Writ of Kalikasan Tubataha

8/21/2019 Writ of Kalikasan Tubataha

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Republic of the Philippines

SUPREME COURTManila

MOST REV. PEDRO D. ARIGO,Vicar Apostolic of Puerto PrincesaD.D.; MOST REV. DEOGRACIASS.INIGUEZ, JR.,Bishop-Emeritus ofCaloocan,FRANCES Q. QUIMPO,CLEMENTE G. BAUTISTA, JR.,Kalikasan-PNE,MARIACAROLINA P. ARAULLO,RENATO M. REYES JR.,Bagong

Alyansang Makabayan, HON. NERIJAVIER COLMENARES,BayanMuna Party-list,ROLAND G.SIMBULAN, PH.D.,Junk VFAMovement,, TERESITA R. PEREZ,PH.D.,HON. RAYMOND V.PALATINO,Kabataan Party-list,PETER SJ. GONZALES,Pamalakaya, GIOVANNI A.TAPANG, PH.D.,Agham, ELMERC. LABOG,Kilusang Mayo Uno,JOAN MAY E. SALVADOR,Gabriela,JOSE ERIQUE A.AFRICA, THERESA A.CONCEPCION, MARY JOAN A.GUAN,NESTOR T. BAGUINON,Ph.D., A. EDSEL F. TUPAZ

Petitioners

--versus--

SCOTT H. SWIFT in his capacity asCommander of the U.S. 7

thFleet,

MARK A. RICE in his capacity asCommanding Officer of the USSGuardian, PRESIDENT BENIGNOS. AQUINO III in his capacity asCommander-in-Chief of the Armed

Forces of the Philippines,HON. ALBERT F. DEL ROSARIO,Secretary, Department of Foreign

Affairs, HON. PAQUITO OCHOA,JR.,Executive Secretary, Office ofthe President, HON. VOLTAIRE T.

SC-G.R. SP. NO. _______________

(Petition for Writ of Kalikasan withprayer for Temporary Environmental

Protection Order [TEPO])


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GAZMIN, Secretary, Department ofNational Defense,HON.SECRETARY RAMON JESUS P.PAJE, Secretary, Department ofEnvironment and Natural Resources;

VICE ADMIRAL JOSE LUIS M.ALANO,Philippine Navy FlagOfficer in Command, Armed Forces

of the Philippines,ADMIRALRODOLFO D. ISORENA,Commandant, Philippine CoastGuard,COMMODORE ENRICOEFREN EVANGELISTA, Philippine

Coast Guard Palawan,MAJOR GEN. VIRGILIO O.DOMINGO, Commandant of ArmedForces of the Philippines Command,LT. GEN. TERRY G. ROBLING,US Marine Corps Forces, Pacific,and Balikatan 2013 Exercise Co-Director.

Respondents.

x------------------------------------------x

PETITION FOR WRIT OF KALIKASANwith

PRAYER FOR THE ISSUANCE OF A

TEMPORARY ENVIRONMENTAL PROTECTION ORDER

Petitioners, by counsel, respectfully state:

NATURE OF THE PETITION

1. This is a petition for the issuance of a Writ of Kalikasan filedwith this Honorable Court pursuant to Rule 7 of A.M. No. 09-6-8-SC,


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otherwise known as the Rules of Procedure for Environmental Cases(Rules), concerning the grounding of USS Guardian on the TubbatahaReefs National Park, a UNESCO World Heritage Site located at the heart ofthe Coral Triangle and protected by Republic Act No. 10067 or theTubbataha Reefs National Park Act of 1999. The unauthorized entry,grounding, salvage, and ongoing post-salvage operations of the Guardianviolate the constitutional rights of the residents of the provinces surroundingthe Tubbataha Reef on the Sulu Sea Palawan, Antique, Aklan, Guimaras,Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan,Sulu, and Tawi-Tawito a balanced and healthful ecology.

Map of the Coral Triangle1

2. This is a citizens suit within the meaning of Section 37 of theTubbataha Reefs National Park Act of 1999 and Rule 7 (Writ of Kalikasan),Part III, of the Rules.

3. And, pursuant to Section 1, Rule 7, of the Rules, herein Petitioners

are a collective of persons who are or who represent peoples organizations,non-government organizations, accredited public interest groups,environmental experts and academicians, environmental institutes, andgovernment officials, suing on their behalf as citizens and on behalf ofpersons whose constitutional rights to a balanced and healthful ecology havebeen violated, or threatened with violation through unlawful acts andomissions of public officials and employees herein named, and/or privateindividuals or entities whether associated or unassociated with those publicofficials herein named, involving environmental damage of such magnitudeas to prejudice the life, health or property of inhabitants and beneficiaries ofthe World Heritage Site.

1Photo Credit: World Wildlife Fund for Nature (WWF)


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4. This petition for the issuance of the Writ of Kalikasanraises novelquestions because it presents a nexus between the environment and foreignmilitary troops.

THE PARTIES

5. The Petitioners are Filipino citizens, of legal age, residents of thePhilippines, and are named below:

5.1.Most Rev. Pedro D. Arigo, Vicar Apostolic of Puerto Princesa, andin representation of others, including minors or generations yet unborn,

whose addressis at Bishops Residence, Puerto Princesa City, Palawan

5.2.Most Rev. Deogracias S.Iniguez, Jr. Bishop-Emeritus ofCaloocan, and in representation of others, including minors or generationsyet unborn, whose address is at the National Shrine of the Divine Mercy, StaRosa I, Marilao, Bulacan;

5.3.Frances Q. Quimpo, and in representation of others, includingminors or generations yet unborn, whose address is at the Center forEnvironmental Concerns-Philippines, Inc., 26 Matulungin St., Bgy Central,

Quezon City, Metro Manila;

5.4.Clemente G. Bautista, Jr., Coordinator of Kalikasan PeoplesNetwork for the Environment, and in representation of others, includingminors or generations yet unborn, whose address is at the Kalikasan-Peoples Network for the Environment, c/o CEC, 26 Matulungin St., BgyCentral, Quezon City, Metro Manila;

5.5.Maria Carolina P. Araullo, Chairperson of Bagong Alyansang

Makabayan (Bayan), and in representation of others, including minors orgenerations yet unborn, whose address is at #1 Maaralin Street, Bgy.Central, Diliman, Quezon City;

5.6. Renato M. Reyes Jr., Secretary-General of Bagong AlysansangMakabayan (Bayan), and in representation of others, including minors orgenerations yet unborn, whose address is at #1 Maaralin Street, Bgy.Central, Diliman, Quezon City;

5.7.Hon. Neri Javier Colmenares, Representative of Bayan Muna

Party-list; and in representation of others, including minors or generationsyet unborn, whose address is at 45 K-7

thStreet, Brgy. West Kamias, Quezon

City;


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5.8.Roland G. Simbulan, Ph.D, Junk VFA Movement, a full professorat the University of the Philippines, and in representation of others,including minors or generations yet unborn, whose address is at at 31-BEvergreen Drive, Capitol Green Village, Tandang Sora, Quezon City;

5.9.Teresita R. Perez, Ph.D., and in representation of others, includingminors or generations yet unborn, whose office address is at the Department of

Environmental Science, Ateneo de Manila University, Quezon City, Metro

Manila;

5.10. Hon. Raymond V. Palatino, Representative of Kabataan Party-list, House of Representatives, and in representation of others, includingminors or generations yet unborn, whose office address is at 5 Palosapis,

Quezon City;

5.11. Peter SJ. Gonzales, Vice Chairperson of Pambansang Lakas ngKilusang Mamamalakaya ng Pilipinas (Pamalakaya), and in representationof others, including minors or generations yet unborn, whose address is at#56 K-9

thStreet, Kamias, Quezon City;

5.12.Giovanni A. Tapang, Ph.D., and in representation of others,including minors or generations yet unborn, whose office address is at theInsitute of Physics of the University of the Philippines, Diliman, Quezon

City;

5.13.Elmer C. Labog, Chairperson of Kilusang Mayo Uno, and inrepresentation of others, including minors or generations yet unborn, whoseaddress is at #63 Narra Street, Project 3, Quezon City;

5.14.Joan May E. Salvador, Secretary-General of Gabriela, and inrepresentation of others, including minors or generations yet unborn, whoseoffice address is at #35 Scout Delgado Street, Bgy. Laging Handa, Quezon

City;

5.15. Jose Erique A. Africa, and in representation of others, includingminors or generations yet unborn, whose address is at 95-A Melchor Street,Loyola Heights, Quezon City;

5.16.Theresa A. Concepcion, Earth Island Institute, and in

representation of others, including minors or generations yet unborn, whose

address isat 28 Akle Street, Project 3, Quezon City;

5.17.Mary Joan A. Guan, Executive Director of Center for Womens

Resources, and in representation of others, including minors or generations

yet unborn, whose address isat 127-B, Scout Fuentebella Street, Kamuning,

Quezon City;


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5.18. Nestor T. Baguinon, Ph.D., forest ecology, and in representation

of others, including minors or generations yet unborn, whose address is at

Kalikasan-Peoples Network for the Environment, c/o CEC, 26 MatulunginSt., Bgy Central, Quezon City;

5.19.A. Edsel F. Tupaz, public interest lawyer and lecturer on

international and comparative law, and in representation of others, including

minors or generations yet unborn, whose address is at #41-B N. Romualdez

Street, BF Homes Subdivision, Quezon City;

6. The Petitioners may be served with summons and other legalprocesses of this Honorable Court through their counsel of record, Atty. A.Edsel F. Tupaz, at 41-B N. Romualdez Street, BF Homes Subdivision,Quezon City 1120 and at 3

rdFlr. #1 Maaralin Street, Brgy. Central, Quezon

City.

