IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
RONALD VARGO and KATHLEEN VARGO )CASE NO ST 2022 CV 00084
)
Plaintiffs ) ACTION FOR TEMPORARY
vs ) RESTRAINING ORDER AND
) PRELIMINARY INJUNCTION
GOVERNMENT OF THE VIRGIN ISLANDS )
DEPARTMENT OF PLANNING AND NATURAL )JURY TRIAL DEMANDED
RESOURCES and JOHN PIERRE ORIOL in his )
capacity as Commissioner of THE DEPARTMENT OF )
PLANNING AND NATURAL RESOURCES )
)
Defendants )
)
2023 VI Super ] 1U
MEMORANDUM OPINION AND ORDER
1|] THIS MATTER is before the Court on
1 Defendants Motion To Strike Part III Of Plaintiffs Conclusions Of Law (‘ Motion
To Strike ) filed February 17 2023
2 Plaintiffs Response To Defendants’ Motion To Strike filed February 22 2023; and
3 Defendants Reply In Support Of Motion To Strike Part 111 Of Plaintiffs
Conclusions Of Law, filed February 24, 2023
112 The Court will grant Defendants’ Motion To Strike as the issue of boat registration
enforcement is impertinent since it was not raised in the Complaint or at trial
I INTRODUCTION
{[3 Plaintiffs Ronald Vargo and Kathleen Vargo (“the Vargos”) initiated suit against the
Defendants, the Government of the Virgin Islands Department of Planning and Natural Resources
and John Pierre Oriol in his capacity as Commissioner of the Department of Planning and Natural
Resources (“DPNR ’) on March 8 2022 The matter came before the Court for a trial on the merits
on January 10 2023 and the trial concluded on January 13 2023
{[4 The Vargos sought 1) “Declaratory Judgment that no anchoring or mooring is allowed in
Round Bay, St John without a proper formal designation Alternatively, injunctive relief that
requires the Commissioner of DPNR to enforce the Mooring Act by prohibiting long term anchoring
Ronald Vargo & Kathleen Vargo v Gov’t ofthe VI 2023 VI Super I IU
Dept of Planmng and Na! Res e! a!
Case No ST 2022 CV 00084
Memorandum Opinion and Order
Page 2 of 8
in Round Bay ”' 2) “[A] preliminary inj unction ordering Defendants and any persons acting on their
behalf, to comply with the Mooring Act by enforcing against illegal anchoring and other boating
activity in Round Bay ’ 2 3) “[A] preliminary inj unction ordering Defendants, and any persons acting
on their behalf, to comply with the Motorboat Act by enforcing illegal boating within the
recreational areas of Round Bay ”3 4) “[A] preliminary injunction enjoining Defendants and any
persons acting on their behalf, from their plan to place exclusion buoys and markers that will
promote further illegal mooring unless and until they comply with the pre conditions for establishing
mooring and anchoring areas and until DPNR can demonstrate adequate enforcement measures
consistent with the Mooring Act and the Motorboat Act will take place ”4 5) “[A] declaration that
Defendants’ plan is not consistent with the Mooring Act ”5 6) “[A] writ of mandamus directing
defendants to perform their duties under the Mooring Act and Motorboat Act ”6 7) “[C]osts of suit
and reasonable attomey’s fees, and for such other relief as the Court deems just and proper ”7
1IS On February 17 2023 DPNR filed a Motion To Strike Part III of Plaintiffs Conclusions of
Law (“Motion To Strike’ ) DPNR argued that “Plaintiffs did not allege any violation of 25 V I C §
292(b) in their Complaint, much less claim that the performance ofthe Department or Commissioner
was deficient for any alleged failure to enforce this provision” and “[t]herefore, Defendants did not
mount any defense with respect to 25 V I C § 292(b) 8 DPNR contends that [g]iven that Part III is
‘impertinent’ to any matter alleged or tried it should be stricken, just as impeninent matters
incorporated in pleadings are subject to be stricken under Virgin Islands Rules of Civil Procedure
12(f) ”9 Alternatively DPNR requests an opportunity to present evidence and argument in response
to the claim Plaintiffs have brought for the first time in Part III '0
$26 On February 22 2023 the Vargos responded to DPNR 5 Motion To Strike and stated that the
Motion To Strike should be denied because the conclusion is relevant to the claims and defenses
