Services” shall mean the Diree-

tor personally or his duly authorized representative.

(2) “Pollutant” means one or more substances or forms

of energy which when present in the air, land or water,

are or may be harmful or injurious to human health, wel-

fare or safety, to animal or plant life, or to property, or

which unreasonably interfere with the enjoyment by the

people of life or property.

(3) “Person” means the Trust Territory of the Pacific

Islands, a district, municipality, political subdivision, a

4a Appendiz

public or private institution, corporation, partnership,

joint venture, association, firm, or company organized or

existing under the laws of the Trust Territory of the Pacific

Islands or any state or country, lessee or other occupant of

property, or individual, acting singly or as a group.

(4) “Board” means the Trust Territory Environmental

Protection Board.

§504. Trust Territory Environmental Protection Board

created: membership; terms; vacancies; chairman; qualifi-

cations; compensation; cooperation of other agencies;

meeting of board; quorum; secretary.

(1) There is hereby established in the Office of the High

Commissioner a board to be known as the Trust Territory

Environmental Protection Board to be composed of nine

members as follows: The Director of Health Services,

Director of Public Works, Director of Resources and De-

velopment, and six citizens of the Trust Territory of the

Pacific Islands, to be appointed by the Fiigh Commissioner

with the advice and consent of the Congress of Micronesia:

PROVIDED, that such appointments shall include one rep-

resentative from each of the six adriinistrative districts.

The initial appointments of appointed members shall be

made as follows: two for a period of one year; two for a

period of two years; and two for a period of three years.

Successors to the first appointees hereunder shall be ap-

pointed for terms of three years each. Vacancies other than

by expiration of term shall be filled by the High Commis-

sioner by appointment, in the same manner as the original

appointment was made, for the unex™ired term. The Chair-

man shall be the Director of Health Services.

(2) The High Commissioner in his appointments shall

select persons who are citizens and residents of the Trust

Territory of the Pacific Islands for their ability, and all

Appendix 5a

appointments shall be of such nature as to aid the work of

the Board to inspire the highest degree of cooperation and

confidence in carrying out the policy and purpose of this

Subchapter.

(3) Members of the Board shall serve without compen-

sation as such, but shall be entitled to receive travel costs

and per diem at standard Trust Territory rates when en-

gaged ‘in the performance of the duties of the Board. Any

employee of the Trust Territory Government shall be

granted leave with pay while engaged in the performance

of the duties of the Board.

(4) The Board may call upon any Trust Territory de-

partment or agency for technical assistance. All depart-

ments or agencies of the Trust Territory shall, upon re-

quest, assist the Board in the performance of its duties.

(5) The Board shall meet at least once every three

months, Meetings may be held at any time or place to be

determined by the Board upon the call of the chairman or

upon written request of any three members. All meetings

shall he open to the public, and public notice of the time

and place of such meetings shall be posted in publie places

and shall be announced on the radio throughout the Trust

Territory.

(6) Five members of the Board shall constitute a quorum

for the transaction of business.

(7) The Board shall designate a secretary who shall

keep all records of, and actions taken by, the Board. These

records shall be open to the publie for public inspection.

(8) The Attorney General shall, upon request of the

Chairman, act as legal advisor to the Board.

(9) The Board shall designate a full-time salaried execn-

tive officer who shall administer the functions of the Board

6a Appendiz

and shall have such duties and responsibilities as may be

delegated to him by the Board.

(10) The Board shall submit to the High Commissioner

and to the Congress of Micronesia, not later than Septem-

ber 1 of each year, a Report detailing its activities during

the previous fiscal year.

§ 505. Powers and duties of the Board. The Board

shall have the power and duty to control and prohibit pol-

lution of air, land, and water in accordance with the law

and regulations adopted and promulgated by it, and for

this purpose is authorized and empowered to:

(1) Adopt, approve, amend, revise, promulgate, and re-

peal regulations, in the manner which is or may be pro-

vided by law, to effect the purposes of this Subchapter, and

enforce such regulations which shall have the force and

effect of law.

(2) Aecept appropriations, loans, and grants from the

United States Government or any agency thereof and other

sources, public or private, which loans, grants and appro-

priations shall not be expended for other than the purposes

of this Subchapter.

(3) Adopt and provide for the continuing administration

of a Trust Territory-wide program for the prevention, con-

trol, and ahatement of pollution of the air, land and waters

of the Trust Territory, and from time to time review and

modify such program as necessary.

(4) Establish criteria for classifying air, land, and

waters in accordance with present and future uses.

(5) Establish and provide for the continuing adminis-

tration of a permit system whereby a permit shall be re-

quired for the discharge by any person of any pollutant

in the air, land or water, or for the conduct by any person

of any activity. including but not limited to the operation,

ee 4

Appendiz Ta

construction, expansion or alteration of any installation,

which results in or may result in the discharge of any pol-

lutant in the air, land or water; provide for the issuance,

modification, suspension, revocation and termination of

such permits, and for the posting of an appropriate bond.

(6) Collect information and establish record keeping,

monitoring and reporting requirements as necessary and

appropriate to carry out the purposes of this Subchapter.

§ 506. Right of entry. Whenever it is necessary for the

purposes of this Subchapter, the Board, or any member,

agent or employee when duly authorized by the Board or

by court order may, at reasonable times, enter any estab-

lishment or upon any property, public or private, for the

purpose of obtaining information, making inspections,

obtaining samples, inspecting or copying records required

to be maintained by the provisions of this Subchapter and

any regulations promulgated thereunder, or conducting

surveys or investigations for the purpose of carrying out

the purpose and policy of this Subchapter.

$507. Enforcement and implementation.

(1) Whenever the Board finds that discharge of waste is

taking place or threatening to take place within a district

that violates or will violate requirements prescribed by the

Board or that the waste collection treatment, or disposal

facilities of a discharger are approaching capacity, the

Board shall require the discharger to submit for approval

of the Board, with such modifications as it may deem rea-

sonably necessary, a detailed time schedule of specific ac-

tions the discharger shall take in order to correct or pre-

vent a violation of requirements.

(2) When the Board finds that a discharge of waste .is

taking place or threatening to take place within its jnris-

diction in violation of requirements of discharge prohibi-

5 ie tes ed ee oy ee le i, el ~~

8a Appendsz

tions prescribed by the Board, the Board may issue an

order to cease and desist and direct that those persons not

complying with the requirements or discharge prohibitions

a) comply forthwith, b) comply in accordance with a time

schedule set by the Board, or c) in the event of a threatened

violation, take appropriate remedial or preventive action.

In the event of an existing or threatened violation of waste

discharge requirements in the operation of a community

system, cease and desist orders may restrict or prohibit the

volume, type, or concentration of waste that might be added

to such system by dischargers who did not discharge into

the system prior to the issuance of the cease and desist order.

(3) Public hearing for consideration of issuance of a

cease and desist order shall be conducted by the Board,

adequate notice of which and opportunity to appear and be

heard at which shall be afforded to all interested persons.

(4) Cease and desist orders of the Board shall become

effective ar’ final as to the said Board upon issuance

thereof. Copies shall be served forthwith by registered mail

upon the person being charged with the violation of the

requirements and upon other affected persons who ap-

peared at the hearing and requested a copy.

(5) Any person who discharges any pollutant into the

water, air, or on the land, of the Trust Territory in viola-

tion of any discharge permit, requirement or other order

issued by the Board or who intentionally or negligently

causes or permits any pollutant to be deposited where it is

discharged into the water, air or land of the Trust Terri-

tory shall, upon order of the Board, clean up such pollutant

or abate the effects thereof. Upon failure of any person to

comply with such cleanup or abatement order, the Attorney

General or his designated representative, at the request of

the Board, shall petition the Trial Division of the High

Appendiz 9a

Court for that district for the issuance of an injunction,

inandamus or other appropriate remedy, requiring such

person to comply therewith.

