THE Department of Lands and Natural Resources said it has approved a $780.56 mitigation fee for Alexandria Davis Steeley to clear her homestead in Kagman.
But DLNR said Steeley has not responded to the authorization for a Saipan Upland Mitigation Bank credit sale that was transmitted to her and her attorney on Aug. 9, 2023.
Steeley, through attorney Jeanne Rayphand, has filed a complaint for review of agency action in Superior Court.
Steeley sued DLNR and the Division of Fish and Wildlife for the delay in issuing a land clearing permit for her homestead that she inherited from her mother, Jacinta Kapileo, in Kagman.
DLNR Secretary Sylvan Igisomar and DFW Director Manny Pangelinan were also named as defendants and sued in both their official and personal capacities.
The complaint asked the court to rule in Steeley’s favor and issue an order declaring that the defendants have unlawfully withheld and unreasonably delayed issuing a final agency action on the plaintiff’s permit application.
The plaintiff wants the court to order defendants to issue her the DFW permit to clear her house lot.
The lawsuit likewise seeks damages for deprivation of property in an amount to be determined.
In response, DLNR Secretary Sylvan Igisomar, represented by Assistant Attorney General Hunter Hunt, asked the court to dismiss the lawsuit for mootness, and for failure to state a claim on which relief can be granted.
Hunt also requested to dismiss DLNR from the lawsuit, and replace DLNR with the CNMI government.
Hunt said the plaintiff has failed to plead that a physical invasion of her property has occurred, or that regulations have completely deprived her of all economically beneficial use of her property.
“The ‘Stop Clock’ does not permanently deprive plaintiff of the beneficial economic use of her property. Further, the Stop Clock did not deprive the use of the entire property, but only a portion of the property within a 50-meter buffer from where the endangered Reed Warbler was detected,” Hunt said.
He said the Stop Clock in this case only served to pause the plaintiff’s land clearing operations until DLNR was able to conduct wildlife surveys to determine whether a habitat was destroyed and how best to mitigate that destruction.
According to Hunt, the abrogation of the Stop Clock by the issuance of the authorization for a Saipan Upland Mitigation Bank credit sale has removed any burden that could constitute a taking.
“Plaintiff is free at this point to pay a nominal fee to mitigate the destruction of listed species habitat or to leave her property unmaintained. For the Stop Clock to be considered a taking, even a temporary one, it would need to have had to deprive plaintiff of all the use of her property,” he said.
Hunt said the fee of $780.54 was “not so disproportionate to the actual impact of the land clearing that it should be considered to permanently deprive plaintiff of the economic benefit of the property.”
The fee charged in this case does not constitute a taking under the Fifth Amendment, Hunt added.
“Because plaintiff failed to establish in her pleadings that the Commonwealth’s actions either physically invaded or permanently deprived plaintiff of the economic benefit of the property, the second cause of action must be dismissed,” Hunt added.
