mr simpson to go forward for the opponent thank you your honor good morning i may please the court and or simpson on behalf of the virgin islands conservation society which i will refer to as of your argument i made pop in at some point but as a threshold matter the pedal may be interested in acquiring on the subject of article three jurisdiction here of course we all know it your burden to establish any party's burden as as plaintiff says a filing party to establish article three pointed out that vic's was an aggrieved party under the coastal zone management act because it had appeared at the initial coastal zone management hearing and also submitted written comments and under the i can't remember the exact that's the let me give you the ending before the territorial courts but we're concerned with article three i'm sorry chief that you go oh no i was i was going to yield to you  advocacy organization that has represents individuals and organizations that have concerns about the environment of the u s virgin islands it has appeared in numerous cases in the virgin islands and in this court advocating on behalf of the environment of the virgin islands and i i believe don't think there is an article three issue here anyway because this is coming up through this  under the court's continuing jurisdiction of an appeal from the appellate division under the old jurisdiction of the court well that may or may not be we can get into that in a minute but let's assume that it's not you know is there really a concrete in particular rise to injury for your particular client your honor and listen i know this is going oh this is a curveball this is not we didn't send you a letter here but we are charged with the responsibility you always examining our own jurisdiction in determining that we have it and why you're certain late correct that  standing of an environmentalist organization i think there is plenty of case law that would establish that that standing but i haven't looked at that has never come up i've represented that some number of cases and it's never come up so i am kind of surprised and and council we we appreciate that as we said that this is something that we hadn't talked about earlier and it hasn't come up in the prior stages and that is largely explainable d as just you care is indicated by the fact that we are now in an article three court and so the prior aspects of this proceeding would have been looked that under different standards or one created under nine hundred and fourteen a so as you give additional thought to this and i will certainly welcome that consider how either xix itself or individuals represented by vick's satisfy the forepart test for standing that is for millionaire environmental actions going back to at least lou on and part of that will you know and perhaps will flesh this out i suspect we will in written questions part of that will also deal with whether or not merely participating in each and see proceeding is sufficient to grant article three standing there so they're certainly the decision a lot about whether or not if congress creates a wider zone of interests for participation in a regulatory action whether that alone is going to create the kind of injury in fact that can be fairly traced to a redress of injury will suffice in article three courts so again i know this is well beyond what you're prepared to discuss today but i just wanted to put those thoughts in your head for further for further zation our members how is membership constituted it is a dues paying organization there are individual members and there are also environmental organizations within the territory that are members that are dues paying members such as the st croix environmental association and the environmentalists or chaison of st thomas and st john ok thank you i just had a follow up on something that touched on of the virgin islands if a record remand perhaps it is properly here maybe you can address which which path you think is appropriate yes trotter and that actually came up early on in the proceedings and the appellate division so that it could complete its review well i'm not so sure how clear that is you know i think it was a pretty it was a pretty direct opinion about how they basically abdicated they didn't they abdicated their responsibilities of moving to the board now they didn't do the waiting and likewise so might have been more than just a you know makes me additional findings or support some findings i think i think it could be argued that it was a straight out you  thought that it was a record remand and i think i don't i don't believe that there was ever an argument made that that was to the contrary by any party obviously we're talking about subject matter jurisdiction that doesn't matter but i think that does reflect the understanding of the fully in the briefing by one of the talk about the two thousand and eleven remand so as i understand it the superior court sends this matter back to the committee again in two one and it's not clear to me whatever happens after that so they get it back a nd time the spirit court says i still think you did it go back it goes back to the comm and it doesn't i can't see anything into the record as to what happens to that order some wondering if that's something you have any insight into my recollection is that  there was not for a further response from the caesium committee i could be wrong about that i would have to check double check the record on that it was our position it was very position that  caesium committee had complied with the mandate we argued to the superior court that the only thing that should be done was that it should be sent to the appellate division for it to reach its subsequent  decision the superior court never ruled on that motion we had already filed the findings with the appellate division and i think the appellate division thought that what it received was compliant with its remand order and proceeded to reach that decision in the nd decision right and you see where that creates some potential trouble here that if it goes back to this d period of court in the spirit court sent  committee then then isn't the matter still still sitting before the committee and i agree with you that the appellate division doesn't deal with that question but what it is out there right because it affects ever getting a ruling that it did not have the jurisdiction to be determining whether or not cesium action was compliant with the appellate division's mandate and that that was an issue for the