DPL awaits court decision on pozzolan issue

The Department of Public Lands issued a statement Friday explaining why action on the proposed mining of pozzolan on Pagan Island remains stalled.

It said that the original priority by the Fitial administration and DPL to invest in pozzolan mining through competitive and fair business partnership remain stalled until such time that the Supreme and Superior Courts issue their respective decisions in the case.

The DPL statement was prompted by several recent public statements that have expressed disappointment about the delay in developing the pozzolan deposits on Pagan.

“DPL Secretary John S. Del Rosario Jr. shares this frustration, recognizing that these deposits might provide significant revenues to the Commonwealth if exploited in a professional and transparent manner. It is timely to provide an update on this matter in an effort to dispel any misstatements to the contrary,” the statement said.

It then went on to relate the story behind the issue, which follows:

“1. The Secretary on Aug. 1, 2006, terminated the 1995 Permit granted to JG Sablan Rock Quarry, Inc. The Secretary concluded that the undisputed facts demonstrated that JG Sablan had violated several provisions of the 1995 Permit over many years and had not produced one dollar of revenue for the Commonwealth. The Secretary found that termination was necessary to protect the public interest in these resources and to lay the groundwork for an open and competitive method for attracting qualified investors to participate in this project.

“2. JG Sablan filed an action in the Superior Court on Aug. 30, 2006, challenging the Secretary’s decision on both procedural and substantive grounds. The Commonwealth filed a motion for partial summary judgment on the procedural issues on Oct. 18, 2006, and this motion was argued on Nov. 22, 2006. Almost a year later on Oct. 3, 2007, the trial court finally issued its decision and rejected JG Sablan’s procedural contentions and held that the Secretary had complied with all the applicable laws and regulations in terminating the 1995 Permit.

“3. On June 12, 2007, the Commonwealth filed a second motion for summary judgment responding to JG Sablan’s contentions that the Secretary’s decision was wrong on the merits. This motion was argued on Aug. 7, 2007, and there has been no decision by the trial court on this motion every since.

“4. Even before the Secretary issued his termination decision on August 1, 2006, the CNMI Legislature meddled with Executive Branch authority by enacting Public Law 15-21 over the Governor’s veto to reverse the Secretary’s termination decision and revalidate JG Sablan’s mining permit. The Commonwealth on Aug. 11, 2006, filed a complaint seeking a declaratory judgment that this legislation was unconstitutional under the separation of powers doctrine and under Article XI of the CNMI Constitution. After argument on Nov. 22, 2006, the trial court issued its opinion on June 8, 2007, holding that two sections of Public Law 15-21 were constitutional and two sections were unconstitutional.

“5. Before the trial court issued the required ‘separate document of entry of judgment,’ JG Sablan proposed an amendment to its answer and submitted a proposed counterclaim based on one of the sections of Public Law 15-21 that the trial court had held to be constitutional. The Commonwealth opposed the proposed amendment and counterclaim on the grounds that it was entitled to appeal from the trial court’s decision upholding the constitutionality of the particular section of the law that JG Sablan was now seeking to rely upon. Among other arguments, the Commonwealth pointed out that JG Sablan was seeking to initiate a new lawsuit that might never need to be filed once the CNMI Supreme Court had an opportunity to review the trial court’s ruling. The trial court rejected the Commonwealth’s objections and permitted the amendment of JG Sablan’s answer and the filing of the counterclaim.

“6. On Aug. 27, 2007, the Commonwealth filed a petition for writ of mandamus in the CNMI Supreme Court. The Commonwealth contended that the trial court had not complied with the requirement of filing a separate document embodying its final judgment. It emphasized that the trial court was thereby postponing indefinitely the Commonwealth’s right to appeal from its decision upholding the constitutionality of two sections of Public Law No. 15-21, and was requiring the parties to engage in lengthy and unnecessary additional litigation. Oral argument on this petition took place on Dec. 13, 2007, and no decision has been issued yet by the Supreme Court. All further proceedings in the trial court have been stayed until the Supreme Court rules on the petition for a writ of mandamus.

“The department is looking forward to the decision of the trial court on the second motion for partial summary judgment and the decision of the Supreme Court on the petition for writ of mandamus. It has instructed its lawyers to take all appropriate steps to seek a prompt resolution of these legal proceedings,” the statement said.

“Despite opportunities presented by the anticipated military buildup in Guam and the region, the CNMI’s economic future continues to hang in the balance,” it added. [B][I](PR)[/I][/B]