V- ON THE DEFENSE OF RES JUDICATA.
In the present matter, all the defendants, as well as their intervening party, have raised the exception of res judicata. In unison, they have maintained—in essence—that what was raised by the plaintiffs and the active intervening party was already resolved by the Constitutional Chamber (Sala Constitucional), whose decisions—they say—have the effect of res judicata over this administrative contentious process. In support of the defense of res judicata, those invoking it argue that the Constitutional Chamber has issued judgments 2010-06922, of 14:45 hours on April 16, 2010, and 2010-14009, of 13:59 hours on August 24, 2010, by which it ruled on the issues discussed in the process that occupies us here. They state that by virtue of the provisions of Article 13 of the Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional), what was decided in the constitutional venue is binding erga omnes and, consequently, cannot be disregarded by this Chamber. The Court considers that this exception must be rejected. First of all, it should be noted that it cannot be overlooked that the two judgments of the Constitutional Chamber alluded to by the defendants and the passive intervening party were dismissive. It is necessary to make clear here and now that even though judgment No. 2010-6922 partially grants the amparo action with respect to a single point (the requirement of a technical pronouncement by SENARA), the truth is that in all other respects the ruling under comment was dismissive of the amparo action, and given that for the issuance of this judgment the SENARA issue lacks importance, for that reason resolution 2010-6922 is considered generally dismissive. Likewise, if this is considered in light of the fact that these were amparo proceedings, it is clear to this Court that what the Constitutional Chamber determined is that the conducts submitted to its knowledge in those two appeals did not imply the violation of fundamental rights of the appellants. And in that sense, this Court fully observes Article 13 of the Constitutional Jurisdiction Law, since the fact that the injury to fundamental rights of the protected parties was not verified in the constitutional venue does not mean that the administrative conducts do not contain legality defects. And it is that from the non-affectation of fundamental rights, the non-observance of legality does not follow. One and the other are different analyses, which are carried out from different parameters and, in the Costa Rican legal system, thanks to a matter of competences, by separate bodies. Thus, in the present case, what was decided by the Constitutional Chamber in judgments 2010-06922 and 2010-14009, already cited, does not share identity of object, parties, or cause with what has been heard in the administrative contentious proceeding number 08-001282-1027-CA, reason why it must be ruled out that the statements made by the Constitutional Chamber in the two judgments already referred to generate res judicata regarding what this Court hears. Note that the amparo action 08-014068-0007-CO, which culminated with the issuance of judgment 2010-06922, was brought by Edgardo Vinicio Araya Sibaja on behalf of the Asociación Norte por la Vida, but it cannot be ignored that in the administrative contentious process that concerns us here, that organization has been an intervening party, not a party, and Mr. Edgardo has been only the attorney-in-fact of the Association, not the appellant, as he was in the constitutional venue. On the other hand, the amparo action processed as file 08-008647-0007-CO, which culminated with the issuance of judgment 2010-14009, was brought by Carlos Manuel Murillo Ulate and Douglas Dayan Murillo Murillo, who have not appeared either as parties or intervening parties in this administrative contentious process. Thus, there is no identity of parties between the constitutional processes and the one carried forward in this venue, which, pursuant to the provisions of Article 163 of the Civil Procedure Code (Código Procesal Civil), is sufficient, by itself, to rule out that what was decided by the Constitutional Chamber in the two indicated amparo actions constitutes res judicata regarding what is decided here. But furthermore, there is also no identity of object and cause between those processes and the present one, which is evident if one takes into account what is heard by reason of an amparo action and what is decided in an administrative contentious process. Recall that the amparo action is contemplated in Article 48 of the Political Constitution (Constitución Política), where, after reserving the habeas corpus action to guarantee the freedom and integrity of the person, it is conceived as a means to maintain or restore the enjoyment of other constitutional rights or those fundamental rights contemplated in international instruments on human rights. As can be seen, from the Fundamental Law itself, constitutional and fundamental rights are distinguished from other rights, the amparo action being provided only for the protection of those two. In the same sense, the Constitutional Jurisdiction Law, in its Article 2, subsection a) and in Article 29, is clear in providing that the amparo action is provided to guarantee the fundamental rights and freedoms not protected by the habeas corpus action. Thus, what is determined through an amparo proceeding is whether or not said fundamental rights were violated. What happens is that, when the Constitutional Chamber dismisses or declares without merit an amparo action, Article 55 of the Constitutional Jurisdiction Law becomes applicable, which establishes the following: "The rejection of the amparo action does not prejudge the responsibilities that the author of the grievance may have incurred. The offended party or the Administration, as the case may be, may bring or exercise the corresponding actions, or apply the pertinent measures." As can be seen, the Constitutional Jurisdiction Law itself provides for the consequences of the rejection of an amparo action, and it happens that in such an event, the decision does not prejudge other responsibilities on the part of the author of the grievance, that is, the dismissal of the action does not entail the non-existence of a grievance for the interested party, who may exercise other actions to try to prove it. It is here that the provisions of Article 49 of the Political Constitution acquire total relevance, in which the administrative contentious jurisdiction is created. By creating this jurisdiction within the chapter of individual rights and guarantees of the Magna Carta, it is clear that access to it constitutes a guarantee for the inhabitants of the Republic who seek that the Public Administration subjects itself to legality in its actions. In that sense, this Court considers that since the Political Constitution, an important difference is marked between the competences assigned to the constitutional jurisdiction and the administrative contentious jurisdiction. In both cases, it is sought—among other things—the full subjection of public powers to the legal order, but the Constitutional Chamber must carry out that control from the perspective of fundamental rights, without being able to descend to an examination of legality when it has ruled out the violation of some fundamental right, whereas, in contrast, all the bodies that make up the administrative contentious jurisdiction are obliged to always carry out different types of analysis, from the Political Constitution to the lowest levels of the scale of administrative normative sources, even if no violation of fundamental rights occurs. This distinction in the competence scope of each of the indicated bodies is what determines the non-existence of identity between the object and the cause of what was heard by the Constitutional Chamber in the amparo actions already indicated and what was examined by the Administrative Contentious Court in this process. Before the constitutional jurisdiction, it was intended to guarantee the protection of fundamental rights, but before the administrative contentious jurisdiction, it has been sought to guarantee the legality of the administrative function. From that perspective, it is clear to this Chamber that the claims of the then-appellants and those of today's plaintiffs differ considerably in terms of their foundation, since what was petitioned in the amparo actions was made to depend on the declaration of injuries to fundamental rights (which did not happen), while what was claimed in this process has been made to depend on the violation of legality (which has been taken as true). It is worth reiterating here that this approach finds its axis in the fact that the Constitutional Chamber, when issuing judgments 2010-06922 and 2010-14009, declared the amparo actions without merit, that is, it issued dismissive rulings. And this is very important to highlight in light of a precedent cited by the representation of Industrias Infinito during its closing arguments. When addressing the issue of res judicata, the defendant company invoked, in its favor, judgment of the First Chamber (Sala Primera) of the Supreme Court of Justice (Corte Suprema de Justicia) number 339-F-2005, of 14:45 hours on May 25, 2005, a resolution from which the very attorney-in-fact cited in debate the following excerpt: "In accordance with Article 163 of the Civil Procedure Code, judgments issued in ordinary or abbreviated proceedings, as well as those other resolutions exhaustively indicated, produce the authority of material res judicata. Within this last assumption are the granting judgments issued by the Constitutional Chamber, which, in light of what is provided by precept 13 of the Constitutional Jurisdiction Law, are not susceptible to discussion in other instances regarding the constitutional infraction." As can be seen, what the First Chamber considered capable of producing res judicata in accordance with Article 13 of the Constitutional Jurisdiction Law are the granting resolutions of the Constitutional Chamber, not the dismissive ones, the First Chamber being clear—furthermore—in understanding that the erga omnes binding force is referred to the constitutional infraction. In other words, the argumentation of Industrias Infinito itself comes to strengthen the thesis of this Court in that, because the constitutional chamber dismissed the amparo proceedings already mentioned, what was decided by the Constitutional Chamber in those two cases does not have the effect of res judicata in relation to the matter being decided in this judgment. Additionally, it is necessary to make clear that the position assumed by the Fourth Section of this Court when issuing this judgment is not isolated but rather is in full consonance with what has been established by other Sections. Thus, for example, it is worth indicating that the Sixth Section, in judgment number 730-2009, of 14:30 hours on April 21, 2009, has indicated the following: "...This Court considers that the exception of material res judicata must be rejected for the following reasons: a) The Political Constitution defines the competence scope of both jurisdictions, based on the object that both pursue. Regarding the Constitutional Jurisdiction (articles 10 and 48) it is to guarantee constitutional supremacy, through—in this case—the maintenance or restoration of the fundamental rights enshrined in the Political Constitution and in the International Instruments in force in the Republic, by means of the amparo action, with the exception of the rights protected by the habeas corpus action (see articles 1, 2.a and 3 of the Constitutional Jurisdiction Law). Regarding the Administrative Contentious Jurisdiction (article 49), it constitutes the guarantee of the legality of the administrative function of the State, its institutions, and of any other public law entity, given that the law will protect, at least, the subjective rights and legitimate interests of the administered (see article 1 of the Administrative Contentious Procedure Code); b) It is true that the Law of the Constitution is binding by itself and that, being the foundation of the entire legal order, it must be applied by legal operators—whether jurisdictional or not—because at the highest level it forms part of the “principle of legality” to which the exercise of the administrative function is subject, and on whose compliance depends ultimately, its effective control, the guarantee of the fundamental rights of the administered, the realization of public interest purposes, and the preservation of the democratic principle that constitutes the essential basis of the Social State of Law; c) From that perspective, if the administrative contentious judge is competent to act as the controller of legality in the exercise of the administrative function, this implies that by the nature of the object of its competence, it is one of the ordinary operators of law that best represents and exercises the function of protection of fundamental rights within the framework of that function. This is because compliance with the principle of legality implies overseeing the exercise of the powers of imperium of the administration against the fundamental rights of its main addressee—the administered—, not only from a negative point of view—that as a consequence of arbitrary conducts or those having the appearance of legality, a violation of those rights is caused—but also a positive one—that the realization of public interest purposes be procured efficiently—; d) Notwithstanding the foregoing, we must be very clear that all of this falls within the scope of the competence granted by the constitutional text itself, which is ultimately determined by the object intended to be protected in each jurisdiction, reason why, although guaranteeing compliance with the principle of legality in the administrative contentious venue necessarily includes the Law of the Constitution; guaranteeing the principle of constitutional supremacy in the Jurisdiction provided for in articles 10 and 48 of the Political Constitution does not imply reviewing whether, in accordance with the legality framework applicable to each case, it is appropriate to recognize, restore, or declare the existence, non-existence, or content of a legal situation or relationship subject to the administrative legal order, in order to protect a subjective right or a legitimate interest; e) That derived from all the above, we cannot sustain that the competences between both jurisdictions are concurrent, since the fact that in some cases there is material identity of the conducts that are the object of the processes processed in both jurisdictions does not have the virtue of assimilating the object pursued in each one of them—which, according to the constitutional text itself—is different, which in turn implies that the scope of their competence is also different. Recall that concurrent competences imply that each body has the fullness of the corresponding competence and can do the same as the other: if they are equal, what is done by one can be annulled by the other—in accordance with the principle that the later derogates the earlier—, and if they are unequal, the superior can do or undo everything that the inferior does before or after it resolves the matter submitted to its knowledge; f) In summary, although non-compliance with the principle of legality indirectly causes the violation of a fundamental right due to non-observance of the legal order, this does not imply that guaranteeing the principle of constitutional supremacy, in those cases of violations or threats that directly injure the essential content of a fundamental right thereby causing an urgent situation, implies a concurrent competence; the only possible concurrence—and which is not of competences—is the existence of alleged violations of fundamental rights, although originating from different reasons for injury, which is precisely what determines the scope of competence of each Jurisdiction, in accordance with what articles 10, 48, and 49 of the Political Constitution establish; g) From that perspective, the scope of what is provided in Article 13 of the Constitutional Jurisdiction Law, regarding the binding erga omnes character of the jurisprudence issued by the Constitutional Chamber of the Supreme Court of Justice, within the scope of its competence, must be understood in two senses: 1) If that Court grants or declares with merit an amparo action, a habeas corpus action, or a constitutionality question (action and judicial or legislative consultation), because the conduct or norms that are the object of the process are contrary to the Law of the Constitution, in accordance with the provisions of Article 7 of the General Public Administration Law (Ley General de la Administración Pública), they constitute unwritten norms, whose application by legal operators is binding, in order to guarantee and make effective the principle of constitutional supremacy in the ordinary venue both at the administrative and jurisdictional levels; 2) If, on the contrary, the Constitutional Chamber dismisses or declares without merit an amparo or habeas corpus action, because the conduct that is the object of the process is not contrary to the Law of the Constitution, this does not prevent the appellant from resorting to the competent jurisdictional venue in protection of their subjective rights or legitimate interests, in order for it to be determined there whether the challenged conducts are or are not contrary to the Legal Order, since in accordance with the provisions of articles 10 and 48 of the Political Constitution, in relation to articles 1, 2 subsections a and b, and 3 of the Constitutional Jurisdiction Law, the analysis carried out by said jurisdictional body implies the confrontation of the text of the questioned norm or conduct, its effects, or its interpretation or application by public authorities, with the constitutional norms and principles; h) The foregoing not only responds to the competence limits established for both jurisdictions in articles 10, 48, and 49 of the constitutional text but also to a general principle of justice whose effective application constitutes a fundamental right inherent to every person, which is extracted from the provisions of articles 41 and 153 of the Political Constitution; i) Thus things, it is the criterion of this collegiate body that the pronouncements of the judgments issued in the constitutional venue (through amparo and habeas corpus actions) have a direct impact on administrative contentious processes when in that venue the irregularity of public conduct had been ordered due to injury to the regime of the Law of the Constitution and as a consequence thereof, the suppression of the administrative functioning subject to study was ordered. In such cases, it would lack current interest to weigh the validity or not of a certain public conduct in an administrative contentious process when the Constitutional Court already established its invalidity, for other causes, but whose effect would be the same, i.e., its juridical annulment. The same does not happen with the dismissive decisions issued by that high jurisdictional body, since in that hypothesis, the examination of the legality of the act acquires relevance and utility, an aspect that is not discussed in the constitutional venue, and such examination corresponds to this jurisdiction (article 49 of the Political Constitution), as has been said. Ergo, the determination in the constitutional phase of non-transgression of the Law of the Constitution is not an obstacle to a legality comparison, and may even generate the suppression of the act due to infraction of the infraconstitutional Legal Order. Therefore, in those cases, res judicata cannot exist due to the rejection of an amparo action, since the object of analysis of this Court is very different from that addressed in constitutional processes..." (the emphasis through bold or underline is from the original). As can be seen, what was expressed by the Sixth Section in the recently cited judgment is essentially the same approach that is now set forth in this resolution. And more importantly, what was expressed in judgment 730-2009, recently mentioned, was already confirmed by the First Chamber of the Supreme Court of Justice, acting as Court of Cassation for Administrative Contentious and Civil Treasury Matters, in judgment number 107-F-S1-2010, of 8:30 hours on April 30, 2010. In this ruling, the First Chamber indicated the following: "Regarding the second charge on the alleged contradiction with rulings issued by the Constitutional Chamber, such an approach obliges us to question whether an administrative conduct, whose non-conformity with the law of the constitution has been ruled out by the constitutional court, can at the same time be illegal. On this point, it is the criterion of this Chamber, that despite the fact that both jurisdictions are concurrent, insofar as they are controllers of administrative conduct in its various manifestations (formal, material, and omissive), the parameter used is different in both, the first is based on the Law of the Constitution, and the second, on the block of legality. Indeed, it could not be affirmed that an entity that proceeds in accordance with the possible framework of action provided by the block of juridicity incurs a defect of unconstitutionality, since it is precisely the infraconstitutional norms that manage to materialize the general aspirations stipulated in constitutional texts. Hence, in administrative contentious matters, the analysis must be integrated with the entire legal order in order to determine any possible infraction of the block of legality, a task constitutionally attributed to the administrative contentious jurisdiction (Art. 49 of the Political Constitution). Therefore, reviewable before the administrative contentious jurisdiction are both the cases where the constitutional court has dismissed or declared without merit the amparo or habeas corpus action filed, considering that the challenged conduct is not directly contrary to the Law of the Constitution, since in that case, it does not allude to the legality of the act or conduct (exclusively the province of the administrative contentious judges), and those in which, having declared the non-conformity with the Magna Carta, the justiciable party deems it opportune to discuss the conformity of the actions with the block of legality. In these cases, the administered person may resort to the administrative contentious venue to assert their eventual subjective rights or legitimate interests and request that it be determined in that instance whether the challenged conducts or acts are or are not contrary to the legal order. Hence, the interpretation made by the defendant, in the sense that all rulings issued by the Constitutional Chamber produce res judicata, is not valid, as the analysis carried out by said deciding body is different from that performed by the Administrative Contentious Court. Moreover, regarding the “erga omnes” application of constitutional rulings, this Court does not dispute that precept, contained in Article 13 of the [Constitutional Jurisdiction Law] "but it is denoted that such pronouncements are made solely and exclusively on the framework of the infraction of the Law of the Constitution." As can be seen, the First Chamber of the Supreme Court of Justice, acting as Court of Cassation for Administrative Contentious Matters, has also manifested itself in the sense expressed by this Court in this judgment, the criterion of both jurisdictional bodies thus coinciding in that the judgments of the Constitutional Chamber by which an amparo action is dismissed or declared without merit do not have the effect of res judicata on processes heard in the administrative contentious jurisdiction. In addition to the foregoing, but in another order of ideas, it is necessary to make clear that, in any case, the Constitutional Chamber itself, in its judgments 2010-06922 and 2010-14009, left open the avenue for the issues on which this judgment deals to be heard in the administrative contentious venue. See, for example, that in judgment 2010-06922, the Constitutional Chamber, in Considerando XLIII of said ruling, retakes two other resolutions of that body (2004-09927 and 2005-06790) to indicate that in them "it has been repeatedly defined that it escapes the scope of competences of this jurisdiction to dwell on assessing whether the studies have been well carried out or if they comply with the necessary information, aspects that of themselves must be resolved by the corresponding technical instances" (the bold and underline are supplied). The foregoing shows that the Constitutional Chamber itself made it clear that it was beyond its competence to examine the technical correctness of the studies carried out on the Crucitas mining project.