appellate division and i think the  touched upon it is it no one seems to address that question i agree with the arguments you are making may have been available but it is not clear to me that anyone ever excepted them let alone will consider them let alone except i there so i again i don't want to i don't want to push it too far into an issue that may not have been the focus of your presentation and i i think i understand your position on this question thank you position and we think it is is founded in sound public policy that what that means is that the permit applicant is in no better position than if it had received a favorable vote from the caesium committee after after the hearing with with a formal find findings rendered by the caesium committee so what does that mean from a practical standpoint well i think there is it means there are still two different ways that a permit application can be challenged after a favorable vote of a committee st if the application doesn't meet the requirements of law such that it shouldn't even really have been before the committee or that because it doesn't meet the requirements of law that committee has no choice as a matter of law but to deny the permit application that also that review should also apply in this situation and just to give you an example the caesium act requires that an environmental are could conclude that it the application is complete and that could go to the caesium committee and if they don't have a quorum to have a deciding vote after a public hearing that would be deemed approved and i submit that that deemed approved permit just as if the committee did have a quorum and did vote would be subject to review to say this never should have even reached the committee and the permit is invalid  and should be vacated and the nd way that it could come before still be reviewed if it was a deemed approved permit is in the situation where there was no way that granting discretion to the committee that it could have approved the permit as a matter of law so i think what that means as a practical standpoint is that if there is conflicting testimony and evidence at the hearing that gets resolved in the favor of the permit applicant and presumably that results in an affirm and some of the permanent on the other hand if there are issues where there is only evidence against the application and the applicant has not addressed those i think that could result in a reversal of the p t on the evidence before the committee because the committee itself could not have granted if it was voting could not have granted approval of the parliament the board of land use appeals and golden resource essential he say no that's not how it works that's carte blanche if the board can't get a quorum then no matter what's wrong with this permit it gets approved and it cannot be challenged on appeal i think that's bad public policy i think it invites  mischief and i think it you know because all you have to do to get an approval through is to have a member of the caesium committee not show up and deny the committee a quorum at at the vote which is usually coming very close to the end of the thirty days for a decision after the public hearing i think i think that's just contrary to what is the statutory intent reflects which is clearly to protect the  environment the solution i offer is consistent with the language because all it says as the permit is deemed approved and just as a vote of the committee would deem it approved so i submit that any any issue that could be raised upon a proper vote of the committee on appeal can be raised on a deemed approved permit with the exception that there may be less room to challenge decisions  where it comes down to the discretion of the committee with so i think that is the fundamental issue in this case and that if the court agrees what should happen is the matter should be before it can submit an application for a new permit so i think the permit should be read very long time counsel has any work begun on this project no your honor which is the subject of a separate case the other issues we've raised in our brief which i'll touch on briefly i think they're adequately brief the waiver but whether or not a statutory benefit can be waived i think on supreme court shows that indeed if that is a benefit of the person who's waving the benefit it the statutory benefit can be waived that is very solidly supported by u s supreme court precedent and i think it's just as i say in the brief quote in the th circuit decision as a matter of good old common sense if if an applicant realizes that my permit might be denied if i don't give the season committee more time and submitted initial information as to the applicants benefit to be able to say yes let me waive that benefit and have more time a my application and and hopefully get a gain approval what about the scope of the waiver though here it seems that you would want to construe it is really open ended didn't they come up with dates in that letter they came up with dates that were contention to a pawn with network aspirations if anything the golden resort said it is my hope that our hope that we will submit responses to the public comments by a certain date and that it is our hope that cesium would reach a decision within seven days of that specific date well gulden didn't submit its responses by that specific date and clearly did not view that as a deadline and so i i do think there are i don't think there is any just legitimate dispute that golden requested a waiver of the deadline and that waiver was granted there may be a dispute as to how long that deadline was extended and i think that is something that cesium would have to resolve but it but where the dispute is about the length of that i don't think that should result and a deemed a proof permit because the statutory penalty if you want to call it that of deeming the permit approved is premised upon that thirty day deadline and golden resorts clearly waive that deadline and it's letter it says we want to waiver of that deadline and there's only one deadline in the statute they cite doesn't matter that then that golden follows up with their february th letter that says he just so we're clear this isn't a general waiver which is kind of what you're saying it is a general waiver it doesn't matter because after the fact they've already they've already cut and if they're correct that's after the deadline the thirty day deadline has passed and so it cannot you know it i do love to be able to take one position