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Governor Ignores Law – Fails to Fill Essential Vacancies

VI Daily News Guest editorial

Governor ignores V.I. law by failing to fill vacancies on Board of Land Use Appeals with cases pending

David L. Maxwell

Thursday, October 15th 2009

I devoted over 20 years of my life serving in our nation in the U.S. Navy and the U.S. Air Force, upholding the very values and rights of U.S. citizens our forefathers fought to create for us.

As citizens of the United States of America, we have unalienable rights, guaranteed to us by the 14th Amendment to the U.S. Constitution, which include the Right to Procedural Due Process.

At present, Virgin Islanders are being denied the right to procedural due process by our own governor, who is choosing not to fulfill his legal duty to appoint members to the Board of Land Use Appeals.

In regard to the West Indian Co.’s proposed dumping in Lindbergh Bay, hoteliers, citizens and environmental groups have appealed the CZM decision. Now the case is before the Board of Land Use Appeals.

“A public hearing on an appeal shall be held by the board within 60 days after the appeal is filed with the board, and a decision shall be rendered by the board within 30 days after the conclusion of such public hearing.” (V.I. Code, Title 12, Chapter 21, § 914(c)).

The appeal of the CZM decision in favor of WICO’s dumping in Lindbergh Bay was filed on Aug. 3, 2009, over 60 days ago, and thus the public hearing required by the law should have taken place already. However, the Board of Land Use Appeals lacks enough members to even have a quorum, so at present it cannot function as a board.

It is the governor’s duty and obligation under V.I. Code, Title 3, Chapter 5, Subchapter 1, Section § 65a. to fill the vacancies on this Board within 60 days of the date the vacancy occurred.

The language in these statutes is mandatory, and specific, as to the procedure for filling vacancies.

Pursuant to section 65b, “Prior to the submission of a nomination to the Legislature to fill a vacancy on a board or commission, which nomination requires the advice and consent of the Legislature; the Governor shall cause to be printed in a newspaper of general circulation in each island district, a public notice that a vacancy exists. Such notice shall state the name of the board or agency on which the vacancy occurs, the fact that the Governor will be submitting a nomination to the Legislature, any qualifications required by law of prospective nominees, and an invitation to the public and organized groups to recommend persons to the Governor for nomination to fill the vacancy. The public notice shall be published not less than twice a week for two consecutive weeks.”

After Gov. John deJongh Jr. nominates a member to the Board of Land Use Appeals, the appointment will be effective upon an affirmative vote by a majority of the entire V.I. Legislature. (§ 65c).

Despite the fact that the appeal of the CZM’s decision to the Board of Land Use Appeals was months ago, Gov. deJongh has chosen to not even begin the process of looking for appropriate board members yet, which begins with simply placing an advertisement of the available positions in the local Virgin Island newspapers.

It is Gov. deJongh’s specific legal duty to fill these positions, now, to allow the Board of Land Use Appeals to continue with the mandated appeals process of scheduling a Public Hearing in this matter. Pursuant to the Revised Organic Act of 1954, Section 11, this discusses the duties and obligations of the Governor of the United States Virgin Islands:

“The Governor shall have general supervision and control of all the departments, bureaus, agencies, and other instrumentalities of the executive branch of the government of the Virgin Islands. … He shall appoint, and may remove, all officers and employees of the executive branch of the government of the Virgin Islands, except as otherwise provided in this or any other Act of Congress, or under the laws of the Virgin Islands, and shall commission all officers that he may be authorized to appoint. He shall be responsible for the faithful execution of the laws of the Virgin Islands and the laws of the United States applicable in the Virgin Islands.”

It is now time for Gov. deJongh to begin to faithfully execute these laws, to fill the membership of the Board of Land Use Appeals, and to no longer block V.I. citizens’ right to due process.

Perhaps the governor and WICO would like to ignore the appeals process, but it is there, to guarantee Americans due process of law.

Whether the U.S. Army Corps of Engineers approves the permit application or not, according to both federal law and Virgin Islands law, the dredging and dumping cannot proceed unless and until the requisite members are appointed and the Board of Land Use Appeals process is fully completed.

If the Board of Land Use Appeals were to issue an illegal or incorrect ruling, that decision could also be fought in federal district court.

We should all remember that John deJongh Jr. was vehemently against dumping in Lindbergh Bay in 2000 but has totally reversed his opinion now that he is governor.

Gov. de Jongh said in his letter dated March 30, 2009, that he was gratified to learn that dumping dredge spoils in Lindbergh Bay “will not compromise, but will improve the quality of the water” This is a dramatic reversal, and is not supported by the facts, as cited in the Environmental Protection Agency’s May 21, 2009, letter to the U.S. Army Corps of Engineers.

I understand that the Governor of the Virgin Islands oversees and appoints the Board of Directors of WICO, which is pressing to dump in Lindbergh Bay as the cheapest solution, even though this dumping would harm, among other protected species, staghorn coral, elkhorn coral and their critical habitat.

The governor also is a member of the Coral Reef Task Force. Isn’t there an inherent conflict of interest in wearing these two hats?

I call on the governor to fulfill his duties and obligations to the people of the Virgin Islands; the people of the Virgin Islands have a legal right to appeal the erroneous CZM decision, which even the legal counsel to the V.I. Legislature said was an illegal decision.

Gov. deJongh must, by V.I. Law, fill the vacancies in the Board of Land Use Appeals so that the people’s appeal can proceed.

– U.S. Air Force Maj. David L. Maxwell (Ret.) lives on St. Thomas.

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