and are allowed under V I R Cw P 15(b)(2) based upon the consent of the parties’ and because
“the Defendants raised the issue on their own ”” The Vargos assert that their Complaint does allege
“Defendants failure to enforce and administer the Motorboats Act and provide accurate information
to boaters about the laws and regulations applicable to boating ’ and that this is sufficient to put
DPNR on notice of the claim under Virgin Islands Rule of Civil Procedure 8(a)(2) '7 Additionally
the Vargos argue that DPNR consented to try the issue of lack of enforcement of boat registration
' PIS Compl 29
PIS Compl 29
‘ PIS Compl 29
‘ Pls Comp! 29 30
‘ Pls Compl 30
Pls Compl 30
Pls Compl 30
” Defs Mot To Strike 1 2
' Defs Mot To Strike 2
"’ Defs Mot To Strike 2
' Pls Resp I
' P15 Resp I 2
Ronald Vargo & Kathleen Vargo v Gov’! of the VI 2023 V1 Super l [U
Dept of Planning and Nat Res e! at
Case No ST 2022 cv 00084
Memorandum Opinion and Order
Page 3 of 8
requirements under V I R Cw P 15(b)(2) '3
117 Specifically the Vargos argue that DPNR was the first to raise the issue when it introduced
Defendants’ Exhibit 77, the Recreational Boater Safety Program Narrative, by Mr Howard Forbes
of DPNR’s Division of Environmental Enforcement (“DEE”) '4 The Vargos state that the exhibit
discusses plans to target non compliant boaters, “enhance the existing vessel registration,” updates
that have been made to vessel registration databases and that officers on patrol “are on alert for non
registered boaters ”'5 Further the Vargos point to their Findings of Fact No 85 where they
“highlight evidence that despite the numerous boaters in Round Bay without permits, no
enforcement was done for this activity ’ '6 The Vargos assert that at trial, the Defendants did not
object to them eliciting testimony that “due to a shortage of enforcement officers to count the
vessels, the enforcement officers would simply clear the bay and tell everyone to get permits ”'7 The
Vargos state that less than ten (10) permits were issued as a result '8
118 The Vargos go on to state that other enforcement activity in Round Bay consisted of phone
calls and “clearing the bay on a few occasions” but “no regular patrols were observed by residents or
boaters between March 2020 and December 2022 ”'9 Further, the Vargos assert that DPNR elicited
testimony that “the annual report is for the boating safety program that is funded by the United States
Coast Guard to allow the Department to do the same patrol work it neglected to do in Round Bay ”20
Lastly, the Vargos argue that at the Motion For Summary Judgment stage, DPNR included the
following response
23 In a span of two years the task force came to Round Bay and cleared the bay
twice, but the boaters simply returned shortly thereafter The task force boarded
no vessels to address violations ofthe Motorboats Act or the Mooring Act Exh C
at 1114 Exh A a! DPNR Depo Exh N0 5 p 9
Response DPNR is beefing up enforcement in Round Bay, including more
patrols After its boat was repowered it has made more frequent patrols to St
John in its entirety, including Round Bay In addition to having the boaters leave
the bay, DPNR officers also has given out flyers to educate boarders [sic] of the
rules and regulations as relate to Round Bay Exhtbzt 1 Orzo! Dep 23 21 24 12
Exhtbt! 2 Forbes Dep 76 12 16 91 21 93 12 '
'3 Pls Resp 2
'4 Pls ’ Resp 2
‘5 Pls ’ Resp 2
“5 Pls ’ Resp 3
17 Pls ’ Resp 3
1‘ PIS ’ Resp 3
1" Pls Resp 3
7" Pls Resp 3
7' Pls Resp 3
Ronald Vargo & Kathleen Vargo v Gov (of the VI 2023 VI Super 1 1U
Dept ofPlanning and Na! Res er al
Case No ST 2022 CV 00084
Memorandum Opinion and Order
Page 4 of 8
119 Therefore, it is the Vargos contention that the conclusion of law that DPNR failed to enforce
the registration provisions lacks merit, as DPNR did not object to this evidence at trial 22
1110 In their reply DPNR first argues that the Vargos did not place DPNR on notice that they
were specifically seeking the enforcement of the vessel registration portion of the Motorboat Acts
simply by stating that they were seeking a writ of mandamus for enforcement of Chapter 15 of Title
25 0f the Virgin Islands Code 23 DPNR argues that Chapter 15 covers a wide range of measures
