Current status of the civil lawsuit Eco Statia NV vs Public Entity St Eustatius 

 

In May of 2021 Eco Statia NV felt forced to take legal steps against the Public Entity of St Eustatius for neglecting their responsibility to take any action in protecting properties in Lower Town against the risks of the unsafe cliff. And for withholding disturbing reports from experts warning about the dangers of the effects of erosion.

Eco Statia NV is demanding that immediate safety measures are taken to protect their property (and of others at the same time) and that their loss of business income is reimbursed, so that they can resume operations. 

 

See page In the media for some news articles reporting the various steps in this court case. 

On December 6th 2022, the Court ruled in favor of Eco Statia NV

 

The Court decided that: 

  • Eco Statia NV was right to close their doors due to the unsafe cliff situation caused by erosion;

  • the Public Entity should have warned Eco Statia NV about the dangerous state of the cliff, instead of enforcing a construction duty, and should have taken safety measures. 

  • the Public Entity should take sufficient risk reducing measures to protect the Eco Statia NV property within 3 months and set a penalty of $1000 for every day they take longer to comply with a maximum of $1 million;  

  • the Public Entity is liable for any suffered losses on the side of Eco Statia NV. But no damage claims have been paid yet: a separate legal procedure has to be followed to set the exact amount of the claim.

 

What happened after: 

 

  • The Public Entity has appealed against the judgment dated December 6th 2022 on January 12th 2023.  This legal procedure is still ongoing. 
  • On February 10th, 2023, the Public Entity requested financial help of the Ministry of Interior Affairs and Kingdom Relations to be able to comply with the Court's ruling to take risk reducing measures on the cliff behind Eco Statia NV and STUCO.
  • During a preliminary injunction that the Public Entity filed in April 2023 to get the legal penalty withdrawn while awaiting the verdict of the appeal, the Court decided on May 5th not to revoke her previous decision on this. In the first week of June, the first penalty payment has been made.
  • In May, honoring the request of the Public Entity, the Dutch Government agrees to set aside an amount of 19 million euros for Sint Eustatius to take measures against the dangerous cliff erosion. The PubliC Entity will receive 8 million euros in 2023 and 11 million euros in 2024, as stated in the Spring Memorandum, which has yet to be ratified  by the House of Representatives. 
  • After learning about the 19 million euros funding, the Public Entity wrote an urgent letter to State Secretary of Interior Affairs and Kingdom Relations, Alexandra van Huffelen on May 22nd, asking to make the funds available before May 30st in order to start hiring a contractor for the cliff stabilization and avoid an increase of the penalties. 
  • In response, and with the support of the ministry of both Kingdom Relations* and Finance, Van Huffelen has submitted an urgent request to the House of Representatives on May 31st, to make the funds for 2023 available to the Public Entity immediately. The motivation for this is four-fold: the increasing penalties in the lawsuit; the contractor being available only now or in a year from now; the high and acute safety risk; the upcoming hurricane season.  
  • In a letter to Van Huffelen on May 23rd, the ministry of Kingdom Relations emphasizes that despite the fact that cliff maintenance and repair is a local responsibility, and the central government is not a party in the current lawsuit, they are willing to assist financially in the matter, under specific terms and conditions.  
  • The Public Entity's request to have earlier access to the funds was approved and on May 31st, the Public Entity signed a contract with AcrobatX, the same company that stabilized the cliff under Fort Oranje in 2019/2020. The works to reinforce the cliff behind Eco Statia NV in the same way are planned to start in July. 
  • On July 17th, the cliff stabilisation works have started behind the Orange Bay Hotel and are still ongoing.
  • A fire on November 17th behind the Orange Bay Hotel, damaging the protective material AcrobatX uses for reinforcing the cliff, will most likely delay the works that were expected to be finished on December 3rd. Read more about it In the media.

Verdicts and documents 

Read the full verdict from the Joint Court of Justice for Bonaire, St Eustatius and Saba on December 6th 2022 (in Dutch).  

Click on the images below to read only the decision from the Court's verdict on December 6th 2022 in Dutch (or read the English Google translation).

Read the full verdict of the preliminary injunction on May 5th 2023 (in Dutch). 

Below are some articles from this verdict (in Dutch). Click images for full size. 

See below the answer of the Court regarding the statement of the public entity that they don't know what it is exactly that they had to do within 3 months time, facing a penalty for every day they are late: The public entity obviously knows very well how to take risk reducing measures, seeing their experience with the cliff erosion and stabilization topic since 2017. 

The answer of the Court regarding the statement of the public entity that they simply don't have the funds to stabilize the entire cliff.

  • Not having the resources does not justify the failing of taking adequate safety measures.
  • Erosion is a known problem for St Eustatius: the government could have saved money since at least  2017 when they chose to stabilize the cliff underneath the fort. 
  • The Court urges the public entity to think about the costs if no safety measures are taken and the risks become reality. 

The Court states that compliance with the verdict of December 6th 2022 contributes to a safer situation for buildings and persons in Lower Town. And not only benefits Eco Statia but the greater good too. 

The public entity deliberately withheld information:

It took 1,5 years and 2 court orders to get them to disclose missing pages form risk assessment report 

 

The public entity of Sint Eustatius has withheld certain pages from a cliff safety assessment written by Hydrogeotechnique in March 2021. Presumably, the pages would hold specific risk analyses of different area's among the bay cliff, under which the properties of Eco Statia NV.

  • The company therefore requested access to these pages since April 30th, 2022, but this request was denied in June 2022 by the public entity. Eco Statia NV then appealed this decision via a special legal procedure under the public administration law (Wet openbaarheid van bestuur, or WOB).
  • On Tuesday May 23rd 2023, the Court ruled in favor of Eco Statia NV and ordered the public entity to reconsider their decision to withhold the requested pages within 4 weeks. Read the full verdict here (in Dutch). 
  • Despite the court verdict, the public entity still refused to disclose the information leaving Eco Statia NV no choice but to take legal action again and appealed this refusal in July 2023. 
  • On October 27th, 2023, the court ruled in favor of Eco Statia NV and ordered the public entity to  disclose the information as requested within 3 weeks  or they would receive a fine of $500 for each day they refused. Read the full verdict here (in Dutch). 
  • On November 15th, the public entity finally shared with Eco Statia NV the requested appendixes of the report "Sint Eustatius Oranjestad Bay Cliff Study" that Hydrogeotechnique conducted together with Royal Haskoning DHV between February 2020 and February 2021 for the Dutch government. 

The pages show the assessed cliff regression, (water) erosion risks and rockfall hazards of all the areas of the bay cliff from the Orange Bay Hotel to the Stuco plant. As well as the vulnerabilities and stakes of the properties at the foot and on the top of the cliff.  Treatment plans and suggestions for reinforcement are also included.

The public entity also shared an estimate from AcrobatX for cliff reinforcement works, in which all amounts were hidden.  

Several risk analyses and reports 

5 different reports analyzed the areas of the eroding cliff in Lower Town and pointed out corresponding risk levels (photo). 

Click here for a document that Eco Statia NV drew up summarizing the findings of the different reports and a chronological list of events relevant for Eco Statia NV's legal plea (in Dutch).