Frances M. Tydingco-Gatewood
ORDER
re Emergency Motion for Stay
Pending Appellate Review
This matter is before the court on an Emergency Motion for a Stay Pending Appellate Review (the "Emergency Motion"), filed on September 26, 2013, by the Chief Legal Counsel for the Office of the Governor of Guam, on behalf of the Government of Guam. See ECF No. 1203. Therein, the Lieutenant Governor requests the court stay this action and direct the Receiver not to award or execute any new contracts on behalf of the Government of Guam pending review by the Ninth Circuit Court of Appeals of three matters currently on appeal.
The Governor of Guam, the Hon. Eddie Baza Calvo, determined that he has a conflict which precludes his involvement in this action, and thus he assigned the executive power and the duty to act in this matter to the Lieutenant Governor of Guam. Decl. Raymond S. Tenorio (May 10, 2013) at 12, ECF No. 1053.
In this action, the Government of Guam is represented by different sets of lawyers, as will be discussed infra. For ease of reference, the court will hereinafter refer to all filings and arguments made on behalf of the Government of Guam through the Governor's Chief Legal Counsel or through the Cabot Mantanona law firm as being made by the "Lieutenant Governor." Additionally, all filings and arguments raised on behalf of the Government of Guam through the Office of the Attorney General shall hereinafter be referred to as being made by the "Attorney General."
The court set the Emergency Motion for expedited briefing and heard argument from the parties on October 5, 2013. Having reviewed the submissions and relevant authority, the court hereby denies the Emergency Motion.
The hearing was held on a Saturday because it was the only time available for the court, given its very busy trial calendar. The court is presently presiding over a complex, multi-defendant criminal trial which has spanned approximately 11 weeks (including trial days on federal holidays and weekends) and will hopefully conclude by the end of the month.
BACKGROUND
This case has been pending before the court for more than 11 years. Because the parties are familiar with the facts and procedural history of this action, the court will not recite them here in great detail except as necessary to explain its decision.
For a more thorough recitation of the background of this case, including the events that led to the appointment of a Receiver, the court incorporates by reference the following prior decisions: Order re Appointment of Receiver, ECF No. 239; Order re Motion for Reconsideration, ECF No. 1157; and Order re Motion to Intervene, ECF No. 1164.
A. The Consent Decree and Appointment of a Receiver
The United States initiated the present action on August 7, 2002, and sought injunctive relief and civil penalties against the Government of Guam for violations of the Clean Water Act, 33 U.S.C. §§ 1251 et seq. The parties thereafter entered into a Consent Decree, which became final when approved by the court on February 11, 2004. See Consent Decree, ECF No. 55. Among other things, the Consent Decree established a schedule for the Government of Guam to close the Ordot Dump and also construct and operate a new conforming municipal solid waste landfill. Id. at ¶¶8-9. The Consent Decree required operations at the new sanitary landfill to begin by September 23, 2007, with operations at the Ordot Dump to cease by October 23, 2007. Id. at ¶¶8(i) and 9(i).
The record reveals that the Government of Guam has been on notice of its violation of the Clean Water Act for decades.
After extensive scientific studies and research, the Government of Guam selected the Layon site in 2005 as the best location for the new landfill.
When the parties entered into the Consent Decree, they acknowledged that "the total amount of funding needed to complete the projects required under [the] Consent Decree [was] not currently available." Id. at ¶10(a). The Consent Decree thus required the Government of Guam, within 120 days after its entry, to submit a financial plan which identified "the funding source or sources and a schedule to secure funds for the capital and operating costs necessary" to pay for the various compliance measures required under the Consent Decree. Id. The Government of Guam agreed to "use its best efforts to obtain sufficient funding to fully implement the projects required by [the] Consent Decree." Id.
Following the entry of the Consent Decree, the Government of Guam failed to meet critical deadlines. Concerned about the Government of Guam's lack of progress and failure to raise the financial resources necessary to complete the Consent Decree projects, on December 6, 2006, the United States petitioned the court to hold a status hearing and then later moved to enforce the Consent Decree. See ECF Nos. 56 and 68-69. After conducting monthly status hearings and site visits, the court concluded that the "problem of a highly dysfunctional, largely mismanaged, overly bureaucratic, and politically charged solid waste system . . . is beyond correction by conventional methods." Order re Appointment of Receiver at 1, ECF No. 239. After much deliberation and upon consideration of the Government of Guam's lengthy history of violating the Clean Water Act and failure to comply with the Consent Decree, the court appointed Gershman, Brickner & Bratton, Inc. as the Receiver with "full power and authority to enforce the terms of the Consent Decree, and assume all of the responsibilities, functions, duties, powers and authority of the Solid Waste Management Division of the Department of Public Works." Id. at 15. To accomplish its mission, the court, among other things, authorized the Receiver to "enter into future contracts deemed necessary" and to "facilitat[e] the financing and/or borrowing of such funds necessary to carry out the duties relating to the Consent Decree as set forth in the Government of Guam's Revised Financial Plan." Id. at 16.
The Solid Waste Management Division will hereinafter be referred to as "SWMD." Under Guam law, the SWMD was "a sub-entity" of the Department of Public Works, a department "within the Executive Branch of the government of Guam." See 5 GUAM CODE ANN. § 3106 and 10 GUAM CODE ANN. § 51A103. Upon enactment of Guam Public Law 31-020, SWMD is now known as the Guam Solid Waste Authority ("GSWA"), an autonomous, public corporation of the Government of Guam. See 10 GUAM CODE ANN. § 51A103. Following said enactment, the court vested the Receiver with "full power and authority over GSWA, to the full extent of its previously granted authority over SWMD." Order (Sept. 2, 2011) at 9, ECF No. 798.
B. Financing and the Consent Decree Projects
In its October 22, 2008 Quarterly Report, the Receiver estimated the capital needed to achieve compliance with the Consent Decree was approximately $159.7 million, of which approximately $40 million would be required for the closure of the Ordot Dump. See Quarterly Report (Oct. 22, 2008) at 13, ECF No. 269-1. The Quarterly Report cautioned that these estimates were "subject to change as the competitive bidding process provides the final measure of the cost for [the Consent Decree] projects." Id. Furthermore, the "estimates related to the Ordot Dump's closure" would "require a full reexamination" as the time for the project to actually begin drew near because there was "a significant amount of remedial investigation that remain[ed] to be accomplished . . . to determine the extent of environmental damage that has occurred [at the Ordot Dump] and devise acceptable plans to mitigate the damage identified." Id. at 14. The Receiver's capital estimates did not include the cost for the acquisition of the land needed for the new landfill since the Government of Guam had already separately deposited "[f]unds to fully compensate the owners of the land . . . with the Superior Court of Guam." Id. at 27.
