in doing so they just placed a large number of original and special landowners over time those properties were used for various military bases and in the mid one nine hundred ninety s the united states government decided it no longer needed those properties for military operations and that it would therefore transfer the properties back to the control of the governor of guam in response and in recognition of the historic injustices done to the island generally and specifically the ancestral land owners who had their properties taken in  nine passed public law twenty five to forty five public all twenty five forty five which is codified chapter eighty the statutes provides that when the government of one receives property back from the united states it either return the property to the original ancestral land owners or where that's not possible because the government continues to use the property it provides just compensation right so no i mean this is a grievous harm no doubt but not every harm has a remedy all right so now the legislatures trying to write this past harm have a legislative remedy for this correct so you have the act  tell me whether or not this act vests a clearly defined property right in your client it absolutely does and there's two ways for why that's true to sort of report approach the question of is there a protected property interest in the due process clause and this is the two approaches are alluded to and generally set forth in the wedges vs alleges case the first way is you can have a clearly defined in title meant under the statute and in this case we would say that certainly here the ancestral property right is a defined term under the statute just compensation is a defined term under the statute section eight zero one zero two clearly sets forth that the purpose of the statute is to quote formally recognize the ancestral property rights and then to provide a mechanism for providing just compensation said that some sort of the breakdown that that that the and i'm confused by is that this whole idea of just compensation the definition on an acting legislation sections eight zero one zero one eight zero one consistent with one minor exception which is in section eight zero one zero four b interleave you alluded to there's a reference to just compensation in connection to land returns and our reply brief we provided a number of different canons of statutory construction if you will that allow you to compare that language versus other language in the statute but the first key part is that in the actual definitional section of the statute which is eight zero one zero one u k it defines just compensation as a land return or any other form of available compensation so it's that alternative are you saying that's clearly defined correct but you can that just compensation means for individuals who properties are not being used by the government of won it means a land return right but that's not what's not a case for your for your client credit our client because his property is still being used by the airport he served in the second bucket which is he's entitled to just compensation or some other form of compensation i should say in lieu of a return of his property seized me i have a sort of factual question and it may or may not be relevant but do i understand correctly that your client's predecessor in interest did receive just compensation for the property i would agree with that statement is factually accurate except the phrase just compensation so there were two different payments that the united not at all your honor why is it particularly if you look at the preamble to public law twenty five dash forty five which is set forth in the airports then them that they had on their brief at pages roughly sixty five or eighty nine it goes through the history of those prior payments and the conclusion that the quantum legislature drew was that those prior payments and proceedings for a variety of reasons were insufficient i believe it's on page eighty nine of that  it said that those proceedings had not produced a satisfactory outcome and that fact is what motivated the government of guam to pass a public law twenty five dash forty five which created the ancestral property right and the attendant entitlement to just compensation so our claim arises out of that statute that the government of won passed and that from sort of a factual perspective leave in the record in the undisputed material facts which are the excerpts of record from two a one to two  undisputed material fact six i believe states that there have been over three hundred land returns made to ancestral landowners who properties are being used by the government of want and they didn't have to repay any of those prior payments they weren't considered and whether or not those landowners were entitled to their full relief under the quam statute so for those reasons we would say the prior payments play no role in this case except at the eliminates the takings claim you'd agree with that i think that's probably right there's certainly a reason we didn't allege a takings claim here right but so but that doesn't change the complection of the case because if you take that the takings claim off the table then you're left with definition of a property right that has to be granted by statute rather than a property right that was granted by deed and so what you're left with as i understand your argument is the just compensation definition which says and shell also mean any other form of conference compensation other than a specifically described available land is that it correct that's the relevant definition and the other there are other parts of the statute that are certainly relevant to the question of whether or not there's a protected property interest and those go to really the second the way that this court in wedges versus alleges set forth you can have a protected property rights arising out of state law and that's when there are they called procedural components that don't allow the government any discretion as to whether or not to grant or wedges ledges for example the issue is whether or not the plaintiff the game manufacturer was entitled to a license to operate his machines and the relevant statute said that the gaming commission shall make a determination as to whether or not that particular game fit the criteria under the statute so the ninth circuit looked at that language there and said well that's not discretionary because the commission must make a determination they can't decide we don't feel like granting this license in th circumstance they don't have that discretion and that exact same language shall make a determination appears in the statute eight zero one zero four see sort of subpart step one when it says the ancestral lands commission shall accept an application for determination so those that is a non discretionary language at the discretion that the district court pointed to was at the statute which i believe your honor probably alluding to is that there's not a clear definition of the exact dollar value of what just compensation means for people in plaintiff's position but the fulcrum of a due process analysis both from the supreme court and in this circuit isn't whether or not the amount of compensation or the amount of the benefit is set the question is whether or not the government has discretion to in the first instance deny the benefit in its entirety statutes that have that type of discretion don't create a protected property