(6). The provisions of this Section and of 63 TTC § 508

shall be interpreted consistently with the p) ovisions of any

law concerning administrative procedure \ ‘hich is or may

hereafter become Trust Territory law. In t1e event of con-

flict between the two, the provisions of ihe latter shel

supersede and be controlling.

§ 508. Review by High Court. Any person who may

be adversely affected by the enforcement of any standard

policy, regulation, permit or order of the Board and who

alleges its invalidity, may file a petition for a declaratory

judgment thereon addressed to the Trial Division of the

High Court in the district where the petitioner is a resi-

dent. The Court shall declare the standard, policy, regu-

lation, permit or order invalid if it finds that it exceeds the

statutory authority of the Board, or is arbitrary and cap-

ricious. An appeal may be had from the decision of the

Court to the Appellate Division of the High Court as pro-

vided by law.

§509. Fines and penalties.

(1) Any person who intentionally or negligently violates

any cease and desist order hereafter issued, reissued, or

amended by the Board shall be liable civilly in a sum not

to exceed one thousand dollars ($1,000) for each day during

which such violation occurs. Such sums shall be paid to the

Treasurer of the Trust Territory for credit to the General

Fund of the Congress of Micronesia.

(2) The Attorney General or his designated representa-

tive, upon request of the Board, shall petition the Trial

Division of the High Court for a judgment assessing dam-

ages. In determining such damages, the court shall take

Le Saar

10a Appendiz

into consideration all relevant circumstances, including but

not limited to, the extent of harm caused by the violation,

the nature and persistence of the violation, the length of

time over which the violation occurs and corrective action,

if any, taken by the discharger.

(3) Any person who intentionally or negligently violates

any cease and desist order hereafter issued, reissued, or

amended by the Board shall be guilty of a misdemeanor,

and upon conviction thereof shall be punished by a fine not

exceeding one thousand dollars ($1,000) or imprisonment

not exceeding three (3) months, or both. For the purposes

of this Subsection, each day during which such violation

oecurs shall be deemed to be a separate offense.

Py ORT em ge : o~ oo? & OP oe OBIE LODO Oe EO BT ITF 28 SoBe

Appendiz tla

Appendix D

61 Stat. 397

JOINT RESOLUTION

Authorizing the President to approve the trusteeship

agreement for the Territory of the Pacific Islands

Whereas the United States submitted to the Security Coun-

cil of the United Nations for its approval in accordance

with article 83 of the Charter of the United Nations a

proposed trusteeship agreement for the Pacific islands

formerly mandated to Japan under which the United

States would be prepared to administer those islands

under trusteeship in accordance with the Charter of the

United Nations; and

Whereas the Security Council on April 2, 1947, approved

unanimously the trusteeship agreement with amendments

acceptable to the United States; and

Whereas the said agreement, having been approved by the

Security Council, will come into foree upon approval by

the Government of the United States after due constitu-

tional process: Therefore be it

Resolved by the Senate and House of Representatives of

the United States of America in Congress assembled, That

the President is hereby authorized to approve, on behalf

of the United States, the trusteeship agreement between the

United States of America and the Security Council of the

United Nations for the former Japanese mandated islands

(to be known as the Territory of the Pacific Islands) which

was approved by the Security Council at the seat of the

United Nations, Lake Success, Nassau County, New York,

on April 2, 1947.

Approved July 18, 1947.

ETOP es ee

12a Appendiz

Appendix E

6 T.T.C. § 357

Unless and until the Congress of the United States pro-

vides for an appeal to a court created by Act of Congress,

the decisions of the Appellate Division of the High Court

shall be final.

PELE LRN CTE OE LO LEILA INE NILE IA St YOO AD 8 La ENO IO F27 iER AEE SERIE ENE OLE IY LORE STING ENING GR IOP Es

Appendix 13a

Appendix F

DRAFT COMPACT OF FREE ASSOCIATION*

12 July 1974

Compact Between the People of Micronesia

and the United States of America®

Agreed draft between Ambassador F. Haydn Williams,

the President’s Personal Representative for Micronesian

Status Negotiations and Senator Lazarus Salii, Chairman,

Joint Committee on Future Status, Congress of Micronesia.

This draft compact is the result of negotiations between

the United States Government and the Congress of Micro-

nesia opened in September 1969. Since that first session,

seven formal rounds of negotiations have been held. The

draft compact resulting from these negotiations was re-

vised to its present form during recent informal meetings

in Carmel, California and Guam between the heads of the

U.S. Delegation, Ambassador F. Haydn Williams and Mr.

James M. Wilson, Jr., and the Micronesian Delegation,

Senator Lazarus Salii and Representative Ekpap Silk.

Following the Guam meeting, Senator Salii presented

the draft agreement to the members of the Joint Committee

on Future Status for review before sending it on to the full

membership of the Congress of Micronesia. Suggested

changes made by the Joint Committee on Future Status are

included in this draft with recommended deletions from the

original in brackets and recommended additions double

underlined. These proposed changes have not as yet been

discussed with or approved by the United States Govern-

ment.

*Proposed change by JCFS but not yet discussed with or

approved by USG.

1. This refers to the typewritten draft. As printed for purposes

of this Brief in Opposition, recommended additions are set out in

black-letter type.

l4a Appendiz

Preamble

The United States of America and the People of Micro-

nesia,

Recognizing that among the responsibilities of the Gov-

ernment of the United States as Administering Authority

of the Trust Territory of the Pacific Islands is the obliga-

tion to promote the development of the inhabitants of that

territory toward self-government or independence, and

Recognizing their common interest in developing a new

political status for the people of Micronesia to replace the

present trusteeship,

Desiring to establish and embody a relationship between

the people of Micronesia and the United States which is

and shall remain close and enduring, for so long as the con-

tinuation of that relationship remains consistent with the

best interests of the people of Micronesia and of the United

States.*

Acree to establish through this Compact [of Free

Association] a system of self-government appropriate to

the particular circumstance of Micronesia and its people

and in accordance with the freely expressed wishes of the

people concerned. This Compact, approved by the people of

Micronesia through their sovereign right of self-determina-

tion and by the Government of the United States, shall de-

termine the respective rights and responsibilities of the

Government of Micronesia and the Government of the

United States.

TITLE I

Internal Affairs

Section 101

The people of Micronesia have the right to adopt their

own constitution and form of government and to amend or

*Proposed by JCF but not yet discussed or approved by USG.

LEER PLN MELO LOD DOLE LIL MS ADL. BIOL Ci PULTE EO A OS RI aE ON I A Ma Tp RE gt Sse SI Rr, — mee 6 ig FEL

0

Appendiz lia

change any such constitution or form of government at any

time, provided that the constitution and laws of Micronesia

shall [remain consistent]* not be consistent* with the pro-

visions of this Compact, and shall guarantee to the inhabit-

ants of Micronesia their fundamental human rights and

shall establish a governmental structure consistent with the

principles of democracy.

Section 102

The duly constituted Government of Micronesia shall

have full responsibility for and authorit: over all matters

which relate to* the internal affairs of Micronesia.

Section 103

The people of Micronesia, in the exercise of their right

of self-determination, may in the event of termination of

this Compact freely choose their own future political status

in accordance with Title XI of this Compact.

TITLE II

Foreign Affairs

Section 201

(a) The Government of the United States shall have full

responsibility for and authority over all matters which

relate to the foreign affairs of Micronesia.

(b) The Government of the United States and the Gov-

ernment of Micronesia shall consult at the request of

either of them on matters of mutual concern relating to

foreign affairs.

*Proposed by JCFS but not yet discussed or approved by USG.

l6éa Appendiz

(c) Without derogating from its powers under this Title

the United States will respect the principle that the Govern-

ment of Micronesia has full responsibility for and authority

over the internal affairs of Micronesia.

