MARIANAS VARIETY
Senators OK Lawsuit vs Gatewood
Wednesday, 20 May 2009 23:32 by Therese Hart
THE legislative committee on rules on Tuesday voted to adopt Vice Speaker B.J. Cruz’s resolution that endorses a legal action against federal court chief judge Frances Tydingco-Gatewood to challenge her March 20 contempt order against the government of Guam.
The adoption of Resolution 114 authorizes the legislature to move forward with filing the action in the Ninth Circuit against Tydingco-Gatewood.
Resolution 114 was adopted by eight affirmative votes, one more than the minimum number of votes required to make it the official position of the 30th Guam Legislature.
The Committee on Rules is the legislative standing committee authorized to act on behalf of the legislature when the body is not in session. This panel, chaired by Sen. Rory Respicio, has jurisdiction over matters relating to the defense or initiation of court action on behalf of the legislature.
The district court used the supremacy clause of the U.S. Constitution to make null and void Section 6 of Public Law 30-1.
Section 6, prohibition on payments without appropriations states that the legislature asserts its authority to appropriate funds and determine the conditions for expending such appropriations.
After the government was held in contempt, it paid out over $5 million in weekly cash payments to federal receiver Gershman, Bricker & Bratton to fund the consent decree projects.
Prior to the vote, Respicio wrote to his colleagues, saying that Cruz has commissioned legal work on the merits of bringing a case against the district court.
The issue centers on the powers of the legislature and “it is our duty and obligation to defend an institution to which we were elected, and tasked with upholding the laws of the Constitution of the United States,” Respicio wrote.
Respicio said Cruz “has expressed his strong belief that we have faithfully done just that, in spite of the Chief Judge’s statement that we “resorted to frivolous modes of self-help, such as enacting patently unconstitutional laws…”
Committee members who voted to adopt Resolution 114 were Cruz, Respicio, Speaker Judi Won Pat, Sens. Judi Gutherz, Tina Muna-Barnes, Frank Aguon Jr., Adolpho Palacios, and Frank Blas Jr.
Showing posts with label Court. Show all posts
Showing posts with label Court. Show all posts
Wednesday, May 20, 2009
Sunday, May 17, 2009
Guam Mayors Mixed on Federalization and Military Buildup
SAIPAN TRIBUNE
Monday, May 18, 2009
Guam mayors mixed on federalization, military buildup
By Nazario Rodriguez Jr.
Reporter
Guam mayors here for the 2nd Annual Pacific Mayors' Conference have expressed contrasting views about the upcoming military buildup at home as well as the federalization of the CNMI's immigration system.
Mayor Jose “Pedo” T. Terlaje of Yona said he is definitely against federalization because it is already impacting Guam.
He said he's attending the conference not only to talk about agriculture with Philippine mayors but also to share his views on the impacts of federalization. “I'm happy that we're sharing these issues with the other mayors in the region because we are all impacted,” he said.
Terlaje wants the United States to keep its hands off CNMI immigration because he does not want the people of the CNMI to experience what Guam went through.
“It weakened the social life in Guam and it will have the same impact for the people in the CNMI if that happens,” he said.
He said local people, even the local governments, have no control in Guam because the U.S. government runs the entire place.
“Implementing it [federalization of CNMI Immigration] will diminish the life of the people in the CNMI,” Terlaje said.
He said this is because the local workforce will not be enough to supply the needed manpower.
On the issue of the U.S. military buildup, Terlaje said the people of Guam can already visualize the problems and the issues that will confront the people of the region once that happens.
But the oldest Guam mayor, Vicente “Ben” D. Gumataotao of Piti, said the general feeling of the people in Guam is that “we are fully supporting the military buildup.”
He said there are some activists who are against it but they are a small fraction of the population.
Gumatatao, 82, is a retired U.S. Navy officer, who said he trained many people who are now working in Washington D.C. He is a first cousin of Gov. Benigno R. Fitial and an uncle of CNMI Delegate to Congress Gregorio Sablan.
On the issue of the visa waiver program, Gumataotao said he understands the U.S. decision to exclude China and Russia.
Gumatatao described as “suicidal” Fitial's efforts to stop the U.S. government from federalizing CNMI immigration “but it is his right to do so because he takes care of the welfare of the people of the CNMI.”
Mayor Paul McDonald of Agatna Heights, who is also president of the Association of Pacific Islands Local Governments, said most resource speakers of the conference presented bleak prospects.
“It is alarming. But so far the conference is going smooth,” he said.
Vice Mayor Louise C. Rivera of Tamuning-Tumon-Harmon said this kind of gathering is a wonderful opportunity for dialogue.
“We are given the chance to share our visions and how we can best address our concerns on these issues,” she said.
http://www.saipantribune.com/newsstory.aspx?newsID=90350&cat=1
Monday, May 18, 2009
Guam mayors mixed on federalization, military buildup
By Nazario Rodriguez Jr.
Reporter
Guam mayors here for the 2nd Annual Pacific Mayors' Conference have expressed contrasting views about the upcoming military buildup at home as well as the federalization of the CNMI's immigration system.
Mayor Jose “Pedo” T. Terlaje of Yona said he is definitely against federalization because it is already impacting Guam.
He said he's attending the conference not only to talk about agriculture with Philippine mayors but also to share his views on the impacts of federalization. “I'm happy that we're sharing these issues with the other mayors in the region because we are all impacted,” he said.
Terlaje wants the United States to keep its hands off CNMI immigration because he does not want the people of the CNMI to experience what Guam went through.