\n\nThat same position was expressed by that Chamber in Considerando LX of the same ruling, in which it indicated: \"It must be reiterated that the technical knowledge of the requests and claims such as those indicated here falls within the purview of the technical entities of the administration, and therefore, if the pertinent bodies have rendered their scientific opinion on the matter, it falls outside the scope of the jurisdiction of the constitutional court to discuss whether such an opinion is in accordance with the also technical character of the elements considered by the administration for issuing its pronouncement; consequently, if the interested parties believe that there is any disagreement in this regard, they must file the pertinent actions before the appropriate bodies\" (bold and underlining are not from the original). It is immediately apparent how the Constitutional Chamber itself declined to rule on the correctness of the aforementioned technical reports, even maintaining (a criterion this Court shares) that this aspect falls outside its scope of jurisdiction, and indicating that to challenge the administration's assessment of those reports, the \"pertinent actions\" must be filed, which are none other than those brought before the contentious-administrative jurisdiction. And it must be remembered here that Article 49 of the Constitution assigns to the latter the control of the legality of the Administration, which entails the oversight of its compliance at all times with the rules of science and technique, as provided in numeral 16 of the General Law of Public Administration (Ley General de la Administración Pública). This latter point takes on greater importance when the question of whether the Administration correctly assessed various technical aspects, such as the maximum elevation to which extraction could reach in the Crucitas mining project, has been raised throughout this proceeding. It is necessary to point out that in the same ruling 2010-06922, the Constitutional Chamber itself, referring to the issue of the public road, indicated in Considerando LXXXVII that the complaints raised about the closure to which a public road would be subjected had to be heard first by the Administration and lacked a direct relationship with the subject matter of the amparo appeal (recurso de amparo) then being heard, making it therefore clearly evident that the constitutional jurisdiction did not rule on the merits of the problem, thus making it viable to hear it in this contentious-administrative proceeding. In that same ruling 2010-06922, the Constitutional Chamber assessed the executive decree (decreto ejecutivo) 34801, by which the Crucitas mining project was declared of public interest and national convenience (interés público y de conveniencia nacional), but if one reads what is set forth in Considerandos CIII and CIV of that resolution, it is immediately apparent that the Chamber simply verified that the decree stated some reasons for its issuance, therefore deeming it well-founded from a constitutional perspective, but the Constitutional Chamber never descended into conducting a legality analysis, since when referring to the performance of the cost-benefit analysis, that jurisdictional body indicated that \"dealing with a determination of a technical nature, this is a matter of ordinary legality already defined by the competent entities in each case\". If the Constitutional Chamber was satisfied with the technical assessment made by the Administration for issuing said decree, and therefore did not proceed to analyze that administrative technical assessment and further indicated that this assessment was a matter of ordinary legality, then it is evident and manifest that it falls to the contentious-administrative jurisdiction to examine whether the Administration complied with ordinary legality when issuing that decree, something that is done here and finds support in the powers that the Political Constitution assigns to this jurisdiction in Article 49. Now then, in addition to everything that ruling 2010-06922 reserves to be heard by the judges of the contentious-administrative jurisdiction, it must be indicated that another portion comes from ruling 2010-14009. In Considerando V of the latter, unanimously and with the participation of four Magistrates who had also voted on resolution 2010-06922 (namely: Armijo, Jinesta, Cruz, and Castillo), it is expressly indicated that \"it is not a matter of constitutionality but of legality to examine and assess whether a mining concession violates an executive decree\", this in relation to the moratorium decree on mining activity; it is also expressed that \"neither is it a matter of analyzing whether it violates the regulations of the College of Chemists (Colegio de Químicos)\"; it is further indicated that \"it is not a matter of constitutionality but of legality to examine and assess whether the respondents proceeded correctly or not in 'converting' the granting of the mining concession that had been previously annulled by\" the Constitutional Chamber, after which that same body concludes the referenced Considerando V indicating that \"said allegations must be brought by the appellants to the contentious-administrative route, which is the competent jurisdiction to analyze the legality of the granting of the concession in question, in accordance with the arguments set forth by the appellants\" (the bold and underlining are supplied). The foregoing demonstrates that the Constitutional Chamber itself was always aware of its constitutional powers and never ventured into the realm of legality when assessing the Crucitas mining project, but rather conducted its review from the perspective of whether or not fundamental rights were violated, which is what is appropriate in the case of an amparo appeal. Furthermore, this position is consistent with the issues that it had left to be heard in the contentious-administrative jurisdiction, since the issuance of ruling 2010-06922. Returning to the scope of the already-mentioned ruling 2010-14009, it is necessary to point out that in Considerando VI thereof, it was indicated that the majority vote of ruling 2010-06922 omitted to consider that the modifications to the Crucitas mining project required a new public hearing, so that is a point that, given what is indicated at the end of said Considerando VI, is also reserved for hearing in the ordinary venue, which is none other than the contentious-administrative jurisdiction. Likewise, it becomes important to recall that, due to the very particular nature of the rights sought to be protected through the amparo appeal, said proceeding has been structured as a summary proceeding (sumario), in which a decision is made based on reports rendered under oath, which differs considerably from the oral trials conducted in the contentious-administrative venue. This procedural difference has acquired particular relevance in this matter, since it suffices to consider the example of the expert witness Hugo Virgilio Rodríguez Estrada to demonstrate why it is impossible, through the amparo appeal, for the Constitutional Chamber to have been able to descend into the examination of all the relevant aspects to determine whether the Crucitas mining project complies with legality or not. It should be recalled that this expert witness admitted in open court that the document he issued, presented as Anexo 7 in the report rendered by the then Minister of Environment and Energy (Ministro de Ambiente y Energía) before the Constitutional Chamber on the occasion of amparo proceeding 08-014068-0007-CO, contained a very important error, namely having referred to a \"depth\" of \"seventy-five meters below ground level\", when the correct information, as he himself acknowledged, is that it should have referred to \"elevation\" and should have alluded to \"meters above sea level\", since these are completely different notions and, if confused, could lead to misunderstandings regarding the technical conditions imposed by geologist Sofía Huapaya Rodríguez Parra for the extraction. This issue was only able to be discovered through the adversarial process and is an example of how reports rendered under oath, which are useful for determining in a summary proceeding whether fundamental rights have been violated or not, do not have the same scope when it comes to defining whether administrative conduct conforms or not to the legal framework (bloque de legalidad). And this distinction is, in turn, important to reiterate the different subject matter between an amparo appeal and a contentious-administrative plenary proceeding (proceso de conocimiento), which perfectly illustrates why the dismissal ruling issued on the former occasion does not create res judicata (cosa juzgada) with respect to the latter. Finally, it must be indicated that in its conclusions, the representative of Industrias Infinito mentioned other rulings of the Constitutional Chamber that supposedly would create res judicata in relation to the matter heard here. It specifically mentioned resolutions: 1998-05315, 2002-07882, 2004-13414, 2007-07973, and 2009-17155. With respect to the first three, it must be indicated that all of them were issued prior to the issuance of the acts that are the subject of this trial, which demonstrates that they can never constitute res judicata concerning what is heard here, since the acts challenged in this proceeding did not even exist when those resolutions were issued. As for the 2007 decision, it must be indicated that in the first one, a party's motion in the same amparo proceeding that concluded with the issuance of ruling 2004-13414 was simply declared without merit, which demonstrates that it does not create the effect of res judicata on what is now heard. And as regards the 2009 ruling, it must be indicated that it involves a constitutionality action (acción de inconstitucionalidad) (case file number 08-014900-0007-CO) brought by Freddy Pacheco León against provisions of the Mining Code (Código de Minería), which demonstrates that it is a matter that shares neither the identity of the parties nor the subject matter discussed in this plenary proceeding and, consequently, does not produce res judicata with respect to what is heard here. For all the foregoing reasons, the defense of res judicata raised by the defendants and the passive coadjuvant is rejected.\n\n**VI- CONCERNING THE DEFENSE OF LAPSE (CADUCIDAD).**\n\nSaid defense must be rejected, for it must be observed that resolution 3638-2005-SETENA was issued in the year 2005 and transitory provision III of the CPCA establishes that the regime for challenging acts that became final prior to the entry into force of the Code shall be governed by the legislation in force at that time. Article 175 of the LGAP established a lapse period of 4 years for challenging absolutely null acts. Consequently, the aforementioned period has not elapsed since the issuance of resolution No. 3638-2005-SETENA, much less with respect to the other challenged acts, which were issued in the year 2008. As a corollary to the foregoing, the lapse invoked does not exist.\n\n**VII- CONCERNING THE DEFENSE OF TACIT CONSENT (ACTO CONSENTIDO).**\n\nThis defense must be rejected, given that the elimination of the mandatory exhaustion of administrative remedies requirement for non-municipal conduct means that failing to challenge an act through administrative channels does not constitute an impediment to resorting to the contentious-administrative route to seek its nullity, and therefore this preliminary defense is not applicable.\n\n**VIII- CONCERNING THE STATUTE OF LIMITATIONS (PRESCRIPCIÓN).**\n\nThe statute of limitations is rejected because there is no statutory limitation period for challenging public conduct, but rather a lapse period (plazo de caducidad), regulated in the CPCA, an issue already decided by this Court. As for the claim for damages (daños y perjuicios), the statute of limitations period is 4 years according to the LGAP, and it has not elapsed since the issuance of all the challenged acts.\n\n**IX- CONCERNING THE DEFENSE OF ACTS NOT SUBJECT TO CHALLENGE (ACTOS NO SUSCEPTIBLES DE IMPUGNACIÓN).**\n\nThe defendants raised the defense of acts not subject to challenge in relation to various acts, namely: official communication DST-773-2006, from INTA, official communication ASA-013-2008-SETENA, resolutions 3638-2005 and 170-2008-SETENA, as well as executive decree 34801-MINAET. On this matter, it must be indicated that only official communications DST-773-2006 and ASA-013-2008-SETENA are, in the Court's judgment, conduct whose challenge in this proceeding was not possible. Therefore, the exception of acts not subject to challenge is upheld regarding official communications DST-773-2006 and ASA-013-2008-SETENA. The remaining challenged acts are final acts or acts with their own effect (efecto propio), and therefore, subject to challenge in the contentious-administrative venue. Particularly concerning official communication ASA-013-2008-SETENA of January 14, 2008, this Court has noted that it constitutes merely a recommendation from the Department of Environmental Auditing and Monitoring (Departamento de Auditoría y Seguimiento Ambiental) to the Plenary Commission (Comisión Plenaria), both of the National Environmental Technical Secretariat (Secretaría Técnica Nacional Ambiental). In that sense, given that the administrative decision is embodied in what the Plenary Commission resolves, it is evident that the recommendation made by the Department of Environmental Auditing and Monitoring lacks its own effects and for that reason, the referenced exception must be upheld with respect to that official communication, as it is not subject to challenge. Regarding the document from the National Institute of Innovation and Transfer in Agricultural Technology (Instituto Nacional de Innovación y Transferencia en Tecnología Agropecuaria, INTA), i.e., official communication DST-773-06 of October 4, 2006, it is necessary to indicate that it is not subject to challenge in this proceeding. On this point, note that Law 7779 reformed Article 25 of the Mining Code and introduced into it the obligation of the Ministry of Agriculture and Livestock (Ministerio de Agricultura y Ganadería) to issue its approval or oppose the granting of an exploration permit or a mining exploitation concession. INTA was created by Law number 8149, but its objective is to contribute to the improvement and sustainability of the agricultural sector, which it must do through the generation, innovation, validation, research, and dissemination of technology. As can be seen, INTA was not created to issue a criterion on whether to oppose mining permits or concessions, a function that, according to the provisions of Law 7779 and Article 25 of the Mining Code, continues to correspond to the Ministry of Agriculture and Livestock and not to INTA, since that competence was never transferred by law to the latter. Therefore, official communication DST-773-06 is not subject to challenge in this venue, as it is a mere procedural act that lacks any effect on the matter under review. It should be added that even though executive decree number 31857 (Regulation to the Law of the National Institute of Innovation and Transfer in Agricultural Technology, Reglamento a la Ley del Instituto Nacional de Innovación y Transferencia en Tecnología Agropecuaria) provided, in Article 5, that the functions that Law number 7779 assigned to the Soils Department of the National Directorate of Agricultural Research of the Ministry of Agriculture and Livestock would become part of INTA, the fact is that such transfer of functions was made \"as appropriate\". This indicates that what was not appropriate for INTA would not be transferred. Thus, given that by law (not by decree) INTA has a much narrower functional scope than that established in Law number 7779 for the Ministry of Agriculture and Livestock, then those functions that the Law assigns to the Ministry that are not contemplated in Law number 8149 remain with the former and cannot be transferred to INTA by means of a regulation. Among these functions that are assigned by law to the Ministry and that the law did not transfer to INTA is precisely that of issuing a pronouncement on soils for the purposes of mining concessions, so it was not possible to hear in this proceeding an act (the INTA official communication) that has no effect whatsoever. Now then, with respect to resolutions 3638-2005 and 170-2008-SETENA, as well as resolution No. R-217-2008-MINAE, resolution No. 244-2008-SCH, and executive decree No. 34801-MINAET, it must be indicated that all of these conducts have their own effects and, consequently, are subject to challenge in this venue. Environmental viability (viabilidad ambiental) produces effects by itself, such that if it is not granted, the project cannot proceed; the same applies to the approval of changes made to the project. For its part, without the national convenience decree (decreto de conveniencia nacional), the logging permit (permiso de tala) could not be granted, which reveals the effect that this provision of the Executive Branch has.\n\n**X- CONCERNING THE PRECAUTIONARY PRINCIPLE (PRINCIPIO PRECAUTORIO) AND THE BURDEN OF PROOF**\n\nIt is known to all that the Political Constitution, in its numeral 50, establishes the fundamental right of every person to a healthy and ecologically balanced environment (ambiente sano y ecológicamente equilibrado). Said norm entrusts the State with the duty to guarantee, defend, and preserve that fundamental right. The development of this constitutional provision is widely regulated in international instruments and in numerous provisions of our country's domestic legislation. Doctrine and International Law have been responsible for enshrining a series of guiding principles in environmental matters that are universal in nature, and which grant this area of law a singularity and its own regime, among which the following can be listed: principle of equality, principle of sustainability, polluter pays principle (principio del que contamina paga), principle of broad procedural standing, principle of restoration of damage, principle of citizen participation, preventive principle, and precautionary principle (principio precautorio). Of all of them, it is worth highlighting for the specific case the preventive principle, referring to those cases where there is a scientific opportunity to measure the risks and recommend measures for the management of the activity, and the precautionary principle or principle of prudent avoidance (principio de la evitación prudente), the latter of which is contained and regulated in the United Nations Conference on Environment and Development, Rio Declaration (1992), whose Principle 15 literally states: \"Principle 15.- In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.\" In our legislation, we find this principle embodied in Article 11 of the Biodiversity Law (Ley de Biodiversidad) No. 7788, which for such purpose provides: \"Criteria for applying this law. The criteria for applying this law are: 1.- Precautionary or pro natura criterion: When there is danger or threat of serious or imminent damage to the elements of biodiversity and the knowledge associated with them, the absence of scientific certainty shall not be used as a reason for postponing the adoption of effective protection measures.\" The Constitutional Chamber has described the precautionary principle in the following manner: \"correctly understood, the precautionary principle refers to the adoption of measures, not in the face of ignorance of risk-generating facts, but in the face of a lack of certainty that such facts will effectively produce harmful effects on the environment.\" (resolution No. 3480-03, of 2:02 p.m. on May 2, 2003), the Chamber highlighting that \"in environmental matters, a posteriori coercion is ineffective, since if the biologically and socially harmful consequences have already occurred, repression may have moral significance but will hardly compensate for the damages caused to the environment\" (resolution No. 17618-08, of 11:51 a.m. on December 5, 2008). It is important to point out that the precautionary principle constitutes a parameter of legality for administrative conduct, and on that matter, Dr. Aldo Milano points out that \"a large part of risky activities are subject to an administrative police power regime, which manifests itself in the granting or refusal of authorizations of that same nature. This causes conflicts related to such decisions to arise, either because it is considered that by granting the authorization in a specific case, the Precautionary Principle is violated, or because, upon it being denied or conditioned based on that principle, the affected party considers the decision illegitimate.\" Thus, alluding to a specific case in French jurisprudence, he indicates that the decision challenged in contentious-administrative proceedings constitutes the last step in the long evaluation procedure of the harmlessness of the activity in question, and that doctrine finds in the precautionary principle a source of law that imposes a specific way for the Administration to act, so that –in the event of not respecting that way of acting—procedure—the nullity of the final act adopted will be declared (see Milano, Aldo. \"El Principio Precautorio\", 2005, p. 55 to 58). A procedural consequence resulting from the application of the precautionary principle is the reversal of the burden of proof (inversión de la carga de la prueba), an aspect that is expressly regulated in Article 109 of the Biodiversity Law, which provides: \"The burden of proof, of the absence of non-permitted contamination, degradation, or affectation, shall fall upon whoever requests the approval, permit, or access to biodiversity, or upon whoever is accused of having caused environmental damage\", a norm that must be seen in close relation to Article 5 of the same Law, which indicates that the provisions of that legislation shall serve as a framework of interpretation for the rest of the norms regulating the subject matter of said Law. This means that in environmental matters, the classic scheme that \"he who sues must prove\" is broken, and the theory of the dynamic burden of proof (carga dinámica de la prueba) takes on a predominant role, according to which, \"the burden is transferred to whoever, by virtue of their personal situation, is in a better position to bring the evidence to the proceeding, regardless of whether they are the plaintiff or the defendant\" (on the dynamic burden of proof, see the ruling of the First Chamber of the Supreme Court of Justice (Sala Primera de la Corte Suprema de Justicia) No. 212-2008 of 8:15 a.m. on March 25, 2008). This position is accepted by the doctrine of environmental law, which in that sense has indicated the following: \"In the environmental process, especially in function of the precautionary principle, a modification occurs in the classic framework of the burden of proof (according to which it is a principle 'that whoever alleges a fact as a claim or defense has the burden of proving it'), and the doctrine of dynamic evidentiary burdens comes to life, as a function of precaution, as a palliative to lighten the arduous task of producing diabolical evidence that, in certain cases, was made to fall without consideration on the shoulders of one of the parties (plaintiff or defendant), due to a misunderstanding of the sacrosanct a priori rules of evidence distribution. Finally, the modifications indicated in the field of environmental procedure impose the need to speak of a 'true environmental procedural law', whether considered as an autonomous branch or not; and the scientific-technical complexity of environmental cases, which demand unprecedented solutions to also unprecedented problems, impose as a mechanism for overcoming the traditional structures of law the advisability of having specialized forums in environmental matters as guarantors of the effective application of the principle of precaution.