before the deadline and then take a contrary position after the deadline but that's not that's not fair and that's certainly not fair to the caesium committee which is the committee that is entitled to deference on this and as i pointed out in the brief there is a december rd letter predates all of this where golden would like to greet this august and honorable panel of the united states court of appeals for the rd judicial circu and i also am grateful that i had been given an opportunity to argue as well we are somewhat i am confused and i see that the court has some concerns about the two opinions from division of the district court and the one opinion that came out in two thousand december of two thousand and seven upheld that my client did not wave hits in title meant to a decision hearing within thirty days the public hearing about it also remained did it not to the board of land use appeals because the board of land use appeals issued the conditions both or the a committee caesium committee for them to provide their particular findings in conclusions as they were initially statutorily required to do well when the committee went maverick carefully considered the documents that had been previously provided on behalf of the sink or a committee and on the documents that had been provided on behalf of gordon resorts and it in  six of those findings of facts in which its it says it had sought the participation of the parties in preparing proposed findings of facts but also in preparing  the general conditions and the special conditions to the actual permit that was issued and there were serious conversations and discussions with tween counsel for the caesium committee and my my office regarding what those special construction condition should be and the board of land use appeals essentially adopted all of them and some of those findings in conclusions came from the initial of findings in can pollutions and the analysis submitted by the staff so the cesium and that was use appeals had benefit of this particular findings and facts and conclusions that the appellate division of the district court remanded to the superior court for this very court to go get would have already had from the caesium committee staff and what happened as i recollect was that the cesium staff it had it had new cesium members it had new staff people folks had retired after all this time and so they devolved back to the initial findings that were prepared by the staff may th two thousand and four and that's i believe what was resubmit and it appears that when the effect of saying nonetheless one of the current statutory scheme where the committee fails to take time reaction on a developer's application the caesium act endorsers the summary issuance of a coastal zone development permit by default without committee review are in that was clearly not the case the st time it went up on appeal and from the decision of the territorial court in that two thousand had not submitted had not vetted the application and that was the a misconception that was repeated in its opinion of two thousand and twenty eight did use the staff opinion they did that they did use it in the siding with the conditions should be both general and special conditions and they have every court up to this one has found that the request for an extension was not a waiver of this very serious statutory right in obligation it's not just the environment it's balanced against the rights of the developer and if what happened as in this case that the elevators rights are never determined for twenty years it is a mischaracterization of the law to entertain the belief that this developed was treated fairly improperly over the course of this case is he never waived he asked by letter to extend the the caesium committee allowed after the public hearing allow the public an additional seven days to write letters and to supplement their concerns and to get those to the committee there were they were extensive there was a very extensive  and the developer golden resort's wanted adequate time to specifically addressed each one of those with particular getting objections and they did there was a bit too the committee believe on february th they asked for an additional week and i think the brewery six was the date that they submitted those right written responses and then the committee set up this date on may th actually there was an intervening date that my client came down for and specific time to be here to attend the decisional hearing and they they had quorum problems they could have had problems for years and that would not have addressed the rights of the developer so it was necessary for they statute to have that provision at nine hundred and ten dollars to where it had to be addressed within thirty simpson can tell you as well there is in my experience i believe this is the only time because in my experience this is the only permit i received by default so let me be specific that's  will not generalize some things i'm aware of that i'm not a part of ok did it some point in time raise some issue about that it may have been over the record i'm trying to recollect because of my materials were reclaim by my client and for him to use in other cases but i do know for instance that when the st review and order him out of the appellate division of the district court i think i tried to appeal and the merits of it division of your court correctly noted that remained is not something like a final order and so therefore i had to dismiss that appeal and participate in this situation that didn't go to the board land use appeals who they've been in it put together all the conditions they were the ones that this reman should have gone to but instead it was sent to the it was sent to the the committee synchro a committee and the synchro a committee it really didn't do anything they they've already made a significant ruling that my client did not wait that was that that was done both times in twenty million seventy two thousand and twenty but they re mandate it for completion of a record that was already complete that already had the committee's findings and analysis and so i think i would treat it more as a as a remand on the record ok supreme court were those laws set in place where the supreme court would start taking appeals from matters and that the ones before the appellate division would remain with the appellate division so there's a there's a bit and really the c c m is the entity in which the legislature has vested the power and it has the