5 IN THE SUPERIOR COURT OF GUAM 6
7 MARIA A. GANGE, JESUS CRUZ CHARFAUROS, ANA A. CHARGAULAF, 8 and JESUS G. AGUIGUI, for themselves and 9 on behalf of all others similarly situated,
10 Plaintiffs, CIVIL CASE NO. CV 1461-10 11 V. 12 DECISION AND ORDER GOVERNMENT OF GUAM, GUAM 13 ANCESTRAL LANDS COMMISSION by 14 and through its individual Commissioners (for injunctive relief only to prevent a transfer), 15 and DOES One (1) through Three hundred (300), inclusive, 16
17 Defendants
19 INTRODUCTION 20 This matter came before the Honorable Arthur R. Barcinas on the 15th day ofF ebruary, 21 2013, for hearing on the Plaintiffs' Motion for Partial Summary Judgment. Attorney Curtis Van 22
23 de veld represented the Plaintiffs, Assistant Attorney General William Bischoff represented the
24 Defendants, and Attorney Michael Phillips represented applicant for intervention Vicente 25 Crawford. For the reasons set forth below, the Court GRANTS Plaintiffs' Motion for Partial 26 Summary Judgment. 27
28 II Decision and Order Civil Case No. CV 1461-10 -Gange et al. v. Government of Guam eta!.
I. Background
2 This summary judgment motion concerns the legal merits of the Plaintiffs' central claim
3 that the enactment of Public Law 30-158 constitutes a governmental taking of their private 4 property without just compensation. The parties do not dispute the material facts, and ask the 5 Court to render a ruling on the dispositive questions of law in this case. 6 The undisputed facts are as follows. Plaintiffs are beneficiaries of the trust established 7
8 by 21 GCA § 80104(e) for the benefit of ancestral landowners who, by virtue of continued
9 public use of their ancestral lands, cannot regain title to those lands via the process envisioned 10 by 21 GCA chapter 80. The trust corpus includes Lot Naval Radio Station and Lot Andersen 11 South, two parcels of real property in Tiyan. Public Law 30-158, enacted on July 13, 2010, 12 provided for the transfer of ownership of those two lots from the trust to a smaller group of trust 13
14 beneficiaries whose ancestral claims include property retained by the Guam International
15 Airport Authority. 16 The Plaintiffs in this case are members of the larger group of trust beneficiaries, and 17 brought this suit requesting that the Government be enjoined from transferring the lots to the 18
19 smaller group of beneficiaries, or, in the alternative, that the Government be ordered to give just
20 compensation for the lots. The Plaintiffs ask the Court to adjudge that P .L. 30-158, in 21 extinguishing their interest in the stream of revenues generated by the Tiyan lots, is a 22 constitutionally prohibited taking of their private property. 23
24 II. Analysis 25 The Court finds that the Plaintiffs, as beneficiaries of the land trust, do indeed have 26 private property rights in the lots and the stream of revenues generated by the lots sufficient to 27
28 trigger the protections of the Takings Clause.
Page 2 of8 Decision and Order Civil Case No. CV 1461-10 Gange et al. v. Government of Guam et al.
In order to execute a constitutionally valid taking of private property, the Government
2 must both demonstrate that the taking is for a valid public use and justly compensate the owner
3 of the private property. Here, the Government has done neither, and has thereby run afoul of the 4 Takings Clause. The taking must be enjoined as contrary to the Constitution. 5
6 A. Taking 7 P.L. 30-158 attempts to transfer ownership of the Tiyan lots from the trust to a group of 8 private individuals. This would extinguish the Plaintiffs' beneficial interest in the Tiyan lots, 9 and would therefore clearly be a taking. The Government does not dispute this obvious point, 10
11 instead focusing on the question of whether the taking is a taking of private property.