\" (Martínez, María Paulina. \"El principio precautorio\". En Protección Ambiental, Argentina, 2008, p. 122). In close relation to this procedural variant, the doctrine highlights the active role of the Judge in the face of an environmental matter, and in this regard points out the following: \"But it was Law No. 25.675 (LGA) that enshrined unprecedented innovations regarding judicial powers (ordering and investigating powers), granting the adjudicator a completely active and inquisitorial role as guarantor of the application of the precautionary principle in those proceedings where the preservation of the natural balance is sought (see article 32 LGA), without this implying any breakage of the principle of congruence. (...) it is concluded that there are no areas immune to the normative force of the Constitution and environmental norms, particularly the General Environmental Law, which constitute an environmental public order, conferring broad powers, including the review of issues even of a technical nature, which allow the precautionary principle to be made fully operative at each step of the procedural iter, in a concrete and undoubtedly macroscopic task in pursuit of the right to effective judicial protection.\" (idem, Martínez, p. 117). This role that doctrine assigns to the Judge in the face of environmental matters is not dissociated from the model that the Political Constitution and the Contentious-Administrative Procedural Code (Código Procesal Contencioso Administrativo) granted to the Contentious-Administrative Judge. The Biodiversity Law, whose norms are applicable to the rest of the environmental legal system, expressly provides in its Article 108 that \"in matters of biodiversity and as long as an environmental jurisdiction does not exist, any controversy shall be the exclusive competence of the contentious-administrative jurisdiction,\" except for those cases where no administrative act or public domain property is involved. Having established this competence, we must recall that the contentious-administrative jurisdiction enjoys broad oversight powers, granted by Article 49 of the Political Constitution, which allows it to exercise both subjective control, consisting of the protection of the substantial legal situations of the governed (subjective rights and legitimate interests), and objective control, consisting of guaranteeing the legality of the administrative function of the entire Public Administration (whether actions or omissions).\n\nArticle 1 of the Administrative Contentious Procedure Code reproduces the content of Article 49 of the Constitution and indicates that the administrative contentious jurisdiction has the purpose of safeguarding the legal situations of every person, guaranteeing or re-establishing the legality of any conduct of the Public Administration subject to Administrative Law, as well as hearing and resolving the various aspects of the legal-administrative relationship (Jinesta, Ernesto. “Manual del Proceso Contencioso Administrativo, 2008, p.29). National doctrine reaffirms the broad oversight character of the administrative contentious Judge in our legal system, by stating the following: “When the norm permits control of the 'administrative function,' it adopts without ambiguity a broad formula of oversight, in which the Judge is empowered to control the entirety of administrative conduct. Indeed, the precept sharply breaks with any limitation built around the administrative contentious object, because when it inserts the generality of the administrative 'function' within the supervisory eye of the Judge, it opens the jurisdictional range with respect to any administrative function, behavior, or conduct. Note that control over the administrative 'activity' or 'action' is not attributed to the contentious jurisdiction, much less over the 'administrative act,' but rather over the 'function,' which, not by chance, is comprehensively encompassing not only of all of them, but also of the entire scope of inactivity. When the article assigns control of the 'function' to the Judge, it is allowing the Judge to legally analyze any of the functions inherent to it, any of its conducts in any of its administrative manifestations. The Tribunal can control both active conduct and omission. Provided the conduct is administrative and the control is exercised within the legal framework, there is not or should not be, a sphere exempt from jurisdictional control; its review can and must be complete, without any immunity in the object. (...) In this aspect, the constitutional legislator offers us a new closing clasp, an additional security door as a guarantee of full and universal control, since besides subjecting the administrative function to jurisdictional control of legality, it allows the Judge to verify whether or not it is adjusted to the ends that justify it.” (González, Oscar. “Sentencia”. En: El Nuevo Proceso Contencioso-Administrativo, 2006, p.426). Regarding the leading and active role that the Judge exercises in the dynamics of the Procedural Code, it is pointed out: “Such active and organizational autonomy for the re-establishment of the public legal order (written and unwritten) and the effective protection of legitimate interests and subjective rights, confirms the transcendence of this jurisdiction as a mechanism for repairing and protecting legal situations eventually affected by the undue interference of public power through its multiplied universe of organs and entities with their officials generally de iure and exceptionally de facto. (...) Even the classic civil law principle that identifies the object of the process with the claims alleged and deduced by the parties has been disrupted, so that the judicial authority, as an active subject in the process, may deliver justice not only in accordance with what is claimed but also by adjusting the claims to prompt and complete justice, in accordance with the new legislation, to satisfy the values embedded in the Rule of Law present in each process for the re-establishment of legality or, better yet, of the legal order. Under the new scheme, the judge, before being governed by the dispositive principle, will also be guided by the inquisitorial principle, typical of constitutional courts as when, in our case, the Constitutional Chamber condemns the losing parties in amparo actions to both costs and damages, even if the winners have not requested it.” (Jiménez, Manrique. “Bases constitucionales para la reforma de la jurisdicción contencioso administrativa”. En: El Nuevo Proceso Contencioso Administrativo, p. 18 y 19, 2006). Well then, the review of all these principles, norms, and legal institutes has been sought to be established in this considering clause, with the purpose of bearing in mind the legal framework within which the issues and arguments outlined by the parties in the proceeding will be analyzed and resolved, as well as the evidence that was admitted during the debate, just as it is set forth below.\n\n**XI- ON THE NON-APPLICATION OF THE MORATORIUM DECREE FOR THE SPECIFIC CASE.**\nIn the administrative legal system, we find a principle of fundamental importance called the principle of singular non-derogability of the regulation, also known as the principle of singular non-derogability of the norm. According to this principle, administrative acts of specific scope must conform to the provisions of a general nature issued by the Administration itself, and cannot disapply them for a specific case. This principle is provided for in our legal system in Article 13 of the General Law of Public Administration (Ley General de la Administración Pública), which states: “The Administration shall be subject, in general, to all written and unwritten norms of the administrative legal order, and to the supplementary private law thereof, without being able to derogate or disapply them for specific cases. The preceding rule shall also apply in relation to regulations, whether they originate from the same authority, or from another superior or inferior competent authority.” This criterion is of importance, as it forms part of the essential content of the principle of legality, which is the governing principle of all administrative activity, both in its negative aspect (what cannot be done) and in its positive aspect (what must be done). Thus, the irrefutable consequence derived from the principle of singular non-derogability of the norm is that the public authority cannot issue resolutions for a specific case whose content ignores or disapplies what, conversely, the same public authority had previously provided by means of an act of a general character (Article 120.2 of the General Law of Public Administration). In the specific case, we find that on June 12, 2002, the highest authority in environmental matters, which is the Ministry of Environment and Energy (Ministerio de Ambiente y Energía) (now MINAET), issued by way of a general provision, specifically Executive Decree N° 30477-MINAE, a moratorium for an indefinite term on open-pit metallic gold mining activity in the national territory. In Transitory Provision I° of that general provision, the President of the Republic and the Minister of Environment and Energy clearly established that “all those proceedings related to the exploration and exploitation of the mineral gold by open-pit method that are pending before the Directorate of Geology and Mines (Dirección de Geología y Minas) and before the National Environmental Technical Secretariat (Secretaría Técnica Nacional Ambiental, SETENA) as of the publication date of this executive decree, shall be suspended. Any right acquired before the publication of this decree shall be respected.” Well then, it is also a demonstrated fact that in 2004, by resolution N° 2004-13414 at 9:29 a.m. on November 26 of that year, the Constitutional Chamber (Sala Constitucional) annulled resolution N° R-578-2001-MINAE, which was the resolution through which Geology and Mines (Geología y Minas) had granted the exploitation concession to Industrias Infinito. So, subsequent to this resolution of the Constitutional Chamber, the logical consequence of having annulled resolution N° R-578-2001 is that the exploitation concession right that had been granted by that resolution disappeared, regardless of the fact that the Administration later illicitly ordered the conversion of the act, since that occurred until April 2008, a topic we will address later, it being necessary to recall in any case, that it was not until June 4, 2008, that the Executive Branch lifted the moratorium on open-pit metallic gold mining activity. Therefore, we have that from December 2004 until April 2008, neither materially nor formally did an exploitation concession right declared in favor of the company Industrias Infinito exist, and from June 2002 until June 2008, a provision of a general nature was in force, issued by the highest hierarchical body of the Executive Branch (President of the Republic) and by the highest hierarchical body in environmental matters (Ministry of Environment and Energy), which ordered the suspension of procedures pending before Geology and Mines and before SETENA, aimed at obtaining exploration permits or exploitation concessions. If we observe carefully, the acts challenged here, with the exception of the Decree of National Convenience (Decreto de Conveniencia Nacional) and the logging permit, were acts issued by Geology and Mines and by SETENA during the period of validity of Executive Decree N° 30477, and both bodies belong to the Ministry of Environment, Energy and Telecommunications (Ministerio de Ambiente, Energía y Telecomunicaciones). This Administrative Contentious Tribunal certainly finds that the act that granted the environmental feasibility (viabilidad ambiental), the act that approved the changes to the project, and the act by which the conversion of the exploitation concession act in favor of Industrias Infinito was applied, violated the principle of singular non-derogability of the norm, since the Administration failed to apply for this specific case Decree N° 30477-MINAE, which ordered that the pending exploitation concession proceedings be suspended, such that both SETENA, by granting the environmental feasibility, and Geology and Mines, by making the concession recommendation, and the Ministry of Environment, Energy and Telecommunications itself, by converting the concession act, disregarded that general provision which was binding for those bodies, and proceeded to issue the final act both of environmental feasibility and of granting the concession. A parenthesis must be made here to show that both acts (the feasibility and the concession) constitute what is legally termed a “complex act” (a figure regulated in Article 145 of the General Law of Public Administration), that is, the concession act requires prior environmental feasibility in order to acquire validity. Therefore, the Administration could not issue any of the described acts, because at that moment there existed a provision of a general nature in force and binding for the bodies of the Ministry of Environment and Energy, which ordered the suspension of the proceeding, and in this case the proceeding continued in both offices until the issuance of both the environmental feasibility act and the approval of changes and the conversion of the concession, whereby the principle of legality was openly disrespected in this particular case.\n\nIn its defense, the developing company, on this issue, has argued that according to Articles 23 and 26 of the Mining Code (Código de Minería), the exploration permit grants its holder, in and of itself, the right to the exploitation concession, and they allege that through vote N° 2010-14009 of the Constitutional Chamber, the issue of the violation of Decree N° 30477 has already been resolved. Regarding these arguments, the Tribunal finds that they are absolutely unfounded and furthermore do not conform to reality. Firstly, certainly Article 23 of the Mining Code, in its wording, indicates that the holder of an exploration permit has the right especially to obtain one or more exploitation concessions, and Article 26 of the same Law indicates that during the validity of an exploration permit and up to 60 days after the expiration of the term or its extension, the holder shall have the right to obtain an exploitation concession. Notwithstanding the foregoing, it must be kept in mind that these norms, in their correct reading, prevent the understanding that the exploration permit automatically grants its holder the exploitation concession right. This is easily verifiable from the reading of other norms contained in the Mining Code itself, which clearly differentiate one right from the other. Thus, Article 2 of the cited Law defines both rights as follows: “Permit: Authorization granted by the Executive Branch, through the Directorate of Geology and Mines (DGM), with which a right is consolidated in favor of the petitioner allowing for the exploration or search for materials in general for a period of three years, which may be extended only once. Concession: Authorization granted by the Executive Branch through the DGM for a determined period, as the case may be, which grants the petitioner a limited real right to exploit or extract the minerals from a determined zone, transform them, process them, and dispose of them for industrial and commercial purposes, or grants the exclusive right to explore the mineral substances specifically authorized therein.” Therefore, as we can see, there is a clear differentiation between one right and the other, the first exclusively permitting the search for materials, while the second permits the extraction, transformation, and processing of the authorized materials.\n\nFurthermore, note that Article 23(b) itself conditions the possibility of obtaining a concession right on justifying the existence of one or more exploitable mineral deposits located within the perimeter of its exploration permit. That is, the exploration permit does not per se grant the concession right, this condition required by the Law having to be demonstrated, which evidently requires a specific pronouncement from the Administration making that assessment. Now then, we can also note that Article 26, likewise, conditions the right to obtain an exploitation concession on fulfilling the obligations and requirements of the law and the regulation, and if we observe Article 9 of the Regulation to the Mining Code (Executive Decree N° 29300-MINAE), it can be verified that to obtain a concession right, the interested party must fulfill a series of technical and legal requirements detailed therein, which are independent from those required by Article 8 of the Regulation to obtain an exploration permit. Finally, it is necessary to highlight that Article 14 of the Mining Code clearly provides that “the permit, or the concession, shall be understood as acquired from the date on which the granting resolution is registered in the National Mining Registry (Registro Nacional Minero). From then on, the original holder or their successor, as the case may be, shall be the possessor of their concessionaire right or of their exploration permit holder right.” As is clear from the cited norm, the exploration right is independent of the exploitation right, and one or the other right, as the case may be, is understood as acquired from the date it is registered in the Mining Registry. In the specific case, as indicated before, the Constitutional Chamber in 2004 had annulled the exploitation concession, so that in accordance with Articles 62, 65, and 109 of the Mining Code, the company's right was extinguished and could not be registered in the Mining Registry. All these reasons allow discarding that the exploration permit granted per se the exploitation right to Industrias Infinito, whereby we can affirm that said company did not have an acquired exploitation concession right in the Mining Project at the time it requested the convalidation of the act (May 30, 2007), a date on which the Moratorium Decree was in force, which is why the Administration should have suspended the pending proceedings before SETENA and before Geology and Mines for the case of the Crucitas Mining Project. However, in this case, it is evident that the Administration disapplied its own binding provision.\n\nFinally, in relation to the resolution of the Constitutional Chamber N° 14009-2010, it is worth noting that this issue was already resolved previously when the reasons why there is no res judicata in this matter were set forth; however, it must be reiterated that the manifestations of Industrias Infinito on this aspect are totally misaligned with reality, and this is clearly apparent from the Constitutional Chamber's own resolution, which expressly indicated that the argument regarding the violation of the moratorium decree, and the argument regarding the conversion of the exploitation concession, are allegations that the appellants had to bring “to the administrative contentious route, which is the competent one to analyze the legality of the granting of the concession in question”. It is clear, then, that it is not true that the Constitutional Chamber already ruled on this specific issue, which is a matter within the competence of this Tribunal, was raised by the plaintiffs in the claim and in the conclusions, and is one of the essential issues analyzed in this judgment. Consequently, for all the reasons stated, in accordance with Articles 158 and 166 of the General Law of Public Administration, resolutions N° 3638-2005-SETENA, N°170-2008-SETENA, and R-217-2008-MINAE, for violating the principle of legality and being non-conforming with the legal system, are vitiated by absolute nullity, and it is so declared.\n\n**XII- ON THE PROPOSED CHANGES AND THE OMISSION TO REQUEST A NEW ENVIRONMENTAL IMPACT ASSESSMENT.**\nAs already indicated, in 2005, through resolution N°3638-2005-SETENA, the Administration granted environmental feasibility (viabilidad ambiental) to the Crucitas Mining Project. Two years later, on December 6, 2007, the developing company presented before SETENA a proposal for changes to the mining project. This request was resolved by SETENA in two months, approving the changes incorporated by Industrias Infinito, through resolution N°170-2008-SETENA, issued on February 4, 2008. This administrative resolution, in the Tribunal’s judgment, is vitiated by absolute nullity both in its motive and in its procedure, because the Administration did not request a new Environmental Impact Assessment (Estudio de Impacto Ambiental, EIA) to evaluate the changes intended to be incorporated.