Lawsuit filed over Pagat

by Mindy Aguon from KUAM.com

Guam - The Department of Defense is being taken to court over a decision to use an area of land adjacent to the historic and culturally-rich village of Pagat for a firing range complex for U.S. Marines. The litigation looks to force the DoD to comply with federal laws.

"We did not want to get to this stage," Attorney Nicholas Yost said. "We've had many, many meetings and consultations."

Referring to it as their last resort, the Guam Historic Preservation Trust and We Are Guahan joined in a lawsuit with the National Trust for Historic Preservation filed against the Department of Defense. The lawsuit, filed in Hawaii where the environmental review process was coordinated by the Navy, challenges the military's plans to build a firing range complex adjacent to the historic village of Pagat, named one of the 11 most endangered historic sites.

Guam Historic Preservation Officer Joe Quinata said, "This action does not challenge the buildup itself. but seeks to compel the Department of Defense to comply with the National Environmental Policy Act and the National Historic Preservation Act by giving adequate consideration to alternative locations for the firing ranges, as mandated by law."

Yost, with the San Francisco-based SNR Denton, along with Matthew Adams has taken on this case pro bono as they believe the DoD has failed to comply with the NEPA and the National Historic Preservation Act by giving adequate consideration to alternative locations for the firing ranges.

"At the very minimum, what we want is for them to reopen the process honestly to examine alternatives, and those alternatives include those at Andersen Air Force Base, those on Navy property, all of which are listed in the complaint," Yost explained. "There's also other places on Guam that they have suggested that they haven't looked at all. There's also the possibility of relocating the ranges to Tinian, where indeed some firing ranges are already proposed in the environmental impact statement for the future."

As the lead drafter of the NEPA regulations, Attorney Yost is all too familiar with what the law requires of the federal government. Yost contends the DoD failed to follow the law and violated numerous regulations, adding, "They restricted their surveying of sites to sites on Defense Department land except for Pagat - that is the one exception they made to the rule. Other than that they looked at just Defense Department land."

Yost adds that the alternatives the DoD discarded including sites at the naval and Air Force bases should not have been thrown out without significant review. While the most desirable outcome of the lawsuit would be to put the firing range somewhere other than Pagat, the plaintiffs are also asking that a supplemental environmental impact statement be conducted.

We Are Guahan's Attorney Leevin Camacho believes Guam's unified stance against Pagat has helped make the difference, telling KUAM News, "Pagat is the most glaring example of how the DoD made its decision a long time ago with how the buildup was gonna proceed, and litigation is never what you want to do. I say that as a lawyer. I hope this sends a message that the people of Guam are not going to sit by, as bystanders on our own island and we're going to do whatever we can to protect our home including legal action."

National Trust for Historic Preservation's Dr. Anthea Hartig says the organization is glad to be collaborating on such a historic and meaningful event. "We do not take this kind of legal action lightly, but we feel that even though we've come to it reluctantly, we come to it with a seriousness of mission and we are here for you and we're and we're deeply honored to be there with you," she explained.

For others who call Guam home, today's announcement brought tears to their eyes. Moneka De Oro says she's grateful for the organizations standing up for the people of Guam to protect our future and resources. She added, "It is a very emotional experience. This whole buildup process has been incredibly emotional, especially because the people of Guam have really been cast aside in the decision making processes, so it's very emotional for us to come to this point after gathering our community together after negotiating with the DoD in many different ways, and them not listening to us and to have to come to this. It's very emotional."

United States District Court Judge David Ezra has been assigned the case and a scheduling conference is set for February 14 in Hawaii.

NMI immigration officers say they may sue govt

NMI immigration officers say they may sue govt

Wednesday, January 06, 2010
By Haidee V. Eugenio

Now jobless, at least six long-time civil service employees of the newly-closed CNMI Division of Immigration are weighing their options that may include suing the government for leaving them in limbo.

Roman M. Tudela Jr., who serves as spokesperson of the group, said they were not given an opportunity to transfer to other local agencies or to file for retirement.

“We would like to give the government until today to answer my letter about the closing of the Immigration office. We are not asking for more. Filing a lawsuit is our last resort. We would like to settle this matter as peaceful as possible,” Tudela told Saipan Tribune in a phone interview yesterday.

Tudela worked at the CNMI Division of Immigration for over 19 years.

He wrote a letter to Attorney General Edward T. Buckingham on Jan. 4, a few days after Buckingham issued a memorandum officially stating that the CNMI Division of Immigration has ceased operations.

The office closure came a little over a month since the federal government took over control of CNMI immigration on Nov. 28 pursuant to U.S. Public Law 110-229 or the Consolidated Natural Resources Act.

Tudela said while the attorney general's memo mentioned that the office “has finally come to a conclusion,” he said he is “still in limbo on the status of my employment.”

“There are about five other long-time civil service employees who were never formally informed of our future in the CNMI government after such closure of DOI,” Tudela told Buckingham.

As of yesterday, Tudela has yet to receive a response from the attorney general.

“I understand times have been very challenging and we are all busy during this transition mode with federalization of CNMI immigration, but I feel I deserve the respect and the right to be addressed properly as CNMI government civil service employee,” Tudela said.

He also gave a copy of his letter to Gov. Benigno R. Fitial, Lt. Gov. Eloy S. Inos, House Speaker Arnold I. Palacios (R-Saipan), Senate President Pete P. Reyes (R-Saipan), and Personnel director Francisco S. Ada.