7. Public Respondent Vice Admiral Scott H. Swift, Commanderof the United States Seventh Fleet, may be served with legal processes atEmbassy of the United States of America, 1201 Roxas Blvd., Manila;

8. Public Respondent Lt. Cmdr. Mark A. Rice, CommandingOfficer of the USS Guardian (MCM5) may be served with legal processes atEmbassy of the United States of America, 1201 Roxas Blvd., Manila;

9. Public Respondent Hon. President Benigno S. Aquino,Commander-in-Chief, Armed Forces of the Philippines, may be served withlegal processes at Malacaang Complex, Jose P. Laurel Sr., Manila;

10. Public Respondent Hon. Secretary Albert F. Del Rosario,Secretary, Department of Foreign Affairs, may be served with legalprocesses at 2330 Roxas Blvd., Pasay;

11. Public respondent Secretary Paquito Ochoa, Jr., ExecutiveSecretary, may be served with legal processes at the Office of the President,Premier Guest House Malacanang, Malacanang Palace Compound, J.P.Laurel St., San Miguel, Manila;

12. Public Respondent Hon. Voltaire T. Gazmin, Secretary,

Department of National Defense, may be served with legal processes at theOffice of the Secretary, Camp General Emilio f. Aguinaldo, Quezon City;


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13. Public Respondent Hon. Secretary Ramon Jesus P. Paje,Secretary, Department of Environment and Natural Resources, may beserved with legal processes at Visayas Avenue, Quezon City 1100;

14. Public Respondent Vice Admiral Jose Luis M. Alano,Philippine Navy Flag Officer in Command, Armed Forces of thePhilippines, may be served with legal processes at Naval Station Jose V.Andrada 2335 Roxas Blvd., Manila;

15. Public Respondent Admiral Rodolfo D. Isorena, Commandant,Philippine Coast Guard, may be served with legal processes at PCGHeadquarters, 139 25

thSt., Manila;

16. Public Respondent Commodore Enrico Efren Evangelista,

District Commander, Philippine Coast Guard Palawan, may be served withlegal processes at Barangay Liwanag, Port Area Puerto Princesa, Palawan;

17. Public Respondent Major Gen. Virgilio O. Domingo,Commandant of Armed Forces of the Philippines Command and GeneralStaff Course, andBalikatan2013 Exercise Co-Director, may be served withlegal processes at Camp General Emilio Aguinaldo, Quezon City, 1101;

18. Public Respondent Lt. Gen. Terry G. Robling, DeputyCommander, US Marine Corps Forces, Pacific, andBalikatan2013 ExerciseCo-Director, may be served with legal processes at the Embassy of theUnited States of America, 1201 Roxas Blvd., Manila;

STATEMENT OF FACTS

Tubbataha Reefs National Park

19. The Tubbataha Reefs Natural Park (TRNP) is located in the

middle of the Central Sulu Sea between 119 45 and 120 E longitude and8 45 - 9 00 N latitude. It is approximately 98 nautical miles (150kilometers) southeast of Puerto Princesa City, Palawan. Tubbataha is a partof the Municipality of Cagayancillo Islands. It is one-third of the straightdistance from Puerto Princesa to Zamboanga City in Mindanao. TRNP has atotal area of 130,028 hectares, including the North and South Reefs.TRNPs islets, seabed and airspace include an area of 97,030 hectares. Atrue copy of the Information Sheet on Tubbataha Reefs National MarinePark, as compiled by the Protected Areas and Wildlife Bureau- Departmentof Environment and Natural Resources (PAWB-DENR), is hereto attachedas Annex A.


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20. Tubbataha, a word which means a long reef exposed at lowtide, is considered the largest coral reef atoll in the Philippines. Tubbataha iscomposed of two large coral atollsthe north atoll and the south atollandthe Jessie Beazley Reef, a smaller coral structure about 20 kilometres northof the atolls. The park contains roughly 10,000 hectares of coral reef, lyingat the heart of the Coral Triangle the global center of marine biodiversity.Scientists have been visiting these reefs since the 1980s, and their researchhas shown that Tubbataha Reefs Natural Park is home to no less than: 600species of fish, 360 species of corals (about half of all coral species in theworld), 11 species of sharks, 13 species of dolphins & whales, 100 speciesof birds, and also nesting Hawksbill and Green sea turtles,

2 which also

makes the area a biodiversity hotspot.

21. A wide range of fishing activities are carried out around the

reefs including the traditional hook and line fishing, commercial trawling fortuna, spear fishing, offshore long lines, aquarium fish collection and generalreef gleaning near shore. Indigenous inhabitants of the Cagayancillo regionalso periodically visit the reefs to collect the eggs of nesting birds such asthe boobies. No permanent inhabitants are found inside the Park. Duringfishing seasons, however, the indigenous inhabitants of Cagayancillo andfishermen from other parts of the country establish temporary shelter in thearea.3

22. Tubbataha protected area supports the fishing communities ofthe Sulu Sea by means of direct spillover of fish into surrounding waters orproviding food for fish living in the open sea. The connectivity of the SuluSea to other coastal ecosystems like mangroves and seagrasses where larvaefrom adult fish and invertebrates in the reef can be found. As aconsequence, impaired functioning of a reef has far-reaching effectsaffecting commercially important ecosystems. Moreover, these services arethe main sources of livelihood for poor coastal communities. Hence, theseresource-dependent communities will bear the brunt of the loss of the coral

reefs provisioning services.

23. Dolar and Alcala (1993) hypothesized that the northeastmonsoon winds contribute to the predominantly westward movement of thecurrents in the Sulu Sea, and that this westward flow of the current helpstransport fish and decapod eggs and larvae to the eastern coast of PalawanIsland.

4 Thus, Palawan reefs and Tubbataha reefs may be biologically

interconnected. It can be reasonably assumed that the Tubbataha Reefs arean important source of larvae for coral reef fish populations in eastern

2 Biodiversity, Tubbataha Reefs Natural Park, available at http://tubbatahareef.org/wp/biodiversity, lastaccessed on 6 April 2013; Songco, Angelique and Katherine Jack, Tubbataha Praymer, TubbatahaProtected Area Management Board, 2010.3See Annex A.

4Dolar, L. L. and A. C. Alcala (1993), Notes on the Ichtyoplankton and Marine Mammals of the Sulu Sea,

Philippines, Silliman Journal, 36:2, p. 43-57.


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Palawan. Palawan contributes a sizeable proportion of the nations total fishcatch.5 This finding was reinforced by the study on connectivity conductedby Campos et al. (2008) proving that TRNP is a source and sink of fish anddecapod larvae to the eastern coast of Palawan, enriching fisheries in thearea. These include commercial fish species such as tunas, jacks andgroupers. The resilience of reefs is inextricably linked to factors thatinfluence the growth, reproduction and survival of key functional groups oncoral reefs. The assumption is that well connected reef systems generallytake 10 to 20 years to fully re-establish after a massive disturbance(Fabricius et al 2007). A true copy of this Study is attached as Annex B.

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24. In 2007, the University of the Philippines Visayas conductedan important study on the distribution and dispersal of larvae in the Sulu

Sea. They discovered that Tubbataha Reefs, Jessie Beazley and Cagayancilloare key sources of coral and fish larvae, seeding the greater Sulu Sea.Tubbataha Reefs have a decisive role in sustaining the fisheries insurrounding areas, providing food and livelihood for hundreds of thousandsof Filipinos.

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25. The TRNP is one of the top SCUBA diving destinations in thePhilippines. Although the reefs are not easily accessible, many local andforeign divers visit the reefs usually between March and June. Divingcontinues until the end of the southwest monsoon but is limited after June.Snorkeling is possible in all shallow portions of the reef. TRNP is alsobecoming a popular sport fishing area.

26. There have been adverse factors affecting the ecologicalcharacter of the site prior to the grounding of the USS Guardian, includingphysical damage on the reef from the rampant use of destructive fishingusing dynamite and cyanide; observed coral rubble in areas where blastfishing occurred; and minor anchor damage in areas frequented by diveboats and fishermen.8

27. The following conservation measures were taken to manage andprotect the TRNP, prior to the creation of the Tubbataha Protected AreaManagement Board (TPAMB) in 1999:

27.1.Tubbataha was proclaimed as a National MarinePark by virtue of Proclamation No. 306 by then PresidentCorazon C. Aquino in 1988 to protect and preserve the coral

5See Annex A.

6 Aquino, Ma. Theresa R., Rowell C. Alarcon and Maria Retchie C. Pagliawan._____Vulnerability andResilience Assessment of Tubbataha Reefs Natural Park , available at http://www.marineworldheritage-unesco.org/wp-content/uploads/2012/01/Vulnerability-and-Resilience-Ass ess ment-of-Tubbataha-Reefs-Natural-Park-Philippines_full-paper-english.pdf, last accessed on 13 April 2013.7 Global Ecological Significance, Tubbataha Reefs Natural Park,

http://tubbatahareef.org/wp/global_ecological_significance, last accessed on 6 April 2013.8See Annex A.
http://www.marineworldheritage-unesco.org/wp-content/uploads/2012/01/Vulnerability-and-Resilience-Assessment-of-Tubbataha-Reefs-Natural-Park-Philippines_full-paper-english.pdfhttp://www.marineworldheritage-unesco.org/wp-content/uploads/2012/01/Vulnerability-and-Resilience-Assessment-of-Tubbataha-Reefs-Natural-Park-Philippines_full-paper-english.pdfhttp://www.marineworldheritage-unesco.org/wp-content/uploads/2012/01/Vulnerability-and-Resilience-Assessment-of-Tubbataha-Reefs-Natural-Park-Philippines_full-paper-english.pdfhttp://www.marineworldheritage-unesco.org/wp-content/uploads/2012/01/Vulnerability-and-Resilience-Assessment-of-Tubbataha-Reefs-Natural-Park-Philippines_full-paper-english.pdfhttp://www.marineworldheritage-unesco.org/wp-content/uploads/2012/01/Vulnerability-and-Resilience-Assessment-of-Tubbataha-Reefs-Natural-Park-Philippines_full-paper-english.pdfhttp://www.marineworldheritage-unesco.org/wp-content/uploads/2012/01/Vulnerability-and-Resilience-Assessment-of-Tubbataha-Reefs-Natural-Park-Philippines_full-paper-english.pdfhttp://www.marineworldheritage-unesco.org/wp-content/uploads/2012/01/Vulnerability-and-Resilience-Assessment-of-Tubbataha-Reefs-Natural-Park-Philippines_full-paper-english.pdf


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reef atoll with its abundant and diverse reef assemblage,including the marine turtles and water birds found roosting inthe area;

27.2. In 1990, a Memorandum of Agreement was forgedinto by the DENR and Tubbataha Foundation for the protection,conservation and preservation of the pristine condition of themarine resources for sustenance of the marine life in Tubbatahaand vicinity alongside the development of the recreationpotential of the marine park under the concept of ecotourism forthe benefit and enjoyment of the local and foreign tourist and ofthe present and future generations.