“It weakened the social life in Guam and it will have the same impact for the people in the CNMI if that happens,” he said.
He said local people, even the local governments, have no control in Guam because the U.S. government runs the entire place.
“Implementing it [federalization of CNMI Immigration] will diminish the life of the people in the CNMI,” Terlaje said.
He said this is because the local workforce will not be enough to supply the needed manpower.
On the issue of the U.S. military buildup, Terlaje said the people of Guam can already visualize the problems and the issues that will confront the people of the region once that happens.
But the oldest Guam mayor, Vicente “Ben” D. Gumataotao of Piti, said the general feeling of the people in Guam is that “we are fully supporting the military buildup.”
He said there are some activists who are against it but they are a small fraction of the population.
Gumatatao, 82, is a retired U.S. Navy officer, who said he trained many people who are now working in Washington D.C. He is a first cousin of Gov. Benigno R. Fitial and an uncle of CNMI Delegate to Congress Gregorio Sablan.
On the issue of the visa waiver program, Gumataotao said he understands the U.S. decision to exclude China and Russia.
Gumatatao described as “suicidal” Fitial's efforts to stop the U.S. government from federalizing CNMI immigration “but it is his right to do so because he takes care of the welfare of the people of the CNMI.”
Mayor Paul McDonald of Agatna Heights, who is also president of the Association of Pacific Islands Local Governments, said most resource speakers of the conference presented bleak prospects.
“It is alarming. But so far the conference is going smooth,” he said.
Vice Mayor Louise C. Rivera of Tamuning-Tumon-Harmon said this kind of gathering is a wonderful opportunity for dialogue.
“We are given the chance to share our visions and how we can best address our concerns on these issues,” she said.
http://www.saipantribune.com/newsstory.aspx?newsID=90350&cat=1
Monday, March 23, 2009
Ben's Pen
ben's Pen : Conspiracy theorists line up here
Tuesday, 24 March 2009 04:03
by Sen. Ben Pangelinan
Marianas Variety
LAST Friday, as it seems to be the practice of our esteemed federal court chief judge to release orders right before the weekend, found the government of Guam in contempt for the failure to deposit $993,700.00 as ordered by the court in its Feb. 13 order.
The court only cited this section of her order and did not even comment on the other aspects of Public Law 30-1, which was crafted by the Legislature after careful and deliberate and repeated reading of the entire order.
The court did order the payment of the $993,700.00 beginning on March 1. The court also encouraged the legislative and the executive branches to continue efforts to find “viable alternatives” means of financing the consent decree projects at a later time. Public Law 30-1 did not wait for a later time and instead gave the court a viable financing plan prior to March 1.
In the proceedings of the committee of the whole, prior to passing Bill 51 which became P.L. 30-1, I asked point blank the government of Guam’s financial advisor and the underwriter of the bond issue if the conditions for the security of the bond issuance in the bill was viable. These conditions are:
1. It authorized the issuance of the entire amount estimated by the receiver as what is needed to fund the consent decree projects, $202 million.
2. It pledged the full faith and credit of the general fund as a guarantee for the payment of the debt service.
3. It sets the maximum interest rate for the bonds at 9 percent.
4. It approves the terms and conditions and authorizes the Governor to issue the bonds
Both financial experts stated that this was a viable financing plan. Quoting from the same order: “Should this occur, the court will suspend the weekly payments provided the court is satisfied that at a minimum, authorized without the need for further legislative authorization or action, the maximum amount of bonds.” The Legislature clearly did that in the bill it passed.
The court also required that the “governor and the Guam Economic Development Authority in good faith and to the court’s satisfaction move to sell the first series of these bonds as soon as possible and such other bonds as soon as possible and such other bonds at a later date as required to keep the Consent Decree projects and on schedule.”
The court did not even ask the governor or GEDA if they “move to sell the first series of these bonds.” Why? It is clear that the court is not interested in what the Governor is not doing and it remains unknown to everyone, except the court. It is clear that she remains fixated on not only what the Legislature is doing, but on what it is not doing that displeases the court.
It appears that the court as well as the federal government wants a landfill built that serves the needs of someone else other than the people of Guam.
What is your theory?
ben pangelinan is a Senator in the 30th Guam Legislature and a former Speaker now serving his eighth term in the Guam Legislature. E-mail comments or suggestions to
senbenp@guam.net. ctzenben@ite.net
Tuesday, 24 March 2009 04:03
by Sen. Ben Pangelinan
Marianas Variety
LAST Friday, as it seems to be the practice of our esteemed federal court chief judge to release orders right before the weekend, found the government of Guam in contempt for the failure to deposit $993,700.00 as ordered by the court in its Feb. 13 order.
The court only cited this section of her order and did not even comment on the other aspects of Public Law 30-1, which was crafted by the Legislature after careful and deliberate and repeated reading of the entire order.
The court did order the payment of the $993,700.00 beginning on March 1. The court also encouraged the legislative and the executive branches to continue efforts to find “viable alternatives” means of financing the consent decree projects at a later time. Public Law 30-1 did not wait for a later time and instead gave the court a viable financing plan prior to March 1.
In the proceedings of the committee of the whole, prior to passing Bill 51 which became P.L. 30-1, I asked point blank the government of Guam’s financial advisor and the underwriter of the bond issue if the conditions for the security of the bond issuance in the bill was viable. These conditions are:
1. It authorized the issuance of the entire amount estimated by the receiver as what is needed to fund the consent decree projects, $202 million.