Acting press secretary Teresa Kim earlier said that the government has worked to get as many people as possible placed into alternate jobs.

She also noted ongoing meetings with CNMI immigration employees to discuss options within the government and options to retire, among other things.

Back in November, there were at least 34 remaining CNMI immigration officers with the division, but the governor said at the time that his administration is doing its best to transfer eligible employees to other local agencies such as the Department of Corrections, the Division of Customs Service, or the Labor and Immigration Identification System.

Federalization of local immigration not only marked another chapter in the CNMI's 34-year relationship with the United States, but also leaves American Samoa as the only U.S. territory that controls its own borders.

U.S. offers to pay Native Americans $1.4 billion for lost funds

U.S. offers to pay Native Americans $1.4 billion for lost funds

By Paul Courson, CNN
December 8, 2009 11:21 p.m. EST

Washington (CNN) -- Thousands of American Indians would receive as much as $1,000 each if they accept a proposed $1.4 billion to settle a class-action lawsuit over government mismanagement of tribal lands.

The suit, filed in 1996, accused the U.S. Department of the Interior of failing to account for and provide revenue from a trust fund representing the value of Indian assets managed by the government.

As part of the settlement, the federal government would agree to establish a $2 billion program to buy small fractions of land to help sellers obtain value from ancestral property, which then would be held by tribal governments.

The missing funds at the center of the class-action case involve what are called Individual Indian Money accounts, which are supposed to represent the property of individual American Indians. The accounts are held by the United States as trustee.

The lawsuit had accused the government of failing to account for the money, failing to make proper payments, and converting tribal money for the government's own use.

A federal judge must approve the plan, and Congress would have to enact a bill to implement it.

At a Tuesday news conference, Interior Secretary Ken Salazar acknowledged the need for a "historical accounting for funds that the government held in trusts for Native Americans."

Attorney General Eric Holder, accompanying Salazar to announce the settlement proposal, said the deal addresses allegations "the government has mismanaged acres of land and millions of dollars that it holds in trust for Native Americans."

But one of the American Indians who filed the suit in 1996 suggested the years of litigation had simply worn them down.

"It's not fair," said Elouise Cobell, but "in the future we may be treated more fairly."

Cobell, a member of Montana's Blackfeet Indian tribe, said those who could benefit from the payments are getting old and dying off.

Pressing for a higher settlement figure would be tough, she said, since she "can't handle how the mismanagement of this trust has hurt people."

Cobell said many of those represented in the class-action suit "subsist in the direst poverty," and that the settlement is "significantly less than the full amount to which the Indians are owed."

Confirmation of a proposed settlement was a tightly kept secret ahead of the news conference at the Interior Department. Part of the reason may have been that the deal nearly fell through just hours earlier, according to an agency official.

"It's confidential," said Associate Attorney General Tom Perrelli in response to a reporter's question as to the sticking point.

News of the deal was buried in a statement released in advance from the Interior Department that mentioned "the Cobell settlement," as part of a broader plan being announced to address land ownership by Native Americans.

The group ownership of land by American Indians dates back more than 100 years before American Indians were permitted to write wills. As a result, the government says large parcels of tribal lands are held by owners with "miniscule interests" received from ancestors who conveyed the property to descendants as tenants-in-common.

Officials say the purchase project will allow individual landowners to receive greater value for their share, while cutting administrative costs for the federal government, which manages the Indian land trust.

Salazar said, "It is common to have hundreds -- even thousands -- of Indian owners for one parcel."

The initiative would consolidate ownership through purchases from willing sellers, and tribal governments would have control, according to a "fact sheet" put out ahead of the announcement.

Without the purchases, "Millions of acres of land will be owned in such small ownership interests that very few individual owners will ever derive any meaningful financial benefit from that ownership," the statement said.

Judge stops DHS from implementing interim final rule

Judge stops DHS from implementing interim final rule

Friday, November 27, 2009

Agency told to come up with regs for alien workers to travel in, out of NMI
By Ferdie de la Torre
Reporter

The federal government's interim final rule on the CNMI transitional worker program will not go into effect tomorrow, Saturday, after the judge handling the CNMI government's lawsuit against federalization issued a preliminary injunction yesterday to prevent the rule from going into effect pending the outcome of the lawsuit.

U.S. District Court for the District of Columbia Judge Paul L. Friedman agreed with the CNMI government that the U.S. Department of Homeland Security had no reasonable basis for publishing the interim rule without giving the CNMI and other stakeholders time to comment, as required under the Administrative Procedures Act.

To help alien workers leave and re-enter the CNMI or for employers to hire needed off-island workers, Friedman suggested that DHS promulgate a narrowly focused and temporary emergency regulation that addresses these issues.

Labor special counsel Deanne Siemer said this is virtually a command for DHS to come up with an emergency regulation that would allow aliens in the CNMI to travel in and out.

Also, since no U.S. Citizenship and Immigration Services' regulations on CW status or business permits will come into effect tomorrow, the CNMI will continue to operate under its existing labor system except for entry and exit, Siemer said.

The interim rule defines the types of businesses that will be eligible to receive permits for alien workers. It sets a numerical limit on the number of permits that will be granted between Nov. 28, 2009 and Sept. 30, 2010. It also outlines requirements that must be met by employers seeking to obtain a permit.

