HONOLULU (CN) - After it took nine months to substitute counsel in a 13-year-old environmental case, Guam urged the 9th Circuit to show that the delay harmed it.
The lawsuit stems from longstanding efforts by the United States to shut down and replace the Ordot landfill, a Superfund site in Guam found to have polluted the Lonfit River, the Pago River and Pago Bay.
Guam sold $202.4 million worth of bonds to satisfy the initial estimate of shutting down Ordot, but the government was hit in December 2012 with a $25 million judgment for the landowners in Layon whose property was condemned as the site of the new landfill.
Though the lieutenant governor wanted Guam's attorney general to let a portion of the bonds satisfy that $25 million judgment, court-appointed receiver Gershman, Brickner & Bratton said its latest estimates on the cost of shutting down Ordot were significantly higher.
With the receiver refusing to earmark a portion of the bond money for the former landowners, that group intervened in the environmental action over Ordot.
Guam then asked the court to let the law firm Cabot Mantanona step in for its attorney general on this aspect of the case, and Judge Tydingco-Gatewood granted the motion.
When Guam then said it wanted Cabot Mantanona to represent it in all aspects of the litigation, however, the court demurred in August 2013.
It finally granted the substitution that October after finding that "there has been a breakdown in the attorney-client relationship."
The matter went before the 9th Circuit on Thursday, in a special sitting by the federal appeals court at the University of Hawaii, Manoa, Richardson School of Law.
Judge Richard Clifton questioned why the eventual substitution order did not moot the issue.
Jay Trickett, a Calvo Fisher & Jacob attorney representing Guam, replied that the issue is "not moot because the substitution of counsel was not a reconsideration."
"It's based on new grounds," Trickett said. "And it was issued after the receivership had proceeded for almost five months from the date the substitution of counsel was initially filed."
When Judge Michelle Friedland questioned the relevance of those five months, Trickett noted that the District Court's approval in July 2013 of a Gershman Brickner plan to end the receivership by December 2015.
Through the remedial receivership, the federal court is literally taking over a government agency while the local taxpayers remain responsible for funding it, Trickett said. Receiver's fees totaled almost $1 million during this period, he added.
In his annual state of the island address on Feb. 16, Guam Gov. Eddie Calvo stressed the importance of making the U.S. government acknowledge its part in the territory's environmental problem.
"The people of Guam didn't start that mess," Calvo said. "We shouldn't be expected to bear the full burden of its closure."
Ordot dump was in the military's control for 13 years before it was turned over to the local government.
Guamanian lawmakers introduced a bill last year that would have authorized Calvo to sue the U.S. government, but the measure died at the committee level.
When it first tried to replace its attorney general in the Ordot litigation, Guam cited a conflict of interest based on that office's January 2008 representation of Gershman Brickner in a land-condemnation case before the Superior Court of Guam.
Tydingco-Gatewood appointed Gershman Brickner in the Ordot dump case just a few months later.
Guam told the three-judge appellate panel that the lower court should have held an evidentiary hearing on this potential conflict.
"When the attorney general said that the receiver has been actually its client since 2011, the District Court had a duty to investigate at a minimum when a conflict of interest like that is raised," said Jay Trickett, a Calvo Fisher & Jacob attorney representing Guam.
Judge Clifton took Trickett to task.
"What's the basis of the district court's duty to investigate?" he asked. "What is it supposed to have done? It's supposed to be a neutral judicial officer. It's not trying to examine whether somebody has to be tossed out to the bar."
Insisting that the court denied Guam an opportunity to be meaningfully heard, Trickett replied, "It's about due process."
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