27.3.A 5-year framework plan was prepared by theProtected Areas and Wildlife Bureau and the TubbatahaFoundation in 1992 to provide direction in the management ofthe Park. The plan was not implemented due to lack of funds.

27.4.A Presidential Task Force for TRNP was formed in1995, co-chaired by the DENR Secretary and the PalawanCouncil for Sustainable Development. The Task Forceproduced a one-year interim action plan to protect the reefs.The plan was envisioned to set the stage for the developmentand actual implementation of a sustained, effective and long-term management that would ensure the conservation of theresources of Tubbataha.

27.5.The Environmental Legal Assistance Center, aPalawan-based NGO, is engaged in the prosecution of violatorsof environmental laws, legal defense of people harassed bythese violators of environmental laws and the conduct paralegaltraining. The participation of NGOs complements government

efforts in the conservation of Tubbataha Reefs.9

28. TRNP was bestowed a distinct honor when UNESCO includedthe Park on the World Heritage List on 11 December 1993. It wasrecognized as one of the Philippines oldest ecosystems, containing excellentexamples of pristine reefs and a high diversity of marine life. It is also animportant habitat for internationally threatened and endangered marinespecies. UNESCO cited Tubbatahas outstanding universal value as animportant and significant natural habitat for in situ conservation ofbiological diversity; an example representing significant on-goingecological and biological processes; and an area of exceptional natural

9See Annex A.


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beauty and aesthetic importance.10

In particular, UNESCO lists thefollowing criteria in its decision to inscribe TRNP as a World Heritage Site:

Criterion (vii): Tubbataha Reefs Natural Park containsexcellent examples of pristine reefs with a high diversity ofmarine life. The property includes extensive reef flats andperpendicular walls reaching over 100m depth, as well as largeareas of deep sea. The remote and undisturbed character of theproperty and the continued presence of large marine fauna suchas tiger sharks, cetaceans and turtles, and big schools of pelagicfishes such as barracuda and trevallies add to the aestheticqualities of the property.

Criterion (ix): Tubbataha Reefs Natural Park lies in a uniqueposition in the middle of the Sulu Sea and is one of thePhilippines oldest ecosystems. It plays a key rolein the processof reproduction, dispersal and colonization by marineorganisms in the whole Sulu Sea system, and helps supportfisheries outside its boundaries. The property is a naturallaboratory for the study of ecological and biological processes,displaying the ongoing process of coral reef formation, andsupporting a large number of marine species dependent on reefecosystems. The presence of top predator species, such as tigerand hammerhead sharks, are indicators of the ecologicalbalance of the property. The property also offers ademonstration site to study the responses of a natural reefsystem in relation to the impacts of climate change.

Criterion (x): Tubbataha Reefs Natural Park provides animportant habitat for internationally threatened and endangeredmarine species. The property is located within the CoralTriangle, a global focus for coral biological diversity. The reefs

of the property support 374 species of corals, almost 90% of allcoral species in the Philippines. The reefs and seas of theproperty also support eleven species of cetaceans, elevenspecies of sharks, and an estimated 479 species of fish,including the iconic and threatened Napoleon wrasse. Theproperty supports the highest population densities known in theworld for white tip reef sharks. Pelagic species such as jacks,tuna, barracuda, manta rays, whale sharks and different speciesof sharks also are common here and the property is a veryimportant nesting, resting and juvenile development area fortwo species of endangered marine turtles: green turtles andhawksbill turtles. There are seven breeding species of seabirdsand Bird Islet and South Islet are breeding grounds to seven

10Global Ecological Significance, supra .


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resident and endangered breeding species of seabirds. Thecritically endangered Christmas Island Frigatebird is a regularvisitor to the property.

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29. TRNP was included in 1999 in the Ramsar List under theRamsar Convention, or the Convention on Wetlands (Ramsar, Iran, 1971).

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30. Tubbatha Protected Area Management Board (TPAMB) is thepolicy-making body for the Tubbataha Reefs. The Board consists of 20members from national and local governments, the academe, and the privatesector, all of which are considered stakeholders in the future of Tubbataha.The Tubbataha Management Office (TMO), which is based in Puerto

Princesa City, serves as the TPAMBs executive arm, carrying out day-to-day park administration.

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31. The ranger station perched on the southernmost tip ofTubbatahas North Atoll is home to a combined team of 10-12 men from thePhilippine Navy, Philippine Coast Guard (PCG), Municipality ofCagayancillo and the TMO. Stationed for two months at a time, 130kilometres from the nearest inhabited islands, their job is to protect the parkfrom illegal activities including fishing and collection of other marine lifesuch as top shells (Trochus niloticus). Their work includes: regular patrolsaround the park; conducting scientific research and monitoring; briefingvisitors during the dive season; surface and underwater cleanups; andreporting and responding to unusual incidents, like crown-of-thorns starfishinfestations.

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32. On 6 April 2010, the Philippine government approved andpromulgated Republic Act No. 10067 or the Tubbataha Reefs Natural Park(TRNP) Act of 2009. The law establishes TRNP in the province of Palawanas a protected area under the NIPAS Act (R.A. 7586).

USS Guardi an

33. The USS Guardian (MCM-5) is the fifth Avenger Class MineCountermeasures ship to join the U.S. Navys fleet and is the second to bearthe name Guardian. Her mission is to counter the threat to U.S. forces andallies from all types of naval mines. The USS Guardian is capable of mine

11 Tubbataha Reefs Natural Park, UNESCO World Heritage Centre, http://whc.unesco.org/en/list/653,

last accessed on 6 April 2013.12 See The Annotated Ramsar List: Philippine, available at http://www.ramsar.org/cda/en/ramsar-documents-list-anno-philippines/main/ramsar/1-31-218%5E16085_4000_0__, last accessed on 13 April2013.13 Management, Tubbataha Reefs Natural Park, http://tubbatahareef.org/wp/management, last accessedon 6 April 2013.14

Marine Park Rangers, Tubbataha Reefs Natural Park,http://tubbatahareef.org/wp/management#marine_park_rangers, last access ed on 6 April 2013.
http://www.ramsar.org/cda/en/ramsar-documents-list-anno-philippines/main/ramsar/1-31-218%5E16085_4000_0__http://www.ramsar.org/cda/en/ramsar-documents-list-anno-philippines/main/ramsar/1-31-218%5E16085_4000_0__http://www.ramsar.org/cda/en/ramsar-documents-list-anno-philippines/main/ramsar/1-31-218%5E16085_4000_0__http://www.ramsar.org/cda/en/ramsar-documents-list-anno-philippines/main/ramsar/1-31-218%5E16085_4000_0__


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detection, mine neutralization and mine clearance in strategic U.S. andforeign ports and key ocean areas in order to maintain vital commercialshipping lanes. USS Guardian is assigned to Amphibious Forces SeventhFleet, forward deployed to Sasebo, Japan.

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34. One of fourteen Avenger Class ships, Guardian wascommissioned on December 16, 1989. To accomplish her minecountermeasures mission, she is equipped with an AN/SQQ-32 sonar systemand an Alliant Techsystems AN/SLQ-48 Mine Neutralization robot. The hullis constructed of wood laminated with layers of fiberglass. Propulsion isprovided by 4 Isotta-Fraschini 600HP engines connected to two controllablepitch propellers. Guardian's length is 224 feet, with a width of 39 feet and adisplacement of 1,300 tons. Her maximum speed is around 14 knots.

35. Colorable authority for the USS Guardians presence inPhilippine internal waters traces itself to the Visiting Forces Agreement.

36. On 17 January 2013, the USS Guardian ran aground onTubbataha Reef while transiting the Sulu Sea, approximately 130 kmsoutheast of Palawan after completing a port call at the former US navalbase of Subic Bay, Olongapo City and en route to her next port of call inIndonesia.

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37. According to a statement by the U.S. 7th Fleet, initial efforts tofree USS Guardian during high tide were not successful. As a precautionarymeasure, 72 of the 79 total crewmembers were transferred by small boat tothe MV C-Champion, a Military Sealift Command chartered ship on 18January 2013. A small complement of engineering and bridge personnelremained aboard to work with a U.S. Navy team in an attempt to freeGuardian with minimal environmental impact. The remaining seven Sailors,which included Commanding Officer Lt. Cmdr. Mark A. Rice, were to betransferred if conditions became unsafe.

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38. The USS Guardian did not have a permit to enter TRNP. Thevessel did not inform marine park rangers of its presence and situation andwas later discovered only through radar at 4:00 A.M. on 17 January 2013:

Marine park rangers radioed the USS Guardian, introducingthemselves as law enforcers. They informed them of theirviolations and announced their intention to board the vessel.

15 About Us, USS Guardian, http://www.guardian.navy.mil/, last accessed on 6 April 2013.16 USS Guardian Runs Aground in the Sulu Sea, Commander, U.S. 7th Fleet,http://fleetstandard.wordpress.com/2013/01/17/uss-guardian-runs-aground-in-the-sulu-sea/, last accessedon 6 April 2013.17

Crew Transferred from Grounded USS Guardian As Safety Precaution, Commander, U.S. 7th Fleet,http://fleetstandard.wordpress .com/2013/01/18/crew-transferred-from-grounded-uss-guardian-as-safety-precaution/, last acces sed on 6 April 2013.


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However, upon approaching, they saw soldiers taking positionwith their weapons and, since radio contact was unanswered,the boarding protocol was aborted.

x x x x

The act of preventing the marine park rangers fromfulfilling their duty to board vessels which illegally enter thepark demonstrated lack of good faith and disrespect forPhilippine authority and its agents.

Upon becoming informed of the grounding the TMOimmediately reported the incident to the Philippine Naval

Forces and Coast Guard and requested assistance.18

39. On 19 January 2013, U.S. 7th Fleet Commander Vice Adm.Scott Swift expressed regret over the grounding of USS Guardian (MCM 5)on Tubbataha Reef in the Sulu Sea. As a protector of the sea and a Sailormyself, I greatly regret any damage this incident has caused to theTubbataha Reef, said Vice Adm. Swift. We know the significance of theTubbataha Reefs Natural Park and its importance as a World Heritage Site.Its protection is vital, and we take seriously our obligations to protect andpreserve the maritime environment.19

40. Vice Adm. Swift further announced that Rear Adm. Thomas F.Carney, Commander of Logistics Group Western Pacific, was to take overon 21 January 2013 as the on-scene commander to oversee the Guardianrecovery operations. Carney embarked the destroyer USS Mustin (DDG 89),which along with several other U.S. Navy support vessels, is focused onpreventing any further environmental damage to the reef and surroundingmarine environment.