the the no or no all the staff to to really go after and to look at these permits hashed out between the parties and very specific and very general conditions were attacked in addition to that even after a permit is indeed proved and conditions are are still by the of you know i'm one hand you have a permit that is approved in a timely fashion and that balance is one interesting these are the developers and their investments and there you have both the board of the news appeals and the c c m committees with the ability to attach conditions and to ensure that the environment is protected so you know and so you have a balance between both goals there and so rather then go back and review a permit as if it were  decided as on the merits as a matter of fact if you go back in now take a permit that was deemed once you know once the the board decides that the the big community has not lived up to its statutory mandate it's completed that part of it's it's it's it's reviewed and as far as the facts as far as the balancing the environmental of the statute but if you're going to if you're going to go back and look at the merits as if it was decided on the merits then what is the point section i tend to be for because in any point in time as i said in any point time if you don't have a corm war someone zaps in for whatever reason you just you know it's  so is your argument really that if and if you permit application is granted by default it's basically bullet proof it's not bullet proof because the the the it could not you know the case on the merits in addition to that you know i would submit that you know this appeal similarly presented issues regarding the substance of nature of their permit then this court would not address those issues and i think that they dismissed similar situation as it was in the one thousand you not sure bay case there are any other honor i don't think that the the provision that allows conditions to be attached which applies to a permit that is voted upon or one that is deemed approved is sufficient to address a permit that is inadequate as a permit application that is inadequate as a matter of law and judge made raised a point that the application has to comply with the organic act and if you if the permit is deemed approved but did not comply with the organic act you cannot very well apply a condition that says you must apply it you must comply with the organic act it's subject to review based upon the record that was before the c z m with respect to the the remand and the factual findings developed by or adopted by the board of lanyards appeals  i think a couple things need to be pointed out the board of land use appeals approved a permit for more hotel units then was requested in the application as well as ultimately submitted to the caesium committee so clearly the review provisions process what did not work in this case the the bottom line is a snap and does not happen frequently council this is the st time in that i'm aware of that a permit has been deemed approved in the virgin islands and i've been doing pro bono environmental work for thirty years now and as the st time i've encountered it and i never heard of one prior to that how about how about granting an kind of a bizarre situation especially as i pointed out in the final section of the brief we have a situation here where even as requested in the modification by gold and at the cesium level for i think it was five hundred and seventy and i would note that in sixteen years of mitigating this there's been no defense and no answer to that section of my brief or i talk about all the inadequacies of this permit application in in the normal situation to the extent there is a normal situation where a permit or a permit application presents a proper application a complete application an application that addresses the cumulative effects of development and all of the requirements of the act if that permit is deemed approved when it goes up before the board a land use appeals if it goes up before the board a land use appeals there's very little for it to do because the record support the issuance of the permit as deemed approved but the issue here is that it doesn't support the issuance of a permit period and you know the one thing that i tend to  i think we need to understand why the appellate division remanded for factual findings it wanted factual findings by the caesium committee it wasn't just going to adopt the recommendations of the wanted the committee that is charged with making the determination to make those factional findings in and my opinion that that should not have happened i think when you have a team to prove permit it should be here it should be reviewed on the record as i've said if they have been ends is in is in dispute then i would expect that to go in the favor of the developer if it's uncontested and could not be granted as a matter of law then it would go in favor of whoever is opposing it it i don't think there needed to be a full record remand to make those factual findings i can't say that it's an error of law to have done that i just think it's a little bit of a strange situation i think the borderline use appeals the supreme court and then the appellate division should all have reviewed this on the record that was before the c c m committee and ask the two questions did the application as presented to see z m meet the requirements of the if yes you get over that hurdle if no the permit is vacated then if it if it gets over that hurdle the next question is does the evidence as presented with the evidence as presented have allowed a caesium committee to grant this permit if it had a quorum and voted on it and if the answer to that is yes then it's gotten over the nd hurdle and now it probably does have a bullet proof permit but if the answer to either of those functions is no then i think the permit  an order which requests supplemental briefing receive all of you the panel will discuss the scheduling of that if you can anticipate receiving a directive forthwith in that regard will not at this point be taking the matter under advisement we will take it under advisement after receipt of the supplementals in the meantime we thank all of counsel for your argument in this been an issue and of course it is probably a good thing for the islands and for us for everyone that you have now such an effective supreme court through the system and i hope there are not too many i hope there are not any others with this long it tail if you will to them thank you all very much