PHILADELPHIA — The Third Circuit Court today kicked an environmental group’s challenge to a planned third St. Croix casino hotel back to the V.I. Superior Court for further findings, ruling that the activists had to show how they were allegedly injured before the case is ready for federal appellate review.
A federal three-judge panel said the territorial court must find out how a development permit given to Golden Resorts by a land use board has adversely impacted the Virgin Islands Conservation Society Inc. in order to “trigger” the Third Circuit Court’s participation in the case, according to Law360.
“Yesterday’s ruling was procedural,” Simpson told the Virgin Islands Free Press. “The court sent the case back to the Superior Court because it said my client must demonstrate that it had “standing” to appeal, even though it found that VICS had the necessary standing at both the Superior Court and Appellate Division levels.”
Simpson, who represents the VICS, analyzed the Third Circuit Court’s decision for V.I. Free Press readers.
“The Virgin Islands Conservation Society is still studying the decision but sees it as a minor bump in an already long road,” he said. “Ultimately, the Society is confident that it will show the requisite standing on remand and eventually get a ruling from the Third Circuit on the merits.”
“From an appellate practitioner’s standpoint, the decision may have far broader ramifications. The Third Circuit concluded that when a party gets to an Article III [of the U.S. Constitution] court from a non-Article III tribunal [such as the District Court of the Virgin Islands, which is created under Congress’ Article IV power to regulate the Territories], the party must show Article III standing. If that conclusion is correct, then, in addition to applying to appeals to U.S. Courts of Appeals from decisions of the District Courts of the Virgin Islands and other territories, the decision applies with equal force to appeals to the Federal Circuit from: the Court of Federal Claims; the Patent Trial and Appeal Board; or the Merit Systems Protection Board to the Federal Circuit; and it would also apply to appeals to any of the U.S. Courts of Appeals from decisions of the U.S. Tax Court. I am still studying the potential reach of the decision. For example, it would seem that it would also apply to appeals from a bankruptcy court to a U.S. District Court.”
“While the existence of constitutional standing will likely be evident in most cases, there may still be a number of cases where a remand will be necessary to establish whether or not standing exists. It will be interesting to see how this case is applied in the future.”
It has been a protracted legal battle between Golden and the environmental group — with the last judge’s ruling coming in April of 2020. The attorney representing developer Paul Golden said there may be more to come for the plan to increase the island’s number of hotel rooms and to promote gaming on the Big Island.
The last court ruling came April 9, 2020 from the appellate division of the District Court of the Virgin Islands, in favor of Golden. Simpson noted then that the appeals court ruled in 2020 but first considered the case nine years ago, in 2011.
The named defendant in the case is the Board of Land Use Appeals. The Conservation Society filed a civil action against the board, after they sided with the government entity that granted a permit to Golden by default.
Attorney Treston Moore, representing Golden, said “It’s always been understood that Golden won because of the St. Croix [Coastal Zone Management Board’s] failure to hold a decisional meeting (within the required time) after the ruling on the permit was made. It went up to the Board of Land Use Appeal and BULA said you didn’t make the decision in time.”
After that, Moore said, the Conservation Society took its case to Superior Court where Judge Maria Cabret declared the permit valid. From there, the case went to the appellate division on a writ of review.
At the heart of the legal battle is the future of Great Pond Bay, a prized environmental site and home to the island’s second largest salt pond. In the early 1990s the Department of Planning and Natural Resources declared the site one of 18 Areas of Particular Concern.
Such areas were designated based on natural resources, recreational use, cultural importance, mineral resources or hazards present on the site. Environmentalists on St. Croix mounted opposition to Golden’s Gaming’s plans to build a six-story hotel and casino on 297 acres in Estate Great Pond.
Now that appellate judges have published their ruling, Simpson raised the prospect that a development may proceed. Golden lost the property to foreclosure but the permit is, “in the hands of a hedge fund that lent him the money,” Simpson said. “I think they’re still hoping to use the permit.”
Moore declined further comment on the matter, saying he would have to consult with his client prior to making a statement.