41. On 25 January 2013, US Ambassador to Manila Harry K.Thomas said, On behalf of the United States government, I wish to conveyto the Philippine government and people my profound regret over thegrounding of the USS Guardian on Tubbataha Reef. This was anunfortunate accident, and I recognize the legitimate concerns over thedamage caused to a unique and precious wonder of nature, internationallyrecognized for its beauty and biological diversity.20

18 Tubbataha Demands Justice for the Reefs, Tubbataha Reefs National Park,

http://tubbatahareef.org/news/622, last accessed on 6 April 2013.19 Navy Commander Expresses Regret Concerning USS Guardian Grounding, Commander, U.S. 7thFleet, http://fleetstandard.wordpress.com/2013/01/20/navy-commander-expresses-regret-concerning-uss-guardian-grounding/, last access ed on 6 April 2013.20

Statement by U.S. Ambassador Harry K. Thomas, Jr. On the Grounding of the USS Guardian, Manila,January 25, 2013, http://manila.usembassy.gov/ambstatementtubbataha.html , last accessed on 15 April2013.
http://manila.usembassy.gov/ambstatementtubbataha.htmlhttp://manila.usembassy.gov/ambstatementtubbataha.html


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42. On 25 January, reports purportedly announced that a U.S.Navy-led salvage team completed removing all diesel fuel from the tanks ofGuardian; that allegedly no fuel had leaked since the grounding; thatapproximately 15,000 gallons of fuel were transferred to the contractedMalaysian tug Vos Apollo during controlled defueling operations thatoccurred over two days.

21

43. In late January 2013, the U.S. Navy, purportedly worked inclose cooperationwith the PCG, Philippine Navy, TPAMB, and TubbatahaReef Park Rangers, while assessment teams, according to reports,purportedly continued to inspect the condition of Guardian and theTubbataha Reef in order to develop a plan to safely remove the ship. By 28

January 2013, it was reported that the salvage crew had transferredapproximately 15,000 gallons of diesel fuel, 671 gallons of lubricating oil,dry food stores, paints and solvents contained in storage lockers, and thepersonal effects left behind by the crew from the ship.22

44. On 29 January 2013, the Philippine Coast Guard issued Noticeto Mariners No. 011-2013 prohibiting leisure trips to Tubbataha andadvising all ships/watercrafts transiting the vicinity to take necessaryprecautionary measures. The Notice further states that the salvage andmonitoring operations of grounded USS Guardian are bounded by thefollowing coordinates:

Point A Latitude 08 degs 43 mins 13 secsNorth

Longitude 119 degs 45 mins 37 secs EastPoint B Latitude 08 degs 41 mins 38 secsNorth

Longitude 119 degs 50 mins 48 secs EastPoint C Latitude 08 degs 53 mins 32 secs

NorthLongitude 120 degs 03 mins 24 secs East

Point D Latitude 08 degs 58 mins 14 secsNorth

Longitude 120 degs 03 mins 05 secs EastPoint E Latitude 09 degs 06 mins 11 secsNorth

Longitude 119 degs 48 mins 18 secs East

21 Salvage Team Removes Fuel from Grounded USS Guardian, Commander, U.S. 7th Fleet,http://fleetstandard.wordpress.com/2013/01/25/salvage-team-removes-fuel-from-grounded-uss-guardian/,last accessed on 6 April 2013.22

Navy Removes Harmful Material from Grounded USS Guardian, Commander, U.S. 7th Fleet,http://fleetstandard.wordpress.com/2013/01/28/navy-removes-harmful-material-from-grounded-uss-guardian/, last acces sed on 6 April 2013.


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Point F Latitude 09 degs 04 mins 55 secsNorth

Longitude 119 degs 45 mins 06 secsEast

23

45. On 5 February 2013, TPAMB announced that the body andother stakeholders had endorsed the salvage plan submitted by SMITSingapore, a salvage company contracted by the U.S. Navy. In itsendorsement, as the announcement goes, the Board presented the terms of itssupport for the plan. These include the conduct of joint ecologicalassessments by the U.S. Navy, PCG, and representatives of TMO;installation of two on-board observers from the TMO; use of ecologicallysound materials; and accountability of all ships captains for compliance to

park rules by all crew.24

46. On 11 February 2013, official sources stated that the U.S. Navypurportedly submitted a revised salvage plan taking into account the additionof the heavy lift ship-borne crane M/V Jascon 25 from Malaysia in salvageoperations, after the SMIT Borneo from Singapore experienced technicaldifficulties due to rough sea conditions.

25

47. Crane operations began on 22 February 2013 as the weather andsea conditions affected by Storm Crising had allegedly become morecooperative to prepare the grounded ship to be dismantled and removed fromTubbataha Reef.

26The salvage team began by removing structures and loose

equipment such as cable reels, part of the ships mast, mine counte rmeasureequipment and about eighty percent of materials from the fantail. On 25February, equipment removed from USS Guardian was transferred to BargeS-7000, towed by Malaysian salvage vessel Trabajador 1. Official reportsstated that from late February to mid-March, the funnel and mast were cut;the bridge deck was lifted; and the propulsion diesel engines, ship servicediesel generators, and gas turbine generator were removed and transferred to

a barge that will bring the wreck to Sasebo, Japan upon completion of thesalvage operation. The Singaporean salvage team cleared and drilled the hullin preparation for chopping and lifting. As planned, -- or so official reportsstate it was cut into four sections: the bow, the AMR, the Main MachineryRoom (MMR), and the stern.

27

23 Notice to Mariners No. 011-2013, Philippine Coast Guard,http://www.coastguard.gov.ph/index.php?option=com_content&view=article&id=2212, last access ed on 6April 2013.24

Salvage operation sets out in Tubbataha, Tubbataha Reefs National Park,http://tubbatahareef.org/news/638, last accessed on 6 April 2013.25 Salvage operations on hold for USS Guardian, Tubbataha Reefs National Park,http://tubbatahareef.org/news/638, last accessed on 6 April 2013.26 Navy-Contracted Crane Vessel Begins Guardian Salvage Operations, Commander, U.S. 7th Fleet,http://fleetstandard.wordpress .com/2013/02/23/navy -contracted-crane-vessel-begins-guardian-salvage-

operations/ , last accessed on 6 April 2013.27

Sections of the USS Guardian lifted off Tubbataha, Tubbataha Reefs National Park,http://tubbatahareef.org/news/638, last accessed on 6 April 2013.


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48. On 26 February 2013, the U.S. Navy announced that USSWarrior (MCM-10) will deploy to U.S. 7th Fleet Forward Deployed NavalForces in Sasebo, Japan, to replace USS Guardian (MCM-5). Guardian hadbeen administratively decommissioned and stricken from the naval registryon 15 February 2013.

28

49. On 26 March 2013, the U.S. Navy and contracted salvagepersonnel embarked aboard M/V Jascon 25 began dismantling andsectioning the hull of the Ex-Guardian. The bow section was lifted andremoved from Tubbataha Reef to an awaiting barge. Along with the Jascon25, the USNS Safeguard (T-ARS 50), the SMIT Borneo, the Trabajador, theIntrepid and the Archon Tide remained on scene supporting the salvage

operation.29

50. On 30 March 2013, the U.S. Navy and contracted salvagepersonnel allegedly completed the removal of the Ex-Guardian. Accordingto the announcements, the final section of the hull, the stern sectionweighing approximately 250 tons, was lifted from reef. The team thenshifted their effort to collecting minor debris that remained on the reef.

30

51. In early April, a team of U.S. Navy divers and Filipino marineresearchers assessed the full damage of the grounding of the USS Guardian.The assessment methods were proposed by the Automated Rapid ReefAssessment System Project, a group funded by the Philippine Department ofScience and Technology. The assessment team announced plans to provideaccurate data on the grounding area as well as a visual record of thedamaged reefs, which can serve as reference for coral recovery andmonitoring. The team also announced plans to collect data to compare coralcover inside and outside the grounding area.

31

52. Previously, environmental group Greenpeace was fined PHP

384,000 (USD 6,857) in November 2005 for damaging a coral reef in theTRNP after its flagship Rainbow Warrior II ran aground. Greenpeace paidthe fine, but blamed the accident on outdated maps and provided by thePhilippine government. In a statement, Greenpeace said that there is a

28 USS Warrior to Deploy to Japan and Replace USS Guardian, Commander, U.S. 7th Fleet,http://fleetstandard.wordpress .com/2013/02/26/uss -warrior-to-deploy-to-japan-and-replace-uss-guardian/,

last accessed on 6 April 2013.29

Navy-Led Salvage Crew Starts Removing Guardian Hull, Commander, U.S. 7th Fleet,

http://fleetstandard.wordpress.com/2013/03/26/navy-led-salvage-crew-starts-removing-guardian-hull/, lastaccessed on 6 April 2013.30 Final Hull Section of Guardian Removed from Reef, Commander, U.S. 7th Fleet,http://fleetstandard.wordpress.com/2013/03/30/final-hull-section-of-guardian-removed-from-reef/, last

accessed on 6 April 2013.31

US shipwreck removed damage to be assessed, Tubbataha Reefs National Park,http://tubbatahareef.org/news/695, last accessed on 6 April 2013.


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serious need of updated maps and precise maritime charts of the TubbatahaReefs to avoid similar accidents.32

Response to Grounding of USS Guardian

53. In an official statement on 22 January 2013, TPAMBannounced its intention to serve the US Navy with a formal notice listingviolations of the above law in the grounding incident of January 17involving the USS Guardian.

33 TPAMB served formal notices to U.S.

Ambassador Harry K. Thomas, Jr. and to Rear Adm. Carney citing theTRNP of 2009 (R.A. 10067) and stating:

The violations which are evident at this time and

provided for in the Tubbataha Law are:

Section 19. Unauthorized entrySection 21. Non-payment of Conservation FeesSection 30. Obstruction of Law Enforcement Officer

The Park has suffered other damages, the extent of whichcannot be accurately estimated at this time. These violations arecovered by:

Section 20. Damages to the ReefSection 26 (g). Destroying, disturbing resources

We undertake this action without prejudice to the resultsof subsequent assessments that have yet to be conducted todetermine the extent of damage to the park and its resources asa direct result of the 17 January grounding, as well as incidentaldamage arising out of the ongoing retrieval operations.