The internal page numbers of the October 2008 Quarterly Report are different from the page numbers imprinted on the ECF footer. All citations to pleadings filed in this case and referred to in this Order are to the internal page number of the documents.
On January 24, 2008, the Government of Guam filed a Complaint to Acquire Property Through Eminent Domain in Government of Guam v. 1,348,474 Square Meters, More or Less, Superior Court of Guam Civil Case No. CV0084-08. Based on appraisals of the property available at the time, the Government of Guam deposited $1.2 million and an additional $2.19 million with the Superior Court of Guam as its estimate of just and full compensation for the fee simple interest in the property.
Following the October 2008 quarterly status hearing and at the request of the Receiver, the court ordered the Government of Guam to deposit $20 million by January 5, 2009, to a trustee to be subsequently designated by the Receiver and approved by the court. See Order (Oct. 22, 2008) at 15, ECF No. 272. Although the Receiver recommended the Consent Decree projects be funded through a revenue bond issue guaranteed by Section 30 funds received by the Government of Guam, see Quarterly Report (Oct. 22, 2008) at 21, ECF No. 269-1, the Government of Guam instead opted to finance the balance of the Receiver's $159.7 million estimate of the Consent Decree projects through the sale of approximately $202.4 million in Limited Obligation (Section 30) Bonds, Series 2009A (the "Limited Obligation Bonds"). See ECF No. 455 at 3. Of this amount, approximately $139.7 million was allocated for deposit to the Project Construction Fund. See ECF No. 455-1 at 16.
The October 22, 2008 Quarterly Report stated that an initial sum of $20 million would be required to be deposited by the Government of Guam so that the construction projects could begin as scheduled and to "assure potential contractors . . . that they [would] be paid in a timely manner."
The Government of Guam deposited this amount through a $20 million loan obtained through the Bank of Guam.
The Receiver achieved a major milestone under the Consent Decree when the Layon Landfill began operating as Guam's new conforming municipal solid waste landfill on September 1, 2011. See Minutes (Aug. 31, 2011), ECF No. 796 and Order (Sept. 2, 2011), ECF 798. Although the Ordot Dump stopped receiving trash for disposal on August 31, 2011, the environmental closure of the Ordot Dump was still not completed as required by the Consent Decree.
At the most recent quarterly status hearing held on May 21, 2013, the Receiver informed the court that the remedial field investigation work at the Ordot Dump had been completed and the final closure plan had been submitted. See Quarterly Report (May 21, 2013) at 3-6, ECF No. 1067-1. Barring any unforeseen circumstances or a shortfall of funding, the Receiver anticipated the environmental closure of the Ordot Dump to be completed by the end of 2015. Id. at 43, Fig. 14 (Current Receiver Schedule for Closure of the Ordot Dump). The Receiver further stated that since the original estimates were made in the October 2008 Quarterly Report, a number of items have been added to the list of projects associated with the Consent Decree, specifically (1) upgrades to the residential transfer stations, (2) Route 4 safety enhancements, (3) Dero Road upgrades and (4) possible improvements to the Inarajan waste water treatment plant expansion and leachate pre- treatment - Layon. Id. at 33-34. Because the cost for the Ordot Dump closure itself increased from the original 2008 estimates, the Receiver warned that "it is likely that there will not be enough money from the [Limited Obligation] Bonds to cover all of the projects." Id. at 33 (emphasis added). Thus, the Receiver intended to "complete the planning and design phases for all the projects, but defer contracting for any additional construction for those projects until [the Receiver] successfully bid the final Dump closure project and [was] confident that [it had] sufficient resources to complete the projects as designed." Id. (emphasis added). The Receiver would only complete the additional projects "[t]o the extent that funds remain available, or the Government of Guam makes additional funds available." Id. at 34. The Receiver stated it was ready to develop a bid procurement package for the Ordot Dump closure construction.
The Receiver's schedule also anticipated that the bidding, award and contracting of the Ordot Dump closure construction would occur between July 2013 and January 2014. Id.
As the Receiver further clarified at the October 5th hearing, these projects, although related to the original Consent Decree projects, are not necessarily required by the Consent Decree. The Receiver further stated that these projects were either required or requested by the Government of Guam after the Limited Obligation Bonds had been obtained, and thus were never included in the Receiver's original estimates.
The court later asked the Receiver to submit a special report addressing the approximate time frame for the Receiver's procurement process for the closure of the Ordot Dump. See Order (Jun. 24, 2013) at 2, ECF No. 1120. In a Special Report filed with the court on June 28, 2013, the Receiver stated there were two procurements connected to the closure of the Ordot Dump that would begin in July: one for the closure of the Ordot Dump itself, and the other for construction management services in connection with the closure project. Special Report Advising Court of Receiver's Procurement Schedule (Jun. 28, 2013) at 2, ECF No. 1128.
With regard to the closure of the Ordot Dump, the Receiver submitted the following schedule:
| July 1,2013 |
Required newspaper advertising - bid documents available to interested firms |
| July 15, 2013 |
Interested firms submit prequalification package for evaluation |
| July 22, 2013 |
Notice to firms submitting prequalification package of firms determined to be qualified |
| July 30-31, 2013 |
Pre-bid meeting and site visit for prequalified bidders |
| September 6, 2013 |
Bids due |
| Late September |
Evaluation of bids completed and determination made of the lowest, responsible, qualified bidder. Notice of Award to follow |
| Early October |
Issue Notice to Proceed with the work |
As to the time frame for procurement of construction management services, the Receiver's schedule was as follows:
July 17,2013 |
Request for Proposals (RFP) is released |
| August 1, 2013 |
Pre-proposal conference / teleconference |
| August 8, 2013 |
Deadline for questions and requests for clarification |
| August 20, 2013 |
Replies to questions and requests for clarification due |
| September 20, 2013 |
Submission of proposals |
| Early October |
Interviews of proposers if required |
| Late October |
Notice of intent to award a contract |
The Receiver noted that the earliest that a binding contract would occur under either of the above schedules was late September 2013. Id.
