Ninth Circuit Considers Plea of Guam Elders in Airport Land Compensation Case

by Amanda Pampouro, Court House News, November 13, 2018

The Ninth Circuit considered Tuesday whether the government of Guam denied due process to landowners whose ancestral land is currently being used as the island’s only public airport.

Following World War II, the federal government repossessed large tracts of land across the Pacific U.S. territory of Guam in the Mariana Islands. The U.S. returned land not being used for military purposes in 2000. In response, Guam’s government mandated the land be returned to its former owners – and if that wasn’t possible, the former owners would receive fair compensation.

The A. B. Won Pat International Airport currently uses about 1,400 acres of land in Tiyan, Guam, which cannot be returned to its former owners.

In his lawsuit against the Government of Guam, former land owner Vincente Palacios Crawford points out that those deprived of land after World War II are now either deceased or manåmko – a word meaning “wise elder” in Guam. Although Guam has returned 300 properties to ancestral owners, Tiyan property owners such as Crawford have been waiting for hearings for nearly 20 years to determine what compensation is owed.

In August 2017, the District Court of Guam dismissed Crawford’s due process claim.

Crawford appealed.

“We really sympathize with plaintiff,” assistant attorney general David Highsmith told the Ninth Circuit panel on behalf of Governor Eddie Calvo and the Guam Ancestral Lands Commission at oral arguments Tuesday. “The Guam Ancestral Lands Commission and the Government of Guam would like to distribute money from the trust but we do not believe it is legally possible to do that.”

While Crawford has said he is one of 130 Tiyan landowners deprived of property, Highsmith estimates that 3,000 former landowners are in a similar position.

“Clearly it’s a difficult proposition and you’re not helped by the fact that the legislature hasn’t come up with clearly defined rules,” said District of Hawaii Judge Leslie Kobayashi, sitting by designation on the Ninth Circuit panel, at Tuesday’s arguments. “But what I understand Mr. Crawford is arguing [is] that there is a clearly defined right and therefore he can pursue his due process claim, because the statute has compelling language – ‘shall’ or ‘must’ award just compensation. Is that sufficient to create a clearly defined property right?”

Highsmith clarified that while Guam law “creates an expectation of a property right, it is judicially unenforceable at this time.”

When Kobayashi pushed him further, Highsmith continued, “You don’t know what share of the trust money everyone is entitled to. Do you give the same amount of money to every beneficiary? Do you divide it based on the square footage of the land you lost?”

“It would be interesting to know what Mr. Crawford thinks should happen next – how should we carve up the trust?” Highsmith said. “We’d love to distribute the money, but it’s not up to the commission members to decide what happens next.”

Attorney Scott Grzenczyk of the San Francisco firm Girard Gibbs argued on behalf of Crawford that the Guam Ancestral Lands Commission has created its own regulations in the past and that it is more than equipped to figure out how to distribute funds to landowners—but first Crawford deserves a hearing.

“There is no clear definition of a dollar amount of what just compensation means for people in plaintiff’s position, but the fulcrum of a due process analysis is not whether or not the amount of compensation or the amount of the benefit is set … the question is whether or not the government has the discretion to deny the benefit in its entirety,” Grzenczyk said.

Although it has yet to establish rules for distribution, the Guam Land Bank Trust currently holds $6 million collected to compensate landowners.

On behalf of the airport, attorney Genevieve Paulino Rapadas asked that the A. B. Won Pat International Airport be left out of the court’s decision.

Ignacio Cruz Aguigui of Tamuning also represents Crawford.

U.S. Circuit Judges Sidney R. Thomas and Susan P. Graber also sat on the panel. They did not indicate when they would reach a decision or to what extent they will offer guidance to the Government of Guam.

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