\n\nBefore going into the detail of that omission, it must be kept in mind that the act by which the Administration grants environmental feasibility to a project is undoubtedly a regulated administrative act, insofar as it is provided for in Article 17 of the Organic Law of the Environment (Ley Orgánica del Ambiente) and in the Regulation on Environmental Impact Assessment Procedures (Decreto Ejecutivo N° 31849), as well as in the Manual of Technical Instruments for the Environmental Impact Assessment Process (Decreto Ejecutivo N° 32966). However, the company Industrias Infinito defends the thesis, according to which, in those cases where the conditions contained in section 3 of Article 46 of Executive Decree N°31849 are met, a new environmental impact assessment became unnecessary. Nonetheless, this Tribunal observes that section 3 of that Article 46, while it contains a series of criteria for making adjustments to the original design (not for dispensing with an EIA), criteria which, incidentally, were invoked by the witnesses of the co-defendants in their statements, it is also true and conclusive that said section was not in force in Executive Decree N° 31849 at the date on which Industrias Infinito presented its proposal for changes, nor at the date on which SETENA approved such modifying proposal, given that section 3 of Article 46 was added to the Regulation on Environmental Impact Assessment Procedures by means of Executive Decree N° 34688, which was issued only on February 25, 2008, that is, on a date subsequent to those two moments of the administrative procedure. In the specific case, we were able to hear that the witnesses Sandra Arredondo (environmental regent), Eduardo Murillo (SETENA official), and Sonia Espinoza (SETENA official at that time), indicated that given the proposal for changes by the company Industrias Infinito, SETENA did not consider it necessary to require a new environmental impact assessment to analyze these changes, for several reasons: the project did not vary in its essence, it was developed on the same site, it did not change project category, the activity continued to be the same, and neither the industrial zone nor the tailings zone varied, the extraction area rather being reduced. They stated that according to SETENA's criteria, under those circumstances it was not required to request a new environmental impact assessment. All the foregoing reflects that in the event changes are introduced to the original design of a project, there exists a sphere of administrative discretion to assess whether or not a new Environmental Impact Assessment should be requested. This Tribunal, exercising its role as controller of legality (Article 49 of the Political Constitution), and properly as controller of administrative discretion (Articles 16 and 160 of the General Law of Public Administration), finds that in accordance with logic and reasonableness, the changes proposed by the company Industrias Infinito in 2007 were, without any doubt, substantial modifications to the project originally presented before SETENA, and the changes discussed here being substantial, the interpretation made by SETENA could not be restrictive in relation to the Environmental Impact Assessment, as it involved the assessment of the impacts that a project classified as A and in a sensitive matter such as the environment would provoke, for which reason it could not opt, as it did in the specific case, to dispense with that environmental assessment instrument, much less would it have been valid for it to dispense with the environmental impact assessment by recourse to a regulatory norm (we refer to section 3 of Article 46 of the aforementioned Regulation), since we must clearly remember that it is the Law itself that requires the Environmental Impact Assessment when human activities alter or destroy elements of the environment or generate waste, toxic or hazardous materials, as ordered by Article 17 of the Organic Law of the Environment, and Article 3 of the Mining Code, for the specific case of mining exploitation concessions, norms that had to be applied in light of the precautionary principle provided for in Article 11 of the Biodiversity Law (Ley de Biodiversidad), and therefore imposed on the Administration the obligation to best guarantee the protection of the environment. (Merely for illustrative purposes, reference is made on this issue to resolution N°2003-6322 of the Constitutional Chamber at 2:14 p.m. on July 3, 2003). Well then, the Tribunal reaches the conclusion that the proposed changes were substantial, because from the document called “Environmental Assessment of Proposed Changes” and from the testimonies of Sandra Arredondo and Eduardo Murillo, it is clear that the extraction depth was varied, going from an original proposal that provided for the extraction solely of the superficial layer of soil called saprolite, whose depth reaches up to a maximum of 20 meters, to extracting not only saprolite but also hard rock, whose extraction depth reaches up to 67 meters depth, thereby increasing the volume of material to be processed (6700 tons daily). Additionally, the project went from originally providing for the creation of a single lagoon (tailings lagoon), to creating a second lagoon, called Fortuna, which arose precisely from the effect of increasing the extraction depth in Cerro Fortuna, impacting the lower or confined aquifer that exists in the zone. It is not omitted to refer that the term of the operation phase was extended to 9.25 years. These changes, from the conceptual design point of view, were extremely relevant for the development of the project, and in any case, it is evident that these new actions proposed by the co-defendant Infinito were not at all harmless to the environment, since such modifications generated a serious impact on the natural resources of the zone, especially on the water resource, which enjoys significant protection in our legal system. On this point, it suffices to say, in relation to the Fortuna Lagoon, that according to the Proposed Changes Assessment document, the base area of the Fortuna pit was calculated at 19,103.8 m2, and the water surface area once recovered was calculated at 88,096.6 m2 (folio 176), that is, as can be seen from their dimensions, this is an impact on the soil and water resource that implies a quite considerable extension. Now then, from a strictly logical point of view, it is not possible for this Tribunal to conceive that the Administration requested an Environmental Impact Assessment when the proposal only provided for the extraction of saprolite, but decides not to request it when the company sought the extraction of hard rock, which significantly increased the depth level, even allowing the impact of a lower aquifer without knowing its recharge zones and its extension. Let us recall that the Crucitas Mining Project was classified by SETENA as a Category A project, that is, of high significance for environmental impact, and in this sense, it is relevant to highlight that in addition to the legal norms previously cited, Article 27 of the General Regulation on Environmental Impact Assessment Procedures (Executive Decree N°31849) and its Annex 1 require that projects of this category, which include mining exploitation concessions, require the presentation of an Environmental Impact Assessment. From that perspective, there do not appear to be valid justifications from the legal standpoint, nor applying average human logic and reasonableness, for the Administration to have omitted requesting the mentioned environmental assessment instrument.\n\nFurthermore, it should be taken into account that the expert witnesses Allan Astorga (geologist) and Yamileth Astorga (marine biologist and expert in water resources), whose testimony this Court finds credible, classified the changes introduced as substantial, indicating that since the project had been modified in that manner, SETENA should have provided new reference terms to evaluate those changes, through Form D1. Both were clear regarding the fact that the risks related to the water upwelling that would be produced by the impact on the lower or confined aquifer were not analyzed, nor was the risk of contamination of that water resource and the omission of analyzing the environmental cost of affecting that aquifer, coupled with the fact that the studies submitted by the company did not analyze the size of the aquifer and its impact on the public supply wells in the area. These opinions, provided by experts in the field, show that the objections pointed out by the Court on a legal and logical level are also supported on a technical level, which allows us to conclude that Resolution No. 170-2008-SETENA is tainted by absolute nullity for having dispensed with the Environmental Impact Study (Estudio de Impacto Ambiental, EIA), which affects the motive of the act because said instrument was not taken into account for the issuance of the final act, and further generates a defect in the procedure, since, evidently, the procedural channel established by Article 27 and following of Executive Decree No. 31849 was not followed, a formal omission that is considered substantial according to Article 223 of the General Public Administration Act, by virtue of having dispensed with all the pre-established procedure for those purposes.\n\nIt must be noted that, although Article 95 of the Biodiversity Act grants SETENA the discretion to determine when a public hearing should be held, in this case, the same reasons that lead this Court to believe that a new environmental impact assessment should have been requested apply to the holding of a public hearing regarding the proposed changes. While it is true that witness Sonia Cervantes (Sociologist) explained that the people in the area were informed by the company of the modifications intended to be made to the project and that there was no opposition to them, SETENA could not disregard that the Organic Environmental Law imposes a duty on the State to promote the participation of the inhabitants of the Republic in decision-making and actions aimed at protecting the environment (the principle of citizen participation regulated in Article 6), and Article 22 of that law provides that every natural or legal person has the right to be heard at any stage of the assessment process and in the operational phase. Therefore, it is considered that, in application of the precautionary principle, in this case, it was essential to call a public hearing to publicize the proposed changes, since it was a megaproject of national interest and because the public hearing is the mechanism that best guarantees the participation of all the country's inhabitants in the assessment procedure.\n\nFinally, and for the sake of argument, the Court considers that the environmental viability (viabilidad ambiental) that SETENA had granted to the Crucitas Mining Project through Resolution No. 3638-2005-SETENA had expired by the time Resolution No. 170-2008-SETENA was issued, which is why a new act preceded by an environmental assessment should have been issued and not simply the approval of the changes proposed by the company. It can be seen that Resolution No. 3638-2005-SETENA, issued on December 12, 2005, provided in point number 8 of its operative part the following: *“The validity of this viability shall be for a period of two years for the commencement of extraction. In the event that extraction does not commence within the established time, the provisions of current legislation shall be followed.”* For its part, the Regulation on Environmental Impact Assessment Procedures, Executive Decree No. 31849, in the wording of its Article 46 at the time the changes were submitted, established the following: *“The environmental viability (viabilidad (licencia) ambiental), once granted, shall have a maximum validity of two years prior to the commencement of activities of the activity, work, or project. In the event that activities are not commenced within that period, the developer must request, before the expiration date, an extension of its validity before SETENA, in accordance with the procedure established in the EIA Manual.”* As can be derived from the foregoing elements, once the environmental viability was granted in December 2005, Industrias Infinito was required to commence the extraction works or request an extension of the viability's validity prior to the expiration of the term, which was fulfilled in December 2007. In this matter, there is no record that the developer requested an extension from SETENA; consequently, for the issuance of Resolution No. 170-2008-SETENA, the period established in the regulation and in Resolution 3638-2005-SETENA itself had fatally elapsed, meaning that at that time, the viability had expired. Let us recall that, according to legal doctrine, expiration (caducidad) results in the extinction of the act, and its motive arises from the non-exercise of the right within a specified term. In this sense, it cannot be stated that the modification request submitted by the codefendant company had the virtue of interrupting the validity period of the viability, since as a basic principle, the figure of expiration is fulfilled by the simple passage of time and is not susceptible to interruption, as happens with the statute of limitations. Nor can it be affirmed that the introduction of changes has the effect of tacitly extending the environmental viability, since subsection 3 of Article 46 of Decree No. 31849 was not in force at the time the request was submitted, nor at the time Resolution No. 170-2008-SETENA was issued. Consequently, since the environmental viability granted in 2005 had expired, it is found that this was yet another reason that obligated SETENA to request a new Environmental Impact Study, to conduct a new assessment procedure, and to issue a new final act, and not simply to approve the modification submitted by the codefendant company, as it did.\n\nTherefore, for all the reasons set forth, in accordance with numerals 158 and 166 of the General Public Administration Act, Resolution No. 170-2008-SETENA is tainted by absolute nullity, and it is so declared.\n\n**XIII- REGARDING THE OMISSION OF ASSESSING THE PROPOSED CHANGES AND THE NON-COMPLIANCE WITH DUTIES BY SETENA.**\n\nStill in relation to the issue of the proposed changes, and without neglecting the fact that the Administration, in this case, should have requested a new Environmental Impact Study to assess such changes, the Court finds that SETENA, in its Resolution No. 170-2008-SETENA, failed to comply with its legally assigned functions, regulated in Article 84, subsection a) of the Organic Environmental Law and Article 2 of the Mining Code, which establish, in that order, that this body is responsible for *“analyzing environmental impact assessments,”* and that it is its operational and functional responsibility to conduct the *“comparative, technical, economic, social, cultural, financial, legal, and multidisciplinary analysis of the effects of a project on the environmental surroundings, as well as the proposal of measures and actions to prevent, correct, or minimize such effects.”* In this regard, it must be remembered that numeral 66 of the General Public Administration Act establishes that the powers of authority and their exercise, and public duties and their fulfillment, are inalienable, non-transferable, and imprescriptible, and in the specific case, it is observed that the Administration omitted to conduct a technical and scientific analysis regarding the proposal of changes presented by the company Industrias Infinito, especially concerning the impacts that the modifications would produce and the suggested mitigation and compensation measures, with SETENA merely preparing a report that basically reproduces the aspects mentioned by the developing company itself in its proposal. It should be noted that in the document called Environmental Assessment of Proposed Changes, the company describes the project's activities in its different phases: construction, operation, and closure, and makes its own assessment of the impacts in each of the phases and on the resources: air, water, and soil, and finally lists what, in its opinion, would be the mitigation and compensation measures to be implemented in the three phases (folios 143 to 214). However, SETENA, through its Department of Environmental Audit and Monitoring, in report ASA-013-2008-SETENA, which served as the basis for the issuance of Resolution No. 170-2008-SETENA, merely limited itself to repeating the information already contained in the document presented by the company, and omitted to perform the technical analysis required by Law. Thus, by way of recount, the referred report indicates that the intention is to reduce the extraction area, also extracting hard rock in addition to saprolite, which entails working at average depths of 67 meters. That the area to be intervened corresponds to the Botija and Fortuna hills. That the extraction of rock implies the use of blasting and that the company commits to hiring a certified company for this type of intervention. That the rest of the areas remain almost unaltered. That CYPLUS technology is used for the cyanide destruction process. That the baseline studies show a low potential for acid drainage. It copies the comparative table of changes presented by the company. And it concludes by noting that an updated diagnosis of the environmental, social, and economic conditions of the project was attached, that an identification of impacts and their assessment in the project phases was presented, that within the monitoring plans, follow-up to baseline data regarding various elements is incorporated, as well as a hazardous substances protocol, and that within the Environmental Management Plan, a Crucitas Project Oversight and Monitoring Commission will be created.\n\nWith this simple enunciation, without an analysis of the studies presented by the company and the required assessment of environmental impacts, the evaluation team finally recommended that the Plenary Commission of SETENA proceed to accept the modification proposal. Based on this lax report, the Plenary Commission ordered the approval of the changes suggested by Industrias Infinito and issued Resolution No. 170-2008-SETENA, which, it must be said, also did not incorporate any further analysis with respect to the amending proposal submitted. Here we must remember that during the trial stage, witness Marta Elena Chaves Quirós, a Geologist by profession, who at the time of the events was working as an official in the Department of Environmental Audit and Monitoring, clearly stated that she had not participated in the evaluation of the request for changes to the project, despite the fact that the certification admitted as evidence for better provision at folio 2204 of the judicial file indicates her name as part of the evaluation team, which was composed of Forestry Engineer Eduardo Murillo Marchena and Agronomist Engineer Sonia Espinoza Valverde. The witness also stated that, in her experience, approximately 6 to 7 months would be required to evaluate the modifications to the project. If we compare these statements with the fact that Industrias Infinito's proposal was approved in two months, and that a geologist, who would be the most suitable professional to evaluate the impacts that the change in extraction depth and the impact on the lower aquifer would produce, did not participate in the supposed evaluation, added to the easily verifiable fact that report ASA-013-2008 and Resolution No. 170-2008-SETENA did not conduct an analysis of the documentation provided by the developing company, we can conclude, according to sound judgment, that in this case, SETENA failed to fulfill the duty legally assigned to that public body, omitting not only the request for a new Environmental Impact Study, a defect already explained, but also omitting to analyze the documentation of changes presented by the codefendant Industrias Infinito. This omission, therefore, also occurs with respect to each of the technical issues discussed in this proceeding, as will be explained in subsequent recitals. Consequently, in the opinion of this Chamber, Resolution No. 170-2008-SETENA violated Articles 19 and 84, subsection a) of the Organic Environmental Law, and Article 66 of the General Public Administration Act, and being inconsistent with the legal order, according to Articles 158 and 166 of the General Public Administration Act, the cited administrative resolution is tainted by absolute nullity, and it is so declared.\n\n**XIV- REGARDING THE INAPPROPRIATENESS OF THE CONVERSION OF THE EXPLOITATION CONCESSION ACT.**\n\nIn relation to this issue, the Court finds that there are three criteria by which it was not legally appropriate to apply the institution of conversion of the administrative act, in relation to the exploitation concession that had been annulled by the Constitutional Chamber in 2004.\n\nIn the first place, we must bear in mind that convalidation, remedy, and conversion are mechanisms designed so that the Administration can preserve administrative acts that, although suffering from some defect of relative or absolute nullity, are still in force in the legal system. However, this was not the situation of Resolution No. R-578-2001-MINAE, by which the Executive Branch had granted the mining exploitation concession in favor of Industrias Infinito, and it was not the same situation because this administrative act had been annulled by the Constitutional Chamber through a final and definitive ruling, and consequently, from that moment on, the act was eliminated from the legal order; in other words, it was no longer in force, thus making the discussion of whether or not the conversion of that act was viable irrelevant. Here, the distinction, raised to some extent by Mr. Eduardo Ortiz, between \"defect of absolute nullity\" as a condition affecting the act and \"declaration of absolute nullity\" as a pronouncement that extinguishes the act, becomes important. In this latter case, the act ceases to be in force in the legal system, and therefore, the Administration would be unable to \"revive\" it. A very important consequence derives from the foregoing, because admitting the thesis of converting an act annulled by the Constitutional Chamber, a thesis defended in this proceeding by the representation of Industrias Infinito, would imply accepting that the Administration can disregard the final and definitive decisions issued by the Courts of Justice and the Constitutional Chamber (Article 153 of the Political Constitution), allowing the Administration to resort to the conversion of the act to revive public actions that had already been eliminated from the legal system, which is clearly violative of the principle of legal certainty and would constitute a very dangerous precedent for the stability of our Rule of Law. In this regard, Eduardo Ortiz Ortiz is clear when referring to the effects of annulment judgments, stating the following: *\"In the LGAP [General Public Administration Act], there is a clear difference between annulment and the jurisdictional declaration of nullity. The latter, as stated, provides the legal system with a single legal innovation, which is the creation of res judicata on the existence of that nullity as a fact, which thus becomes legally indisputable and certain for all legal effects and for all subjects and Courts, given the erga omnes nature of the respective ruling\"* (Ortiz, Eduardo. Tesis de Derecho Administrativo Tomo 2, p.574). Consequently, in the Court's opinion, it was not viable to apply conversion to an administrative act that had been annulled by a ruling of a Court of the Republic, regardless of whether, in the Operative Part of its ruling, the Chamber inserted the phrase: *\"all without prejudice to what the environmental impact assessment determines,\"* since an express permission for the Administration to apply the conversion of the act at a later time does not follow from this phrase, and this is confirmed by Resolution No. 14009-2010, invoked by the defendants, where the Chamber itself clearly indicates that the appropriateness or not of the conversion of the concession is a matter of legality that must be discussed in this venue, as well as the issue of the nullity of the act, by stating that at the time it was interpreted that what was declared by that Chamber was a relative nullity, so that by referring the discussion of those aspects to this venue, the will of the Constitutional Court to allow the annulled concession act to be revived later and that the declared nullity was a relative nullity is ruled out, because if it had been so, it would have expressly stated it in that ruling. These reasons, assessed according to the rules of sound judgment, create in the Court the conviction that the conversion used by the Administration to revive the concession act constituted a fraudulent mechanism to circumvent the application of the moratorium decree, since at the time of the issuance of Resolution No. R-217-2008-MINAE (April 2008), said Decree was still in force and was binding for the specific case.\n\nAs a second criterion for deeming the conversion of the act inappropriate, we find that the implementation of that legal figure was contrary to the precautionary principle in environmental matters, for the following reasons. In a correct application of the theory of the complex act, we consider that the Directorate of Geology and Mines was obligated to review and analyze in detail the content and scope of the act that granted viability (viabilidad) to the Project, as well as the act that approved the proposed changes, and could not disregard the content of those actions, as was recognized in the oral and public trial by the Director of Geology and Mines, Francisco Castro Muñoz, who indicated that the office under his charge does not intervene in SETENA's competence and that in their resolutions they only cite what SETENA states, but do not review that information. If Geology and Mines had proceeded in that manner, exercising its duties in a proper and lawful manner as required by law, it could have noticed that SETENA was approving an impact that that agency had prohibited in the very resolution they were trying to convert. We refer to the maximum extraction limit up to elevation 75 (meters above sea level), a technical condition that was set in Resolution No. R-578-2001-MINAE, and which Resolution No. R-217-2008-MINAE ordered to maintain, by expressly referring to official communication No. DGM-DC-2085-2001, prepared by geologist Sofía Huapaya, an official of Geology and Mines (a topic to be further elaborated upon later). This condition is not capricious because numeral 6 of the Mining Code establishes that concessions may be conditioned on grounds of national interest, and without a doubt, the protection of the lower aquifer is a matter of public interest, as it involves potential sources of water supply for the communities. Therefore, given these circumstances that reveal uncertainty regarding the treatment that the underground water resource would be given, in application of the precautionary principle, the Directorate of Geology and Mines should have, in the specific case, rejected the requests made by the company Industrias Infinito to convalidate the act annulled by the Constitutional Chamber, and instead, immediately ordered a new administrative procedure in accordance with the Mining Code and its regulations, and issued a new final act, in which it would be technically defined whether or not impacting the lower aquifer would be permitted, and also guaranteeing the harmlessness of the extractive activity on that aquifer, as mandated by the precautionary principle.