1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-9-1998

Tamarind Resort v. Govt of V.I.

Precedential or Non-Precedential:

Docket 97-7020

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Recommended Citation

"Tamarind Resort v. Govt of V.I." (1998). 1998 Decisions. Paper 41.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/41
Filed March 9, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-7020 

TAMARIND RESORT ASSOCIATES, A U.S. Virgin Islands 

Joint Venture consisting of TAMARIND RESORT 

CORPORATION, a Delaware Corporation, CULLIGAN 

PORSCHE, INC., a New York Corporation 

v. 

GOVERNMENT OF THE VIRGIN ISLANDS 

Tamarind Resort Associates ("TRA"), 

 Appellants 

Appeal from the District Court of the Virgin Islands 

(Division of St. Thomas) 

(D.C. Civ. No. 95-cv-00010) 

Argued 

December 9, 1997 

Before: SLOVITER, STAPLETON and MANSMANN, 

Circuit Judges. 

(Filed March 9, 1998) 
 George H.T. Dudley, Esquire 

 Henry L. Feuerzeig, Esquire 

 Charles E. Engeman, Esquire 

 Dudley, Topper & Feuerzeig 

 Law House 

 1A Frederiksberg Gade 

 Charlotte Amalie, St Thomas 

 USVI 00804 

 Everett C. Johnson, Jr., Esquire 

 (ARGUED) 

 Leonard A. Zax, Esquire 

 Mary E. Britton, Esquire 

 Latham & Watkins 

 1001 Pennsylvania Avenue, N.W. 

 Suite 1300 

 Washington, D.C. 20004 

 COUNSEL FOR APPELLANT 

 TAMARIND RESORT 

 Julio A. Brady, Esquire 

 Paul L. Gimenez, Esquire 

 Gary M. Alizzeo, Esquire (ARGUED) 

 Office of Attorney General of 

 Virgin Islands 

 Department of Justice 

 48B-50 Kronprindsens Gade 

 Charlotte Amalie, St Thomas 

 USVI 00802 

 COUNSEL FOR APPELLEE 

OPINION OF THE COURT 

MANSMANN, Circuit Judge. 

After the Government of the Virgin Islands denied 

Tamarind Resort Associates ("TRA") a Coastal Zone 

Management Act ("CZMA") permit in order to develop Hans 

Lollik Island, TRA brought suit against the Government in 

the District Court of the Virgin Islands alleging breach of 

contract, temporary and permanent unconstitutional 

 2 
takings, and violation of TRA's constitutional rights to due 

process and equal protection. The district court granted 

summary judgment for the Government on the breach of 

contract claim and, treating the constitutional claims as an 

administrative writ of review, affirmed the Board of Land 

Use Appeals' decision denying TRA a coastal zone permit. 

In this appeal, we are asked to determine whether 

summary judgment was appropriate on TRA's breach of

contract claim. In addition, we must examine the extent to 

which the District Court of the Virgin Islands has 

jurisdiction to decide writs of review and determine if the 

district court erred in reviewing TRA's constitutional claims 

in its appellate capacity. 

Because we agree with the district court that the 

agreement is unambiguous and that the Government did 

not breach the agreement by applying the CZMA to TRA, we 

will affirm the district court's grant of summary judgment 

on the breach of contract claim. With respect to the 

remaining constitutional claims, however, we find that the 

district court erred in treating those claims as a writ of 

review and therefore will remand for the district court to 

consider TRA's constitutional claims under its original, 

federal question jurisdiction. 

I. 

Great Hans Lollik Island is a 500 acre uninhabited island 

located approximately two miles off the coast of St. Thomas. 

In 1964, when the Island was owned by Hans Lollik 

Corporation, the Corporation and the Government of the 

Virgin Islands entered into an agreement which was 

enacted into law as Act No. 1145, 1964 V.I. Sess. Laws 

120, and amended by Act No. 1327, 1965 V.I. Sess. Laws 

47, and Act No. 1883, 1967 V.I. Sess. Laws 53. The 

agreement contains a provision identifying it as 

"contractual and proprietary in nature."1 

_________________________________________________________________ 

1. The district court applied principles of contract interpretation rather 

than canons of statutory construction in interpreting the agreement 

pursuant to our rationale in West Indian Co., Ltd. v. Government of the 

Virgin Islands, 844 F.2d 1007, 1016-17 (3d Cir. 1988). The parties have 

not disputed this ruling on appeal. For the reasons articulated by the 

district court, we also will interpret the agreement under basic contract 

principles. 