The CNMI, through the Block and Jenner law firm, asked the court to bar the implementation of the regulations, citing that DHS violated the APA in promulgating them. The CNMI argued that DHS wrongfully dispensed with the notice-and-comment procedures required by the law.

The federal government countered that DHS' action does not violate the APA because it had “good cause” to dispense with the requirement.

In granting the CNMI's motion, Friedman said DHS first provided public notice of the rule when it published the rule in the Federal Register on Oct. 27, 2009.

“Since the interim rule was already in its final form on that date, it is undisputed that DHS failed to provide the notice and opportunity for comment typically required by the APA,” Friedman said.

The judge concluded that upon consideration of the totality of the circumstances surrounding the issue, the CNMI is likely to succeed on its claim that DHS did not have “good cause” to dispense with the notice-and-comment procedures and thus violated the APA.

The federal government suggested that providing notice and an opportunity to comment prior to promulgating the rule was impracticable because Congress, in passing the Consolidated Natural Resources Act (federalization law), imposed several burdensome administrative duties on DHS and only allowed the agency 18 months in which to fulfill them.

Friedman found this argument unpersuasive. He said the interim rule will dramatically alter the CNMI's current system for admitting guest workers, who constitute two-thirds of the CNMI's private workforce.

In short, the judge said, the rule will enact far-reaching changes that likely will have significant effects on the CNMI labor market, and it will do so despite the fact that it has not “been tested via exposure to diverse public comment.”

Friedman found convincing the CNMI's arguments that residents and government have meaningful concerns about the rule.

Friedman cited that the criteria established by the rule for issuance of permits for new guest workers to employers may be inadequate.

As written, the judge pointed out, the rule requires employers seeking permits to “consider all available U.S. workers for the position” that is to be filled by a new guest worker, but does not require those employers to consider guest workers already present in the Commonwealth for the position.

To ensure that employers have “considered available U.S. workers,” the rule only asks that employers attest that they have done so, Friedman said.

“The CNMI posits that such attestations may 'be prone to fraud and leave qualified U.S. citizens unemployed,' a matter it would have raised and documented if it had been given the opportunity to comment,” he said.

The judge added that if he ultimately decides the merits of the CNMI's APA claim in the Commonwealth's favor, the damage done by DHS' violation of the APA cannot be fully cured by later remedial action.

He noted that once the program structured by the rule has begun operation as scheduled on Nov. 28, 2009, DHS is far less likely to be receptive to comments.

“If the interim permit rule is not enjoined prior to its effective date, the CNMI will never have an equivalent opportunity to influence the rule's contents,” Friedman said.

The federal government has provided no evidence to show how many workers and businesses will be affected by a temporary delay in the implementation of the rule, and the court is aware of none.

Friedman said it is unclear that foreign workers otherwise eligible under the Immigration and Nationality Act will be able to leave the CNMI and re-enter it within the first several weeks after Nov. 28, 2009, even if the rule is in place.

“Similarly, while the interim permit rule creates a mechanism whereby a CNMI employer may arrange to hire foreign workers from outside the Commonwealth, it is difficult to know whether employers will have much need for that mechanism in the weeks immediately following Nov. 28, 2009.”

Friedman said the emergency rules to address the problem of foreign workers seeking to leave and return to the CNMI or employers in need of workers from outside the CNMI may be promulgated without notice and comment, since they fall within the APA's “good cause” exception.

“It is unfortunate that DHS may have to issue such ad hoc emergency rules. The court emphasizes, however, that this is a problem of the agency's own making,” he said.

Had DHS released the rule earlier in the year and provided the public with notice and an opportunity for comment, the current problem would never have arisen, he said.

“DHS should not now expect to excuse its violation of the APA by pointing to the problems created by its own delay,” Friedman said.

By failing to meet even the minimum standards set by the APA, DHS has also failed to comply fully with Congress' intent to secure the meaningful involvement of the Commonwealth in the transformation of the CNMI's immigration law, he said.

Friedman said the transitional work permitting program “is of great importance to the CNMI, since it has the potential to transform the nature of the Commonwealth's workforce.”

“That program also involves an area-the regulation of immigration into the CNMI-about which the Commonwealth has significant expertise, having knowledge of the needs of its own economy and having operated its own immigration program for decades,” he said.

The judge said the public interest will be best served if the rule is temporarily stopped so that it may be revised as necessary by DHS upon receipt of comments and advice from the CNMI and other parties.

Fitial, workers welcome ruling

Fitial, workers welcome ruling

Friday, November 27, 2009

Federal takeover excludes labor-for now
By Haidee V. Eugenio
Reporter

The federal government will only be able to implement border control at the stroke of midnight on Nov. 28, but not the existing CNMI labor program, at least for now.

This is because of a federal judge's order dated Nov. 25 preventing the U.S. Department of Homeland Security from implementing in its current form the interim final rule on the CNMI transitional worker program, which takes effect on Saturday.

Gov. Benigno R. Fitial and the United Workers Movement-NMI separately welcomed yesterday U.S. District Court for the District of Columbia Judge Paul L. Friedman's ruling granting the CNMI government's motion for a preliminary injunction preventing DHS from implementing its CNMI transitional worker (CW) classification rule.

“I am very pleased with this favorable decision by Judge Friedman. The interim final rule fails to comply with Public Law 110-229 and will be very damaging to the Commonwealth if it goes into effect in its present form,” Fitial said in a statement yesterday.

