# Appendix — Gjessing v. West Indian Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1959%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1988 - **Citation:** 488 U.S. 802 ## Text 87 = 2133.0) pc IN THE Supreme Court of the United States OCTOBER TERM, 1987 LEGISLATURE OF THE VIRGIN ISLANDS, Appellant, and HELEN GJESSING, Individually and as President of Save Long Bay Coalition, Inc., LEONARD REED, Individually and as President of Virgin Islands Conservation Society, Inc., KATE STULL, Individually and as Presi- dent of League of Women Voters of V.I., Inc., LUCIEN MOooLeENAAR, Individually and as President of Virgin Islands 2000, Inc., RUTH MOOLENAAR, Individually and as Director of St. Thomas Historical Trust, Inc., Appellants, v. WEsT INDIAN COMPANY, LTD., Appellee, Ve GOVERN MENT OF THE VIRGIN ISLANDS, Appellee. On Appeal from the United States Court of Appeals for the Third Circuit JOINT APPENDIX TO JURISDICTIONAL STATEMENT (Counsel Listed on Inside Cover) - /A Supreme Cour, US, 8¢- 2133 j FILED Nos. ——— JUN 29 1988 TOSEPHF. SFANIOL, JR, CLERK RAL SATE WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 / settorny FRED P. BOSSELMAN * WILLIAM J. TURBEVILLE, II BURKE, BOSSELMAN & WEAVER 1900 Glades Road, Suite 350 Boca Raton, FL 33431 (407) 391-0400 Ruys S. HODGE No. 19 Norre Gade St. Thomas, VI 00801 (809) 774-6490 GODFREY DECASTRO Attorney General of The Virgin Islands Department of Justice P.O. Box 280 St. Thomas, VI 00801 (809) 774-5666 Counsel for Appellants Legislature of the Virgin Islands BRENDA J. HOLLAR * 2A & 2B Kongens Gade P.O. Box 8897 St. Thomas, VI 00801 (809) 774-6003 DAviD A. BORNN LAW OFFICES OF EDITH L. BORNN 8 Norre Gade P.O. Box 1500 St. Thomas, VI 00804 (809) 774-1400 JUDITH L. BOURNE 14B Norre Gade P.O. Box 6458 St. Thomas, VI 00804 (809) 776-8487 Attorneys for Appellants Gjessing et al. * Counsel of Record INDEX Notice of Appeal of Citizens, dated April 20, 1988 _........ Notice of Appeal of Legislature, dated June 13, 1988... Court of Appeal Opinion, March 31, 1988 _..................... U.S. District Court Opinion, April 18, 1987 ..................... Court of Appeal Opinion, February 26, 1987 ................... U.S. District Court Opinion, September 3, 1986 _......... Complaint of United States v. West Indian Company, WE tek TOUS CTI Te UE CE ici Sis attics. Trial Judge’s letter of September 19, 1972 to Governor Evans urging settlement District Court Order of December 27, 1973 staying EERE RIT ESD LISD eke ee GEO rte Partial Transcript of Oral Argument, December 7, __- EERIRER TTI SS SIND alee REP LEN Ra eR cele REN ODE SOY) Mp SRM NRE Convention Between United States and Denmark Ced- ing Danish West Indies, August 4, 1916 ............00....... Danish Ministry of Finance Letter dated January 18, DOES Glee CIO PH hieniscin ik Memorandum of Understanding of October 3, 1973 First Addendum to Memorandum of Understanding, ey, acme epee Aine eee Nesta rare Second Addendum to Memorandum of Understanding (Revised), September 21, 1981 ...............00000 Act No. 5188, Sixteenth Legislature of the Virgin eS Ee Eee eee pe eer Act No. 4700, Fourteenth Legislature of the Virgin Islands (Bill 14-0664) -...........00.000 0... is ree mente Act No. 3326, Ninth Legislature of the Virgin Islands CHE FRG, De) ooo eos... AARNE ERODE ARE CAA ER Page ii INDEX—Continued Page Partial Transcript of July 9, 1986 Regular Session of Sixteenth Legislature of the Virgin Islands ............... 180a Revised Organic Act of 1954, 48 U.S.C.A. § 1541 et seq., Bections 3 e060 6 uc. 2 ee 185a Territorial Submerged Lands Act, Pub. L. 88-183, 77 stat. 338, November 20, 1963, 48 U.S.C.A. § 1701 _... 188a Territorial Submerged Lands Act, Pub. L. 93-435, 88 stat. 1212, October 5, 1974, 48 U.S.C.A. § 1704 et DO inc sncnnonciinnsididanevidiniiieitpaee ae 192a WICO letter and draft Complaint of 3/16/79 ................ 198a Department of Conservation and Cultural Affairs Cease ana Desist Oreo ou 205a Coastal Zone Management Act 12 V.I.C. §§ 901 et seq... 207a Special Legislation Prohibition, 48 U.S.C.A. § 1471 ...... 248a Pie 1 VE Cole €4 oun eee Z249a ALI Restatement of Property (1944) 1 | een Nene EN UN le LO I oo 250a SE isc cetinns-andcc4nctnssewnarchc eae 250a 5. > ee eee nnn te 250a |. nn EMneMmnnE Erste 25la ALI Restatement (Second) of Foreign Relations Law of United States (1965) Oy RB casos sinodcivannstciesncenasdeugtauasepe ee 251a 2 MMMM TM OO MAN 251a la IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Nos. 87-3369, 87-3370, 87-3371, 87-3372 THE WEST INDIAN COMPANY, LTD., Appellee vs. GOVERNMENT OF THE VIRGIN ISLANDS, LEGISLATURE OF THE VIRGIN ISLANDS (Intervenor), HELEN GJESSING (Intervenor), LEONARD ReeED (Intervenor), KATE SruLL (Intervenor), LUCIEN MOOLENAAR (Intervenor), RuTH MOOLENAAR (Intervenor), Appellants NOTICE OF APPEAL TO THE SUPREME COURT OF THE UNITED STATES Notice is hereby given that HELEN W. GJESSING, Individually and as President of the Save Long Bay Coalition, Inc... KATE STULL, Individually and as Presi- dent of the League of Women Voters, Inc.; RUTH MOOLENAAR, Individually and as Director of the St. Thomas Historical Trust, Inc... LEONARD REED, Indi- vidually and as President of the Virgin Islands Conser- vation Society, Ine., and LUCIEN MOOLENAAR, Indi- vidually and as President of the Virgin Islands 2000, Inc., appellants in this case, hereby appeal to the Supreme Court of the United States from the judgment of the United States Court of Appeals for the Third Circuit dated March 31, 1988, affirming the judgment of the United States District Court for the District of the Vir- gin Islands dated April 13, 1987. 2a This appeal is taken pursuant to Title 28 U.S.C. § 1254 (2). Dated: April 20, 1988 Attorneys for Appellants /s/ David A. Bornn Davip A. BoRNN, Esq. /s/ Brenda J. Hollar BRENDA J. HOLLAR, Esq. /s/ Judith L. Bourne JUDITH L. BOURNE, Esq. 3a AFFIDAVIT OF SERVICE I, LORECIA N. KRIGGER, being duly sworn do here- by depose and say that on this 20th day of April, 1988, I caused a true and exact copy of the foregoing Notice of Appeal to be served, by hand delivery, on Maria T. Hodge, Esq. for West Indian Company, Ltd., 40B Beltjen Road, St. Thomas, USVI 00802; Godfrey deCastro, At- torney General of the V.I., for the Executive Branch of the Government of the U.S. Virgin Islands, at Depart- ment of Justice, Post Office Square, St. Thomas, USVI 00802; and on Rhys S. Hodge, Esq. for the Legislative Branch of the Government of the U.S. Virgin Islands, at #19 Norre Gade, St. Thomas, USVI 00802. /s/ Lorecia N. Krigger LORECIA N. KRIGGER SWORN AND SUBSCRIBED TO BEFORE ME THIS 20th DAY OF APRIL, 1988. /s/ David A. Bornn Notary Public 4a IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Nos. 87-3369, 87-3370, 87-3371, 87-3372 THE West INDIAN COMPANY, LTD., . Appellee GOVERNMENT OF THE VIRGIN ISLANDS, LEGISLATURE OF THE VIRGIN ISLANDS (Intervenor), HELEN GJESSING (Intervenor!, LEONARD REED (Intervenor), KATE STULL (Intervenor), LUCIEN MOOLENAAR (Intervenor), RUTH MOOLENAAR (Intervenor}, Appellants NOTICE OF APPEAL TO THE SUPREME COURT OF THE UNITED STATES Notice is hereby given that Appellant Legislature of the Virgin Islands in this case, hereby appeals to the Supreme Court of the United States from the judgment of the United States Court of Appeals for the Third Cir- cuit dated March 31, 1988, affirming the judgment of the United States District Court for the District of the Vir- gin Islands dated April 13, 1987. This appeal is taken pursuant to Title 28 U.S.C. § 1254 (2). Dated: June 13, 1988 Attorneys for Appellant s/ Rhys S. Hodge Ruys S. Hopee, Esq. BURKE, BOSSELMAN & WEAVER ' Fred P. Bosselman FRED P. BOSSELMAN, Esq. 2 By 5a AFFIDAVIT OF SERVICE I, Fred P. Bosselman, being duly sworn do hereby de- pose and say that on this 13th day of June, 1988, I caused a true and exact copy of the foregoing Notice of Appeal to be served by hand delivery on Maria T. Hodge, Esq. for West Indian Company, Ltd., 40B Beltjen Road, St. Thomas, USVI 00802; Godfrey deCastro, Attorney General of the V.I., for the Executive Branch of the Gov- ernment of the U.S. Virgin Islands, at Department of Justice, Post Office Square, St. Thomas USVI 00802; and on David Bornn, Esq. at No. 8 Norre Gade, St. Thomas, V.I. 00802, Judith Bourne, Esq. at 14B Norre Gade, St. Thomas, USVI 00802 and Brenda Hollar, Esq. at 2A&2B Kongens Gade, St. Thomas, USVI 00802. s’ Fred P. Bosselman SUBSCRIBED AND SWORN to before me this 12th day of June, 1988. ‘s/ William J. Turberville Il Notary Public Commission Expires: Oct. 2, 1989 6a UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Nos. 87-3369, 87-3370, 87-3371, 87-3372 THE WEsT INDIAN COMPANY, LTD. vs. GOVERN MENT OF THE VIRGIN ISLANDS (1) LEGISLATURE OF THE VIRGIN ISLANDS (Intervenor) (2) HELEN GJESSING (Intervenor) (3) LEONARD REED (Intervenor) (4) Kate STULL (Intervenor) (5) LuctIEN MOOLENAAR (Intervenor) (6) RuTH MoOoOLENAAR (Intervenor) LEGISLATURE OF THE VIRGIN ISLANDS, intervenor above named, Appellant in No. 87-3369 HELEN W. GJESSING, Individually and as President of the Save Long Bay Coalition, Inc., Appellant in No. 87-3270 KaTE STULL, Individually and as President of the League of Women Voters, Inc.; and RUTH MOOLENAAR, Individually and as Director of the St. Thomas Historic Trust, Inc., Appeilants in No. 87-3371 LEONARD REED, Individually and as President of the Virgin Islands Conservation Society, Inc., and LUCIEN MOOLENAAR, Individually and as President of the Virgin Islands 2000, Inc., Appellants in No. 87-3372 7a On Appeal from the District Court of the Virgin Islands (St. Thomas) (D.C. Civil No. 86-293) Argued December 7, 1987 BEFORE: GIBBONS, Chief Judge, STAPLETON, and MANSMANN, Circuit Judges (Opinion filed March 31, 1988) Maria Tankenson Hodge ( Argued) Maria Tankenson Hodge, P.C. 1 Frederiksberg Gade P. O. Box 4511 St. Thomas, V.I. 00801 Sanford C. Miller Christopher G. Kelly Haight, Gardner, Poor & Havens 195 Broadway New York, NY 10007 Attorneys for West Indian Company, Ltd. Godfrey R. de Castro Attorney General Rosalie Simmonds-Ballentine Solicitor General Richard O. Baker (Argued) Assistant Attorney General General Litigation Services Department of Justice +46 Norre Gade St. Thomas, V.I. 00802 Attorneys for Government of the Virgin Islands ———S_c0o“.QQGYT Rhys S. Hodge (Argued) No. 19 Norre Gade P. O. Box 6520 St. Thomas, V.I. 00801 Attorney for Legislature of the Virgin Islands Brenda J. Hollar (Argued) Professional Building #14 P. O. Box 8897 St. Thomas, V.I. 00801 Attorney for Helen W. Gjessing, Individually and as President of the Save Long Bay Coalition, Ine. Edith L. Bornn David A. Bornn (Argued) Veronica J. Handy Law Offices of Edith L. Bornn +8 Norre Gade P. O. Box 1500 St. Thomas, V.I. 00801 Attorneys for Kate Stull, Individually and as President of the League of Women Voters, Inc.; and Ruth Moolenaar, Individually and as Director of the St. Thomas Historic Trust, Ine. Judith L. Bourne (Argued) 14B Norre Gade P. O. Box 6458 St. Thomas, V.I. 00801 9a Attorney for Leonard Reed, Individually and as President of the Virgin Islands Conservation Society, Inc., and Lucien Moolenaar, Individually and as President of the Virgin Islands 2000, Ine. OPINION OF THE COURT STAPLETON, Circuit Judge: The intervenors in this action, including the present Virgin Islands legislature and the officers of various in- terested citizen groups, appeal from a summary judg- ment in favor of, and grant of a permanent injunction to, the West Indian Co., Ltd. (WICO). The central issue presented is whether a 1982 agreement between WICO and the Government of the Virgin Islands, ratified by the legislature then sitting, should be considered con- tractually binding on the present legislature. The dis- trict court held that it should; the intervenors contend that it should not. Because we agree with the district court’s conclusions that the 1982 agreement is a contract and that the present legislature’s attempt to cancel it by means of the Repeal Act is a violation of the contract clause of the United States Constitution, incorporated into Virgin Islands law by $3 of the Revised Organic Act, we will affirm. & WICO is a Dutch-owned Virgin Islands corporation. In 1913, Denmark, then the sovereign of the Virgin Islands, granted WICO, then a Dutch entity, rights in certain parts of the Long Bay area of the St. Thomas 10a harbor on Charlotte Amalie. This grant was evidenced by two letters to WICO from the Danish Ministry of Fi- nance, dated January 18, 1913 and April 16, 1913.' Of these letters, the first was the more significant; it pro- vided that when designated submerged areas of the har- bor had been reclaimed by WICO, the company would acquire free and unrestricted ownership of the land. No time limitations restricted WICO’s reclamation rights under this original grant. In 1914, WICO built a dock and harbor basin in the area covered by the grant, leaving it with reclamation rights in 42 additional acres. Although it did business in the Virgin Islands continuously over the years, using its dock and harbor basin, WICO did not proceed with any further reclamation until 1986. In 1917, Denmark ceded the Virgin Islands to the United States. WICO’s rights were specifically preserved by § 3 of the Convention of Cession, which read: 4) The United States will maintain the following grants, concessions and licenses, given by the Danish Government, in accordance with the terms on which they are given: a. The concession granted to ‘Det vestindiske Kom- pagni’ (the West Indian Company) Ltd. by the communications from the Ministry of Finance of January 18th 1913 and of April 16th 1913 relative to a license to embank, drain, deepen and _ utilize certain areas in St. Thomas Harbor, and preferen- tial rights as to commercial, industrial or shipping establishments in the said Harbor. 1The Danish Government had originally granted a similar con- cession to a consortium of Dutch businessmen. The consortium proved unable to meet the conditions of its concession, however, and its rights were transferred by the Danish Government to WICO in the 1913 grant, with certain modifications. lla App. at 30, 32. Before signing the Convention, the United States asked Denmark whether the grant to WICO was in perpetuity; Denmark responded that it was, and that there was no limitation as to the time within which WICO had to exercise its rights.