Section 202

The authority of the United States under Section 201 in-

cludes the right to apply to Micronesia any appropriate

treaty or other international agreement to which the United

States is a party, provided, however, that the Government

of the United States shall negotiate and conclude interna-

tional treaties and agreements, or provisions thereof, which

are intended to relate exclusively or predominantly to

Micronesia or which have a particularly pronounced effect

on Micronesia* only on the request and with the consent of

the Government of Micronesia.

Section 203

In the exercise of its authority under Section 201, the

Government of the United States undertakes the following

responsibilities :

(a) The Government of the United States will extend

consular assistance and diplomatic protection to citizens of

Micronesia traveling outside of Micronesia and of the

United States.

(b) The Government of the United States will give svm-

pathetic consideration to applications by foreign countries

for the establishment of Consulates in Micronesia, subject

in each case to assurance from the Government of Micro-

nesia that it would welcome the establishment of such a

Consulate. The Government of the United States and the

Government of Micronesia shall establish arrangements for

@

}

*Proposed by JCFS but not yet diseussed or approved by USG.

—_ wv OO

ON

Appendiz 17a

the joint accreditation of foreign consular offices in

Micronesia.

(c) The Government of the United States will facilitate

Micronesian activity in the areas for which the Government

of Micronesia may exercise responsibility under Annex A.

Section 204

In accordance with the terms of Annex A, the Govern-

ment of Micronesia may undertake the activities specified

therein.

TITLE III

Defense

Section 301

The Government of the United States shall have full

responsibility for and authority over all matters which

relate to defense in Micronesia.

Section 302

(a) The defense responsibility and authority of the

United States Government provided for in Section 301

include:

(1) The defense of Micronesia, its people and terri-

tory, from attack or threats thereof;

(2) The right to prevent third parties from using the

territory of Micronesia for military purposes;

and

(3) The use of United States military bases which are

established in Micronesia for the security of the

United States, and to support its responsibilities

for the maintenance of international peace and

security.

18a Appendiz

(b) The Government of the United States may conduct

the activities and operations within the lands, waters and

airspace of Micronesia necessary for the exercise of its

responsibility and authority under Section 302(a).

Section 303

(a) The Government of the United States shall have the

exclusive right to establish, maintain and use military

areas and facilities in Micronesia pursuant to paragraphs

(b) and (c) of this section, the unencumbered right to pro-

tect all United States military facilities in Micronesia, and

full freedom of use and access to all facilities and areas

used for the conduct of military activities.

(b) The Government of Micronesia including its sub-

divisions shall assure the United States the rights and

uses in the lands and waters specified in Annex B, which

is an integral part of this Compact.

(c) If in the exercise of its authority and responsibilities

under this Title the United States Government requires the

use of areas within Micronesia in addition to those specified

in Annex B, requests may be made of the Government of

Micronesia to satisfy these requirements, The Government

of Micronesia, including its subdivisions, shall establish

suitable procedures to provide prompt response to any such

request by the United States, and shall negotiate in good

faith to achieve on reasonable terms an agreement for the

use of such areas.

(d) The agreements for the lands and waters listed in

Annex B shall conform with the provisions of this Compact

and such agreements shall not contain any limitations on

the use of such lands and waters which conflict with the

basie authorities and responsibilities of the United States

under Sections 301, 302, and 303 of this Title.

ee ee ee eee ee ee ee _ EO SS

—— Sain BT SO

~

Appendiz 19a

(e) The rights and uses specified in this Compact, and in

agreements existing upon the entry into force of this

Compact, shall at the option of the United States extend

in full force and effect for the period of this Compact,

unless a particular agreement provides for a longer term.

Whenever agreements are extended, the terms of such

agreements relating to payment shall continue, unless

amended by mutual agreement.

Section 304

(a) No country other than the United States shall enjoy

the right to conduct military activities or to establish and

maintain military facilities and areas within the territory

of Micronesia at any time, except as provided in paragraph

(b) of this section.

(b) The United States Government may invite military

units of other countries acting in conjunction with and

under control of United States forces to utilize such mili-

tary facilities and areas.

(e) The rights accorded the United States in paragraphs

(a) and (b) above may not be assigned to any other

country.

Section 305

The legal status of United States military personnel, of

United States citizen civilian employees, and of their

dependents, while present in Micronesia shall be established

by mutual agreement. That jurisdictional agreement shall

come into force simultaneously with this Compact.

Section 306

Citizens of Micronesia who are otherwise qualified in

accordance with United States law shall he eligible to

volunteer for service in the Armed Forces of the United

20a - Appendiz

States, but shall not be subject to involuntary induction into

military service unless they become permanent residents

of the United States, as determined by United States law.

Section 307

The Government of the United States and tlhe Govern-

ment of Micronesia shall consult at any time requested by

either of them on matters relating to defense. While not

derogating from its full responsibility and authority in

this area, the United States will to the extent possible

without prejudice to the fullfillment of its defense responsi-

bilities accommodate the expressed wishes of the Govern-

ment of Micronesia.

TITLE IV

Financial Provisions

Section 401

The Government of the United States, in order to ad-

vance the economic and social welfare of the people of

Micronesia and in recognition of the special relationship

that has existed and continues to exist between the United

States and Micronesia agrees to provide on a grant basis

to the Government of Micronesia $35 million annually for

the first five years of this Compact, $30 million annually

for the next five years and $25 million annually for the

next five years. These funds will be for use by the Govern-

ment of Micronesia for programs and operations of that

Government or any sub-division thereof as authorized by

the Government of Micronesia.

Section 402

The Government of the United States shall make avail-

able to the Government of Micronesia $.................... to cover

compensation paid at fair market value for the use of land

and water areas specified in Title TIT and Annex B.

Appendiz 2la

Section 403

(a) The Government of the United States shall provide

the Government of Micronesia, without compensation, the

services of the U.S. Postal Service, U.S. Weather Service

and U.S. Federal Aviation Administration, The level of

such services in each district shall be that extended to that

district on the date of the signature of this Compact. The

Government of Micronesia shall make provision for the

use of land necessary for such purposes at no cost to

the United States Government.

(b) The Government of the United States and the Gov-

ernment of Micronesia from time to time may agree upon

the extension of additional federal programs and services

to Micronesia. Unless otherwise agreed, the cost of such

additional programs and services will be charged against

the overall assistance figure in Section 401.

(c) Neither the Government of Micronesia nor any sub-

division thereof may impose taxes or other levies upon

United States property or personnel, or the personal

property of such personnel, present in Micronesia in con-

nection with a service or program furnished by the United

States under Section 403(a) of this Compact.

Section 404

(a) The Government of the United States will provide

on a grant basis to a Government of Micronesia Capital

Improvement Program Fund $12.5 million annually for

the first five years of this Compact, $11 million annually for

the next five years and $9.5 million annually for the next

five years.

(b) The Government of the United States wil! also make

available to the Government of Micronesia financial assist-

ance on a loan basis for economic development projects in

22a Appendiz

an annual amo nt of $5 million for fifteen years subject

to the terms of long-term low interest loan agreements

between the Government of the United States and the

Government of Micronesia. Of the $5 million annual loan,

$2.5 million will be reserved for allocation to District

Governments for small business loans at the district level;

the remainder of the funds will be retained at the central

government level for increasing the capital of the Micro-

nesian Development Bank or other financial institutions

involved in loan or equity financing of economic develop-

ment projects of larger scale than those encompassed by

the small business loan funds.

Section 405

The Government of Micronesia and the Government of

the United States shall negotiate in good faith as to the

amoun‘s of economic assistance, as provided for in this

Title, for periods subsequent to the first fifteen vears after

the effective date of this Compact. Pending agreement on

new amounts of such assistance the United States will

continue assistance to the Government of Micronesia under

Sections 401, 403 and 404 subject to the gradually descend-

ing five year scales established in Sections 401 and 404(a)

as adjusted pursuant to Section 406 of this Compact.

Section 406

(a) If in any year the funds to be provided for that year

under Section 401 and 404 are not completely used, the

unused balance shall remain available to the Government

of Micronesia in addition to the funds to be provided in

subsequent years.

