Saturday, March 21, 2009

A Case Study in Contemporary Colonialism

To read the filing of contempt charges on behalf of the United States of America against the Government of Guam, click here. If you ever want to know what the relationship between Guam and the United States is at its core, at its foundation, read any court cases such as this, where you see local and federal interests clash. You'll see reiterated over and over the idea that Guam is ours, Guam belongs to the Feds, Guam belongs to the Congress, Guam belongs to the military. That is the legacy that we get from American imperialism and then the case law which starts with the Insular Cases that authorized and legalized American colonialism in its territories.

I'll be writing more on this soon, but for now the KUAM News article on it will have to suffice. But in case you don't read through to the end of the post, my favorite quote from this so far is that the Guam Legislature has "warred against the Constitution."

Guaha taotao kumalamlamten, pues sa' hafa kumeketu hao?

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GovGuam found to be in civil contempt
By Mindy Aguon
Published Mar 20, 2009
KUAM News

Despite the Government of Guam's contention that Public Law 30-1 was a viable solution, District Court Chief Judge Frances Tydingco-Gatewood in a 16-page decision shot down every argument presented by the government. Not only did she hold the government in civil contempt and order the immediate payment of nearly $4 million by Monday, but the judge admonished lawmakers for passing legislation that she deemed unconstitutional.

It's clear in the chief judge's decision that the she wasn't buying GovGuam's argument that existing Guam policy was the answer to closing the dump and opening a new landfill. In fact, the judge contends lawmakers who voted for its passage violated their oath of office. Her order requires weekly one million dollar payments and compliance by the government otherwise stiff monetary penalties will be imposed.

Saying the court and the people of Guam have been more than patient in expecting Guam's leaders to jointly arrive at a solution to the Ordot Dump crisis, Tydingco-Gatewood made it clear Friday that inaction and obstacles will no longer be tolerated. She further reiterated her position by finding the government of Guam in civil contempt. Saying the government met both thresholds to be held in contempt, the judge first found that the government disobeyed a specific court order she handed down on February 13, mandating weekly cash payments beginning March 1.

Tydingco-Gatewood noted that the order could not be more specific and definite, writing, "It unequivocally told the government what it was to do, and when it was to do it. No reasonable person or entity could be confused as to what was required." While the government maintained that Public Law 30-1 represented its good faith effort to find a viable alternative to the weekly payment, the chief judge found that despite Governor Felix Camacho's cooperation through the introduction of Bill 51 and specific funding mechanisms, the legislature made "radical amendments" and "Cannot imagine how PL 30-1 could qualify as a reasonable step taken in compliance with the court's February 13 2009 order."

Senator B.J. Cruz introduced Section 6 of the public law prohibiting the government from making any payments for consent decree-related projects unless first receiving approval from the Guam Legislature. It's this particular section the judge says was clearly enacted in direct contravention of her order and it's this section that she declared null and void under the Supremacy Clause of the U.S. Constitution.

Tydingco-Gatewood added that every lawmaker who supported the enactment of Section 6 violated his or her oath of office, saying, "...not only have our island's officials wasted time and money by enacting patently unconstitutional legislation designed to frustrate compliance with a valid court order effecting federal law, they have 'warred against the Constitution', thereby violating their oath of office."

She also found that the government's force majeure argument was not only unfounded and frivolous but she warned that future attempts to use that argument would be cause for sanctions.

After finding the government in civil contempt the court ordered the government to immediately turn over the $3.9 million that has been set aside by the Camacho Administration by noon on Monday, March 23. The judge noted that the government may purge its contempt and avoid the actual payment of the coercive sanction by immediately coming into compliance reiterating the suggestion of using Section 30-backed revenue bonds. She even referred to the government's consultants that pointed out flaws in Public Law 30-1 that created uncertainties for the issuance of financing for consent decree projects.

Should the government fail to deposit the money on Monday, the court will immediately impose daily civil contempt sanctions beginning at $10,000 and doubling each day, up to a daily limit of $250,000. If no payment is made by April 1, the sanctions will accrue at a quarter-million dollars per day until the government comes into full compliance.

With a little more than two years of airspace left at the dump, the court is hopeful today's order will be the catalyst for officials to take action in compliance with the consent decree.

Voicing her own response to the order, Senator Judi Guthertz wrote, "I am disappointed in the District Court Judge's ruling. I am studying the ruling and I believe the repercussions on our community will be severe. I believe that the judge is not being reasonable and I believe the Legislature should consider whether it should challenge the judge’s interpretation of the Supremacy Clause.” As for acting speaker Tom Ada, he reacted by saying he was disappointed because he felt the Legislature provided viable options in the Public Law 30-1, however he understands the reality is those options may not be available as soon as the court may have wanted them. Ada added he is focusing his attention on how the million dollar weekly payments will affect the people of Guam.

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