* No further developments of significance took place until 1968, when the United States Department of the Interior filed suit in federal district court in the Virgin Islands, seeking to quiet title to the area of WICO’s Danish grant and secure a declaratory judgment that WICO’s treaty rights had lapsed. WICO defended this action, arguing that its treaty rights to reclaim and take title were vested and in perpetuity. While this suit was pending, the Danish Government sent a formal diplomatic note, dated June 25, 1970, to the United States Government, stating that WICO’s treaty rights had originally been granted by Denmark without con- dition as to time and requesting that those rights be respected. WICO proposed a settlement of the suit to both the Government, although the latter was not formally a party, and negotiations began. The parties to the nego- tiations included the United States Government, the Vir- gin Islands Government, WICO, and other private par- ties with interests in the harbor. The negotiations were suecessfully concluded in 1972 with a settlement agree- ment, the substance of which was that WICO would sur- render reclamation rights to 12 out of the 42 acres at issue and the United States and Virgin Islands Govern- ments would recognize WICO’s right to reclaim and obtain title to the remaining 30 acres. A number of other obligations were also assumed by WICO as condi- tions of the settlement; for example, WICO agreed to 2 The Danish Government also informed the United States at this time that because WICO had begun to exercise its rights by doing some reclamation, WICO’s rights had vested under Danish law. 12a fill in an extra 2.5 acres for public parkland and trans- fer it to the Virgin Islands Government, and to fill cer- tain waterfront land so as to enable the Government to widen the shoreline highway from two to four lanes. The conditions of the settlement agreement were em- bodied in a document called the Memorandum of Under- standing. The parties included in the Memorandum a statement of reasons why they believed the conveyance to WICO would further the public interest, including not only the above benefits but also the expected increase in employment, improvement of facilities for tourism, and elimination of the “possible cloud over the future of St. Thomas Harbor” posed by WICO’s Danish rights. Because at that time the United States held title to the submerged lands surrounding the Virgin Islands, the parties to the settlement considered it necessary to arrange a two-step procedure for transferring title to the 30 acres to WICO after reclamation: the United States Government would convey to the Virgin Islands Government, and the Virgin Islands Government to WICO. The Memorandum was not particularly clear, however, on just when the transfer of title was to be accomplished. It provided that after specified conditions had been met, the parties would meet at a Closing to exchange various documents; after the Closing, further conditions would have to be met, mainly the completion of reclamation within specified time limits, before WICO would actually receive title. “Once reclaimed,” § 15(b) of the Memorandum states, “the areas filled shall belong to WICO in fee simple. . . provided that WICO is then in compliance with Sections 2 and 8 of this Agreement re- quiring WICO to fill and provide land for the V.I. Gov- ernment.” Section 15(b) of the Memorandum also con- tains the following provision: Except as otherwise specifically provided herein, this Agreement shall be binding upon and shall inure to etna 13a the benefit of the parties, their successors and assigns. When the settlement had been reached, public hearings were held. The agreement then went to the Virgin Islands legislature, the Ninth Legislature, for ratifica- tion, which was forthcoming in the form of Act No. 3326, passed on October 11, 1972 and formally approved by the Governor on October 30, 1972. Because the Virgin Islands Government was not a party to the underlying suit, its ratification of the settlement took the form of a recommendation to the United States Government to accept and implement the settlement. There is no evi- dence that the Ninth Legislature acted hastily or without full information and adequate opportunity for public comment in approving the settlement agreement.* The Memorandum of Understanding was signed on October 3, 1973 by the United States Government, the Virgin Islands Government, WICO, and the other inter- ested private parties. The Memorandum was filed with the district court, and the Department of the Interior’s action was stayed sine die pending completion of the various prerequisites to closing and ultimate transfer of title specified in the Memorandum. 3In fact, the opposite appears true. One of the intervenors, discussing the passage of Acts No. 3326 and 4700, asserts that: If any records were preserved, it [sic] would readily reflect that the League of Women Voters of the Virgin Islands and the Virgin Islands Conservation Society have always made appearances and have voiced strong objection to any dredg- ing in St. Thomas Harbor... . Despite the vocal opposition to the dredging . . . prior legislation was nevertheless en- artes... ss Gjessing Br. at 23-24. Others of the intervenors state that from the time of the proposed settlement agreement on, “vigorous public opposition has been voiced by individuals and citizens groups.” Moolenaar/Reed Br. at 10. l4a The preconditions set by the Memorandum to transfer of title were never fulfilled; the order of events envi- sioned by the drafters of the Memorandum was altered in several respects. First, in October 5, 1974, the United States passed the 1974 Territorial Submerged Lands Act, 48 U.S.C. $$ 1701-1708 (1982 & 1987 Supp.). Under this law, [s]ubject to valid existing rights, all right, title, and interest of the United States in lands permanently or periodically covered by tidal waters ... and in artificially made, filled in, or reclaimed lands which were formerly permanently or periodically covered by tidal waters, are hereby conveyed to the govern- ments of Guam, the Virgin Islands, and American Samoa, as the case may be, to be administered in trust for the benefit of the people thereof. 48 U.S.C. §1705(a). To accommodate this change in circumstances, WICO drafted and presented to the Vir- gin Islands Government a First Addendum to the Mem- orandum, dated October 28, 1975. This Addendum simply eliminated the first of the two steps of the title transfer procedure. The executive branch of the Virgin Islands Government agreed to this change, and the Virgin Is- lands Attorney General, considering the change purely procedural, determined that there was no need to submit the First Addendum to the legislature for approval. A second departure from the expected was the enact- ment, in October of 1978, of the Virgin Islands Coastal Zone Management Act (CZMA), 12 V.I.C. §§ 901-914 (1982 & 1987 Supp.). The general purpose of the Virgin Islands CZMA was to set up a comprehensive program for the management, conservation, and orderly develop- ment of the coastal area; the main method of implement- ing this program was a permit system run by the Coastal Zone Management Commission, a new unit of the De- partment of Conservation and Cultural Affairs. The 15a thrust of the CZMA is thus to require those wishing to engage in new development of the coastal area, whether on private or public lands, to obtain a permit to do so from the Virgin Islands Coastal Zone Management Com- mission, Federal permits for coastal area development in the Virgin Islands must often be obtained in addition to Virgin Islands permits.* Section 910 of the CZMA sets forth conditions regard- ing when a Virgin Islands coastal zone permit is re- quired and may be granted, and outlines the procedures for application. These conditions and procedures apply to both privately- and publicly-held land. However, § 911 imposes stringent additional restrictions and conditions on use or development of public lands. The most im- portant of these additional restrictions, for purposes of this case, are those of §§911(a) and (d). These sec- tions forbid conveyance of publicly-held coastal zone areas to private parties; they require a permit or lease for any development or occupancy of such areas, and limit the term of such permit or lease to a maximum of 20 years.® Coastal zone permits for any use of public 4In this case, for example, WICO’s operations fall within 33 U.S.C. § 403, requiring federal approval for any excavation or fill within navigable waters, and 33 U.S.C. § 1344, requiring federal permits for discharge of dredged or fill material into navigable waters, and possibly within 33 U.S.C. § 1341, requiring federal permits for any discharge into navigable waters. Section 910(g) of the Virgin Islands CZMA states that where any development or occupancy in the coastal zone “require separate and distinct ap- proval from the United States Government or any agency... thereof,” the Virgin Islands “coastal zone permit shall be contingent upon receipt of all other such permits and approvals, and no such development of occcupancy shall commence prior to receipt of all such permits and approvals.” 5 A coastal zone permit that includes an occupancy or develop- ment permit, § 911(d)(1) provides, “shall not constitute a property right and shall be renewable only if the requirements of this sec- tion . . . are satisfied”; a coastal zone permit that includes an occupancy or development lease, § 911(d)(2) provides, “shall only l6a lands must provide for payment of rental fees; if the permit authorizes dredging, the permit must provide for reclamation fees. § 911(f)(1), (2). Fee schedules are set by the Coastal Zone Management Commission. § 911 (f) (3). A coastal zone permit for public lands may be modified or revoked during its term, upon a determina- tion by the Governor that revocation or modification is in the public interest and necessary to prevent signifi- cant environmental damage. §911(g). The CZMA is careful to avoid retroactive effect by specifying that [njothing herein contained shall be construed to abridge or alter vested rights obtained in a develop- ment in the first tier coastal zone prior to the ef- fective date of this chapter or any occupancy permit or lease of trust lands or other submerged or filled lands issued prior to the effective date of this chap- CO sc 0s § 905(g).® After passage of the CZMA, WICO promptly notified the Virgin Islands Legislature and Governor that it would consider application of the CZMA to it to be a material breach of the Memorandum of Understanding. Negotiations began, and by September of 1981 a com- promise had been worked out. The basic terms of this bargain, embodied in a Second Addendum to the Mem- orandum of Understanding,’ were that WICO would give be granted-for a particular parcel of filled land and for a non- renewable lease period of not more than 20 years.” 6 The “first tier” is defined as “that area extending landward from the outer limit of the territorial sea... to distances inland as specified in the maps incorporated by reference ... .” § 902(r). WICO’s grant area would apparently fall within the first tier. 7 The Second Addendum amended and restated the Memorandum of understanding as amended by the First Addendum. As it incor- porates the entire agreement of the parties, no reference back to the Memorandum is necessary. 17a up about half of its remaining 30-acre claim in exchange for the Virgin Islands Government’s promise to convey to WICO title to the 15 acres left.8 There are many ad- ditional conditions in the Second Addendum. WICO agreed, for example, to specified zoning restrictions and specified limited uses, to a height restriction of three stories, and to reserve a certain percentage of its area for “usable open space.” §11(b). These agreed-upon restrictions, however, apply only to development com- menced within ten years of reclamation and completed within 15 years of reclamation; any development not commenced or completed within these time limits, and “any development beyond that explicitly contemplated by this Agreement,” is controlled instead by the “then current laws,” the CZMA or its future equivalent. §12(a). In addition, the Second Addendum provides that “as to any matters not specifically covered by the Agreement, such as utilities, siting, performance stand- ards, design and landscape, WICO shall be subject to the requirement of a Coastal Zone Management permit.” §12(b). The Virgin Islands Government, for its part, agreed in the Second Addendum that WICO was not to be subject to the charges mandated by § 911 for rental of or removal of dredge fill from publicly-held lands, and that WICO was to be able to use its land free of the use or rental charges imposed by § 911 on publicly- held land. § 19(e). . Like the Memorandum, the Second Addendum provides that after certain conditions are met, a Closing is to be held, at which conveyances and other documents are to be exchanged by the parties; transfer of title is accom- plished after further conditions are met, most impor- tantly completion of reclamation. Once WICO begins reclamation, as it has done, time limits within which 8 According to the intervenors, the eastern anchorage of St. Thomas harbor, the basin in which WICO’s 15 acres is located, is about 400 acres. Moolenaar/Reed Br. at 3. 