(b) The funds provided under Sections 401 and 404(a)

may be reallocated at any time by agreement between the

Appendiz 23a

Government of the United States and the Government of

Micronesia. . |

(ec) The dollar amounts stipulated in Sections 401 and

404 for each year will be adjusted at the beginning of each

fiscal year to reflect, as necessary, the change in purchasing

power of U.S. currency as reflected by changes in the

Guam Consumer Price Index, using U.S. fiscal year 1975

as the basing point for such adjustment.

(d) Sections 401, 403(a) and 404 will be reviewed by the

Government of Micronesia and the Government of the

United States at five year intervals from the effective date

of this Compact or more frequently upon the agreement

of the two governments* and adjusted as appropriate taking

into account changes in economic conditions other than

changes in the purchasing power of U.S. currency.

(e) The Government of Micronesia and the United States

General Accounting Office shall determine procedures for

the periodic general audit of all grants, loans, and funds

expended for federal services and programs as stipulated

in this Title.

TITLE V

Applicable Laws

Section 501 ;

(a) The treaties and international agreements applicable

to the Trust Territory of the Pacific Islands on the day

preceding the effective date of this Compact shall be

applicable to Micronesia, as well as the treaties and inter-

national agreements made applicable to Micronesia pursu-

ant to Section 202 of this Compact.

*Proposed by JCFS Sut not yet approved or discussed with

24a, Appendiz

(b) The statutory law of the United States applicable

to the Trust Territory of the Paeific Islands on the day

' preceding the effective date of this Compact shall not be

applicable to Micronesia except as otherwise provided in

this Compact or in other agreements between the United

States and Micronesia.

Section 502

(a) Treaties and international agreements applicable to

Micronesia shall haye the force of internal law in Micro-

nesia without the need of implementing legislation if they

are self-executing, regardless of whether such treaties or

international agreements became or shall become applicable

to Micronesia prior to or after the effective date of this

Compact. A treaty or international agreement shall be

presumed to be self-executing if the United States has

not enacted implementing legislation for itself of its proe-

lamation by the President of the United States.

(b) The Government of Micronesia will enact whatever

domestic legislation is appropriate or required to enforce

or implement those treaties and international agreements

applicable to Micronesia pursuant to Section 501(a) of

this Compact which are not self-exeeuting. The implement-

ing legislation enacted by the United States shall, however,

have the force of internal law in Micronesia pending the

enactment of the Micronesian legislation provided for in

this subsection.

(ec) The Government of Micronesia and its subdivisions

will undertake to comply with and to enforce faithfully the

treaties, international agreements and laws set forth in

subsections (a) and (b) of this section.

Appendiz 25a

Section 503

(a) The Government of Micronesia and its subdivisions

will adopt and enforce such measures as may be necessary

(1) to protect the personnel, property, installations, serv-

ices, programs and official information maintained by the

Government of the United States in Micronesia pursuant to

this Compact, and (2) to ensure the effective implementa-

tion of the services and programs provided by the Govern-

ment of the United States in Micronesia pursuant to this

Compact. Such measures shall inelude appropriate and

adequate civil and criminal remedies against:

1. Fraud against the Government of the United States.

2. Theft, embezzlement or destruction of property

belonging to or in the custody of the Government

of the United States; or the theft or unauthorized

use of official information of the Government of the

United States,

3. Interference with the operation of installations,

programs or services maintained by the Govern-

ment of the United States in Micronesia pursuant

to this Compact.

(b) In the event the Government of Micronesia or its

subdivisions do not adopt and enforce the measures re-

quired by sub-section (a) of this section, the related pro-

grams or services extended by the United States to Micro-

nesia under Section 4023 may then be withheld to the extent

that the implementation or operation of such programs or

services is thereby seriously and unreasonably impeded.

(ec) The Government of the United States may, with the

approval of the Government of Micronesia, provide inves-

tigative and enforcement services to insure compliance

26a Appendix

with the laws and regulations relating to services and pro-

grams extended to Micronesia by the United States pursu-

ant to this Compact.

Section 504

(a) Nothing in this Compact shall be construed as consti-

tuting a submission of either the Government of Micronesia

or the Government of the United States to the jurisdiction

of the courts of the other.

(b) The Court of Claims of either of the governments

shall not have jurisdiction over any claim against either

of the governments growing out of or dependent upon

this Compact.

(c) The provisions of Section 1346(b) and of Chapter

171, Title 28, United States Code shall not be applicable to

any claim arising in Micronesia.

Section 505

The Government of Micronesia and the Government of

the United States will cooperate with each other in the

pursuit, capture, imprisonment and delivery to appropriate

authorities of fugitives from justice who have fled from

the jurisdiction of one Government to that of the other.

The precise terms of this mutual obligation shall be the

subject of a later separate agreement between the Govern-

ment of Micronesia and the Government of the United

States.

Section 506

In the conduct of its activities in Micronesia the Govern-

ment of the United States will endeavor to protect the

surrounding environment from permanent or irreparable

damage by adhering to standards no less restrictive than

those established by United States law, except as other-

wise may be agreed.

Appendix 2a

TITLE VI

Trade and Commerce

Section 601

The Government of Micronesia will have the authority to

establish, change or eliminate import and export* duties and

other regulations, including internal charges, laws and con-

ditions governing the importation and exportation* of and

commerce in goods from outside of Micronesia, except as

otherwise provided in this Compact or as otherwise agreed.

Section 602

The United States and Micronesia will each accord to

products of the other treatment no less favorable than that

accorded like products of any foreign country with respect

to customs duties and charges of a similar nature and with

respect to laws and regulations relating to importation,

exportation, taxation, sale, distribution, storage and use,

except as otherwise agreed.

Section 603

(a) The Government of Micronesia shall have the power

to regulate domestic air and maritime commerce between

points each of which is within Micronesia to the extent that

such regulation does not conflict with the treaties and inter-

national agreements applicable to Micronesia pursuant to

Section 501(a) and the authority of the United States

pursuant to Title II of this Compact and does not conflict

with appropriate regulations of the Federal Aviation

Agency.

(b) The Government of the United States shall obtain

the consent of Micronesia before granting any new author-

*Proposed by JCFS but not yet discussed or approved by USG.

28a Appendiz

ity to any United States or foreign air carrier for inter-

national air commerce to or from Micronesia, except for

aircraft operated for or under the control of the Govern-

ment of the United States in connection with activities

under Title ITT.

Section 604

The currency of the United States will continue to be

the official legal tender for Micronesia until such time

as the Government of Micronesia acts to institute its own

currency. The terms and conditions of an appropriate

currer cy transitional period shall be as mutually agreed.

TITLE VII

Citizenship and Nationality

Section 701

Every person who is a citizen of the Trust Territory of

the Pacific Islands on the day preceding the effective date

of this Compact, or who thereafter becomes a citizen of

Micronesia [by birth,]* and who has not taken any affirma-

tive step to preserve or acquire any foreign citizenship or

nationality, shall be accorded treatment as* a national but

not a citizen of the United States for purposes of immigra-

tion and travel except as provided in Section 801(b)* unless

he is otherwise qualified for U.S. citizenship.

Section 702

Any person described in Section 701 who is a citizen or

a national of a [foreign] country other than Micronesia or

the United States* shall cease to be accorded treatment as*

*Proposed by JCFS but not yet discussed or approved by USG.

Ae al

Appendiz 29a

a national of the United States within one year after the

effective date of this Compact, or within six months after

becoming 18 years of age, whichever comes later, unless he

renounces that foreign citizenship or nationality.

TITLE VIII*

Immigration and Travel

Section 801

(a) The Government of Micronesia shail have the power

to regulate immigration and entry of persons who are not

citizens of Micronesia, except as provided in this Compact

or as otherwise agreed.

(b) Citizens and nationals of the United States who are

not citizens of Micronesia shall be free to enter and exit

Micronesia but not to establish residence in Micronesia

except with the consent of the Government of Micronesia.