Fitial, who turns 64 today, sued the federal government over federalization.

He urged DHS to consider the over 100 comments that have so far been filed on its transitional worker program rule.

In an interview with Saipan Tribune on Wednesday, Fitial reiterated that a federal takeover of local labor is “unnecessary.”

“We don't have any problem having the federal government take over immigration. Let them control our border because we don't have the capabilities to do that, but we have a strong enforcement mechanism to control our labor. Why do they have to remove labor from us? It doesn't make sense and we're the only one. All the other [U.S.] territories, they control their own labor,” he said.

'Green card'

Ronnie Doca and Rabby Syed, leaders of the workers group, hope that latest court ruling will give DHS more time to consider their concerns.

Workers groups in the CNMI want the federal government to grant “green cards” or legal permanent resident status to certain classes of nonresidents in the CNMI, including long-term foreign workers.

“We are happy with the ruling so DHS will have more time to look into our concerns. Among the most important things we are asking [for] is a better immigration for long-time nonresident workers, and a blanket authority for those with valid CNMI permits to re-enter the CNMI after a vacation or emergency exit,” said Doca, board chairman of the group, which comprises thousands of foreign workers in the CNMI.

Worker groups have started a signature campaign asking President Obama and the U.S. Congress to grant “green cards” to certain foreigners in the CNMI, ahead of the May 10, 2010, deadline for Interior Secretary Ken Salazar to recommend to Congress whether a grant of permanent immigration status to nonresidents in the CNMI is necessary.

'Exit, entry'

DHS' interim final rule, which is supposed to take effect Saturday, prohibits foreign workers from re-entering the islands using only their valid CNMI work and entry permit.

Friedman said DHS could “promulgate a narrowly focused and temporary emergency regulation” that addresses only the “exit and entry” problems presented in the department's interim final rule.

Regulations by DHS' U.S. Citizenship and Immigration Services would have required foreign workers to secure a CW-1 visa from a U.S. embassy for them to re-enter the CNMI, but only after they first secure a CNMI-only transitional worker status, which may take up to 60 days to acquire.

This means foreign workers can exit but not re-enter the CNMI up to at least early 2010, in order to secure a CW status and a CW-1 visa to comply with the DHS interim final rule.

DHS, however, repeatedly said that nonresident workers can exit the CNMI any time during the transition period from Nov. 28, 2009 to Dec. 31, 2014, but they cannot re-enter the islands without a CW-1 visa obtained from a U.S. embassy.

There is also a possibility that an applicant may be denied a CW-1 visa and therefore won't be able to re-enter the CNMI and continue working on the islands despite possessing a valid CNMI work and entry permit.

The Form I-29CW is a modified form of the Form I-29, but it is specifically used for the Commonwealth-only Transitional Worker, or CW, program.

A “transitional worker” under P.L. 110-229 is defined as an alien worker who is currently ineligible for another classification under the U.S. Immigration and Naturalization Act and who performs services or labor for an employer in the CNMI.

Most of the foreign workers in the CNMI are from the Philippines and China, while others are from Korea, Thailand and Bangladesh.

Florida-based human rights activist and former Rota teacher Wendy Doromal expressed hope that the comments so far submitted on the DHS interim final rule “should now be considered by DHS.”

Many relate to travel restrictions and the requirement for a visa for a foreign worker to return to the CNMI after traveling for personal or medical reasons.

Friedman agreed with the CNMI that DHS had no reasonable basis for publishing the interim final rule without complying with the notice and comment provisions of the Administrative Procedures Act.

The judge also made clear that he was denying any possible effort by the U.S. Department of Justice representing DHS to obtain a stay of his order pending appeal to the U.S. Court of Appeals in Washington, D.C.

Border control

The DHS transitional worker rule is supposed to take effect Saturday, when DHS' U.S. Customs and Border Protection takes over border control.

Edward H. Low, public affairs liaison at CBP's San Francisco office, earlier said that between 40 and 50 CBP officers will be on Saipan to take over immigration control at the Saipan International Airport at the stroke of midnight on Nov. 28.

But as of press time yesterday, Low said he's still checking to see what, if any, impact the court ruling will have on CBP operations.

Among other things, the federal takeover of local immigration means U.S. visas will be required of foreigners to enter the CNMI, just like Guam, Hawaii, and the rest of the United States, except for nationals of countries that are included in visa waiver programs.

The CNMI is the last U.S. territory that controls its own borders.

Fingerprinting and eye scan will also become main fixtures at the airport, just like anywhere in the U.S.

P.L. 110-229 or the Consolidated Natural Resources Act, signed by President George Bush in May 2008, not only applies federal immigration control in the CNMI but also gave the CNMI its first non-voting delegate to the U.S. Congress.

As a result of the federalization law, the CNMI held its first delegate election in November 2008, won by Gregorio Kilili C. Sablan, a former executive director of the Commonwealth Election Commission.

Fitial: ‘I will never support federalization’

Fitial: ‘I will never support federalization’

Monday, 23 November 2009 00:00 By Gemma Q. Casas - Reporter

GOVERNOR Benigno R. Fitial hopes the federal judge handling the lawsuit he filed against the federalization law will rule in the CNMI’s favor.

Judge Paul Friedman of the U.S. District Court for the District of Columbia is scheduled to hear oral arguments on Nov. 23, which is Tuesday local time.