18a it must finish apply. The Second Addendum follows the Memorandum in stating that when the specified acreage has been reclaimed, “WICO shall have title to and owner- ship of the areas filled . . . provided that WICO is then in compliance with Section 2 of this Agreement requir- ing WICO to fill and provide land for the V.I. Govern- ment,” and that “[e]xcept as otherwise specifically pro- vided herein, this Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and assigns.” § 16(b). The Second Addendum also spe- cifies that nothing contained in it is to affect the rights of the United States or Virgin Islands Governments to acquire by eminent domain or condemation the lands covered by the Addenum. § 19/a). A condition of the Second Addendum was that the CZMA be amended to exempt WICO from its provisions insofar as the Addendum replaced or nullified application of those provisions. The CZMA was duly amended by the Fourteenth Legislature on April 7, 1982 by Act No. 4700. Act No. 4700 added the following paragraph to the Coastal Zone Act: (5) any treaty right, grant, or concession which was vested in any party prior to the date of enact- ment of this chapter and which in whole or in part has been expressly recognized by statute, court order, or lawfully executed agreement as binding on the Government of the Virgin Islands, whether such recognition precedes or succeeds the date of enact- ment of this chapter, and subject to any agreements or Memorandums of understanding pertaining to such right, grant, or concession which have been or may hereafter be ratified by law. 12 V.L.C. § 905(i) (5). In addition, Act No. 4700 rati- fied the Second Addendum “with the full force and effect of law” provided that “the Governor and Departments of the Government of the Virgin Islands, and all instru- a 19a mentalities thereof are authorized and directed, within the scope of their jurisdiction, to execute the terms of such Agreement.” App. at 116. Again, as the inter- venors themselves maintain, there was no lack of oppor- tunity for public comment on the Second Addendum and on Act No. 4700. See supra note 6. On April 16, 1984, the federal court, acting sua sponte, entered an order pursuant to Fed.R.Civ.P. 41(b) dis- missing for lack of prosecution the 1968 action by the Department of the Interior. No appeal was taken from this dismissal, and no motion to reopen has ever been filed. The intervenors, in connection with the present action, unsuccessfully moved for relief from the dis- missal. After the Second Addendum had been ratified and the CZMA amended, WICO began the lengthy process of otbaining permits for reclamation from the United States Army and the Virgin Islands Coastal Zone Management Commission. On March 9, 1983, WICO submitted an application for a federal permit to dredge and fill; WICO received, on February 14, 1985, a permit which would allow it to fill 7.5 acres, but on the condition that archaeological surveys be done prior to the start of any dredging operations.” A Virgin Islands permit was ® The intervenors’ claim that the U.S. Department of Justice “protested the dismissal as error” is not well founded. The October 6, 1984 letter sent by the U.S. Attorney to the district court on this matter was “solely for [the court’s] information and for no other purpose”; it informed the court that the Justice Department was in touch with the Interior Department to determine whether the federal government has any present interest in reopening the litigation. When the Department of the Interior has completed its review and consideration of this matter, this office will take any appropriate action. App. at 699. No further action was taken. © The Army permit only covers WICO’s dredging and filling. It notes as “special conditions” not only the requirement that archae- 20a granted to WICO without substantial additional study, as the Virgin Islands Government considered itself bound by the Second Addendum and Act No. 4700 to allow WICO to proceed pursuant to the terms and lim- itations of that agreement. After doing the required archaeological surveys, WICO began dredging in June of 1986. WICO’s dredging operations created an immediate public uproar. In response, the Sixteenth Legislature called itself into special session and on July 9, 1986 approved a bill to repeal Acts No. 3326 and 4700. The Governor vetoed the bill, deploring the action to abrogate the “long-standing agreement to permit the limited fur- ther development of an already heavily developed harbor- front at Long Bay.” App. at 131. The Legislature, again in special session, overrode the veto on August 11, 1986 to make the Repeal Act, Act No. 5188, law. Sec- tion 1 of the Repeal Act rescinds the two earlier meas- sures, Acts No. 3326 and 4700, in their entirety; Section 2 provides that Any and all activities that are conducted in Long Bay by the West Indian Company, Ltd., shall com- ply with the provisions of the Coastal Zone Manage- ment Act, Title 12, Chapter 21, Virgin Islands Code. Any permit for the development or occupancy of the submerged lands in Long Bay must be sent to the Governor for approval and the Legislature for ratification. ological surveys be conducted prior to dredging, but also that another permit application be submitted to the Department of the Army for review prior to the construction by WICO of a marina on the filled land. The Army permit also repeats the requirement of the Second Addendum that the final plans for proposed development over the filled area be submitted to the Virgin Islands Department of Cultural and Conservation Affairs for review of siting, design, and the like. A a A ea ME: ON a a 2la App. at 130. On August 18, 1986, the Virgin Islands Department of Conservation and Cultural Affairs is- sued a stop order to WICO on the ground that the per- mit already issued to WICO was no longer valid in light of the Repeal Act. On August 14, 1986, WICO filed suit in the district court in the Virgin Islands seeking a temporary restrain- ing order and a preliminary injunction against enforce- ment of the Repeal Act. A hearing on this motion was held on August 19, 1986, and a temporary restraining order forbidding any interference with WICO’s dredging was granted at that time. A hearing on the preliminary injunction was scheduled for August 26, 1986. At the August 14th hearing, the Virgin Islands At- torney General made a special appearance to advise the court that the executive branch of the Virgin Islands Government intended to decline to defend the suit, and to request the court’s permission for the executive not to appear in the case. Because the executive braneh con- sidered the Repeal Act invalid, the Attorney ‘*= a ; i te. # >, = : P > : ty ; ; “ ‘ “i —— i = 117a MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding, dated as of the 3rd day of October, 1973 among THE UNITED STATES DEPARTMENT OF THE INTERIOR (hereinafter called “Interior”), the Government of the Virgin Islands (hereinafter called the “V.I. Government”), THE WEST INDIAN COMPANY, LIMITED (hereinafter called “WICO”), MAJOR JOSEPH BYERS II, MAJOR BY- ERS INVESTMENT ASSOCIATES, (hereinafter col- lectively called “Byers Group’), CARIBBEAN PAR- BOR CLUB, INC., and JORGE SOUSS and JOSE BLANCO LUGO. WHEREAS, in 1913 the Government of Denmark gave to The West Indian Company certain rights to reclaim and fill in St. Thomas Harbor, pursuant to which The West Indian Company constructed a large dock and har- bor basin, leaving a substantial portion of its rights then unexercised ; and WHEREAS, the Convention between the United States and Denmark, covering acquisition of the Danish Virgin Islands; proclaimed on January 17, 1917, provides in Article 3: “It is especially agreed, however, that: (4) The United States will maintain the following grants, concessions and licenses, given by the Danish Government, in accordance with the terms on which they are given: a. The concession granted to ‘Det vestindiske Kompagni’ (The West Indian Company) Ltd. by the communications from the Ministry of Finance of January 18th 1913 and of April 16th 1913 relative to a license to embank, drain, deepen and utilize certain areas in St. Thomas Harbor, and preferen- tial rights as to commercial, industrial or shipping establishments in the said Harbor.” 118a WHEREAS, in 1935, pursuant to informal under- standings between WICO, the Virgin Islands Govern- ment and the U.S. Army Corps of Engineers, fill was placed within the concession area which extended the land area of Lots Nos. 4 and 5, Estate Thomas, Kings Quarters, Virgin Islands, then owned by WICO; and WHEREAS, by deed dated August 18, 1956, WICO conveyed to Major Byers’ Investment Associates Lot No. 4, Estate Thomas, Kings Quarters, St. Thomas, and all right, title and interest therein; and WHEREAS, by deed dated September 11, 1956, WICO conveyed to Joseph Byers II Lot No. 5, Estate Thomas, Kings Quarters, St. Thomas, and all right, title and in- terest therein; and WHEREAS, by deed dated February 15, 1961, Joseph Byers II and Ethel F. Byers conveyed to the Virgin Islands Government Lot No. 5A, Estate Thomas, Kings Quarters, St. Thomas, being a portion of Lot No. 5; and WHEREAS, in 1963 in the course of a harbor reclaim- ing project, the Virgin Islands Government placed fill within the concession area seaward of Lots Nos. 4 and 5, which filling was accomplished with the consent of Major Byers and without discussion with WICO; and WHEREAS, in or about October, 1964, Major Byers’ Investment Associates conveyed said Lot No. 4 and all right, title and interest therein to CARIBBEAN HAR- BOR CLUB, INC., then known as Island Hotels, Ltd.; and WHEREAS, by deed dated April 9, 1965, Joseph Byers II conveyed to Major Byers’ Investment Associates the remaining portion of Lot No. 5; and WHEREAS, by deed dated April 9, 1965 Joseph Byers II conveyed to Major Byers’ Investment Associates all of his right, title and interest in said Lot No. 5?.and 119a WHEREAS, by contract dated September 27, 1966, Major Byers Investment Associates agreed to convey said Lot No. 5 as enlarged by the 19638 fill to Ford Wright, Jr., Adrian Perez-Agudo Albert B. Poe and by deed of October 19, 1936 conveyed all right, title and interest in the said Lot No. 5 to the said parties; and WHEREAS, Ford Wright, Jr., Adrian Perez-Agudo and Albert B. Poe subsequently sold to Jorge Souss and Jose Blanco Lugo a one-fourth share and undivided in- terest in said Lot No. 5 as so enlarged; and Whereas, Ford Wright, Jr., Adrian Perez-Agudo and Albert B. Poe thereafter assigned their remaining inter- ests in Parcel No. 5 as so enlarged to EHG Enterprises, Inc.; and EHG subsequently assigned its interest to CAR- IBBEAN HARBOR CLUB, INC. (then known as Island Hotels, Ltd.) ; and WHEREAS, CARIBBEAN HARBOR CLUB, INC. represents that it has succeeded to such right, title and interest as Ford Wright, Jr., Adrian Perez-Agudo and Albert B. Poe may have had with respect to said Lots Nos. 4 and 5 as so enlarged; and WHEREAS, the United States commenced an action to a quiet title against WICO and others, United States of America v. The West Indian Company et al., Civil No. 337—1968, District Court of the Virgin Islands, Division of St. Thomas and St. John, in which the United States seeks a determination that the United States is the owner of the 1935 and 1963 filled lands and that the re- claiming rights granted to WICO by the Danish Govern- ment have terminated; and WHEREAS, the Government of Denmark, by Note dated June 17, 1970, requested the Government of the United States to respect the above-quoted provision of the Treaty of Cession; and WHEREAS, settlement negotiations commenced, and at the suggestion of the United States Interior Depart- 120a ment such settlement negotiations were pursued by WICO, the Buyers Group and CARIBBEAN Harbor CLUB, INC., with the Virgin Island Government; and WHEREAS, WICO submitted a settlement proposal to the Governor of the Virgin Islands; and WHEREAS, the Governor of the Virgin Islands after consideration ordered a public hearing to be held; and WHEREAS, on October 26, 1971 a public hearing was held in St. Thomas, Virgin Islands at which the “State- ment of West Indian Company re: Proposal for Reclaim- ing Part of Long Bay under its Danish Concession” (hereinafter the “Proposal”} was the subject of public hearing and consideration; and WHEREAS, thereafter the Governor of the Virgin Islands referred the Proposal to the Legislature of the Virgin Islands; and WHEREAS, in consequence of a request.to the Court made by WICO at the pre-trial conference in the above- captioned quiet title action, the District Court recom- mended to the Governor and Legislature of the Virgin Islands favorable consideration of the proposal; and WHEREAS, on October 11, 1972 the Virgin Islands Legislature enacted Act. No. 3326, Ninth Legislature of the Virgin Islands of the United States, Fourth Ses- sion, 1972, which was approved by the Governor of the Virgin Islands on October 30, 1972, and which provides in full as follows: “WHEREAS the United States has instituted an action in the District Court of the Virgin Islands, captioned “United States of America vs The West Indian Company, et al, Civil No. 337—1968 To Quiet Title; and WHEREAS there has been an offer of settlement and compromise put forward by the West Indian Company; and 12la WHEREAS the offer of settlement and compro- mise has been the subject of extensive study, inves- tigation and consideration by the Government of the Virgin Islands, acting through the Legislature and the Governor; and WHEREAS it appears that the offer of settlement and compromise is in the public interest; and WHEREAS the District Court Judge has recom- mended consideration of the settlement offer by the Governor and Legislature of the Virgin Islands; Now, Therefore, BE IT ENACTED by the Legislature of the Virgin Islands: SECTION 1. The Governor of the Virgin Islands in behalf of the Government of the Virgin Islands shall recommend to the United States Department of Interior and the United States Department of Justice the acceptance and implementation of an offer of settlement and compromise substantially in the form presented by The West Indian Company in Statement of The West Indian Company re Pro- posal for Reclaiming Part of Long Bay Under Its Danish Concession, dated October 26, 1971, as modi- fied by letter from The West Indian Company to Governor Melvin H. Evans, dated November 2, 1971; provided that the West Indian Company will deed to the Government of the Virgin Islands a water- front highway in front of its proposed development at Frederiksburg Point, in the event such develop- ment is undertaken and completed; and provided fur- ther that the West Indian Company shall stipulate the period of time within which such Frederiksburg Point development will be undertaken. Thus passed by the Legislature of the Virgin Islands on October 11, 1972.” WHEREAS, the Justice Department took the view that the settlement Proposal encompassed important matters 122a outside the scope of said lawsuit and, therefore, any dis- position should be made under the Territorial Submerged Lands Act (48 U.S.C. § 1701 et seq.) ; and WHEREAS, the parties have now reached agreement on the terms hereinafter set forth, which terms are in substance within the framework of the WICO settlement proposal. WHEREAS, in the circumstances, the conveyances to be made hereunder appear to satisfy a compelling public need in the following respects; among others: (1) an additional two and one-half acres to the public recreation area near Pearson Garden, almost doubling the size thereof, will be provided by WICO; (2) filled land for waterfront highway widening from two to four lanes will be provided by WICO; (3) dredging the harbor in Long Bay will be provided by WICO, thereby benefiting navigation and promoting tourism; (4) the proposed reclamation will enlarge the area of level land for development near the downtown area of Charlotte Amalie, which is presently limited owing to the hilly terrain; (5) the development contemplated of the areas to be reclaimed for marinas, cruise ship berth, and development of offices, apartments, shops and related facilities, will tend to provide additional employment for residents of St. Thomas and enhance facilities for tourism; (6) the termination of any rights remaining to WICO under its Danish grant will eliminate a pos- sible cloud over the future of St. Thomas Harbor, enabling St. Thomas Harbor to be developed on a limited, planned basis, subject to specific time limits; 1238a (7) possible clouds on the title of the V.I. Gov- ernment waterfront recreation area and on the title of waterfront