Citizens of Micronesia who are accorded treatment as* na-

tionals of the United States shall be free to enter and exit

the United States, its territories and possessions,* but not to

establish residence in the territories or possessions of the

«United States except with the consent of the Government of

the United States. Citizens of Micronesia who are not

United States citizens [or nationals]* shall be accorded

treatment as aliens for [these purposes]* the purpose of

residence in United States territories and possessions.

(ce) Micronesian provisions applicable to entry and exit

to and from Micronesia by citizens and nationals of the

United States and personnel sent to Micronesia pursuant

to Section 403 of this Compact shall not be more restrictive

than the comparadle United States regulations governing

those Micronesian citizens who are United States nationals.

*Proposed by JCFS but not yet discussed or approved by USG.

30a Appendiz

TITLE IX

Representation and Consultation

Section 901

The Governments of the United States and of Micronesia

agree to establish at the central seat of Government of

Micronesia and in Washington, D.C., respectively, Resident

Offices for the purposes of maintaining close and regular

consultations on matters of mutual interest. The privileges

and immunities respecting the Resident Offices shall be as

set forth in Annex C.

TITLE X

Dispute Settlement

Section 1001

In the event of a dispute which relates to the interpreta-

tion or application of the provisions of this Compact, the

Government of Micronesia and the Government of the

United States shall negotiate in good faith in an effort to

settle the dispute.

TITLE XI

Amendment and Change of Status

Section 1101

This Compact may be amended at any time by mutual

consent of the Government of M -ronesia and the Govern-

ment of the United States.

Section 1102

(a) This Compact may be terminated at any time by

mutual consent of the Government of Micronesia and the

Government of the United States.

(b) After the expiration of the first fifteen vears follow-

ing its entry into force this Compact may also be terminated

Appendiz 3la

unilaterally: (1) by the Government of the United States

in accordance with its constitutional processes, such term-

ination to be effective on a date not earlier than two years

following receipt by the Government of Micronesia of

notice of the Government of the United States’ intention to

terminate; or (2) by the Government of Microresia by

referring the issue to the people of Micronesia eligible to

vote in any local or general election as defirncd in the Con-

stitution of Micronesia. If two-thirds or mcre of such voters

shall favor termination, including a two-thirds majority in

each of at least two-thirds of the districts of Micronesia, the

Government of Micronesia shall upon certification of the

results of the vote on this issue give notice thereof to the

Government of the United States and may take action to

terminate the Compact effective on a date not earlier than

two years following such notice, subject to the provisions

of Section 1103. The action of the Government of Micro-

nesia and the termination of the Compact shall not be appli-

cable to any district of Micronesia in which a two-thirds

majority of the voters have voted against termination.

(c) During the period of two years prior te the effective

date of termination set forth under the provisions of

Section 1102(b), any district in which a two-thirds majority

of the voters has voted against termination shall be given

the opportunity to negotiate with the United States with

respect to that district’s future political status. Upon the

effective date of termination, if an agreement has not been

concluded with respect to the future political status of any

such district, all relevant provisions of this Compact shall

continue in full foree and effect with respect to that district

subject to agreement of the United States and that district

upon an appropriate adjustment in the level of financial

aid to be provided to that district by the United States

under Title TV.

32a Appendiz

Section 1103

(a) In the event either government gives notice of its

intention to terminate this Compact pursuant tu 11062(b)

and before any termination may become effective, the

United States’ rights and uses in the lands and waters

covered by then existing leases and the rights of denial set

forth in Section 302 of this Compact shall be embodied in

a mutual security agreement between the Government of

Micronesia and the Government of the United States which

shall enter into force simultaneously with the termination

of this Compact.

(b) The parties shall negotiate in good faith to complete

such mutual security agreement within two years of notice

of intent to terminate this Compact under Section 1102(b)

and the amounts of assistance provided under Sections

401, 403 and 404(a) and (b) shall not be further reduced

in that two year period during which the provisions of

Section 405 shall not apply.

TITLE XII

Approval of the Compact and Effective Date

Section 1201

(a) This Compact will be approved by Micronesia if a

majority of at least 55% of those voting in a plebiscite to

be held in Micronesia vote in favor of the Compact. All

persons who would be eligible to vote in elections for the

Congress of Micronesia, if such elections were held on the

day the plebiscite is conducted, shall be eligible to vote in

the plebiscite. In determining whether the required majority

has voted for or against the Compact, only the affirmative

and the negative votes shall be counted. The Compact shall

not heecme effective, however, in any district in which 24

of those voting have voted against the Compact. Such dis-

Appendix 33a

trict shall be given an immediate opportunity to negotiate

with the United States with respect to that district’s future

political status. The provisions of the Compact shall also

be adjusted appropriately by agreement to be applicable

only to the remaining districts of Micronesia.

(b) This Compact will be approved by the United States

in accordance with its constitutional processes.

Section 1202

The President of the United States shall issue a proclama-

tion announcing a date mutually acceptable to the Govern-

ment of the United States and Micronesia at which the

Compact will come into effect, when he finds:

1. That the Compact has been approved as provided for

in Section 1201; and that

2. The people of Micronesia have adopted a Constitu-

tion pursuant to Section 101 of the Compact; and that

3. The Trusteeship Agreement between the United

States and the Security Council of the United Nations for

the former Japanese Mandated Islands has been terminated

or will terminate on the day on which the Compact becomes

effective.

ANNEX A

I. The Government of Micronesia may undertake the fol-

lowing activities pursuant to Section 204 of the Compact.

(a) The Government of Micronesia may seek associate —

or other appropriate membership for which Micronesia may

be eligible in regional organizations, United Nations Spe-

cialized Agencies, or their subsidiary bodies, of which the

United States is a member. The Government of the United

States will sponsor such applications and will give sympa-

thetic consideration to requests from the Government of

Micronesia to apply for appropriate membership in any

34a Appendiz

other such organizations in which the United States is not

a member, The Government of the United States will assist

Micronesia in training personnel to participate in these

organizations.

(b) The Government of Micronesia may negotiate and

conclude in the name of Micronesia agreements of a cul-

tural, educational, financial, scientific or technical nature

that apply only to Micronesia with any international or-

ganization in which Micronesia is a member.

(c) The Government of Micronesia may establish tem-

porary or permanent representation of Micronesian trade

or other commercial interests in foreign countries, or accept

foreign trade or commercial representation in Micronesia.

(d) The Government of Micronesia may request the Gov-

ernment of the United States to negotiate with foreign

countries agreements of a commercial, cultural, educa-

tional, financial, scientific or technical nature which shall

apply to Micronesia. The Government of the United States

shall give sympathetic consideration to such requests.

II. In advance of undertaking any initiative pursuant to

its discretion under Paragraph I of this Annex, the Gov-

ernment of Micronesia shall inform the Government of the

United States of its proposed action and shall keep the

Government of the United States fully informed of the

progress and conduct of such activities.

III. The Government of the United States will promptly

notify the Government of Micronesia if it appears that any

proposal or activity of the Government of Micronesia pur-

suant to this Annex conflicts with the international commit-

ments, responsibilities or policies of the Government of the

United States or if it is likely to lead to such conflict. In

accordance with Section 201(b) of this Compact the Gov-

Appendiz 35a

ernment of the United States will consult as requested with

the Government of Micronesia and will seek to consult be-

fore issuing a notification pursuant to this paragraph.

IV. Upon notification by the Government of the United

States that an activity proposed or engaged in by the Gov-

ernment of Micronesia pursuant to this Annex conflicts or

is likely to conflict with the international commitments,

responsibilities or policies of the United States, the Gov-

ernment of Micronesia will refrain from or promptly termi-

nate such activity.