including boating speed limits; prohibitions on reckless or negligent boating operations, boating
while intoxicated; mandating a dedicating observer on any boat towing a waterskier or surfer;
authorizing the Commissioner to approve boat races; mandating that all accidents be reported as well
as requiring that all motorboats be numbered 2" DPNR asserts that “[g]iven its broad scope, citing
Chapter 15, without more, was inadequate to place Defendants on notice that Plaintiffs were seeking
a writ of mandamus pertaining to enforcing the registration of vessels” and that “[t]here was not a
single allegation in the Complaint that Defendants had failed to enforce the registration of vessels,
much less that the lack of such registration had any adverse effect on Plaintiffs ”25
1111 DPNR further points out that the Vargos neither referenced nor cited in their Complaint §
292 which is the specific section of Chapter 15 Title 25 addressing boat registrations, nor did their
Complaint allege any facts related to boat registration or the failure to enforce it 2“ DPNR cites to
Island Azrlmes LL( v Bohlke" for the holding that failure to specify which facts violate which
subsection(s) of the law constitutes a failure to state a claim ”23 DPNR also argues that the Vargos
conceded that the issue of boat registrations was not brought up in the Complaint when they argued
that the issue was tried by express or implied consent 1"
1112 DPNR then argues that the parties did not try the registration requirement issue by consent at
trial DPNR states that it is ‘too much ofa stretch ’ to reason that by introducing a fourteen (I 4) page
exhibit titled ‘ Division of Environmental Enforcement Recreational Boating Safety Program, 2021
Program Narrative’ that DPNR was raising the issue ofboat registration enforcement 3° DPNR avers
that the purpose of the exhibit s admittance and DEE Director Howard Forbes testimony was to
show the scope of work the division does in enforcing various provisions, and that showing the
scope of work DEE oversees does not place in issue whether DEE is properly performing that work a
’7 Pls ’ Resp 4
3 Defs Reply I
‘ Defs Reply I 2
5 Defs Reply 2
6 Defs Reply 2
7 2022 V1 Super 20
3 Id at 1152 Defs Reply 2
9 Defs Reply 2
3° Defs Reply 2
Ronald Vargo & Kathleen Vargo v Gov ’1 ofthe V l 2023 VI Super I lU
Dept of Planning and Nat Res e! a!
Case No ST 2022 CV 00084
Memorandum Opinion and Order
Page 5 of 8
trial issue 3 ' If it were sufficient to raise the issue, DPNR states then so would the issues of“whether
the Court should issue a writ of mandamus to require Defendants to increase their boating safety
enforcement efforts or to expand their search and rescue program would also be before the Court,”
but such issues “clearly are not ”32
EH3 DPNR further argues that the Vargos confuse the issue of registration and permits as they
allege that evidence related to permits was introduced and not objected to However, registration and
permits are two separate functions Seeking enforcement of § 292 deals with registration Permitting
and boat registration are not the same and the terms are not interchangeable 33 The permit evidence
concerns permits DPNR issues to boats to be able to anchor in Round Bay for a night, while
registration ensures that every boat on the water has a number, and thus any evidence related to
permitting is irrelevant to the issue of boat registration Therefore, DPNR did not raise the issue of
registration either explicitly or impliedly 34 Thus, DPNR renews its request to grant their motion to
strike
ll LEGAL STANDARD
1114 On April 3, 2017, the Supreme Court ofthe Virgin Islands adopted the Virgin Islands Rules
of Civil Procedure, which went into effect on March 31 2017 35 Virgin Islands Rule of Civil
Procedure 12(t) governs motions to strike and states
The court may strike from a pleading an insufficient defense or any redundant
immaterial, impertinent, or scandalous matter The court may act
(1) on its own, or
(2) on motion made by a party either before responding to the pleading or if a
