The V.I. Supreme Court issued a ruling Tuesday that removes one potential roadblock to the Summer’s End Group’s marina project in Coral Bay, St. John. Judge Rhys Hodge upheld a ruling issued last May by the V.I. Superior Court.
The lawsuit, filed by Save Coral Bay, a community action group opposed to the marina, challenged the governor’s approval of modifications made to the project’s Coastal Zone Management permit. The modified permit was subsequently approved by the Virgin Islands Legislature and signed into law.
Save Coral Bay filed an appeal with the Supreme Court 10 days after the Superior Court’s ruling last May, but last week the top court ruled that the case was moot.
The judge’s decision was not made on the issue of whether or not Gov. Albert Bryan Jr. broke the law when he modified a CZM permit and then sent it to the V.I. Legislature for approval; rather, Hodge’s decision was based on procedures set forth in the Revised Organic Act, which in the absence of a constitution, sets the framework for Virgin Islands law.
Hodge wrote, “Save Coral Bay maintains that the Legislature cannot ratify an action by the Governor which is contrary to statute … But this is not a case where Governor Bryan acted contrary to a statute and then he or another Executive Branch entity attempted to retroactively ratify his own conduct.”
“Instead, this is a case where the Legislature ratified an action taken by Governor Bryan. Therefore, the proper inquiry is not into the power of Governor Bryan or the Executive Branch, but the power of the Legislature itself to excuse violations of the statutory law,” Hodge wrote.
“Even if this Court were to assume — without deciding — that this procedure differs from that set forth in the Coastal Zone Management Act, the passage of the CZM Act by an earlier Legislature could not deprive the 33rd Legislature and Governor Bryan of their constitutional authority to change that law in the manner provided for in the Revised Organic Act,” Hodge wrote.
“Whatever the merits of Save Coral Bay’s claims under the law as it existed at the time it filed its complaint, the subsequent enactment of Act No. 8407 rendered those claims moot. Therefore, we affirm the Superior Court’s May 12, 2021 order,” Hodge concluded.
David Silverman, president of Save Coral Bay, said he was trying to make sense of the ruling. “It is my understanding that the Chief Justice said that regardless of whether or not Governor Bryan followed the legal procedure for modifying CZM permits when the Legislature ratified what he had done, it made it all legal. The Chief Justice decided that the action by the Legislature effectively amended the CZM law for Summer’s End Group.”
Silverman said the decision set a “truly frightening” precedent “because it says that any developer can go to the governor and convince him or her to issue a permit without any Department of Planning and Natural Resources or Coastal Zone Management review.
“If the developer, hand in hand with the governor, can then get the Legislature to ratify the Governor’s actions, then the permit is considered legal. This is not how I understood our legal system to work. A process like that does not allow for any judicial review, which is one of the key checks and balances in government,” Silverman said.
When the Source reached out for comments to Chaliese Summers, the managing member of the Summer’s End Group, she said, “The Summer’s End Group appreciates the opinion issued by the Supreme Court. As the Superior Court had previously found, the Legislature ‘may repeal or amend a law codified in the Virgin Islands Code by enacting a law,’ and ‘this is precisely what the Legislature did in this case.’ And we thank the members of the Legislature for their support.”
Summers also thanked Bryan for his support, adding, “We believe that the governor’s action fully comports with the CZM Act, as he has stated with which both the Superior Court and the Supreme Court agreed.”
Summers mentioned the many hurdles the developers have gone through to get to this decision. “As we have testified, the Coastal Zone Management Act sets forth a process to complete review and administrative appeals in 225 days. It also permits appeal by writ of review, which contemplates a ‘speedy’ review. It is now more than 2,700 days since the Coastal Zone Permit was approved.”
The future of the 144-slip marina development now hinges on a decision by the U.S. Army Corps of Engineers as to whether or not to issue a permit for the project.
The project has been under review by the Army Corps since 2014. At one point, more than 20,000 members of the public sent letters opposing the project to the Army Corps, according to Save Coral Bay’s timeline of the project.
The Bryan administration, however, has fully supported the marina project, which the developers say will bring jobs and an upgrade in infrastructure to Coral Bay harbor.
The Summer’s End Group’s application to the Army Corps has been pending throughout the administrative and legislative action as well as legal challenges. In September 2021, the Army Corps informed the developers that further studies must be conducted before a permit could be issued.
Summers said, “The Summer’s End Group continues to successfully pursue its federal permitting through the Army Corps of Engineers and has every expectation that the permit will be issued this year. Summer’s End is diligently working to address any remaining requests from the U.S. Army Corps of Engineers and National Marine Fisheries in order to finalize the permit and bring this incredible development to St. John. Summer’s End is prepared to move the St. John Marina (upland and marina) into the construction phase immediately upon issuance of a federal permit.”
Silverman said Save Coral Bay has received the latest document submission sent to the Army Corps by the Summer’s End Group through the Freedom of Information Act. “This submission was in response to the letter of deficiencies sent to SEG by the Army Corps over six months ago (Sept. 2021).”
“Although the Army Corps required substantial new fieldwork and studies, it does not appear that SEG has conducted any of the studies requested by the Corps or the NOAA review agencies,” Silverman said. “The submission, amounting to close to 500 pages, appears to be primarily material previously submitted to the Army Corps, some with new explanations but no new studies. ”
Whether the matter can be pursued in federal court is unclear, according to Silverman. “On the other hand, what the Chief Justice wrote in the two-sentence summary that I read, is that no Legislature can bind the hands of a future Legislature. So even though Summer’s End now has a CZM permit and 20-year Trust Land Lease (which they cannot use without an Army Corps permit), the next Legislature might decide to correct the actions of the 33rd by rescinding that permit. So wrote the Chief Justice, if I understand him correctly.”
Editor’s note: This story has been amended to reflect that the Supreme Court decision does not allow the project to move forward now, but only removes one potential roadblock to the project. Others remain.