\n\nLastly, and for the sake of argument, the Court finds that from the point of view of its nature, it was inappropriate to apply the institution of conversion in this case. It is essential to remember that said figure presupposes the issuance of an act different from the absolutely null act (something that does not occur in this case), and its purpose is not to remedy the invalidity of the act but to temper its effects. In this sense, Eduardo García de Enterría explains: *\"Finally, Article 65 of the law regulates the case of the conversion of null and voidable acts so that if such acts contain the constituent elements of another, distinct act, they may produce the effects of the latter. The law here operates on the plane of efficacy, not on that of validity. The null or voidable act does not cease to be such, nor is it remedied or convalidated. If so requested by the interested parties, its nullity must be declared without further remedy. However, the consequences of said nullity are softened, the law admitting as legitimate those effects that may be considered protected or justified by the elements of the act not affected by the defect that determines its nullity or voidability (for example, an irregular appointment of a permanent official may produce the effects of an interim appointment)\"* (Curso de Derecho Administrativo, 2008, Tomo I, p.630). In the same sense, Mr. Eduardo Ortiz Ortiz referred to it, as recorded in Act No. 103 of legislative file No. A23E5452, corresponding to the General Public Administration Act, in the following sense: *\"This is a bit strange but it is simply the following: suppose that an official in the Civil Service is improperly appointed without observing the procedures that the Service contemplates. Doctrine calls 'conversion' the phenomenon consisting of the Administration that carried out that act, even an absolutely null one, due to total disregard of the Civil Service selection procedure, being able to convert the absolutely null appointment of a permanent official into the appointment of an interim official, because for an interim position there is no need for a competitive examination or selection. So provided that the absolutely null act presents all the formal and material elements of another act that does not require the elements of the act that was intended to be performed, this latter act can be converted into the former. In the case of the appointment of a permanent official with the selection procedure, into the appointment of an interim official that does not require a selection procedure, provided that it is declared that the absolutely null appointment of a permanent official is converted into the appointment of that same gentleman as an interim employee ...\"* (Ley General de la Administración Pública, concordada y anotada con el debate legislativo y la jurisprudencia constitucional, 1996, p.286 y 287). Therefore, according to the foregoing, in conversion, it is required that the absence of the element that vitiated the first act (for example, a selection procedure) must be an element inherent to the second valid act (for example, a selection procedure is not required for an interim appointment). In short, the defect that invalidates the first act must be contained in the second, but in a valid form. We understand, then, why Article 189 of the General Public Administration Act requires, as a condition for conversion, that the invalid act present all the formal and material requisites of the valid act. Having these elements clear, we can easily deduce that in the case under examination, such prerequisites were not met and could not be met, given that the lack of an Environmental Impact Study, which was the defect that produced the absolute invalidity of the first concession act, was not an element inherent to the second concession act that was issued through Resolution No. R-217-2008-MINAE, since the apparent existence of an Environmental Impact Study was the reason alleged by the Administration to apply the conversion of the first act. Thus, for these reasons, the application of Article 189 was absolutely inappropriate, as it is indeed declared.\n\nIt must be stated in this judgment that this Court finds it very strange that, having requested the interested company the convalidation of the concession act, the Administration was so diligent in this case – something that is not common – and, ex officio, reframed the request presented, disregarding the consideration of any of the reasons that have been found lacking here, but finding the Administration extremely viable what was sought at that time by the company Industrias Infinito, a situation which, in light of sound judgment, further confirms these judges' conviction of the irregularity and illegitimacy of Resolution No. R-217-2008-MINAE.\n\nNow, it is necessary to recall that, during its closing arguments, the representation of Industrias Infinito insisted on the issue that the Constitutional Chamber, in issuing judgment 2004-13414, had retroactively applied the principle that environmental impact assessments must have been carried out and environmental viability must have been granted, prior to the start of the activity that requires such a type of study to be carried out.\n\nLikewise, the representative of Industrias Infinito emphasized the argument that Article 34, subsection ch) and numeral 97, subsection g), both of the Mining Code (Código de Minería), were declared unconstitutional only in 2009. With these allegations, this defendant has sought to suggest that even though in 2001 the law did not contemplate the environmental impact assessment (estudio de impacto ambiental) as a prerequisite to the granting of the concession, the Constitutional Chamber (Sala Constitucional) interpreted that it was necessary and in 2004 annulled said concession, even though it was not until 2009 that the legal framework establishing said study as something subsequent to the granting of a mining concession was declared unconstitutional. On this point, it must be noted that this proceeding does not discuss the act by which the mining concession was granted in 2001, much less the judgment of the Constitutional Chamber (Sala Constitucional) from 2004 that declared said concession null, nor is the constitutionality of the Mining Code (Código de Minería) articles that were annulled by the Constitutional Chamber (Sala Constitucional) through judgment number 2009-17155 of November 5, 2009, being judged. However, given that this is an argument put forward by the representation of Industrias Infinito during the oral and public trial held in this proceeding, it becomes appropriate to state that this Court appreciates that the Constitutional Chamber (Sala Constitucional) never retroactively applied the rule that environmental impact assessments (estudios de impacto ambiental) and the corresponding environmental feasibility (viabilidad ambiental) are prerequisites to the authorization of certain activities. This is because by 2004, when the Constitutional Chamber (Sala Constitucional) annulled the mining concession granted to Industrias Infinito in 2001, a tacit repeal of Article 34, subsection ch) and numeral 97, subsection g) of the Mining Code (Código de Minería) had already occurred. And it is that through the Environmental Organic Law (Ley Orgánica del Ambiente), number 7554, of October 4, 1995, published in the Official Gazette La Gaceta number 215, of November 13, 1995, it was provided, in Article 17 of said legal body, that human activities that alter or destroy elements of the environment must have an environmental impact assessment (evaluación de impacto ambiental) as a prerequisite for the commencement of activities, works, or projects. In that sense, the Crucitas mining project could not even begin, much less be a concessionaire, if it did not first have the approval of the environmental impact assessments (estudios de impacto ambiental). And it must be observed that the environmental impact assessment (estudio de impacto ambiental) is a requirement for the development of mining activity, as provided in numerals 3 and 6 of the Mining Code (Código de Minería), which is Law number 6797 of October 4, 1982, published in the Official Gazette La Gaceta number 203 of October 22, 1982, which, as can be seen, predates the Environmental Organic Law (Ley Orgánica del Ambiente). Furthermore, Article 3 of the Mining Code (Código de Minería) already mentions the approval of the study as something prior to the granting of the exploitation concession. It being evident that by legal provision, specifically the Mining Code (Código de Minería), mining activity requires an environmental impact assessment (estudio de impacto ambiental), then numeral 17 of the Environmental Organic Law (Ley Orgánica del Ambiente) comes to determine that in this matter, the environmental impact assessment (estudio de impacto ambiental) and the corresponding environmental feasibility (viabilidad ambiental) are preconditions for granting a mining concession. This, in turn, implies the tacit repeal (derogatoria tácita), since the entry into force of the Environmental Organic Law (Ley Orgánica del Ambiente), that is, since November 13, 1995, of numerals 34, subsection ch) and 97, subsection g) of the Mining Code (Código de Minería), which, in contradiction with the same Code, allowed granting a concession before having approved environmental impact assessments (estudios de impacto ambiental). Viewed in this way, the annulling pronouncement made by the Constitutional Chamber (Sala Constitucional) in 2009 does nothing more than expressly resolve a normative problem that had been tacitly resolved since 1995. In that sense, furthermore, the pronouncement of the Constitutional Chamber (Sala Constitucional) that in 2004 meant the absolute nullity of the mining concession granted to Industrias Infinito in 2001, did not retroactively apply any rule, but rather, in protection of the right to a healthy and ecologically balanced environment, what it did was order that, as legally corresponded, in the mining activity the rule be applied—then already in force (and it had been since 1995, it is worth reiterating)—that prior to granting a mining concession, duly approved environmental impact assessments (estudios de impacto ambiental) were required (or what is the same, a previously granted environmental feasibility [viabilidad ambiental] is needed in order to grant a mining concession). And it cannot be ignored that in matters of environmental impact assessments (estudios de impacto ambiental), the Environmental Organic Law (Ley Orgánica del Ambiente) contains a special and subsequent rule, of the same rank as the Mining Code (Código de Minería), which obligates carrying out such examinations and having their approval, as a prior step to the development of any project, which implies that it is a condition that must be met before a mining concession is granted.\n\nOn the other hand, as part of its arguments, the representation of Industrias Infinito invokes Temporary Provision I of Executive Decree (Decreto Ejecutivo) No. 29300-MINAE, which is the Regulations to the Mining Code (Código de Minería) (in force since March 16, 2001), which establishes that *\"all applications that are being processed as of the publication date of these regulations shall continue their processing under the regulatory norms in force at the time of their submission.\"* In relation to this rule, the Court does not find that it justifies the appropriateness of the conversion of the act, because it must be reiterated that, in this case, the co-defendant company, after the year 2004, did not have any concession right declared in its favor. It was eliminated from the legal system by the Constitutional Chamber (Sala Constitucional). Nevertheless, it was revived in an unlawful (antijurídica) manner by the Administration seven years later, which is precisely the defect that is being declared in this contentious-administrative proceeding. Thus, the only right that Industrias Infinito has had declared in its favor and that has not been challenged is the exploration permit, which, as already indicated, could never automatically grant the concession right, because such an interpretation offends the intelligence of this Court, violates the legal system, and translates into nothing more and nothing less than a gross fraud of law.\n\nFinally, the co-defendant cites Articles 164, 168, and 223 of the General Law of Public Administration (Ley General de la Administración Pública); the first two embody the principle of conservation of administrative acts and the latter also does so in relation to the administrative procedure. These provisions must be discarded to support the conversion mentioned so many times, since, as explained before, it was not legally possible to revalidate or revive an act that had already been annulled by the Constitutional Chamber (Sala Constitucional), nor were the conditions established by numeral 189 of the General Law of Public Administration (Ley General de la Administración Pública) met, and in any case, the substantive law applicable to the specific case (environmental law) imposed that, due to the imprecisions and contradictions that existed between the environmental feasibility (viabilidad ambiental), the approval of the changes to the project, and the technical conditions set by Geology and Mines (Geología y Minas), there was uncertainty about the impact on the lower aquifer, which necessarily obligated the Administration to carry out a new administrative procedure.\n\nThus, for all these reasons, in accordance with Articles 158 and 166 of the General Law of Public Administration (Ley General de la Administración Pública), for being contrary to the legal system, resolution No. R-217-2008-MINAE is vitiated by absolute nullity and is so declared.\n\n**XV- ON THE VIOLATION OF PROCEDURE, THE ABSENCE OF THE BALANCE BETWEEN BENEFITS AND COSTS, AND THE LACK OF GROUNDS FOR DECREE (Decreto) No. 34801-MINAET.**\n\nIn relation to the decree that declared the Crucitas Mining Project (Proyecto Minero Crucitas) to be of public interest and national convenience, Executive Decree (Decreto Ejecutivo) No. 34801-MINAET, this Court considers that it presents defects in the procedure, in the motive, and in the statement of reasons, as explained below.\n\nIn relation to the procedure, it is important to begin by indicating that, according to the classification of administrative acts established in the General Law of Public Administration (Ley General de la Administración Pública), decrees are administrative acts of general scope, that is, they are not addressed to an identified subject, but to the generality of the administered (Article 121 of the cited Law). In that sense, it is important to remember that the General Law of Public Administration (Ley General de la Administración Pública) provides for a special procedure for the drafting of this type of provisions of general scope. Thus, numeral 361 provides the following: *\"1. A hearing shall be granted to decentralized entities on the drafts of general provisions that may affect them. 2. Entities representing interests of a general or corporate nature affected by the provision shall be given the opportunity to state their opinion, within a period of ten days, except when reasons of public interest or urgency duly stated in the preliminary draft oppose this. 3. When, in the judgment of the Executive Branch (Poder Ejecutivo) or the Ministry, the nature of the provision so advises, the preliminary draft shall be submitted to public information, during the period indicated in each case.\"* For the specific case, the Court finds that the President of the Republic and the Minister of the relevant branch grossly disregarded this procedure, because from a review of the administrative file No. DAJ-077-2008, which supports Executive Decree (Decreto Ejecutivo) No. 34801-MINAET, one does not observe, not even remotely, acts tending to comply with the procedure stipulated by Law in order to lawfully issue this Decree, nor is it found that reasons of public interest or urgency exist that would justify the non-compliance with this requirement necessary for the validity of the aforementioned Decree, much less were they expressed in that act. Rather, the Court considers that, on the contrary, as this was a provision declaring a mining megaproject to be of \"public interest and national convenience,\" it was absolutely necessary to grant to the entities representing interests of a general or corporate nature, be they environmentalists, academic sectors, or business groups, the period established in cited Article 361, in order for these organizations to pronounce themselves on the project, and based on those pronouncements, the Executive Branch (Poder Ejecutivo) would carry out the balance required by Law to decide whether or not to declare the activity of national convenience and public interest, something that did not happen, as can be easily verified. Even the Court considers that the enormous national significance of this mining project made it imperative to submit the preliminary draft of the Decree to public information, as permitted by subsection 3 of Article 361, in relation to numeral 6 of the Environmental Organic Law (Ley Orgánica del Ambiente) (principle of citizen participation), applicable to the specific case due to the special nature of the matter, which very clearly provides as follows: *\"The State and the municipalities shall foster the active and organized participation of the inhabitants of the Republic in decision-making and actions aimed at protecting and improving the environment.\"* Despite the foregoing, the intention of the Executive Branch (Poder Ejecutivo) to comply with said provisions was never reflected in the administrative file, nor in the text of the document itself. In the administrative file DAJ-077-2008, which supports the questioned Decree, only the following documents appear: (1) approximately twelve letters signed by neighbors, the mayor of the municipality, some associations, and others addressed to Minister Roberto Dobles; (2) an unsigned executive summary that says \"October 2008\"; (3) copies of some votes (votos) of the Constitutional Chamber (Sala Constitucional); (4) official letter SG-ASA-259-2008, of October 10, 2008, signed by Sonia Espinoza Valverde, General Secretary of SETENA, addressed to the Director of the Huetar Norte Conservation Area (Área de Conservación Huetar Norte), where she points out that if the environmental feasibility (viabilidad ambiental) is granted to a project, it is because the balance obtained shows that the benefits are greater than its costs; (5) the draft of the Decree; (6) an official letter DAJ-1570-2008, of October 13, 2008, signed by Attorney Marianela Montero Leitón, Legal Advisor to the Ministry of Environment, Energy and Telecommunications (Ministerio de Ambiente, Energía y Telecomunicaciones), addressed to the Minister, stating: *\"With the approval of this Legal Department, please find attached for your respective signature, the Decree identified as DAJ-077-2008, corresponding to 'Declaration of Public Interest and National Convenience of the Crucitas Mining Project (Proyecto Minero Crucitas).'\";* (7) a one-page executive summary also signed by the Legal Advisor to the Ministry, which, in what is relevant, says: *\"Subject: Declare the Crucitas Mining Project (Proyecto Minero Crucitas) as of public interest and national convenience, with the consequences that said declaration produces. (...) Derived results: The developing company, prior authorization from the corresponding office of the National System of Conservation Areas (Sistema Nacional de Áreas de Conservación), may proceed with the cutting of trees, including prohibited (vedadas) species, and the development of infrastructure works in protection areas.\";* (8) an official letter DAJ-1573-2008, of October 14, 2008, signed by the same Advisor, addressed to the Directorate of Laws and Decrees of the Ministry of the Presidency, which reads as follows: *\"In order for it to be signed by the President, please find attached, the Decree identified as DAJ-077-2008, corresponding to 'Declaration of Public Interest and National Convenience of the Crucitas Mining Project (Proyecto Minero Crucitas)'\"* (folios 4 to 102 of the referenced file). As can be observed, the file through which Executive Decree (Decreto Ejecutivo) No. 34801-MINAET was processed reflects that the preparation of that act did not have the slightest rigor, diligence, and respect for analyzing the merits of the matter, nor for giving publicity or participation to citizens or organizations regarding the scope of this declaration. This Court finds that this action is extremely damaging, insofar as, while the special procedure for the drafting of provisions of a general nature regulated in Article 361 of the General Law of Public Administration (Ley General de la Administración Pública) was not followed, neither was the minimum requirement that our legal system demands for the valid issuance of an administrative act fulfilled, which is the carrying out of a prior administrative procedure (ordinary or summary), as ordered by Articles 214, 308, and 320 of the cited Law, in relation to numerals 5 and 106 of the Biodiversity Law (Ley de Biodiversidad). Given this panorama, what is perceived, in light of the rules of sound criticism, is the most \"unprecedented\" haste of public officials to issue, at all costs, this Decree and to allow, as the main purpose, the co-defendant company to cut down the forest and the trees in the area in dispute, without even stopping to analyze whether there were prohibited (vedadas), endangered, or endemic species there, a situation which, in this Court's judgment, translates into a clear misuse of power (Article 131.3 of the General Law of Public Administration [Ley General de la Administración Pública]), that is, in the pursuit of an end different from the main end that a declaration of public interest and national convenience must follow, emptying of content the prohibition on cutting established in the Forestry Law (Ley Forestal) and in Decree 25700-MINAE, and favoring the developing company in the execution of the Crucitas Mining Project (Proyecto Minero Crucitas). With all this, it is relevant to point out that the violation of the procedure enshrined in Article 361 of the General Law of Public Administration (Ley General de la Administración Pública) constitutes an omission of a substantial formality, which, pursuant to Article 223 of the referenced legislation, entails the nullity of everything done by the Administration, an aspect that this Court can declare even ex officio, as expressly provided by Article 182.1 of the General Law of Public Administration (Ley General de la Administración Pública). For all the foregoing, the arguments put forward by the defendants to the effect that the questioned Decree constitutes an act of execution are rejected, since it is very clear that it is a separate act of a general nature, which has its own procedure and responds to a regime and ends that are independent and different from the act of the exploitation concession and the act of the environmental feasibility (viabilidad ambiental).