2. It pledged the full faith and credit of the general fund as a guarantee for the payment of the debt service.
3. It sets the maximum interest rate for the bonds at 9 percent.
4. It approves the terms and conditions and authorizes the Governor to issue the bonds
Both financial experts stated that this was a viable financing plan. Quoting from the same order: “Should this occur, the court will suspend the weekly payments provided the court is satisfied that at a minimum, authorized without the need for further legislative authorization or action, the maximum amount of bonds.” The Legislature clearly did that in the bill it passed.
The court also required that the “governor and the Guam Economic Development Authority in good faith and to the court’s satisfaction move to sell the first series of these bonds as soon as possible and such other bonds as soon as possible and such other bonds at a later date as required to keep the Consent Decree projects and on schedule.”
The court did not even ask the governor or GEDA if they “move to sell the first series of these bonds.” Why? It is clear that the court is not interested in what the Governor is not doing and it remains unknown to everyone, except the court. It is clear that she remains fixated on not only what the Legislature is doing, but on what it is not doing that displeases the court.
It appears that the court as well as the federal government wants a landfill built that serves the needs of someone else other than the people of Guam.
What is your theory?
ben pangelinan is a Senator in the 30th Guam Legislature and a former Speaker now serving his eighth term in the Guam Legislature. E-mail comments or suggestions to
senbenp@guam.net. ctzenben@ite.net
Sunday, March 22, 2009
GovGuam Found to Be in Civil Contempt
GovGuam found to be in civil contempt
By Mindy Aguon
Published Mar 20, 2009
KUAM News
Despite the Government of Guam's contention that Public Law 30-1 was a viable solution, District Court Chief Judge Frances Tydingco-Gatewood in a 16-page decision shot down every argument presented by the government. Not only did she hold the government in civil contempt and order the immediate payment of nearly $4 million by Monday, but the judge admonished lawmakers for passing legislation that she deemed unconstitutional.
It's clear in the chief judge's decision that the she wasn't buying GovGuam's argument that existing Guam policy was the answer to closing the dump and opening a new landfill. In fact, the judge contends lawmakers who voted for its passage violated their oath of office. Her order requires weekly one million dollar payments and compliance by the government otherwise stiff monetary penalties will be imposed.
Saying the court and the people of Guam have been more than patient in expecting Guam's leaders to jointly arrive at a solution to the Ordot Dump crisis, Tydingco-Gatewood made it clear Friday that inaction and obstacles will no longer be tolerated. She further reiterated her position by finding the government of Guam in civil contempt. Saying the government met both thresholds to be held in contempt, the judge first found that the government disobeyed a specific court order she handed down on February 13, mandating weekly cash payments beginning March 1.
Tydingco-Gatewood noted that the order could not be more specific and definite, writing, "It unequivocally told the government what it was to do, and when it was to do it. No reasonable person or entity could be confused as to what was required." While the government maintained that Public Law 30-1 represented its good faith effort to find a viable alternative to the weekly payment, the chief judge found that despite Governor Felix Camacho's cooperation through the introduction of Bill 51 and specific funding mechanisms, the legislature made "radical amendments" and "Cannot imagine how PL 30-1 could qualify as a reasonable step taken in compliance with the court's February 13 2009 order."
Senator B.J. Cruz introduced Section 6 of the public law prohibiting the government from making any payments for consent decree-related projects unless first receiving approval from the Guam Legislature. It's this particular section the judge says was clearly enacted in direct contravention of her order and it's this section that she declared null and void under the Supremacy Clause of the U.S. Constitution.
Tydingco-Gatewood added that every lawmaker who supported the enactment of Section 6 violated his or her oath of office, saying, "...not only have our island's officials wasted time and money by enacting patently unconstitutional legislation designed to frustrate compliance with a valid court order effecting federal law, they have 'warred against the Constitution', thereby violating their oath of office."
She also found that the government's force majeure argument was not only unfounded and frivolous but she warned that future attempts to use that argument would be cause for sanctions.
After finding the government in civil contempt the court ordered the government to immediately turn over the $3.9 million that has been set aside by the Camacho Administration by noon on Monday, March 23. The judge noted that the government may purge its contempt and avoid the actual payment of the coercive sanction by immediately coming into compliance reiterating the suggestion of using Section 30-backed revenue bonds. She even referred to the government's consultants that pointed out flaws in Public Law 30-1 that created uncertainties for the issuance of financing for consent decree projects.
Should the government fail to deposit the money on Monday, the court will immediately impose daily civil contempt sanctions beginning at $10,000 and doubling each day, up to a daily limit of $250,000. If no payment is made by April 1, the sanctions will accrue at a quarter-million dollars per day until the government comes into full compliance.
With a little more than two years of airspace left at the dump, the court is hopeful today's order will be the catalyst for officials to take action in compliance with the consent decree.
Voicing her own response to the order, Senator Judi Guthertz wrote, "I am disappointed in the District Court Judge's ruling. I am studying the ruling and I believe the repercussions on our community will be severe. I believe that the judge is not being reasonable and I believe the Legislature should consider whether it should challenge the judge’s interpretation of the Supremacy Clause.” As for acting speaker Tom Ada, he reacted by saying he was disappointed because he felt the Legislature provided viable options in the Public Law 30-1, however he understands the reality is those options may not be available as soon as the court may have wanted them. Ada added he is focusing his attention on how the million dollar weekly payments will affect the people of Guam.