12 B. Plaintiffs' Private Property 13
14 The Court next resolves the question of whether the taking envisioned by P .L. 30-158
15 would constitute a taking of the Plaintiffs' private property. To do so, it resolves the question of 16 whether the Plaintiffs' beneficial interest in the revenues generated by the Tiyan lots is private 17 property within the meaning of the Takings Clause. 18 The Plaintiffs clearly do not own the Tiyan lots in fee simple. Rather, they are the 19
20 beneficiaries of a unique trust, born out of an acknowledgment of past and ongoing injustices
21 committed against their ancestors; this trust holds the lots for their benefit. The question before 22 the Court now is whether the Plaintiffs' status as beneficiaries of this trust is enough to grant 23 them a private property interest in the trust corpus sufficient to trigger Takings Clause 24 protection. The Court finds that it is. 25
26 The Government makes much of the fact that the properties held in trust were not
27 historically directly owned by the beneficiaries of the trust, asserting that "[t]he plaintiffs have 28 no special historical, private o\Vner, relationship to the assets in the Land Bank Trust" and that
Page 3 of8 Decision and Order Civil Case No. CV 1461-10 Gange et al. v. Government of Guam et aL
the Plaintiffs "have no stronger connection to the particular lots in the Land Bank Trust than do
2 any other residents of Guam." Opposition to Motion for Partial Summary Judgment, 4. On this
3 basis, the Govermnent claims, the Court should determine that the Plaintiffs have no protectable 4 property rights in the Tiyan lots. 5 In making these arguments, the Govermnent severely misapprehends the spirit of the 6 law creating the land bank trust and designating its beneficiaries. The special relationship and 7
8 connection between the Plaintiffs and the trust lands is undeniable. It is a connection born out of
9 the grave injustices suffered by the Plaintiffs and their ancestors at the hands of previous 10 govermnents that have exercised dominion over Guam throughout its history, and in particular ll the special injustice suffered by these individuals due to the continuing public benefit use of the 12 properties seized from their ancestors - continuing use which, absent the operation of the trust, 13
14 would work to deny them any remedy for the uncompensated historical takings. The
15 legislature's enactment of21 GCA § 80104(e) was an acknowledgment ofthis connection, and 16 an embodiment of its intent to restore the connection of the Chamorro people to their ancestral 17 lands. 18
19 This sacred connection, unique to the Chamorro people, finds no perfect analogue in the
20 case law of American jurisdictions. In this matter of first impression, the Court's analysis is 21 informed not only by persuasive authorities from other jurisdictions, but also by the unique 22 circumstances of this case. The Court considers these circumstances in light of its duty to 23 administer justice and effectuate the law's intent to right the historical wrongs suffered by the 24
25 Plaintiffs.
26 The Govermnent reiterates its arguments, rejected by this Court at the Motion to Dismiss 27 stage, that the result of A.B.A. TE. of Illinois, Inc. v. Giannoulias, 929 N.E.2d 1188 (Ill.App.4th 28
Page 4 of8 Decision and Order Civil Case No. CV 1461-10 Gange et al. v. Government of Guam et al.
May 3, 2010), would be appropriate here. In A.B.A.TE., id., an Illinois Appellate Court ruled
2 that the State of Illinois had the power to commandeer and repurpose funds collected from
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5 IN THE SUPERIOR COURT OF GUAM 6
7 MARIA A. GANGE, JESUS CRUZ CHARFAUROS, ANA A. CHARGAULAF, 8 and JESUS G. AGUIGUI, for themselves and 9 on behalf of all others similarly situated,
10 Plaintiffs, CIVIL CASE NO. CV 1461-10 11 V. 12 DECISION AND ORDER GOVERNMENT OF GUAM, GUAM 13 ANCESTRAL LANDS COMMISSION by 14 and through its individual Commissioners (for injunctive relief only to prevent a transfer), 15 and DOES One (1) through Three hundred (300), inclusive, 16
17 Defendants
19 INTRODUCTION 20 This matter came before the Honorable Arthur R. Barcinas on the 15th day ofF ebruary, 21 2013, for hearing on the Plaintiffs' Motion for Partial Summary Judgment. Attorney Curtis Van 22
23 de veld represented the Plaintiffs, Assistant Attorney General William Bischoff represented the
24 Defendants, and Attorney Michael Phillips represented applicant for intervention Vicente 25 Crawford. For the reasons set forth below, the Court GRANTS Plaintiffs' Motion for Partial 26 Summary Judgment. 27