But Rep. Tina Sablan described the lawsuit as “wasteful.”

“I am hopeful that Judge Friedman will soon dismiss the governor’s wasteful lawsuit against the federal government, and that the CNMI will finally begin to work cooperatively with the federal government to ensure a transition to federal immigration control that is as smooth as possible,” she said in an e-mail.

But the governor believes that federalization will be fatal for the local economy.

“I will never support federalization,” he said.

This month, his administration began issuing umbrella permits to thousands of guest workers.

The governor said this should protect the workers from being uprooted from the commonwealth once the U.S. takes over local immigration.

Judge's ruling on federalization out before Nov. 28

Judge's ruling on federalization out before Nov. 28

Tuesday, November 10, 2009
By Ferdie de la Torre

The judge that is handling the CNMI government's lawsuit against federalization has disclosed that he will issue a ruling on the case before Nov. 28, 2009, according to Gov. Benigno R. Fitial's special legal counsel, Howard Willens.

In an e-mail yesterday, Willens said that U.S. District Court for the District of Columbia Judge Paul L. Friedman had announced during a telephone status conference late Friday afternoon that he will issue his opinion on the federalization lawsuit before the start date of federalization.

The Department of Homeland Security is set to implement federal immigration laws in the CNMI on Nov. 28, under the authority provided by the Consolidated Natural Resources Act of 2008.

Willens said the counsel for the Commonwealth and the U.S. Department of Justice participated in the status conference, which took up the CNMI's motion to stop DHS from implementing its interim final rule.

The interim final rule was published on Oct. 27, 2009. It is scheduled to become effective on Nov. 28, 2009, providing for a CNMI Transitional Worker Program.

The CNMI contends that the DHS cannot justify its failure to follow the notice and comment provisions of the Administrative Procedure Act before issuing these regulations in final form.

Willens said that Friedman instructed DOJ to file its response by Nov. 13, 2009. The judge also gave the CNMI until Nov. 18 to file its reply brief. Friedman set the oral argument on the motion on Monday, Nov. 23, 2009.

Willens said that Friedman told both CNMI and Justice counsels that he was working on his opinion on the Commonwealth's earlier motion seeking a preliminary injunction of selected provisions of the Consolidated Natural Resources Act and the Justice's motion to dismiss the federalization lawsuit.

The CNMI, through counsel Jenner & Block law firm, filed on Nov. 2, 2009, a memorandum in support of the motion for a preliminary injunction that seeks to stop the implementation and enforcement of the DHS regulations that were promulgated on Oct. 27.

According to Jenner & Block, the Commonwealth has met all the requirements for the issuance of a preliminary injunction.

The law firm asked the court to issue a preliminary injunction barring DHS from enforcing or implementing the interim permit rule pending the court's resolution of the Commonwealth's claims on the merits.

The CNMI recently filed an amended complaint, asking the court to declare invalid the DHS interim final rule on the CNMI transitional worker program.

Legislature Approves Gatewood Lawsuit

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.

Guam Gears Up for Suit Vs. Feds

Guam gears up for suit vs feds
Friday, 02 January 2009
by Therese Hart
Variety News Staff

WASTING no time before the New Year kicked in, Gov. Felix Camacho has signed into law a bill that paves the way for the government of Guam to take legal action against the federal government for reimbursement of $400 million in Compact Impact funds.

Bill 385 was signed into law on Monday. The bill’s author, Sen. Frank Blas Jr., said the enactment of Bill 385 will now allow Guam to move forward.

Attached to the bill was an amendment that waives the government’s sovereign immunity protection as required by the financing contract that was negotiated with the Guam Economic Development and Commerce Authority and the Bank of Guam for the $20 million bridge loan that must be deposited to federal receiver, Gershman, Bricker & Bratton’s trustee by next Monday.

“We must move forward with the closure of the Ordot Dump and the construction of a new landfill to comply with the federal consent decree obligations placed on this government,” Camacho said.

In an earlier interview, Blas said Guam has spent a total of $400.87 million for the social services rendered to Freely Associated States citizens between 1987 and 2007 but the amount that the federal government reimburses to the island is not commensurate to the actual cost of hosting Micronesians.

According to the Compact Impact Reconciliation Report, Guam spent $269 million from 1987 to 2003 for medical, educational and security services provided to FAS citizens. "The total amount owed to Guam now is $400.87 million when we include the un-reimbursed amounts from 2004 to 2007," Blas told Variety during an interview last August.

Guam has been receiving $14 million in Compact Impact money every year since 2004. That amount is part of the $30 million that the federal government releases annually and shared with Hawaii and the CNMI, which are also affected by migration of FAS citizens migration.

David B. Cohen, former deputy assistant secretary of the Department of Interior, disagreed with the local government’s claim that the federal government owed Guam money.

“I don’t agree that Guam is owed $400 million,” Cohen told Variety in an interview during his visit to Guam last month.

He said the law authorizes reimbursements for the impact of migration from Palau, the Federated States of Micronesia and the Marshall Islands, but did not require Congress to appropriate funds for that purpose. “So that’s not a debt,” Cohen said.

Cohen said Guam incurs costs just as other states do, but in return, there are benefits that come with the overall package.

“Guam is incurring expenses because of decisions that are made by the federal government, but all of us do. When we’re part of the American family we get benefits because the decisions by the federal government and we incur costs,” Cohen said.