 3 
Under the agreement, the Government approved "the use 

of Hans Lollik Island for the purposes of a Hotel, Marina 

and Housing Project" and provided for the lease of certain 

Government land to construct a marina and related 

facilities. The agreement states that the initial development 

objective is to construct a hotel "with accommodations for 

no less than fifty (50) rooms . . . together with a further 

development plan calling for the construction of 

approximately one hundred and fifty (150) major 

residences." The agreement also contains language that 

mirrors the Contract Clause of Article I, S10, cl. 1 of the 

United States Constitution which states that "the 

Government will not adopt any legislation impairing or 

limiting the obligations of this contract." 

In October of 1978, the Government enacted the Virgin 

Islands Coastal Zone Management Act, V.I. Code Ann. tit. 

12, SS 901-914 (1982 & Supp. 1997) in order to harmonize 

the goals of environmental protection and economic 

development. V.I. Code Ann. tit. 12, S 903(b)(1)-(11); see 

also Virgin Islands Conservation Soc'y, Inc. v. Virgin Islands 

Bd. of Land Use Appeals, 881 F.2d 28, 29 (3d Cir. 1989). 

The general purpose of the CZMA was to set up a 

comprehensive program for the management, conservation, 

and orderly development of the coastal area. West Indian 

Co., Ltd. v. Government of the Virgin Islands, 844 F.2d 

1007, 1011 (3d Cir. 1988); see also V.I. Code Ann. tit. 12, 

S 903(b)(4). Under the CZMA, development of the coastal 

zone may only be accomplished by obtaining a permit from 

the Coastal Zone Management Commission ("CZMC"). V.I. 

Code Ann. tit. 12, SS 904 and 910. The CZMA also provides, 

however, that "[n]othing herein contained shall be 

construed to abridge or alter vested rights obtained in a 

development in the first tier coastal zone prior to the 

effective date of [this Act]." V.I. Code Ann. tit. 12, S 905(f). 

Hans Lollik Island is located in the first tier coastal zone 

and is subject to CZMA restrictions absent a vested right in 

development obtained prior to February 1, 1979, the

effective date of the CZMA. 

TRA is a joint venture established in the Virgin Islands 

comprised of Tamarind Resort Corporation, a Delaware 

corporation, and Culligan Porsche, Inc., a New York

 4 
corporation. In 1990, TRA purchased Hans Lollik Island. 

TRA is the successor-in-interest to the 1964 agreement 

between the Government and Hans Lollik Corporation.

TRA developed a plan to construct an 800-unit resort on 

the island including a 150 unit hotel. TRA submitted an 

application to the CZMC for a permit. The CZMC rejected 

TRA's application. TRA thereafter submitted a plan for a 

675-unit development, including a 150 unit hotel and 525 

residences consisting of 160 major residences and 365 

villas or condominium-style homes. 

The CZMC held public hearings on TRA's revised plan at 

which many speakers voiced opposition to the development. 

The CZMC ultimately denied TRA a permit for construction 

of the 675-unit proposal in a detailed decision setting forth 

its extensive findings and conclusions. 

TRA appealed the CZMC decision to the Board of Land

Use Appeals. The Board affirmed the CZMC's decision

rejecting TRA's permit application. TRA then brought this 

action against the Government in the District Court of the 

Virgin Islands asserting claims for breach of contract, 

temporary and permanent unconstitutional takings, and 

violation of TRA's constitutional rights to due process and 

equal protection. TRA moved for summary judgment on the 

breach of contract and the due process and equal 

protection claims and the Government cross moved for 

summary judgment on all claims. The district court granted 

summary judgment in favor of the Government on TRA's 

breach of contract claim and, treating TRA's remaining 

constitutional claims as an administrative writ of review, 

affirmed the Board of Land Use Appeals' decision denying 

TRA's permit application. This timely appeal followed. 

II. 

We review the district court's order granting summary 

judgment on TRA's breach of contract claim de novo. Ideal 

Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 743 (3d 

Cir. 1996). 

 5 
A. 

Under the law of the Virgin Islands, interpretation of an 

integrated agreement is to be determined as a question of 

law by the court if it does not depend on the credibility of 

extrinsic evidence or a choice of reasonable inferences to be 

drawn from extrinsic evidence.2 Restatement (Second) of 

Contract S 212(2) (1981). Any determination as to meaning 

should be made in light of the relevant evidence, but after 

the transaction has been examined in its entirety, the 

words of an integrated agreement are the most important 

evidence of intention. Id. at S 212, cmt. b. It is axiomatic 

that where the language of a contract is clear and 

unambiguous, it must be given its plain meaning. Id. at 

S 202(3)(a). 