Subsequent to ship retrieval and the assessment of coraldamage, the TPAMB intends to serve a second formal noticethat will quantify the value of destruction and the attendantfines as stipulated in the Tubbataha Law.

True copies of the formal notices from TPAMB are attached asAnnex C.

54. In a press briefing in Malacanang on 23 January 2013,Presidential spokesman Edwin Lacierda said that the Philippine government

32 A regrettable accident, Greenpeace International,http://www.greenpeace.org/international/en/news/features/rainbow_warrior_coral_reef/, last access ed on 6

April 2013.33

Tubbataha Management Board Official Statement on the USS Guardian Incident, Tubbataha ReefsNational Park, http://tubbatahareef.org/news/624, last accessed on 6 April 2013.


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is determined to observe the law protecting the Tubbataha Reefs and pressits claims for the damage caused by the USS Guardian. He further said thatthe Department of Foreign Affairs would discuss the countrys claims withUS officials after the ship is removed from the Tubbataha Reef.

34

55. By 28 January, most of the Guardians crew had left thePhilippines to its homeport in Sasebo Japan.

35

56. On 5 February 2013, President Benigno S. Aquino III said thatthe United States government would send Peace Corps volunteers to speedup the rehabilitation of the damaged Tubbataha Reef aside from thecompensation it promised. He mentioned that he has also met with USAmbassador Thomas and US Navy Rear Admiral Thomas Carney to discuss

the environmental crisis.36

57. According to a 1 April 2013 statement on the official website ofthe Commander of the U.S. Pacific Fleet at Pearl Harbor, Guardian CrewGets New Home as USS Warrior Arrives in Sasebo, Respondent Lt. Cmdr.Mark A. Rice, who was commanding officer of ex-Guardian, is now thecommanding officer of the USS Warrior, the new home of Ex-Guardiancrew. All ex-Guardian crew are now assigned to this ship.

37 Public

Respondent Rice introduced the crew to the new ship with an awardsceremony, and handed the crew members a letter of recognition. 38

58. After the meeting of Public Respondent Foreign AffairsSecretary Albert F. del Rosario with US Secretary of State John F. Kerry on2 April 2013, Public Respondent del Rosario announced that SecretaryKerry expressed his deep regret over the incident and that he reiterated thecooperation of the United States in addressing the damage caused by thegrounding.39

59. On 5 April 2013, marine scientists reported in a meeting of the

Tubbataha Protected Area Management Board (TPAMB) that the area of

34 Philippines to insist on claims for damages of Tubbataha Reef, Palace says, Office of the President ofthe Philippines, http://www.president.gov.ph/news/philippines -to-insist-on-claims-for-damages-of-

tubbataha-reef-palace-says/ , last acces sed on 6 April 2013.35

USS Guardian Crew Home; Ship Still Aground - Jan 29, 2013, http://www.military.com/daily-news/2013/01/29/uss-guardian-crew-home-ship-still-aground.html , last accessed on 14 Apr 2013.36 Aquino says US Government to send volunteers for immediate Tubbataha Reef recovery, Office of thePresident of the Philippines, http://www.president.gov.ph/news/aquino-says-us-government-to-send-volunteers -for-immediate-tubbataha-reef-recovery/ , last accessed on 6 April 2013.37

Guardian Crew Gets New Home as USS Warrior Arrives in Sasebo, By Mass Communication Specialist3rd Class Mackenzie P. Adams, Posted April 1, 2013. Source: Commander, US Pacific Fleet website,

http://www.cpf.navy.mil/news.aspx/030158, last accessed on 14 April 2013.38 Guardian Crew Gets New Home as USS Warrior Arrives in Sasebo , By Mass Communication Specialist3rd Class Mackenzie P. Adams, Posted April 1, 2013. Commander, US Pacific Fleet website,http://www.cpf.navy.mil/news.aspx/030158 , last accessed on 15 April 2013.39

US Reiterates Commitment to Address Grounding of USS Guardian, Full Cooperation on IndependentProbe by Phl, http://www.gov.ph/2013/04/03/us-reiterates-commitment-to-address-grounding-of-uss-guardian-full-cooperation-on-independent-probe-by-the-philippines/last accessed on 15 April 2013
http://www.military.com/daily-news/2013/01/29/uss-guardian-crew-home-ship-still-aground.htmlhttp://www.military.com/daily-news/2013/01/29/uss-guardian-crew-home-ship-still-aground.htmlhttp://www.cpf.navy.mil/news.aspx/030158http://www.cpf.navy.mil/news.aspx/030158http://www.gov.ph/2013/04/03/us-reiterates-commitment-to-address-grounding-of-uss-guardian-full-cooperation-on-independent-probe-by-the-philippines/http://www.gov.ph/2013/04/03/us-reiterates-commitment-to-address-grounding-of-uss-guardian-full-cooperation-on-independent-probe-by-the-philippines/http://www.gov.ph/2013/04/03/us-reiterates-commitment-to-address-grounding-of-uss-guardian-full-cooperation-on-independent-probe-by-the-philippines/http://www.gov.ph/2013/04/03/us-reiterates-commitment-to-address-grounding-of-uss-guardian-full-cooperation-on-independent-probe-by-the-philippines/http://www.cpf.navy.mil/news.aspx/030158http://www.cpf.navy.mil/news.aspx/030158http://www.military.com/daily-news/2013/01/29/uss-guardian-crew-home-ship-still-aground.htmlhttp://www.military.com/daily-news/2013/01/29/uss-guardian-crew-home-ship-still-aground.html


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damage to the coral reeds caused by the grounding of the USS Guardianmeasures 2,345.67 square meters. TPAMB expects the payment of PhP58.4million or USD 1.5 million, in fines by the US Government.40

60. After the removal of the Ex-Guardian, the PhilippineInvestigating Team was merely given navigation maps and other documentsby the US Navy.41

61. To date, the Investigating Team still has not been able to accessthe records of the ex-Guardiannor has it conducted an investigation amongEx-Guardian officers and crew, including herein US Respondents.

62. The TMO plans to contact the US Navy and the US Embassy in

Manila to give the details of the violations of the Tubbataha Act (RepublicAct 10067) in relation to the grounding including the total penalties of USD1.5 million for such violations. The TMO plans to send a second notice tothe U.S. Embassy, imposing mandatory fines totaling PHP 58 million (USD1.4-1.5 million), for violations under the Tubbataha Reefs Natural Park Actof 2009 (R.A. 10067).

42

New Developments

63. On April 8, a Chinese boat ran aground at 11:40 p.m. about 1.1

nautical miles east of the marine parks ranger station.

64. It was reported that charges of poaching were filed against thetwelve Chinese fishermen grounded Tubbataha on the night of April8. They were detained in the provincial jail facility in Puerto Princesa,Palawan. Chinese Consul General Shen Zicheng and 3rd Secretary Li Jianflew to Palawan on April 9 and held a closed-door meeting with WesternCommand officials while the detainees were undergoing a medicalcheckup.43

65. On April 10, the official website of the Office of the Presidentannounced in a statement, Aquino Vows Swift Legal Action to RecentTubbataha Reef Grounding, and referring to herein Public RespondentPresident Benigno S. Aquino III, that the government will execute Republic

40 Final Measurement of Coral Damage issued on April 8, 2013 by the Tubbataha Management Office,

http://tubbatahareef.org/news/699, last accessed on 15 April 2013.41

US Navy Turns Over Digital Navigation Maps and other Documents to PHL Investigating Team,

Monday, 08 April 2013 12:20, http://www.dfa.gov.ph/index.php/newsroom/dfa-releases /7828-us-navy-turns-over-digital-navigation-maps-and-other-documents -to-phl-investigating-team , last accessed on 14April 2013.42 TRNP, Final Measurement of Coral Damage, http://tubbatahareef.org/news/699 , last accessed on 14

April 2013; Philippines asking $1.4M from US for Tubbataha Reef damage, supra.43

Inquirer.net, 12 Chinese seamen charged, http://globalnation.inquirer.net/71791/chinese -caught-in-tubbataha-face-poaching-bribery-raps,last accessed on 14 April 2013.
http://tubbatahareef.org/news/699http://www.dfa.gov.ph/index.php/newsroom/dfa-releases/7828-us-navy-turns-over-digital-navigation-maps-and-other-documents-to-phl-investigating-teamhttp://www.dfa.gov.ph/index.php/newsroom/dfa-releases/7828-us-navy-turns-over-digital-navigation-maps-and-other-documents-to-phl-investigating-teamhttp://tubbatahareef.org/news/699http://globalnation.inquirer.net/71791/chinese-caught-in-tubbataha-face-poaching-bribery-rapshttp://globalnation.inquirer.net/71791/chinese-caught-in-tubbataha-face-poaching-bribery-rapshttp://globalnation.inquirer.net/71791/chinese-caught-in-tubbataha-face-poaching-bribery-rapshttp://globalnation.inquirer.net/71791/chinese-caught-in-tubbataha-face-poaching-bribery-rapshttp://tubbatahareef.org/news/699http://www.dfa.gov.ph/index.php/newsroom/dfa-releases/7828-us-navy-turns-over-digital-navigation-maps-and-other-documents-to-phl-investigating-teamhttp://www.dfa.gov.ph/index.php/newsroom/dfa-releases/7828-us-navy-turns-over-digital-navigation-maps-and-other-documents-to-phl-investigating-teamhttp://tubbatahareef.org/news/699


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Act 10067 because this law considers anyone entering the protected zone tobe a poacher.44

USS Port Royal Grounding

66. On 5 February 2009, the USS Port Royal, a guided missilecruiser, ran aground atop the coral reef of the Honolulu Airports ReefRunway in depths of approximately 14 to 22 feet. According to the State ofHawaii, the coral reef was clearly marked on all navigational charts. A truecopy of the Letter from State of Hawaii DLNR is attached as Annex DHowever, according to the Navy Safety Investigation Board, the fathometerfor determining water depth on the Port Royal was broken, according to aU.S. Navys Safety Investigation Boards report (obtained by the Honolulu

Advertiser) on the accident. The findings also cite a misinterpretednavigation system, a sleep-deprived skipper, faulty equipment, and aninexperienced bridge team as factors that led to the grounding.

