Costa Rica Expertise LLC

By Garland M. Baker
Special to A.M. Costa Rica

Construction of beach developments in Costa Rica has been frozen because the Sala IV constitutional court is considering a complex case that pits the central government against its own employees and environmentalists.

The issue involves the concessions that developers get to build within the maritime zone, which is the public land located between the ocean and the first 200 meters from the average high tide line. Construction is not permitted in the first 50 meters, but long-lasting concessions are permitted in the rest.

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The constitutional court is considering two actions that include a case filed by the union that represents workers in the Ministerio de Ambiente y Energía. The workers union is suing because the ministry changed the rules so that developers now appear to have the right to cut down some of the trees in the maritime zone in order to build hotels and other projects.

President Abel Pacheco started this internal governmental civil war with his Executive Decree No. 31750-MINAE-TUR published May 14, 2004, in La Gaceta, the official public records newspaper, No. 96. Also involved in the document was the minister of turism, Rodrigo Castro, and the environmental minister, Carlos Manuel Rodríguez.

At stake is the definition of "ecotourism." The workers union and many environmentalists do not agree with the definition expressed in a year-old decree. The decree modified the definition of "ecotourism," saying the word now means something that contributes to the welfare of residents nearby and encourages exploration of the natural and cultural heritage.

An earlier definition of ecotourism put research first and tourism second. It said nothing about cutting down trees.

The 2004 decree permits developers to cut down trees for ecotourism development, some 15 percent of primary forest and 25 percent of secondary forest that happened to be in the maritime zone.

Around the same time as this decree was promulgated and on another front, the environmental minister requested the Procuraduría General de la República, the nation's lawyer, to clarify who regulates concessions in the maritime zone. The answer, much to the surprise of everyone, was his ministry. This took the power away from the municipalities that have been granting the concessions.

Environmentalists immediately attacked and so did the municipalities. Each party has a different reason. The municipalities do not want to lose the power they have had. The environmentalists do not want to see any more trees cut down in Costa Rica. The country has been severely deforested in the past 50 years.

Rodríguez admitted to pressure from Casa Presidencial in two interviews with the press to allow accelerated cutting of trees in the maritime zone.

Two cases were filed with the Sala IV on this issue. One in May of 2004, shortly after the decree, was filed by FECON, the Costa Rican Federation for the Conservation of Natural Resources.

The other was filed in June 2004 by the workers union of the environmental ministry, called the Asociación Sindical de Trabajadores del Ministerio del Ambiente y Energía y Afines de Conservación.

What happens now for all those developers waiting on a concession in the maritime zone? That answer is in the hands of the constitutional court. The two cases above have been joined together by the court and accumulated as No. 04-005607-0007-CO.

To be or not to be, to cut down trees or not to cut down trees in the maritime zone, that is the question. There will be no definite answer anytime soon. Even when there is, more fights will arise because the issue is at the heart of very opposing viewpoints of Costa Rica’s future development and the meaning of progress.

In brief, this means a long time may pass before another maritime concession is approved in Costa Rica.

Garland M. Baker has been a resident of Costa Rica since 1972 and is now a naturalized citizen. He provides multidisciplinary professional services to the international community. Lic. Allan Garro provides the legal review. Reach them at [email protected] Baker has undertaken the research leading to these series of articles in conjunction with A.M. Costa Rica. Copyright 2005, use without permission prohibited.

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