response is not allowed, within 21 days after being served with the pleading 36
{[15 “Impertinent in this rule does not carry its everyday meaning of insolently rude but rather, it
has a legal significance meaning “irrelevant,” or, as Black’s Law Dictionary puts it “([o]fevidence)
having no probative value; not tending to prove or disprove a matter in issue Also termed
impertinent 2 (Of a pleaded allegation) having no substantial relation to the action and will not
affect the court’s decision irrelevance[ ]”37 Rule lS(b)(2) deals with issues not raised in
3' Defs Reply 2 3
3 Defs Reply 3
33 Defs Reply 3
3‘ Defs Reply 3
35 See In re Adoption ofthe V I Rules ofCIVI] Procedure Promulganon No 20] 00] 20l7 WL 1293844, 2017 V 1
Supreme LEXIS 22 (V 1 Apr 3 2017)
36 V l R ClV P 12“)
37 Irrelevant BLACK 5 LAW DICTIONARY (I Ith ed 2019)‘ cf Impertmen! MERRIAM WEBSTER DICTION «Rx
https www meniam webster com dictionary impertinent (lastvisited Mar 14 2023)( la given to orcharacterized by
insolent rudeness, lb not restrained within due or proper bounds especially of propriety or good taste )
Ronald Vargo & Kathleen Vargo v Gav I oflhe V I 2023 VI Super 1 lU
Dept 0fPlannmg and Na! Res et al
Case No ST 2022 CV 00084
Memorandum Opinion and Order
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pleadings but tried by consent and states
When an issue not raised by the pleadings is tried by the parties’ express or
implied consent it must be treated in all respects as if raised in the pleadings A
party may move at any time, even after judgment to amend the pleadings to
conform them to the evidence and to raise an unpled issue But failure to amend
does not affect the result of the trial of that issue 33
III ANALYSIS
A The issue of boat registration enforcement was not raised in the
Complaint
1116 While DPNR argues that the Vargos have conceded that the issue was not raised in the
Complaint because they also argue the issue was brought up by implied or express consent that is
immaterial to the determination that the issue was not raised in the Complaint That the Vargos
argued in the alternative that the issue was brought up by implied or express consent does not have
any bearing on whether the issue was brought up in the Complaint, as parties are permitted to argue
in the alternative Accordingly, the Court looks to the Complaint to see if it contains a request for
enforcement of § 292 or if such a request can be inferred
117 The Vargos first assert that the issue of boat registration was brought up in their Complaint
The Vargos did request “a writ of mandamus directing defendants to perform their duties under the
Mooring Act and the Motorboat Act ”39 This request contains no specific mention of § 292 As
DPNR notes, the Mooring Act and Motorboat Act contain a broad range of provisions, and only the
enforcement of some of them was ever actually brought up in motions or at trial Looking at the
context of the Complaint, the relief requested by the Vargos immediately prior to this request
detailed specific enforcement actions, including 1) enforcing the Mooring Act by prohibiting long
term anchoring in Round Bay 2) enforcing the Mooring Act by prohibiting illegal anchoring or
boating activity in Round Bay; 3) enforcing the Motorboat Act by preventing illegal boating within
the recreational areas of Round Bay, and 4) requesting an injunction against placing buoys or
exclusion markers in Round Bay
118 From this, it could be inferred that the Vargos were requesting a writ of mandamus for
enforcement of the Motorboat Act and Mooring Act provisions dealing with long and short term
anchoring in Round Bay, illegally operating a boat in Round Bay, or operating a boat in a prohibited
zone within Round Bay However, there is no mention preceding this relief or elsewhere in the
Complaint of boat registration procedures, either generally or pertaining to boats spotted in Round
Bay Therefore, the Complaint cannot be read, either explicitly or within its context, as requesting
’8 V! R CIv P l5(b)(2)
’9 Pls Compl 30
Ronald Vargo & Kathleen Vargo v Gov I ofthe VI 2023 VI Super 1 1U
Dept of Planning and Nut Res 9! a!