C. The Superior Court of Guam Layon Condemnation Case Judgment and Attempts to Substitute Counsel
On January 24, 2008, in the Superior Court of Guam, the Government of Guam filed a Complaint to Acquire Property Through Eminent Domain in Government of Guam v. 1,348,474 Square Meters, More or Less, Superior Court of Guam Civil Case No. CV0084-08 (the "Layon Condemnation Case"). On December 10, 2012, the Superior Court of Guam issued a judgment in the Layon Condemnation Case in the approximate amount of $25 million. See Former Landowners' Req. for Judicial Notice at 29, ECF No. 1034, Ex. 3 thereto. This judgment was accruing mandatory statutory interest at the rate of 6% per annum. Id.
In February 2013, the Lieutenant Governor sought assistance from the Attorney General to obtain the Receiver's approval for release of a portion of the Limited Obligation Bonds to be used to satisfy the $25 million Layon Condemnation Case judgment. See A. Arriola Decl, Ex. 3 thereto, ECF No. 1033-4. Counsel for some of the former landowners of the Layon Landfill also made a similar request of the Receiver. Id. at ¶6. The Receiver responded to the Lieutenant Governor, stating that he could not agree to the request because "the remaining bond proceeds must be preserved for . . . the final closure of the Ordot Dump." Id., Ex. 6 thereto at 5, ECF No. 1033-7.
On April 10, 2013, the former landowners filed a motion seeking to intervene in this action so that they could petition the court to release the funds necessary to pay the Layon Condemnation Case judgment. See ECF No. 1031.
The court later denied the motion to intervene. See Order (Aug. 21, 2013), ECF No. 1164.
On April 26, 2013, a Substitution of Counsel was filed by the Lieutenant Governor on behalf of the Government of Guam, see ECF No. 1045, and thereafter disapproved by the court on May 3, 2013, because the Substitution of Counsel did not comply with the technical requirements of Local Rule GR 19.1(b)(1). See ECF No. 1047. The court also directed the Government of Guam to justify the need to substitute counsel at that stage of the proceeding, especially after more than nine years of representation by the Attorney General. Id. at 2.
On May 9, 2013, attorney Sandra C. Miller - the Chief Legal Counsel for the Office of the Governor of Guam - filed an Entry of Appearance as Co-Counsel. See ECF No. 1051. In this filing, Attorney Miller stated that "her appearance as co-counsel in this matter on behalf of the Defendant [Government of Guam]" was "made by and through the Office of the Governor of Guam as the lawful representative of the Government of Guam." Id.
On May 10, 2013, in response to the court's Order of May 3, 2013, the Lieutenant Governor filed an Amended Substitution of Counsel (the "Amended Substitution"), seeking to substitute the Cabot Mantanona law firm as counsel for the Government of Guam for and in place of the Attorney General. See ECF No. 1052. The Amended Substitution asserted that a change in counsel was necessitated by the Attorney General's conflict of interest, specifically with regard to the dispute over the mechanism for payment of the $25 million judgment in the Layon Condemnation Case.
On May 16, 2013, the court issued an Order on the Amended Substitution. See ECF No. 1064. The court refuted the Lieutenant Governor's assertions that the Receiver was the former client of the Attorney General in the Layon Condemnation, however, based on what had been presented, the court found there was "a limited dispute between the Attorney General and the Office of the Governor" over the use of the bond proceeds to pay the $25 million judgment. Id. at 3. Therefore, the court approved the Lieutenant Governor's Amended Substitution only for the limited purpose of allowing the Cabot Mantanona firm to represent the Government of Guam with regard to the issues raised in the former landowners' Motion to Intervene. See May 16th Order at 4, ECF No. 1064. The court ordered that "for all other purposes, the Attorney General shall remain counsel of record for the Government of Guam." Id.
This Order shall hereinafter be referred to as the "May 16th Order."
On May 28, 2013, the Lieutenant Governor filed a Motion for Reconsideration of the May 16th Order. See ECF No. 1075. The Lieutenant Governor never asked that said motion be set for hearing. Following full briefing, the court denied the Motion for Reconsideration, concluding that the Lieutenant Governor failed to met his heavy burden of showing any grounds for reconsideration. See Order re Mot. for Recons. (Aug. 13, 2013), ECF No. 1157.
The Lieutenant Governor notes that the court told the parties it would hold a hearing on the Motion for Reconsideration. See Mem. of P.&A. in Supp. Mot. to Stay at 6, ECF No. 1178. Although the court prefers motions be set for oral argument, the court's heavy criminal trial docket made it very difficult to schedule such a hearing even if it were requested.
On September 26, 2013, the Lieutenant Governor filed a Notice of Appeal seeking review of the court's May 16th Order and the Order denying his Motion for Reconsideration. See ECF No. 1202.
Said Notice of Appeal was the second appeal taken by the Lieutenant Governor.
D. Disagreement over Sealing of Receiver's Updated Estimates
In addition to the divergence of opinion between the Receiver and the Lieutenant Governor over the use of bond proceeds to pay the $25 million Layon Condemnation Case judgment, the Lieutenant Governor also disagreed with the Receiver's request to seal the updated cost estimates for the remaining Ordot Dump closure projects.
At the May 21, 2013 quarterly status hearing, the Receiver made an oral request to submit the updated cost estimates to the court under seal. The Government of Guam was represented by Mr. Mantanona at the status hearing, and neither he nor any party objected to the Receiver's request. Subsequently, on May 23, 2013, the Receiver wrote to the court and renewed its request made at the status hearing to submit its most recent cost estimates for the closure of the Ordot Dump and the other pending Consent Decree projects under seal. See Order (May 23, 2013), Ex. A thereto, ECF No. 1070-1. The Receiver explained that public disclosure of said estimates prior to the actual bidding and contracting of the projects would likely harm the competitive bid process. Id. The court granted the request and stated that such sealing was "subject to unsealing at a later date." Id.
The cost estimates were attached as sealed Exhibit B to the May 23, 2013 Order. See ECF No. 1070-2.
On June 6, 2013, the Lieutenant Governor filed a Motion to Unseal Exhibit B. See ECF No. 1087. In its motion, the Lieutenant Governor asserted that the "Receiver has not articulated any justification for keeping the documents sealed from interested parties." Id. at 5. The following day, the court set a briefing schedule for the Motion to Unseal. See Order (Jun. 7, 2013), ECF No. 1088. The former landowners joined in the Motion to Unseal. See ECF No. 1095.
