THE Superior Court on Friday granted the Department of Lands and Natural Resources’ motion to dismiss the lawsuit filed by Kagman landowner Alexandria Davis Steeley.
Steeley sued DLNR and its Division of Fish and Wildlife for the delay in issuing a land clearing permit for her homestead lot, which she inherited from her mother, Jacinta Kapileo.
In her lawsuit, Steeley, through attorney Jeanne Rayphand, said the defendants unlawfully withheld and unreasonably delayed issuing a final agency action on the plaintiff’s permit application.
During oral arguments on Sept. 19, 2023, Steeley was represented by Rayphand; DLNR was represented by Assistant Attorney General Hunter Hunt; DLNR Secretary Sylvan Igisomar was represented by Assistant AG Gregory Cenac; and DFW Director Manny Pangelinan was represented by Assistant AG Joshua Willis.
Steeley sought a judicial review of DLNR and DFW’s action, and asked the court to declare that respondents “unlawfully withheld and unreasonably” delayed a final agency decision on her application for certain land clearing permits.
In his order on Friday, Associate Judge Wesley M. Bogdan stated that upon review of the record, the moving papers and counsel’s arguments, the court finds the following:
1) The underlying appeal is not one of final agency action (and the delays complained of are not unreasonable under the circumstances).
2) The alternative declaratory relief requested by petitioner is somewhat extreme and, if granted, would constitute a violation of the separation of powers doctrine.
The judge said the court lacks jurisdiction because there is no “final agency action” to review, and “the delays complained of are not unreasonable under the circumstances.”
The court also disagrees with petitioner’s claims that the agency actions in this case were unreasonable or that the delay entitles petitioner to the requested injunctive relief.
The judge also noted that DFW assessed the amount for a partial credit of money to be paid by petitioner to the Saipan Upland Mitigation Bank or SUMB to mitigate damage to the Nightingale Reed-warbler’s habitat.
But petitioner has since failed or refused to act on the notice, which DFW issued on Aug. 9, 2023, the judge said.
“The application has basically sat in limbo ever since, as DFW cannot grant Petitioner’s permit application until Petitioner accepts the fee for the SUMB credits. Put another way, the ball has been in Petitioner’s court for months,” Judge Bogdan stated.
Moreover, because petitioner “has not yet complied with the lawful process used in the CNMI to permit the clearing of property, which may adversely affect threatened or endangered species, respondents have been unable to issue a final decision on petitioner’s permit application. And without final agency action, this court is deprived of jurisdiction over Petitioner’s [Administrative Procedures Act] claim. Under these facts, the court finds it appropriate to grant the Commonwealth’s Motion to Dismiss Petitioner’s first cause of action,” the judge said.
He added that the petitioner’s second cause of action is premised on the same alleged wrongdoing as her APA claim — respondents’ alleged failure to act on her permit application. This must be dismissed as well, the judge said.
He reiterated that there is no unlawful withholding of agency action, “and certainly none rising to the level of a constitutional violation — where DLNR has fulfilled its duty to notify Petitioner to pay the SUMB mitigation fee, and the decision now rests with Petitioner as to whether or not to accept the fee.”
The judge said, “Petitioner’s alternative request for relief, if granted, would violate the separation of powers doctrine.”
He said the court simply does not have the power to declare that all Kagman homestead property owners are exempt from the environmental regulations promulgated by the CNMI government to protect critical habitats for endangered species.
The judge said the Commonwealth Constitution “provides for a tripartite system of government,” which “gives rise to the separation of powers doctrine.”
He said its purpose is “to safeguard the independence of each branch of the government and protect it from domination and interference by the others.”
In the case of Steeley’s complaint, Judge Bogdan said the CNMI government has unequivocally declared an interest in protecting endangered species and their special habitats. “To achieve this important goal, our government promulgated certain regulations that all property owners must comply with if they wish to clear or build on land in the CNMI,” the judge added.
“What Petitioner asks for would require this Court to violate the separation of powers doctrine and interfere with the decision-making of a co-equal branch of government. The Court declines to do so. This Court’s obligation is to interpret the law when faced with a case or controversy, not to change it. For these reasons, the Court lacks subject matter jurisdiction over petitioner’s claims. Accordingly, the petition is dismissed,” the judge said.
