5 IN THE SUPERIOR COURT OF GUAM 6
7 MARIA A. GANGE, JESUS CRUZ CHARF AUROS, 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 GOVERNMENTOFGUAM,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 1 This matter came before the Honorable Arthur R. Barcinas on the 15 h day of February, 21 2013, for hearing on applicant for intervention Vicente P. Crawford's Motion to Intervene. 22
23 Attorney Curtis Van de veld represented the Plaintiffs, Assistant Attorney General William
24 Bischoff represented the Defendants, and Attorney Michael Phillips represented the applicant 25 for intervention. For the reasons set forth below, the Court DENIES the Motion to Intervene. 26 Under Rule 24 of the Guam Rules of Civil Procedure and Lirntiaco v. Camacho, 2009 27 Guam 7, ~ 10, "[a]n applicant for intervention must satisfy the following four criteria before a 28 Decision and Order Civil Case No. CV 1461-10 Gange eta!. v. Government of Guam eta!.
motion to intervene can be granted: (I) the motion to intervene must be timely; (2) the applicant
2 must have a "significantly protectable interest" relating to the property or transaction that is the
3 subject of the suit; (3) the applicant must be so situated that disposition of the action may, as a 4 practical matter, impair or impede the applicant's ability to protect that interest; and (4) the 5 applicant's interest must be inadequately represented by the existing parties." These factors are 6 construed broadly in favor of intervention. !d. 7
8 A. Timeliness
9 Under Sablan v. GLUC, 2011 Guam 12, ~ 12, in considering the timeliness of a motion 10 to intervene, the Court considers three factors: "(I) the stage of the proceedings at the time the II applicant seeks to intervene; (2) the prejudice to the other parties if the motion is granted; and 12
(3) the reason for and length of the delay." Here, the applicant sought intervention during the 13
14 pendency of summary judgment. While the applicant could perhaps have been more prompt in
15 filing its motion, the Court, in considering the first timeliness factor, finds nothing weighing 16 against intervention. Jumping forward to the third timeliness factor, the Court notes that the 17 applicant provides no reason for a somewhat lengthy delay, and this weighs against 18
19 intervention.
20 However, "the most important consideration in deciding whether a motion for 21 intervention is untimely is whether the delay in moving for intervention will prejudice the 22 existing parties to the case." Sablan v. GLUC, 2011 Guam 12 at ~ 15 (quoting Wright and 23 Miller). The Plaintiffs have not argued convincingly that any prejudice would result from 24
25 granting intervention at this stage of the litigation, and the Court cannot see that any would.
26 Accordingly, the Court concludes that the second timeliness factors weighs in favor of 27 intervention, and, in light of this factor's preeminent importance in the timeliness analysis, the 28
Page 2 of6 Decision and Order Civil Case No. CV 1461-10 -Gange et al. v. Government of Guam et al.
Court concludes that the motion for intervention was timely. The Court thus proceeds to
2 analysis of the other three requirements.
3 B. Applicant's Interest 4 The applicant here argues that he has an ownership interest in a Tiyan property retained 5 by the GIAA, and that this is enough to constitute a significantly protectable interest in this 6 litigation for purposes of granting intervention. He points to the report of the Tiyan Taskforce, 7
8 of which he himself was apparently the chair, attached to Public Law 30-158. He also provides
9 documentation that he argues establishes his decedent Josefina Palacios Crawford's ownership 10 of and interest in a retained Tiyan lot. II The Plaintiffs argue that the applicant's interest is too contingent and too remote from 12 this litigation to justify intervention, citing Washington Electric Cooperative, Inc. v. 13
14 Massachusetts Municipal Wholesale Electric Co., 922 F .2d 92, 97 (2d Cir. 1990), in support of
15 the proposition that, where an applicant's legal claim awaits consummated by a merits 16 adjudication at the time of attempted intervention, that claim is not yet sufficiently direct or 17 substantial for purposes of determining whether intervention is appropriate. 18
19 As the Plaintiffs point out, Guam law explicitly delegates authority to the GALC to
20 determine the validity of ancestral lands claims. This Court plainly does not have the authority 21 to rule on the merits ofthe applicant's claim to the retained Tiyan lot in which he argues he has 22 an ownership interest. This Court cannot grant intervention based on its own conjecture as to 23 how the GALC would rule on the applicant's claim. The Court has reviewed the applicant's 24
25 submissions in support of his motion, and it does not appear to the Court that the GALC has
26 rendered any ruling that the applicant has a valid claim to a retained Tiyan property within the 27 meaning of Public Law 30-158. Accordingly, the Court concludes that the applicant's interest in 28
Page 3 of6 Decision and Order Civil Case No. CV 1461-10 Gange et al. v. Government of Guam et al.