\n\nNow, in relation to the motive of the act, the Court finds that this element is vitiated in Decree No. 34801-MINAET, given that the Forestry Law (Ley Forestal), in its Article 3, subsection m), provides that activities of national convenience are those whose social benefits are greater than the socio-environmental costs, and the rule indicates that the balance must be made using the \"appropriate instruments.\" It is clear then that, to determine whether the Crucitas Mining Project (Proyecto Minero Crucitas) was of national convenience, the Ministry of Environment, Energy and Telecommunications (Ministerio de Ambiente, Energía y Telecomunicaciones) should have established an ordinary administrative procedure, and proceeded, using the appropriate technical and scientific instruments, and after a pronouncement from the affected sectors, to carry out the balance between social benefits and socio-environmental costs. Once the procedure was completed, and having taken the previous elements into account, the Executive Branch (Poder Ejecutivo) could lawfully issue the Decree, declaring national convenience, if the weighing of those elements so permitted. However, as we could verify in this case, Decree 34801-MINAET was issued in the absence of the balance and in the absence of the criteria that organizations of general or collective interests could have put forward, all of which seriously vitiates the motive of the general provision challenged here. It is important to add here that the testimony of Sonia Cervantes (Sociologist) is not useful to demonstrate that balance, since this professional made a biased analysis, which only considered social and economic variables of the Project area, but not a global analysis of costs and benefits in national terms. The witness clearly indicated that she conducted two studies, one in 2007 to present before SETENA and another this year, to be presented in this proceeding. Evidently, neither of the two corresponds to the analysis that the Executive Branch (Poder Ejecutivo) should have carried out to declare the Crucitas Mining Project (Proyecto Minero Crucitas) of public interest and national convenience, and it is not valid to assert in this proceeding that it corresponds to the same SETENA procedure, because they are different acts, with different legal ends and different regulated procedures. As explained by witnesses Sandra Arredondo, Eduardo Murillo, and Sonia Espinoza, in the SETENA procedure, what is applied is an environmental importance matrix, which is a methodology aimed at the evaluation of the environmental impacts of a specific project or activity, which is carried out within the framework of that specific competence entrusted to SETENA by the Environmental Organic Law (Ley Orgánica del Ambiente), and cannot be equated with the Balance of costs and benefits that the Forestry Law (Ley Forestal) establishes for the purpose of declaring a specific activity of national convenience, and whose competence corresponds to the Executive Branch (Poder Ejecutivo), as provided by Article 34 of said Law, recalling that the Executive Branch (Poder Ejecutivo) is exercised by the President of the Republic and the Minister of the relevant branch (Article 130 of the Political Constitution [Constitución Política]). The same reasons must be stated regarding the document called \"Executive Summary Socio-Economic Balance\" contributed by the State and which appears in a separate file, since this document does not indicate the date it was prepared, the professionals who participated in its preparation, whether or not it was submitted before a specific public office, and under those conditions constitutes evidence that generates many doubts for the Court to be taken into account. For these reasons, this Chamber concludes that the Decree is seriously vitiated in its motive.\n\nFinally, the Court finds that Decree No. 34801-MINAET presents a defect in the element of the statement of reasons or grounds, insofar as the same is considered not only scarce for the magnitude of what was declared in that act of general scope, but also does not make even the slightest reference to the documents, studies, opinions, or other technical and scientific elements that support and justify the national convenience of the project, and no more information can be obtained beyond the references made there in a very general way, about the supposed benefits that the mine will bring, which basically amount to potential jobs and payment of taxes (an obligation established by law), aspects that by themselves do not imply any substantial difference with respect to other commercial activities carried out in the country day by day, and for which a Decree of national convenience has not been required. The generality of the information presented there and the absence of the technical and scientific basis that supports said information prevent the Court from exercising control over the technical correctness of the so-called \"appropriate instruments\" provided for in the Forestry Law (Ley Forestal), based on which the Executive Branch (Poder Ejecutivo) should have carried out the balance of costs and benefits to then issue the decree. In addition to this, it strongly draws attention that the challenged Decree indicates a number of areas on which the cutting of trees on the properties of Industrias Infinito is required, specifically, 191 ha 7782.66 m2 of forest, 66 ha 9474.53 m2 of agricultural/livestock use without forest, and 4 ha 1751.38 m2 of forest plantations (for an approximate total of 262 ha); however, at no time does the Decree indicate where this data comes from, nor is that information found in file No. DAJ-077-2008, with the aggravating factor that SETENA permitted the exploitation activity in the Crucitas Mining Project (Proyecto Minero Crucitas) over a total area of 227.6 ha, meaning there is a difference in areas between one act and the other of approximately 34 ha, a situation that generates in this Court a state of absolute uncertainty regarding the correct and serious determination of the zones subject to tree felling, which, according to the precautionary principle, obligated the Executive Branch (Poder Ejecutivo) to refrain from issuing said Decree, for containing so many technical imprecisions to the detriment of the conservation and protection of forest areas and to the detriment of the conservation of wildlife. All these absences and inconsistencies, in the Court's judgment, translate into a violation of Article 136 of the General Law of Public Administration (Ley General de la Administración Pública), which imposes on the Administration the duty to adequately state the grounds for its acts.\n\nIt remains to be noted that the fact that Article 6 of the Mining Code (Código de Minería) declares mining activity of public utility does not imply that the Crucitas Mining Project (Proyecto Minero Crucitas) had, in itself, the condition of being a project of national convenience, because to acquire such a condition, a series of assessments and procedures are required that must be verified in each specific case, and these are established by the Forestry Law (Ley Forestal), as has been explained previously. In any case, it could not be accepted that the public utility provided for in the Mining Code (Código de Minería) constitutes *per se* the exception to the prohibition on cutting trees in forest zones and in protected areas, because such an interpretation would be incoherent and, on top of that, fraudulent, given that the Forestry Law (Ley Forestal) is not only a special law with respect to such aspects, but it is also a law subsequent to the Mining Code (Código de Minería).\n\nIn summary, for all the foregoing, it is concluded that Executive Decree (Decreto Ejecutivo) No. 34801-MINAET, in accordance with Articles 131, 133, 136, 158, 166, 223, and 361 of the General Law of Public Administration (Ley General de la Administración Pública), is vitiated by absolute nullity and is so declared.-\n\n**XVI- ON THE DEFECTS OF THE LAND-USE CHANGE (CAMBIO DE USO DE SUELO) PERMIT.**\n\nIn close relation to the subject developed previously, the Court finds that resolution No. 244-2008-SCH, issued by the Arenal-Huetar Norte Conservation Area (Área de Conservación Arenal-Huetar Norte), presents defects in its motive and also incurs a misuse of power. In this debate, expert witnesses expressly recognized that the questioned resolution presented serious errors in the identification of the species or individuals that exist in the project zone. In this regard, witness Quírico Jiménez Madrigal (Forestry Engineer) was emphatic in pointing out that the list of trees to be cut in areas with forest cover (cobertura boscosa), contained in table No. 2 of the Por Tanto of resolution No. 244-2008-SCH, a fact proven in this proceeding, included species that do not grow in that location and species that do not exist in Costa Rica, also detecting that there were threatened species and endangered species. As species that are not from the sector, he indicated among others the following: Copalillo, Corteza, Guabo, Lechoso, Lorito, Mangle, Muñeco, Nance, Nancite, Nene, Panamá, Pellejo de Vieja, Poró, Ron Ron, Sangrillo, Targuá, among others. Among the endangered species, he indicated Cipresillo, Cola de Pavo, and Tostado, the latter which he also qualified as endemic (that is, it only grows in that region). For his part, witness Javier Baltodano Aragón (Biologist specializing in Dendrology) also stated that in the species list contained in resolution No. 244-2008-SCH, individuals were identified that are not typical of the northern Huetar zone. He stated that in the project zone there are only 5 Cola de Pavo trees in 161 hectares, and that the Tostado is an endemic species in that sector. He indicated that Tostado, Cola de Pavo, and Cipresillo are species prohibited (vedadas) by Regulation.\n\nHe further explained that the yellow almond tree is not in danger of extinction, but its cutting is prohibited because it is a nesting site for the great green macaw. Finally, the witness Olman Murillo (Forestry Engineer) explained that what exists in the area is mostly secondary and intervened forest. He stated that he agreed with Quírico Jiménez in the sense that, as a scientist, it is not good for there to be species identification errors. He acknowledged that Ajillo, Mangle, and Panamá are not native to the area, and that Tostado and Cola de Pavo are endemic and threatened species. He pointed out that from the standpoint of the land-use change (cambio de uso) authorized by the State, the identification of the species is irrelevant because what is going to be applied there is a clear-cutting (tala rasa); however, he argued that as a Forestry Engineer, the correct identification of the species is indeed relevant for purposes of their conservation. Well, in accordance with the foregoing statements by the expert witnesses, which are coincident, the Court concludes that three defects arose in the grounds for the act. In the first place, the Administration omitted to take into account for the issuance of the resolution the fact that in the sector subject to the logging there exist species that are protected by a logging ban by Executive Decree No. 25700-MINAE, in force since January 16, 1997, and on the date the act was issued, such as Cipresillo, Cola de Pavo, and Tostado. This omission is considered serious, by virtue of the fact that the Arenal-Huetar Norte Conservation Area only took into consideration that an environmental impact assessment (Estudio de Impacto Ambiental) existed and that Executive Decree No. 34801, published on the same day this resolution was issued, declared the Crucitas Mining Project to be of national convenience. Notwithstanding the foregoing, the logging ban established by Executive Decree No. 25700-MINAE was issued under a legal regime different from that regulated by the Forest Law (Ley Forestal), since it was done under the protection of the Convention on Biological Diversity (Law No. 7416) and under the protection of the Wildlife Conservation Law (Law No. 7317), and its purpose was the conservation of certain trees in danger of extinction, based on the right of the species that make up the wildlife to their subsistence. The aforementioned laws do not provide for the possibility of the State disapplying a general prohibition to protect species in danger of extinction or threatened species, when a project is declared to be of national convenience, as the Forest Law does establish but for two specific cases: areas covered by forest (Article 19) and protection areas (Article 34), assumptions that do not correspond to that regulated by Executive Decree No. 25700-MINAE. It is even important to note that in the Forest Management Plan (Plan de Manejo Forestal) itself presented by the co-defendant company, the presence of threatened or banned species is acknowledged, such as those mentioned before that appear with very little representation, and in this regard the consulting team that prepared that plan clearly indicated that “in these cases the company will take the actions indicated by MINAE, Arenal-Huetar Norte Conservation Area, San Carlos-Los Chiles Subregional Office, Alajuela, as mitigation or compensation measures” (folio 665 of volume 3 of the administrative file of the Conservation Area No. AH01-PM-03-08), which allows concluding that the company was aware, prior to the authorization procedure, of the existence of banned species. In summary, it is deemed that by not taking this aspect into account for the issuance of Resolution No. 244-2008-SCH and not having ruled on the matter, a defect is produced in the grounds for the act because it was an essential issue that affected its content. In the second place, another defect is produced in the grounds for the act, since it is clear that the Arenal-Huetar Norte Conservation Area did not correctly identify the individuals in the area, a situation that had significant incidence in this case, because it was not a simple clear-cutting (tala rasa) in the area for which the land-use change (cambio de uso suelo) permit was granted, but rather the company committed to reforesting 382 hectares of forest with native species, a commitment that was proposed as a compensation measure both in the Forest Management Plan (Plan de Manejo Forestal) (folios 270, 288, and 289 of volume II of the administrative file of the Conservation Area No. AH01-PM-03-08), and in the oft-mentioned document of Proposed Changes to the Project (see point 6 of table 1.3 at folio 199 of the document Environmental Assessment of Proposed Changes to the Project). Evidently, by not having certainty about the native species that exist in the area, as a result of the multiple errors contained in Resolution No. 244-2008-SCH, such a situation renders nugatory one of the essential purposes that the administrative act was required to fulfill, which was precisely the correct execution of the Management Plan, which itself should have contained, regarding the species to be cut, the necessary certainty for the purpose of carrying out reforestation in a technically correct manner. Finally and in the third place, the cited resolution is vitiated in its grounds, for having taken into account as an essential element for its issuance Executive Decree No. 34801-MINAET, which was an absolutely null act, in the terms explained in the preceding considerando. Despite the fact that the representation of Industrias Infinito so argues, the discussion here as to whether the questioned logging affected areas of primary or secondary forest is not relevant, because according to what was declared by the witnesses Olman Murillo and Sandra Arredondo, secondary and intervened forests predominate on the properties of the co-defendant company, so there is no controversy on this aspect. The essential defect is that the company committed to reforesting the project area with native tree species existing there, so their incorrect identification in the challenged act affects the fulfillment of that commitment, which goes hand in hand with the purpose established by Article 1 of the Forest Law (Ley Forestal), which is precisely the conservation and protection of forests, regardless of whether they are intervened or not, as established by subsection d) of Article 3 of that Law. Thus, the land-use change (cambio de uso de suelo) permit in this case cannot be seen as a simple clear-cutting (tala rasa), since that would imply ignoring the essential purpose pursued by the Forest Law, and even the essential purpose of the Convention on Biological Diversity and the Wildlife Conservation Law, regarding the conservation of certain species, as in this case those that had a cutting prohibition.
For the same reasons, it is also not relevant to discuss whether the intervened forest could or could not be subject to logging, for the essential matter here, as has been said many times, is the full compliance with the purpose of the act, as it was formulated by the company itself, so that the improper identification of the native species and the omission of taking into consideration the banned species affects the grounds for the act and generates its absolute nullity. These omissions are also attributable to the company Industrias Infinito, for if they had assumed the commitment to reforest the areas with native species, they should have had the due diligence and interest in ensuring that the act was sufficiently technically correct, a situation that is discarded here because at no time did the company request that the threatened species be taken into account, while on the contrary, it was very diligent in starting the cutting of trees without delay on the very day that Executive Decree No. 34801 was published, which, by the way, was the same day Resolution No. 244-2008-SCH was issued; such a circumstance is presumed by reason of the relationship of dates recorded both for the issuance of the resolutions and the notification by the Chamber of the suspension of the logging. The foregoing is inferred from the declaration of Sandra Arredondo, who indicated that the cutting began on a Friday and was halted on a Monday by order of the Constitutional Chamber (Sala Constitucional), which is coincident with the date of the resolution that authorized the logging (Friday, October 17, 2008) and the official communications issued by the Minister of Environment and Energy, on Monday, October 20, 2008, requesting that the company refrain from continuing actions in the Project area, by reason of the filing of an amparo action. All the foregoing reveals that the land-use change (cambio de uso de suelo) permit and Decree 34801-MINAET published on the same day, October 17, 2008, constitute a set of conducts that pursued a purpose that was not that established by the previously indicated laws, so both present the defect of deviation of power, and it is so declared.
XVII- REGARDING THE PUBLIC ROAD.
During the oral debate and trial, the existence of a public road, on which the company intends to build part of the tailings pond, was raised as a new fact, duly admitted by this Court, as is evident from the first considerando. This Court was informed that, through a filing submitted by the defendant company Industrias Infinito S.A. before the Directorate of Geology and Mines (Dirección de Geología y Minas), on March 10, 2009, it requested the constitution by said body of a mining easement (servidumbre minera) of permanent occupation over a Municipal-owned property, specifically over a road. Prior to the concrete analysis, it is important to cite some indispensable regulations for resolving the specific point.
Public roads are defined and classified in the General Law on Public Roads (Ley General de caminos Públicos), in its first article concerning the cantonal road network, which establishes:
(..) CANTONAL ROAD NETWORK: Its administration corresponds to the municipalities. It shall be constituted by roads not included by the Ministry of Public Works and Transport (MOPT) within the National Road Network: such as; a) Local roads (Caminos vecinales): Public roads that provide direct access to farms and other economically rural activities; link hamlets and towns with the National Road Network, and are characterized by low traffic volumes and high proportions of short-distance local trips, b) Local streets (Calles locales): Public roads included within the grid of an urban area, not classified as urban crossings of the National Road Network, and finally c) Unclassified roads (Caminos no clasificados): Public roads not classified within the categories described above, such as bridle paths, footpaths, trails, that provide access to very few users, who shall defray the costs of maintenance and improvement. (As amended by Law No. 6676 of September 18, 1981, Article 1). For its part, Article Two establishes that “Municipalities hold ownership of the streets within their jurisdiction.”, numeral 28 prohibits the disposition of said roads other than that of their nature, indicating in what is relevant: “It is strictly forbidden (...) for Municipalities to grant permits or rights of occupation, enjoyment, use, or simple possession of the right-of-way of public roads or to exercise acts that imply in any form tenure of the same by individuals.” In protection of said roads, Article 32 states that “No one shall have the right to close partially or totally or to narrow, by fencing or building, roads or streets given over by law or de facto to public service or to the owner or neighbors of a locality, except when proceeding by virtue of a judicial resolution issued in proceedings conducted with the intervention of representatives of the State or of the respective municipality or by rights acquired under laws prior to this one or the provisions of this law.” In this regard, the Construction Law (Ley de Construcciones), in its Article 5, states that: “Public roads are inalienable and imprescriptible and therefore, no mortgage, seizure, use, usufruct, or easement (servidumbre) may be constituted over them for the benefit of a specific person, under the terms of common law.” On this point, the Constitutional Chamber (Sala Constitucional), in its reiterated rulings, among them Ruling 2005-07053, of June 7, 2005, develops: “II.- LEGAL NATURE OF PUBLIC ROADS. Public roads constitute public domain assets (bienes demaniales). This follows from Article 5 of the Construction Law (Ley de Construcciones), No. 833 of November 2, 1949 (...) This designation to the public domain regime stems from the power contained in Article 121, subsection 14, of our Political Constitution, which enshrines as an attribution of the Legislative Assembly that of “decreeing the alienation or application to public uses of the Nation’s own assets”. Regarding the characteristics (...) it has expressed the following:
“The public domain is composed of assets that manifest, by express will of the legislator, a special purpose of serving the community, the public interest. They are the so-called dominical assets, demanial assets, public assets or things, which do not belong individually to private parties and which are destined for public use and subject to a special regime, outside the commerce of men, that is, designated by their own nature and vocation (Voto No. 2306-91 of 14:45 hrs. of November 6, 1991). Consequently, these assets belong to the State in the broadest sense of the concept, they are designated for the service they render and which, invariably, is essential by virtue of express regulation. Characteristic notes of these assets are that they are inalienable, imprescriptible, unseizable, cannot be mortgaged nor be subject to encumbrance under the terms of Civil Law, and administrative action substitutes interdiction to recover ownership. Under that line of reasoning, highways, streets, or public roads, by their condition as assets forming part of the public domain, cannot be alienated without first having been disaffected from the public domain regime. Thus, the public domain nature of public roads is presumed and excludes any other possession that may be claimed, provided that title over the property is backed by reliable proof and without prejudice that the better right claimed may be discussed in the ordinary jurisdictional venue.”
