GWA claims it has power to seize private property

The general manager of Guam Waterworks Authority in 2016 told the Guam Ancestral Lands Commission his agency has the power to condemn, or seize, private property. Asked whether Guam’s laws indeed grant GWA this enormous power, the Office of the Attorney General of Guam replied that it didn’t know, and that GWA’s legal counsel might know the answer.

Miguel Bordallo

“We don’t need to go to the legislature for the condemnation process the authority has eminent domain we just have to work with the Attorney General’s office we have no qualms pursuing that route if we need to go that route, to negotiate would be preferable,” GWA general manager Miguel Bordallo told GALC commissioners assembled in a July 27, 2016 meeting. Mr. Bordallo was trying to convince the commissioners to support legislation that eventually would be passed. The legislation authorized GALC to sell land to GWA for the expansion of the Northern District Wastewater Treatment Plant at Ukudu, Dededo.

Among the problems was that some 70,000 square meters of that so-called sale included land that was part of Core Tech International’s Lot 10184-6, which is adjacent to the land, where the NDWWTP sits, Lot 10184-7. Documents indicate Core Tech owns both properties; a contention being litigated in the Superior Court of Guam now.

The assertion that GWA has the authority to condemn land seems to be contradicted on its face by what the Guam Legislature has allowed under Guam law.

According to §15102 of Title 21, Guam Code Annotated,

“Eminent Domain is the right or power of the government to take private property for public use, the right of the government or department or agency thereof, or public corporation to whom the power is delegated by law to condemn private property for public use and to appropriate the ownership and possession thereof for such use upon paying the owner due compensation therefor.”

The law goes on further to state that it is the Guam Legislature that determines whether a property will have a public benefit for use.

Eminent domain requires the government of Guam to provide just compensation for the taking of the land. According to the Organic Act of Guam, under the Bill of Rights section accorded by Congress, “Private property shall not be taken for public use without just compensation.”

This led the Guam Legislature in 1969 to promulgate a statute that eminent domain may only be exercised by the governor and only after had authorized funds for the payment of just compensation.

“The power of Eminent Domain may be exercised by the government of Guam upon authorization and appropriation by the Guam Legislature of funds necessary for payment of just compensation. Such power shall be exercised by the Governor of Guam.” – §15101(a), Title 21 GCA

And then there’s the other layer of protection for landowners; the judicial one, according to §15106 of this statute: “The Superior Court of Guam shall have jurisdiction over all actions for condemnation of private property for public use by the government of Guam. The procedure in such actions will be governed by the appropriate provisions of the Rules of the Superior Court.”

There is nothing in this chapter of the law that even suggests GWA has the power to condemn private property.

Kandit asked Mr. Bordallo via email whether another section of Guam law conflicts with this statute and does in fact grant GWA the power of eminent domain. He does not respond to Kandit’s requests for comment.

The issue is significant, not just to the protection of private landowners, but also to the ongoing litigation against Core Tech, whose land was taken without just compensation, and without ever going through legal eminent domain proceedings.

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