The TRO granted in favor of plaintiffs Friends of Marpi, former Rep. Sablan, Suzy Kindle, Glen Hunter and Ruth Tighe on the $3 million project near the Veterans Cemetery and a yet to be opened public cemetery will last for 10 days.
Sablan told the Variety she’s pleased with the judge’s decision but hinted that it’s just the beginning of their legal efforts to preserve Marpi where historical sites like the Banzai and Suicide Cliffs, several monuments, among others, are located.
David Banes, volunteer counsel for the Friends of Marpi, and the government’s counsels, Assistant Attorneys General Brian Gallagher and Gil Birnbrich, agreed to hold the evidentiary hearing on April 29 instead of holding it within the 10-day TRO period in consideration of the judge’s schedule.
Banes said if the TRO was not issued, the remaining two of the 43 power poles would have been erected as early as today rendering the plaintiffs’ effort to protect Marpi futile.
During the hearing, Birnbrich argued the two power poles wouldn’t be erected at least a month from now in consideration of certain “birds mating season.”
He did not specify the species of the birds having a mating season nor when that period would end.
The judge said delaying for sometime the installation, therefore, wouldn’t affect the project.
Gallagher, however, countered although the two poles won’t be erected soon due to the mating season of the birds, there are other activities on the job site that would be affected if the TRO was granted like installing them with electrical wires, among other things, and the government is at the losing end as it is pays for the contract.
The power pole project on the site is paid for by the federal government under the capital improvement projects funds.
The CNMI government, however, oversees the project.
Constitutional violations
Banes said there was no adequate public hearing done before the power poles were installed.
Further, Banes said there was no regard for the fact that the site in question has utmost historical and cultural value to the people of the Northern Marianas.
“Defendants have formed a conspiracy to develop the Marpi area, including the [Marpi Historic Landmark Area] without regard to the CNMI or federal rights, laws and regulations, including but not limited to developing the area without public hearing, without consideration of preserving the historical, scenic and cultural value of the property as well as its impact on the CNMI’s main industry, tourism,” said Banes.
“A Section 106 review, among other requirements, requires federal agencies or local government agencies, if they are federally funded, “to explore measures to avoid or reduce harm (adverse effect) to historical properties…as well as require them to consider the views of the public,” he added.
But the government lawyers insisted there had been at least one public hearing held at Tanapag Elementary School prior to the implementation of the project and that the requirements of Section 106 that Banes referred to was adequately met as shown by the Historic Preservation Office’s approval on the project.
Banes, however, said the HPO approval did not indicate the installation of the power poles.
He said the government’s action disregarded its constitutional and fiduciary duties to the public under Article 1, Section 9.
The judge agreed.
“Why do they (government) like to do things in the dark — so to speak,” he said and noted that public hearings are usually held when residents will find it difficult to attend.
The judge said it seems that the Wireless public cemetery which overlooks Managaha may be moved next to the Veterans Cemetery as the CNMI government appears to be considering converting the land into a resort type of business.
“What good is that view for the dead. Move the dead people out to Marpi — that would definitely be a good resort. A nice piece of public land not for cemetery but for resort,” the judge said.
In a statement, Sablan said the cash-strapped CNMI government is laying the foundation in commercializing the Marpi area.
“The more we learn about the power pole project currently underway in Marpi, the more we are convinced that it is about so much more than just electrifying a few lights and water pumps for the public cemetery,” she said.
She said the power poles indicate that Marpi is being prepared for an intensive development that will eventually deprive the indigenous people of their rich ancestral heritage.
“For many reasons, Marpi is an exceptional place. It is a National Historic Landmark, one of the few places in the entire country deemed worthy of this distinction because of its significant historic value,” she said.
“The area is rich in important artifacts dating back to ancient Chamorro times. It is a sacred memorial site for those who lost their lives in World War II and a burial ground for our military veterans, and it will soon be a final resting place for many of our loved ones who pass away. It is home to some of the last stands of old limestone forest remaining in the CNMI, one of the best diving grottos in the world, fascinating caves containing ancient petroglyphs, and the beautiful Bird Island,” she added.
Attorney General Edward Buckingham in a statement on Saturday said: “We respect the ruling of Judge Govendo. The issuance of a TRO is the first, expedited step in the process of judicial review. TROs are special proceedings designed to allow the Court to issue immediate orders. In cases of domestic violence, TROs are granted quickly so that victims of crime can get immediate court protection. The process is quick and the opportunity for a full evidentiary hearing comes later.”
A written decision from Govendo is expected this week. Asked what will happen next, Buckingham said, “We will review the court’s decision and determine how best to respond. There are some preliminary concerns of a legal nature, but cases are best tried in the courtroom, not in the media.”
The decision was issued by the Superior Court.
Asked whether the case should remain there, Buckingham said, “It is not appropriate to comment on legal strategy. However, it’s fair to say that the commonwealth will carefully review both substantive and procedural issues to ensure that the law is followed in the appropriate forum.”
