Eagles Field in Mangilao is shown Feb. 27, 2023. Rear Adm. Benjamin Nicholson, commander of Joint Region Marianas, granted an extension of the draft lease for the area near the field, which the government of Guam is eyeing as the site of a new medical complex.
HAGÅTÑA (The Guam Daily Post) — Several senators gathered Tuesday at the Guam Congress Building to hear how Gov. Lou Leon Guerrero would address concerns with the controversial lease of Eagles Field. However, not only was the governor absent from the hearing, no one from her administration appeared before lawmakers that morning.
Leon Guerrero did write beforehand, informing Speaker Therese Terlaje that she would be off island at the time of the hearing, but “in any event,” there are no new details to share on the lease. Because of that, the governor said neither she nor Lt. Gov. Josh Tenorio, now acting governor, would attend Tuesday’s hearing.
The governor is on a scheduled trip ahead of attending the 2023 SelectUSA Investment Summit in Maryland, according to her spokesperson, Krystal Paco-San Agustin. Leon Guerrero is sitting on two of the plenary panels at the conference and also has scheduled meetings with the Department of Defense.
“The summit is a significant opportunity to discuss efforts that have been implemented to revitalize infrastructures and advancements made to enhance the development of ports, airways, roads and railways,” Paco-San Agustin said.
The speaker, meanwhile, expressed disappointment with Adelup’s decision not to attend Tuesday’s hearing.
“This Legislature, and more importantly, the people of Guam, continue to have no access to the full terms of this lease for federal land that the governor is adamant on signing despite the clear recommendations by the attorney general. For perspective, this federal land was taken from the people of Guam, also without public input,” Terlaje stated in a press release, adding that she will continue to pursue an override of a measure that will require legislative approval for the purchase or long-term lease of federal property.
Leon Guerrero and Tenorio were invited to appear before the Legislature’s Committee on Health, Land, Justice and Culture to present plans addressing the attorney general’s determinations and recommendations on the Eagles Field lease.
At 112 acres, this portion of federal property in Mangilao – commonly cited as the Eagles Field area, but also known as Lå’lo – is where the governor is looking to construct a new medical campus. The project will include a new hospital, as well as other health care facilities, and has been a long-standing priority for the Leon Guerrero-Tenorio administration.
The governor had been ready to sign a lease with the federal government for the property, but Attorney General Douglas Moylan refused to sign off on the agreement, citing various legal issues.
Rear Adm. Benjamin Nicholson, commander of Joint Region Marianas, first gave the government of Guam until April 14 to sign the lease. The property is otherwise intended for military use related to efforts to set up missile defense facilities in light of threats from China. Nicholson once remarked that it may be purposed for military housing if not used to build the medical complex.
April 14 came and went without a final agreement, but upon request from the governor, Nicholson decided to extend the deadline, which is now set for April 30.
With no one from the administration to address them Tuesday, lawmakers spent most of their two-hour hearing speaking with Moylan, who was present to answer questions on the lease.
AG answers questions
The AG said he had seen no new drafts or changes to the agreement, but added that he and the governor have an understanding that the governor’s team would be looking into the issues he outlined, and they will keep lines of communication open in case assistance from the AG is needed.
Among the concerns Moylan identified in his review of the lease was noncompliance with federal and local laws regarding the Guam Legislature authorizing and appropriating funds. One example involved annual rental payments on the property, which GovGuam could defer through in-kind considerations for the military when building the new hospital. But those considerations were to be finalized after the lease execution, so there is no listing in the lease as written.
According to Moylan, that meant the lease obligates taxpayers to pay rent upon its signing – money that had not been appropriated by the Legislature, as required by law.
“The problem the governor would have moving forward is that the processes of government require not only that the Legislature have participated in the appropriations, but that the attorney general’s signature has to be on the written contract. And that was a safeguard and check and balance Legislatures past had required,” Moylan said Tuesday. “The governor would be adding an additional legal issue if (she) was to move forward.”