ANNEX B

(a) Pursuant to Sections 302 and 303 of the Compact, the

parties agree that the rights and uses of the United States

in the lands and waters of Micronesia include:

(1) Marshall Islands

a) Within the Kwajalein Atoll, continuing rights

for the use of those lands and waters associated

with and currently controlled as part of the

Kwajalein Missile Range, the land portion of

which encompasses approximately 1,320 acres.

b) In the Bikini Atoll, continuing rights for use of

1.91 acres of Ourukaen and Enimazr islets, and

to use the pier, airfield and boat landing on

Eneu Islands.

¢) In the Eniwetok Atoll, retention of such use

rights as may be negotiated upon return of the

atoll.

(2) Palau Islands

a) Access and anchorage rights in Malakal har-

bor and adjacent waters, together with rights

to acquire 40 acres for use within the Malakal

harbor area, composed of submerged land to

be filled and adjacent fast land.

|

Appendiz

b) Rights for the joint use of an airfield capable

of supporting military jet aircraft (the pro-

posed airfield at Garreru Island reef, or Babel-

thuap airfield/Airai site), the right to improve

that airfield to meet military requirements and

specifications and the right to develop an ex-

elusive use area for aircraft parking, mainte-

nance and operational support facilities.

¢) On the island of Babelthuap the right to ac-

quire 2,000 acres for exclusive use, along

with the right for non-exclusive use of an ad-

jacent area encompassing 30,000 acres, for in-

termittent ground force training and maneu-

vers.

[ (3) Continuing rights to occasional or emergency use

of all harbors, waters and airfields throughout

Micronesia. ]*

(3) Mariana Islands. (Inserted in this Subparagraph |

will be those lands and waters which have been ~

agreed upon for use by the United States by the

people of the Mariana islands.)*

(4) Continuing rights to use of existing Coast Guard

facilities.

(b) Agreements for lands and waters specified in para-

graph (a) above are listed below. All agreements for the

use of lands and waters concluded after the effective date

of this Compact, and all modifications to any agreement

under this Title, shall conform to the provisions of this

Compact and shall be listed in this Annex.

*Proposed by JCFS but not yet discussed with or approved by

USG.

ta i ee ee ee ee

Appendiz 37a

ANNEX C

(a) The Governments of Micronesia and of the United

States, and the heads of their respective Resident Offices,

shall be exempt fren all national, regional or municipal

dues and taxes in respect of the premises of their respective

Resident Offices, whether owned or ieased, other than such

as represent payment for specific services rendered.

(b) Any person employed by the Government of Micro-

nesia in its Resident Office who is neither a citizen nor a

permanent resident of the United States, or any person

employed by the Government of the United States in its

Resident Office who is neither a citizen nor a permanent

resident of Micronesia, shall be exempt from income and

social security taxes levied under the laws of the host Gov-

ernment or any of its subdivisions with respect to income

which is paid from funds provided by the employing Gov-

ernmeni or any agency thereof and upon which they are

subject to the income or social security tax laws of the

employing Government or any other Government and from

taxes on the purchase, ownership, use or disposition or per-

sonal movable property (including automobiles) intended

for their own use. Such employees and members of their

families shall receive the same treatment with respect to

the payment of customs and import and export duties on

personal effects, equipment and supplies imported into the

territory of the other Government for their own use, and

with respect to other duties and fees, as is accorded by the

Government of the United States to diplomatie personnel

of foreign countries resident in the United States, subject

only to the limitation that continuous customs free entry

shall be limited to personnel, including their families, of

comparable grade to the diplomatic personnel accorded

continuous customs free entry by the United States.

38a Appendiz

(¢) The premises of the Resident Offices including the

' residences of the Heads of the Resident Office shall be in-

violable. Neither the agents of the Government of Micro-

nesia nor those of the Government of the United States may

enter the premises of the other Government's Resident

Office except with the consent of the head of that Resident

Office or someone authorized to act on his behalf.

(d) The premises of each Government's Resident Office,

their furnishings and other property thereon and the means

of transport of the Resident Office shall be immune from

search, requisition, attachment or execution, except insofar

as such immunity is expressly waived by the head of the

Resident Office or someone authorized to act on his behalf.

(e) Any person employed by either the Government of

Micronesia or the Government of the United States in its

Resident Office who is also a citizen of the employing Govy-

ernment shall enjoy immunity from the criminal jurisdie-

tion of the other Government or its subdivisions. This

immunity shall extend to all members of the family of such

a person forming a part of his household, if they are not

citizens of the receiving Government.

. een ‘ = i nM Be a - aA S

a |

i

INDEX

Page

RIN SUNGINUN csnissuastsineciicsnanentoncamntassessicienheielcdstepianciaadliiics 1

I sisicctinsiisansth ciccsannnusakstcuhanshntistecsnaiiaeineciatadaaniaais l

SINE SPUIIINIIID ‘sinscesndisevensnionisatatubiaaahpidaaninamninisanmenia l

SION scsslssssienanehasiicsictishdigetisnish esipeaiaeseceaehiceanintnaianhiaetias 2

PE scseistisiticaschctinieasidaiiniepiiacessdiaiatadadiameesambinsiniabiaiiaantiden 3

SUSI IIIIIIIN :siresicisvcaisessinssleianakanspnsianana sbigtaisedcmimatineneasandaienmisail 10

CITATIONS

Cases:

Aradanas v. Hogan, 155 F. Supp. 546 ...............:00000+ 7

Brunnell ~. United States, 77 F. Supp. 68 ............00+. 7

Callas v. United States, 253 F.2d 838 ...........csccceeeeeees 7

Chicago v. Fieldcrest Dairies, 316 U.S. 168 ............... 9

Harris v. Boreham, 233 F.2d 110 .........ccccccoscccccsssccsees 7

People of Enewetak v. Laird, 353 F. Supp. 811 ........ 8

Porter v. United States, 496 F.2d 583 ...........eses000-.

Reyes, Application of, 140 F. Supp. 130 ...... sintinailiens 7

International Agreeinenis and statutes:

T.LA.S. No. 1665, 61 Stat. 3301, 8 U.N.T.S. 189 ..2, 4

Art. 3

SESS EE EEE EEE EEE E TEESE EEE EEE ES ESET EE EEEEEESEE SESE ESESESES ES ESE SESS

a aN NS PERI Rei Sn ONS MURR By, 8,9

Administrative Procedure Act:

Fe eis NU ehitlinicicceatiiserindiiaca at ae 3, 6,7

Deas WE édcieihtanttiebiaenee eee ae

Federal Tort Claims Act, 28 U.S.C. 2671-2680 ..........

BE UTC. FT cciicatscntntnreccittntitelicemcanics

ELEN NaI SSPE OE LOG LI ESL AS POLIS Me a!

ii

Immigration & Nationality Act, 8 U.S.C. 1101(a)(14) ...7

_ National Environmental Policy Act, 83 Stat. 852,

I piccrceenceressicsccnkciescecmesnimees 1,2

I a sanvutioonee 2

oc ssnmaiinic 4

a cescnteiciuonin 4

I Ss 8

63 T.T.C. (Supp. No. 1) 501-509 o.....ccscccscesessesesseseeeees 5

a csccstnedanes 5

i as ccaesanantnn 5

le I eescstinisiioccntiectiehininnncocavicinsanesonsmnsesoes 5

Miscellaneous:

ee i a csncencnssrnvnias 7

Department of Interior Order No. 2918, 34 Fed. Reg.