45

67. The vessel was lodged atop the reef for three full days duringwhich several attempts were made to remove the vessel, including attemptsby various other vessels (the salvage ship USNS Salvor (T-ARS-52), theMotor Vessel Dove and seven U.S. Navy and commercial tugboats) to tugthe vessel free using tow lines. In short, the Port Royal was towed out of thedamaged area. The Port Royalwas finally removed on 9 February 2009. Atrue copy of the Navy News Release substantiating this fact, is attached asAnnex E.

68. With regard to the primary damage caused by the USS PortRoyal grounding on the Hawaii reef, a letter sent from the State of HawaiiBoard of Land and Natural Resources to Vice Admiral Bruce E. MacDonald,Judge Advocate General, dated 31 March 2009 which discussed themitigation and compensation of damages states:

The area where the USS Port Royal ran aground was a complexspur and groove fringing reef with a relatively high biodiversityof live coral and live rock. Numerous printed resources and theevaluation by various coral reef biologists concur that this areawas one of the finest remaining reef habitats around the islandof Oahu.

The grounding site has been mapped and injuries have beendocumented by the State, its expert witnesses, USFWS, NOAA,

44 Office of the President of the Philippines Webs ite,Aquino Vows Swift Legal Action to Recent TubbatahaReef Grounding ,10 April 2013, http://www.president.gov.ph/news/aquino-vows-swift-legal-action-to-recent-tubbataha-reef-grounding,last accessed on 15 April 2013.45

Hawaii-bas ed ships grounding detailed, The Honolulu Advertiser,http://the.honoluluadvertiser.com/article/2009/Jul/07/ln/hawaii907070350.html, last accessed on 9 April2013.
http://www.president.gov.ph/news/aquino-vows-swift-legal-action-to-recent-tubbataha-reef-groundinghttp://www.president.gov.ph/news/aquino-vows-swift-legal-action-to-recent-tubbataha-reef-groundinghttp://www.president.gov.ph/news/aquino-vows-swift-legal-action-to-recent-tubbataha-reef-groundinghttp://www.president.gov.ph/news/aquino-vows-swift-legal-action-to-recent-tubbataha-reef-grounding


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and CSA. All parties are in agreement as to the location of themain injury scar. The main injury scar covers an area ofapproximately 8,000 square meters. The documentation of thefull area and extent of the damage associated with thegrounding has not been completed, but it is estimated to coveran area approximately 25,000 to 40,000 square meters(approximately 6-10 acres). These estimates are preliminaryand will be modified based on analysis of State, USFWS, andNOAA data.

The document also states that the grounding resulted in extensiveprimary damage to the reef structure, coral, and live rock, as well as the lossof habitat for green sea turtles, Chelonia mydas, listed as an endangered

species pursuant to the Endangered Species Act of 1973. A true copy of thisdocument is attached as Annex F.

69. The U.S. Navys environmental remediation of the areacomprised four phases: Phase 1 involved Navy divers who performedemergency work on behalf of the state; Phase 2 was an underwater surveyand assessment contracted for by the Navy; Phase 3 involved collecting,caching, and relocating coral colonies that were displaced by the groundingof Port Royal; and Phase 4 was the removal of coral rubble created by thegrounding. A true copy of the DLNR News Release is attached as Annex G.

70. Restoration according to the US Navys remediation plan,according to the four phases above, was estimated at that time the damage tobe at $25 million.46

71. On February 2011, the U.S. Navy and State of Hawaiiannounced that they had reached an USD 8.5 million settlement on the coralreef damage caused by the grounding of the USS Port Royal in 2009. TheNavy had previously spent USD 6.5 million restoring the reef. Thus, the

settlement increased the amount the Navy had expended to a total of USD 15million, according to a news release.

47

72. The following is a comparative analysis of the two groundingincidents under a plausibility standard:

USS Guardian (2013 Grounding) USS Port Royal (2009 Grounding)

46 See Annex F.47

Navy to pay state $8.5 million for Port Royal grounding, The Honololu Star-Advertiser,http://www.staradvertiser.com/news/breaking/115332679.html?id=115332679, last accessed on 9 April2013.


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Location:Tubbataha Reefs NaturalPark (Sulu Sea), World Heritage Siteas of 1993

48

Location:Reef Runway at HonoluluInternational Airport (Oahu,Hawaii)

49

Main injury scar: est. 2,345.67square meters

Main injury scar:est. 8,000 squaremeters

50

Proposed restoration value:USD1.4 M

(Php 58 M)

Proposed restoration value: USD 25M to 40 M, with disclaimer that costestimates are being updated.

Ratio unadjusted for biodiversityconcentration:

USD 596 / sq. m.

Ratio unadjusted for biodiversityconcentration:

Conservative - USD 3,125 / sq. m.

Upper regionUSD 5,000 / sq. m.

World Heritage Listed:

YesSince 1993.

World Heritage Site:

No.

Ramsar Wetlands of International

Importance Listed:

YesSince 1999.

Ramsar Wetlands of International

Importance Listed:

No.

Settlement value: None, to date. Settlement value:USD 6.5 M incoral reef restoration from 2009-2011, and USD 8.5M settlement in2011total of USD 15 million.Atthe time, this was the largestsettlement ever arrived at by the USNavy.

48 More information on the Tubbataha Reefs available at: http://whc.unesco.org/en/list/653.49

More information on the Runway Reef available at: http://hawaii.gov/hnl/airport-information/reef-runway.50

Owing perhaps to the dragging caused by the towing of the Port Royal.


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*Note that the foregoing settlementvalue is a pareto optimal falling

below the demand of the State ofHawaii.

Damage stages: Primary damageconsidered.

Damage stages: Primary, secondary,and tertiary damage, considered.

Biodiversity: TRNP is a uniqueexample of an atoll reef with a veryhigh densityof marine species; the

North Islet serving as a nesting sitefor birds and marine turtles.

The site has been considered thebiodiversity hotspot from Coral reefsworld wide, trumping the GreatBarrier Reef in biodiversity richness.World Heritage listed for thisfinding.

1000 species all up, including mantarays, lion fish, turtles.

+/- 600 species of tropical fish359 species of corals (+/- 50% of allcoral species in the world)

14 species of sharks including tigersharks, whitetip sharks, and blacktip

sharks. Whale sharks have also beensighted.

12 species of dolphins & whales

A nesting population of endangeredhawksbill and green sea turtles

Over 100 species of birds, includingrare migratory birds

Biodiversity:The Reef Runway is acomplex spur and groove fringingreef with a relatively high

biodiversity of live coral and liverock; also serving as a habitat forgreen sea turtles.

The high use of the region haspotentially compromised itsbiodiversity.

434 species or higher taxa (36 algae,1 spermatophyte, 338 invertebrateand 59 fish) from the 15 stationssampled (in Pearl Harbor). Ninety sixspecies, or 22%, are considered to beintroduced or cryptogenic.

Most of the introduced species (42%)occur in tropical or temperate oceansworldwide.

only 15%, with over half of these51

Plausible biodiversity concentration Plausible biodiversity concentration

51http://anstaskforce.gov/Documents /PearlHarbor.pdf
http://anstaskforce.gov/Documents/PearlHarbor.pdfhttp://anstaskforce.gov/Documents/PearlHarbor.pdf


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multiplier (closest proxy): 2.3

1000 species all up

* Incidence of endangered speciesunaccounted in this figure.

multiplier (closest proxy): 1(baseline)

434 species or higher

* Incidence of endangered species

unaccounted in this figure.

Ratio adjusted for biodiversityconcentration:

Conservative - USD 7,187 / sq. m.

(USD 3,125 / sq. m. x 2.3, usingPort Royal as baseline)

Upper regionUSD 11,500 / sq. m.(USD 5,000 / sq. m. x 2.3, usingPort Royal as baseline)

--

Total normative restoration value:

Conservative USD 16,858,330(USD 7187 / sq. m. x 2,345.67(est))

Upper regionUSD 26,975,205(USD 11,500 / sq. m. x 2,345.67(est))

Total normative restoration valueassumed to be equal to Hawaiis

Proposed restoration value - $25 Mto $40 M, with disclaimer.

* Actual settlement: USD 6.5 M incoral reef restoration from 2009-2011, and USD 8.5M settlement in2011total of USD 15 M.

Total normative restoration value inPeso terms ($1 = P 41.33 as of 14

Apr 2013)

Conservative Php 696,754,778

Upper regionPhp 1,114,885,222

U.S. Navy Regulations. Great Green Fleet.


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73. Under the Judge Advocate Generals Corps (OJAG) Code 11(Admiralty and Maritime Law), the Admiralty and Maritime LawDivision of the Judge Advocate General of the US Navy advises the fleetand Navy leadership on admiralty and maritime law issues while operating

the Navys admiralty claims and litigation office. The Division isresponsible for admiralty and maritime law matters, including claims andlitigation related to maritime torts, contract, salvage, international law,environmental law, and maritime legislation and regulations. Internally, theAdmiralty and Maritime Law Division is working to increase coordinationwith uniformed and civilian Navy lawyers in the fleet and improve thetraining of lawyers in the Division.

52

74. The Admiralty and Maritime Law Divisions administrative

claims and litigation practice carried a total of approximately 284 casesduring the one-year reporting period, from July 2010 to June 2011.