28 II Decision and Order Civil Case No. CV 1461-10 -Gange et al. v. Government of Guam eta!.
I. Background
2 This summary judgment motion concerns the legal merits of the Plaintiffs' central claim
3 that the enactment of Public Law 30-158 constitutes a governmental taking of their private 4 property without just compensation. The parties do not dispute the material facts, and ask the 5 Court to render a ruling on the dispositive questions of law in this case. 6 The undisputed facts are as follows. Plaintiffs are beneficiaries of the trust established 7
8 by 21 GCA § 80104(e) for the benefit of ancestral landowners who, by virtue of continued
9 public use of their ancestral lands, cannot regain title to those lands via the process envisioned 10 by 21 GCA chapter 80. The trust corpus includes Lot Naval Radio Station and Lot Andersen 11 South, two parcels of real property in Tiyan. Public Law 30-158, enacted on July 13, 2010, 12 provided for the transfer of ownership of those two lots from the trust to a smaller group of trust 13
14 beneficiaries whose ancestral claims include property retained by the Guam International
15 Airport Authority. 16 The Plaintiffs in this case are members of the larger group of trust beneficiaries, and 17 brought this suit requesting that the Government be enjoined from transferring the lots to the 18
19 smaller group of beneficiaries, or, in the alternative, that the Government be ordered to give just
20 compensation for the lots. The Plaintiffs ask the Court to adjudge that P .L. 30-158, in 21 extinguishing their interest in the stream of revenues generated by the Tiyan lots, is a 22 constitutionally prohibited taking of their private property. 23
24 II. Analysis 25 The Court finds that the Plaintiffs, as beneficiaries of the land trust, do indeed have 26 private property rights in the lots and the stream of revenues generated by the lots sufficient to 27
28 trigger the protections of the Takings Clause.
Page 2 of8 Decision and Order Civil Case No. CV 1461-10 Gange et al. v. Government of Guam et al.
In order to execute a constitutionally valid taking of private property, the Government
2 must both demonstrate that the taking is for a valid public use and justly compensate the owner
3 of the private property. Here, the Government has done neither, and has thereby run afoul of the 4 Takings Clause. The taking must be enjoined as contrary to the Constitution. 5
6 A. Taking 7 P.L. 30-158 attempts to transfer ownership of the Tiyan lots from the trust to a group of 8 private individuals. This would extinguish the Plaintiffs' beneficial interest in the Tiyan lots, 9 and would therefore clearly be a taking. The Government does not dispute this obvious point, 10
11 instead focusing on the question of whether the taking is a taking of private property.