As part of the briefing schedule, the court ordered the Receiver to file a special report in response to the Motion to Unseal. On June 20, 2013, the Receiver filed a Special Report. See ECF No. 1110. Among other things, the Receiver addressed the Lieutenant Governor's argument that the court should, at a minimum, release the estimates to the parties. The Receiver raised "serious reservations" about such a release and stated the following in its Special Report:
[T]he website for Attorney Mantanona's firm indicates that it represents Hawaiian Rock Products, Hanson Permanente Cement Guam/Hanson Micronesia Cement, Inc. and dck Worldwide. Both Hawaiian Rock Products and Hanson Permanente Cement Guam/Hanson Micronesia Cement, Inc. are major construction materials suppliers on Guam who have supplied large quantities of materials in connection with the Layon Landfill construction and are highly likely to do the same with current and future Consent Decree projects, including the closure of the Ordot Dump. In addition, dck Worldwide is a major contractor on Guam that has shown interest in past Consent Decree projects and could become a bidder on future Consent Decree projects, including the closure of the Ordot Dump. This situation presents conflicts that have the potential to cause serious harm to the bidding process.
Special Report (Jun. 20, 2013) at 4, ECF No. 1110.
At the October 5th hearing, Attorney Miller stated that the first time she was made aware of this potential conflict of interest was on September 20, 2013, when the Receiver submitted another Special Report regarding the opening of the bids received for the environmental closure of the Ordot Dump and therein stated
It should also be noted that one of the bidders was dck-Sukut, LLC. The parent company of dck is dck Worldwide which, as we noted in our Special Report submitted June 20, 2013, is apparently represented by Attorney Rawlen Mantanona, counsel to the Lt. Governor in this case.
See Special Report (Sept. 20, 2013) at 2-3, appended to Notice, ECF No. 1193.
Attorney Miller stated at the October 5th hearing that the Cabot Mantanona law firm does not represent Hawaiian Rock Products, Hanson Permanente Cement Guam/Hanson Micronesia Cement, Inc. and dck Worldwide. Rather, one of the other attorneys at the firm used to represent said business entities while employed at another law firm. The court is perplexed why this was never brought to the court's attention before the October 5th hearing, especially since Mr. Mantanona filed a reply brief to the Motion to Unseal back on July 5, 2013, yet he never even addressed the Receiver's concerns about releasing the cost estimates to the Cabot Mantanona firm because of this potential conflict of interest. See Reply Brief, ECF No. 1139.
The Motion to Unseal has been fully briefed and is pending before the court. On September 20, 2013, the Receiver sent the court a Special Report Advising the Court of the Bids Received for the Environmental Closure of the Ordot Dump, a copy of which was attached to the court's Notice. See ECF No. 1193. In this Special Report, the Receiver advised the court that the bids for the environmental closure of the Ordot Dump were opened, with Black Construction Corporation being the apparent low bidder. Id. Additionally, the Receiver disclosed that the apparent low bid was below the Receiver's $57 million estimate for the project. Id. At the October 5th hearing, the court advised the parties it would do its best to schedule a hearing on the Motion to Unseal as soon as the criminal trial it was presently involved in had concluded.
On June 24, 2013, the Lieutenant Governor filed an Ex Parte Application for Order Amending Briefing Schedule on Motion to Unseal, or in the Alternative, Instructing Receiver not to Issue Requests for Proposals Until Later Date. See ECF No. 1117. In said application, the Lieutenant Governor requested the court expedite the briefing schedule on the Motion to Unseal, but the court denied the request as untimely. See Order (Jun. 24, 2013) at 2, ECF No. 1120.
Alternatively, the Lieutenant Governor requested the court to direct the Receiver not to issue the requests for proposals ("RFPs") for projects related to the Ordot Dump closure until after the court had ruled on the Motion to Unseal. The court stated that before it would rule on the Lieutenant Governor's alternative request, it wanted the Receiver to file a special report advising the court of an approximate time frame when it anticipates these RFPs would be issued. The Receiver filed its Special Report. See Special Report Advising Court of Receiver's Procurement Schedule (Jun. 28, 2013), ECF No. 1128.
On July 1, 2013, the court denied the Lieutenant Governor's alternative request to delay the procurement process until the court had determined the Motion to Unseal. See Order (Jul. 1, 2013), ECF No. 1133. The court found no valid reason to delay the release of these procurements, especially because the Government of Guam had already delayed the environmental closure of the Ordot Dump by more than five years. Id. at 2.
On August 30, 2013, the Lieutenant Governor filed a Notice of Appeal of the court's July 1, 2013 Order. See ECF No. 1170.
E. The Motions to Stay and Other Subsequent Filings
On August 13, 2013, shortly before the court issued its Order re Motion for Reconsideration, the Attorney General filed a Motion for Clarification. See ECF No. 1155. Therein, the Attorney General sought clarification of the court's Order re Transition From Court-Appointed Receiver to the GSWA Board (July 1, 2013), ECF No. 1132. This clarification was being sought because Attorney Miller served a Sunshine Act Request for Information (the "Sunshine Act Request") on the Attorney General on August 2, 2013, and sought the disclosure of any and all communications between the Attorney General and the Receiver and the Attorney General and the United States relating to this Consent Decree case, the Layon Condemnation Case, the closure of the Ordot Dump and the payment of the judgment in the Layon Condemnation Case. Mot. for Clarification at 1-2, ECF No. 1155. The Lieutenant Governor believed that it was entitled to said information because the documents and emails "constitute client files of the Government of Guam and the Governor of Guam." See Kathy A. Fokas Decl. (Aug. 13, 2013), Ex. A thereto, ECF No. 1156. The Attorney General forwarded the Sunshine Act Request to the Receiver and requested instructions. In response, the Receiver wrote that "[it did] not wish to waive GSWA's attorney/client privilege." Id., Ex. B thereto. Thus, the Attorney General posed the question as to "[w]ho holds the attorney/client privilege for purposes of determining whether the [Attorney General's] litigation files in this case and the [Layon] Condemnation Case may be disclosed to the Governor's Office?" Mot. for Clarification at 5, ECF No. 1155. The Attorney General's position was that the Lieutenant Governor may obtain copies of the requested information through April 18, 2011 - the date on which GSWA was created. Id. The Attorney General further opined that "any and all information thereafter belonged to the GSWA." Id. The Attorney General asserted that
The Attorney General's Motion for Clarification was electronically filed at 4:48 p.m. The court's Order re Motion for Reconsideration was docketed at 6:10 p.m.