this litigation is not yet sufficiently direct or substantial enough to support intervention. On
2 these grounds alone, intervention could be denied, as an applicant for intervention must satisfy
3 all four of the requirements enumerated in Sablan v. GLUC, 2011 Guam 12 at~ 12. 4 C. Effect of Disposition 5 For intervention to be properly granted, the applicant must also be situated such that the 6 denial of intervention would impair his ability to protect his interest. Having determined, as 7
8 detailed above, that the applicant here has no legally cognizable interest in this litigation, the
9 Court concludes that this requirement is moot in this instance. 10 However, even if the applicant had a legally cognizable interest in this litigation, the 11 Court would not find him to be situated such that intervention would be necessary for him to 12
protect it. In light of the Attorney General's vigorous defense of this suit and the applicant's 13
14 apparent lack of any interest or argument distinct from those adequately protected and advanced
15 by the Attorney General, the Court would deny the motion. 16 D. Inadequacy of Representation by Parties 17 An applicant for intervention must also show that his interest is inadequately represented 18
19 by the existing parties. Having already determined that the applicant here has no legally
20 cognizable interest in this litigation, the Court concludes that this requirement is also moot. 21 However, even if the applicant had the interest he claims to have this litigation, the 22 Court would not find the representation of the existing parties inadequate to protect it. The 23 applicant cites United States v. Stringfellow, 783 F .2d 821, 82 7 (9th Cir. 1986), for the 24
25 proposition that a proposed intervenor is required only to show that representation by the
26 existing parties "may be" inadequate, and that "the burden of making that showing is minimal." 27 Even applying that lenient standard, rather than the rule of United States v. Hooker Chemicals 28
Page 4 of6 I Ded
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5 IN THE SUPERIOR COURT OF GUAM 6
7 MARIA A. GANGE, JESUS CRUZ CHARF AUROS, 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 GOVERNMENTOFGUAM,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 1 This matter came before the Honorable Arthur R. Barcinas on the 15 h day of February, 21 2013, for hearing on applicant for intervention Vicente P. Crawford's Motion to Intervene. 22
23 Attorney Curtis Van de veld represented the Plaintiffs, Assistant Attorney General William
24 Bischoff represented the Defendants, and Attorney Michael Phillips represented the applicant 25 for intervention. For the reasons set forth below, the Court DENIES the Motion to Intervene. 26 Under Rule 24 of the Guam Rules of Civil Procedure and Lirntiaco v. Camacho, 2009 27 Guam 7, ~ 10, "[a]n applicant for intervention must satisfy the following four criteria before a 28 Decision and Order Civil Case No. CV 1461-10 Gange eta!. v. Government of Guam eta!.
motion to intervene can be granted: (I) the motion to intervene must be timely; (2) the applicant
2 must have a "significantly protectable interest" relating to the property or transaction that is the
3 subject of the suit; (3) the applicant must be so situated that disposition of the action may, as a 4 practical matter, impair or impede the applicant's ability to protect that interest; and (4) the 5 applicant's interest must be inadequately represented by the existing parties." These factors are 6 construed broadly in favor of intervention. !d. 7
8 A. Timeliness
9 Under Sablan v. GLUC, 2011 Guam 12, ~ 12, in considering the timeliness of a motion 10 to intervene, the Court considers three factors: "(I) the stage of the proceedings at the time the II applicant seeks to intervene; (2) the prejudice to the other parties if the motion is granted; and 12
(3) the reason for and length of the delay." Here, the applicant sought intervention during the 13
14 pendency of summary judgment. While the applicant could perhaps have been more prompt in
15 filing its motion, the Court, in considering the first timeliness factor, finds nothing weighing 16 against intervention. Jumping forward to the third timeliness factor, the Court notes that the 17 applicant provides no reason for a somewhat lengthy delay, and this weighs against 18
19 intervention.
20 However, "the most important consideration in deciding whether a motion for 21 intervention is untimely is whether the delay in moving for intervention will prejudice the 22 existing parties to the case." Sablan v. GLUC, 2011 Guam 12 at ~ 15 (quoting Wright and 23 Miller). The Plaintiffs have not argued convincingly that any prejudice would result from 24
25 granting intervention at this stage of the litigation, and the Court cannot see that any would.
26 Accordingly, the Court concludes that the second timeliness factors weighs in favor of 27 intervention, and, in light of this factor's preeminent importance in the timeliness analysis, the 28
Page 2 of6 Decision and Order Civil Case No. CV 1461-10 -Gange et al. v. Government of Guam et al.
Court concludes that the motion for intervention was timely. The Court thus proceeds to
2 analysis of the other three requirements.