properties of the Byers Group will be eliminated. NOW, THEREFORE, the parties agree as follows: 1. ADDITIONAL RECREATION AREA (a) General. WICO shall fill the red area (Area I) on the attached map headed “Plan of Part of St. Thomas Harbor” dated October 8, 1971 (hereinafter called the “Map”) and quitclaim to the V.I. Government such rights as it may have therein, and the V.I. Government shall make application to the Secretary of the Interior for conveyance to the V.I. Government, pursuant to the Territorial Submerged Lands Act, of such rights as the United States may have in said Area I. (b) Description. The easterly boundary of Area I shall be an extension on the same course, namely S40°-00’W, as the easterly boundary of Lot 5A, Estate Thomas, Kings Quarter, St. Thomas, V.I., as shown in P.W. File No. G9-575-T60. The westerly boundary of Area I shall be an extension on the same course, namely, N80°-00’E as the Westerly boundary of Lot 5A. WICO’s obligation shall be to provide an additional area of two and one-half (214) acres for the V.I..Government, sea- ward of the existing shoreline and between the easterly and westerly boundaries above described, in general keep- ing with the plan of reclamation shown on the Map. Should the area of Area I, as determined by survey pur- suant to Section 6(d) be less than two and one-half (214) acres, WICO may supply the deficiency by further fill seaward on lines in general keeping with the con- tours of the existing shoreline. Alternatively, WICO may supply the deficiency by an adjustment of the east- erly or westerly boundaries of Area I. If the existing Shoreline shall change materially by reason of natural accretion or reliction prior to the date of completion of eee 124a fill, WICO’s obligation shall continue to be the provision of two and one-half (214) additional acres, and appro- priate adjustments shall be made to the seaward boun- dary to achieve this result. (ec) Character of Fill. The fill to be provided for the reclaiming of Area I shall consist substantially of dredge fill from St. Thomas Harbor. WICO’s obligation shall be satisfied by providing fill land of similar kind and char- acter to that presently in place in Area II. Without limiting the foregoing, it is specifically agreed that WICO shall not be obligated, unless required by Federal law, to provide bulkheads, retaining walls, rock fill or other structural improvements. (d) Time Limits. WICO shall commence filling Area I not later than nine (9) months from the Closing Date, and shall complete the filling within one and one-half (114) months from commencement. However, such com- pletion time shall be extended by the period of any delay caused by the United States or the V.I. Government or of any cause of delay reasonably beyond the control of WICO or its contractors, including within such causes without limitation, Government priorities, intervention by or delays caused by civil, naval, or military authori- ties, acts of God (other than ordinary storms or incle- ment wheather [sic] conditions), earthquakes, explosions, ligatning, flood, fire, strikes, or other industrial disturb- ances, riots, insurrections, war, sabotage, vandalism, blockades, enbargoes [sic] or epidemics. WICO shall give written notice to the V.I. Government within seven (7) days after commencement of any such excusabie delay and similar notice of the date when such delay ended. In addition to such occasions for delay, WICO’s obliga- tion to commence filling within nine (9) months is sub- ject to the availability on reasonable commercial terms of a dredge adequate to perform the fill required within the restrictions on dredging elsewhere provided in this Agreement as well as the provisions of applicable law. 125a 2. WIDENING OF FREDERICKSBERG POINT HIGHWAY (a) General. WICO shall provide for the V.I. Govern- ment a fill area within Area V on the map sufficient for the widening of the Fredericksberg Point Highway from two lanes to four lanes. (b) Description. WICO’s obligation shall be to fill and provide for the V.I. Government an area up to thirty-six (36) feet wide parallel to the present shoreline of Fred- ericksberg point, adjacent to the present highway, within the limits of Area V on the Map. The actual width shall be determined by what is required for the widening of the highway from two to four lanes. The parties rec- ognize that engineering, cost or similar considerations may make it advisable to exceed the thirty-six (36) foot width in some places and to decrease the thirty-six (36) foot width in others, an overall result being intended to provide an area not exceeding thirty-six (36) feet in average width, the overall result being to provide an area for widening to a four-lane highway. (ec) Character of Fill. The provisions of Section 1(c) shall apply, subject to the following additional provisions: (i) The fill shall be placed to a height approximately the same as the existing highway. (ii) If WICO should perform the fill for highway widening before proceeding with the reclaiming of the balance of Area V, WICO shall, on [sic] order to protect the road area, place additional dredge fill to a width of twenty (20) feet. Such additional fill would extend from the height of the existing highway to its natural angle of repose. The placing of such fill shall not be deemed to be a commencement of performance by WICO for purpose of Section 6(g). Such additional dredge will shall remain the property of WICO. ae AE eS aN RE ER EEN NTE eH ESN eR 126a (iii) WICO’s obligation is limited to providing a fill area for the widening of the highway and WICO assumes no obligation regarding construction of the highway or the cost thereof. (d) Time Limits. The provisions of Section 1(d) shall apply, except that reference to Area I therein shall refer for this purpose to the area for highway widening. (e) Obligation of V.I. Government. This Section does not require the V.I. Government to construct a roadway on the area herein to be provided for widening. However, if the V.i. Government shall not use the area or any por- tion thereof for highway purposes, it shall grant to WICO a right of way over the area or over any unused portion to and from Area V on the Map during and after reclama- tion thereof by WICO. In any case WICO shall be en- titled to reasonable access from the public highway to and from Area V. 38. CONFIRMATION OF TITLE TO V.I. GOVERN- MENT FILLED LAND WICO shall quitclaim to the V.I. Government all rights it may have in the yellow area (Area II) and to Area II-A on the Map, and the V.I. Government shall make application to the Secretary of the Interior for conveyance to the V.I. Government, pursuant to the Territorial Sub- merged Lands Act, of such rights as the United States may have in said Area II and II-A, and in Lot 5A, Estate Thomas, Kings Quarter, St. Thomas, V.I. as shown in P.W. File No. G-9-575-T60. 4. TERMINATION OF WICO’S UNEXERCISED CONCESSION RIGHTS’ WICO shall quitclaim to the V.I. Government such remaining unexercised rights to reclaim and fill as WICO may have under grant from the Government of Denmark by letters dated January 18 and April 16, 1913. The 127a United States may enter judgment in the lawsuit cap- tioned United States v. West Indian Company, Ltd., et al., Civil No. 337-1968, now pending in the District Court of the Virgin Islands, against all other parties, without costs as to any party. The order entering judgment shall have to WICO all reclaimed areas heretofore reclaimed by WICO itself and all rights to the harbor basin heretofore constructed by WICO. 5. PAYMENT TO THE UNITED STATES The United States shall receive a payment of Forty- Five Thousand Dollars ($45,000). 6. CONVEYANCES (a) General. If the requirements of the Territorial Submerged Lands Act are met, the Secretary of the In- terior shall convey to the Government of the Virgin Is- lands, and the Government of the Virgin Islands shall convey the Filled Lands and Submerged Lands hereinafter described (and the right to reclaim the same) in Long Bay, St. Thomas Harbor, in part to WICO and in part to the Byers Group. The lands to be conveyed are: A. Filled Lands. Lot 5, Estate Thomas, Kings Quarter, as extended by fill in 1963 seaward of Lot 5 and Lot 4, and shown on the Map as Area III. B. Submerged Lands. The areas shown in light blue and dark blue on the attached Map, designated Areas IV, V, VI and VII. The filled Lands and Submerged Lands are more pre- cisely described below. All of the Submerged Lands shown in dark blue (Area IV) and light blue on the Map (Areas V, VI and VII) shall be conveyed to WICO. The Filled Lands, Area III on the Map, and the dark blue area on the Map (Area IV), will be divided among WICO, the CARIBBEAN oe ne 128a HARBOR CLUB, INC., and Jorge Souss and Jose Blanco Lugo by separate Agreement between them. (b) Description of Filled Lands. The Filled Lands consist of (a) Lot No. 5, Estate Thomas, Kings Quar- ter, as described in P.W. Drawing No. G-9-432T56 an- nexed to deed dated September 11, 1956 from WICO to Joseph Byers II, less the portion thereof conveyed as Lot No. 5A Estate Thomas, Kings Quarter, by deed dated February 15, 1961 from Joseph Byers II and Ethel F. Byers to the Government of the Virgin Islands, as de- scribed in P.W. File No. G9-57 5-T60 (said Lot No. 5, as so reduced, being elsewhere referred to in this agree- ment as “Lot No. 5’); plus (b) the fill area seaward of Lot No. 5 and Lot 4, Estate Thomas, Kings Quarter, placec by the V.I. Government during dredging operations in 1963. (c) Deed to Filled Lands; Escrow. The Grantee to be named in the deed to the Filled Lands shall be as provided in Paragraph “10(d) (ii)”. At the closing the deed shall be delivered in escrow to First National City Bank, St. Thomas, U.S. Virgin Islands. to be delivered on joint written instructions from CARIBBEAN HARBOR CLUB, INC. and Jorge Souss and Jose Blanco Lugo, the Byers Group and WICO. [sic! (d) Description of Submerged Lands; Survey. The submerged Lands are shown in Areas IV, V, VI and VII on the Map. A survey shall be made‘githin 90 days from the execution hereof which shall determine the precise description of such Areas as well as Areas I, II, [I-A and III. WICO will undertake to provide such a survey, which shall be subject to the approval of the V.I. Govern- ment and the Department of the Interior which approval shall, however, not unreasonably be withheld. Failure to take specific written exceptions to such survey within thirty (30) days following receipt thereof shall conclu- sively establish acceptance thereof. | 129a (e) Character of Rights. The right on WICO’s part to reclaim Areas IV, V, and VII is a right on WICO’s part to perform the reclaiming and does not impose an obliga- tion on WICO’s part to be performed. (f) Character of Fill. The fill of Areas IV, V, VI and VII shall consist substantially of dredge fill from St. Thomas Harbor. WICO shall be entitled to provide such bulkheading, retaining wall, rock fill and similar struc- tures as it may deem appropriate. Prior to construction of any structures on any on any [sic] reclaimed areas, the owner of such area shall provide necessary connections to the public sewerage system so that wastes will not be discharged into the Harbor. (g) Time Limits. As to Areas IV and V on the Map, WICO shall commence reclaiming not later than five (5) years following the Closing Date. As to Areas VI and VII on the Map, WICO shall commence filling not later than ten (10) years following the Closing Date. These time limits are to be extended by the duration of any major decline in tourism in St. Thomas, which shall mean any six-month period during which the number of visitors to St. Thomas shall be thirty percent (30%) less than dur- ing the comparable period of 1972; the period of exten- sion for this reasen shall in no event exceed five (5) years. Once work is commenced as to a particular Area, WICO shall proceed with reasonable diligence to completion of that Area. If WICO fails, without reasonable cause, to proceed, the V.I. Government shall have the right, after ninety (90) days written notice (which shall include a demand to proceed), to terminate the reclaiming rights as to the uncompleted porticn of such Area. With respect to Area IV, such notice shall also be sent to CARIBBEAN HARBOR CLUB, INC., Jorge Souss and Jose Lugo Blanco, who, upon WICO’s failure to proceed shall have the right to complete Area IV at WICO’s expense. Rea- sonable cause shall be such causes as a major decline in 130a tourism (as above defined) and causes of the sort de- , scribed in Section 1(d). For purposes of this subpara- graph, work shall not be deemed to have commenced as to a particular Area because of the mere placing of in- cidental fill resulting from the performance of work in some other Area. 7. DREDGING The dredge area shall be the area from Anchorage Area B on U.S. Coast Guard and Geodetic Survey Chart No. 933 to and along the WICO dock and in Anchorage Area A, on Chart No. 933 to such limits as necessary for accomplishment of the fill. Dredging is to be performed by the hydraulic suction type system and not by open mechanical means in order to avoid undue effects on water quality. Dredging will be montiored by the V.I. Health Department at the expense of WICO in order to ensure observance of this require- ment as well as for compliance with any certifications under the Federal Water Pollution Control Amendments of 1972. 