SwavelyFor most businesses, the permitting process in Guam is still a long and complicated process.
Two island companies have experienced issues with one Government of Guam agency in particular — and have shared with the Journal documentation of multiple Notices of Violation, delayed projects, additional expenses based on regulations set by the agency, followed by a lengthy approval timeline.
The Guam State Historic Preservation Office’s mission, according to its website, is to “engage in a comprehensive historic preservation program that promotes the use, conservation, preservation and presentation of historic properties.”
By 2021, GTA had filed 29 applications with Guam SHPO. Four have been approved; 25 projects have seen little to no progress in the past two years, according to GTA.
GTA sought legal guidance from the Office of the Attorney General of Guam on Aug. 2.
In the letter to the AG, GTA said Guam SHPO issued numerous letters requiring GTA “to comply with arbitrary and burdensome conditions for many of the projects which are not authorized or required by law.”
Guam SHPO required GTA to pay for “archaeological examinations, research, and fieldwork” for one of its projects in Tamuning, a site that GTA is developing for the Alupang Data Center, a data and cable landing center that broke ground on Oct. 6, 2022. According to Roland Certeza, president and CEO of GTA, the telecom company has spent more than $500,000 for field research requirements as directed by Guam SHPO, according to his letter to the AG.
GTA’s Alupang Data Center and cable landing station in Tamuning. Photo by Althea EngmanGTA also pointed out in correspondence that John Mark Joseph, Guam’s state archeologist at the Guam SHPO office “has no authority to issue determinations and requirements for GTA to follow for its projects, and it is the Guam Historic Preservation Officer who is mandated by law to issue such requirements.”
Certeza also said in the Aug. 2 letter that there "is no statutory basis or procedure for requiring such extraneous work, much less that [work] should be done at GTA's expense.”
Other concerns raised by GTA were that the 29 GTA applications “involve sites that have already been disturbed and have buried infrastructure that has been in place for decades.” For the past two years GTA has sent monthly communications to Guam SHPO asking for application status updates, “only to be met with empty commitments” said Certeza in the Aug. 2 letter.
On April 26, GTA also went further by writing a letter to the Guam Historic Preservation Review Board to expedite applications. GTA was again met with no response, according to Certeza’s letter to the AG.
Hawaiian Rock Products first began plans for a concrete batch plant on Lot 5035-R8 in Okkodo in Dededo with an approved building permit on Feb. 8, 2022, by the Department of Public Works.
Daniel D. Swavely, consultant for Hawaiian Rock; told the Journal that “due to the large amount of concrete Hawaiian Rock was delivering to Marine Corps Camp Blaz, trucking the concrete from its current location on Route 15 was a challenge.”
A Notice of Violation as well as a requirement to conduct an archaeological shovel test pits investigation on that property was given on Nov. 3, 2022. HRP believed that the violation was “erroneously issued” followed by an “unnecessary” archaeological assessment, Swavely said.
On April 22, Guam SHPO sent Swavely a letter to acknowledge the error in the NOV, which was then voided. Patrick Lujan, State Historic Preservation officer, wrote that the issue is now the high number of pottery sherds seen on site. Lujan requested a “qualified archaeologist to document and further investigate in the area.” He said that “with the high number of pottery sherds, it is qualified to be investigated as well as the gravel covered area that also needs to be tested as (Guam SHPO) was not able to inspect that before it was covered with gravel.”
Swavely said the evidence cited to determine the archaeological survey included “15 pottery shreds, a few bullet casings, blue ware ceramic fragments and modern materials.”
In response to the requirement for an Archaeological Survey and Subsurface Testing, Swavely wrote to Lujan on April 12, and said, “HRP understands that this Okkodo area has undergone major land disruption in the 1940s to 60s following a large military housing development.”
