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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 OfLaw (‘ 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 ofDPNR to enforce the Mooring Act by prohibiting long term anchoring Dept ofPlanmng and Na! Res e! a! Case No ST 2022 CV 00084 Memorandum Opinion and Order in Round Bay ”' 2) “[A] preliminary injunction 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 injunction 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 of25 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 ofthe claim under Virgin Islands Rule ofCivil 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 Dept ofPlanning and Nat Res e! at Case No ST 2022 cv 00084 Memorandum Opinion and Order 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 ofphone 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 Dept ofPlanning and Na! Res er al Case No ST 2022 CV 00084 Memorandum Opinion and Order 119 Therefore, it is the Vargos contention that the conclusion oflaw 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 ofmandamus for enforcement ofChapter 15 ofTitle 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 ofChapter 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 ofEnvironmental 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 ofwork 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 Dept ofPlanning and Nat Res e! a! Case No ST 2022 CV 00084 Memorandum Opinion and Order 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 ofinsolently 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 (Ofa 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 Dept 0fPlannmg and Na! Res et al Case No ST 2022 CV 00084 Memorandum Opinion and Order 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 ofboat registration was brought up in their Complaint The Vargos did request “a writ ofmandamus 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 ofprovisions, 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) Dept ofPlanning and Nut Res 9! a! Case No ST 2022 CV 00084 Memorandum Opinion and Order 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 ofDPNR, 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 ofmotor 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 ofthe 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 ofChapter 15 ofTitle 25 ofthe 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 Dept ofPlanning and Na! Res e! a! Case No ST 2022 CV 00084 Memorandum Opinion and Order 1122 After trial Plaintiffs’ Proposed Findings ofFact and Conclusions ofLaw included a section titled “Breach ofDuty 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 ofDuty 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 ofthis 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, Plaintiff, v. GOVERNMENT OF THE VIRGIN ISLANDS DEPARTMENT OF PLANNING AND NATURAL RESOURCES ET AL, Defendant. Case Number: ST-2022-CV-00084 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