The Senate and Reps. Janet U. Maratita (Ind-Saipan) and Ray N. Yumul (R-Saipan) have filed a second motion for temporary restraining order to stop Gov. Benigno R. Fitial, former attorney general Edward T. Buckingham, the Commonwealth Utilities Corp., and Saipan Development LLC from pursuing all agreements associated or related to the $190-million power purchase agreement.
The Senate, Maratita, and Yumul, through counsel Ramon K. Quichocho, filed the second motion for TRO on Friday in the Superior Court to prohibit the defendants from continuing or performing the pledge and security agreement between CUC and Saipan Development LLC; the escrow, pledge and security agreement between Saipan Development LLC, CUC, and an agent; and the guaranty between the CNMI government and Saipan Development LLC.
The plaintiffs also seeks to prevent the defendants from pursuing the March 27, 2012, option-to-lease agreement between the Department of Public Lands and Saipan Development LLC; the March 27, 2012, power plant development and management agreement between the CNMI government and Saipan Development; the Aug. 3, 2012, option-to-lease agreement between DPL and Saipan Development; and any other agreements related to the already enjoined power purchase agreement.
Given that all these agreements were made in secret, Quichocho said the plaintiffs and the people of the CNMI are suspicious that other “under-the-table” deals have been made in support of the original power purchase agreement.
The plaintiffs asked the court to issue an order to show cause why a preliminary injunction against the defendants should not be issued.
Unless restrained by a court order, Quichocho said the defendants' wrongful acts and conducts will cause immediate and irreparable injury, loss, or damage to the plaintiffs and the CNMI people.
Quichocho described the related agreements as illegal contracts that will compromise and jeopardize the CNMI people's health, safety, and well-being.
The lawyer said there is a strong possibility that his clients will succeed on the merits in permanently enjoining the defendants from expending over $190 million without appropriation by the Legislature and certification by the Department of Finance.
In the footnote of plaintiffs' second motion for TRO, Quichocho disclosed that an accounting firm has estimated that the power purchase agreement will cost the CNMI around $590 million over 25 years.
“The related agreements all support the implementation of the power purchase agreement, but they are separate and independent contracts/agreements that were similarly made in secret,” he said. “It is clear that defendants, who seem to be purposely secretive about the now enjoined power purchase agreement, will not take affirmative steps to stop implementation of the related agreements, without court order.”
The lawyer said issuance of TRO is in the public interest because it “seeks to restrain or prevent defendants from improperly, illegally, and unconstitutionally expending public funds to benefit a few.”
On Aug. 21, 2012, Superior Court associate judge David A. Wiseman granted Maratita's first request for a TRO to prohibit Fitial and co-defendants from pursuing the power purchase agreement.
On Thursday, Maratita amended her complaint to include the Senate and Yumul as co-plaintiffs.
In the amended complaint, Quichocho attached a copy of power purchase agreement with the signature of a representative for Saipan Development LLC manager Donald R. Kurz. Fitial signed the agreement for CUC along with Buckingham on Aug. 3, 2012.
The amended complaint also discussed the related agreements.
In the causes of action, the plaintiffs added one claim-breach of trust against Fitial.
Remained claims in the amended complaint are the taxpayer's right of action: Illegal expenditure of public funds; taxpayer's right of action: breach of fiduciary duty; declaratory relief; and injunction.
The amended complaint basically requested the same court order and relief that Maratita sought in the original complaint.
The plaintiffs asked the court to declare the 25-year power purchase agreement “unconstitutional, illegal, unconscionable, and unjust, and therefore, cancelled.”
On Friday, Wiseman issued a preliminary injunction that prohibits Fitial and co-defendants from pursuing the power purchase agreement.
Preliminary injunction refers to a court order issued in the early stages of a lawsuit that enjoins or prohibits a party or parties from performing an act in order to preserve the status quo until a pending ruling or outcome.
Fitial and acting attorney general Viola Alepuyo on Thursday filed a written statement not opposing the issuance of a preliminary injunction.