Department of Public Lands Hearing Officer Ramon Dela Cruz, third left, background, presides over an evidentiary hearing in the DPL conference room as Assistant Attorney General Ali Nelson, left, and Rota Resort legal counsel Colin Thompson, center, review documents on Friday. Also in photo is Assistant Attorney General Vina Seelam.
THE Department of Public Lands on Friday held an evidentiary hearing on Rota Resort LLC’s appeal pertaining to the termination of its land lease contract.
DPL Hearing Officer Ramon Dela Cruz presided over the hearing.
Hee Kyun Cho, the owner of Rota Resort LLC, which operates Rota Resort and Country Club, attended the hearing via video call. Rota Resort’s legal counsel Colin Thompson appeared in person.
Assistant Attorney General Ali Nelson and DPL Compliance Director Greg P. Deleon Guerrero appeared on behalf of the department.
Dela Cruz reminded both parties that “the purpose of the hearing is to hear disputed facts and legal argument and to secure complete evidence on the questions and [their] relevance in this matter.”
He said Rota Resort is appealing DPL’s termination of Lease Agreement No. 90-03R for the company’s failure to pay the $639,897 lease fees for the period of July 2020 to February 2023 for the public land on Rota occupied by Rota Resort, which also operated an eight-hole golf course.
DPL stated in its notice of termination that Rota Resort abandoned the premises in violation of the lease agreement’s Article 25.
But Thompson said the other issue at hand should be whether DPL’s decision to terminate the lease is arbitrary and capricious, and whether Rota Resort should be excused from performance, as provided in the lease agreement’s Article 11.
Because Rota Resort invoked a force majeure clause in the agreement’s Article 11 due to the economic impact of the Covid-19 pandemic, Thompson presented copies of executive orders that then-Gov. Ralph DLG Torres issued in response to the pandemic that hit the CNMI in March 2020.
But Nelson said not all those executive orders were related to Covid-19.
She also moved to squash the subpoena for DPL enforcement officer Alejo Mendiola, who took photos of Rota Resort’s premises that appeared abandoned with many of the facilities vandalized, and the unattended golf course being taken over by vegetation.
She said Mendiola was not given enough time to comply.
Nelson also noted that both parties submitted to each other requests for production of documents as well as a request for an admission that DPL’s action was arbitrary and capricious.
She said DPL has submitted its response.
Thompson said Rota Resort was unable to complete the work of producing documents in the time that was given because the documents were damaged by Typhoon Mawar on Guam.
He said Cho has submitted a declaration about Typhon Mawar and how it impacted his ability to produce the documents as he has been prioritizing recovery efforts in his business on Guam.
Nelson said DPL would like to proceed with the hearing.
Thompson then asked Deleon Guerrero questions regarding the termination of the land lease, and how DPL concluded that Rota Resort had abandoned its premises.
Deleon Guerrero said there was no business activity at Rota Resort.
He also said that the force majeure argument applies only to the construction phase of an establishment. Rota Resort, he added, was no longer under construction when DPL determined that it violated the lease agreement.
The hearing went into recess and will continue this Friday.