53

75. In the same reporting period (1 year), the Division adjudicated$24 million in administrative claims against the Navy. These includedsettlement of a major claim by the State of Hawaii for damage to a coralreef caused by the 2009 grounding of USS Port Royal near the Honolulu

International Airport, payment of claims for minor collision/allision

damage, wake damage, loss of fishing gear, damage caused ashore bycarrier based aircraft, and personal injury.54

76. The same (2011 JAG Report) stated that As of the end of thereporting period, there were several pending significant claims55 underOJAG Code 11 (Admiralty and Maritime Law). The Report also states:There was a substantial increase in the Divisions support to the litigationefforts of the Department of Justice (DOJ) Aviation and AdmiraltyOffice.56

77. The Division continually expanded its environmental practice,

continuing to participate in interagency working groups on implementationof the Sunken Military Craft Act (US) and the interpretation of lawsproviding for the protection of sunken vessels, advising on the protection ofsunken state craft of Germany, Japan, Spain, and the U.K., and resolvingclaims for natural resource damages. Working in support of the NavalHistory and Heritage Command, the Division helped recover or protectseveral artifacts of cultural significance, including the personal effects of aGerman sailor taken from the wreck of a World War II era U-boat off the

52 REPORT OF THE JUDGE ADVOCATE GENERAL OF THE [U.S.]NAVY T O THE AMERICAN BAR ASSOCIATION:2011 ANNUAL REPORT 8 (2011), available at http://www.jag.navy.mil/documents/ABAReport2011.pdf ,last accessed on 14 April 2013 [hereinafter 2011 JAG Report]53 Id.54

Id.55

Id.56

Id.
http://www.jag.navy.mil/documents/ABAReport2011.pdfhttp://www.jag.navy.mil/documents/ABAReport2011.pdfhttp://www.jag.navy.mil/documents/ABAReport2011.pdf


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U.S. coast and a tea set taken from USS Arizona. Division attorneys alsoworked closely with the Office of Legislative Affairs, Office of the AssistantSecretary of the Navy (Installations and Environment) and Military SealiftCommand to coordinate with the US Department of Defense position onlegislation to protect coral reefs and legislation to amend the SunkenMilitary Craft Act.

57

78. Under OJAG Code 12, the Environmental Law Division of theJudge Advocate General of the U.S. Navy focused on ocean policy as wellas environmental planning testing and training activities at-sea involvingfleets and the many organizations involved in research, development, testingand evaluation of existing and future systems.

58

79. Under OJAG Code 12, the U.S. Navy is required to conclude

environmental impact statement/overseas environmental impact statementsfor training activities in the Gulf of Mexico, the Northwest, the Gulf ofAlaska and testing activities in the Keyport range complex,59among others.

80. Under OJAG Code 15 (Claims and Tort Litigation), theClaims and Tort Litigation Division adjudicates tort claims under theFederal Tort Claims Act, the Military Claims Act, and the Foreign ClaimsAct. During the period of July 2010 through June of 2011, the Divisionprocessed more than 16,300 claims against the United States andapproximately 38,000 affirmative claims against liable parties on behalf ofthe United States. At the end of the reporting period, there were 192 tortcases in litigation.

60

81. Under OJAG Code 15, the Claims and Tort Litigation Divisioncontinues to process claims pertaining to the contamination of groundwaterat Marine Corps Base Camp Lejeune, North Carolina. Since 2000, over2700 administrative claims have been filed under the Federal Tort

Claims Act, seeking in excess of $54.9 billion.61

82. Under OJAG Code 16, the Judge Advocate General of the U.S.Navy provides legal assistance everywhere the US Navy has a presence, athome and abroad, whether at sea or in a combat zone. Services are offered toall branches of military service, eligible family members, overseas USDepartment of Defense civilians and retirees.62

83. Recent US Navy actions are increasingly designed towardspromoting a Great Green Fleet. For instance, as part of its effort to

57 Id. at 9.58 Id.59 Id.60

Id. at 13.61

Id.62

Id. at 13.


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decrease reliance on foreign oil, the US Navy plans to deploy a CarrierStrike Group composed of ships and aircraft powered solely by alternativesources of energy by 2016. In making the US Navys Great Green Fleetvision a reality, the Navy recently spent $12 million on 450,000 gallons ofadvanced biofuel to evaluate its operational performance during amultinational maritime exercise. Though expensive at $26 per gallon, theNavy, as the reports show, successfully demonstrated that these fuelsources can serve as drop-in replacements for conventional ship andaviation fuels.63

Visi ting Forces Agreement

84. Colorable authority for the USS Guardians presence in

Philippine internal waters traces itself to the Visiting Forces Agreement andMutual Defense Treaty of 1951.

85. At the time of the Guardians grounding, noBalikatan exercisewas being conducted by theBalikatanjoint command. It was only on March27, 2013 that the VFA Commission announced Balikatan exercises for theyear which would start in April 2013.64

86. At the time of the Guardians grounding, no declaration of waror declaration of the existence of war, nor any conflict rising to the level of

armed conflict as defined under international law, nor yet an armed attackwithin the meaning of the Mutual Defense Treaty of 1951, involving theRepublic of the Philippines, did exist.

87. The Visiting Forces Agreement (VFA), signed on 10 February1998 by Philippine Secretary of Foreign Affairs Domingo L. Siazon andU.S. Ambassador Thomas Hubbard, grants the U.S. Armed Forces continuedaccess and control rights to bases in the Philippines for training and militarypreparedness. Under Article III, 2 of the VFA, U.S. military personnel are

exempt from passport and visa regulations upon entering and departing thePhilippines.

65

88. The VFA establishes a scheme for criminal jurisdiction overU.S. Personnel. Among the provisions, Article V, 1 (a) states that:Philippine authorities shall have jurisdiction over United States personnelwith respect to offenses committed within the Philippines and punishableunder the law of the Philippines.66

63 U.S. Navy, Energy, Environment and Climate Change, http://greenfleet.dodlive.mil/energy/great -green-fleet/ (last accessed on 14 April 2013)64 PH-US Exercise Balikatan 2013 kicks off in April http://www.vfacom.ph, last accessed on 15 April2013.65

Visiting Forces Agreement (VFA), 10 February 1998, Philippines -United States ,http://www.lawphil.net/international/treaties/vfa_1998.html, last accessed on 7 April 2013.66

VFA, supra.
http://www.vfacom.ph/http://www.vfacom.ph/


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89. In the past, the presence of U.S. troops in the Philippinespermitted by bilateral agreements has posed a threat to human andenvironmental health. When U.S. troops left the Philippines in the early

1990s after the Military Bases Agreement of 1947 expired in 1991, theDepartment of Defense relinquished responsibility for the environmentalcleanup task resulting from its presence at Subic Bay, Olongapo City (NavalFacility) and Clark, Pampanga (Air Force Base).

67During this time, the U.S.

military had discharged millions of gallons of untreated sewage into theground and water in and around these areas, with harmful chemicals such aslead, mercury, and pesticides seeping into the soil and water.

68

90. In 1992, the U.S. General Accounting Office (GAO) estimated

the clean-up would cost more than USD 12-15 million per site.69

While U.S.Air Force and Navy officials identified significant environmental damage atboth bases, the GAO report concluded that the current basing agreementdoes not impose any well-defined environmental responsibility on theUnited States for environmental cleanup and restoration.70

91. The public health risks associated with the environmentalcontamination in and around former U.S. military bases in the Philippinescontinue to plague the surrounding communities. In the aftermath of theMount Pinatubo eruption in 1991, wherein an estimated 20,000 familieswere relocated to the decommissioned and vacated Clark Airbase,hazardous substances and toxins in drinking and bathing water causedserious health issues among relocated residents, including cancer, respiratoryproblems, skin disease, and birth complications (i.e. miscarriages, still births,and birth defects).

71

92. On April 4, 2013, Respondent U.S. Navy relieved Lt. Cmdr.Mark Rice (left), and Lt. Daniel Tyler for their roles in the grounding of theUSS Guardian, along with two other officers after an investigation

determined that they did not adhere to standard US Navy navigationprocedures.

72

93. The 29th

Philippine-U.S. Balikatan annual joint militaryexercises opened on April 5, 2013. In the past, the U.S. has not been liablefor environmental damage and degradation that have resulted from the

67 U.S. Gen. Acct. Off., Military Base Closures: U.S. Financial Obligations in the Philippines (Jan. 1992),U.S. General Accounting Office/National Security and International Affairs Division 92-51, 27-28.

[Hereinafter GAO Philippines Report.]68

GAO Philippines Report, supra, at 27.69 GAO Philippines Report, supra, at 28.70 GAO Philippines Report, supra, at 5, 27.71 Hayashi Kiminori, shima Kenichi and Yokemoto Masafum (2009), Overcoming American MilitaryBase Pollution in Asia (C. Nelson, Trans), The Asia-Pacific Journal, 28:2.72

E.g., US Navy relieves four USS Guardian officers,http://www.gmanetwork.com/news/photo/35331/us-navy-relieves-four-uss-guardian-officers (last accessedon 7 April 2013).
http://www.gmanetwork.com/news/photo/35331/us-navy-relieves-four-uss-guardian-officershttp://www.gmanetwork.com/news/photo/35331/us-navy-relieves-four-uss-guardian-officers


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annual war games, such as coral reef destruction or toxic waste pollutionfrom naval maneuverings and live fire exercises. In fact, current Departmentof Defense policy may exempt cooperative efforts with other sovereignnations from the regulation of U.S. environmental laws.

73

ARGUMENT

The grounding, salvaging, and post-salvage operations of the Guardian

cause and continue to causeenvironmental damage of such

magnitude as to affect the provinces

of Palawan, Antique, Aklan,Guimaras, Iloilo, NegrosOccidental, Negros Oriental,

Zamboanga del Norte, Basilan,Sulu, and Tawi-Tawi, which events

violate the constitutional rights ofpetitioners to a balance andhealthful ecology within the

meaning of Section 16, Article II ofthe Constitution and the Oposa

doctrine.

94. Constitutional law and jurisprudence require this finding.

95. Petitioners restate paragraphs 1 to 6, and 19 to 93, whichsupport this finding.

96. The following must be present to justify the grant of the

privilege of the writ: There must be an unlawful act or omission by a publicofficial or employee, or private individual or entity; such unlawful act oromission violates or threatens to violate the constitutional right of everyperson to a balanced and healthful ecology; and such unlawful act oromission involves environmental damage of such magnitude as to prejudicethe life, health or property of inhabitants in two or more cities or province.

97. These are all present and have been satisfied in the instantPetition.

98. The Writ of Kalikasan is an extraordinary remedy. Theunderlying emphasis in the Writ of Kalikasan is magnitudeas it deals with

73 Exec. Order 12,114, 4 January 1979, U.S. Department of Defense, 44 Fed. Reg. 1,957,

http://www.dtic.mil/whs/directives /corres/pdf/605007p.pdf, last accessed on 7 April 2013.


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damage that transcends political and territorial boundaries. Magnitude isthus measured according to the qualification set forth in the Rules whenthere is environmental damage that prejudices the life, health or property ofinhabitants in two or more cities or provinces. In addition, magnitude ofenvironmental damage is a condition sine qua non in a petition for theissuance of the Writ of Kalikasan.