right statutes that will lack that discretion which is the case here do create a protected property right and i think that distinction is drawn out by the cases that the parties have cited so if you look to for example the allen case which was cited by the airport in their brief that was a case in which a city attorney was terminated and allege that she had a continuing property interest in her employment but the relevant statute said that the city can decide to terminate employees based on factors such as they just don't have the money to continue paying that attorney or they decide that position isn't need anymore which was the situation in that case the ninth circuit looked at that and said that's discretion to grant or deny the benefit in the first instance in wallace for city and county of san francisco was a similar situation a police its discretion those are the types of just scrushy mary cases were property interests is lacking and what we were direct we think is a much more analogous case is here  and that involved a prisoner who was performing work in the prison which is generally outsourced to private contractors but in that instance was being performed by prisoners and he alleges that under the relevant statute he had an entitlement to compensation for that work the statute said that the amount of compensation owed shall be set at the discretion of the commissioner of prisons that it was a case just like ours where there is some ambiguity as to what the total amount or quantity of the benefit is going to be but there was no discretion whatsoever as to whether or not he had to be paid compensation in the first instance i have a question on a slightly different tack when it's the relevance if any of the decision that is that case there was an attempted property transfer to mr crawford and other landowners in an effort to satisfy their claim and to do that they would have taken property out of the land back trust and since there are many beneficiar essentially ruled that you know you couldn't take property either to benefit just to have the trust beneficiaries that that was an impermissible transfer but it was isolated to that particular case and doesn't have anything to do with the issues currently here on appeal precludes of effect of both that decision and the prior payments during the fifty's and during the seventy's were litigated during the motion to dismiss phase out the court and i both of those preclusion reza judicata arguments and they want raised again and they don't have to be well they don't have to be we can affirm on any ground that was presented to the district court that's what i was asking about that and they were not presented to this court again at the summary judgment proceedings well o is there is a breach of contract claim that is not up on appeal currently that is more closely tied to some of the thirty dash one fifty eight statute which was the one at issue in the case but that's not wasn't reached by the district court good morning i'm david highsmith assistant attorney general and i represent defendants callow and adam he really sympathize with the pla the gong ancestral lands commission in the government of juan would like to distribute money from the trust but we believe it is not legally enforceable legally impossible to do that by the way i i would take nine minutes for our side and leave the six with the airport's attorney we don't believe that the legislature has provided sufficient guidance as to what just compensation might be ancestrally its commission is a truck is in trust and must be handled as a trust and that you can't just remove property from the trust and thereby diminish the rights of the other beneficiaries that's the relevance of that that we have maybe three thousand beneficiaries in approximately the same position as mr crawford so however we distribute that money for land or anything has to take them into account you can't just pluck land out of  the trust and the other thing about that is the guam ancestral lands commission is charged with giving this compensation but it isn't clear  rather all it can do is give out the assets it halves it only has control over so much les and so much money it holds those things in trust but he can't just say ok we're going to give mr crawford ten million dollars fifty million dollars whatever he would like me well it's clearly it's a difficult proposition yeah and you're not helped by the fact that the legislature hasn't come up with clearly defined roles but what i understand mr crawford arguing there is a clearly defined right and therefore he can pursue his due process claim is because the language in the statute establishing that right to ances says has compelling language shall or must award just compensation is that sufficient to create a clearly defined property right no i don't believe it is it creates an expectation and really what we're saying you know as you don't know how much what share of the trust money everyone is entitled to you just give the same amount of money to every beneficiary do you divide the money a compensation that's sufficient to serve as a basis for his night in eighty three i do not believe so because the cases that he signs deal with simpler situations like in wedges legis that he talked about the it was people who own arcade games were entitled to a license if the proper official determined that they were games of chance and they had the so the question is does he have a statutory right he has a right but it is and these are rightly enforceable and in forcible at this time because it is not specifically determined i would point out that eight  zero one k says return of the land or any other form of compensation available now available i think means based on what the commission has which is certain real property which can't be taken out of the trust or this money which can be distributed to the to the trustee to the beneficiaries it would be interesting to know what mr crawford believes should happen next do we start dividing up them how do we start carving up the trust we'd love that we'd love to distribute the money but it really isn't up to the commission members to decide how much of it anyone gets  i think the court is correct that the to there is no takings claim mr crawford's mother was given compensation from the federal to the legislature and ask them to pass something that will clarify their aim  do we go by the square foot do we go by the amount of land taken or what have you i think that's that's the way it has to be why doesn't the commission have the authority to do that it has no guidance as to how to do it there's only one statute that deals with this trust and it just says it shall do so by regulations rules and regulations it does not say how and that's why the court cannot really issue an order it could say distribute the money but no circuit and then it could determine on its own what just compensation amounts in the context of this and using either expert testifying or otherwise i mean that's what happens in condemnation cases when you have multiple plaintiffs and a set amount of money i mean i think the problem there would be that you have three different statutory references to just compensation that say three different  things as for expert testimony the sad thing is no matter what we do here the dispossessed landowners will never get the value of their land back and in fact it's hard to say what that is in this case because the land is subject to restrictions by the federal