Moylan added that he trusted the governor to recognize the importance of working with the Legislature and the Office of the Attorney General, noting that seeking relief from the courts to proceed with the lease would come with certain hurdles.
Further into the hearing, the AG said another issue regarding advancing without his approval is that the governor would not be able to obtain financing.
“I doubt very highly that, if the governor tried to sign the agreement and then tried to get any form of financing from any bank, like we had last time I was the AG, without the attorney general’s signature, no loan officer could ever legally authorize a loan,” Moylan said.
But at one point, the speaker asked Moylan to consider a hypothetical scenario, where the governor could proceed with constructing the hospital on her own because she obtained enough federal dollars to avoid needing local money.
The AG said the governor could conceivably get the funding and commitments in place for construction, but noted that annual legislative appropriations would be needed for the hospital’s operation.
“You would have to, as a Legislature, move the staff from the hospital (in Tamuning) and then fund them for the (new) hospital. You could literally just defund them at that point,” Moylan added.
The AG also discussed concerns with the “takeover” provision in the lease – Section 15. This area covers the termination of the lease, and states that in the event of war or a national emergency, the lease would be subject to any federal government right affecting the control or operation of the leased property, but nothing should prevent GovGuam from pursuing any rights it may have for reimbursement from the federal government.
The governor has explained that this is standard language in federal leases, and past releases out of Adelup have said that the president of the United States already can authorize federal agencies to take over any assets deemed necessary during war or national emergency.
While the governor said the language would be clarified, Moylan said Tuesday that Section 15 as written “tempers” Organic Act provisions granting the governor control over health care services.
“This lease falls, in my opinion, outside the purview of the Organic Act, because of paragraph 15. … Under this lease, it’s not the president that can exercise paragraph 15 for a time of war or national emergency. And national emergency is not defined. If today, the admiral says we’re in a national emergency, … they could literally, if this hospital was built, declare it and then take it over. And part of the takeover is the ability to exclude the governor and our government from controlling the hospital, … which, again, I believe pulls it out of the Organic Act,” Moylan said.
The AG would go on to criticize the governor’s legal advisers, stating that attorneys “did not do their job” vetting the lease agreement.
Moylan also said the governor didn’t allow him to work with her on the lease, so that they could come together to the negotiation table with the federal government. He described the agreement as a “take it or leave it” proposition, with the rear admiral serving as the point person for others in the federal government.
‘We are being sold short’
There is still about five days for the governor to act on the Eagles Field lease. It’s unknown what Leon Guerrero will do when the clock strikes the deadline again. Opposition from certain members of the Legislature appears unwavering, and it’s unclear if the AG’s legal concerns will be addressed enough to gain his favor. But the governor’s reaction to Moylan’s denial does indicate potential legal action.
As the speaker noted at Tuesday’s hearing, the governor said “none of the issues” Moylan raised appeared to constitute “actual impediments to entering the lease.” The governor further stated that it is likely that a “legal remedy” will be necessary “to effectuate the Organic Act mandate that the governor shall establish public health facilities.”
Terlaje asked Moylan what those legal remedies could be. The AG said they would involve the District Court of Guam or local courts.
“District Court has the same model that we follow, which is the legislative branch appropriates and the governor effectuates the statutes. But, again, I’m comfortable that whichever court she may wish to apply to – and we’re talking about weeks ago. I think she’s trying to get more time with the admiral to come up with a different solution. I don’t think any petitioner or plaintiff in the court system is going to have an easy time getting this document approved, given the amount of money involved and the time the lease would be binding an entire people, … the people of Guam,” Moylan said.
Earlier in the hearing, as he answered a question from one of the senators, Moylan offered some personal opinions on federal relations, stating that he believed the federal government has engaged in a pattern of ignoring Guam, treating the island like a “bastard child,” and not wanting to invest in the territory.
“The fact that you have a federal government that has billions and trillions of dollars … to go on the shoulders of a territory that is so important to them right now with the conflicts that are rising. … We are being sold short on our importance out here,” Moylan said.
