How did we get into this mess? There are lessons to be learned.
If you’ve read the recent post describing extensive problems with their Army Corps of Engineers permit application, you might wonder how the Summers End Group ever managed to get seven Senators of the 33rd Legislature to ratify their CZM permit and Trust Land lease for a mega marina in Coral Bay. A bit of history is revealing so let’s take a step back in time.
Although the CZM permit for Summers End was approved by two members of the St John CZM Committee in 2014 and subsequently affirmed by the Board of Land Use Appeals in 2016, Governor Kenneth Mapp refused to approve the permit during the four years of his term. As he told residents of Coral Bay prior to his election, Governor Mapp believed the Summers End marina was too large, was inappropriate in Coral Bay, and he didn’t think it would be approved by the Army Corps. So, in spite of repeated requests from Chaliese Summers, Governor Mapp did nothing to advance the marina CZM permit during his four years in office.
Shortly after Albert Bryan Jr. was elected Governor in 2018 he was approached by Chaliese Summers and urged to sign off on the Summers End Group CZM permit. Without any public notice or discussion, behind closed doors, Governor Bryan did exactly what Ms. Summers requested and in March 2019 he placed his signature on the CZM permit and forwarded it to Senate President Novelle E. Francis for legislative ratification.
The first legislative hearing on the Summers End Group (“SEG”) permit was held during October 2019 in an all-day Committee of the Whole meeting in Cruz Bay. There was in-depth testimony provided by both proponents and opponents of the marina. By the end of the day it was apparent that there were extensive problems with the scope and the structure of the CZM permits. The separate land and water permits had not been consolidated, as required by the Board of Land Use Appeals. The permit included parcels of land that had been sold to third parties. The trust land occupancy fees were calculated incorrectly. All in all, the permit signed by Governor Bryan was unsuitable for ratification and it was returned to the Governor in December 2019 accompanied by a letter from Senate President Francis stating that the Legislature would not ratify the permit until all of its problems had been addressed.
The December 10, 2019 letter from President Francis to Governor Bryan concluded with these words: “In short, the project as currently proposed by Summer’s End Group, LLC cannot be developed under the Major Coastal Zone Management Permit No. CZJ-04-14 (W) and its accompanying plans, maps and drawings. It is the consensus of the Legislature that the marina project proposed by Summer’s End Group, LLC has not been yet submitted for CZM review, thereby rendering this permit and all related processes invalid.”
This was the point where the “train went off the tracks”. The Virgin Islands CZM code includes very specific procedures for modification of approved CZM permits. The permit that was rejected by the Legislature needed to be modified – parcels needed to be removed, trust land fees needed to be corrected, the overall scope of the project needed to be redefined – and this should have, according to the CZM law, required resubmission to the St John CZM Committee for review and approval of the modifications.
However it appears that Chaliese Summers did not want to follow the process established in the law. She knew that Governor Bryan was “on her side” and she presumably knew that she was not likely to have as easy a time getting through a St John CZM Committee with five members as she had getting past a committee with three members in 2014 (one of whom partially recused himself because he had been the attorney for SEG). So Ms. Summers, together with her advisors, concocted a scheme to have the Governor modify her permit to overcome the objections of the Legislature and to bypass CZM approval.
There is no authority in the Virgin Islands Coastal Zone Management Act for the Governor to modify a permit in order to suit the wishes of a developer. But that didn’t stop either Summers or Bryan. The permit was modified by Governor Bryan, without CZM consent, and sent back to Senate President Francis late in December 2019 for a second bite at the apple.
According the the VI CZM law, an action by the CZM Committee or by the DPNR Commissioner must be appealed to the Board of Land Use Appeals before a lawsuit can be brought in Superior Court. The extraordinary, unprecedented, and illegal action of Governor Bryan, in concert with Chaliese Summers, defies description. How can the Governor simply ignore the plain language of the law and rewrite a permit to suit the wishes of the developer, in order to get it through the Legislature? Simply put, that is not how the CZM law works. If a developer wishes to modify an unapproved CZN permit a new application needs to be submitted, or a permit modification request for an approved permit, not a meeting with the Governor to do your bidding. But things with SEG are apparently never “by the book.”
To complicate matters, the Governor refused to send me copies of his modifications and correspondence with the Senate President. After repeated requests, citing the Virgin Islands Public Records Act, over a period of several weeks, I was stonewalled. Appeals to the Board of Land Use Appeals need to be filed within 45 days of the action being appealed. Finally, on January 27, 2020, with only 4 days left to appeal, I was sent copies of the Governor’s modification and immediately requested that the Virgin islands Conservation Society file a BLUA appeal. The appeal, filed on January 30, 2020, identified the totally unorthodox consolidation and modification of CZM permits by the Governor, pursuant to a request from Chaliese Summers, and facilitated by DPNR.
In early 2020 the Covid-19 pandemic had begun to shut down government operations in the USVI, and the illegally modified permit took some time to come before the Legislature. 2020 was also an election year for the Senate, with all Senators gauging their actions based on the likely reaction of their constituents in November. The Summers End permit was a political hot potato. Although the vast majority of St John residents who spoke up about the marina were clearly opposed to the project, some prominent St Johnians – notably ex-Senator Robert O’Connor – were adamant supporters (and investors). The Democratic Party apparatus had decided, largely based on Mr. O’Connor’s urging, to openly support the Summers End Group and applied pressure to the Democratic majority of the Senate to “toe the line”.
Senate President Francis scheduled a second Committee of the Whole meeting on July 7, 2020, to review the so-called “modified and consolidated” CZM permit that Governor Bryan had drawn up at Chaliese Summers’ request. Although this meeting was heavily coordinated with Summers End and involved an extensive cast of SEG lawyers, consultants and advisors offering hours of supporting testimony, it was only reluctantly opened to public participation. After numerous requests, the day prior to the scheduled meeting I received an official invitation to provide three minutes of testimony. The public was limited to brief testimony from five individuals. That was how the deck was stacked in favor of SEG in July 2020.