From the summary of the proven facts, regarding the public road, it is extracted that the defendant company Infinito S.A., in the month of March 2009, filed an express request before the Mining Registry (Registro Minero) of the Directorate of Geology and Mines (Dirección de Geología y Minas), based on Article 50 of the Mining Code (Código de Minería), for the purpose of processing a mining easement (servidumbre minera) of permanent occupation over municipal land, without directly informing in its request that it was a road, for which purpose it attached photographs of the cited road, as well as an appraisal of the same. In said body, by Ms. Cynthia Cavallini, head of the Mining Registry, the easement (servidumbre) was given processing, requesting the corresponding appraisal from the Ministry of Finance. From the evidence on file, a certification from the Municipality of San Carlos accredits the existence of a cantonal public road, specifically 2-10-104, which has been registered since 1962 on Cartographic Sheet No. 3348 IV of the National Geographic Institute (IGN). This Court, in reviewing the factual framework and the evidence on file regarding such a fact, finds not only an absolutely irregular action by the Mining Registry, but one that violates the legal order, both by the administration and the defendant company, which, despite having knowledge of the existence of the road, from its initial project proposal in December 1999, the request for environmental viability (viabilidad ambiental), that of proposed changes before SETENA, and the validation of the act, did not disclose before the administrative bodies the existence of the public road and its intention to build part of the tailings pond on said road, grossly evading the necessary procedures to be able to have access to said land. It is of interest to highlight that both the Municipal entity and the administrative bodies had full knowledge that the intention was to build an essential component of the mining project (tailings or tails pond) on a public road, for of all the reports rendered from the year 2000 until the last approval in the year 2008, both by SETENA and the Directorate of Geology and Mines (Dirección de Geología y Minas), field visits were conducted, which allowed them to verify the location of the project and each of its components. Nevertheless, they ignored the existence of the public road, since both from the facts and the evidence on file, as well as from the mining company’s requests, it is clear that the location of the tailings pond has not varied since the beginning of the project, nor its size, which is corroborated in the table of proposed changes analyzed by SETENA and not questioned by the Directorate of Geology and Mines (Dirección de Geología y Minas), within its obligation to analyze SETENA’s decision when granting the environmental viability (viabilidad ambiental). Furthermore, from the easement (servidumbre) request itself, the company informs that studies were conducted since the late “90s,” and “that based on the results found, the design engineers of the company Industrias Infinito decided to locate the tailings pond in the site currently proposed, because it meets the best conditions from a technical and environmental standpoint,” which makes it clear that the disposition of the public road that the company intended was a circumstance known since its initial proposal – year 1999 –, a circumstance that was never mentioned or evaluated by the administrative bodies responsible for granting both the environmental viability (viabilidad ambiental) and the exploitation concession. A situation that was essential to assess, because to approve the location and construction of one of the essential components of the project – the tailings pond – on a cantonal public road, which would disappear entirely, it indispensably implied, on the part of the company, to negotiate before the Municipality of San Carlos the possibility of disaffecting the public road in order to dispose of it, and on the part of the administrative bodies, to ask the company for the indispensable requirement, as to whether it had disposition of the cited land that the public road occupies, an essential condition that was unobserved. The defendant company, in defense of its interests, has said that the road was in a state of abandonment and disuse, this latter element being indispensable according to its criterion, which allowed that when a new stretch of the road – cantonal route 2-10-104 was enabled, that sector that was of interest to it and indispensable for its project would be disaffected, both by disuse and by its compensation in a new stretch, a thesis that is unacceptable to this Court, for being flagrantly violative of our legal order. It cannot be overlooked that the public character of a road is not under discussion to assess elements of its constitution – such as its use –, because it has been declared as public at least since the year 1962 on the cartographic sheet of the National Geographic Institute (IGN). In addition to the foregoing, the company has stated that by having realigned the road by the Municipality, part of it is immediately disaffected, a statement that contravenes the entire regime of protection of public domain assets (bienes de dominio público), because the opposite would be to allow private individuals, according to their interests, attributing disuse or abandonment of the same, to freely dispose of public domain assets, which clashes with the provisions of the constitutional norm – Article 121, subsection 14. The designation of public domain assets (bienes de dominio público) can occur by formal act, by integration as a consequence of their purpose, by law, and some others by constitutional norm under the assumptions of subsections a, b, and c of subsection 14 of numeral 121 of our Political Constitution. The foregoing means that public domain assets declared as such may only be disaffected from their special regime or purpose by means of a legislative act, not through discretionary acts of the administration or extensive interpretations of said bodies or private subjects for whom it is of interest. In the specific case, an attempt is made to justify unacceptably that a stretch of route 2-10-104, a cantonal public road, was disaffected by a realignment that the municipal entity carried out, a situation that the Ministry of Public Works and Transport (MOPT) itself shows, by indicating in the evidence provided in the case file that both the administration and the disposition of cantonal routes correspond to the Municipalities, and that in the specific case, even though the realignment of the road was communicated by the Municipality of San Carlos, the registration in the department of the cantonal road network preserves the original layout of the road, as well as the section added to it. It is extracted from the evidence provided to the proceeding – folios 2309 to 2374, 2379, 2380, 2408, 2409, 2412 to 2415 of the judicial file – that even though since 2006, Gerardo Fernández Salazar and María Ester Pérez Hidalgo donated a piece of land in favor of the Municipality of San Carlos, on which a new stretch of the road – route 2-10-104 was built, which was also enabled in substitution for the section of the road on which the company Infinito S.A. intends to build part of the tailings pond, and that neighbors of the place showed their agreement with such substitution, such procedure does not have the virtue intended by the defendant Infinito S.A. of disaffecting part of a cantonal public road that is of its interest, which, as indicated supra, can only occur through the corresponding legislative procedure and authorization, which is lacking in this process.
Regarding the disregard of such a requirement by the public bodies, it is completely violative of the legal order not to have asked the company whether the municipal land on which it intended to arrange the construction of part of the tailings pond was disaffected.
It is of special importance to analyze the request for a mining easement (servidumbre minera). A request for a permanent mining easement is filed before the Directorate of Geology and Mines (Dirección de Geología y Minas) over municipal land, destined since 1962 to a cantonal public road, which was personally processed by Ms. Cavallini. During the oral and public trial, Mr. Francisco Castro testified that he has worked in that directorate for 35 years, and since 1984 has been under her leadership; he declares that even though he exclusively and personally handled the request for reconsideration of the act, he was unaware of the company’s easement (servidumbre) request, of which he found out a few days before his testimony in the trial, and that the initial technical procedure to follow in this type of procedures is to carry out a field inspection to determine the viability of the easement (servidumbre), and then continue with the legal process. He also acknowledges that when a concession request is filed, the first thing that must be done is its location on the mining registry map (padrón minero), that the surveyor in charge makes a field study, with the cadastral plan of the property that the interested party must present; he also indicated that he does not know if they want to close the road, even though he acknowledges that he visited the project site on several occasions. On the other hand, contradictorily, Ms. Cavallini declares during the trial that her boss, Mr. Francisco Castro, knew about the easement (servidumbre) request and that the processing is, firstly, to request the appraisal, which is what she did, and not a field visit. This Court cannot overlook such a contradiction, and what is even more serious, that the head of the mining registry since 1993, who is a lawyer, processed the request for a permanent mining easement (servidumbre minera) over a cantonal public road, information that is clearly evident from the appraisal provided by the company, as well as from the photographs accompanying said appraisal and the company’s request, without the official taking into account that the land over which the permanent easement (servidumbre) was intended is a public road, since it was not evident from the documents presented that it was disaffected. During the trial, she accepts that due to her legal training, she knows that it is indispensable that the land should have been disaffected to assess the constitution of the easement (servidumbre), and she openly acknowledges that it was her responsibility for personally handling the request, and in her capacity as head of the Mining Registry, to corroborate such a requirement, but she did not do so, and sent the request to the Ministry of Finance for its assessment. Additionally, she indicates that she is not familiar with the document shown to her during the trial (the response from the Tax Administration of Alajuela, visible in the administrative file labeled new fact) in which she was informed that the land could not be appraised for its consequent expropriation, by virtue of being designated for the public domain, for being a public road, and that in such a circumstance, in a general situation, not for the specific case, Ms. Cavallini stated that an easement (servidumbre) request in those terms should have been rejected. She also added that according to the request filed, if the tailings pond could not be built in the place indicated since the beginning of the project, its relocation and construction in another part of the project would substantially vary the conceptual framework of the same, which would oblige the concessionaire to communicate it to Geology and Mines, so that the corresponding studies could be conducted. Thus, it is clear in the opinion of this Court that the administrative body – Directorate of Geology and Mines (Dirección de Geología y Minas) – whose officials were responsible for processing the mining easement (servidumbre minera) request, did not perform work in accordance with the functions that the law imposes on them, and in this way they accepted the processing of a permanent mining easement over a public domain asset, in the absence of the indispensable requirement for its course, the disaffection of the road.\n\nIt must be borne in mind that, pursuant to the regulations cited at the beginning of this recital, Article 28 of the Public Roads Law (Ley de caminos públicos), as well as Article 5 of the Construction Law (ley de construcción), there is an express prohibition in both laws regarding the disposal of public roads, and the constitution or granting thereon of permits, rights of occupation, enjoyment, use, possession, usufruct, or easements for common use, rules that were grossly disregarded both by the company Infinito in seeking the constitution of the permanent easement (servidumbre permanente), and by the administrative bodies and officials responsible for complying with the foregoing regulatory provisions.\n\nThe defendant company, in its arguments, maintains that the easement finds its basis in numerals 50 to 52 of the Mining Code (Código de Mineria). Upon review thereof, these provisions regulate the constitution of a mining easement (servidumbre minera), including for the placement of tailings deposits as in the specific case; however, it is evident that the company knew that the municipal land over which they sought the constitution of the permanent easement was a public road, which had to disappear to make the construction of the tailings lagoon viable, a deposit which, as was proven by the statements given at trial by the experts from both the plaintiff and the defendants, is permanently located, its construction being irreversible, which would imply the permanent disappearance of the road. Consequently, the non-disaffection and attempted disposal of the public road constitutes a defect that affects the grounds of Resolutions No. 3638-2005-SETENA, 170-2008-SETENA, and R-217-2008-MINAE, issued by SETENA and the Ministry of Environment, Energy, and Telecommunications (Ministerio de Ambiente, Energía y Telecomunicaciones), and it is hereby so declared due to the disregard of the public road.\n\n**XVIII- REGARDING THE TECHNICAL ISSUES INVOLVED.**\n\nAlthough the Court is not unaware that the administrative record contains studies prepared by the co-defendant company, in which the technical issues challenged by the plaintiffs are mentioned, the truth is that in this matter SETENA omitted to request a new Environmental Impact Study (Estudio de Impacto Ambiental) and omitted to analyze the changes proposed by the company to the original project design, which translated, in this Court's opinion, into a waiver of the powers entrusted by Law to SETENA and, ultimately, into a lack of proper reasoning for the act that approved the changes. Evidently, by not having conducted a technical analysis of the design changes and their impact, SETENA also omitted to render a concrete analysis on each of the technical issues involved, such as the use of cyanide, the risk of seismicity, and others. Faced with such an absence, the defendant parties sought to substitute the technical function that belonged to SETENA, bringing to the judicial process experts who would provide a favorable opinion on each of the technical issues challenged by the plaintiffs. The foregoing, however, is inconsequential for this case, because the Court could not exercise control over the technical correctness of the Administration's actions if the challenged act, and its prior basis, do not contain a technical analysis from which such control can be exercised, as is the case with Resolution No. 170-2008-SETENA and report ASA-013-2008-SETENA. Under such conditions, the Court could not proceed in accordance with Article 128 of the Contentious Administrative Procedure Code (Código Procesal Contencioso Administrativo), which allows ordering the exercise of powers with discretionary elements, since the aforementioned acts lack technical elements that prevent exercising such control. It would be different if SETENA had conducted an exhaustive technical analysis of all the studies and documents submitted by the developer, issuing its opinion on each of the relevant technical issues and its challenges, so that in such case the expert witness evidence would aim to demonstrate, but not supplant, the technical and scientific correctness of the analyses carried out by the Administration. If this is not the case, as is sought in this matter, we would be allowing the Administration to cease exercising its legal functions and, in those cases where a contentious-administrative lawsuit is filed, the defendant simply chooses to bring an expert to substitute the work left undone by the competent technical body. This conduct is deemed inconsequential and does not have the effect of remedying the omission to request an environmental impact study, as well as the omission to verify the established procedure for carrying out the corresponding impact assessment (evaluación de impactos). Without prejudice to the foregoing, the court will proceed to address the most relevant aspects that emerged from the expert witness evidence in relation to the technical issues that have been challenged, evaluating them in accordance with the rules of sound judgment. It must be remembered that by virtue of the precautionary principle applicable to the case, the plaintiffs were not obliged to indisputably demonstrate each of the challenges raised, as the assessment of those aspects arises from the weighing of the various technical opinions heard at trial, a task that corresponds to this Court, and which is set forth below, with the caveat that this pronouncement does not have the virtue of remedying the lack of technical analysis by the Administration, a defect that affects Resolution No. 170-2008-SETENA with absolute nullity.\n\n**XIX- REGARDING THE DEPTH OF EXTRACTION AND THE IMPACT ON THE LOWER AQUIFER.**\n\nThe Public Administration is subject, as provided in Article 16 of the General Law of Public Administration (Ley General de la Administración Pública), to the univocal rules of science and technique, in such a way that in no case may acts contrary to them be issued. This is important to remember because in the present matter a very relevant technical aspect has been discussed, namely the limit elevation for the extraction that Industrias Infinito plans to carry out. When the Crucitas mining project was initially submitted to the Directorate of Geology and Mines (Dirección de Geología y Minas), it contemplated extracting saprolite and hard rock from three hills: Fortuna, Botija, and Fuentes. That same original project contemplated, as part of the extraction process, intercepting two aquifers: one near the surface and another located several meters below the former. The first will be referred to as the upper aquifer, while the second will be referred to as the lower aquifer. In this regard, it must be noted that in Resolution R-217-2008-MINAE, the Executive Branch made the mining concession granted to Industrias Infinito subject to the condition that the technical conditions given by geologist Ana Sofía Huapaya Rodríguez-Parra through official letters DGM-DC-320-2001, dated March 14, 2001, and DGM-DC-2085-2001, dated November 26, 2001, be respected. This second official letter can be seen from folio 202 bis to folio 199 in the first volume of the **administrative record** of the Directorate of Geology and Mines, and it should be noted that it is a document of great importance for the present matter, because in it, the aforementioned geologist, when specifying the technical conditions for extraction, was clear in stating: \"*According to the approved extraction methodology (Fortuna, Botija, and Fuentes pits) and the hydrogeological studies carried out in the area to be exploited and where two aquifers are identified, the upper one being of potable nature, **the maximum extraction elevations shall be up to 75 meters above sea level (msnm)**. Likewise, the company must guarantee the supply of drinking water to the town of Crucitas, the well of the School in this same place deserves special attention. For this, it must build the necessary infrastructure*\" (the bold and underlining are not from the original). As can be seen, geologist Huapaya Rodríguez-Parra was precise in the referenced document, establishing as the maximum extraction limit for the entire project, the elevation of seventy-five (75) meters above sea level (msnm). That official letter was issued on November 26, 2001, and is clear regarding the technical condition of limiting the extraction of material to the seventy-five-meter elevation, which implies that excavation below seventy-five meters above sea level is not permitted. The reason for that limitation was explained in person by Huapaya Rodríguez-Parra herself, who, testifying at trial as an official of the Directorate of Geology and Mines, stated that said elevation was set in consideration of the fact that the lower aquifer (also referred to as the confined aquifer) is located approximately fifty or fifty-five meters above sea level and that what was being sought was not to intercept that aquifer. And the referred professional clarified that in this matter **the correct way** is to speak of **meters above sea level** to have a uniform starting point, such as sea level, and from there a measurement of the **elevation** is made upwards. Thus, points are located according to their elevation above sea level, and this guarantees a standard measurement of all excavations. And that geologist explained that the foregoing differs greatly from speaking of **depth**, because this is relative, it does not provide certainty of the scope of the excavations, since it starts from ground level downwards and since the height of the surface varies, indicating the depth of an excavation in **meters below ground level** will also always be relative to the point from which it began to descend. Returning to official letter DGM-DC-2085-2001, what is important to highlight is that it imposed the technical condition that the extraction limit was the elevation of seventy-five meters above sea level. And here it is necessary to indicate that this technical condition was always known by Industrias Infinito, as it was included in Resolution R-578-2001 MINAE (visible from folio 240 to folio 227 in the first volume of the **administrative record** of the Directorate of Geology and Mines), by which the concession was granted that was later annulled by the Constitutional Chamber (Sala Constitucional) in judgment 2004-13414. It is necessary to point out that geologist José Francisco Castro Muñoz, Director of Geology and Mines, stated during his testimony in this trial that the extraction limit was set at the elevation of seventy-five meters above sea level, precisely to prevent the interception of the lower aquifer, which coincides with what was stated by geologist Ana Sofía Huapaya Rodríguez-Parra and is fully consistent with the content of the technical condition contained in official letter DGM-DC-2085-2001, reasons for which this Court considers that the purpose of the technical condition established by the Directorate of Geology and Mines was to prevent the interception of the referred lower aquifer, that is, that what was being sought was to protect it. This technical condition was, as indicated, known by Industrias Infinito, since, as stated, it was contemplated in the 2001 mining concession, which was later annulled. The importance of this condition, which there is no record that Industrias Infinito ever objected to, is that it meant a considerable reduction in the amount of material it could eventually extract. If one observes the graph visible at folio 3340 of volume XVII of the **technical record** of the Directorate of Geology and Mines, it is seen that it was prepared by hydrogeologist Hugo Virgilio Rodríguez Estrada (who is the same professional who prepared the document visible from folio 3331 to folio 3350 in volume XVII of the **technical record** of the Directorate of Geology and Mines) in September 2000. Being a document from the year 2000, it is obvious that it was used during the processing before the Directorate of Geology and Mines, prior to the issuance of official letter DGM-DC-2085-2001. That is, it is one of the pieces