By Mindy Aguon
Published Mar 20, 2009
KUAM News
Despite the Government of Guam's contention that Public Law 30-1 was a viable solution, District Court Chief Judge Frances Tydingco-Gatewood in a 16-page decision shot down every argument presented by the government. Not only did she hold the government in civil contempt and order the immediate payment of nearly $4 million by Monday, but the judge admonished lawmakers for passing legislation that she deemed unconstitutional.
It's clear in the chief judge's decision that the she wasn't buying GovGuam's argument that existing Guam policy was the answer to closing the dump and opening a new landfill. In fact, the judge contends lawmakers who voted for its passage violated their oath of office. Her order requires weekly one million dollar payments and compliance by the government otherwise stiff monetary penalties will be imposed.
Saying the court and the people of Guam have been more than patient in expecting Guam's leaders to jointly arrive at a solution to the Ordot Dump crisis, Tydingco-Gatewood made it clear Friday that inaction and obstacles will no longer be tolerated. She further reiterated her position by finding the government of Guam in civil contempt. Saying the government met both thresholds to be held in contempt, the judge first found that the government disobeyed a specific court order she handed down on February 13, mandating weekly cash payments beginning March 1.
Tydingco-Gatewood noted that the order could not be more specific and definite, writing, "It unequivocally told the government what it was to do, and when it was to do it. No reasonable person or entity could be confused as to what was required." While the government maintained that Public Law 30-1 represented its good faith effort to find a viable alternative to the weekly payment, the chief judge found that despite Governor Felix Camacho's cooperation through the introduction of Bill 51 and specific funding mechanisms, the legislature made "radical amendments" and "Cannot imagine how PL 30-1 could qualify as a reasonable step taken in compliance with the court's February 13 2009 order."
Senator B.J. Cruz introduced Section 6 of the public law prohibiting the government from making any payments for consent decree-related projects unless first receiving approval from the Guam Legislature. It's this particular section the judge says was clearly enacted in direct contravention of her order and it's this section that she declared null and void under the Supremacy Clause of the U.S. Constitution.
Tydingco-Gatewood added that every lawmaker who supported the enactment of Section 6 violated his or her oath of office, saying, "...not only have our island's officials wasted time and money by enacting patently unconstitutional legislation designed to frustrate compliance with a valid court order effecting federal law, they have 'warred against the Constitution', thereby violating their oath of office."
She also found that the government's force majeure argument was not only unfounded and frivolous but she warned that future attempts to use that argument would be cause for sanctions.
After finding the government in civil contempt the court ordered the government to immediately turn over the $3.9 million that has been set aside by the Camacho Administration by noon on Monday, March 23. The judge noted that the government may purge its contempt and avoid the actual payment of the coercive sanction by immediately coming into compliance reiterating the suggestion of using Section 30-backed revenue bonds. She even referred to the government's consultants that pointed out flaws in Public Law 30-1 that created uncertainties for the issuance of financing for consent decree projects.
Should the government fail to deposit the money on Monday, the court will immediately impose daily civil contempt sanctions beginning at $10,000 and doubling each day, up to a daily limit of $250,000. If no payment is made by April 1, the sanctions will accrue at a quarter-million dollars per day until the government comes into full compliance.
With a little more than two years of airspace left at the dump, the court is hopeful today's order will be the catalyst for officials to take action in compliance with the consent decree.
Voicing her own response to the order, Senator Judi Guthertz wrote, "I am disappointed in the District Court Judge's ruling. I am studying the ruling and I believe the repercussions on our community will be severe. I believe that the judge is not being reasonable and I believe the Legislature should consider whether it should challenge the judge’s interpretation of the Supremacy Clause.” As for acting speaker Tom Ada, he reacted by saying he was disappointed because he felt the Legislature provided viable options in the Public Law 30-1, however he understands the reality is those options may not be available as soon as the court may have wanted them. Ada added he is focusing his attention on how the million dollar weekly payments will affect the people of Guam.
Monday, November 10, 2008
We Need a Fix To The Fix
ben's Pen
Tuesday, 11 November 2008 02:29
by Sen. Ben Pangelinan
Guam Variety News
Washington delegate: We need a fix to the fix
The military buildup has been held out as the salvation to the economic crises and financial challenges facing our community. The Department of Defense, as well as the Joint Guam Program Office, has touted the fact that the buildup will benefit local businesses both big and small. It appears that a recent decision in a federal appeals court may have placed a kink in the flow of contract dollars to Guam businesses.
Since 1986, the Congress in authorizing Department of Defense appropriations for contracts, set a goal of channeling 5 percent of contract money each year to firms owned and operated by minorities. This was directed in the appropriations because some lawmakers were not satisfied with the pace of the Pentagon in including smaller minority owned firms in defense contracts versus the awards to the Lockheed Martins and General Dynamics and others.
The appeals court ruling declared unconstitutional the 5 percent set aside of defense contract dollars for minority owned businesses based on the court's decision that there was not enough evidence the Pentagon discriminates against minority firms in awarding the contracts. The court ruled that Congress was deficient in its justification for the policy, lacking strong evidence and proof of discrimination by the Pentagon, and thus violated the equal protection clause. Using the strict scrutiny standard, the court opined that "Congress did not have a "strong basis in evidence" to find that DOD was a passive participant in the pervasive nationwide racial discrimination.
The program has benefited minority owned businesses to the tune of over $15 billion in contracts awarded to these businesses of the over $269 billion in contract awards that were issued last year. It is still in effect and is set to expire next year.