8. WATERFRONT HIGHWAY (a) General. With one (1) year following completion of reclaiming of Area V, WICO will construct and dedi- cate to the V.I. Government a waterfront highway within Area V. Said time limit shall be subject to the causes of delay set out in Section 1(d). (b) Character of Construction. The waterfront high- way shall be two lanes, approximately thirty (30) feet wide, black top or equivalent construction comparable to secondary roads in St. Thomas. (c) Location. The waterfront highway shall roughly parallel the waterfront perimeter of Area V. The sea- ward boundary of the highway may in WICO’s discretion be set back from the shore not more than eighty (80) l3la feet along the east and west boundaries of Area V, and not more than one hundred (100) feet on the south boundary. The purpose of such permissible set backs is to allow access and service space for marinas on the east and west sides and to allow apron and other space for servicing a cruise ship berth to be located on the south boundary. (d) Preservation of View. In order to preserve a view of the harbor from the waterfront highway, structures to be erected in the area between the highway and the shore shall not exceed in the aggregate twenty percent (20%) of the linear footage of the entire shorefront perimeter of Area V. (e) Right of Way. The V. I. Government shall grant to WICO a right of way to extend, and WICO shall ex- tend, the waterfront highway through and over Area II-A on the Map, so as to connect with the existing Fredericksberg Point Road (as the same may be en- larged to four lanes). (f) Acceptance of Dedication. Upon completion of the waterfront highway as extended, the V.I. Government shall accept a dedication thereof and shall maintain the same as a public highway. Should the V.I. Government refuse to accept such dedication, or should the V.I. Gov- ernment, following acceptance of dedication, devote such highway to purposes other than highway purposes, all right, title and interest in said highway shall revert to WICO. 9. ENDORSEMENT OF V.I. GOVERNOR This Agreement shall constitute: (a) a request, pursuant to the Territorial Submerged Lands Act, by the Governor of the Virgin Islands to the Secretary of the Interior to convey submerged lands and filled lands in accordance with the terms of this Agree- ment; and 132a (b) an application, pursuant to the Territorial Sub- merged Lands Act, for a United States Department of the Interior Submerged Lands Permit or other authoriza- tions, authorizing the dredging, filling, and other work contemplated by this Agreement, with the endorsement of the Governor of the Virgin Islands in favor thereof to the Secretary of the Interior; and (ec) an endorsement of the Governor of the Virgin Islands in favor of an application, pursuant to Section 10 of the River and Harbor Act of 1899 (33 U.S.C. § 403) and Section 404 of the Federal Water Pollution Control Act Amendments of 1972 (33 U.S.C. § 1344) and other related acts, for a United States Army Corps of Engineers permit or other authorizations, authorizing the dredging, filling, and other work contemplated by this Agreement. Notwithstanding the foregoing, WICO shall not be relieved of the requirement, if applicable, of obtaining a certification under Section 401 of the Federal Water Pollution Control Act Amendments of 1972 (33 U.S.C. § 1341). 10. CLOSING The Closing shall take place on twenty (20) days prior written notice by WICO to the other parties. Such date is referred to in this Agreement as the Closing Date. The closing shall take place at the offices of the Attorney General of the Virgin Islands, St. Thomas, V.I. At or prior to the closing, the following shall be delivered: (a) WICO, the Byers Group, CARIBBEAN HARBOR CLUB, INC., Jorge Souss and Jose Blanco Lugo shall deliver to the V.I. Government: (i) a cashiers or certified check in the amount of Forty-Five Thousand Dollars ($45,000). (ii) A conveyance or release from WICO in form satisfactory to the Solicitor or Assistant Solicitor 133a of Interior quitclaiming to the United States the rights described in Section 4. (iii) Stipulations from each of the parties (other than the United States) to United States v. West Indian Company, Ltd., et al., Civil No. 337-1968, District Court of the Virgin Islands, in form satis- factory to the Solicitor or Assistant Solicitor of Interior consenting to the entry of judgment in favor of the United States and against all other par- ties, without costs as to any party, including the reservation of rights described in Section 4. (iv) An opinion of counsel for WICO that WICO is a corporation duly organized and existing under the laws of the Virgin Islands, and this Agreement and all instruments to be delivered hereunder by WICO have been duly authorized, executed and de- livered by WICO and are legal, valid and binding obligations of WICO enforceable in accordance with their terms. (v) An opinion of counsel for the Byers Group that Major Byers Investment Associates is a cor- poration duly organized and existing under the laws of the Virgin Islands; that this Agreement and all instruments to be delivered hereunder the Byers Group have been duly authorized and delivered by, and are legal, valid and binding obligations of, the person or corporation comprising the Byers Group executing the same. (vi) An opinion of counsel for the CARIBBEAN HARBOR CLUB, INC. that it is a corporation duly organized and existing under the laws of the U.S. Virgin Islands and has duly qualified to engage in business in the Virgin Islands; that CARIBBEAN HARBOR CLUB, INC. has succeeded to all right, title and interest to Lot No. 5, as defined in Section 6(b), except as to the one-fourth share owned by 134a Jorge Souss and Jose Blanco Lugo; that this Agree- ment and all instruments to be delivered hereunder by CARIBBEAN HARBOR CLUB, INC. have been duly authorized, executed and delivered by, and are legal, valid and binding obligations of CARIBBEAN HARBOR CLUB, INC. (b) WICO, the Byers Group and CARIBBEAN HAR- BOR CLUB, INC. shall deliver to the V.I. Government: (i) quitclaim deed from WICO to the V.I. Gov- ernment in form satisfactory to the V.I. Attorney General, quitclaiming such rights as it may have in Areas II and II-A. (ii) Opinions of counsel described in Subsections (a) (iv), (v) and (vi) of this Section. (c) If all applicable requirements of the Territorial Submerged Lands Act have been met and complied with, including approvals by U.S. Congressional Committees, Interior shall deliver to the V.I. Government: (i) A conveyance from the Secretary of the In- terior, pursuant to the Territorial Submerged Lands Act, conveying to the V.I. Government all right, title and interest of the United States in and to areas I, II and II-A, and Lot No. 5A, Estate Thomas, Kings Quarter, St. Thomas, V.I. as shown on P.W. File No. G-9-575-T60. (ii) A conveyance from the Secretary of Interior, pursuant to the Territorial Submerged Lands Act, conveying to the V.I. Government all right, title and interest of the United States in and to the filled land as described in Section 6(b) and Areas IV, V, VI and VII, for reconveyance in accordance with the terms of this Agreement. (d) The V.I. Government shall deliver to WICO, CAR- IBBEAN HARBOR CLUB, INC., Jorge Souss and Jose Blanco Lugo: 135a (i) A conveyance from the V.I. Government, pur- suant to the Territorial Submerged Lands Act, in form satisfactory to counsel for WICO, conveying subject to the appropriate conditions of this Agree- ment, to WICO of all right, title and interest of the V.I. Government in Areas IV, V, VI and VII. (ii) Conveyances pursuant to the Territorial Sub- merged Lands Act, in form satisfactory to counsel for WICO, CARIBBEAN HARBOR CLUB, INC., Jorge Souss and Jose Blanco Lugo, from the V.I. Government conveying all right, title and interest of the V.I. Government in the Filled Lands as de- scribed in Section 6(b), as follows: (a) As to that portion of the Filled Lands shown in Public Works Drawing No. F9-1884- T66, an undivided three-fourths (°4) interest to CARIBBEAN HARBOR CLUB, INC., and the remaining undivided one-fourth (14) in- terest to Jorge Souss and Jose Blanco Lugo, or to such other grantee or grantees as shall be stated in a joint written notice to the V.I. Gov- ernment signed by said parties and WICO. (b) To CARIBBEAN HARBOR CLUB, INC., the remaining portion of the Filled Lands, or to such other grantee or grantees as shall be stated in a joint written notice to the V.I. Government signed by CARIBBEAN HARBOR CLUB, INC. and WICO. (iii) An opinion of the Attorney General of the Virgin Islands to effect that this Agreement and the conveyances hereunder have been duly authorized, executed and delivered and are legal, valid and bind- ing obligations enforceable in accordance with their terms. a 136a 11. GENERAL CONDITIONS (a) The obligation of WICO to close this Agreement shall be subject to the following conditions: (i) Army Corps of Engineers Permit. The Army Corps of Engineers shall have granted, pursuant to Sec- tion 10 of the River and Harbor Act of 1899 (33 U.S.C. § 403) and Section 404 of the Federal Water Pollution Control Act (33 U.S.C. § 13844) and other related acts, permit or other authorizations authorizing the dredging, filling, and other work contemplated by this Agreement, which permit or authorizations shall be in form and sub- stance satisfactory to counsel for WICO. (:i) Compliance with Territorial Submerged Lands Act. All appropriate action required to have been taken under the Territorial Submerged Lands Act (48 U.S.C. §$ 1701-1704) to authorize the conveyances contemplated by this Agreement and otherwise to carry out this Agree- ment shall have been taken by the Department of Interior and by the V.I. Government, including the proper submis- sion by the Secretary of Interior to the Committees on Interior and Insular Affairs of the House of Representa- tives and the Senate. (iii) Compliance With Other Laws. All appropriate action required to have been taken udner the National Environmental Protection Act of 1969 (42 U.S.C. § 4321- 4347), the Federal Water Pollution Control Act Amend- ment of 1972 (33 U.S.C. § 1251, et seq.), the Fish and Wildlife Coordination Act (16 U.S.C. § 661-666c) and any other applicable laws, both under Federal and Virgin Island Law, have been taken. (iv) Zoning. The Zoning Maps of St. Thomas shall have been exterded and amended so that the following Areas shall be zoned as follows: 137a Areas: Zone: III Zone W-1 or R-3 IV Zone W-1 or R-3 V Zone W-1 VI Zone W-2 (b) It is understood that neither the Department of the Interior nor the Virgin Islands Government can bind themselves to fulfill the foregoing conditions. However, all parties express their intentions to use their best efforts to meet the conditions within the limits of applicable law. 12. PRESERVATION OF MODIFIED SHORELINES This Agreement adjusts the differences among the par- ties as to reclamation rights in Long Bay, St. Thomas. Consequently, it is agreed that neither the United States nor the V.I. Government will reclaim except for public purposes pursuant to the powers of eminent domain, or permit others to reclaim, submerged lands seaward of the areas for reclamation shown on the Map. 13. REPRESENTATIVE OF BYERS GROUP The Byers Group designates James Bough, Esq., P.O. Box 879, St. Thomas, V.I., as its attorney-in-fact with repect to all matters relating to this Agreement, perform- ance or modification thereof. No member of the Byers Group may terminate the authority of such attorney-in- fact without giving written notice, by registered mail, to each of the other parties to this Agreement. Such notice shall designate a successor attorney-in-fact. Such designa- tion of an attorney-in-fact or successor shall survive the death or incapacity of any individual member of the Byers Group. 14. REPRESENTATIVE OF V.I. GOVERNMENT The Representative of the V.I. Government authorized to represent the V.I. Government with respect to all mat- ters relating to this Agreement, performance of modifica- 138a tion thereof, shall be the Attorney General of the Virgin Islands, or such other government official as the V.I. Governor may from time to ‘time designate as successor representative by written notice by registered mail to the other parties hereof. 15. ASSIGNABILITY (a) WICO’s rights to dredge and reclaim are not to be assignable. However, WICO is to be entitled to pro- ceed through a limited partnership, syndicate or other legal form of joint venture customary in real estate development so long as WICO remains responsible for fulfillment of its obligations hereunder and retains a substantial interest in such a joint venture. (b) Once reclaimed, the areas filled shall belong to WICO in fee simple (except as otherwise provided as to Area IV), subject to applicable zoning requirements, and provided that WICO is then in compliance with Sections 2 and 8 of this Agreement requiring WICO to fill and provide land for the V.I. Government. Except as otherwise specifically provided herein, this Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and assigns. 16. NOTICES and COMMUNICATIONS To Interior United States Department of the Interior Washington, D.C. 20240 Attn: Director, Office of Territorial Affairs CC: Assistant Solicitor—Territories To the V.I. Government Attorney General of the Virgin Islands Department of Law P.O. Box 280 St. Thomas, Virgin Islands of U.S. 00801 139a To WICO The West Indian Company Limited P.O. Box 660 St. Thomas, Virgin Islands of U.S.A. 00801 Attn: President CC: Thomas D. Ireland, Esq. P.O. Box 100 St. Thomas, Virgin Islands, 00801, and Haight, Gardner, Poor & Havens One State Street Plaza New York, New York 10004 Atten: S. C. Miller, Esq. To Byers Group James A. Bough, Esq. as Representative for Byers Group P.O. Box 879 St. Thomas, Virgin Islands of U.S.A. 00801 To CARIBBEAN HARBOR CLUB, INC. P.O. Box 13171 Santurce, Puerto Rico 00908 Attn: Chairman of the Board CC: Mr. Hector Ceinos P.O. Box 9065 Santurce, Puerto Rico 00908 William C. Loud, Esq. P.O. Box 1686 St. Thomas, Virgin Islands 00801 TO: Jorge Souss P.O. Box 4551 San Juan, Puerto Rico 00905 TO: Jose Blanco Lugo C/O Jorge Souss P.O. Box 4551 San Juan, Puerto Rico 00905 140a 17. ACCEPTANCE Upon receipt of a written notice from WICO that the work contemplated with respect to an Area, or highway widening pursuant to Section 2, or construction of wa- terfront highway pursuant to Section 8, has been com- pleted and is ready for final inspection and acceptance, the Representative of the V.I. Government (or in case of Area IV, CARIBBEAN HARBOR CLUB, INC., Jorge Souss and Jose Blanco Lugo, shall promptly cause such inspection to be made and (a) shall promptly issue a final acceptance certificate under his signature, stating that such work is acceptable and fully performed and accepted pursuant to the terms and conditions of this Agreement and such certificate shall be deemed to be a full performance and discharge of the obligations of WICO thereunder, without any agreement, representation or warranty, expressed or im- plied, by WICO as to its physical condition, or fitness for any use whatsover or against any defects whether patent or latent. (b) in lieu of such certificate, shall promptly deliver to WICO in writing under his signature a statement stating a just and true reason for not issuing such cer- tificate and stating the defects, if any, to be remedied, to entitle WICO to such certificate. Failure to deliver such a statement within ten (10) days of receipt of no- tice shall constitute acceptance within the terms of sub- paragraph (a). 18. MISCELLANEOUS (a) Eminent Domain. Nothing in this Agreement shall affect the rights of the United States or the V.I. Government to acquire by eminent domain or condemna- tion any of the lands or rights therein which are the subject of this Agreement. 