“We get benefits like the military buildup will bring a lot of money here. And the federal government never says that we will indemnify you, in other words, we will make sure that you will incur no cost because of any decision we make,” Cohen said.

Cohen said that Guam could argue that because of the influx of migrants to Guam, that Guam should pursue the matter with the federal government using a moral argument.

“I do agree that Guam has a moral argument to make and I used to make that argument behind the scenes. I think it is a very legitimate argument to make,” he said.

He said the federal government’s role in fiscal policy has reached a new level of difficulty. But Guam, he added, should move forward in pursuing the feds help in shouldering some of the costs, not just Compact Impact funds, but the military buildup as well.

“It’s a difficult fiscal environment that’s just gotten a lot more difficult, so it’s a hard issue. The folks in DC, they don’t think they owe Guam the money as a legal matter, but we need to create more awareness of what Guam needs, not only because of Compact Impact and the impact of migration, but the civilian needs because of this buildup,” said Cohen.

Feds Ask Court to Dismiss Fitial Lawsuit

Feds ask court to dismiss Fitial lawsuit
Wednesday, 17 December 2008
By Gemma Q. Casas
Marianas Variety News Staff

THE U.S. Department of Justice is asking the federal court in the nation’s capital to dismiss the Fitial administration’s federalization lawsuit, saying the governor’s arguments are “speculative and hypothetical.”

Gov. Benigno R. Fitial filed the lawsuit in the U.S. District Court for the District of Columbia on Sept. 12.

Theodore W. Atkinson, a trial attorney of the District Court Section of the Office of Immigration Litigation under the U.S. Department of Justice, argued in his four-page motion that there is no basis for the federal court to address the speculated disastrous impact of the federalization law.

“The action should be dismissed for four reasons: 1) the CNMI lacks standing to bring this action because the injuries alleged by the CNMI are not ‘concrete and particularized’ but are instead speculative and hypothetical; 2) even if the alleged harms are not speculative, the injuries alleged are too remote for the court to adequately address them at this time and thus the action is not ripe,” Atkinson stated.

He added: “The governor of the CNMI lacks standing to bring this action on behalf of the CNMI because he cannot show that he has protected ‘procedural interest’ that confers standing on him to bring this action; and 4) even if the CNMI has met its constitutional standing requirements, the action should be dismissed because the Covenant generally permits Congress to apply federal law to the CNMI and expressly and unambiguously permits Congress to apply the immigration and naturalization laws of the United States to the CNMI.”

Atkinson also submitted to the federal court 65 pages of memorandum of points and authorities to substantiate the DOJ’s position on the lawsuit which named as defendants Homeland Security Secretary Michael Chertoff and Labor Secretary Elaine Chao in their official capacities.

The governor’s lawyers have up to Jan. 16, 2009 to file a reply.

According to his lawsuit, the federalization law will be disastrous to the local economy, which is heavily dependent on cheap foreign workers.

Bill seeks legal action against feds on COFA
Friday, 21 November 2008
by Therese Hart
Marinas Variety News Staff

SENATOR Frank Blas Jr. has introduced a bill appropriating $200,000 to the Office of the Attorney General for its representation of the govSen. Frank Blas Jr.
ernment of Guam in a legal action to claim more than $400 million in Compact Impact funds from the U.S. government. “We need to take this conversation to the next level. For many years, there continues to be that acknowledgement by the federal government that they owe us money,” Blas said.

Blas said the federal government owes Guam over $400 million in reimbursement costs for hosting Freely Associated States citizens who are using public services.

“And they think that what they’ve been giving us annually--$14.2 million--that it would suffice for the total cost of what we actually spend, and it’s not,” Blas said.

Bill 385 identifies fiscal year 2009 Guam Highway Fund revenues as the funding source for the legal expenses.

The AGO can hire personnel, procure professional services and incur other costs necessary to successfully pursue the case.

The bill also exempts AGO from the restriction on the hiring of limited term appointments and unclassified employees.

Blas has written to Guam Congresswoman Madeleine Z. Bordallo regarding this issue but he said the congresswoman has done nothing to look into the matter.

“It’s like, we should be thankful we’re getting $14.2 million. I’m sorry, but no. We no longer should stand being treated this way-- that we’re going to continue to provide these services and not get paid properly,” Blas said.

The issue was raised this year during the Association of Pacific Island Legislators, hosted by Guam lawmakers and a resolution was passed and sent to the president and members of Congress. Another Resolution 141 passed by the 29th Guam Legislature dealing with the same issue was also transmitted to Washington.

“We’ve asked and we’ve pleaded for proper reimbursement for the cost of those services that we provide on their behalf. The message is, we’re not going to be taken lightly anymore. We need this money and (the federal government) owes it to us,” Blas said.

“And they are in violation of being able to reimburse us. This is the basis for us to say, this is your law, you say you’re going to reimburse us and now this lawsuit is being initiated so that we can get that reimbursement,” said Blas.

He said Guam us in the middle of a situation in which the community has to “debate among ourselves” as to where to find money to meet certain federal mandates.”

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.

Taotao Tano Attacks Federalization Lawsuit

Cruz criticizes Willens for ‘embarrassing’ lawsuit vs feds
Tuesday, 07 October 2008
By Junhan B. Todeno
Marianas Variety News

TAOTAO Tano president Gregorio S. Cruz Jr. is questioning the integrity of the governor’s special legal counsel Howard P. Willens for urging the administration to sue the U.S. government over the federalization law.