In addition, "[i]t is a fundamental principle of contract 

law that `disputes involving the interpretation of 

unambiguous contracts are resolvable as a matter of law, 

and are, therefore, appropriate cases for summary 

judgment.' " Hadley v. Gerrie, 124 B.R. 679, 683 (D.V.I.), 

aff 'd, Gas House, Inc. v. Unicorp American Corp., 952 F.2d 

1392 (3d Cir. 1991)(table decision)(citing Reed, Wible and 

Brown v. Mahogany Run Dev. Corp., 550 F. Supp. 1095, 

1099 (D.V.I. 1982)). We have consistently embraced the 

basic common law principle that a contract is 

unambiguous if it is reasonably capable of only one

construction. See, e.g., Sumitomo Mach. Corp. of America, 

Inc. v. AlliedSignal, Inc., 81 F.3d 328, 332 (3d Cir. 1996); 

_________________________________________________________________ 

2. The agreement does not provide what law governs its interpretation, 

but because the agreement relates to property within the Virgin Islands, 

was performed in the Virgin Islands, and was entered into by the 

Government of the Virgin Islands, we will apply Virgin Islands law. The 

Virgin Islands Code establishes the sources of law for the Islands as 

follows: 

 The rules of the common law, as expressed in the restatements of 

 the law approved by the American Law Institute, and to the extent 

 not so expressed, as generally understood and applied in the United 

 States, shall be the rules of decision in the courts of the Virgin 

 Islands in cases to which they apply, in the absence of local laws 

to 

 the contrary. 

V.I. Code Ann. tit. 1, S 4 (1967). 

 6 
American Flint Glass Workers Union, AFL-CIO v. Beaumont 

Glass Co., 62 F.3d 574, 581 (3d Cir. 1995). We therefore 

will affirm a grant of summary judgment in a breach of 

contract action only where the contract is unambiguous 

and the moving party is entitled to judgment as a matter of 

law. 

B. 

TRA bases its breach of contract claim on the assertion 

that the Government breached the agreement by requiring 

TRA to obtain a CZMA permit prior to developing Hans 

Lollik Island. TRA contends that in applying the CZMA to 

TRA, the Government impaired TRA's rights under the

agreement in breach of its covenant to refrain from

adopting any legislation impairing or limiting the 

obligations of the agreement. In order to determine whether 

application of the CZMA impairs TRA's contractual rights 

for purposes of summary judgment, we must first 

determine what rights the agreement grants TRA and/or 

whether the agreement is ambiguous as to the contractual 

rights to which TRA is entitled. 

The agreement contemplates an initial development on 

Hans Lollik Island of a hotel with a minimum offifty rooms 

and approximately one hundred and fifty major residences. 

In addition, the agreement provides that: 

 In regard to questions of land use and the zoning laws, 

 the Government has satisfied itself and does hereby 

 determine that the use of the respective sites in 

 question for purposes of a Hotel, Marina and Housing 

 Project are approved. The Government will further, 

 consistent with the public interest, issue such 

 certificates, licenses and permits and take such other 

 action as may be required of it under any safety, health 

 and related laws, and any rulings and regulations in 

 connection therewith. 

The Government contends that the agreement granted TRA 

the right to use the Island for purposes of a Hotel, Marina, 

and Housing Project, but that the agreement did not grant 

TRA unlimited discretion to develop the Island for that use. 

By contrast, TRA contends that the Government granted it 

 7 
a vested right to develop Hans Lollik Island on any scale 

above the specified minimum levels contemplated by the 

agreement. We find TRA's interpretation of the agreement to 

be unreasonable. 

Prior to the agreement, Hans Lollik Island was zoned as 

R-10 under the Virgin Islands Zoning and Subdivision Act 

which permitted one or two family residential use only. 

Under the plain language of the agreement, the 

Government granted TRA an exception to the R-10 zoning 

classification by approving the use of the Island for 

purposes of a Hotel, Marina, and Housing Project. In light 

of the entire transaction between the parties, the only 

reasonable interpretation of the agreement is that it granted 

TRA the right to use the property for commercial purposes 

but did not grant TRA unlimited discretion to develop the 

property for that use. 

