Coastal Services Center

Conflict comes with the coastal resource management territory, particularly over regulatory actions. Managers in the Virgin Islands are calming tempers and spreading program awareness by using settlement talks or mediation to resolve violations.

"It goes a long way in terms of achieving the objectives of our program," says Janice Hodge, director of the Virgin Islands Division of Coastal Zone Management. "We're trying to make sure that people are doing what they are supposed to be doing without having to go to the AG's (attorney general's) office or involving too many lawyers."

About 90 percent of program violations are resolved during an initial informal meeting, Hodge says. If an agreement is not reached in this facilitated session, a more formal hearing is held with an independent mediator, called a hearing officer. "Generally, the hearing officer's decision can only be challenged in court," which she notes, has not happened during the current administration.

"We use this for just about everything," Hodge says. "It could be my neighbor next door, or one of the big companies with many different projects. People know that if they violate their permit, they will be taken through the process. It gives us a lot of ammunition."

Regulatory Fallout

Cotton Harness, a South Carolina attorney and pioneer in the field of alternative dispute resolution, says environmental regulations have "drawn battle lines in this country around environmental matters."

"There's a growing resentment among people affected by environmental laws, and they feel that the regulators are unreasonable," Harness says. "I think that has an effect, in terms of public support, on our environmental programs. What mediation does is give people much more efficient and better ways of talking about a problem than when they are sitting on opposite sides of the court room."

Benefits of using alternative dispute resolution, he says, include getting cases settled more quickly and improving the "quality of relations between regulator and regulated. . . It meets the human needs of being heard and having some control of the outcome."

Talking it Out

The Virgin Islands Coastal Program has five inspectors who routinely monitor permitted activities on St. Thomas, St. John, St. Croix, and Water Island. The territory's Division of Environmental Enforcement also reports apparent violations, and Hodge says the program receives "a lot of calls from the community."

If an apparent violation is found, the inspector first tries to work with the permit holder to correct the problem. If that isn't successful or the violation is too great, the inspector issues a cease and desist order, shutting down the permitted activity, and documents the situation in writing and with photographs. An informal meeting between the alleged violator and program staff is then held within seven days, Hodge says.

The meeting, which is chaired by either Hodge or the Department of Planning and Natural Resources commissioner, is "nonconfrontational and is structured, for the most part, as a fact gathering venue before any formal charges are made," Hodge explains. While the program's attorney usually is present, alleged violators generally appear without legal counsel. During the meeting, both the inspector and permit holder are given the opportunity to explain their version of events.

"We would find out what transpired," Hodge explains. "We would hear the basis for issuing the order, and then the developer or homeowner would state their reasons why they didn't follow the corrective order given in the field, or why they violated the CZM (Coastal Zone Management) Act."

Once both sides have made their arguments, staff privately discusses the case, sometimes in consultation with the commissioner, and the outcome is decided. "If the applicant had a reasonable explanation for say, why they didn't install a silt fence, we advise them that they need to install the fence, we explain the reasons we are asking them to do this, and tell them what the penalties will be if the corrective measure is not implemented in a timely manner," Hodge says.

A penalty matrix, which can go up to $10,000 a day for any violation of the CZM Act, is used to determine fines for permit violations. Hodge notes the cease and desist order generally stays in effect until the penalty has been paid, or the violator has implemented corrective measures. "The reason why a lot of people comply," she says, "is they don't want to lose a lot of time."

If the permit holder doesn't feel the penalty is fair, or that they violated the law, "the next step is a formal hearing where an independent hearing officer is hired, usually a lawyer, to preside over the meeting." The program attorney or the commissioner presents the agency's case to the hearing officer. The permit holder usually has a lawyer at this point who presents their side of the case, she says. The violator usually assumes the cost of the formal hearing.

"Whatever the hearing officer determines is the final order," Hodge says. "Through all that time, the project could be delayed, and if the hearing officer doesn't agree with them, the only place they can challenge the decision is in the courts, which is a lengthy process. We really haven't gotten past the hearing officer stage because people generally don't want their projects going to court."

Support of the Process

There is a lot of community support for their mediation policy, Hodge says, citing numerous letters the program has received thanking them for hearing the permit holder's side. One such letter reads in part, "I am now aware of the guidelines and procedures that one has to take when making any change on ones property. I will follow the guidelines and look for assistance if there are areas that are in question."

She notes that inspectors also "feel much more involved in the process, because they know that if they go out and report a violation that some action is going to be taken."

"This is not a war," Hodge says. "We're trying to protect our resources, and when we present it to people that way, it gets them to be advocates of our program. We want them to see the far-reaching impacts of what they are doing, and how that will impact everyone in the long run. To me, that goes a long way."

For more information about the use of settlement talks and mediation in the Virgin Islands, contact Janice Hodge (340) 774-3320, or janice.hodge@noaa.gov. For more information about alternative dispute resolution, contact Cotton Harness at (843) 856-2627.