12 B. Plaintiffs' Private Property 13
14 The Court next resolves the question of whether the taking envisioned by P .L. 30-158
15 would constitute a taking of the Plaintiffs' private property. To do so, it resolves the question of 16 whether the Plaintiffs' beneficial interest in the revenues generated by the Tiyan lots is private 17 property within the meaning of the Takings Clause. 18 The Plaintiffs clearly do not own the Tiyan lots in fee simple. Rather, they are the 19
20 beneficiaries of a unique trust, born out of an acknowledgment of past and ongoing injustices
21 committed against their ancestors; this trust holds the lots for their benefit. The question before 22 the Court now is whether the Plaintiffs' status as beneficiaries of this trust is enough to grant 23 them a private property interest in the trust corpus sufficient to trigger Takings Clause 24 protection. The Court finds that it is. 25
26 The Government makes much of the fact that the properties held in trust were not
27 historically directly owned by the beneficiaries of the trust, asserting that "[t]he plaintiffs have 28 no special historical, private o\Vner, relationship to the assets in the Land Bank Trust" and that
Page 3 of8 Decision and Order Civil Case No. CV 1461-10 Gange et al. v. Government of Guam et aL
the Plaintiffs "have no stronger connection to the particular lots in the Land Bank Trust than do
2 any other residents of Guam." Opposition to Motion for Partial Summary Judgment, 4. On this
3 basis, the Govermnent claims, the Court should determine that the Plaintiffs have no protectable 4 property rights in the Tiyan lots. 5 In making these arguments, the Govermnent severely misapprehends the spirit of the 6 law creating the land bank trust and designating its beneficiaries. The special relationship and 7
8 connection between the Plaintiffs and the trust lands is undeniable. It is a connection born out of
9 the grave injustices suffered by the Plaintiffs and their ancestors at the hands of previous 10 govermnents that have exercised dominion over Guam throughout its history, and in particular ll the special injustice suffered by these individuals due to the continuing public benefit use of the 12 properties seized from their ancestors - continuing use which, absent the operation of the trust, 13
14 would work to deny them any remedy for the uncompensated historical takings. The
15 legislature's enactment of21 GCA § 80104(e) was an acknowledgment ofthis connection, and 16 an embodiment of its intent to restore the connection of the Chamorro people to their ancestral 17 lands. 18
19 This sacred connection, unique to the Chamorro people, finds no perfect analogue in the
20 case law of American jurisdictions. In this matter of first impression, the Court's analysis is 21 informed not only by persuasive authorities from other jurisdictions, but also by the unique 22 circumstances of this case. The Court considers these circumstances in light of its duty to 23 administer justice and effectuate the law's intent to right the historical wrongs suffered by the 24
25 Plaintiffs.
26 The Govermnent reiterates its arguments, rejected by this Court at the Motion to Dismiss 27 stage, that the result of A.B.A. TE. of Illinois, Inc. v. Giannoulias, 929 N.E.2d 1188 (Ill.App.4th 28
Page 4 of8 Decision and Order Civil Case No. CV 1461-10 Gange et al. v. Government of Guam et al.
May 3, 2010), would be appropriate here. In A.B.A.TE., id., an Illinois Appellate Court ruled
2 that the State of Illinois had the power to commandeer and repurpose funds collected from
3 motorcycle registration fees and held in the special legislatively created Cycle Rider Safety 4 Training Fund. At the Motion to Dismiss stage, this Court's analysis was guided by the more 5 relevant and more persuasive cases of Illinois Clean Energy Community Foundation v. Filan, 6 392 F.3d 934 (7th Cir. 2004), and Thompson v. Kentucky Reinsurance Association, 710 S.W.2d 7
8 854 (Ky. 1986), wherein legislative repurposings of the assets of governmentally-created
9 entities were found to be impermissible takings. The Court still finds better guidance in these 10 cases. 11 The Government attempts to distinguish Illinois Clean Energy, 392 F.3d 934, on the 12
basis that the charitable foundation in that case was a private entity, while the GALC is an entity 13
14 within the Government. The Government argues that this distinction is relevant because the
15 GALC's status as a governmental instrumentality subjects its assets - even those held in trust 16 pursuant to 21 GCA § 80104(e)- to legislative confiscation. The reality is that the GALC is but 17 a steward of these lands, holding legal title, but bound by law to administer them in furtherance 18
19 of the interests of dispossessed ancestral landowners like the Plaintiffs. The Court does not
20 agree that the GALC's stewardship of these lands renders the lands "public assets" such that the 21 lands are that subject to legislative repurpose. 22 Further, the Government concedes that public stewardship of the Tiyan lots is only 23 relevant insofar as no private property rights have vested in the assets. The Government argues 24
25 that the Plaintiffs' property rights in the revenues generated by the Tiyan lots are not yet vested,
26 and will not vest until the Plaintiffs actually receive some form of money distribution from the 27 trust from revenues generated by the lots. The Court does not agree. The Court finds Judge 28
Page 5 of8 Decision and Order Civil Case No. CV 1461-l 0 Gange et al. v. Government of Guam et al.
