ALEXANDRIA Davis Steeley has sued the Department of Lands and Natural Resources and the Division of Fish and Wildlife for the delay in issuing a land clearing permit for her Kagman homestead lot, which she inherited from her mother, Jacinta Kapileo.
DLNR Secretary Sylvan Igisomar and DFW Director Manny Pangelinan were named as defendants in their official and personal capacities.
Steeley, through attorney Jeanne Rayphand, has filed a complaint for review of agency action in Superior Court.
The complaint is asking 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 complaint also asked the court to issue a judgment declaring that the plaintiff is not required to obtain a DFW permit to clear her house lot; or, in the alternative, that she is entitled to the DFW permit to clear her house lot.
The plaintiff wants the court to order the 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.
“Defendants have been and are aware of all the facts complained of herein and have condoned or have been deliberately indifferent to such conduct,” the complaint stated.
According to the complaint, on Feb. 10, 2023, a One Start non-commercial permit application and a DFW site assessment checklist and application were submitted by the plaintiff to the defendants.
In spite of attempts to follow up on the DFW application, it was not until May 4, 2023 that any written response was received, the complaint stated.
By email, DFW Director Manny Pangelinan sent the plaintiff’s attorney a copy of document Stop-Clock-DFW Permit No. 238-046N (land clearing for future home construction) dated March 31, 2023, which had not previously been provided to the applicant.
DFW claimed that it conducted two surveys without finding any presence of an endangered species on the lot.
DFW said it then conducted a third survey in which it called out with a recording to get a vocal response.
DFW claimed to have detected one male Nightingale Reed Warbler vocally responding to the recording.
The bird is considered endangered by the U.S. and CNMI governments.
The plaintiff said DFW confirmed that the alleged responding bird was not on her lot, or Lot 011 G 801, but alleges that the unseen bird was within 50 meters.
On or about May 5, 2023, the plaintiff, through her attorney, contacted the DFW director to discuss mitigation.
Having received no response from Pangelinan or DFW regarding the application for the clearing permit or the option to discuss mitigation, the plaintiff, through her attorney, appealed to the DLNR secretary on May 30, 2023.
“Defendants have not responded nor acted upon plaintiff’s application and appeal,” the plaintiff’s lawsuit added.
Background
On June 10, 1994, Jacinta Kapileo was issued permit to homestead village Lot 011 G 801.
At that time, the Kagman homestead village of which Lot 011 G 801 was a part was cleared of vegetation with a paved road on one side of Lot 011 G 801 and a coral road on the opposite side of Lot 011 G 801. The coral road was paved, and the lot was bounded on the remaining two sides by homestead lots.
The lot was not a habitat for the Nightingale Reed Warbler, the lawsuit said.
Having complied with all the provisions of the homestead laws, DLNR, on behalf of the CNMI, quitclaimed Lot 011 G 801 to Jacinta Kapileo on Aug. 6, 1998. Over the years the house was built and rebuilt as a result of numerous typhoons.
Lot 011 G 801 continued to be a residential village lot and was not a habitat for the Nightingale Reed Warbler, the lawsuit reiterated.
On July 5, 2018, Kapileo deeded Lot 011 G 801 to her daughter, Alexandria Jacinta Davis Steeley.
The lot is part of a homestead village, and not a protected conservation area, the plaintiff said.
When the Kagman homestead village location was determined, the area was cleared prior to granting homesteads.
Both the CNMI and the U.S. Fish and Wildlife Service “agree and recognize that once endangered or threatened species have been taken through development of their habitat, the take is irreversible and is permanent,” the plaintiff said, quoting the agreement between the CNMI and U.S. Fish and Wildlife Service to establish the Saipan Upland Mitigation Bank.
The lawsuit stated that Lot 011 G 801 is bounded on two sides by roads, one going through the homestead village while the other is bounded by LaoLao Bay Golf & Resort.
Homestead lots bound the other two sides of the lot, the lawsuit added.
The clearing of Lot 011 G 801 is not adjacent to or near the Kagman Conservation Area or any other conservation area and will have no effect on any habitat of the Nightingale Reed Warbler, the lawsuit stated.
Rayphand said the plan to renovate/rebuild the house that was damaged by previous typhoons so that her client will have a home when she returns from military service overseas is being thwarted, causing significant and unnecessary emotional distress and raising issues with the deprivation of her client’s property in violation of the CNMI and U.S. Constitutions.