1l4la (b) Extensions df Time and Other Matters Relating to Performance. Following the Closing, any matters relating to per- formance or modification of this Agreement may be ad- justed or disposed of by agreement between the V.I. Gov- ernment and WICO, provided that no material enlarge- ment of the seaward bounds of the fill areas may be accomplished without compliance with the Territorial Submerged Lands Act. (c) Rights of Others. As to Area VII, it is understood that WICO’s rights to reclaim are subject to WICO’s obtaining appropriate consents from the riparian owners (other than WICO itself). (d) WICO Authorized to Make Permit Applications. To the extent that it may be necessary or advisable for the Byers Group or CARIBBEAN HARBOR CLUB, INC., or Jorge Souss, or Jose Blanco Lugo to join in any of the following applications, the Byers Group, CARIB- BEAN HARBOR CLUB, INC., Jorge Souss and Jose Blanco Lugo authorize WICO or its attorneys on behalf of the Byers Group, CARIBBEAN HARBOR CLUB, INC., Jorge Souss and Jose Blanco ,Lugo, respectively, to join in such applications and to take such steps as may be advisable to accomplish the same: (i) an application (including amendments, renewals, and extensions thereof), pursuant to Section 10 of the River and Harbor Act of 1899 (33 U.S.C. $403) and Section 404 of the Federal Water Pallution Control Act Amendments of 1972 (33 U.S.C. § 1344) and other re- lated acts, for a United States Army Corps of Engineers permit or other authorizations, authorizing the dredging, filling, and other work contemplated by this Agreement. (ii) an application (including amendments, renewals, and extensions thereof), pursuant to Section 401 of the Federal Water Pollution Control Act Amendments of 4 142a 1972 (33 U.S.C. § 1341), for certification, authorizing the dredging, filling and other work contemplated by this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above writ- ten. United States Department of Interior By: Director, Office of Territorial Affairs Government of the Virgin Islands By: /s/ Melvin H. Evans MELVIN H. EVANS Governor The West Indian Company, Limited By: /s’ [Illegible] President Attest: s/ [Illegible] Secretary s/ Major Joseph Byers II MAJOR JOSEPH Byers IT Major Byers Investment Associates By: ‘s’ Major Joseph Byers II President Attest: s/ Ethel F. Byers 143a CARIBBEAN HARBOR CLUB, INC. By: /s/ [Illegible] Chairman of the Board and Chief Executive Officer Attest: s/ [Illegible] Secretary s/ Jorge Souss JORGE SOUSS s/ Jose Blanco Lubo Jose BLANCO LUBO ~ voediV P — 0? £. — Pda1Y C33 " a 4 a ie, oy - —, Ce oer ffl swt7 tated ZA! i = Siok d AEX. LPs Lore! party Pee fvesena EN . “wll 7 vorrse2uve P AT very burypeta 7 — -¢ POHL 144a eee ee v oe? _—_——— he x-d ----~4 ety, ~ oe == =. tf §-"t-J pwrsel T / - gt ae as _ nr ° ° - * . ° . . in i | : - P46: 6 S$ 490 “OGG > Gt tt F545 7S Stam “at °c AQ Fesveos ° , - ’ ee ° . . carpe , . @ as Ct6 20fad SD * ae EER NOTESZINGY Cte. ! "perry ° ee —.- ee > r _-" ' , s+ _- _~\ - 7 rm Jy {A0% ae : Al ve Ly al iy cl | rac ct.’ : ua Way 4 pat § > ape \, ae . oe es De - VOCSUY SWRONS “ES 20 S¥Ve 20 “ug iMeuez,IaA vaN NJ 10} praqd Soa TM £Q PAUTEZAL FupaQg UoTSSDoung f2 WOFIAOGS ‘pati coa'iss 4a dn uvuaata® Ruteq uatssaIUO) jv UOTIASYG SazaaUT VdAeN B4HDeR F “OHTI*S VFARISQ LAPIATL 32Q OF -TTHA PUCT MAN ous 9.a09 23 aasy § °PAGt*9N°I RH fq FOTTF? 99 OF -PUET 20K NS ‘oatf tor) UeETeur asoy AQ PueAT SUED 9A OF FTIha. Fe SEV se Sy fw-- TAaAyY YVOTICIIII) PJUuUauUsAe AVS) a ae) (Poconos | on pangs See ™ She Keke: >° Leer e ° were oD y? yrey ON W TET freary 7ICowsL/ ? 7 7 f \ BO Ree TREY PN II STING BEDE SY) Qe Rly ug NA Yep WS AP jon VNGANS GRE I I PW PL OV Wage wal yet oh ly BOY scceaell Fo _ —_ —_—_— — eC 145a FIRST ADDENDUM TO MEMORANDUM OF UNDERSTANDING DATED AS OF THE 38RD DAY OF OCTOBER, 1973 This FIRST ADDENDUM made as of the 28th day of October, 1975 to Memorandum of Understanding made as of the 3rd day of October, 1973 among THE UNITED STATES DEPARTMENT OF THE INTERIOR (here- inafter called “Interior’’), the Government of THE VIR-— GIN ISLANDS (hereinafter called the “V.I. Govern- ment”), THE WEST INDIAN COMPANY, LIMITED (hereinafter called “WICO”), MAJOR JOSEPH BYERS II, MAJOR BYERS INVESTMENT ASSOCIATES (hereinafter collectively called “Byers Group”), CARIB- BEAN HARBOR CLUB, INC. and JORGE SOUSS and JOSE BLANCO LUGO. WHEREAS, Public Law 93-435, 88 STAT. 1210 ap- proved October 5, 1974 (hereinafter “the Act”) conveys, subject to the reservations therein set forth, to the Gov- ernment of the Virgin Islands the right, title and inter- est of the United States in and to the filled lands and submerged lands which are the subject of this Memo- randum of Understanding; and WHEREAS, the parties understand that the convey- ance accomplished by Subsection (a) of the first section of the Act includes any right, title and interest which the United States may acquire under or by virtue of said Memorandum of Understanding, including, without limi- tation, Section 4 thereof; and WHEREAS, the parties denied to make provisions re- garding the effect of such conveyance; and WHEREAS, it is desired to correct an error in the description of certain of the areas subject to the Memo- randum of Understanding and to correct an error in re- spect to the V.I. Government agency authorized to moni- tor dredging. 146a NOW, THEREFORE, it is agreed that the Memoran- dum of Understanding dated as of the 3rd day of Octo- ber, 1973 be amended as follows: I (A) There shall be deleted from Section l(a) the following: “and the V.I. Government shall make application to the Secretary of the Interior for conveyance to the V.I. Gov:rnment, pursuant to the Territorial Sub- merged Lands Act, of such rights as the United States may have in said Area I.” (B) There shall be deleted from Section 3 the follow- ing: “and the V.I. Government shall make application to the Secretary of the Interior for conveyance to the V.I. Government, pursuant to the Territorial Sub- merged Lands Act, of such rights as the United States may have in said Area II and II-/ and in Lot 5A, Estate Thomas, Kings Quarter, St. Thomas, V.I. as shown in P.W. File No. G-9-575-T60.” (C) The first line of Section 4 shall be amended to read as follows: “WICO shall quitclaim to the V.I. Government EEF (D) Section 5 shall be amended to read as follows: “5. PAYMENT TO THE VIRGIN ISLAND [sic] GOVERNMENT. The Virgin Island [sic] Government shall receive a payment of Forty-Five Thousand Dollars ($45,000).” (FE) There shall be deleted from Section 6(a) the following: “If the requirements of the Territorial Submerged Lands Act are met, the Secretary of the Interior 147a shall convey to the Government of the Virgin Is- lands, and” (F) There shall be deleted from Section 6(d) the following: “and the Department of the Interior” (G) There shall be deleted from Section 9 subsections (a) and (b) thereof. (H) Section 10 shall be modified in the following re- spects: (1) By changing the words “to Interior’ in the second line of Section 10(a) to read “to the V.I. Government” ; (2) By amending Section 10(a) (ii) to read as follows: “(ii) A conveyance or release from WICO in form satisfactory to the V.I. Attorney General the rights described in Section 4.” (3) By deleting Section 10(c). (4) By deleting the words “pursuant to the Ter- ritorial Submerged Lands Act” from Section 10(d) (i) and (ii). (I) Section 11 shall be modified by deleting Section 11 (ii). These foregoing amendments to the Memorandum of Understanding shall become effective One Hundred Twenty (120) days after enactment of the Act, subject to the authority of the President to designate certain submerged lands pursuant to Subsection (b) (vii) of the first section of the Act. To the extent that said au- thority is exercised with respect to the lands which are the subject of the Memorandum of Understanding, these amendments shall be inapplicable. 148a IT The Memorandum of Understanding is hereby amended effective upon the execution of this Addendum, as follows: (A) Section 1(b) shall be amended to read as follows: “(b) Description. The easterly boundary of Area I shall be an extension of the easterly boundary of Parcel 5A, Estate Thomas, Kings Quarter, St. Thomas, V.I., namely S40°00’W, as shown on P.W. File No. G9-575 T60. This bearing is now correlated to Lambert Grid and has a bearing of S32°47’39”W. The easterly boundary of Area I shall extend for a distance of approximately 205 feet from the inter- section of the course of the easterly boundary of Lot 5A with the existing shore line. The westerly boun- dary of Area I shall have a direction related to Lam- bert Grid of S46°21’43”W starting from the bound post at the Southwestern corner of Parcel 5A, and shall extend for a distance of approximately 204 feet from the intersection of the course with the existing shore line. WICO’s obligation shall be to provide an additional area of two and one-half (2-1/2) acres for the V.I. Government, seaward of the existing shortline and between the easterly and westerly boundaries above described, in general keeping with the plan of reclamation shown on the Map. Should the area of Area I, as determined by survey pursuant to Section 6(d) be less than two and one-half (2 1/2) acres, WICO may supply the deficiency by further fill seaward on lines in gen- eral keeping with the contours of the existing shore- line. Alternatively, WICO may supply the deficiency by an adjustment of the easterly or westerly boun- daries of Area I.” (B) Section 7 shall be modified by changing the words “V.I. Health Department” in the fourth line of the sec- OE EE SE SE ES PGF Ee, rasa ae ae ee 149a oan ond paragraph to read “V.I. Department of Conserva- tion and Cultural Affairs (or such other agency of the V.I. Government as may be authorized to monitor such dredging) .” IN WITNESS WHEREOF, the parties have executed this Addendum as of the day and year first above written. UNITED STATES DEPARTMENT OF INTERIOR By /s/ Illegible Director, Office of Territorial Affairs GOVERNMENT OF THE VIRGIN ISLANDS By /s/ Cyril E. King CyrRIL E. KING, Governor THE WEST INDIAN COMPANY, LIMITED By /s/ Illegible President ATTEST: /s/ Illegible Secretary /s/ Major Joseph Byers II MAJOR JOSEPH BYERS II MAJOR BYERS INVESTMENT ASSOCIATES By /s/ Major Joseph Byers II President ATTEST: /s/ Ethel F. Byers ATTEST: /s/ Ullegible 150a CARIBBEAN HARBOR CLUB, INC. By /s/ Illegible Chief Executive Officer /s/ Jorge Souss JORGE SOUSS /s/ Jose Blanco Lugo JOSE BLANCO LUGO a l5la SECOND ADDENDUM TO MEMORANDUM OF UNDERSTANDING DATED AS OF THE 38RD DAY OF OCTOBER, 1973 (Revised ) This SECOND ADDENDUM made as of the — day of —————-, 1981, to Memorandum of Understanding made as of the 3rd day of October, 1973 among the GOVERNMENT OF THE VIRGIN ISLANDS (here- inafter called the “V.I. Government”), THE WEST INDIAN COMPANY, LIMITED (hereinafter called WICO), THE ESTATE OF MAJOR JOSEPH BYERS II, MAJOR BYERS INVESTMENT ASSOCIATES (hereinafter collectively called “Byers Group”), CARIB- BEAN HARBOR CLUB, INC and JORGE SOUSS and JOSE BLANCO LUGO, as amended by a First Addendum thereto made as of the 28th day of October, 1975. WHEREAS, subsequent to said Memorandum of Un- derstanding and the First Addendum thereto, Act No. 4248. Twelfth Legislature of the Virgin Islands was enacted, adding to Title XII, Virgin Islands Code, a new Chapter 21, entitled “Virgin Islands Coastal Zone Man- agement”; and WHEREAS, WICO has asserted that Act No. 4248 con- stituted a material breach of the Memorandum of Under- standing and that the V.I. Government has committed certain other breaches of the Memorandum of Under- standing which breaches are continuing, and that such breaches entitle WICO to damages from the V.I. Govern- ment in amounts exceeding $5,000,000 and other relief; and WHEREAS, the V.I. Government denies that any breaches have occurred; and WHEREAS, the parties wish to compose their differ- ences and to further amend the Memorandum of Under- standing. 152a NOW, THEREFORE, it is agreed that the Memoran- dum of Understanding dated as of the 3rd day of October, 1973, as amended by the First Addendum thereto dated as of the 28th day of October, 1975, be further amended and restated to read in full as follows: 1. ADDITIONAL AND MODIFIED RECERATION AREA (a) General. WICO shall fill the areas marked Area A-1 and Area A-2 on the attached plan, captioned Plan attached to Second Addendum to Memorandum of Un- derstanding, hereinafter referred to as the “Plan”. (b) Character of Fill. The fill to be provided for the reclaiming of Areas A-1 and A-2 shall consist substan- tially of dredge fill from St. Thomas Harbor or clean upland fill in WICO’s discretion. It is specifically agreed that WICO shall be obligated to provide only such bulk- heads, retaining walls, rock fill or other structural im- provements as are required by Federal law or in the judgment of the V.I. Government (presently represented by the Department of Conservation and Cultural Affairs (“DCCA”)) are necessary to meet minimum sound engi- neering practice. WICO shall be entitled to place said Improvements on the Area to be retained by WICO. (ec) Time Limits. WICO shall commence filling Areas A-1 and A-2 not later than nine (9) months from the Closing Date, and shall complete the filling within six (6) months from commencement. However, such time limits shall be extended by the period of any delay caused by the United States or the V.I. Government or of any cause of delay reasonably beyond the control of WICO or its contractors, including without limitation, intervention by or delays caused by civil, naval or military authori- ties, acts of God (other than ordinary storms of inclement weather conditions), explosions, fires, strikes, riots, insur- rections, war or embargoes. In the event of such a delay, WICO shall give written notice to the V.]