Aerial view of Lot 5035-R8 for the Hawaiian Rock concrete batch plant. Photo Courtesy of Daniel D. SwavelyAdditionally, Hawaiian Rock quoted Assistant Attorney General Jessica Toft’s June 21, 2021, response to Guam SHPO’s request for guidance stating that “…. nothing in the statutes mandates a field investigation for every privately owned or developed property. In fact, field investigations by SHPO on these properties are discouraged [as per] 21 GCA Section 76210.”
Toft also wrote, “Therefore, the Guam SHPO must evaluate each Certificate of Approval application on a case-by-case basis and determine in the Guam SHPO’s discretion whether such survey or field investigation should be required in each case.”
At the beginning of Toft’s letter, she said that the “Guam SHPO office has returned to placing restrictions on private landowners that are not supported by the law in which she provides a synopsis of the issues followed by the guidance.”
The full work up, according to Swavely, has been about a year in the making.
“This full work up states what the company's archaeologist plans to do with the site which got sent up to Guam SHPO,” Swavely said.
After a building permit was sent to Guam SHPO for review a year ago, Guam SHPO then requested a research design on Aug. 25, 2022. Swavely said that from “August 2022 until June 2023, a lot of back of forth occurred between Guam SHPO and HRP in terms of what was needed for archaeological research which then turned to outsourcing for an archeologist.” He said, “About $50,000 has been spent on this process, with $48,000 used for the archaeologist alone.”
On June 5 the first research design draft was submitted to Guam SHPO and returned to HRP on June 22 with comments and revisions. The revised design was then sent back to Guam SHPO on Sept. 6 and that design was then approved by it on Oct. 12.
Following the approval, the building permit was also approved on Oct. 27. As of Nov 20, Hawaiian Rock began conducting the approved field research design.
Swavely said that continuously “searching and wasting several more months along with tens of thousands of dollars for more sherds and modern material is unreasonable.”
In a letter sent on April 12 to state archaeologist John Mark Joseph, Swavely quoted Code § 13985.70 (d) which said, "The problems of projects with potential impact on cultural or historic features may be resolved by the Guam Historic Preservation Officer through agreement or mitigation. Such resolutions may include, but need not be limited to, project redesign, relocation, curation and display of cultural resources, and land dedication to the Guam Preservation Trust. The Guam Historic Preservation Review Board shall develop the criteria for resolution of any controversial finding in accordance with the administrative adjudication law.”
Swavely then said, “HRP hereby immediately invokes this appeal process for resolution. Please forward the criteria, as authorized by P.L. 20-151 in 1990, as I have not been able to find it.”
Hawaiian Rock is open to “a slight project redesign and to continually be a responsible partner on Guam and contribute in other meaningful ways that would advance the mission of SHPO,” Swavely wrote in the April 12 letter to John Mark Joseph.
The Journal reached out to Lujan for his comments about these complaints.
“There are no specific regulations on requesting companies to hire their own archeologists and conduct their own field research, but a situation like this is on a case-to-case basis,” he said.
Lujan went into further detail, explaining that, “Based off any indicators that are found on the property and in the case of cultural resources, it will automatically raise the likelihood of significant findings in the area and that’s when Guam SHPO goes into a more research-intensive approach in the efforts to protect what could potentially be there.”
Lujan said that when research has been done on what was previously studied in an area or adjacent to a property, this is what Guam SHPO likes to call the “area potential effect,” which is the area located within a quarter mile radius. This research, according to Lujan “is what Guam SHPO draws of off, but we won’t know until further things are done whether it’s research ahead of time or things are found during a project itself.”
Lujan said he understands the frustration these companies have with the long wait time, getting additional resources and paying out of pocket, but he said that “the government is not in a position to do comprehensive archeological research especially with the lack of manpower and resources to do so.”
He said, “Archaeological studies must be done even if the government is not equipped to do so, otherwise companies will be waiting a long time for permit approvals if they wait around for the government to conduct these studies as opposed to sourcing their own.”
Lujan also shared with the Journal some good news.
Guam SHPO is expecting two new archeologists in the upcoming weeks to help with the current backload it has been faced with for years, and will continue to recruit more help to speed things up, he said. mbj