The court issued two Orders on July 1, 2013. See ECF Nos. 1132 and 1133. The first Order stemmed from a hearing held on June 26, 2013, to address concerns raised by the GSWA Board of Directors (the "Board"). Some Board members had expressed a desire to have control and authority over GSWA transition from the Receiver to the Board much sooner than the Receiver had projected in its May 21, 2013 Quarterly Report. See Quarterly Report (May 21, 2013) at 43, ECF No. 1067-1. In its July 1st Order, the court stated:
While the court is encouraged that the Board wishes to be actively involved in discussions and decisions concerning Ordot Dump and the Layon Landfill, the fact remains that matters concerning both the Dump and Landfill remain Consent Decree project matters, under the purview of the Receiver, by order this court. See ECF No. 239. With that said, the Receiver has, and will retain, the same authority and control over such areas until such time as the court orders otherwise. In other words, complete turnover of control and authority of [GSWA], when the time is right, will occur at a date ordered by this court.
. . .
[A]t this critical time, the court expects the Receiver to accomplish its mission of ensuring complete compliance with the Consent Decree. The Receiver shall continue, status quo, in their day-to-day operations of GSWA and the Consent Decree projects.
Order (July 1, 2013) at 2 & 4, ECF No. 1132.
upon creation of the GSWA on April 11, 2011, the [Attorney General's] client became the GSWA of the Government of Guam[.]
. . .
Any and all information thereafter belongs to the GSWA. Pursuant to this [c]ourt's July 1 Order vesting the Receiver with continued authority of the Board of the GSWA, the Receiver has advised the [Attorney General] that it will not waive its attorney client privilege and has instructed the [Attorney General] not to produce the requested information to the Governor's Office.
Mot. for Clarification at 10, ECF No. 1155.
On August 27, 2013, the Lieutenant Governor filed an Opposition to the Attorney General's Motion for Clarification. See ECF No. 1168. Therein, the Lieutenant Governor took issue with the Attorney General's position and stated that
[t]he Government of Guam, as directed by the Executive Branch, is the client.
. . .
[T]here can be no question that the Executive Branch has every right to demand copies of its client files from the [Attorney General] which is its attorney, and that the [Attorney General] is obligated to comply with this demand.
. . .
The [Attorney General] owes its duty of professional loyalty to the Government of Guam as a whole and not just to the Executive Branch agency known as the GSWA or to the Receiver who controls it.
Opp'n at 4-6, ECF No. 1168 (emphasis in original).
On September 18, 2013, the court issued an Order stating that the Motion for Clarification did not present the court with enough facts for the court to conclude that the attorney-client privilege is applicable to shield the disclosure of the information sought by the Governor's Office. See Order (Sept. 18, 2013) at 4, ECF No. 1189. Accordingly, the court asked for further briefing on the matter. Id.
The court gave the Attorney General until September 27, 2013, to file a supplemental brief. Responses to the supplemental brief were ordered to be filed by October 11, 2013, with the Attorney General to file a reply brief no later than October 18, 2013. Id.
On September 27, 2013, the Attorney General filed a "Supplemental Response," requesting a 30-day extension in order to allow it time necessary to complete the search for emails (over 6,000 pages of emails had been identified and printed) and reasonable time for the Receiver to review said documents. See ECF No. 1210. At the October 5th hearing, the court advised the parties that it would grant the request for a 30-day extension on the briefing. Therefore, the Motion for Clarification is still unresolved and remains pending before the court.
The Lieutenant Governor next filed a series of motions seeking to stay this action. On September 13, 2013, the Lieutenant Governor filed a Motion to Stay and for Further Relief, along with a memorandum in support and supporting declarations. See ECF Nos. 1177-1180. Therein, the Lieutenant Governor asked the court to stay this case until (1) Government of Guam is allowed to be represented by unconflicted counsel; (2) the court determines whether the Attorney General should be disqualified from representing any participant in this action after the issue has been separately briefed and a hearing has been held, and (3) the court sets a briefing and hearing to conduct a full review of the tainted proceedings and determine when the Attorney General began taking instructions from the Receiver and what impact the Attorney General's conflict has had on these proceedings. See Mem. of P.&A. in Supp. Mot. to Stay at 17, ECF No. 1178. The Lieutenant Governor stated that
For ease of reference, the Motion to Stay and for Further Relief shall hereinafter be referred to as "Motion to Stay #1."
[w]hether or not the court agrees with the [Attorney General's] decision to treat the Receiver as its client, the [Attorney General] has a conflict of interest because of its own decision to treat the Receiver as its client, as evidenced by the [Attorney General's] own conduct in this litigation, including its [M]otion for [C]larification filed on August 13, 2013."
Id. at 10, n.5.
On September 18, 2013, the Lieutenant Governor filed a motion seeking to shorten time on the determination of Motion to Stay #1. See ECF No. 1184. Shortly thereafter, the court issued an Order setting a briefing schedule for Motion to Stay #1. See ECF No. 1188.
The motion to shorten time was electronically filed at 2:46 p.m., and the court's Order was docketed at 2:55 p.m.
Pursuant to the court's schedule, the Attorney General was directed to file a response by September 27, 2013, the United States' response was due by October 4, 2013, and the Lieutenant Governor was directed to file a reply brief by October 11, 2013.
On September 20, 2013, the Lieutenant Governor filed an Emergency Motion for an Order Granting a Temporary Stay of Procurement While the Government's Motion to Stay and for Further Relief is Pending. See ECF No. 1191. Therein, the Lieutenant Governor asked the court to direct the Receiver not to award or execute any contract on behalf of or binding the Government of Guam or any instrumentality thereof, including the GSWA, while the Lieutenant Governor's Motion to Stay #1 was pending. The Lieutenant Governor noted that the "Receiver still had not disclosed its estimates of the costs of [the Ordot Dump closure] contracts to the Government." Sandra C. Miller Decl. (Sept. 20, 2013) at ¶4, ECF No. 1192. The Lieutenant Governor urged that "[t]he Government, on behalf of the people of Guam, needs to be heard in this proceeding regarding its concerns about these contracts, the process leading to these contracts, and their funding before they are awarded." Id.
This motion shall hereinafter be referred to as "Motion to Stay #2."
On September 25, 2013, the Lieutenant Governor filed the instant motion before the court - the Emergency Motion for a Stay Pending Appellate Review - which was its third request for a stay of this action. See ECF No. 1199. The court ordered expedited briefing. On October 2, 2013, the United States and the Attorney General filed their responses to the Emergency Motion. See ECF Nos. 1215 & 1216. On October 3, 2014, the Lieutenant Governor filed two separate briefs to reply to each of the responses filed. See ECF Nos. 1221 & 1222.
The court will refer to the "corrected" reply briefs since Attorney Miller claims that the briefs filed earlier that day (ECF Nos. 1218 & 1219) had a "line spacing issue."