The case started in 1988 when a business owned by a white woman lost a contract to a Korean-American couple for computer services. The Air Force in this case gave the contract to the Korean-American couple even though their bid was higher at $5.75 million verses the white woman's Rothe Development Corporation's $5.57 price.
The initial ruling of a federal court in Texas sided with the Defense Department. Rothe Development appealed the decision. The lower court used six studies that ostensibly presented evidence of a discrimination pattern against minority owned businesses in public and private contracting.
Although this ruling I am sure will still be tied up in appeals for sometime, we need to develop a unified response to Washington and the Congress to press our case here on Guam. The Delegate must take the lead in crafting a legislative remedy based upon a studied analysis of the awards of defense contracts on Guam over the years. We need to solicit the assistance of the Small Business Administration, the Guam Contractors Association, the Chamber of Commerce and the University of Guam to attack the evidence as it relates to the practice here on Guam. The Governor must immediately request a grant from the Office of Economic Adjustment to fund the study necessary to present to the Congress showing the proof and evidence of the effect this will have on Guam-based businesses whether minority owned or not. The Guam story and its uniqueness must be documented and told to fix the fix and meet the strict scrutiny standard and constitutional test.
We must do so with all haste or again, Guam businesses will be left behind just like we were in the A76 process. If we do not, Guam firms and our people will be economically deep-sixed in this military buildup.
ben pangelinan is a Senator in the 29th Guam Legislature and a former Speaker now serving his seventh term in the Guam Legislature. E-mail comments or suggestions to senbenp@guam.net.
Tuesday, 11 November 2008 02:29
by Sen. Ben Pangelinan
Guam Variety News
Washington delegate: We need a fix to the fix
The military buildup has been held out as the salvation to the economic crises and financial challenges facing our community. The Department of Defense, as well as the Joint Guam Program Office, has touted the fact that the buildup will benefit local businesses both big and small. It appears that a recent decision in a federal appeals court may have placed a kink in the flow of contract dollars to Guam businesses.
Since 1986, the Congress in authorizing Department of Defense appropriations for contracts, set a goal of channeling 5 percent of contract money each year to firms owned and operated by minorities. This was directed in the appropriations because some lawmakers were not satisfied with the pace of the Pentagon in including smaller minority owned firms in defense contracts versus the awards to the Lockheed Martins and General Dynamics and others.
The appeals court ruling declared unconstitutional the 5 percent set aside of defense contract dollars for minority owned businesses based on the court's decision that there was not enough evidence the Pentagon discriminates against minority firms in awarding the contracts. The court ruled that Congress was deficient in its justification for the policy, lacking strong evidence and proof of discrimination by the Pentagon, and thus violated the equal protection clause. Using the strict scrutiny standard, the court opined that "Congress did not have a "strong basis in evidence" to find that DOD was a passive participant in the pervasive nationwide racial discrimination.
The program has benefited minority owned businesses to the tune of over $15 billion in contracts awarded to these businesses of the over $269 billion in contract awards that were issued last year. It is still in effect and is set to expire next year.
The case started in 1988 when a business owned by a white woman lost a contract to a Korean-American couple for computer services. The Air Force in this case gave the contract to the Korean-American couple even though their bid was higher at $5.75 million verses the white woman's Rothe Development Corporation's $5.57 price.
The initial ruling of a federal court in Texas sided with the Defense Department. Rothe Development appealed the decision. The lower court used six studies that ostensibly presented evidence of a discrimination pattern against minority owned businesses in public and private contracting.
Although this ruling I am sure will still be tied up in appeals for sometime, we need to develop a unified response to Washington and the Congress to press our case here on Guam. The Delegate must take the lead in crafting a legislative remedy based upon a studied analysis of the awards of defense contracts on Guam over the years. We need to solicit the assistance of the Small Business Administration, the Guam Contractors Association, the Chamber of Commerce and the University of Guam to attack the evidence as it relates to the practice here on Guam. The Governor must immediately request a grant from the Office of Economic Adjustment to fund the study necessary to present to the Congress showing the proof and evidence of the effect this will have on Guam-based businesses whether minority owned or not. The Guam story and its uniqueness must be documented and told to fix the fix and meet the strict scrutiny standard and constitutional test.
We must do so with all haste or again, Guam businesses will be left behind just like we were in the A76 process. If we do not, Guam firms and our people will be economically deep-sixed in this military buildup.
ben pangelinan is a Senator in the 29th Guam Legislature and a former Speaker now serving his seventh term in the Guam Legislature. E-mail comments or suggestions to senbenp@guam.net.
Court Has No Jurisdiction Over Layon Property
Layon property owners say district court has no jurisdiction
Tuesday, 11 November 2008 02:41
by Therese Hart
Variety News Staff
ATTORNEYS representing Layon property owners have filed a motion to dismiss the declaratory judgment and lift the temporary stay that U.S. District Court Judge Frances Tydingco-Gatewood issued Oct. 22 during a quarterly status hearing on the closure of the Ordot Dump and construction of the new landfill in Layon, Inarajan. Earlier, receiver Gershman, Brickner & Bratton had told the court of its concern about whether the government had title to the Layon site, which is where the new landfill will be built.
The court converted the receiver's oral statement into a motion for declaratory judgment under the Declaratory Judgment Act and issued an order staying any action by the Superior Court of Guam in the eminent domain proceeding pending the District Court's determination of whether the government of Guam has acquired legal title to the Layon site, according to court documents filed by Atty. Lee T. Camacho for Atty. Anita Arriola.