3 B. Applicant's Interest 4 The applicant here argues that he has an ownership interest in a Tiyan property retained 5 by the GIAA, and that this is enough to constitute a significantly protectable interest in this 6 litigation for purposes of granting intervention. He points to the report of the Tiyan Taskforce, 7
8 of which he himself was apparently the chair, attached to Public Law 30-158. He also provides
9 documentation that he argues establishes his decedent Josefina Palacios Crawford's ownership 10 of and interest in a retained Tiyan lot. II The Plaintiffs argue that the applicant's interest is too contingent and too remote from 12 this litigation to justify intervention, citing Washington Electric Cooperative, Inc. v. 13
14 Massachusetts Municipal Wholesale Electric Co., 922 F .2d 92, 97 (2d Cir. 1990), in support of
15 the proposition that, where an applicant's legal claim awaits consummated by a merits 16 adjudication at the time of attempted intervention, that claim is not yet sufficiently direct or 17 substantial for purposes of determining whether intervention is appropriate. 18
19 As the Plaintiffs point out, Guam law explicitly delegates authority to the GALC to
20 determine the validity of ancestral lands claims. This Court plainly does not have the authority 21 to rule on the merits ofthe applicant's claim to the retained Tiyan lot in which he argues he has 22 an ownership interest. This Court cannot grant intervention based on its own conjecture as to 23 how the GALC would rule on the applicant's claim. The Court has reviewed the applicant's 24
25 submissions in support of his motion, and it does not appear to the Court that the GALC has
26 rendered any ruling that the applicant has a valid claim to a retained Tiyan property within the 27 meaning of Public Law 30-158. Accordingly, the Court concludes that the applicant's interest in 28
Page 3 of6 Decision and Order Civil Case No. CV 1461-10 Gange et al. v. Government of Guam et al.
this litigation is not yet sufficiently direct or substantial enough to support intervention. On
2 these grounds alone, intervention could be denied, as an applicant for intervention must satisfy
3 all four of the requirements enumerated in Sablan v. GLUC, 2011 Guam 12 at~ 12. 4 C. Effect of Disposition 5 For intervention to be properly granted, the applicant must also be situated such that the 6 denial of intervention would impair his ability to protect his interest. Having determined, as 7
8 detailed above, that the applicant here has no legally cognizable interest in this litigation, the
9 Court concludes that this requirement is moot in this instance. 10 However, even if the applicant had a legally cognizable interest in this litigation, the 11 Court would not find him to be situated such that intervention would be necessary for him to 12
protect it. In light of the Attorney General's vigorous defense of this suit and the applicant's 13
14 apparent lack of any interest or argument distinct from those adequately protected and advanced
15 by the Attorney General, the Court would deny the motion. 16 D. Inadequacy of Representation by Parties 17 An applicant for intervention must also show that his interest is inadequately represented 18
19 by the existing parties. Having already determined that the applicant here has no legally
20 cognizable interest in this litigation, the Court concludes that this requirement is also moot. 21 However, even if the applicant had the interest he claims to have this litigation, the 22 Court would not find the representation of the existing parties inadequate to protect it. The 23 applicant cites United States v. Stringfellow, 783 F .2d 821, 82 7 (9th Cir. 1986), for the 24
25 proposition that a proposed intervenor is required only to show that representation by the
26 existing parties "may be" inadequate, and that "the burden of making that showing is minimal." 27 Even applying that lenient standard, rather than the rule of United States v. Hooker Chemicals 28
Page 4 of6 I Ded
& Plastics Corp., 749 F.2d 968, 987 (2d Cir. 1984) (requiring that an applicant make a "strong
2 showing" of inadequate representation where, as here, the government is acting on behalf of the
3 applicant), the Court finds nothing in the applicant's motion or attachments that would carry 4 even a "minimal" burden to show that representation by the Government "may be" inadequate. 5 The applicant argues that "none of the current parties in this litigation have 6 demonstrated that they can or will adequately represent [his] interest." Reply to Plaintiffs 7
8 Opposition to Motion to Intervene, 4; see also Memorandum and Points of Authority In Support
9 of Motion to Intervene, 5. But the burden is not on the current parties to demonstrate that their 10 representation is adequate; the burden, however "minimal" it may be, is on applicant to show 11 that representation by the parties is inadequate. 12
The applicant's assertion, for which he provides no evidence, that the "Defendants at 13
14 one time or another, have spoken out against Public law 30-158," Reply to Plaintiffs
15 Opposition to Motion to Intervene, 3, is, even if true, insufficient to carry even a "minimal" 16 burden. The Court cannot accept this unverified allegation of fact, but even if it could, the 17 participation of the Attorney General's office in the deliberative process of lawmaking in a 18
19 democratic society casts no shadow on its ability to uphold, enforce, and defend a properly
20 enacted law. 21 The applicant's undeveloped arguments attempting distinguish his interest in upholding 22 Public Law 30-158 from the Government's interest in "administration and policy," Reply to 23 Plaintiffs Opposition to Motion to Intervene, 3, likewise fail. The applicant provides no 24
25 reasoning in support of these claims, and the Court is not convinced of their cogency.
26 Accordingly, the Court concludes that the applicant's interests are adequately 27 represented by the existing parties. On these grounds alone, intervention could be denied. 28
Page 5 of6 Decision and Order Civil Case No. CV 1461-10- Gange et al. v. Government of Guam et al.
CONCLUSION
2 For the reasons set forth above, the Court finds that neither intervention of right nor
3 permissive intervention are appropriate in this case. Accordingly, the Motion to Intervene is 4 DENIED. 5
6 IT IS SO ORDERED this day of July, 2013. 7
10 HONORABLE ARTHUR R. BARCINA Judge, Superior Court of Guam 11
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