This interpretation is further supported by the fact that 

the Government only agreed to issue necessary permits for 

development if the proposed development was consistent 

with the public interest. Under TRA's interpretation of the 

agreement, the Government would have no discretion to 

deny TRA the appropriate permits for development. Were we 

to accept TRA's interpretation, the phrase `consistent with 

the public interest' would be rendered nugatory, which is 

an interpretation to be avoided. See Restatement (Second) 

of Contracts S 203(a)(1981)(stating that "an interpretation 

which gives . . . effective meaning to all the terms is 

preferred to an interpretation which leaves a part .. . of no 

effect"). 

In addition, the plausibility of TRA's interpretation is 

further undermined by the agreement's silence on 

discretional development limits. For example, while the 

agreement contemplates the development of a hotel with a 

minimum of fifty rooms and approximately one hundred 

and fifty major residences, the agreement does not set a 

maximum size limit. The agreement, however, does contain 

an integration clause which specifies that the agreement 

"constitutes the entire agreement of the parties." It is 

therefore evident from the agreement that the parties had 

no understanding as to a maximum level of development. 

 8 
The agreement's silence on a maximum development 

level, however, does not indicate, as TRA contends, that 

TRA was granted unlimited discretion to develop the Island. 

Both parties have relied on United States v. Winstar Corp., 

116 S. Ct. 2432 (1996), to support their respective positions 

on this point. Winstar construed the unmistakability 

doctrine, a canon of contract construction which provides 

that "a contract with a sovereign government will not be 

read to include an unstated term exempting the other 

contracting party from the application of a subsequent 

sovereign act." Winstar, 116 S. Ct. at 2456. It is somewhat 

unclear after the Winstar plurality opinion as to the type of 

contract to which the unmistakability doctrine applies. See 

Yankee Atomic Elec. Co. v. United States, 112 F.3d 1569, 

1578-79 (Fed. Cir. 1997)(noting that plurality found the 

doctrine inapplicable to risk of loss shifting contracts but 

that remaining five justices agreed that the doctrine's 

application is unrelated to the nature of the underlying 

contract). It is clear, however, that one of the basic 

principles underlying the doctrine is the concern that it 

would be unreasonable to presume, in the absence of an 

express contractual provision, that a sovereign intended a 

contractual waiver of a basic sovereign power. See generally 

Winstar, 116 S. Ct. at 2477 (Scalia, J., concurring)(stating 

that "[w]hen the contracting party is the government . . . it 

is simply not reasonable to presume . . . that the sovereign 

[promises] that none of its multifarious sovereign acts, 

needful for the public good, will incidentally disable it or 

the other party from performing one of the promised acts."); 

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 148 

(1982)("[t]o presume that a sovereign forever waives the 

right to exercise one of its sovereign powers unless it 

expressly reserves the right to exercise that power in a 

commercial agreement turns the concept of sovereignty on 

its head, and we do not adopt this analysis."). 

Based on this basic principle and under the specific facts 

of this case, we find TRA's position that the Government 

granted TRA unlimited discretion to develop the Island, 

thereby relinquishing its power to regulate that 

development, to be unreasonable in light of the fact that the 

agreement does not contain any language to that effect. 

Accordingly, because the agreement does not speak to a 

 9 
maximum limitation on development and does not explicitly 

or implicitly grant TRA the right of unlimited development, 

the Government was at liberty to restrict TRA's 

development by applying the CZMA to TRA.3 

Our decision in West Indian Co., Ltd. (WICO) v. 

Government of the Virgin Islands, 844 F.2d 1007 (3d Cir. 

1988) is instructive on this point. In WICO, we examined 

the relationship between contractual obligations and 

general police powers. WICO brought suit against the 

Government of the Virgin Islands for a violation of the 

contract clause of the United States Constitution after the 

Government enacted a Repeal Act which purported to 

repeal a Second Addendum to a settlement agreement 

between the Government and WICO that exempted WICO 

from the CZMA. WICO, 844 F.2d 1013-14. 