government and can't be transferred so i don't know what good expert testimony taking facts would be i'm just talking about what we're talking about is going to distill to his essence as a just compensation claim and chords determine just compensation all the time even though they may have some some conflicting guidance always recognized that this case involves tragic facts and the history of guam and the relationship with the united states which i as a daughter have lived and have learned growing up the problem here which we have said from the very beginning on behalf of the airport is that the airport should not have ever been in this case in the first place i want to focus specifically on that argument because i think that argument is is unique to my clients we agree with the g l c mr highsmith that mr crawford has serious issues with his argument that there is ancestral property right that is protected by the statute we have offered arguments in our answering brief as to why the district court's decision order should be affirmed on that basis alone to just quickly answer the question yes there it there is an ash has full property right that has been recognized by zero one zero two which is the statute part of the statute that creates that g l c and the process of compensating look specifically at that statute as to what the roles and responsibilities are of the parties involved specifically with g l c and in terms of compensation mr smith is correct yes there is this property right that is recognized with the word shall however the funding mechanism mechanism is questionable the source of the compensation is questionable what compensation mr crawford is entitled to as an an cestral land owner who's lands are being held still for public use is questionable and the g l c and alone the g l c has the discretion with i guess the input of the land owner what that compensation is so we will submit on the briefs with respect to that question i want to turn now given my limited time to the alternative argument that we raised in our brief our answering brief and which we have said from the very beginning is that the airport does not belong in this case at all and never did however you call it whether it's a mistrial defendant whether it's an improper defendant mr crawford is routing his claims  due process claims and just to be clear there was a stipulation for dismissal with respect to the equal protection claim so the airport is not subject to that claim soley the due process claim with respect to that claim he has now said that his ancestral rights are found in the statute then he has to live by the statute and the statute only empowers the g l c with respect to considering claims processing claims taking in claims and in determining compensation the airport has no role has no obligations has no power and never has in fact if you look at the record that's up on appeal this is a a long battle that mr crawford has undertaken and we recognize that he has worked tirelessly tirelessly for the other ancestral land owners whose lands are being held by t s and and attempted to work with both the airport and the legislature to  obtain compensation for him and the other class members however that history will demonstrate that every time the legislature attempted to obligate the airport to do something or obligated the airport's either  lands that it was no longer using or to be part of this commission which was public law twenty six dash one hundred they recognized at the end after after urging from the airport as well as the f a a because the f a a had to get involved that there was absolutely no way that the airport its revenues or its lands could be obligated to mr crawford and so forth on that basis if you look at the entire history not one single law that mr crawford can cite sue says anything about the airport if you look at the decision an order from the from the district court back to front not one mention of the airport it is all a g l c shall do this that they are empowered to do this their part to that airport is nowhere to be found and on that basis we believe that it in the event that there is no that the court finds that there is a protectable property interest we would submit that the airport should be just judgment for the airport should be affirmed on that basis and very quickly i want to just address the authorities that mr crawford had put in his reply with respect to his argument that the  ninth circuit court cannot review this issue none of those cases actually most if not all of those cases did not are enough likable here in this case we fully litigated this question of whether the airport was a proper party it was in almost every substantive brief that we submitted to the court and i will cites to the jewel versus payless drugstore case which is seven forty one f c to f two d fifteen fifty five  is from this court that says if there is an alternative theory that can be presented by the app they can present it and the court is obliged to affirm the decision below the judgment you know if the argument has merit and with that i like to briefly address some of the issues that were just raised it essentially what the governments are highsmith position is a recognition that there is a protected property interest i believe his words were that mr crawford has a right and that he has an expectation a reasonable expectation of entitlement is the exact language used in wedges ledges and numerous other cases to identify when a protected property interest exists the rest of his argument stems from what as we said in the breeze we think is a faulty premise which is the only type of compensation available to mr crawford these payments from the land bank trust simply not accurate and as the government had its own briefings a motion to dismiss that argument is actually inconsistent with the express definition an eight zero one zero one k of just compensation as any other form of available compensation with respect to the issue setting that aside of whether land payments from  trust or impossible we simply reject that idea the jail see is an agency that is certainly equipped to come up with rules and regulations in fact the rules and regulations would be subject to the ministry of education law which requires that before any rule making becomes final it goes to the legislature for the legislatures approval so in that sense there's been no delegation of will making authority final rule making authority at  c and even if there had then i think is your honor alluded to the g l c is well equipped to do this agency's make these kind of determinations and decisions all the time are reply brief we cited a number of supreme court cases that make clear that the statute doesn't have to be nearly as specific as mr highsmith would suggest and as we pointed out in our brief in fact the jail see has drafted rules and regulations plaintiff crawford has provided comments to those rules and regulations when they were open for the public comment period so we don't see any reason why even if the relevant payments were from the land bank trust why there's any restriction or problem with carrying out those payments but if your honour's noted that's not really the relevant question here it's whether prop crawford has a protected property interest is entitled to a hearing to determine what compensation he's owed and then at that point later in the case that's where these types of determination like the form of compensation occur thank you thank you counsel