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Thursday, October 21, 2021
HomeCommentaryOpinion: The St. John Coastal Zone – Who is in charge?

Opinion: The St. John Coastal Zone – Who is in charge?

The floating Cowgirl Bebop lounge would be located between Grass Cay, on the left, and Mingo Cay, center. (Source photo by Amy H. Roberts)

“The Legislature hereby finds and declares that … the protection of the natural and scenic resources of the coastal zone is of vital concern to present and future residents of the United States Virgin Islands.” 12 VIC § 903(a)

“The Legislature hereby determines that [a] basic goal of the United States Virgin Islands for its coastal zone [is] … to promote public participation in decisions affecting coastal planning conservation and development.” 12 VIC § 903(b)

With these two sentences, in 1978, the 12th Legislature of the Virgin Islands of the United States of America declared a goal and policy for management of our precious coastal zone: to protect natural and scenic resources with maximum public participation in critical decisions impacting these resources.

The St. John Coastal Zone Management Committee is composed of members who all live on St. John and are tasked with the responsibility of making decisions regarding major uses of St. John’s coastal resources. In October 2020, the St. John CZM Committee decided, unanimously, that the placement of a 5,000 square foot floating bar in treacherous waters between the uninhabited nature preserve of Grass Cay and the uninhabited and protected Mingo Cay, was inconsistent with the goal of protecting natural and scenic resources.

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The St. John CZM Committee found, based on extensive public testimony, that the location of the proposed floating lounge was unsafe for the public, presented threats to reefs and shorelines and that there were alternative locations that must be thoroughly considered before approving placement at the proposed site.

The St. John CZM Committee found that the economic benefits that the applicant claimed would accrue from the venture did not balance the anticipated harm to valuable public coastal resources.

A satellite photo shows Grass Cay to the left and Mingo Cay to the right. Cowgirl Bebop is proposed to be located in the shallows near Mingo Cay. (Image from Map Geo)

So how could it possibly be the case that five individuals on the Board of Land Use Appeals, only one of whom lives on St. John, were able to overrule the St. John CZM Committee and approve a permit for the precise activity that the St. John Committee had denied?

There are only two ways in which the Board of Land Use Appeals is allowed, under law, to overrule a decision by a CZM Committee. The first is if the CZM committee decision was “arbitrary and capricious” which means that it was not based on findings of facts, testimony, data or other evidence. The second is if the decision was based on an error under the law. In this case, it was clear that neither of these applied.

The St. John CZM Committee decision was made after reviewing the applicant’s Environmental Assessment Report (EAR). The decision was made after listening to hours of public testimony. The decision was made after reviewing DPNR recommendations. After all of that evidence was consumed, digested and evaluated, the committee made a well-considered judgment that the requested permit was not consistent with the goals, policies and standards of the Virgin Islands Coastal Zone Management Act. This was clearly NOT an “arbitrary and capricious” decision.

The committee members did their job. They did it during the peak time of the COVID-19 pandemic with all of the complications created by that. They did their job professionally and thoroughly. Although I was not personally a member of the St. John CZM Committee at the time the decision was made to deny the permit requested by Cowgirl Bebop LLLP, I had been a member of the committee during all of the meetings and deliberations leading up to that point.

The statutory function of the Board of Land Use Appeals is to review the propriety of decisions made by local CZM committees. It is clearly NOT a function of BLUA to substitute its own judgment for the judgment of the committees. As with all things in life, two reasonable people may reasonably come to different answers to the same question. This does not mean that one is right and one is wrong. It simply means that they may look at different sets of factors, they may give different weights to conflicting evidence, they may assign different credibility to contradictory sources of information. In the end, it is all about judgment and the Virgin Islands Coastal Zone Management Act gives our local island committees the task of making those judgment calls.

There is no doubt that the decisions regarding the Cowgirl Bebop floating bar will ultimately be resolved in the court system of the Virgin Islands. It is unfortunate that the people of the USVI, as well as the applicant, will have to endure lengthy delays and legal machinations when a dedicated group of St. John residents made their decision, according to the law, and in a timely manner. Anyone who listened to the BLUA hearing on this permit must have come away with the clear realization that BLUA’s vote was not about legal errors or capricious decisions, it was purely about the personal preferences of five individuals, only one of whom lives on St. John.

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