. Government 153a within seven (7) days after commencement of any such delay and shall specify the reason for the delay and the likely length of the delay, and shall give similar notice of the date when the delay ends. In addition to such oc- casions for delays, WICO’s obligation to commence filling within nine (9) months is subject to the availability on reasonable commercial terms of a dredge adequate to perform the fill required within the restrictions on dredg- ing elsewhere provided in this Agreement as well as the provisions of applicable law. (d) Conveyances. (1) At the Closing WICO shall de- liver into an escrow account to be established a quitclaim deed conveying to the V.I. Government all right, title and interest of WICO in that portion of Area A on the Plan marked Area A-l, such Area A-1 to consist of 2.1 acres. The lines shown on the Plan are approximate, it being understood that the area to be conveyed is 2.1 acres, sea- ward of the existing shoreline and between the existing shoreline adjacent to Veterans Drive and the existing shoreline of Areas II and II-A shown on the Map annexed to the original Memorandum of Understanding, in general keeping with the area shown on the Plan. Should the area of Area A-1 be less than 2.1 acres, WICO may sup- ply the deficiency by further fill seaward on lines in general keeping with the contours of the shoreline exist- ing immediately prior to commencement of the fill. Alter- natively, WICO may supply the deficiency by an adjust- ment of the easterly boundary of Area A-1. (2) At the Closing the V.I. Government shall deliver into an escrow account to be established a quitclaim deed conveying to WICO all right, title and interest in that portion of Area A on the Plan marked Area A-2, such Area A-2 presently being snbmerged lands and consist- ing of approximately 2.2 acres. (3) At the Closing the V.I. Government shall deliver into an escrow account to be established a quitclaim deed conveying to WICO all right, title and interest of the V.I. 154a Government in the area shown on the Plan as Area A-3, such Area A-3 to consist of 1.1 acres, which land is presently filled land. The lines shown on the Plan are approximate, it being understood that the area to be conveyed is 1.1 acres. To the extent that Area A-3 is more or less than 1.1 acres, the excess or deficiency shall be adjusted by adjusting the westerly boundary of Area A-3. (4) The deeds referred to in subsections (2) and (3) hereof shall include the right on the part of WICO to construct docks and piers for marina purposes within the area shown as A-4 on the Plan, but WICO shall not acquire title to such Area A-4. With respect to Area A-4, until WICO gives notice to the V.I. Government that it is proceeding with the con- struction of docks and piers for marina purposes, the Department of Conservation and Cultural Affairs shall have the right to grant mooring rights, but such rights shall be terminable on not more than 90 days’ notice. 2. (Deleted) 38. CONFIRMATION OF TITLE TO V.I. GOVERNMENT FILLED LAND WICO shall quitclaim to the V.I. Government all rights it may have on the yellow area (Area II) on the Map except Area A-3 on the Plan, and to Area II-A on the Map. 4. TERMINATION OF WICO’S UNEXERCISED CONCESSION RIGHTS WICO shall quitclaim to the V.I. Government any and all such remaining unexercised rights to reclaim and fill as WICO may have under grant from the Government of Denmark by letters dated January 18 and April 16, 1913. The United States may enter judgment in the lawsuit captioned United States v. West Indian Company, Ltd., et al., Civil No. 337-1968, now pending in the District — a | 155a Court of the Virgin Islands, against all other parties, without costs as to any party. The order entering judg- ment shall save to WICO all rights to the harbor basin heretofore constructed by WICO; provided, however, that Area VI may not be employed by WICO for reclaiming. Nothing shall interfere with WICO’s rights to use Area VI for or in connection with piers, docks or wharves. The attached composite map of Long Bay, St. Thomas entitled “Composite Map of Long Bay, February, 1981,” generally describes the areas to be quitclaimed to the V.I. Government and the areas to be retained by WICO. The composite map is intended to be generally descriptive, but shall not control as to specific metes and bounds. 5. OBLIGATION TO REPLACE TENNIS COURTS ‘a) WICO shall be obligated to replace the tennis courts presently located on Area A-3 on the following terms: (1) The V.I. Government has the option to have the courts relocated either on Area A-1 when reclaimed or at another location of its choosing in St. Thomas, provided that such location is level and drained. (2) On 60 days’ notice to proceed, which notice shall indicate the location chosen, WICO shall com- mence replacement of the tennis courts and shall complete them with due diligence; provided that if the courts are to be relocated on Area A-1, notice shall not be given until reclaiming has been completed. (b) In the alternative, the V.I. Government may choose to be paid $45,000. (c) Within 60 days of the Closing, the V.I. Government shall indicate which alternative it has selected. (d) In connection with the reclaiming of Area A-1 and Area A-2, if necessary WICO shall have the right of access over Area A-3. 156a 6. CONVEYANCES , (a) General. The Government of the Virgin Islands shall convey by Quitclaim Deed the Filled Lands and Submerged Lands hereinafter described (and the right to reclaim the same) in Long Bay, St. Thomas Harbor, in part to WICO and in part to the Byers Group. The lands to be conveyed are: A. Filled Lands. Lot 5, Estate Thomas, Kings Quarter, as extended by fill placed in 1963 seaward of Lot 5 and Lot 4, and shown on the Map as Area III. B. Submerged Lands. The area shown in dark blue on the attached Map, designated Area IV and Area VII-A. C. The lands described in Section 1 as amended by this Second Addendum. The Filled Lands and Submerged Lands are more pre- cisely described below. All of the Submerged Lands shall be conveyed to WICO. The Filled Lands, Area III on the Map, and the dark blue area on the Map (Area IV), will be divided among WICO, the CARIBBEAN HARBOR CLUB, INC., and Jorge Souss and Jose Blanco Lugo by separate Agree- ment between them. (b) Description of Filled Lands. The Filled Lands con- sist of (a) Lot No. 5, Estate Thomas, Kings Quarter, as described in P.W. Drawing No. G-9-432T56 annexed to deed dated September 11, 1956 from WICO to Joseph Byers II, less the portion thereof conveyed as Lot No. 5A Estate Thomas, Kings Quarter, by deed dated February 15, 1961 from Joseph Byers II and Ethel F. Byers to the Government of the Virgin Islands, as described in P.W. File No. G9-57-5-T60 (said Lot No. 5, as so reduced, being elsewhere referred to in this Agreement as “Lot No. 5”); plus (b) the fill area seaward of Lot No. 5 and 157a Lot No. 4, Estate Thomas, Kings Quarter, placed by the V.I. Government during dredging operations in 1963. (c) Deed to Filled Lands; Escrow. The grantee to be named in the deed to the Filled Lands shall be as provided in Paragraph 10(d) (ii). At the Closing the deed shall be delivered in escrow to Flint National City Bank, St. Thomas, U.S. Virgin Islands to be delivered on joint writ- ten instructions from CARIBBEAN HARBOR CLUB, INC., Jorge Souss, Jose Blanco Lugo, the Byers Group and WICO. (d) Description of Submerged Lands; Survey. The Submerged Lands are shown as Area IV on the Map. A survey has heretofore been made and accepted showing the precise description of all Areas shown on the Map. WICO will undertake to provide such additional surveys as may be necessary to show the changes accomplished by the Second Addendum, which shall be subject to the approval of the V.I. Government, which approval shall, however, not unreasonably be withheld. Failure to take specific written exceptions to such survey within sixty (60) days following receipt thereof shall conclusively establish acceptance thereof. (e) Character of Rights. The right on WICO’s part to reclaim Areas IV, A-2 and VII-A is a right on WICO’s part to perform the reclaiming and does not impose an obligation on WICO’s part to be performed. (f) Character of Fill. The fill of Areas IV, A-2 and VII-A shall consist substantially of dredge fill from St. Thomas Harbor or clean upland fill in WICO’s discretion, or in respect of Area VII-A, in WICO’s discretion, in whole or in part the construction of docks, wharves, or piers. WICO shall be entitled to provide such bulkheading, retaining wall, dock fill and similar structures as it may deem appropriate. (g) Restrictions on Use of Area VII-B. Area VII-B may not be employed by WICO for reclaiming but only 158a for the construction of docks or piers for marina pur- poses, and breakwater or causeway for protection of marina, and WICO shall not obtain title to such Area VII-B. With respect to Area VII-B, until WICO gives notice to the V.I. Government that it is proceeding with the construction of docks and piers for marina purposes, the Department of Conservation and Cultural Affairs shall have the right to grant mooring rights, but such rights shall be terminable on not more than 90 days’ notice. (h) Time Limits. As to Area IV, WICO shall com- mence filling not later than ten (10) years following the Closing Date. These time limits are to be extended as to Area VII-A by the duration of any major decline in tourism in St. Thomas, which shall mean any six-month period during which the number of visitors to St. Thomas shall be thirty percent (30%) less than during the com- parable period of 1972; the period of extension for this reason shall in no event exceed five (5) years. Once work is commenced as to a particular Area, WICO shall proceed with reasonable diligence in comple- tion of that Area. With respect to Area VII-A, WICO may elect to reclaim a portion of the Area without re- linquishing the balance, provided that reclaiming of the remaining portion or portions shall be commenced within the same ten (10) year time limit above provided. If WICO fails, without reasonable cause, so to proceed to completion, the V.I. Government shall have the right, after ninety (90) days’ written notice (which shall in- clude a demand to proceed) to terminate the reclaiming rights as to the uncompleted portion of such Area, other than Area VII-A. With respect to Area IV, such notice shall also be sent to CARIBBEAN HARBOR CLUB, INC., Jorge Souss and Jose Blanco Lugo, who, upon WICO’s failure to proceed shall have the right to com- plete Area IV at WICO’s expense. Reasonable cause shall be the causes described in Section 1(c). For pur- 159a poses of this Subparagraph, work shall not be deemed to have commenced as to a particular Area because of the mere placing of incidental fill resulting from the per- formance of work in some other Area. 7. DREDGING The dredge area shall be the area from Anchorage Area B on U.S. Coast Guard and Geodetic Survey Chart No. 933 to and along the WICO dock and in Anchorage Area A, on Chart No. 933 and within or adjacent to Area VII-A as shown on the Plan, to such limits as nec- essary for the accomplishment of the fill. Dredging is to be performed by the hydraulic suction type system and not by open mechanical means in order to avoid undue effects on water quality. Dredging will be monitored by the VI. Department of Conservation and Cultural Affairs (or such other agency of the V.I. Gov- ernment as may be authorized to monitor such dredging) at the expense of WICO in order to ensure observance of this requirement as well as for compliance with any certifications under the Federal Water Pollution Control Amendments of 1972. 8. [Deleted.] 9. ENDORSEMENT OF V.I. GOVERNOR This Agreement shall constitute an endorsement of the Governor of the Virgin Islands in favor of an applica- tion, pursuant to Section 10 of the River and Harbor Act of 1899 (33 U.S.C. § 403) and Section 404 of the Federal Water Pollution Control Act Amendments of 1972 (33 U.S.C. § 1344) and other related acts, for a United States Army Corps of Engineers permit or other authorizations, authorizing the dredging, filling, and other work contemplated by this Agreement. Notwithstanding the foregoing, WICO shall not be re- lieved of the requirement, if applicable, of obtaining a 160a certification under Section 401 of the Federal Water Pollution Control Act Amendment of 1972 (33 U.S.C. § 1341). 10. CLOSING The Closing shail take place on thirty (30) days’ prior written notice by WICO to the other parties. Such date is referred to in this Agreement as the Closing Date. The Closing shall take place at the offices of the Attorney General of the Virgin Islands, St. Thomas, V.I. At or prior to the Closing, the following shall be delivered: (a) WICO, the Byers Group, CARIBBEAN HARBOR CLUB, INC., Jorge Souss and Jose Blanco Lugo shall deliver to the V.I. Government: (i) A conveyance or lease from WICO in form satisfactory of the V.I. Attorney General of the rights described in Section 4. (ii) Stipulations from each of the parties (other than the United States) to United States v. West Indian Company, Ltd., et al., Civil No. 837-1968, District Court of the Virgin Islands, in form satis- factory to the Solicitor or Assistant Solicitor of In- terior consenting to the entry of judgment in favor of the United States and against all other parties, without costs as to any party, including the reser- vation of rights described in Section 4. (iii) An opinion of counsel for WICO that WICO is a corporation duly organized and existing under the laws of the Virgin Islands, and this Agreement and all Instruments to be delivered hereunder by WICO have been duly authorized, executed and de- livered by WICO and are legal, valid and binding obligations of WICO enforceable in accordance with their terms. (iv) An opinion of counsel for the Byers Group that Major Byers Investment Associates is a corpo- 16la ration duly organized and existing under the laws of the Virigin Islands; that this Agreement and all instruments to be delivered hereunder by the Byers Group have been duly authorized and delivered by, and are legal, valid and binding obligations of, the person or corporation comprising the Byers Group executing the same. (v) An opinion of counsel for the CARIBBEAN HARBOR CLUB, INC. that it is a corporation duly organized and existing under the laws of the U.S. Virgin Islands and has duly qualified to engage in business in the Virgin Islands; that CARIBBEAN HARBOR CLUB, INC. has succeeded to all right, title and interest to Lot No. 5, as defined in Section No. 6(b), except as to the one-fourth share owned by Jorge Souss and Jose Blanco Lugo; that this Agreement and all instruments to be delivered here- under by CARIBBEAN HARBOR CLUB, INC. have been duly authorized, executed and delivered by, and are legal, valid and binding obligations of CARIBBEAN HARBOR CLUB, INC. (b) WICO, the Byers Group and CARIBBEAN HAR- BOR CLUB, INC. shall deliver ot the V.I. Government: (i) a quitclaim deed from WICO to the V.I. Gov- ernment in form satisfactory to the V.I. Attorney General, quitclaiming such rights as it may have in Area II (excluding Area A-3) and Area II-A. (ii) Opoinions of counsel described in Subsections (ec) (iii), (iv) and (v) of this Section. (ce) The V.I. Government shall deliver to WICO, CAR- IBBEAN HARBOR CLUB, INC., Jorge Souss and Jose Blanco Lugo: (i) A conveyance from the V.I. Government by quitclaim deed, in form satisfactory to counsel for WICO, conveying subject to the appropriate condi- 162a tions of the Agreement, to WICO of all right, title and interest of the V.I. Government in Areas IV and VII-A, together with rights to construct and maintain marinas in Area VII-B and the convey- ances described in Section 1(D) (2) and (8). (ii) Conveyances by quitclaim deed, in form sat- isfactory to counsel for WICO, CARIBBEAN HAR- BOR CLUB, INC., Jorge Souss and Jose Blanco Lugo, from the V.I. Government conveying all right, title and interest of the V.I. Government in the Filled Lands described