Arriola's lawfirm --- Arriola, Cowan & Arriola --- represents Layon property owners Oxford Properties & Finance Ltd., Joaquin C. Arriola and Douglas F. Cushnie.
Arriola's filing states that the District Court lacks jurisdiction to interpret local law governing eminent domain and to determine whether GovGuam has complied with all statutory requirements.
Furthermore, the filing states that without an independent basis for subject matter jurisdiction, the declaratory judgment act standing alone does not grant the court jurisdiction to interpret Guam law governing the exercise of eminent domain.
No federal questions
Arriola's filing also states that the eminent domain case raises no federal questions. Without original jurisdiction over the claims raised in the eminent domain case, the court is prohibited from removing the case from Superior Court to District Court.
"Guam law provides that the Superior Court of Guam has original jurisdiction of eminent domain proceedings initiated by the Government of Guam concerning Guam real properties…. the Superior Court of Guam shall have jurisdiction over all actions for condemnation of private property for public use by the government of Guam."
The filing states that district courts shall have original jurisdiction of all civil actions arising under the Constitution, law, or treaties of the United States and that GovGuam filed the eminent domain action in the Superior Court of Guam pursuant to its authority to do so under Guam law.
The taking of the Dandan property is not a federal taking and is therefore not based upon the taking clause of the U.S. Constitution or/and U.S. laws.
Whether or not GovGuam has complied with the stringent statutory requirements under Guam's eminent domain law is a matter of purely local law, according to Arriola's filing, and the District Court should abstain from ruling on issues of local law that are currently pending before the Superior Court of Guam.
Owners
Oxford Properties & Finance holds a 50 percent undivided interest in all property originally designated as Lot B, Dandan, Inarajan.
Arriola owns five percent interest in the undivided one-half interest in Lot B owned by Calvo's Insurance Underwriters, Inc. (or 2.5 percent interest of the whole Lot B). After conveyance of the 5 percent interest to Arriola, Cushnie and Mitchell A. Stevens, the interest was further sold so that the current holders of the five percent are: Arriola with two-sixths interest; Cushnie at three-sixths interest; and Young Chull Kim at one-sixth interests. Many of the landowners acquired their interests in 1979, according to court documents.
Cunliffe
Atty. Randall Cunliffe of Cunliffe & Cook, filed a memorandum of points and authorities in support of the motion to dismiss. Cunliffe represents Calvo's Insurance Undewriters, Inc.; Valencia Investments Corporation; Henry Sy; Jones & Guerrero Company, Inc.; Alfred C. and Diane Z. Ysrael; and Lee M. and Joan S. Holmes.
Cunliffe's filing in District Court challenges Tydingco-Gatewood's issuance of a declaratory judgment, stating that 28 USC§2201 authorizes the "courts of the United States" upon the filing of an appropriate pleading, to declare the rights and other legal relations of any other interested parties seeking such declaration on cases of actual controversy within its jurisdiction."
According to Cunliffe's filing, "28 USC§1330 et. Seq., does not establish that the District Courts have jurisdiction over a condemnation proceeding between a state or territory and land within a state or territory. Therefore, this matter should be dismissed."
Cunliffe's filing also states that he, nor his clients, were not served by the Superior Court with any documents in the action and that his clients are not parties to the action.
Cunliffe also stated in his filing that he was concerned about the court's appearance of partiality.
Tuesday, 11 November 2008 02:41
by Therese Hart
Variety News Staff
ATTORNEYS representing Layon property owners have filed a motion to dismiss the declaratory judgment and lift the temporary stay that U.S. District Court Judge Frances Tydingco-Gatewood issued Oct. 22 during a quarterly status hearing on the closure of the Ordot Dump and construction of the new landfill in Layon, Inarajan. Earlier, receiver Gershman, Brickner & Bratton had told the court of its concern about whether the government had title to the Layon site, which is where the new landfill will be built.
The court converted the receiver's oral statement into a motion for declaratory judgment under the Declaratory Judgment Act and issued an order staying any action by the Superior Court of Guam in the eminent domain proceeding pending the District Court's determination of whether the government of Guam has acquired legal title to the Layon site, according to court documents filed by Atty. Lee T. Camacho for Atty. Anita Arriola.
Arriola's lawfirm --- Arriola, Cowan & Arriola --- represents Layon property owners Oxford Properties & Finance Ltd., Joaquin C. Arriola and Douglas F. Cushnie.
Arriola's filing states that the District Court lacks jurisdiction to interpret local law governing eminent domain and to determine whether GovGuam has complied with all statutory requirements.
Furthermore, the filing states that without an independent basis for subject matter jurisdiction, the declaratory judgment act standing alone does not grant the court jurisdiction to interpret Guam law governing the exercise of eminent domain.
No federal questions
Arriola's filing also states that the eminent domain case raises no federal questions. Without original jurisdiction over the claims raised in the eminent domain case, the court is prohibited from removing the case from Superior Court to District Court.
"Guam law provides that the Superior Court of Guam has original jurisdiction of eminent domain proceedings initiated by the Government of Guam concerning Guam real properties…. the Superior Court of Guam shall have jurisdiction over all actions for condemnation of private property for public use by the government of Guam."
The filing states that district courts shall have original jurisdiction of all civil actions arising under the Constitution, law, or treaties of the United States and that GovGuam filed the eminent domain action in the Superior Court of Guam pursuant to its authority to do so under Guam law.