It was abundantly clear that Senate President Francis did not want to hear from marina opponents. On the day of the meeting, when I asked his indulgence to briefly extend my testimony, a common courtesy granted to most every testifier, I was abruptly shut down and told that he had heard enough from me.
In contrast, Chaliese Summers and her gang of hired advisors were given unlimited speaking time. The main message they attempted to get across was that all of the prior problems identified by the Legislature in their CZM permit had been “fixed” with the modifications made by Governor Bryan. The fact that those “fixes” were not authorized under Virgin Islands law was never mentioned even though I had written to the entire Senate identifying this fatal flaw in the documents under review. DPNR disavowed any involvement in the permit modifications.
Notably, Ms. Summers and two of her lawyers erroneously claimed that the Army Corps permit for the Summers End marina was going to be issued by the Corps “imminently” and the only remaining obstacle was approval of the CZM permit and Trust Land lease agreement by the Legislature. These statements were made by Chaliese Summers and provided in written testimony by two of SEG’s lawyers. Through their spoken and written testimony, Chaliese Summers and her paid advisors misled the Legislature and misrepresented the actual status of the Army Corps permit, which Chaliese and her lawyers either knew, or should have known, was nowhere near issuance.
A letter from Attorney Robb Fox providing detailed information on the actual status of the SEG permit application with the Army Corps was totally ignored. Written testimony from Coral Bay property owners who had been damaged by SEG’s misrepresentations over many years was totally ignored. The July 2020 meeting of the Committee of the Whole was far in a way the most unbalanced public hearing on a CZM permit I had ever witnessed before the Virgin Islands Legislature.
On July 21, 2020, two weeks following the Committee of the Whole meeting, a lawsuit was filed in Virgin Islands Superior Court by Save Coral Bay, naming Governor Albert Bryan Jr. and the Summers End Group as defendants. The lawsuit alleged that the permit modifications made by the Governor were illegal, that the consolidation of the land and water CZM permits without involvement of the CZM Committee was illegal, and that there was no valid permit for the Legislature to ratify.
In hindsight, Summers End apparent strategy to fight the Save Coral Bay lawsuit was simple: they believed that if the Legislature ratified the permit, regardless of its legality, the Legislature’s action would essentially make the permit legal. So the strategy was to delay hearing the lawsuit until the permit could be ratified and signed into law by the Governor.
There was little or no political will to act on the SEG permit in the months following the July Committee of the Whole meeting and leading up to the November 2020 general election. The smartest political move was to do nothing and avoid angering anyone.
Just two weeks following the November 2020 election, during the lame duck legislative session, the Summers End Group CZM permit was brought before the Legislature for an up/down vote with no debate or discussion. The bill was introduced by Senate Majority Leader Marvin Blyden. It was strongly supported by lame duck Senator Myron Jackson and Senate President Novelle Francis. With several Senators absent, as is typical in a lame duck session, and with others present but knowing they would not return in January, the bill ratifying the Summers End CZM permit and twenty-year trust land lease was passed on an affirmative vote of seven Senators.
Voting in support of the Summers End Group project were Senators Novelle Francis, Donna Frett-Gregory, Marvin Blyden, Myron Jackson, Steven Payne, Javan James, and Oakland Benta. Remember those names.
Governor Albert Bryan Jr. signed the bill authorizing the 20-year trust land lease and the CZM permits on December 31, 2020. One week later, on January 7, 2021, attorneys for the Governor and for SEG filed a motion in Superior Court to dismiss the Save Coral Bay lawsuit. Their argument, in a nutshell, was that it didn’t matter whether what the Governor did was legal or not, the fact that the Legislature ratified it made it all better. In the words of their motion to dismiss “it is now a moot point whether Plaintiff’s interpretation of the Governor’s authority under §911(g) was arguable; the Legislature has now very specifically authorized and ratified that action.”
The ensuing dismissal of the Save Coral Bay lawsuit in Superior Court is now being appealed in Virgin Islands Supreme Court, which is scheduled to hear oral arguments in early November. The claim that the Legislature can essentially do anything it wants and it is automatically legal is not a valid argument. There are overriding legal principles at stake in this case, all of which will come to light during the appeal in Supreme Court.
So where exactly are we? As you’ve seen from prior posts, the United States Army Corps of Engineers transmitted a letter to Ms. Chaliese Summers on September 13, 2021, identifying an entire litany of errors, deficiencies and continuing problems with the SEG permit application. The Corps is requiring detailed studies covering a multitude of topics. The Corps is requiring an objective analysis of alternatives. The Corps is not laying down and allowing Summers End to simply paper over all of the problems identified by federal agencies, identified by the public and identified by their own analysis.
There is ongoing litigation with Summers End on multiple fronts. The legality of the approved permit is being challenged in Virgin Islands Supreme Court. SEG’s claim to hold multiple properties in Coral Bay hostage to their ill-conceived plans is being challenged in three different lawsuits involving local property owners who were misled by SEG. The original 2014 CZM permits are still in litigation through lawsuits filed by the Moravian Conference and the Virgin Islands Conservation Society.
Our focus now needs to turn from stopping Summers End, to advancing Coral Bay. There is little doubt that Chaliese Summers and Rick Barksdale will eventually be defeated by the courts and the federal government and by their own investors. But Coral Bay has been held hostage for almost a decade. Local St Johnian families have suffered from years of economic abuse. We need to rid ourselves of the scourge of unscrupulous developers, and allow the interests of native St Johnians to prosper. This will be my focus in the months and years ahead.