AGO insists on its interpretation of land payment law

Attorney General Pamela Brown is insisting that the Land Compensation Act prioritizes payments for properties taken for right-of-way purposes, and that the claims by two former wetland owners, which she opposes, are unlawful.

Rebutting the interpretation by lawyers for defendants Victoria S. Nicolas and Rosario DLG. Kumagai of the Land Compensation Act, Brown’s attorneys said the language of the law and its amendments clearly prioritized compensation for land taken for right-of-way purposes.

Assistant attorney general James Livingstone and Deborah Covington said the intent of the Legislature could be seen from its floor deliberations. Certain lawmakers clarified that compensation for purposes of the Land Compensation Act should pertain to land taken for right-of-way purposes, such that a wetland should have been taken for right-of-way purposes in order to be compensable under the Act.

The pertinent provision of Public Law 14-29, which amended PL 13-17, states: “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.”

Brown’s attorneys quoted several lawmakers, including House Reps. Clyde Norita, Joseph DeLeon Guerrero, and Arnold Palacios, all of whom essentially stated that wetlands taken should be for right-of-way purposes to be compensable.

“So that is specific for right-of-way purposes and associated with that is either ponding basins or other wetlands that might be [for] right-of-way purposes. You just don’t exchange wetland. It has to be right-of-way purposes for wetland,” they quoted Norita as saying.

Brown’s attorneys made light of the transmittal letter of Gov. Juan N. Babauta to the Legislature when the chief executive approved the amendment. In that letter, Babauta said the amendment removed any appearance of favoring specific land compensation claimants to the disadvantage of other claimants.

“Although a court may look to statements by the executive branch in determining legislative intent of a statute, the court affords little weight to such sources where the legislative history itself speaks clearly,” Livingstone and Covington said.

The two said the AGO has been troubled by the defendants’ conduct in the case, accusing the latter of attempting to tarnish the reputation of the AGO. Both Nicolas and Kumagai have accused the AGO of discriminating against their claims and that similar claimants have already been compensated, which Brown’s attorneys denied.

The court had stricken an amended complaint filed by the AGO, which questioned not only the use of the land compensation fund for wetland taking, but also the valuations of properties for purposes of compensation.

“For the awards at issue here, [Brown] had questions about the propriety of the payments and whether or not the valuations of the properties were proper. With respect to Nicolas’ property, the valuation appeared questionable because Nicolas purchased the property in 2000 for $1, yet MPLA awarded her $1,166,403.14,” Livingstone and Covington said.

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 to protect 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.

As for Kumagai’s claim, the MPLA authorized the payment of some $159,408.19 to her on May 5, 2005. 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.