“Today, after 36 years you are saying something is wrong with our Covenant and are now suing the federal government on something that has not taken affect,” Cruz said in his letter to Willens.

Willens was the legal counsel of the Marianas Political Status Commission in the Covenant negotiations from 1972 to 1976.

He was also the legal counsel to the First Constitutional Convention.

Cruz said that since the inauguration of the CNMI government on Jan. 9, 1978, contentious issues and controversies have surrounded the commonwealth.

Local U.S. citizens in the commonwealth, he added, have been pushed in their own backyard by the controllers of their islands’ economy.

“All labor fees collected were intended to be appropriated to Northern Marianas College for the education, training and certification of our local people to eventually takeover positions in the private sector held by non-resident foreign guest workers,” he said.

“The program was eventually derailed and deliberately shut down simply due to self-interest greed and the preference of nonresident guest workers in the job market. A job market Gov. Fitial was well aware off and participated during his tenure as a member of our legislative branch, all the way to being the speaker of the House representing his business constituents and not my local people,” Cruz said.

He said the Fitial administration will not stand a chance in its “embarrassing lawsuit against the federal government.”

The commonwealth has opposed “federal takeover” numerous times in the past, he said, because the local people believed that it was unsustainable and impractical.

“We maintain that [federalizing immigration] now without appropriate accommodations of our economic and social needs, when our economy is so weak, will be counterproductive and is certainly not supported by the will of our people,” he added.

But “we also do not feel that the ‘no modification’ position of our governor is productive, reasonable or in the best interest of the people of the Northern Mariana Islands and the people of the United States,” Cruz said.

Federalization Lawsuit an Uphill Battle

Lawsuit will be an 'uphill battle'
Fitial rep barred from DHS meeting in DC
By Agnes E. Donato
Reporter
9/19/08

Gov. Benigno R. Fitial yesterday acknowledged the difficulty of overturning the law that will impose federal immigration rules on the Commonwealth next year.

“I know it's an uphill battle,” said Fitial, who is suing the U.S. government to stop the new immigration law from being implemented. But he also said, “I've always believed in doing the right thing. This is the right thing for our people.”

Fitial reiterated that by ignoring the objections he had raised since the law was in the drafting stage, the U.S. Congress left him no choice but to turn to the court. Negotiation, particularly in the case of the labor provisions at the center of his lawsuit, is no longer an option, he said.

Yet he protested the decision by the U.S. Department of Homeland Security to bar local businesswoman Marian Aldan-Pierce from its meeting with the Marianas Integrated Immigration Task Force earlier this week in Washington, D.C.

According to reports, the task force shortly before the meeting got word that the DHS did not want any CNMI representative in the meeting because the DHS had not had a chance to review the then-just-filed lawsuit.

“My own representative was excluded from the meeting. And yet, [U.S. Virgin Islands Rep. Donna] Christensen is coming out and saying she wants the federal agencies working closely with the CNMI leaders? What kind of a statement is that?” asked Fitial.

Christensen, chairwoman of the U.S. House Subcommittee on Insular Affairs and sponsor of the CNMI immigration measure, has said she will continue to encourage the DHS and relevant federal agencies to consult the CNMI leaders as they move toward implementing the new law. She has also said lawsuit might put at risk the working relationship with the U.S. and CNMI government.

But Fitial said, “We're not risking anything [by filing this lawsuit]. To not do anything is to risk our livelihood.”

The governor said he hopes the CNMI Legislature will back him and provide the money for the suit. The U.S.-based Jenner & Block law firm is representing the CNMI government for a fee of $50,000 a month for a period of eight months. Top lawmakers have come out in public saying they oppose the lawsuit for two main reasons: they prefer to negotiate with the U.S. government, and the Commonwealth cannot afford a court battle against the deep-pocketed U.S. government.

“Whenever I hear people talk about the cost of this lawsuit, it makes me sad. They worry about $400,000. [If federalization happens] they will be worrying about their lives,” said Fitial.

He also ruled out a suggestion from some lawmakers to have the CNMI Attorney General's Office represent the CNMI government in the suit. He said the AGO does not have the expertise in U.S. constitutional matters that a firm like Jenner & Block possesses.

“We're looking for the best representation. I'm not saying that our Attorney General is not capable. But we're looking for experts,” the governor said. He added that his special legal counsel, Howard Willens, is working with Jenner & Block on the lawsuit.

Marshall Islands to go to Court Over Nuclear Testing

Marshall Islanders go to US court over nuclear testing
Monday, 18 August 2008 00:00

MAJURO (Pacnews) — Bikini Islanders in the Marshall Islands hope their case for additional compensation for damage caused U.S. nuclear weapons tests by yield results, reports Radio New Zealand International.

Their quest to be given more money has been revived in a new round of litigation in the U.S. Court of Appeals, with a ruling expected in the next few months. The U.S. maintains that the issue has been settled in previous agreements.

Bikini Island Council representative Jack Niedenthal said if their legal bid fails, they may have to approach U.S. politicians.

“The only hope we have is going back to the U.S. Congress and asking them to help us, there’s nothing forcing them to help us so it’s sort of like banging a tin cup and it’s not a very good feeling to be doing that,” he said.

