Will the U.S. Attorney become the ancestral lands bogeyman?
The federal government a few years ago was one conversation from taking back the Tiyan property it had deeded to GovGuam that scores of families now live on. For many property owners, who received land returned by the military to GovGuam then quitclaimed to them through the ancestral lands process, a question lingers: will the federal government take the land back?
This isn’t an issue of politics, colonization, or even eminent domain. For many properties that have been quitclaimed by the Guam Ancestral Lands Commission to the successors of the pre-condemnation owners of the land (most of the condemnations happening prior to 1951), this is very much a legal issue. Behind each of those quitclaim deeds from GovGuam to the so-called ancestral land owners, is not just a history of land taking and land use by the federal government, but legal instruments that commanded the land be used for public benefit in perpetuity.
Many of the deeds of conveyance applicable to parcels of land that ended up being quitclaimed to private land owners contained a reversionary clause that essentially states that if the land is not used for a public purpose, title to the property automatically forfeits back to the federal government.
There’s good news and there’s bad news. The good news, is the federal government has not often exercised the reversionary clause. The bad news, is it seems the federal government wastes no time threatening to take back land, when it deems it necessary. Translation: If your property has a U.S. Government reversionary interest attached to it, the Feds can take your land, at any time.
A recent filing by the U.S. Attorney for Guam and the CNMI in the Superior Court of Guam gives a glimpse into when the federal government means business with that reversionary clause.
In December 2019, Michael Borja in his role as director of the Guam Department of Land Management, filed a civil lawsuit in local court to change what DLM asserted was a mistake made in the title certificate of Lot 10184, Dededo, also known as the multi-million dollar Harmon Annex (adjacent to Two Lovers Point). By the time of the lawsuit, CoreTech had already bought and was developing most of the property on Lot 10184, Dededo.
The problem is that one of the divisions of the lot, which CoreTech has asserted (and the certificate of title bears out) it purchased for millions of dollars from the previous owner, was Lot 10184-7 (now Lot 10193 and Lot 10194). That’s the sliver of property, where the northern wastewater treatment plant, and its pipeline to Camp Blaz, sits.
CoreTech’s purchase of the land, its claims on the title, and an audit claiming the loss and destruction of land documents culminated in a 2019 counterclaim on the land by CoreTech and request for inverse condemnation of the property.
“The United States has a particular interest in the resolution of this case because Core Tech’s counterclaims threaten to adversely impact the chain of real estate title under which the United States reserved a reversionary interest in real estate if not used for public benefit, specifically a wastewater treatment plan that serves U.S. facilities at Andersen Air Force Base and Marine Corps Base Camp Blaz,” the USAO statement in the local court lawsuit states.
The USAO statement does not contemplate fault for how GovGuam and CoreTech arrived at the dispute, but it does state repeatedly that if, in fact, GovGuam released the property to private interests, such a transaction is void, and the land would revert back to the ownership of the military.
“Because the United States has a reversionary interest in parcels it conveyed to GovGuam that is triggered upon cessation of use for public benefit, conveyance of those parcels without encumbrance by the public benefit use – i.e., the Plant – would have caused title to revert to the United States,” the USAO statement reads.
The problem began long before CoreTech bought the property. In its statement, the USAO explained to the court that the U.S. government in 1980 granted GovGuam an easement “subject to the construction of the proposed Northern Integrated Sewage System Treatment Plant designed to serve Department of Defense as well as U.S. Government agencies in the Northern District of the Island of Guam.” Parcel 4, or what now is known as Lot 10184-7, was outleased specifically for the plant’s construction.
In 2002, the U.S. conveyed the Harmon Annex, including Lot 10184-7 to GovGuam “so long as GRANTEE uses the Property for public benefit use, as contemplated by the Guam Excess Lands Act, Public Law 103-339, 108 Stat. 3116 (1994). Should GRANTEE use the Property for other than such use, title to the Property shall revert to GRANTOR.”
Four years later, in 2006, the Guam Ancestral Lands Commission conveyed the entire property to the Torres Estate via quitclaim deed. In two transactions that occurred over the next two years, the Torres Estate sold the properties, including the land, where the wastewater treatment plant sits, to an investor. Core Tech acquired the properties the following decade.
The public benefit condition on the deed of gift from the Navy to the government of Guam wasn’t just placed on Lot 10184-7, but on the entirety of Lot 10184. It is conceivable the federal government can take back the entire Harmon Annex, if the law is interpreted in such a way that the return of the land to pre-condemnation owners and their heirs was not in the public’s interest or for a public benefit.
And it’s not just the Harmon Annex. As mentioned at the start of this article, the federal government was ready to pull the title on the properties it gave back to GovGuam, when it closed Naval Air Station in the 1990s. In consideration for the deed of conveyance of, essentially, Tiyan, the Feds said GovGuam must build an access road connecting Route 8 to the airport access road, or the title would revert back to the USA. GovGuam for decades did not build that road, and instead deeded the properties in the direct way of the proposed easement to the heirs of the pre-condemnation owners.
It took years of negotiations among the Guam governor’s office and the Federal Aviation Administration and transactions with the land owners to clear the way for what we now know as Maga Haga Highway in order to satiate the Feds from taking the land back.
The assumption that land quitclaimed by the government of Guam to an ancestral land claimant is free and clear of any obstruction to title comes from a law the U.S. Attorney references in the CoreTech lawsuit statement of interest: Public Law 22-145.
That law, enacted by the Twenty-second Guam Legislature in 1994 following U.S. Public Law 103-339 (which would eventually return 3,213 acres of federal land to GovGuam), states:
“It is the intent of this Act to insure that the lands condemned by the federal government and returned to the Government of Guam pursuant to U.S. Public Law 103-339, are rightfully used in a fashion that benefits all original owners, their heirs and others defined in 21GCA Chapter 75, §75107 and §75108.”
Then-Gov. Joseph F. Ada signed the act into law days before leaving office, on December 29. 1994. In a cover letter informing the Legislature of his approval, he entered into the record a warning about the new law:
“While we may not agree with, and could debate forever, the inappropriateness of such requirements, the fact is that this is a U.S. condition for return of the 3,200 acres of property the U.S. has not designated for return to Guam.”
The requirement the governor referenced was a “detailed plan for the public benefit use” as required in Section 3(c) of 103-339.
In fact, in the Senate report of the federal statute, while it was making its way through Congress, it explicitly states:
“The Committee’s intent is that the ‘public benefit use’ does not include the transfer of lands to the original landowners.”
Where does that leave the ancestral land owners, who presently possess a quitclaim deed from the government of Guam that has a built in reversionary clause from the deed conveying the property from the federal government to GovGuam?
Will the U.S. Attorney become the bogeyman of ancestral lands along the slippery slope Michael Borja lined, when he brought suit against CoreTech?