We noted that the threshold inquiry in such a case is 

whether the state law has operated as a substantial

impairment of a contractual relationship. Id. at 1021. We 

held that the Repeal Act substantially impaired WICO's 

contractual rights under the Second Addendum by 

attempting to withdraw WICO's right to be free for a limited 

time from CZMA restrictions. In completing our analysis, 

we held that the Repeal Act was invalid because there was 

no legitimate public purpose for the regulation's substantial 

impairment.4 Significantly, we noted that: 

_________________________________________________________________ 

3. TRA also argues that the CZMA, by its own terms, does not apply to 

development of the Island because the agreement granted TRA a vested 

right to develop prior to the effective date of the CZMA. As properly 

noted 

by the district court, the Board's interpretation of the CZMA does not 

relate to TRA's breach of contract claim but is more appropriately 

analyzed in connection with a potential writ of review. Accordingly, we 

will discuss this portion of TRA's argument in Part III in connection with 

TRA's constitutional claims. 

4. We applied the following three-step analysis from the Supreme Court's 

decision in Energy Reserves Group, Inc. v. Kansas Power & Light Co., 

459 U.S. 400, 411-12 (1983): (1) whether the state law substantially 

impairs the contractual relationship; and if so (2) whether the state has 

a significant and legitimate public purpose for the regulation; and if so 

(3) whether the adjustment of rights and responsibilities of the 

contracting parties is based on reasonable conditions and is of a 

character appropriate to the public purpose justifying adoption of the 

regulation. WICO, 844 F.2d at 1021. We held that the Repeal Act was 

invalid because there was a substantial impairment in WICO's 

contractual relationship and because the Repeal Act could not be 

justified by a significant public purpose. Id. at 1021-22. 
 10 
 We hold only that the Repeal Act is invalid. We do not, 

 of course, hold that the police power of the Virgin 

 Islands with respect to WICO's [land] was exhausted 

 when the Second Addendum was approved. WICO is 

 obviously not immune from generally applicable police 

 power measures not inconsistent with the Second 

 Addendum. Moreover, if conditions materially change 

 so as to create a substantial problem that could not be 

 foreseen in 1982, it may be that generally applicable 

 land use regulations could validly alter the manner in 

 which WICO may utilize its property. 

Id. at 1022-23. 

In accordance with WICO, TRA is not immune from 

Government regulations that are not inconsistent with 

TRA's contractual rights under the agreement. Because we 

hold that the agreement is unambiguous and grants TRA 

the right to use the Island for commercial purposes but 

does not grant TRA unlimited discretion to develop the 

Island for that use, the Government's application of the 

CZMA to TRA does not impair any of TRA's contractual 

rights. Accordingly, summary judgment was appropriately 

granted in favor of the Government on TRA's breach of 

contract claim. 

III. 

With respect to TRA's constitutional claims, we exercise 

plenary review over the district court's decision to examine 

these claims in an appellate capacity. See Union Pacific R.R. 

Co. v. Ametek, Inc., 104 F.3d 558, 561 (3d Cir. 

1997)(stating that "[t]his court exercises plenary review over 

matters of jurisdiction."). In order to evaluate the propriety 

of the district court's decision, we must first examine the 

boundaries of the jurisdiction currently conferred upon the 

District Court of the Virgin Islands. 

A. 

Our analysis of the jurisdictional boundaries of the 

District Court of the Virgin Islands must begin with Article 

IV, Section 3 of the United States Constitution, which 

 11 
grants Congress the power to designate the jurisdiction of 

the district court and the territorial court. Brow v. Farrelly, 

994 F.2d 1027, 1032 (3d Cir. 1993). Congress first 

exercised this power in 1936 by enacting the Revised 

Organic Act, 48 U.S.C. SS 1541-1645 (1994). Id. The 1936 

Revised Organic Act was subsequently replaced by the more 

comprehensive Revised Organic Act of 1954. The Revised 

Organic Act acts as the constitution of the Virgin Islands 

and as such defines the jurisdictional boundaries of the 

Virgin Islands courts. Id. 

Section 1612 of the 1954 Revised Organic Act confers 

upon the District Court of the Virgin Islands federal 

question jurisdiction as well as original jurisdiction over 

questions of local law subject to the exclusive jurisdiction of 

local courts over civil actions where the amount in

controversy is less than $500. Revised Organic Act of July 

22, 1954, ch. 558, SS 22-23, 68 Stat. 506 (1955) (amended 

1978, 1984); Brow, 994 F.2d at 1032. In addition, section 

1613 of the 1954 Revised Organic Act provides that local 

courts shall share concurrent jurisdiction over all actions 

conferred upon them by local law. Revised Organic Act of 

July 22, 1954, ch. 558, S 23, 68 Stat. 506 (1955) (amended 

1978, 1984); Brow, 994 F.2d at 1032 n.2. 

