As private citizens our options are very limited when it comes to compliance with the laws of the land. We can follow those laws and avoid adverse consequences. Or we can disobey those laws at our own risk. There are no other alternatives.
But the Virgin Island Legislature has additional options at its disposal. As the supreme law-making body of the territory, the Legislature can follow their own laws, they can amend their laws, or, surprisingly, they can choose to completely ignore their own laws.
Gov. Albert Bryan Jr. has sent a bill to the Legislature to approve the conveyance of Whistling Cay to the U.S. Government, as part of a “swap” to secure land for the construction of a public K-12 school on the island of St John. Title 31 of the Virgin Islands Code prohibits the government from conveying any property that includes shoreline, and Whistling Cay includes almost one mile of shoreline. So, as it stands the governor’s bill is illegal under existing Virgin Islands law.
The chief counsel to the Legislature, in a written opinion, agrees that the bill does not comply with Title 31 of the Virgin Islands Code. So, the 15 senators of the 35th Legislature are faced with a question: do they follow the law, change the law, or simply ignore the law? The advice of their legal counsel might surprise you.
Let’s dig a bit deeper. Since the purpose of this bill is to secure land for a school on St John its objective is, beyond a doubt, in the public interest. St John desperately needs a public school and has needed one for generations. Some senators may feel that if they follow the law and reject the governor’s bill then this will kill the opportunity to build a school on St John.
However these senators would be wrong: there are other perfectly viable solutions to obtaining the National Park parcel required for school construction without giving up Whistling Cay and without giving up shoreline. Testimony before the Committee of the Whole last week identified at least three of those alternatives, and this week all 15 senators will receive a detailed proposal for exchange of GVI-owned submerged land which would be fully compliant with Virgin Islands Code. So a school could be built on St John while honoring and respecting the laws of the territory.
If, however, in their collective wisdom our elected representatives choose to support the governor’s bill, they could do so in a manner compliant with law if they amend the statute in Title 31 which prohibits conveyance of shoreline property. My advice is that any amendment to the statute must be very narrowly constructed, so as not to provide a loophole for future conveyances of our precious and protected public shoreline by this administration or some future administration.
I would propose that the absolute prohibition against conveyance of shoreline be amended to include a single exception, with conditions. The law could be amended to allow conveyance of shoreline solely to the National Park Service, on the condition that access by Virgin Islanders never be impeded as a consequence of the conveyance, that there be no future development of the property or shoreline, and that the conveyance be approved unanimously by the eight senators representing the district in which the property lies. This would create a high hurdle for conveyance of shoreline property but would allow the governor’s bill to be passed by explicitly amending the laws of the territory.
Now to the third option: simply ignoring the law. Surprisingly, this was the advice given to the Legislature by their own legal counsel. Their attorney said that the law didn’t preclude them from approving the bill, but if they wanted to avoid future litigation they should add a “notwithstanding clause” to the language of the bill. This would have the effect of stating that the Legislature was aware that the bill was contrary to Title 31 but they were choosing to ignore that fact. And surprisingly, this is perfectly allowable, but it is terrible policy carrying grave risks.
If the governor and Legislature can wave their arms and ignore the law once, what is to prevent them from doing it a second or a third time? The Government of the Virgin Islands owns precious shoreline property at Magens Bay and at Neltjeberg on St Thomas, on the east end of St Croix, and across many cays and islets and other parcels on all three islands. When the next deep-pocket developer proposes to build a hotel on any of those GVI-owned shoreline parcels, what is to prevent the governor from citing “economic development” as the rationale to simply “notwithstand” the law into irrelevance? This is the danger of simply ignoring the law.
It is my hope that each of our 15 elected senators are put on notice that we, their constituents, are watching them and the decision they will make at the next session of the 35th Legislature. Do the right thing and follow the law by rejecting the governor’s bill and supporting one of the legal alternatives before the body, or change the law if you feel you must but change it in a way that does not create loopholes for future projects. But please, do not simply ignore the law as advised by your own legal counsel.
— David Silverman, Coral Bay, St John