The taking of the Dandan property is not a federal taking and is therefore not based upon the taking clause of the U.S. Constitution or/and U.S. laws.
Whether or not GovGuam has complied with the stringent statutory requirements under Guam's eminent domain law is a matter of purely local law, according to Arriola's filing, and the District Court should abstain from ruling on issues of local law that are currently pending before the Superior Court of Guam.
Owners
Oxford Properties & Finance holds a 50 percent undivided interest in all property originally designated as Lot B, Dandan, Inarajan.
Arriola owns five percent interest in the undivided one-half interest in Lot B owned by Calvo's Insurance Underwriters, Inc. (or 2.5 percent interest of the whole Lot B). After conveyance of the 5 percent interest to Arriola, Cushnie and Mitchell A. Stevens, the interest was further sold so that the current holders of the five percent are: Arriola with two-sixths interest; Cushnie at three-sixths interest; and Young Chull Kim at one-sixth interests. Many of the landowners acquired their interests in 1979, according to court documents.
Cunliffe
Atty. Randall Cunliffe of Cunliffe & Cook, filed a memorandum of points and authorities in support of the motion to dismiss. Cunliffe represents Calvo's Insurance Undewriters, Inc.; Valencia Investments Corporation; Henry Sy; Jones & Guerrero Company, Inc.; Alfred C. and Diane Z. Ysrael; and Lee M. and Joan S. Holmes.
Cunliffe's filing in District Court challenges Tydingco-Gatewood's issuance of a declaratory judgment, stating that 28 USC§2201 authorizes the "courts of the United States" upon the filing of an appropriate pleading, to declare the rights and other legal relations of any other interested parties seeking such declaration on cases of actual controversy within its jurisdiction."
According to Cunliffe's filing, "28 USC§1330 et. Seq., does not establish that the District Courts have jurisdiction over a condemnation proceeding between a state or territory and land within a state or territory. Therefore, this matter should be dismissed."
Cunliffe's filing also states that he, nor his clients, were not served by the Superior Court with any documents in the action and that his clients are not parties to the action.
Cunliffe also stated in his filing that he was concerned about the court's appearance of partiality.
Thursday, October 23, 2008
District Court Assumes Dandan Ownership Issue
District Court to assume Dandan ownership issue
Friday, 24 October 2008
by Therese Hart
Marianas Variety News Staff
US District Court Judge Frances Tydingco-Gatewood has ordered a stay in the Superior Court proceedings involving the ownership issuJudge Frances Tydingco
e of the Dandan property where the next landfill will be constructed. The judge said this issue will now be decided by the District Court.
During its quarterly meeting, David Manning of receiver Gershman, Brickner & Bratton informed the court that because of the pending litigation in the Superior Court, it would be impossible to obtain debt financing for consent decree projects.
"There is an urgent need to clarify that the government of Guam has lawfully obtained title to the Layon site," Manning said.
Under GBB's timetable, construction of the new landfill is scheduled to begin in January, 2009, with the government of Guam required to deposit $20 million with a trustee.
Since the court's adoption of the receiver's timeline, it requires that financing be in place for the consent decree projects.
GBB advised the court that the cloud over the title to the Layon site must be cleared immediately or financing will be almost impossible to obtain.
Attorney General Alicia Limtiaco informed the court that the Dandan site has pending litigation in the Superior Court and that this issue should be resolved first.
There are court cases pending in the Superior Court regarding the title and the proper legal acquisition of the Dandan property.
One case involves a challenge to the government by the private property owners who claim that the government violated the eminent domain law and the land acquisition process.
Another pending case is between property owners regarding their interests in the distribution of property that has yet to be divided.
The order states that the District Court will not make any determination of property value and should the court find that the government of Guam has acquired legal title to the Layon site, the temporary stay will be lifted so that the Superior Court of Guam may address valuation issues.
Pleadings and briefs for a declaratory judgment must be filed by Oct. 27.
Briefs concerning legal rights or interests pertaining to the Layon site must be filed by other interested parties or landowners no later than Oct. 30.
A hearing is scheduled Nov. 6 at 9 a.m., at the U.S. District Court
Friday, 24 October 2008
by Therese Hart
Marianas Variety News Staff
US District Court Judge Frances Tydingco-Gatewood has ordered a stay in the Superior Court proceedings involving the ownership issuJudge Frances Tydingco
e of the Dandan property where the next landfill will be constructed. The judge said this issue will now be decided by the District Court.
During its quarterly meeting, David Manning of receiver Gershman, Brickner & Bratton informed the court that because of the pending litigation in the Superior Court, it would be impossible to obtain debt financing for consent decree projects.
"There is an urgent need to clarify that the government of Guam has lawfully obtained title to the Layon site," Manning said.
Under GBB's timetable, construction of the new landfill is scheduled to begin in January, 2009, with the government of Guam required to deposit $20 million with a trustee.
Since the court's adoption of the receiver's timeline, it requires that financing be in place for the consent decree projects.
GBB advised the court that the cloud over the title to the Layon site must be cleared immediately or financing will be almost impossible to obtain.
Attorney General Alicia Limtiaco informed the court that the Dandan site has pending litigation in the Superior Court and that this issue should be resolved first.
There are court cases pending in the Superior Court regarding the title and the proper legal acquisition of the Dandan property.
One case involves a challenge to the government by the private property owners who claim that the government violated the eminent domain law and the land acquisition process.
Another pending case is between property owners regarding their interests in the distribution of property that has yet to be divided.