Posner's view that "claims of unconstitutional taking are matters of expectation," Illinois Clean
2 Energy, 392 F.3d at 937, more convincing. Whether any money has yet been disbursed by the
3 trust to the Plaintiffs is irrelevant to the question of whether the Plaintiffs have private property 4 rights to the fruits of the trust corpus. 21 GCA § 80104(e) created a constitutionally cognizable 5 expectation of just compensation for historical wrongs. That is enough to bring the Plaintiffs 6 within the protection of the Takings Clause. 7
8 C. Public Purpose 9 Having found that the Plaintiffs have private property rights in the Tiyan lots sufficient 10
II to trigger Takings Clause protections against the execution of Public Law 30-158, the Court
12 proceeds to consider whether Public Law 30-158 constitutes a taking for a legitimate public 13 purpose. 14 The parties agree that the taking would not be for a public purpose, but rather would be a 15 transfer of land from one private entity to another. Though the Court is not bound by the 16
17 agreement of the parties, the Court agrees with the parties' analysis of this question.
18 A proposed intervenor, Vicente Crawford, briefed this position during the pendency of 19 his motion to intervene. Though the Court ultimately denied intervention, the Court has 20 examined the proposed intervenor's briefing and remains unpersuaded that the transfer served 21
any valid public purpose. The legislature's stated intent in enacting Public Law 30-158 is "to 22
23 satisfy the claims of the original and ancestral landowners of Tiyan properties, whose properties
24 were not returned to them and were retained by the A.B. Won Pat International Aiport 25 Authority." This intent to satisfy claims of a small group of private individuals is, in very clear 26 terms, a purely private purpose. 27
Page 6 of8 Decision and Order Civil Case No. CV 1461-10 Gange et al. v. Government ofGuam et al.
The Court concludes that the taking would not serve any legitimate public purpose, and
2 that injunctive relief is thus the property remedy. See, e.g., Hawaii Housing Authority v. Midkiff,
3 467 U.S. 229, 245 (1984) ("the Constitution forbids even a compensated taking of property 4 when executed for no reason other than to confer a private benefit on a particular private 5 party.") The Court also notes that, as the Government points out, the legislature did not budget 6 for the many millions of dollars that would have been necessary to pay just compensation for 7
8 this taking. This fact also counsels against the imposition of just compensation as a remedy for
9 the taking. 10
11 D. Just Compensation
12 The parties do not dispute that no compensation would be rendered to the Plaintiffs for 13 the taking; in any event, as detailed above, the parties' preferred remedy and the remedy 14 compelled by law in this case is injunctive relief. 15
17 CONCLUSION
18 For the reasons set forth above, the Court concludes that Public Law 30-158 constitutes 19 an attempted taking of the Plaintiffs' private property, that this taking would serve no legitimate 20 public purpose, and that no compensation would be rendered to the Plaintiffs for the taking. The 21
22 Court concludes that the Plaintiffs are entitled to judgment as a matter of law on the First Cause
23 of Action of the First Amended Complaint. 24 Accordingly, Plaintiffs' Motion for Partial Summary Judgment is GRANTED. 25
26 II 27
28 II
Page 7 of8 Decision and Order Civil Case No. CV 146 I -IO - Gange et al. v. Government of Guam et al.
II
2 The Government of Guam and the Guam Ancestral Lands Commission and the 3 individual Commissioners thereof are ENJOINED from transferring Lot Naval Radio Station 4
5 and Lot Andersen South, Public Law 30-158 notwithstanding.
7 IT IS SO ORDERED thisM~y of August, 2013. 8
10 • 11 HONORABLE ARTHUR R. SARCINAS 12 Judge, Superior Court of Guam
l3
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