MEKI SOLOMONA, Appellant
v.
GOVERNOR
OF
DEVELOPMENT
PLANNING OFFICE, and PRODUCT NOTIFICATION
AND REVIEW SYSTEM, Appellees
High Court of
Appellate Division
AP No. 22-89
__________
American Samoa's "coastal zone management area" is defined as including the entire island of Tutuila, along with all the other islands and all coastal waters and submerged lands for a distance of three nautical miles seaward. A.S.A.C. § 26.0207.
A "taking" of property by ASG requires it to provide just compensation. U.S. Const. Amend. V; Rev. Const. Am. Samoa art. I, § 2.
A land use regulation may effect a
constitutional taking ifit fails to
"substantially advance legitimate state interests" or "denies an
owner economically viable use ofhis land."
Coastal zone regulations might effect a taking, and thus require compensation to the
landowner, if they effectively prohibit any "economically viable" use
of private property.
No "taking" occurs when
government merely restrains property uses which are tantamount to public
nuisances.
American Samoa's submerged and tidal lands, which are those permanently or periodically covered by tidal waters, belong to the territorial government.
A person cannot convert public land into his own private property by unilaterally and artificially changing its character, nor can he acquire title by offering for registration property legally incapable of private ownership.
A person who does not own the land for which a land-use permit was denied has no standing to raise the question as to whether special enabling legislation was necessary to allow the Governor to promulgate the coastal zone management regulations affecting the rights of private property owners.
The executive branch has the statutory authority to preserve and administer government lands.
Before REES, Associate Justice, FONG*, Acting Associate Justice, KLEINFELD,** Acting Associate Justice, TAUANU'U, Chief Associate Judge, and LOGOAI, Associate Judge.
Counsel: For Appellant, Roy J.D. Hall, Jr.
For Appellee,
Virginia L. Gibbons, Assistant Attorney General
This appeal is from the denial by the Project Notification and Review System (PNRS) of appellee American Samoa Government (ASG) of a permit to build a house. The permit was denied on the ground that the house was to be constructed on an illegal landfill within a tidal wetland.
In or around 1985 appellant began filling in an area of the mangrove swamp (pala) at the mouth of the Leafu Stream in Leone. In 1987 he attempted to apply for a Consolidated Land Use Permit to conduct "overpass and fill work." Only a few lines of the multi-page application were filled in, and it was never acted upon by any agency of ASG. It appears that substantial work had already been done on the landfill and the "overpass" (a bridge connecting the filled area with the mainland) by the time of this application. [17ASR2d188]
In or around 1988 appellant and his wife offered
for registration as their individually owned land a parcel described as "a
portion of land 'Siulagi.'" This parcel
comprised about 716 acres and appears to have consisted of the landfill within
the pala. Although the appellant testified at the
hearing below that several neighboring families had originally objected to his
landfill activities, any formal objections were evidently withdrawn and the
land was registered on
In February of 1989 the appellant applied for a permit to build a two-story house and a septic tank on the filled area.
On
The PNRS is a sort of interdisciplinary consortium of all the ASG agencies which have anything to do with land use. It was created to implement the "coastal management program" established by Executive Orders 03-80 and 07-88, codified as A.S.A.C. §§ 26.0201 et seq. This program, in turn, was issued in response to the enactment of the federal Coastal Zone Management Act of 1972, 16 U.S.C. §§ 1451 et seq. The federal act provides, inter alia, for federal assistance to states and territories "in developing land and water use programs for the coastal zone, including unified policies, criteria, standards, methods, and processes for dealing with land and water use decisions of more than local significance."
The coastal zone regulations define the
"coastal zone management area" as including the entire
A.S.A.C. § 26.0211. (Depending on the type of construction contemplated, these permit-letting agencies can include the Office of the Governor, the Office of the Attorney General, the Economic Development Planning Office, the Territorial Planning Commission the Zoning Board, the Department of Public Works, the Environmental Quality Commission, the Environmental Protection Agency, the Department of Marine and Wildlife, the Department of Parks and Recreation, and/or the Department of Health.) The regulations further provide that "a. ..permit and project notification and review system shall be instituted." A.S.A.C. § 26.0209.
The PNRS is the system established pursuant to
these two sections. Instead of applying to several agencies for approval of
various aspects of a proposed project, the applicant applies only to DPO. All
of the permit-letting agencies then study the application and send
representatives to the PNRS and collectively decide either to approve or to
disapprove it. "The goal is to provide 'one-stop shopping' to those
needing governmental permission to construct almost anything anywhere in the
territory. " Decision of the
Administrative Appeals Panel in the case of Meki Solomona,
In 1990, during the pendency of this appeal and after the events and proceedings that gave rise to it, the Fono enacted and the Governor signed the American Samoa Coastal Management Act of 1990, PL No. 21-35, which substantially restated many of the provisions of the regulations discussed above and which also provided that those regulations should remain in force until certain others are promulgated. See A.S.C.A. § 24.0506(b).
After the PNRS denied appellant's application to build the house and septic tank, he appealed to an Administrative Appeals Panel. The appeals panel held a hearing at which both the appellant and a representative of the appellee(s) testified. The panel later made a visit to the construction site and then took further evidence from appellant.
On
The panel further concluded that various agencies
of the government would have authority (presumably even if the land did not
belong to the government) to deny construction permits, water quality permits,
and a health permit for the septic tank, and that "the technical and
regulatory findings of the PNRS and other agencies in this case are
correct."
Appellant now petitions for judicial review of these findings in accordance with the Administrative Procedures Act. See A.S.C.A. § 4.1040-41. He raises two important and complex questions.
First, the appellant contends that the
establishment of the PNRS by executive order was unconstitutional in the
absence of enabling legislation. He contends that an executive regulation must
be designed to execute or enforce laws, not to enact or change them. He further
contends that the establishment of the coastal zone management program had the
effect of altering the legal rights, duties, and relations of persons, and must
therefore be characterized as inherently legislative rather than executive. Appellee ASG responds that the Revised Constitution of
American Samoa, Article IV § 6, permits the Governor to issue executive
regulations "not in conflict with the. ..laws of
Appellant also maintains that the denial of a
land use permit in this case is a "taking" of his property for which
ASG must provide just compensation. See
No taking of private property has occurred in
this case because the land was not private property to begin with. It is well
settled that submerged and tidal lands in
The conveyance from the
Because he does not own the land for which this permit was denied, appellant has no standing to raise the question whether special enabling legislation was necessary to allow the Governor to promulgate the coastal zone management regulations, insofar as they affect the rights of private property owners. The executive branch does have statutory authority to preserve and administer government lands. See A.S.C.A. §§ 18.0204(a) (parks and recreation department shall inventory all properties belonging to the government and with the Governor's approval determine which are included in the park system), 18.0205 (certain submerged and tidal lands are included within the park system and are subject to the administration of the director of parks and recreation), 18.0208(a) (criminal penalties for injury or damage to property within the park system). The Parks and Recreation Department is one of the review agencies comprising the PNRS, and the record below reflects that the reviewing agencies voted unanimously to deny the application.
Accordingly, the decision of the Administrative Appeals Panel is AFFIRMED.
********
1. The Government seems to
argue that the requirement of compensation for regulatory takings has been
effectively read out of the Constitution by Keystone Bituminous Coal
Association v. DeBenedictis, 480 U.S. 470 (1987).
The holding of that case, to the effect that no taking occurs
"when the State merely restrains uses of property that are tantamount to
public nuisances," id. at 491, must
be read together with other recent cases suggesting the survival of a robust
regulatory takings doctrine. See, e.g., Nollan, supra;