IPRS BREN Epes a nc ete eI 4,5,9

16 Department of State Bulletin 416 (1947) ............... 4

Draft Compact of Free Association between the

People of Micronesia and the United States

I Sic said icccadadianinsmenncnneibbedionts 5, 10

IN SE Sect cadatniicaciphstinticelsinhanicsieeninscnlsiasniiteenvensnsereetnns 5

I cdeniinlnlhanidinsstbie dadarnhsiisiasaaenidinbnandantiinentons 5

SI IIIE scbacseskennininhidenanieinabianisiensiith dcimiesipaninveoneneines 5

I a nt caesrihaenibnnsions 5

Executive Order No. 11021, 27 Fed. Reg. 4409 .......... 4

a tee I ce EE DID sitincctccninassccnaminnsvinsccesbecsonnes 6

H. Rep. No. 1980, 79th Cong., 2d Sess. ................004. 7

Parry, The. Legal Nature of Trusteeship Agreements,

27 Brit. Year Book Int'l Law 164 (1950) ............. 9

Sayre, Legal Problems Arising from the United

Nations Trusteeship System, 42 Am. J. Int'l

ON staciancsdnaiacedpnsendtntniesinsionenssenssons 4

SBP i GS DNNBEN 2 APA

Yn the Supreme Court of the United States

OCTOBER TERM, 1974

No. 74-622

THE PEOPLE OF SAIPAN, BY AND THROUGH HERMAN

Q. GUERRERO, ET AL., PETITIONERS

Vv.

UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.,

AND CONTINENTAL AIRLINES, INC.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 28a-48a)

is reported at 502 F.2d 90. The opinion of the district court

(Pet. App. la-27a) is reported at 356 F. Supp. 645.

JURISDICTION

The judgment of the court of appeals was entered on

July 16, 1974. A timely petition for rehearing was denied

on September 3, 1974. The petition for a writ of certiorari

was filed on November 20, 1974. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether a suit challenging, under the National Environ-

mental Policy Act, 83 Stat. 852-854, 42 U.S.C. 4321-4335,

(1)

Bie WS OI CLE I BM ANI BI

2

the legality of the execution of a lease on Saipan by the

High Commissioner of the Trust Territory was properly dis-

missed by the district court.

STATEMENT

Saipan is part of the Trust Territory of the Pacific Is-

lands (Micronesia), administered by the United States for

the United Nations pursuant to a trusteeship agreement, 61

Stat. 3301, T.I.A.S. No. 1665, 8 U.N.T.S. 189.

In 1970, Continental Airlines applied to the Trust Terri-

tory government for permission to build a hotel on public

land, and a lease was executed in 1972 (Pet. App. 29a).

In late 1972, after construction of the hotel had begun,!

several of the petitioners in the present action brought suit

in the High Court of the Trust Territory to enjoin construc-

tion of the hotel. The High Court, while denying de-

fendants’ motions to dismiss on certain non-federal causes

of action, held that the National Environmental Policy

Act, 83 Stat. 852-854, 42 U.S.C. 4321-4335, did not apply to

actions of the Trust Territory government, as plaintiffs

had contended, since the Trust Territory government was

not a “federal agency” within the meaning of the Act,

42 U.S.C. 4332 (Pet. App. 30a, n. 1).

Petitioners thereupon commenced this action in the United

States District Court for the District of Hawaii, charging

that execution of the lease violated the National Environ-

mental Policy Act, and the fiduciary duties of the Depart-

ment of the Interior.

The district court denied petitioners’ motion for a tem-

porary restraining order and granted respondents’ motion

‘Construction of the hotel has been largeiy completed during the

two-year pendency of this suit. Continental was, however, notified of

the pendency of the suit soon after it commenced bulldozing the area

in preparation for construction (Pet. App. 42a-43a).

OT OE ee EIS RAT Le ¥ " ee

3

to dismiss on the grounds that the Administrative Pro-

cedure Act, 5 U.S.C. 701(b)(1)(C), excluded from judicial

review all governments created pursuant to the authority

of Congress, such as the Trust Territory, that the govern-

ment of the Trust Territory was not a federal agency sub-

ject to judicial review under either the Administrative Pro-

cedure Act or the National Environmental Policy Act,

and that the trusteeship agreement did not vest plaintiffs

with individual legal rights they could assert in the federal

district court (Pet. App. 3a, 19a).

The court of appeals affirmed. While agreeing that nei-

ther the APA nor NEPA applied, the court held that the

High Commissioner’s action should be reviewed in light

of the Trusteeship Agreement and local law, but that such

review must be undertaken, at least initially, by the High

Court of the Trust Territory (Pet. App. 39a-40a).

ARGUMENT

1. The decision by the Trust Territory government to

grant the lease at issue was not a decision of an “* * *

agenc[y] of the Federal! Government* * *” to which the

National Environmental Policy Act applies.

Although the Act does not contain a definition of

“federal agency”, the origin and functioning of the Trust

Territory government, as well as analogous statutory

schemes such as the Administrative Procedure Act and the

Federal Tort Claims Act, 28 U.S.C. 2671-2680, indicate that

internal decisions of the Trust Territory government, such

as the one in the instant case, cannot be imputed to the

United States government.

a. The Trust Territory government is not an agency of

the federal government. It derives its authority ultimately

from the United Nations, not the United States. The United

States is merely the Administering Authority for the is-

BTR ERE ERIE TELE NLR EOE SEI ILE LI

oS eo vRNA I RPE CLE IO BS AEP DE SLL LED OBOE ALD AA ELLA ETE 0 MA ea

4

land area, pursuant to its Trusteeship Agreement with the

United Nations, 61 Stat. 3301. In entering into the Agree-

ment, the United States made it clear that it did not con- .

sider its role of trustee to encompass sovereignty over the |

islands. 16 Department of State Bulletin 416, 417 (1947).

This disavowal of sovereignty is in accordance with the ac-

cepted view of trust territories under international law:

“{w]herever sovereignty does rest [with respect to the

trust territories] it is not with the administering power.”

Sayre, Legal Problems Arising from the United Nations

Trusteeship System, 42 Am. J. Int’l Law 263, 271 (1948).

In undertaking administration of the Trusteeship, Con-

gress directed that “all executive, legislative, and judicial

authority necessary for the civil administration of the Trust

Territory shall * * * 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.” 48 U.S.C. 1681. Effective July 1,

1962, the President redelegated his authority for civil

administration of the Territory to the Secretary of the

Interior. Executive Order No. 11021, 27 Fed. Reg. 4409.

Pursuant to these orders, the Secretary established in 1968

a Trust Territory Government which includes legislative,

judicial, and executive branches, with the High Com-

missioner as chief executive of the Territory. Secretarial

Order No. 2918, 34 Fed. Reg. 157. While the High Com-

missioner is appointed by the President with the advice

and consent of the Senate, 48 U.S.C. 168la, the Terri-

tory operates under its own legal code and inhabitants of |

the islands are citizens of the Territory, not of the United |

5

States. See Porter v. United States, 496 F.2d 583, 588

(Ct. Cl.).?

Indeed, the Trust Territory has its own Environmental

Quality Protection Act, enacted by the Congress of the

Trust Territory. 63 T.T.C. (Supp. No. 1) 501-509.3 The

Act establishes an Environmental Protection Board, which

is authorized to “control and prohibit poliution of air,

land, and water in accordance with the law and regula-

tions adopted and promulgated by it” (63 T.T.C. 505) ,

and to enforce its orders by seeking injunctive relief,

damages, or criminal penalties (63 T.T.C. 507-509).

b. Moreover, the federal government did not partici-

pate in the decision to grant the lease at issue in the in-

stant case. Continental Airlines applied in 1970 to the

Trust Territory government for permission to lease public

land on which to build a hotel. Pursuant to the Trust Terri-

tory Code, 67 T.T.C. 53, the application was submitted to

the Mariana Islands District Land Advisory Board for its

consideration. Although the Board recommended against

the plan, the District Administrator of the Marianas Dis-

_ trict recommended that the lease be approved (Pet. App.

2A proposed Compact of Free Association, yet to be approved by

Congress and by Trust Territory plebiscite, would grant the

Government of Micronesia “full responsibility for and authority

over all matters which relate to the internal affairs of Micro-

nesia” (Section 102) while giving the United States respon-

sibility over foreign affairs and defense (Sections 201 and 301).

The proposed Compact would make the statutory law of the United

States applicable to the islands only as provided in agrecinents

between the United States and Micronesia (Section 501(b)). See

Draft Compact of Free Association (July 12, 1974) (Br. of Resp.