99. The Petitioners right to a balanced and healthful ecology isenshrined in Section 16, Article II of the 1987 Constitution, viz:

The State shall protect and advance the right of the peopleto a balanced and healthful ecology in accord with therhythm and harmony of nature.

100. In the landmark case of Oposa v. Factoran,74

the aboveconstitutional right was made enforceable and operational in the followingwise

x x x x

While the right to a balanced and healthful ecology is to befound under the Declaration of Principles and State Policiesand not under the Bill of Rights, it does not follow that it isless important than any of the civil and political rightsenumerated in the latter. Such a right belongs to a differentcategory of rights altogether for it concerns nothing less thanself-preservation and self-perpetuation aptly and fittinglystressed by the petitioners the advancement of which mayeven be said to predate all governments and constitutions. As amatter of fact, these basic rights need not even be written inthe Constitution for they are assumed to exist from theinception of humankind. If they are now explicitly mentioned

in the fundamental charter, it is because of the well-foundedfear of its framers that unless the rights to a balanced andhealthful ecology and to health are mandated as state policiesby the Constitution itself, thereby highlighting their continuingimportance and imposing upon the state a solemn obligation topreserve the first and protect and advance the second, the daywould not be too far when all else would be lost not only forthe present generation, but also for those to come generations which stand to inherit nothing but parched earthincapable of sustaining life.

The right to a balanced and healthful ecology carries with itthe correlative duty to refrain from impairing the environment.

74G.R. No. 101083, July 30, 1993


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x x x x

101. Case law dealing with the Kalikasan Writ is progressively andquickly emerging since the advent of the 2010 Rules. See, e.g., Casino et al.vs. DENR (Min Res.), GR. No. 202493 and GR. No. 202511, July 31, 2012;Agham Party List vs. DENR, July 31, 2012; Agham Party List v. LNLArchipelago Minerals, Inc, G.R. No. 201918, June 13, 2012; Greenpeace v.

Environmental Management Bureau of the DENR, GR No. 201390, May 2,2012; Pimentel v. Aquino, GR No. 201509, May 8, 2012; Agham Party List

v. Paje, (Min. Res) GR No. 199970, February 7, 2012; Bondoc v. Paje, GRNo. 198890, February 21, 2012; West Tower Condominium Corporation v.

First Philippine Industrial Corporation, G.R. No. 194239, May 31, 2011.

102. For emerging scholarship on the Writ of Kalikasan, see HilarioG. Davide Jr., The Environment as Life Sources and the Writ of Kalikasan inthe Philippines, 29 Pace Envtl L. Rev. 592 (Winter 2012); Juan ArturoIluminado C. de Castro, Cleaning Up Manila Bay: Mandamus as a Tool forEnvironmental Protection, 37 Ecology L. Q. 797 (2010).

Because the Tubbataha Coral Reefsare important ecosystems that

sustain ecological life in thePhilippines, Respondents

destruction of such ecosystemsresults in serious, if not irreparable,

ecological imbalance, for coral reefsare among natures life-support

systems.

103. Petitioners restate paragraphs 1 to 6, and 19 to 102, which

support this finding. Case law requires this finding.

104. The Court in Tano v. Socrates, G.R. No. 110249, August 21,1997, held:

The destruction of the coral reefs results in serious, if notirreparable, ecological imbalance, for coral reefs are among thenatures life-support systems. They collect, retain, and recyclenutrients for adjacent nearshore areas such as mangroves,seagrass beds, and reef flats; provide food for marine plantsand animals; and serve as a protective shelter for aquaticorganisms. It is said that [e]cologically, the reefs are to theoceans what forests are to continents: they are shelter and


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breeding grounds for fish and plant species that will disappearwithout them. (quotations in original)

105. Because the Tubbataha Coral Reefs form a natural barrierwhich protects the Philippine coastline, any erosion or damage in the scaleRespondents have so caused will compromise the natural buffer from thepounding of ocean waves. Coral reefs form natural barriers that protectnearby shorelines from the eroding forces of the sea, thereby protectingcoastal dwellings, agricultural land and beaches. Coral reefs serve as abuffer, protecting in-shore areas from the constant pounding of ocean waves.Without coral reefs, many beaches and buildings would become vulnerableto wave action and storm damage.

75

Respondents have caused damage

to natural fish nurseries in theTRNP from which fish and coral

larvae populate the Sulu-SulawesiTriangle an area that not onlycovers the most important and

productive fishing grounds of thePhilippines but extends as far south

as Malaysia and Indonesia.

106. Petitioners emphasize averments found on paragraphs 1 to 6, 19to 32, 72, and 104 to 105, which support this finding.

Source: Tubbataha Management Office (TMO)

75 http://www.reefresilience.org/Toolkit_Coral/C7a_Importance.html


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107. The fishing industry depends on coral reefs because many fishspawn there and juvenile fish spend time there before making their way tothe open sea. In fact, a study by Conservation International has confirmedthat Tubbataha is the nursery for fish and coral larvae that populates theSulu-Sulawesi Triangle an area that not only covers the most importantand productive fishing grounds of the Philippines but extends as far south asMalaysia and Indonesia.

76

108. The fish and invertebrate spawn are also important ingenerating vast amounts of marine produce that feed millions of people eachyear. While a single square kilometre of healthy coral reef can annuallygenerate up to 30-tonnes of fish biomass, Tubbataha produces up to 200-

tonnes annually.77

Because the Philippines follows theEnglish rule, a rule based on the

territorial principle and followed inthe United States, crimesperpetrated in or around theGuardian are triable in the courts of

the territory where those crimes are

committed, which are the courts ofthe Republic of the Philippines.

109. Case law so holds.

110. Petitioners restate paragraphs 1 to 6, 19 to 62, 72, 84 to 108,which are supportive of this finding, and emphasize averments found onparagraphs 106 to 198.

111. InPeople v. Wong Cheng, 46 Phil. 729 (1922) , the Court, thenunder the federal review powers of the US Supreme Court, held that courts

of the Philippines have jurisdiction over crimes, like the one herein involved,committed aboard merchant vessels anchored in our jurisdiction waters.

78

76See, e.g.,http://expeditionfleet.com/destinations/philippines/tubbataha/

77 http://8list.ph/index.php/s ite/articles/8-things-you-should-know-about-tubbataha-reef-144

78 The Court stated,

There are two fundamental rules on this particular matter in connection with

International Law; to wit, the French rule, according to which crimes committed aboard aforeign merchant vessels should not be prosecuted in the courts of the country withinwhose territorial jurisdiction they were committed, unless their commission affects thepeace and security of the territory; and the English rule, bas ed on the territorial principle

and followed in the United States, according to which, crimes perpetrated under suchcircumstances are in general triable in the courts of the country within territory they werecommitted. Of this two rules, it is the last one that obtains in this jurisdiction, because at
http://expeditionfleet.com/destinations/philippines/tubbataha/http://expeditionfleet.com/destinations/philippines/tubbataha/http://expeditionfleet.com/destinations/philippines/tubbataha/


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Wong Cheng held that, had it been otherwise, the commission of crimesaboard the merchant vessel Changsa of English nationality while said vesselwas anchored in Manila Bay two and a half miles from the shores of the city,in open defiance of the local authorities, who are impotent to lay hands onhim, is simply subversive of public order.

112. On the point of international customary international lawincorporated via Section 2, Article II of the Philippine Constitution, 79 theTrail Smelter Arbitration Case

80is significant because it is dispositive of the

limits of environmentally permissible conduct between internationalboundaries, that is, nations must not perpetrate significant harm to othernations through pollution. Trail Smelter, read with Wong Cheng, would thusrequire a finding by the Honorable Court to hold Respondent officers of the

United States responsible under international law for the wrongful conductof the Guardian, her grounding, and her crew. Following Trail Smelter, it isthe duty of Respondent officers of the United States Seventh Naval Fleet,jointly and severally, to make a complete and final indemnity andcompensation for all damage to the Tubbataha Reef which occurred betweenthe grounding date of January 17, 2013, to the date of full Reef restorationcomputed under internationally accepted methodology and best practices.

Because Philippine case law affirms

that Article V (CriminalJurisdiction) of the Visiting Forces

Agreement is a waiver of immunityfrom suit, the question is no longer

a question of immunity but aquestion of detention as against

custody of erring US Respondents.

113. In Nicolas v. Romulo, G.R. No. 175888, Feb. 11, 2009 , theCourt effectively upheld the trial courts conviction of Lance CorporalDaniel Smith, USAF, of the crime of rape as defined under Philippinecriminal statutes and in its dispositive portion ordered the Secretary ofForeign Affairs to forthwith negotiate with the United Statesrepresentatives for the appropriate agreement on detention facilities underPhilippine authorities as provided in Art. V, Sec. 10 of the VFA

114. Read with Wong Cheng, there is no question that immunity mayno longer be raised as a defense by a government if its government agent has

present the theories and jurisprudence prevailing in the United States on this matter areauthority in the Philippines which is now a territory of the United States.

79 Section 2, Article II, states: The Philippines renounces war as an instrument of national policy, adoptsthe generally accepted principles of international law as part of the law of the land and adheres to the policyof peace, equality, justice, freedom, cooperation, and amity with all nations. 80

Awarded on 16 April 1938 and 11 March 1941. Parties: United States, Canada.


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acted contrary to law, especially criminal statutes embedded inenvironmental law.

115. For the holding that the sovereignty of a state is not absolute

and is subject to limitations imposed by membership in the family of nationsand treaty law, see, e.g., Tanada v. Angara, 272 SCRA 18 (1997).

US Respondents are not immune

from suit because the plainlanguage of existing federal statutes

is clear in that agencies of theUnited States have statutorily

waived their immunity to anyequitable action following New Yorkv. United States Army Corps of

Engineers (E.D.N.Y. Sept. 24, 2012)

and Trudeau v. FTC.

116. Federal law and case law, applicable in full to US Respondents,and which laws hold persuasive force among Philippine courts, require thisfinding.

117. The 2012 case of New York v. United States Army Corps ofEngineers, No. 11-CV-2599, 2012 WL 4336701 (E.D.N.Y. Sept. 24, 2012) ,the U.S. District Court for the Eastern District