San Miguel v Department of Public Works [2008] GUSC 3; 2008 Guam 3 (20 February 2008)

IN THE SUPREME COURT OF GUAM

ROSSANA SAN MIGUEL, JOSE S.N. CHARGUALAF,
ANGELO M. GOMBAR, ANTHONY DUENAS LEON GUERRERO,
LAWRENCE C. PORTELA, TONY A. QUINATA,
and FRANKLIN M. TAITAGUE,
Plaintiffs-Appellants,

v.

DEPARTMENT OF PUBLIC WORKS, LAWRENCE P. PEREZ,
in his capacity as Director of the Department of Public Works,
GUAM ENVIRONMENTAL PROTECTION AGENCY,
LORILEE T. CRISOTOMO, in her capacity as Administrator of
the Guam Environmental Protection Agency, GEORGE LAI,
ALFRED K.Y. LAM, ROBERT A. PERRON, ANDREW CHUNG PARK,
FLORIDA SANCHEZ, THOMAS N. POOLE, JORGE O. NELSON,
RON YOUNG, DOES I-X,
Defendants-Appellees.

Supreme Court Case No. CVA05-017
Superior Court Case No. CV0892-04

OPINION

Filed: February 20, 2008
Cite as: 2008 Guam 3

Appeal from the Superior Court of Guam
Argued and submitted on August 8, 2006
Hagåtña, Guam

Appearing for Plaintiffs-Appellant: Cesar C. Cabot, Esq. Cabot Mantanona, LLP BankPacific Bldg. Second Floor 825 South Marine Corps. Dr. Tamuning, GU 96913

Appearing for Defendants-Appellee: Phillip D. Isaac, Esq. Assistant Attorney General Office of the Attorney General Civil Division 287 W. O’Brien Dr. Hagåtña, GU 96910

BEFORE: F. PHILIP CARBULLIDO, Chief Justice; ROBERT J. TORRES, Associate Justice; FRANCES M. TYDINGCO-GATEWOOD, Associate Justice.[1]

CARBULLIDO, C.J.:

[1] This case involves a dispute over the exclusion of Guatali and Malaa as potential sites for Guam’s new solid waste landfill. Plaintiffs-Appellants are taxpaying citizens ("Taxpayers") who argue that the landfill should be located at either Guatali or Malaa as the legislature had previously indicated, and not at the Dandan site that has been chosen. Defendants-Appellees are the Department of Public Works ("DPW") and the Guam Environmental Protection Agency ("GEPA") and their employees and board members who were involved in selecting the Dandan site (collectively "Agencies").

[2] The Agencies found that Parcel A of Guatali was unsuitable because it was owned by the federal government and because of slope and geological exclusionary criterion. The Agencies found that Malaa was unsuitable because of slope and incompatible land use. Plaintiff Taxpayers sought a preliminary injunction to prevent expenditure of public funds on an environmental impact study for Dandan unless Guatali and Malaa were also studied, arguing that the Agencies used impermissible exclusionary criteria, and that consideration of the Guatali site should not have been limited to Parcel A. On the Agencies’ motion for summary judgment, the trial court held that legislative references referred exclusively to Parcel A of Guatali, and that Parcel A was appropriately excluded from consideration. The court summarily denied Plaintiffs’ motion for reconsideration of that ruling. The lower court also denied Plaintiffs’ motion for a preliminary injunction, finding that the Agencies acted within their authority in excluding Malaa based on slope.

[3] The matter comes before this court on an appeal from the trial court’s denial of Plaintiff Taxpayers’ motion for reconsideration and motion for preliminary injunction. We decline to exercise our discretion to review the denial of the motion for reconsideration, finding none of the criteria for discretionary review have been met. In addition, we find no abuse of discretion in the denial of a preliminary injunction because DPW and GEPA could reasonably have interpreted the law to permit the consideration of slope as a legitimate criterion for exclusion of Malaa.

I. Background

[4] The Ordot Landfill site has been a dumping ground since the 1940s, when it was used by the Japanese during World War II. After the liberation of Guam, the site continued to be used by the United States Navy for waste disposal. The site was transferred to the Government of Guam in 1950, and has been operated as a dump by DPW. The landfill was not properly lined or capped, and in 1982, the United States Environmental Protection Agency ("US EPA") initiated a formal investigation of the Ordot Dump for possible environmental violations. The US EPA issued orders beginning in 1986 requiring Guam to address environmental problems at the dump, including leachate discharges to the nearby Lonfit River and buildup of carbon monoxide.[2] In the late eighties and early nineties, Guam was found to have violated the US EPA’s orders.

[5] In 1994, the Guam Legislature found that the Ordot Landfill had "now reached beyond its capacity," and required that a proposed site for a new landfill be identified. Guam Pub. L. 22-115:1 (Apr. 25, 1994). In May 1996, the Guam Legislature passed a bill indicating that the opening of a new landfill and the closing of the Ordot Landfill had "dragged on interminably with no fixed date in sight for accomplishment," and that the legislature "[t]herefore . . . has agreed to establish sites for the new landfill" at Guatali and Malaa unless there was "any legitimate reason" that those sites could not be used. Guam Pub. L. 23-95:1, 2 (May 8, 1996).

[6] In December 1996, DPW contracted with Guam Resource Recovery Partners to begin working on the landfill, but the Legislature had not appropriated funds to the contract, and in 1997 the Legislature explicitly blocked funding for the contract. Guam Pub. L. 24-57:6 (June 30, 1997).

In March 1997, the Legislature passed Public Law 24-06, with the stated intent of "establish[ing] policy and legal authority for the privatization of a Municipal Solid Waste Landfill Facility . . . at a site to be determined by the government of Guam." Guam Pub. L. 24-06:1 (Mar. 20, 1997). The law provided that the landfill "shall be located at either Guatali or Malaa, or both, as prescribed in Public Law 22-115 and described in the Environmental Impact Statement of November 1995." Id. § 4(e).

[7] In February 1998, the Legislature passed a bill requiring GEPA to prepare and adopt an Integrated Solid Waste Management Plan ("Waste Management Plan") within 300 days, including "an identification of potential sites for future sanitary landfills." Bill 495, 24th Legislature, §§ 4, 10 (1998). The same law required DPW to implement the plan. Id.