High Commissioner App. i3a-38a). At the time of the filing of

this action, however, Secretarial Order No. 2918, supre, was still in

full effect (Pet. App. 18a, n. 23).

3The law of the Trust ey is codified in the Trust Ter-

ritory Code (T.T.C.).

POLITE BE AE LABIA PEDAL PPO LE PAST AONE BE RO obs — |

6

29a). The High Commissioner thereupon executed the lease

on behalf of the Trust Territory government.

As the district court determined on the basis of affidavits

submitted by the parties and testimony at the hearing on

petitioners’ Motion for a Temporary Restraining Order

and at the hearing on respondents’ Motion to Dismiss

(Pet. App. 22a, n. 28):4

[t]he lease approval was a “local” decision of the

High Commissioner acting within the scope of his

duties as chief executive of the Trust Territory Govern-

ment. The officials of the Interior Department did not

negotiate, counsel, advise or participate in the de-

cision. Nor was the lease ever sent to the Department

for approval or concurrence in any form.

c. As a further indication that internal decisions of the

Trust Territory government cannot be deemed to be de-

cisions of an “agenc{y] of the Federal Government” un-

der the National Environmental Policy Act, analogous

statutes, whose provisions apply to all federal agencies,

have been deemed inapplicable to actions of the Trust

Territory government.

The Administrative Procedure Act, for example, which

provides for judicial review of “agency action”, 5 U.S.C.

702, and defines an agency as “each authority of the

Government of the United States”, 5 U.S.C. 701(b)(1),

expressly excludes from its coverage “the governments

of the territories or possessions of the United States.”

‘Petitioners contend that the district court improperly per-

mitted introduction of evidence on a motion to dismiss without

treating the motion as one for summary judgment under Rule 56(c),

Fed. R. Civ. P. The error, if any, was harmless, since the court

of appeals’ conclusion that the National Environmental Policy

Act is inapplicable to the decision to grant the lease did not

turn on any disputed finding of fact.

FS LG ead ae Oo

RIOD SESS YP LE i AMER SRI DE Se HR ON Ep NIRA PAY PEP ONES EPRI tS GEA

7

5 U.S.C. 701(b)(1)(C). And, as indicated by the courts be-

low, the legislative history of the Act plainly shows that

Congress intended by this provision to exclude from judi-

cial review all governments created pursuant to the au-

thority of Congress (H. Rep. No. 1980, 79th Cong., 2d

Sess., p. 16; 92 Cong. Rec. 2150), presumably including

the government of the Trust Territory (Pet. App. 19a-20a,

32a).

Moreover, the Trust Territory nas been deemed a “for-

eign country” under the Federal Tort Claims Act, 28 U.S.C.

2680(k) (Callas v. United States, 253 F.2d 838 (C.A. 2);

ses also Brunell v. United States, 77 F. Supp. 68

(S.D.N.Y.)), and a “foreign state” under the Immigration

and Nationality Act, 8 U.S.C. 1101(a)(14) (Application of

Reyes, 140 F. Supp. 130 (D. Ha.) Aradanas v. Hogan,

155 F. Supp. 546 (D. Ha.)).

In Porter v. United States, 496 F.2d 583 (Ct. Cl.)j, the

court determined that the Trust Territory was not an “agen-

cy of the United States” for the purpose of asserting juris-

diction against the United States for an alleged breach of a

contract negotiated by officials of the Trust Territory Gov-

ernment. As the court stated (id. at 588):

While the United States has retained direct control

in certain fields, such as foreign affairs, the daily ad-

ministration of the islands has largely shifted into the

hands of the local government. The Territory operates

under its own comprehensive legal code.* * *

« * om * *

* * * [T]he [Trust] Territory government is not an

agency of the United States for contract purposes.

See also Harris v. Boreham, 233 F.2d 110 (C.A. 3).

8

d. Petitioners contend that the High Commissioner was

bound by the Trusteeship Agreement to act pursuant to

the National Environmental Policy Act. The Trustee-

ship Agreement does not, however, require compliance with

the Act. Rather, it provides that the United States “* * *

may apply to the trust territory * * * such of the laws

of the United States as it may deem appropriate to local

conditions and requirements” (Art. 3, Pet. App. 56a).

This provision requires specific federal legislation be-

fore any law of the United States becomes the law of tne

Trust Territory. No legislation specifically applies the

National Environmental Policy Act to the Trust Territory.

Moreover, the Trust Territory Code provides that the

Trust Territory shall give effect only to “such laws of the

United States, as shall, by their own force, be in effect in

the Trust Territory* * *.” 1 T.T.C. 101 (emphasis supplied).

Although Congress has specifically listed the Trust Terri-

tory within the coverage of a number of statutes, it did not

list the Trust Territory within the coverage of the National

Environmental Policy Act. See People of Enewetak

v. Laird, 353 F. Supp. 811 (D. Ha.).

2. Petitioners also contend that the court of appeals

erroneously committed to the High Court of the Trust

Territory the question whether the action of the High Com-

missioner complied with the Trusteeship Agreement to

“protect the inhabitants against the loss of their land and

resources* * *” (Trusteeship Agreement, Art. 6). They ar-

gue that members of the High Court, appointed by the

Department of Interior, should not be the final arbiters

of the legality of Departmental action under federal law

(Pet. 11).

However, neither federal law nor any actions of the De-

partment of the Interior will be at issue before the High

Court. In concluding that action of the High Commissioner

9

could be reviewed in light of the Trusteeship Agreement,

the court of appeals did not suggest that the Agreement

vested the citizens of the Trust Territory with rights against

the United States which they could assert in federal court.

Rather, the court concluded that the “[a]greement can be

a source of rights enforceable by an individual litigant in a

domestic court of law” (Pet. App. 36a) against his own

government, upon which the Trusieeship Agreement is

binding. “Surely, the judicial branch of the Trust Territory

government has the authority to determine whethe; or not

the action of its chief executive complies with a provision

in its own constitutional document” (Pet. App. 38a). Thus

the law to be applied by the High Court is in effect the

constitutional law of the Trust Territory (see Parry, The

Legal Nature of Trusteeship Agreements, 27 Brit. Year

Book Int'l Law 164, 182-184 (1950)), and the actions to be

scrutinized are those of the High Commissioner.

The High Court of the Trust Territory—the Territory’s

judicial authority, made expressly independent of the execu-

tive and legislative powers, Department of Interior Order

2°18, supra, Part I1V—is the appropriate forum for deter-

mining whether the High Commissioner violated the Trustee-

ship Agreement in granting the lease to Continental Airlines.

Since the High Commissioner acted pursuant to local stat-

utes in granting the lease, the High Court presumably will

have an opportunity to test the validity of those statutes,

on their face or as applied, under the Trusteeship Agree-

ment.

Under the doctrine of abstention, it is appropriate that

the construction of local laws be left to local courts. See

Chicago v. Fieldcrest Dairies, 316 U.S. 168, 171-172. Ab-

stention is particularly appropriate with respect to the

rapidly evolving law of the Trust Territory. Article 6 of the

Trusteeship Agreement requires the administering authority

: SESE Atm ar ccunsempetat eR RRR TH ERO DEEN POPE PEER C SE IR er ss ne

i a al i

10

to “foster the development of such political institutions as

are suited to the trust territory and * * * promote the de-

velopment of the inhabitants of the trust territory toward

self-government* * *.” Moreover, as has already been

indicated, the proposed Compact of Free Association, soon

to be voted upon by the people of the Trust Territory,

would grant them full responsibility for and authority over

their own internal affairs. See note 2, supra. Intrusion by

the federal courts at this stage in the development of the

Trust Territory’s legal and political institutions would, we

submit, be both unwise and unwarranted.

CONCLUSION

_ For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted.

RoBERT H. Bork,

Solicitor General.

WALLACE H. JOHNSON,

Assistant Attorney General.

RAYMOND N. ZAGONE,

JACQUES B. GELIN,

Altorneys.

FEBRUARY 1975.

DOJ-1975-02