UK Admits to Servicemen Being Exposed to Radiation

UK admits servicemen exposed to radiation
5:00AM Monday August 04, 2008
By Alanah May Eriksen
and AAP

British Defence chiefs have admitted servicemen were exposed to dangerous
radiation levels during nuclear tests in Australia and the South Pacific in
the 1950s.

But a New Zealand veterans advocate has dismissed the admission as a token
gesture, which goes nowhere towards satisfying a claim for compensation by
sailors here.

The Sunday Mirror reported yesterday that court papers show the British
Ministry of Defence (MoD) now believes - after years of denials - that
nuclear tests were responsible for the deaths of some British servicemen.

However, the MoD insists that only 159 men were affected out of the 20,000
who were present.

About 800 former servicemen from Britain, New Zealand and Fiji launched a
multimillion-dollar lawsuit against the MoD this year, claiming they had
been exposed to dangerous levels of radiation during tests at sites
including Maralinga in South Australia and Christmas Island.

The court documents show two Royal Air Force servicemen, Eric Denson and
John Brothers, were irradiated after being ordered to fly through the
mushroom clouds of nuclear bombs to collect samples.

Film badges worn by the men recorded the amount of radiation they were
exposed to. "Eric had a dose equivalent to 190 years of background
radiation," the newspaper said. "John's was 107. The MoD's maximum safe dose
was just 30."

About 550 New Zealand sailors on board the frigates HMNZS Pukaki and HMNZS
Rotoiti were at the series of nine aerial bomb explosions at Christmas
Island in the Pacific and Malden Island, part of Kiribati, beginning on May
15, 1957.

There are thought to be about 160 left alive.

The sailors, banded together as the New Zealand Nuclear Test Veterans
Association, are part of the class action lawsuit.

The chairman of the association, Roy Sefton, who suffers from muscle and
skeletal pain that he is certain is a result of being exposed to the
testing, said the admission was laughable.

"It's rubbish. I don't know how many, but there have been many thousands
exposed. It's not even within the realms of reality. It's a token gesture.

"You wouldn't have all these men 20 nautical miles from ground zero if it
wasn't for some sort of purpose, to see how they reacted."

Mr Sefton said British defence chiefs wanted to play the incident down
because Britain wanted to upgrade its nuclear power stations and build new
ones.

$1.9 million suit filed against US Navy

$1.9M suit filed against US Navy
By Gina Tabonares
Variety News Staff
12/7/07

A SENIOR ranking officer of the U.S. Navy filed a $1.9 million lawsuit against the federal government for an alleged intentional infliction of emotional distress and invasion of privacy.

David G. Matthews, a GS14 COMNAVMAR member, filed the claim under the Federal Tort Claims Act in the District Court of Guam after the U.S. Navy denied the claim he filed on May 18, 2007 against the Secretary of Defense, the Secretary of the Navy, and COMNAVMAR Guam.

According to Matthews, the defendants’ reckless and unlawful conduct irreparably damaged his good name and reputation, and compelled him to seek early retirement from federal employment that resulted in significant personal, professional and financial implications.

His case stemmed from an incident on June 14, 2005 when his wife Debora was apprehended by COMNAVMAR security for alleged child abuse involving their daughter.

On the same day, the Naval Criminal Investigative Service concluded Debora Matthews did not abuse her daughter and the COMNAVMAR executive officer and attorneys stated there was no criminal investigation by the Navy or referral to the Guam Police Department.

Two days later, the Matthews couple received telephone calls from Vince Pereda, a Family Advocacy Program case manager for the COMNAVMAR Fleet and Family Support Center Guam. They briefly discussed the incident involving Debora Matthews and her daughter.

A review of the FFSC case records reveals Pereda “maintained” case notes as of June 16, 2005. Pereda discussed the case with a Guam Child Protective Services worker after initiating records and without the approval of the plaintiff and his wife.

The case manager and a Guam Child Protective Services worker told the couple that they didn’t need an attorney and that there was no criminal case, but they were never apprised of the potential consequences of their discussions which is the purpose of the PA and FAP program description document.

On June 17, 2005, Pereda asked Debora Matthews to sign two documents which he stated were required to allow FFSC/CPS to interview their daughter.

David Matthews, however, learned that the two documents were the Privacy Act statement and the FFSC Program Description.

He said neither document was explained to them nor Pereda asked his wife to read the documents prior to signing, describing the act as a trick to have Debora Matthews to sign the forms.

The plaintiff asked a criminal investigation concerning the falsified document but they felt that the defendant attempted to conceal the crime.

In September 2005, the Navy placed the plaintiff and his wife in a military tribunal for alleged child abuse. As a result, the Matthews were placed in a federal registry as child abusers.

The information that was illegally and unlawfully obtained from the plaintiff and his wife was used against them in the tribunal.

The Matthews were concerned with the personal and professional ramification of a military tribunal and, on Sept. 1, 2005, they asked the U.S. Navy if they were eligible for Navy legal service support in regard to the military tribunal but a Department of Defense employee said it was a local call denying their eligibility.

The plaintiff said they were put in the child abuser registry and labeled without due process.

Matthew said that placing his name under central registry will have negative impact on his current and future employment and security clearance.

The couple wrote a letter to COMNAVMAR and the DOD asking to remove their names from the federal registry as child abusers and asked additional information, but they were disregarded and provided no response.

They asked the court for compensatory damages of $1.951.894, the removal of their names from the federal registry as child abusers, to provide them all information requested via the Freedom of Information Act, and provide answers to all questions they asked in his original claim.