DISCUSSION
In the span of two weeks, the Lieutenant Governor has filed three separate motions to stay: Motion to Stay #1, ECF No. 1177, Motion to Stay #2, ECF No. 1191, and Emergency Motion, ECF No. 1203. In each of these motions, the Lieutenant Governor continues to assert that the Attorney General has a conflict of interest that necessitates the Attorney General's removal from continued representation of the Government of Guam. The Lieutenant Governor claims the Government of Guam's interests (as said interests are defined by the Lieutenant Governor) are not being protected in this action because the Attorney General continues to take instruction from the Receiver and now claims the Receiver is its client to the exclusion of the rest of the Government of Guam. Furthermore, the Lieutenant Governor asserts that because this court has not permitted it to be represented or heard by unconflicted counsel, the Government of Guam has been denied due process, leaving it with no other recourse but to appeal the court's denial of its substitution of counsel. The court will address these claims in the context of the appropriate legal standard.
Motion to Stay #1 was filed on September 13, 2013, and the Emergency Motion was filed on September 26, 2013.
A. Legal Standard for Motion to Stay Pending Appeal
As the Supreme Court has stated:
A stay is an "intrusion into the ordinary processes of administration and judicial review,"
Virginia Petroleum Jobbers Assn. v. Federal Power Comm'n, 259 F.2d 921, 925 (C.A. D.C. 1958) (
per curiam ), and accordingly "is not a matter of right, even if irreparable injury might otherwise result to the appellant,"
Virginian R. Co. v. United States, 272 U.S. 658, 672 (1926). The parties and the public, while entitled to both careful review and a meaningful decision, are also generally entitled to the prompt execution of orders[.]
Nken v. Holder, 556 U.S. 418, 427 (2009).
Accordingly, the party requesting a stay bears the burden of showing that the circumstances justify a stay. Id. at 433-34.
The Supreme Court has also stated that a stay is "'an exercise of judicial discretion,' and '[t]he propriety of its issue is dependent upon the circumstances of the particular case.'" Id. at 433 (quoting Virginian R. Co., 272 U.S. at 672-73). "The fact that the issuance of a stay is left to the court's discretion does not mean that no legal standard governs that discretion. A motion to a court's discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles." Nken, 556 U.S. at 434 (internal quotations and citations omitted).
In determining whether a stay should be issued, the district court should consider the following factors:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
Nken, 556 U.S. at 434 (quoting
Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
"The first two factors of the traditional standard are the most critical." Nken, 556 U.S. at 434. "Once an applicant satisfies the first two factors, the traditional stay inquiry calls for assessing the harm to the opposing party and weighing the public interest. These factors merge when the Government is the opposing party." Id. at 435.
The parties do not dispute this legal standard. Thus, the court will now evaluate the factors set forth in the Nken decision.
1. Whether the Lieutenant Governor has made a strong showing that he is likely to succeed on the merits
"Regarding the first factor, Nken held that it is not enough that the likelihood of success on the merits is 'better than negligible' or that there is a 'mere possibility of relief.'" Lair v. Bullock, 697 F.3d 1200, 1204 (9th Cir. 2012)(quoting Nken, 556 U.S. at 434). The Ninth Circuit requires that, in order to satisfy the first factor, "'at a minimum,' a petitioner must show that there is a 'substantial case for relief on the merits.'" Id. (quoting Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011)(per curiam)).
The Lieutenant Governor states that he is likely to succeed on the merits with regard to its appeal of the court's orders concerning its attempts to substitute counsel because there has been a breakdown in the attorney-client relationship and an actual conflict of interest, yet the court has not permitted the Lieutenant Governor to replace the AG with counsel of his choosing. To support this claim, the Lieutenant Governor recites numerous "facts," however many of these "facts" have either been disputed and rejected by the court (such as the assertion that the Receiver was the Attorney General's client in the Land Condemnation Case), or are new facts or issues that have never been resolved by the court in any of its previous decisions. For instance, the Lieutenant Governor asserts that the Attorney General has not consulted with the Lieutenant Governor since May 16, 2013, when the court denied the Amended Substitution. See Mem. of P.&A. in Supp. Mot. to Stay at 5, ECF No. 1178. This was first disclosed to the court on September 13, 2013, when the Lieutenant Governor filed Motion to Stay #1. Additionally, the Lieutenant Governor asserts that the Attorney General's Motion for Clarification (filed August 13, 2013) "introduced new facts" revealing a broader conflict of interest because the Attorney General stated it had not been representing the Governor since April 18, 2011, when GSWA was created, and has since then been taking direction from its "client" - the Receiver, who controls GSWA, an autonomous agency. Id. at 7. However, as the court has stated above, the Attorney General's Motion for Clarification is still unresolved. The Lieutenant Governor asserts numerous allegations to support its claim that the Attorney General has a conflict of interest and that a breakdown in communication has occurred to warrant the substitution of counsel, yet these allegations were never brought to the court's attention by way of a second motion for reconsideration. Instead, the Lieutenant Governor opted to file a motion to stay, and, as stated previously, Motion to Stay #1 remains pending because briefing has not been completed yet. Many of these new facts were being asserted for the first time in the Lieutenant Governor's pleadings filed after the court had already issued its decisions with regard to the Amended Substitution and the Motion for Reconsideration. The court stands by its previous decisions with regard to the facts and issues raised in the Amended Substitution and the Motion for Reconsideration. Nevertheless, the court is open to reconsidering its prior rulings if new facts are brought to its attention. The court has not had a fair opportunity to address the issue of whether the Attorney General indeed has a conflict of interest or whether there in fact has been a breakdown in the attorney-client relationship because these new facts were only brought to the court's attention after it had already ruled on the Motion for Reconsideration.
At the October 5th hearing, Attorney Miller stated that she had considered filing a second motion for reconsideration but did not do so.
Additionally, the court can not agree with the Lieutenant Governor's claim that it is likely to succeed on the merits of the appeal because the court has denied him a voice in these proceedings through unconflicted counsel. The court notes that on May 9, 2013, Attorney Miller entered her appearance as "co-counsel in this matter on behalf of the Defendant [Government of Guam] . . . by and through the Office of the Governor of Guam as the lawful representative of the Government of Guam." Entry of Appearance as Co-Counsel, ECF No. 1051. Attorney Miller has been representing the Lieutenant Governor's interests over the past five months since she entered her appearance as co-counsel. Additionally, the court permitted Rawlen Mantanona to represent the Government of Guam for the limited purpose of addressing issues raised in the former landowners' Motion to Intervene. See May 16th Order at 4, ECF No. 1064. Thus, the Government of Guam's interests have been represented by three separate entities: the Attorney General, the Governor's Chief Legal Counsel (Attorney Miller), and the Cabot Mantanona law firm (through Rawlen Mantanona).
