US Given Chance to Nix Costly Suit Over Dump in Guam

A replica of canons used by the Spanish from the Spanish occupation on Guam in the 19th century is seen outside of government offices in Hagatna, Guam, on Aug. 11, 2017. (AP Photo/Tassanee Vejpongsa)

WASHINGTON (CN) – A federal judge who advanced Guam’s $160 billion lawsuit over a landfill the Navy created before World War II cleared the way Thursday for the government to appeal.

The Ordot Landfill on Guam took in military and other waste for decades before a court settlement forced its closure in 2011. Up until then, the landfill operated unlined and uncapped, sending contaminants into the Lonfit River, which eventually winds its way into the Pacific Ocean.

Having already signed a consent decree with the U.S. government, Guam began cleaning up the dump in December 2013 but quickly the bills for the effort started piling up.

The U.S. territory filed suit two years ago to have the federal government pick up the $160 billion expected tab, and the case survived a critical juncture in September 2018 when U.S. District Judge Ketanji Brown Jackson denied a motion to dismiss, saying the 2004 consent decree did not expressly stop Guam from seeking money to cover cleanup costs.

Jackson offered a possible out Thursday, however, in ruling that the government may immediately ask the D.C. Circuit to review her ruling.

Typically appeals happen only after a judge issues final judgment, but under certain circumstances parties can take individual rulings in a case to an appeals court.

Jackson explained Thursday that this is one of those circumstances because the D.C. Circuit has never weighed in on the key legal questions the government raised in its attempt to dismiss the case. Other federal appeals courts that have weighed in meanwhile are split on what the correct answer is. The D.C. Circuit’s answer to those questions could fundamentally change the future of the case, Jackson said.

“Because this court finds that there is a substantial ground for difference of opinion regarding at least one controlling issue of law that the United States has identified, and that allowing the United States to appeal at this stage in the litigation could materially advance the litigation, it concludes that the legal standard for certifying the prior order for interlocutory appeal has been met,” the 22-page opinion states, using the legal terms for appeals that begin before final judgment in a case.

Jackson agreed to put the case on hold while this appeal is underway. 

Bezalel Stern, an attorney for Guam with the firm Kelley Drye & Warren, did not immediately return a request for comment.

The Justice Department declined to comment.

Guam was operated by the Navy from 1899 to 1950, when Congress transferred control of it to the Department of the Interior. It wasn’t until 1971 that the island elected its first governor.

The 15-year-old consent decree stems meanwhile from a lawsuit the federal government brought against Guam in 2002 over discharge from the landfill.

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