Landowner goes to court for $1.16M land payment

A wetland owner has asked the Superior Court to order the release of some $1.16 million that she said the government owes her for taking her property in 1993. The owner, Victoria S. Nicholas, also accused Attorney General Pamela Brown of discriminating against her claim by blocking the payment.

Brown had sued Nicholas and the Marianas Public Lands Authority to prevent the drawdown of funds from the Land Compensation Fund, claiming that compensating Nicholas for an expropriated wetland violated the Land Compensation Act.

Former Superior Court presiding judge Edward Manibusan and Diane S. Cabrera, attorneys for Nicholas, said the law is clear that the taking of wetlands for a public purpose is compensable, using funds from the government’s land compensation fund.

Manibusan and Cabrera said that Brown intentionally filed the lawsuit despite knowing that the taking of wetland is compensable and an amendment to the law had the intent to de-prioritize compensation claims. Originally, the Act prioritized the payment of compensation claims relating to land taken for right-of-way purposes.

“From September 2004 up to the filing of this lawsuit, other land compensation claimants, similarly situated as Nicholas, have received their compensation pursuant to the Land Compensation Act,” they said. “Nicholas’ claim was singled out for some unknown reason and made the focus of this lawsuit. At a minimum, [Brown’s] actions harbor the appearance of affirmative misconduct, unfair and inequitable treatment of claimants, and the perpetration of a grave and manifest injustice.”

Nicholas’ attorneys explained that Public Law 13-17, the Land Compensation Act of 2002, clearly made the government’s taking of private wetlands compensable, but that claims involving wetland taking should be entertained only after claims involving right-of-way and ponding basin acquisitions have been compensated.

They said the enactment of P.L. 14-29 amended the act to remove the prioritization of compensation claims.

Besides saying that the plain reading of the amendment clearly considered wetland taking compensable under the act, Manibusan and Cabrera also noted Gov. Juan N. Babauta’s transmittal letter to the Legislature when the governor approved the amendment.

“As amended, the land compensation claims for the acquisition of private lands by the CNMI government for public road construction, construction of ponding basins, wetland, and other claims involving private land acquisition are treated equally,” the governor stated. “This amendment… removes any inference or appearance of favoring specific land [compensation] claimants to the disadvantage of other individuals with pending land compensation claims.”

Manibusan and Cabrera asked the court to dismiss Brown’s lawsuit against Nicholas for failure to state a claim.

The MPLA authorized the payment of over $1.16 million to Nicolas on April 28, a week after the governor certified the government’s taking of her property in 1993 for the purpose of protecting wetlands and endangered species.

Nicholas’ attorneys explained that the MPLA’s authorization of payment to her resulted from negotiations that resulted in a settlement agreement between the agency and their client on April 22.

While requisition documents were being circulated to consummate the land compensation payment to Nicholas, then acting AG Clyde Lemons Jr. instructed Finance Secretary Fermin Atalig to withhold further action on her claim on May 9, 2005.

“The other similarly situated private landowners whose properties were taken pursuant to the Land Compensation Act received their cash settlement amounts in full without unreasonable delay, obstruction, or further legal actions taken against them,” Nicholas’ lawyers said.

Manibusan and Cabrera said the Finance secretary concurred with the release of payment for Nicholas on Aug. 8, more than three months after the MPLA and the wetland owner reached a settlement. Nicholas had also signed a document conveying her property to the government.

In Brown’s suit, assistant attorney general James Livingstone said the 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. Livingstone seeks judicial declaration that wetland properties that are not used for right-of-way purposes cannot be compensated using land compensation funds.