In 1984, Congress amended the Revised Organic Act and 

effectively eliminated the District Court of the Virgin 

Islands' original jurisdiction over local matters. Congress 

amended section 1612(b) by granting the district court only 

original jurisdiction over federal questions, diversity actions 

and any local matters "the jurisdiction over which is not 

then vested by local law in the local courts of the Virgin 

Islands." 48 U.S.C. S 1612(b)(1994). In addition, Congress 

amended section 1611(b) to permit the Virgin Islands 

legislature to vest jurisdiction in the local courts over all 

matters in which any court established by the United 

States does not have exclusive jurisdiction. Id. at S 1611(b). 

We have interpreted section 1611 as amended as 

empowering the Virgin Islands legislature to completely 

divest the district court of its original jurisdiction over local 

actions. Estate of Thomas Mall, Inc. v. Territorial Court of 

Virgin Islands, 923 F.2d 258, 262-64 (3d Cir. 1991). 

 12 
In 1990, the Virgin Islands legislature exercised this 

power and divested the district court of its jurisdiction over 

all local civil matters effective October 1, 1991. V.I. Code 

Ann. tit. 4, S 76(a) (1997). We have held that this 1990 

enactment not only stripped the district court of its original 

jurisdiction over local matters when a complaint is filed in 

the district court, but also divested the district court of its 

jurisdiction to determine writs of review appealing local 

administrative determinations. Moravian Sch. Advisory Bd. 

of St. Thomas V.I. v. Rawlins, 70 F.3d 270, 273 (3d Cir. 

1995). Specifically, we held that the Virgin Islands 

legislature implicitly repealed the general Virgin Islands 

provision which establishes writs of review as civil actions, 

V.I. Code Ann. tit. 5, S1421, to the extent that provision 

confers writ of review jurisdiction upon the district court 

over local matters. Id. 

B. 

The district court examined TRA's constitutional claims 

in its appellate capacity based on the premise that TRA 

could have brought those claims via a writ of review in the 

district court pursuant to V.I. Code Ann. tit. 12, 

S 913(d)(1982). Section 913(d) is a provision of the CZMA 

which provides that a petition for writ of review may be filed 

in the district court pursuant to the general Virgin Islands 

writ of review provisions by any person aggrieved by the 

denial of an application for a coastal zone permit. V.I. Code 

Ann. tit. 12, S 913(d). Under the rationale of Moravian and 

because the general Virgin Islands writ of review provisions 

have been implicitly repealed as they apply to the district 

court's jurisdiction to decide writs of review over local 

matters, section 913 of the CZMA is similarly invalid as it 

applies to the district court's former writ of review 

jurisdiction. TRA therefore could not have brought a writ of 

review in the district court under section 913(d) of the 

CZMA. Accordingly, the district court erred in reviewing 

TRA's constitutional claims in its appellate capacity. 

At oral argument, the Government stated that it was

unopposed to our remanding TRA's constitutional claims. 

Because the district court should examine TRA's 

constitutional claims under its original jurisdiction in the 

 13 
first instance, we will remand for the district court to 

determine whether there are any genuine issues of material 

fact relating to these claims that would preclude summary 

judgment.5 

IV. 

We conclude that because the Agreement unambiguously 

grants TRA the use of Hans Lollik Island for commercial 

purposes but does not grant TRA unlimited discretion in 

development, the Government did not breach the 

Agreement by applying CZMA restrictions to TRA. We will 

therefore affirm that portion of the district court's order 

that granted summary judgment on Count I. We alsofind 

that the district court erred in examining Counts II, III, and 

IV under its former writ of review jurisdiction, and therefore 

remand for further proceedings consistent with this

opinion. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

_________________________________________________________________ 

5. As previously noted, TRA has asserted on appeal that the CZMA by its 

own terms does not apply to TRA because the Agreement granted TRA a 

vested right in development prior to the effective date of the CZMA. The 

district court interpreted this claim as a writ of review challenge to the 

CZMC's decision to deny TRA a CZMA permit. While we hold that the 

district court does not have original jurisdiction over writs of review, 

on 

remand the district court should determine whether it would be 

appropriate to exercise supplemental jurisdiction over any writ of review 

claims fairly made by TRA. See City of Chicago v. International College of 

Surgeons, ___ S. Ct. ___, ___ 1997 WL 76450, *7 (1997)(holding that 

district court had supplemental jurisdiction over claims challenging 

administrative decision once case was properly removed based on 

original jurisdiction arising from constitutional claims). 

 14