Another wetland owner cries foul

Another wetland owner whose land was taken by the government has cried foul over Attorney General Pamela Brown’s attempt to block the payment of compensation amounting to nearly $160,000.

Rosario DLG. Kumagai, a dialysis patient, also said that Brown’s lawsuit blocking the payment runs contrary to a settlement agreement she reached with the Commonwealth Health Center, which had sued her for unpaid medical bills.

In the settlement between the CHC and Kumagai, Brown’s office, on behalf of the government hospital, agreed to disburse the remaining funds from her land compensation claim in the amount of $79,704.10, which is being held by the Marianas Public Lands Authority.

“Plaintiff [CHC/CNMI government] further agrees not to object, obstruct, or in any way hinder the disbursement of the remaining funds,” stated Kumagai’s attorney, Brien Sers Nicholas, of the settlement agreement in the CHC lawsuit.

“The filing of [Brown’s lawsuit] has also demonstrated an affirmative misconduct on the part of [Brown],” Sers Nicholas said. “How can [Brown], on one hand, agree and warrant that Kumagai is entitled to her land compensation and that they will not object, obstruct, or in any way hinder the disbursement of the same and, on the other hand, proceed to file this lawsuit against her to prevent her from receiving her land compensation?”

Sers Nicholas said Brown’s office did not interfere in other compensation claims arising from the government’s taking of wetlands for public purposes.

The lawyer asked the court to dismiss Brown’s suit and order the release of land compensation to Kumagai as soon as possible.

Brown, through assistant attorney general James Livingstone, sued Kumagai and another wetland owner, Victoria S. Nicholas, as well as the MPLA, to prevent the drawdown of funds from the government’s land compensation fund. The MPLA has agreed to compensate Kumagai and Nicholas.

Livingstone said that MPLA has exhausted the land compensation fund and many claims for land taken for right-of-way purposes would not be compensated at all if the monies were released to Nicholas and Kumagai. Livingstone wants the court to declare that wetland properties that are not used for right-of-way purposes cannot be compensated using land compensation funds.

Like Nicholas, Kumagai disagreed with Livingstone’s position, asserting that the government’s taking of wetland properties are compensable under Public Law 13-17, the Land Compensation Act of 2002.

Sers Nicholas explained that the statute is clear that the taking of wetlands for public purpose is compensable, but that lands taken for right-of-way purposes and ponding basins should be entertained first before wetland-taking claims.

The lawyer pointed out that the prioritization of the claims has been removed through the passage of PL 14-29, which amended the Act. The amended version of the law states in part: “The MPLA shall compensate the acquisition of private lands for right-of-way purposes, including but not limited to public road construction, construction of ponding basins, wetland, and other claims involving private land acquisition permitted by applicable laws.”

Besides saying that the language of the new amendment is clear, Sers Nicholas said the intent to de-prioritize land compensation even became clearer with Gov. Juan N. Babauta’s transmittal letter to the Legislature when he approved the amendment.

In that letter, Babauta said the amendment removes any appearance of favoring specific land compensation claimants to the disadvantage of other claimants. The governor said the law treats land compensation claims equally.

Sers Nicholas said the MPLA’s approval of Kumagai’s claim came about after a settlement was reached between her and the agency. Then Gov. Lorenzo I. DeLeon Guerrero had certified the taking of Kumagai’s property for the purpose of protecting wetlands and endangered species on Nov. 16, 1993.

The MPLA authorized the payment of some $159,408.19 to Kumagai on May 5, 2005, and forwarded the settlement agreement to Finance Secretary Fermin Atalig for concurrence. On May 9, 2005, however, Deputy AG Clyde Lemons Jr. wrote to Atalig instructing the secretary not to process Kumagai’s claim.

But on Aug. 8, 2005, Atalig gave his concurrence and forwarded the document to the MPLA, which, in turn, forwarded the same to the Commonwealth Development Authority.

The following day, the CDA transmitted the documents to the Bank of Guam for the release of monies to Kumagai, but Sers Nicholas said Brown instructed the CDA to stop processing the claim. Sers Nicholas said Brown’s office and the CDA entered into a written agreement that effectively stopped the processing of Kumagai’s claim.

“Kumagai has been a dialysis patient at the CHC since 1998. She is also presently on the list for kidney transplant with the California Pacific Medical Center and, but for her financial situation, her chances of getting such a kidney transplant are nonexistent at present,” Sers Nicholas said.

Sers Nicholas asserted that the settlement agreement between the MPLA and Kumagai is legally enforceable and that the government’s land compensation fund could be used to pay his client’s claim. He also asked the court for an award of attorney’s fees and costs related to the lawsuit.