Furthermore, the court has reviewed the docket sheet in this case and notes that since April10, 2013 (the date the Motion to Intervene was filed), there have been 53 filings made by Lieutenant Governor through Attorney Miller or Mr. Mantanona. Of these 53 filings, 15 were filed by Mr. Mantanona, and the remaining 38 were filed by Attorney Miller. These filings comprise approximately 27.5% of the docket entries filed in the last six months. Thus, it is disingenuous to assert that the court has not given the Lieutenant Governor a voice in these proceedings because the record clearly shows that the Lieutenant Governor has been filing a plethora of pleadings through counsel of his choosing. Moreover, the Governor, Lieutenant Governor and/or his counsel have been present at all hearings in this case, and the court has given them a meaningful opportunity to be heard. Contrary to the Lieutenant Governor's assertions, the Government of Guam does have a voice in this court; it is represented by three separate lawyers, including two of its own choosing. Accordingly, the court finds that the Lieutenant Governor has not made a strong showing that he is likely to succeed on the merits of his appeals.
A copy of this abridged docket sheet is appended to this Order.
Mr. Mantanona's filings consist of the following docket entries: ECF Nos. 1045, 1052, 1053, 1055, 1056, 1065, 1075, 1086, 1087, 1112, 1117, 1118, 1130, 1131, 1139.
2. Whether the Lieutenant Governor will be irreparably injured absent a stay
The second factor for this court to consider is whether the Lieutenant Governor will be irreparably harmed absent a stay pending appeal. The Lieutenant Governor argues the Government of Guam will be irreparably harmed because the Receiver intends to enter into contracts which will saddle the Government with tens of millions of dollars over and above the Receiver's previous estimated cost for the project. See Emergency Motion at 7-8, ECF No. 1203. But the Lieutenant Governor's assertions are simply speculative at this stage. As the Receiver stated in his last Quarterly Report, the Receiver would "defer contracting for any additional construction for those projects until we have successfully bid the final Dump closure project and are confident that we have sufficient resources to complete the projects as designed." Quarterly Report (May 21, 2013) at 33, ECF No. 1067-1. The Receiver confirmed this at the October 5th hearing when he said that the Receiver would not enter into any contracts if it did not have current funds available under the current bond issue to fund said contracts. In other words, the Receiver would prioritize the Ordot Dump closure project and the construction management contract associated with that project since the Receiver has sufficient funds remaining from the bond proceeds to finance said contracts. The additional projects - the upgrades to the residential transfer stations, Route 4 safety enhancements, Dero Road upgrades and possible improvements to the waste water treatment plant - will have to be deferred until the Receiver has the funds to complete those projects. Thus, based on the Receiver's written and oral statements, the court finds that the Lieutenant Governor has failed to demonstrate that irreparable harm is likely if a stay is not granted.
The Receiver stated that he would work closely with the Lieutenant Governor and other policy makers to obtain any additional funds needed to complete these added projects if the Government of Guam still deemed them to be necessary.
The Lieutenant Governor further argues that he will suffer irreparable injury because the Government of Guam has not had a meaningful opportunity participate in the process leading up to the Ordot Dump closure contracts, including the closure design plans, and has been prevented from raising serious concerns it has with regard to the Receiver's management of the dwindling bond proceeds. See Emergency Motion at 8-9, ECF No. 1203. The court disagrees with these claims.
Aside from the Lieutenant Governor's legal team, the Government of Guam's "voice" has been represented through the other executive branch entities such as the Guam Environmental Protection Agency ("GEPA") and the Department of Administration ("DOA"). According to the Receiver, GEPA has been involved since day one. GEPA representatives have been meeting with the Receiver and the U.S. Environmental Protection Agency ("EPA") for biweekly conferences over the last several years. As noted in the most recent Quarterly Report, the development of the Ordot Dump closure plan "involved regular and close coordination with EPA and GEPA for the review of submittals and evaluation of the designs that will provide a long-term, stable closure cover system. Key components of the closure cover and ancillary systems were vetted with the agencies and input incorporated where necessary." Quarterly Report (May 21, 2013) at 2, ECF No. 1067. Furthermore, on "February 22, 2013, GEPA, in its capacity as the solid waste regulating authority on Guam, issued its approval of the cover design and concurred with EPA." Id. at 4-5. GEPA has been privy to every aspect of the Receiver's closure plan, and the Government of Guam has been represented by GEPA on these issues.
Additionally, the Government of Guam can not be heard to complain about the Receiver's management of the bond proceeds because various Government of Guam entities have the ability to review and object to payments before the Receiver makes disbursements. Pursuant to the Disbursement Procedures governing the monies held in trust for the Government of Guam for use by the Receiver for Consent Decree projects, once the Receiver approves an invoice for payment, the Receiver is required to prepare a payment requisition and forward the approved invoice and requisition to the Government of Guam to review the documentation and file with the Receiver any written objection it may have to the payment. See Disbursement Procedures at 7-8, ECF No. 376-2. The Government of Guam has never communicated any objection to the Receiver under the process set forth in the Disbursement Procedures.
These monies are being held in an account at Citibank, N.A. Guam.
Pursuant to Section 3.3 of the Disbursement Procedures, electronic copies of the invoices and Draft Requisition are sent to the following Government of Guam entities for their review and comment:
• the Director of the Department of Administration or the Director's designee;
• the Director of the Bureau of Budget and Management Research or the Director's designee;
• the Director of the Department of Public Works or the Director's designee; and
• the Office of the Public Auditor.
The Government of Guam entities will coordinate their review and communicate any written objections to specific payments to the Receiver. The Director of the Department of Administration is the official responsible for communicating any written objections to the Receiver.
See Disbursement Procedures at 7-8, ECF No. 376-2.