Case No ST 2022 CV 00084
Memorandum Opinion and Order
Page 7 of 8
enforcement of registration procedures under § 292
B The issue of boat registration was not raised at trial by express or implied
consent
{[19 The Vargos argue, in the alternative, that an exhibit detailing all of the enforcement actions
of DPNR, which includes a reference to DEE agents being on the lookout for non registered boats, is
sufficient to raise the issue by express or implied consent A brief mention in a multipage report
introduced into evidence does not clearly raise the issue, particularly when that mention is not what
was discussed by the attorneys or witnesses Importantly, the testimony elicited by the Vargos and
DPNR from the Director of DEE and others dealt with the issue of boats being in Round Bay
without a permit, not unregistered boats being in Round Bay Not only does this make no mention of
registration, but introducing a document and eliciting testimony and evidence as to enforcement
efforts around permits would cause a reasonable observer to conclude that the issue being raised was
the enforcement of boat permits and not boat registration
{[20 As DPNR highlights boat permits and boat registrations are separate matters Permits allow a
boat to operate or anchor in a designated area for a designated time Registration is required for all
boats before they can even operate in the waters of the Virgin Islands It is similar to government
regulation of motor vehicles boat registration is similar to how vehicles are required to be registered
yearly and display a registration sticker, while boat anchoring permits are similar to a vehicle
handicap pennit or parking permits issued by public and private parking lots they merely let the
vehicle park in a designated area for a designated time Thus, Exhibit 77 on its own and particularly
in the context of the testimony provided by the Director of DEE, is insufficient to raise the issue of
boat registration either by implied or express consent As the issue of boat registration under § 292
was not raised in the Complaint or at trial by express or implied consent, it is impertinent
Accordingly DPNR’s Motion To Strike will be granted and Section III of the Vargos Proposed
Conclusions of Law, entitled “Breach of Duty to Enforce l npermitted and Unregistered Vessels,
will be stricken
IV CONCLUSION
1[21 On March 8, 2022, the Vargos initiated suit against DPNR seeking the enforcement of
various environmental and boating regulations in the Round Bay area of St John, U S Virgin
Islands The Vargos Complaint makes no specific mention of § 292 of Chapter 15 of Title 25 of the
Virgin Islands Code The matter came before the Court for a trial on the merits on January 10 2023
and the trial concluded on January 13, 2023 At trial evidence was elicited regarding DPNR’s
enforcement or lack of enforcement, of various permit requirements necessary for boats staying
overnight or longer in Round Bay No specific evidence or allegations of DPNR failing to enforce
registration procedures was elicited
Ronald Vargo & Kathleen Vargo v Gov tofthe V I 2023 VI Super 1 IU
Dept ofPlanning and Na! Res e! a!
Case No ST 2022 CV 00084
Memorandum Opinion and Order
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1122 After trial Plaintiffs’ Proposed Findings of Fact and Conclusions ofLaw included a section
titled “Breach of Duty to Enforce Unpermitted and Unregistered Vessels ” which stated that “While
the Department cleared Round Bay on a few occasions, it did not check registrations of vessels to
determine if the vehicles were registered” and that this constituted “a breach of the duty to
administer and enforce § 292(b) of the Motorboat Act ” DPNR moved to strike this section as
impertinent, since the issue was neither raised in the Complaint nor at trial, and DPNR was
prejudiced because it was not able to respond to these allegations The Court, finding that the issue
was not raised in the Complaint or at trial, agrees that it is impertinent Therefore, DPNR’s Motion
To Strike will be granted
Accordingly, it is
ORDERED that Defendants Motion To Strike Part III Of Plaintiffs Conclusions Of Law
filed February 17 2023 is GRANTED and it is further
ORDERED that Part III of Plaintiffs’ Proposed Findings of Fact and Conclusions Of Law
entitled “Breach of Duty to Enforce Unpermitted and Unregistered Vessels” referenced on pages 3]
32 of Plaintiffs Conclusions Of Law, is hereby STRICKEN and shall not be considered by the
Court; and it is further
ORDERED that a copy of this Memorandum Opinion and Order shall be directed to counsel
of record
DATED March .25— 2023 WWW
DENISE M NCOlS
Judge of the Superior Court of the Virgin Islands
ATTEST
TAMARA CHARLES
Clerk of the Court
lorLA OYA CAMACHO
Court Clerk Supervisor 3 '07 7 lg;
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
District of St. Thomas/St. John
RONALD VARGO, ET AL, Case Number: ST-2022-CV-00084
Plaintiff,
v.
GOVERNMENT OF THE VIRGIN ISLANDS
DEPARTMENT OF PLANNING AND
NATURAL RESOURCES ET AL,
Defendant.
NOTICE OF ENTRY
OF A
MEMORANDUM OPINION AND ORDER
To: Jennifer Jones, Esq., via email Julie A. Beberman, Esq., via email
Ariel M. Smith, Esq., via email
Please take notice that on March 27, 2023
a(n) Memorandum Opinion and Order
dated March 25, 2023 was/were entered
by the Clerk in the above-titled matter.
Dated: March 27, 2023 Tamara Charles
Clerk of the Court
By:
Danica A. Miller
Court Clerk II