in Section 6(b), as follows: (a) As to that portion of the Filled Lands shown in Public Works drawing No. F9-1884- T66, an undivided three-fourths (3/4) interest to CARIBBEAN HARBOR CLUB, INC., and the remaining undivided one-fourth (1/4) in- terest to Jorge Souss and Jose Blanco Lugo, or to such other grantee or grantees as shall be stated in a joint written notice to the V.I. Gov- ernment signed by said parties and WICO. (b) To CARIBBEAN HARBOR CLUB, INC., the remaining portion of the Filled Lands, or to such other grantee or grantees as shall be stated in a joint written notice to the V.I. Gov- ernment signed by CARIBBEAN HARBOR CLUB, INC. and WICO. (iii) An opinion of the Attorney General of the Virgin Islands to the effect that this Agreement and the conveyances hereunder have been duly author- ized, executed and delivered and are legal, valid and binding obligations enforceable in accordance with their terms. (d) (i) An escrow shall be established with First Na- tional City Bank or other mutually acceptable escrow agent, effective on the Closing. There shall be deposited 163a with the escrow agent the deeds and conveyances and stipulations described in Sections 10(a) (i) and (ii), 10(B) (i) and 10(c) (i) (other than the conveyances re- lating to Area VII-A), (ii) and (iii). The V.I. Govern- ment and WICO shall cause the escrow agent to deliver such deeds and conveyances as follows: (x) Upon acceptance of Area A-1 in accordance with Section 17 hereof; and (y) The completion of reclaiming of Areas IV and A-2; provided, however, that if WICO shall have reclaimed less than all of such Areas and its rights to reclaim the balance shall have terminated, the conveyances shall be amended so as to exclude any portion of the Area as to which the reclaiming rights shall have terminated. (ii) An escrow shall be established with First Na- tional City Bank or other mutually acceptable escrow agent, effective on the Closing. There shall be deposited with the escrow agent the deeds and conveyances relat- ing to Area VII-A as follows: Upon completion of a portion of Area VII-A, if WICO shall have proceeded to reclaim a_ portion, then a conveyance amended to include such portion shall be delivered when such portion is completed; or if the whole is completed, then a conveyance of the whole shall be delivered; provided, however, that if WICO shall have reclaimed less than all of such Areas and its rights to reclaim the balance shall have J > (40) SENATOR HODGE: Senator Stridiron? SENATOR STRIDIRON: Yes. Mr. President, this amendment raises perhaps what would be a most inter- esting question to ask of the proponent as well as other members of the Legislature. With regard to West In- dian Company, what is it that the people want? Do they want us to stop the dredging? Or do they want us to allow the dredging and then change the zoning? Because basically this amendment says, if you wish you can go forward and dredge and fill. But we will have rezoned it so that the public will have use of the property. What is that the people want? I reserve the balance of my time. SENATOR HODGE: Senator Bryan? SENATOR BRYAN: Thank you, Mr. President. To the previous speaker, the amendment [41] added to the bill to repeal Acts 4700 and 3326, would then designate the existing area as public. And would prevent any- body or person or group or corporation from erecting any structures not consistent with the zone that is being created. What activities are going on right now as far as the dredging is concerned is a situation that is being handled by Conservation. As a matter of fact, I think a cease and desist order was issued sometimes last week. And that is because last week I made a reference to what they were doing, was dredging in the night and stopping two or three o'clock in the morning. So bv the , time daylight comes around, it looks like nothing really was disturbed. And what we are doing now is setting the land for public use. I am not saying for the West Indian Com- pany to go ahead. I am saying that what is there right now, because they have created other lands when they 183a dredge the sand. So that is basically what this amend- ment seeks to do. I reserve the rest of the time. (43) SENATOR HODGE: Senator Bryan? SENATOR BRYAN: I think Senator Stridiron is playing a little game with us here. The land that is right there, if you can see it, you can walk through those sands and get in the water. So I’m saying that that land, if you read Act 4700 and the agreement, makes refer- ence to certain concessions to West Indian Company. The repeal of those acts, in fact, would stop West Indian Company and those involved believing that that land was West Indian Company land. It is not West Indian Com- pany land. So I’m saying while it is the people’s land, we rezoning it public for the people. That’s all we are saying. We are not saying continue to dredge. They have already started the dredging already. Before there wasn’t all that sand there before they started to dredge. So they created some land. So I’m saying that that they created recently, plus what was there previously, is now public. But at the same time we are repealing Acts 4700 and 3326, is in fact saying that the Legislature and the Governor and all involved had no authority to give away the trust lands or the submerged lands. So we are saying two things. The land belongs to the people, and we are now zoning it public for the people. Am I clear? '48] SENATOR HODGE: All right. Senator Shatkin, you had a question? SENATOR SHATKIN: Yes, Mr. President. I have a question for counsel. Through the Chair to legal coun- sel, because there’s an issue here which I think is not being raised, which is vitally important. Attorney Stur- divant, my call to the Tax Assessor’s Office indicated A LS4a that the owner of record of Parcel No. 5 is a Joseph Byers. I don’t know who Josepy Byers is. But my ques- tion to you is, if this amendment passes, and the desig- nation is changed from W-1 to P, what does that indi- cate the government has done, and what responsibilities or liabilities does that create for the government? MS. STRUDIVANT: Well, it would mean that the government has taken private property, and converted it into publicly owned property. It seems to me that it would constitute a taking under the constitution. And as such, the government would have to give some sort of compensation for that taking. SENATOR BRYAN: Point of order. SENATOR BROWN: Point of order. * > > >. 51} SENATOR HODGE: Record Senator Bell's vote MS. STEELE: Mr. President, 5 yeas, 8 nays, 2 absent. SENATOR HODGE Amendment fails. Senator Brown, No. 378 you wish to offer 185a REVISED ORGANIC ACT OF 1954, 48 U.S. CODE ANNOTED § 1541 et seq. BILL OF RIGHTS § 3. [Rights and prohibitions] No law shall be enacted in the Virgin Islands which shall deprive any person of life, liberty, or property with- out due process of law or deny to any person therein equal protection of the laws. In all criminal prosecutions the accused shall enjoy the right to be represented by counsel for his defense, to be informed of the nature and cause of the accusation, to have a copy thereof, to have a speedy and public trial, to be confronted with the witness against him, and to have compulsory process for obtaining witnesses in his favor. No person shal be held to answer for a criminal offense without due process of law, and no person for the same offense shall be twice put in jeopardy of punishment, nor shall be compelled in any criminal cause to give evidence against himself; nor shall any person sit as judge or magistrate in any case in which he has been engaged as attorney or prosecutor. All persons shall be bailable by sufficient sureties in the case of criminal offenses, except for first-degree mur- der or any capital offense when the proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. No law impairing the obligation of contracts shall be enacted. No person shall be imprisoned or shall suffer forced labor for debt. 186a All persons shall have the privilege of writ of habeas corpus and the same shall not be suspended except as herein expressly provided. No ex post facto law or bill of attainder shall be enacted. Private property shall not be taken for public use except upon payment of just compensation ascertained in the manner provided by law. The right to be secure against unreasonable searches and seizures shall not be violated. No warrant for arrest or search shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. Slavery shall not exist in the Virgin Islands. Involuntary servitiude, except as a punishment for crime whereof the party shall have been duly convicted by a court of law, shall not exist in the Virgin Islands. No law shall be passed abridging the freedom of speech or of the press or the right of the people peaceably to assembly ' and petition the government for the redress of grievances. No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof. No person who advocates, or who aids or belongs to any party, organization, or association which advocates, the overifsow by force or violence of the government of the Virgie: Islands or of the United States shall be qualified to hold any office of trust or profit under the government of the Virgin Islands. No money shall be paid out of the Virgin Islands treasury except in accordance with an Act of Congress 1 So in original. ————e—V—_—é9E9, 187a or money bill of the legislature and on warrant drawn by the proper officer. The contracting of polygamous or plural marriages is prohibited. The employment of children under the age of sixteen years in any occupation injurious to health or morals or hazardous to life or limb is prohibited. Nothing contained in this Act shall be construed to limit the power of the legislature herein provided to enact laws for the protection of life, the public health, or the public safety. No political or religious test other than an oath to support the Constitution and the laws of the Virgin Islands, shall be required as a qualification to any office or public trust under the Government of the Virgin Islands.—July 22, 1954, ch. 558, § 3, 68 Stat. 497; Aug. 28, 1958, Pub. L. 85-851, § 1, 72 Stat. 1094. § 8. [Legislative powers and activities] [Seope of authority; limitation on enactments and taxation | (a) The legislative authority and power of the Virgin Islands shall extend to all rightfull subjects of legislation not inconsistent with this Act or the laws of the United States made applicable to the Virgin Islands, but no law shall be enacted which would impair rights existing or arising by virtue of any treaty or international agree- ment entered into by the United States, nor shall the lands or other property of nonresidents be taxed at a higher rate than the lands or other property of residents. 188a TITLE 48 U.S. CODE ANNOTED § 1701 GUAM—VIRGIN ISLANDS—AMERICAN SAMOA— SUBMERGED LANDS PUBLIC LAW 88-183; 77 STAT. 338 (H.R. 2073] An Act to authorize the Secretary of the Interior to con- vey certain submerged lands to the governments of Guam, the Virgin Islands, and American Samoa, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress as- sembled, That: (a) Upon the request of the Governor of Guam, the Governor of the Virgin Islands, or the Governor of Ameri- can Samoa, the Secretary of the Interior is authorized to convey to the government of the territory concerned what- ever right, title, or interest the United States has in par- ticular tracts of tidelands, submerged lands, or filled lands in or adjacent to the territory, subject to the limitations contained in this section. The term “tidelands, submerged lands, or filled lands” means for the purposes of this Act all lands permanently or periodically covered by tidal waters up to but not above the line of mean high tide and seaward to a line three geographical miles distant from the coastlines of the territory, as heretofore or hereafter modified by accretion, erosion, and reliction, including artificially made, filled-in, or reclaimed lands which were formerly permanently or periodically covered by tidal waters. (b) No conveyance shall be made pursuant to this section unless the land proposed to be conveyed is clearly required for specific economic development purposes or to satisfy a compelling public need. 189a (ce) No conveyance shall be made pursuant to this sec- tion until the expiration of sixty calendar days (exclusive of days on which the House of Representatives or the Senate is not in session because of an adjournment of more than three days to a day certain) from the date on which the Secretary of the Interior submits to the Committees on Interior and Insular Affairs of the House of Representatives and the Senate an explanatory state- ment indicating the tract proposed to be conveyed and the need therefor, unless prior to the expiration of such sixty calendar days both committees inform the Secretary that they wish to take no action with respect to the pro- posed conveyance. (d) Conveyances pursuant to this section shall be sub- ject to such terms and conditions as the Secretary of the Interior may deem appropriate and shall be made without reimbursement or with such reimbursement as he may deem appropriate. (e) The governments of Guam, the Virgin Islands, and American Samoa shall have proprietary rights of owner- ship and the rights of management, administration, leas- ing, use, and the development of the lands conveyed pur- suant to this section, but the Secretary of the Interior and such territorial governments shall not have the power or right to convey title to such lands unless the Secretary of the Interior (1) determines that such right to convey is necessary and (2) advises the committee of such de- termination in the manner described in subsection (c) of this section, and (3) unless the Secretary of the In- terior, in proposing to convey such lands to such terri- torial governments, and such territorial governments in proposing to convey such lands to a third party or third parties pursuant to this section, shall publish notice of such proposed conveyance at least once a week for three weeks in a daily newspaper or newspapers of general circulation in the territory affected by the proposed con- veyance. Such published notice shall include the names of all parties to the proposed contract of conveyance, the 190a purchase price, and a general summary of the boundaries of the tract or tracts proposed to be included in the con- veyance. (f) There shall be excepted from conveyances made pur- suant to this section all deposits of oil, gas, and other minerals, but the term “minerals” shall not include sand, gravel, or coral. Sec. 2. (a) The Secretary of the Interior shall have administra [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1959%3A2. Public record. Not legal advice.