The Disbursement Procedures provide the following with regard to the Government of Guam's review:
The Government of Guam entities shall have seven (7) calendar days to review the Draft Requisition and file with the Receiver . . . any written objections it has to making the payment. If the Receiver . . . has not received a written objection within seven (7) calendar days, the Receiver . . . will deem that there are no objections to making the payment. If any of these Government of Guam entities makes a written objection, the Receiver . . . will work expeditiously to resolve the issue to the entity's satisfaction. If the entity's written objection is not resolved within ten (10) calendar days after receipt, the Receiver . . . will:
1. Authorize [Citibank] to make the full payment notwithstanding the Government's written objection, if the Receiver determines that making the payment is essential to maintaining the construction schedule;
2. Authorize [Citibank] to make a partial payment, withholding that portion of the payment to which the Government objects and continuing its effort to resolve the written objection; or
3. Place the payment on indefinite hold pending resolution of the Government's written objection.
Should the Receiver . . . be unable to resolve the Government's written objection, the written objection will be submitted to the Court for resolution.
Id. at 8.
The Government of Guam has had a full and fair opportunity to have any of its concerns addressed - whether said concerns involve the closure design or financial management - through various government entities (GEPA, DOA, the Bureau of Budget and Management Research and the Department of Public Works), all of whom are part of the Executive Branch and are answerable to the Governor's Office. So when the Lieutenant Governor complains that it has not been heard in this process, it is simply incorrect. The court finds that the Lieutenant Governor has failed to demonstrate any irreparable harm will result absent a stay.
In fact, at the court's October 5th hearing of the instant motion, counsel for the Lieutenant Governor appeared surprised to learn of the extensive government participation.
3. Whether issuance of the stay will substantially injure the other parties interested in the proceeding and
4. Whether a stay is in the public's interest
Finally, the court will address the last two factors together since Nken instructs that these factors merge when the government is the opposing party. Nken, 556 U.S. at 435.
In this case, the Lieutenant Governor is not simply asking the court to stay the orders from which it is seeking an appeal, namely the May 16th Order and the Order re Motion for Reconsideration. Instead, the Lieutenant Governor is asking the court to stay the closure of the Ordot Dump until completion of the appeals process.
The court wants to re-emphasize that because of the Government of Guam's inactions, the closure of the Ordot Dump has been delayed by almost six years now, which is why the court had to appoint a Receiver in 2008. The court deemed the Receiver's appointment "necessary to achieve expeditious compliance with the Consent Decree." Order re Appointment of Receiver (Mar. 17, 2008) at 15, ECF No. 239. Yet, now that the Receiver has informed the court that it is days away from issuing the award of contract to close the Ordot Dump, the Lieutenant Governor is asking the court to delay the process even more. At the October 5th hearing, the Receiver stated that a stay of even a few months could significantly delay the Ordot Dump closure by one year since the construction project requires two dry seasons to be completed. At this rate, the United States certainly is not getting what it bargained for when it entered into the Consent Decree with the Government of Guam.
Based on the court's experience, Guam has two "seasons:" wet and dry. The dry season usually begins in January and runs through June.
A stay as requested would result in the continuing violation of federal law, i.e., the Clean Water Act, and would lead to further environmental damage. As noted in the Receiver's Quarterly Report, "groundwater quality [around the Ordot Dump] has been impaired to some degree by the Dump." Quarterly Report (May 21, 2013) at 3, ECF No. 1067-1. Additionally, "[s]urface water sampling in the Lonfit River and the western channel showed that leachate . . . discharging into the channel and subsequently into the Lonfit River have impaired the water of the Lonfit River in the immediate vicinity of the Dump." Id. at 4. The Receiver's closure plan will include the installation of a closure cap/cover and construction of "all ancillary systems to manage stormwater, leachate and landfill gas, as well as monitor groundwater and gas migration." Id. These measures are important not only to prevent the further discharge of leachate from the Ordot Dump to the Lonfit River, but also to minimize the risk of fire at the Dump. A stay would only cause further negative consequences to Guam's environment.
The Ordot Dump has a history of frequent fires. Id. at 3.
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Furthermore, a stay of this action would result in increased costs for the Government of Guam, and Attorney Miller conceded as much at the October 5th hearing. The stay requested by the Lieutenant Governor could conceivably last at least one year, if not more. Aside from the natural tendency of prices increasing due to the passage of time and inflation, the delay would also lead to increased costs and a new round of bidding for the closure project. After the bids for the environmental closure of the Ordot Dump were received and made public, the Receiver also disclosed its cost estimate for the project. See Special Report (Sept. 20, 2013) appended to Notice, ECF No. 1193. Another round of bidding would likely result in the submission of higher bids for the closure project since potential bidders will already know what the Receiver expected to pay for the project. Thus, granting a stay of these proceedings would impact the Government of Guam financially by increasing costs for the closure of the Ordot Dump.
Finally, a stay of this case would result in harm to the public. The Ordot Dump is a public nuisance, especially to the people of the village of Ordot who have been exposed to this environmental and public health hazard for years. The public interest tips strongly against the issuance of a stay. The court can not in good conscience allow this public detriment to continue. The Government of Guam failed to live up to the commitments it made back in 2004 when it signed the Consent Decree, so the court had no choice but to appoint a Receiver to bring the Government of Guam into compliance. As the court has stated previously, the closure of the Ordot Dump will finally bring an end to an era of non-compliance. The court and the public will not tolerate any further delay to this process. Accordingly, the court hereby denies the Lieutenant Governor's Emergency Motion.
CONCLUSION
In conclusion, the court finds that the Lieutenant Governor has failed to meet his burden of showing that the circumstances here warrant the extraordinary remedy of a stay pending appeal. The Lieutenant Governor has not demonstrated a strong showing that he is likely to succeed on the merits of his appeals, nor has he demonstrated that irreparable injury will result absent a stay. Instead, a stay of these proceedings pending review by the Ninth Circuit Court of Appeals will negatively affect the United States' enforcement of the Clean Water Act. The Ordot Dump will keep discharging leachate into the Lonfit River and will continue to pose an environmental and public health hazard unless and until it is properly closed. Furthermore, a stay would lead to increased costs for the Government of Guam. After weighing the four factors as instructed by Nken, the court hereby denies the Lieutenant Governor's Emergency Motion for a Stay Pending Appellate Review.
The Lieutenant Governor has informed the court that if the stay he requested was denied, he would immediately seek review by the Ninth Circuit and ask the appellate court to stay these proceedings. In order to allow for an orderly emergency motion practice before the Ninth Circuit, the court directs the Receiver to delay the awarding of contracts for the Ordot Dump closure construction project and for construction management services until October 31, 2013. If a stay of these proceedings is not ordered by the Ninth Circuit Court of Appeals by said date, the Receiver is directed to proceed with the procurement process and awarding of contracts so as not to further delay the environmental closure of the Ordot Dump.
IT IS SO ORDERED.
Frances M. Tydingco-Gatewood
Chief Judge