The order states that the District Court will not make any determination of property value and should the court find that the government of Guam has acquired legal title to the Layon site, the temporary stay will be lifted so that the Superior Court of Guam may address valuation issues.
Pleadings and briefs for a declaratory judgment must be filed by Oct. 27.
Briefs concerning legal rights or interests pertaining to the Layon site must be filed by other interested parties or landowners no later than Oct. 30.
A hearing is scheduled Nov. 6 at 9 a.m., at the U.S. District Court
Wednesday, February 20, 2008
Request to Stymie Dandan Development Denied
Request to stymie Dandan development denied
by Mindy Aguon
KUAM News
Wednesday, February 20, 2008
The Supreme Court of Guam declined a request to stop the government from spending money to develop a landfill at Dandan. Former Ordot-Chalan Pago mayor Rosanna San Miguel and several other residents made the request believing the landfill should be built at either Guatali or Malaa. Justices determined that the Government of Guam - specifically the Department of Public Works and the Guam Environmental Protection Agency - was authorized to exclude the two sites.
The high court also found that the Guam Legislature had granted the government the authority to select alternative sites for a landfill, which includes Dandan and upheld the validity of Public Law 24-272.
The court's opinion reads as such:
The Supreme Court of Guam today issued an Opinion in the case San Miguel v. Department of Public Works, 2008 Guam 3, which declined Plaintiffs-Appellants’ request to order the government not to continue expending funds on the development of the new landfill at Dandan until alternative sites at Guatali and Malaa were further considered as potential landfill sites.
Plaintiffs-Appellants in the case were taxpaying citizens of Guam who sought to have the landfill built at either Guatali or Malaa, and not Dandan. In Public Law 23-95, the Legislature named Guatali and Malaa as the primary and secondary sites for the new landfill, but stated that those sites could be excluded “for any legitimate reason.” The Defendants – including the Department of Public Works, the Guam Environmental Protection Agency, and others – excluded Guatali based on slope and geological exclusionary criterion, and excluded Malaa based on slope exclusionary criteria and existing land use incompatibility.
The trial court granted summary judgment for the Defendants with respect to the Guatali site, finding that it was lawfully excluded because it was owned by the federal government. Plaintiffs asked the trial court to reconsider that ruling, but the trial court declined that request. The trial court heard a motion for preliminary injunction with respect to Malaa, which it denied because the court found that the Defendants had “appropriately considered and rejected [it] as a proposed landfill site.”
On appeal, Plaintiffs-Appellants sought a reversal of the lower court’s denial of the motion for reconsideration and the motion for preliminary injunction. The Guam Supreme Court declined on jurisdictional grounds to consider the appeal of the lower court’s motion for reconsideration. The court reviewed the denial of the preliminary injunction, and found that the Defendants had acted within the authority granted to them by the Legislature in excluding Malaa as a potential landfill site. Specifically, the court found that excessive slope was a “legitimate reason” to exclude a site from consideration. The court also found that the Legislature had granted Defendants the authority to select alternative sites for landfills, including Dandan, through Public Law 24-272, which the court found was valid law.
by Mindy Aguon
KUAM News
Wednesday, February 20, 2008
The Supreme Court of Guam declined a request to stop the government from spending money to develop a landfill at Dandan. Former Ordot-Chalan Pago mayor Rosanna San Miguel and several other residents made the request believing the landfill should be built at either Guatali or Malaa. Justices determined that the Government of Guam - specifically the Department of Public Works and the Guam Environmental Protection Agency - was authorized to exclude the two sites.
The high court also found that the Guam Legislature had granted the government the authority to select alternative sites for a landfill, which includes Dandan and upheld the validity of Public Law 24-272.
The court's opinion reads as such:
The Supreme Court of Guam today issued an Opinion in the case San Miguel v. Department of Public Works, 2008 Guam 3, which declined Plaintiffs-Appellants’ request to order the government not to continue expending funds on the development of the new landfill at Dandan until alternative sites at Guatali and Malaa were further considered as potential landfill sites.
Plaintiffs-Appellants in the case were taxpaying citizens of Guam who sought to have the landfill built at either Guatali or Malaa, and not Dandan. In Public Law 23-95, the Legislature named Guatali and Malaa as the primary and secondary sites for the new landfill, but stated that those sites could be excluded “for any legitimate reason.” The Defendants – including the Department of Public Works, the Guam Environmental Protection Agency, and others – excluded Guatali based on slope and geological exclusionary criterion, and excluded Malaa based on slope exclusionary criteria and existing land use incompatibility.
The trial court granted summary judgment for the Defendants with respect to the Guatali site, finding that it was lawfully excluded because it was owned by the federal government. Plaintiffs asked the trial court to reconsider that ruling, but the trial court declined that request. The trial court heard a motion for preliminary injunction with respect to Malaa, which it denied because the court found that the Defendants had “appropriately considered and rejected [it] as a proposed landfill site.”
On appeal, Plaintiffs-Appellants sought a reversal of the lower court’s denial of the motion for reconsideration and the motion for preliminary injunction. The Guam Supreme Court declined on jurisdictional grounds to consider the appeal of the lower court’s motion for reconsideration. The court reviewed the denial of the preliminary injunction, and found that the Defendants had acted within the authority granted to them by the Legislature in excluding Malaa as a potential landfill site. Specifically, the court found that excessive slope was a “legitimate reason” to exclude a site from consideration. The court also found that the Legislature had granted Defendants the authority to select alternative sites for landfills, including Dandan, through Public Law 24-272, which the court found was valid law.
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