examined in said Directorate before granting the 2001 concession. And this is relevant because **it is inferred from the graph that the referred professional Rodríguez Estrada used the unit of meters above sea level (msnm) to establish the elevation of the excavations. It is also inferred from the graph that the lowest point of the planned excavation to extract material from the Fortuna pit would reach an approximate elevation of forty (40) meters above sea level (msnm), which implied intercepting the lower aquifer. This is what was projected by Industrias Infinito in the year 2000 and is precisely what the Directorate of Geology and Mines rejected by setting seventy-five (75) meters above sea level (msnm) as the extraction limit, a decision that implies an impediment, based on technical reasons aimed at the protection of the water resource, for Industrias Infinito to intercept the lower aquifer**. It is worth reiterating here that there is no record that this technical condition established in 2001 was ever objected to by Industrias Infinito, despite knowing it and being aware of the consequences it entailed for its extraction claims. Now it is necessary to indicate that both Ana Sofía Huapaya Rodríguez-Parra and José Francisco Castro Muñoz were in agreement in pointing out that the project presented by Industrias Infinito before the Directorate of Geology and Mines implied, at all times, the extraction of saprolite and hard rock, as well as that it was divided into extraction stages. That is, the purpose of the defendant company was, from the beginning, to exploit hard rock, which contemplated in its plans the interception of the lower aquifer. That is what the company itself stated before the Directorate of Geology and Mines. But that is precisely what Industrias Infinito did not state before the National Environmental Technical Secretariat (Secretaría Técnica Nacional Ambiental). If one observes the graphs prepared by the same hydrogeologist Hugo Virgilio Rodríguez Estrada at folios 213 and 211 of the environmental impact study (those contained in a single volume that claims to bring together the two volumes of the study, indicating that the first goes from chapter 1.0 to 5.0 and the second from chapter 6.0 to chapter 14.0) presented by Industrias Infinito before the National Environmental Technical Secretariat in **March 2002** (that is, after knowing the technical condition of the Directorate of Geology and Mines that limited extraction to seventy-five meters above sea level), it can be noted that they only describe the upper aquifer and that they contemplate a measurement of elevation in meters above sea level. Although it might seem that this is conduct consistent with the limitation imposed by the Directorate of Geology and Mines, this Court considers that this is not so, because after obtaining the environmental viability (viabilidad ambiental) in 2005, two years later, in 2007, Industrias Infinito requested various modifications to the original environmental viability, among which are the extraction of hard rock and the interception of the lower aquifer. See the graph on folio 175 in the record called \"Environmental Assessment of Proposed Changes to the Project\" (Evaluación ambiental de cambios propuestos al proyecto) and it will be possible to appreciate that the design is basically the same one that in the year 2000 had been proposed to the Directorate of Geology and Mines and that in 2001 had been technically limited to an extraction elevation of seventy-five meters above sea level. **What happens is that in 2007, Industrias Infinito, aware of that technical limitation imposed by the Directorate of Geology and Mines, submitted to the National Environmental Technical Secretariat a request that sought to excavate below the elevation of seventy-five meters above sea level. Again, in 2007, it was Industrias Infinito that insisted on extracting material with excavations that would reach, at their lowest point, an elevation of between thirty-five and forty meters above sea level, which, by all appearances, is a violation of the condition imposed in official letter DGM-DC-2085-2001, which, it bears repeating, there is no record was ever objected to by that legal entity. And that is conduct attributable to Industrias Infinito, and to no one else**. Through that action, the defendant company misled the National Environmental Technical Secretariat, and that **malicious conduct** of the referenced company cannot be overlooked, not even by the fact that the officials of the indicated Secretariat also acted with complete disregard for their duty to verify the conditions imposed by the Directorate of Geology and Mines before approving what was requested by Industrias Infinito. And it is that in mining matters, where the Directorate of Geology and Mines also has an active role in protecting the environment, the officials of the National Environmental Technical Secretariat cannot ignore what is provided by that other agency when assessing studies related to the environmental viability of a project. In this matter, both Sonia Espinoza Valverde and Eduardo Murillo Marchena stated that they, as officials of the National Environmental Technical Secretariat, did not have to examine what was decided by the Directorate of Geology and Mines. They are mistaken, because they needed to be fully aware of the technical limitations set by the latter, since these configure the framework within which the mining activity could eventually be developed and, consequently, it is against that framework that the environmental viability should have been examined. That the officials of the National Environmental Technical Secretariat disregard the technical limitations imposed by the Directorate of Geology and Mines for the development of a mining activity constitutes, in this Court's opinion, an unjustified neglect of the rules that seek to guarantee sustainable development. If examination under any other framework not prefigured by the Directorate of Geology and Mines were permitted, it would imply a way of circumventing the technical limitations imposed by it, just as it would if the Directorate, when granting a concession, did not review the terms under which the Secretariat granted environmental viability. **In matters of environmental protection related to mining activity, neither of these two bodies can disregard what has been decided by the other**. In the specific case of the lower aquifer, the action taken by Industrias Infinito in 2007 and approved by the National Environmental Technical Secretariat on February 4, 2008, through Resolution No. 170-2008-SETENA, constitutes an illegal action, as it implies the violation of the technical conditions established in official letter DGM-DC-2085-2001. But not only that, **in seeking the interception of an aquifer that the Directorate of Geology and Mines expressly sought to protect, this action by Industrias Infinito, combined with the carelessness of the officials of the National Environmental Technical Secretariat, constitutes, in the eyes of this Court, a fraud of law (fraude de ley)**. This figure is contemplated in Article 5 of Law No. 8422 of September 14, 2004 (published in Official Gazette La Gaceta No. 212 of October 29, 2004), which is the Law against Corruption and Illicit Enrichment in Public Service (Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública). Fraud of law is configured when conduct is carried out under the protection of a normative text, but to pursue a result that does not conform to public purposes and the legal system. In the present matter, it is clear to this Court that, even if reasons such as the variation in the price of gold are invoked, the truth is that from the beginning the interception of the lower aquifer was contemplated, because this was necessary to extract all the gold that Industrias Infinito planned to exploit. But that plan encountered the obstacle that, in the interest of protecting the water resource, the Directorate of Geology and Mines established the elevation of seventy-five meters above sea level as the extraction limit, considering that the lower aquifer is located approximately between fifty and fifty-five meters above sea level. Thus, although it did not object to that limitation before the indicated Directorate, Industrias Infinito opted, in 2002, to present environmental impact studies and to request environmental viability, announcing to the National Environmental Technical Secretariat that it would extract gold only from the saprolite, which implied bypassing the lower aquifer. But having obtained environmental viability in 2005 for saprolite extraction, in 2007 it returned to the original plan, which did contemplate the interception of the lower aquifer. This plan had been announced to the Directorate of Geology and Mines since 2000 and was structured in stages, all components of a single project, as indicated at trial by Ana Sofía Huapaya Rodríguez-Parra and José Francisco Castro Muñoz. But to the National Environmental Technical Secretariat, Industrias Infinito presented, as if it were the entire project, what to Geology and Mines was only the first stage: saprolite extraction. And after securing that environmental viability to extract saprolite, they presented the misnamed modification, which was nothing other than a return to the plan originally presented in 2000. With this latter action, Industrias Infinito was evidently seeking to overcome the obstacle that the technical limitation imposed in official letter DGM-DC-2085-2001 meant for them, in order to intercept the lower aquifer and extract all the gold they wanted. And in order to circumvent that limitation, Industrias Infinito availed itself of the regulatory possibility of requesting modifications to the environmental viability. That is, it used a regulatory provision to achieve a result not in conformity with the satisfaction of public purposes or the legal system, which this Court considers constitutes a fraud of law. And the determination of that fraudulent action on the part of the company is reinforced by the fact that during the debate, hydrogeologist Hugo Virgilio Rodríguez Estrada was confronted with the diagrams that he himself created and that are visible at folios 3338 and 3340 of volume XVII of the technical record of the Directorate of Geology and Mines. Having them in view, the referred expert witness was clear in pointing out that they indicate the elevation in meters above sea level, as well as that he had created them in the year 2000. He also explained why it is important to indicate elevation in said measurement and also established that this differs from the concept of depth, stating that elevation and depth are not coincident notions. The important thing is that after stating all the foregoing, the witness was shown the document identified as **Annex 7** and observed from folio 130 to folio 137 of the **volume corresponding to official letter DM-249-2009, dated February 27, 2009**, through which the then Minister of Environment and Energy, Roberto Dobles Mora, submitted a report expanding on discharge arguments in relation to the amparo process 08-014068-0007-CO, which culminated in the issuance of judgment 2010-06922 by the Constitutional Chamber. What is important to highlight is that this Annex 7, titled \"Summary of the hydrogeological conditions and expected effects in the Crucitas mining project\" was prepared by the expert witness already mentioned, that is, by Hugo Virgilio Rodríguez Estrada himself, but what is striking is that in it (see in particular folio 132), that professional states that the lower aquifer \"*is located at **depths** greater than **50 m below ground level** in the project area*\" (bold and underlining supplied) and then affirms that the \"*water would emerge upon reaching the topographic **elevation** of **73 meters below ground level (mbns)** *\" (the bold and underlining are not from the original). When reading the document during the hearing, hydrogeologist Rodríguez Estrada was clear in indicating that it contained an error, because it spoke of depths and meters below ground level, when earlier, he himself had indicated that the correct way was to speak of elevation and meters above sea level. Questioned about the error and its consequences, the declarant himself stated that both measurements are not coincident and that confusing them could lead to mistakes. When asked whether carrying out the extraction as he describes it in Annex 7 (that is, based on the idea of depth and meters below ground level and intercepting the lower aquifer) would mean exceeding the technical limit set by the Directorate of Geology and Mines at seventy-five meters above sea level, the deponent merely replied that the extraction he describes in that document does imply reaching the piezometric level of the lower aquifer, or what is the same, that the referenced aquifer would indeed be intercepted. As can be seen, ex-Minister Dobles Mora provided, to be presented before the Constitutional Chamber (which was misled on the point), an apparently scientific document in which the interception of the lower aquifer is set out as viable, in which the notion of depth and a measurement in meters below ground level is erroneously used, when scientifically the correct approach, according to what was described by the very professional who prepared the document (which coincides with the criterion expressed by geologist Ana Sofía Huapaya Rodríguez-Parra and by geologist José Francisco Castro Muñoz), was to indicate the elevation in meters above sea level. And the important thing about this supposed error by hydrogeologist Hugo Virgilio Rodríguez Estrada is that that depth measurement indicated in Annex 7 is coincident with the idea of depth handled by the National Environmental Technical Secretariat in Resolution No. 170-2008-SETENA (visible from folio 4152 to 4157 in volume X of the administrative record of the indicated Secretariat), in which the need to excavate \"*at average depths of 67 m*\" was mentioned in the Second Recital (obsérvese in particular folio 4155 in the indicated volume of the referred record). In that sense, it is easy to appreciate how the confusion between the notions of depth and elevation was one of the factors that made possible the granting of environmental viability to the proposed changes to the project, thus ignoring and disregarding the technical limitation established by the Directorate of Geology and Mines since 2001, which consists of limiting the extraction to the elevation of seventy-five meters above sea level, which in turn implies intercepting the lower aquifer contrary to the technical provisions of the aforementioned Directorate.\n\nAnd Industrias Infinito's intention to mislead the Administration regarding the comment topic becomes even more evident if one considers that the interception of the lower aquifer is essential for the development of the Crucitas mining project, as the water derived from said interception was relied upon, which would be pumped to the tailings pond or tailings dam (laguna de relaves o de colas) (which is an indispensable component of the project) and, furthermore, it was planned that with the interception of that lower aquifer, once extraction was completed, the water would allow the creation of a lake (the so-called Fortuna lake), which has been presented as one of the positive legacies that the mining project would leave and it has even been announced that the community could exploit the new lake. That is to say, the company has always counted on the interception of the lower aquifer, which demonstrates that Industrias Infinito has not sought to comply with the technical condition contained in official communication DGM-DC-2085-2001, and in that sense, the fraud of law (fraude de ley) that was attempted by submitting in 2007 before the Secretaría Técnica Nacional Ambiental (SETENA) supposed changes to the project that, in reality, were contemplated in the original plan submitted since 2000 before the Dirección de Geología y Minas is appreciated. The technical importance of the lower aquifer issue is, as indicated, evident, because without it, the Crucitas mining project cannot be developed as the company has planned. Regarding this, it is worth saying, finally, that even though in its conclusions the representation of Industrias Infinito argued that this company would simply adhere to the limit elevation for extraction, the truth is that this is a simplistic and completely unsubstantiated statement, because not only does the documentation show that Industrias Infinito plans to do exactly the opposite of what its lawyers indicated here, but also the professional who served as the project's environmental regent (regente ambiental) from 2007 to 2010, geologist Sandra Arredondo Li, stated aloud how they plan to use the water from the lower aquifer, making it completely false, therefore, that Industrias Infinito intends to respect the extraction limit that it has known since 2001, that is, the elevation of seventy-five meters above sea level. For all the foregoing reasons, regardless of other reasons set forth in this judgment, this Court considers that resolution number 170-2008-SETENA is absolutely null and void, since it lacks adequate reasoning, as well as a lawful purpose, insofar as it ignored the technical limitation established in official communication DGM-DC-2085-2001 of the Dirección de Geología y Minas and endorsed the changes proposed to the project, which were legally impossible to even examine given the aforementioned technical condition. And, in turn, given that resolution 170-2008-SETENA was essential for the issuance of resolution R-217-2008-MINAE, since the former is null, the latter also becomes null, and both must be so declared.\n\nXX- REGARDING THE USE OF HEAVY MACHINERY.\n\nRegarding this point, witness Sandra Arredondo Li (environmental regent) stated that the use of rock breakers (quebradores) was planned from the project's initial design, and explained that this was because although the saprolite layer is mostly clayey soil, in that layer there can also be stone blocks that would need to be broken, and witness Eduardo Murillo Marchena (Forestry Engineer, SETENA official) referred to the same. On this particular matter, the Court finds that there is no major controversy, and therefore, proceeds to dismiss the arguments outlined on this topic.\n\nXXI- REGARDING THE USE OF EXPLOSIVES.\n\nOn this topic, expert witnesses Sandra Arredondo Li (environmental regent) and Eduardo Murillo Marchena (Forestry Eng., SETENA) testified, basically indicating that the studies submitted by the company did foresee the use of explosives for the extractive activity. Expert witness Adrián Salazar Cyrman (Geologist), who testified exclusively on this subject, indicated that two weeks before giving his statement he had read the Environmental Impact Study (Estudio de Impacto Ambiental, EIA), exclusively regarding the use of explosives. The witness was shown the document \"Evaluación de Cambios Propuestos,\" and after reviewing it on the topic of interest, gave his favorable opinion, alluding to the correction in aspects such as the established protection zone and the transport and safety protocols. On this particular matter, the Court finds that although the testimony of witness Adrián Salazar Cyrman was conclusive in establishing that the company's studies guarantee adequate management of the use of explosives, his testimony does not have the virtue of substituting the technical analysis that the Administration omitted to provide when evaluating the proposed changes. As is evident from resolution No. 170-2008-SETENA, and from report ASA-013-2008-SETENA, the topic of explosives was not analyzed by SETENA, and consequently, the defects noted previously are reproduced.\n\nXXII- REGARDING THE DESTRUCTION OF CYANIDE.\n\nIn relation to this topic, witness Eduardo Murillo Marchena, a SETENA official, stated that the company's studies foresaw a cyanide quantity of one part per million and that this was below what the regulation establishes. He alluded that the company's study was endorsed by a Chemical Engineer. He also indicated that the cyanide destruction process was foreseen in the first study using INCO technology, and that with the change proposal, a more efficient technology (Cyplus) was adopted. For her part, witness Sandra Arredondo Li, the project's regent, described the cyanidation process on the milled material for gold extraction, the cyanide destruction process in a specific plant, and that both the processed and unprocessed material is submerged in the tailings pond, to which the water with cyanide is also sent, but at low levels. Finally, witness Orlando Bravo Trejos, Chemist, stated that he reviewed only the documentation provided to him by the company Industrias Infinito and that they contacted him in August of this year. He described the cyanide destruction process, stated that with the new technology the cyanide is destroyed and that the levels of this component in the water after the process were very low and are not dangerous, and they finish degrading naturally in the tailings pond. He indicated that with this cyanide concentration, no \"prussic acid rain\" or caustic gases will be produced. Well, on this topic, the Court considers that although the testimony of witness Orlando Bravo was clear in establishing that the company's studies guaranteed adequate management of cyanide in the material processing and that the concentrations of that substance will not represent danger in the tailings pond, his testimony does not have the virtue of substituting the analysis that SETENA should have issued on this matter when evaluating the proposed changes. In resolution No. 170-2008-SETENA, and in report ASA-013-2008-SETENA, a rigorous analysis of the studies submitted by the developer regarding this technical topic, as well as its impacts and mitigation measures, was omitted, and it simply indicates that there will be a leaching process with cyanidation, that the company committed to using the new CYPLUS technology (improved INCO), and that the natural degradation of that component in the tailings pond is foreseen. As can be observed, the Administration omitted to make a technical analysis of this topic, and it is not admissible that the co-defendants, through an expert witness, intend to substitute that function proper to SETENA's competence in this process, emptying the exercise of its legal powers of content. Consequently, the defects noted in this judgment are reproduced, as pointed out before.\n\nXXIII- REGARDING THE TAILINGS POND.\n\nOn this topic, witness Allan Astorga Gatgens (Geologist) stated that the tailings pond (also called tailings dam) has an area of 140 hectares, and that the milled rock from which gold has been extracted will be deposited in it. He indicated that this material is dangerous because it contains cyanide, which represents a danger to the watersheds in the area, such as the Río San Juan. He pointed out that there could be a geological fault underneath this dam, and that this could cause the rupture of the pond floor. He alluded that more studies are required on the seismicity in the area. Witness Yamileth Astorga Ezpeleta (Marine Biologist) stated that it is not contemplated who will assume the maintenance of the equipment for the control of this pond, after the closure stage. She argued that materials with heavy metals will be deposited in the dam, and that this could affect the Río San Juan, due to risk of the dike breaking. Witness Carlos Quesada Mateo (Civil Engineer) indicated that there is a risk to the stability of the tailings dam due to the country's climatic conditions. He points out that a rupture could occur due to soil saturation resulting from severe precipitation periods, or an overflow of surface waters. Witness Eduardo Murillo Marchena (Forestry Engineer, SETENA official) indicated that the annex to the Environmental Impact Study analyzed the seismic threat topic, and that this study determined that the zone is of low seismicity. He pointed out that the studies modeled possible catastrophes, such as the impact of the pond's rupture, and in the case of an earthquake, the mitigation measure consisted of collecting sediments at the confluence with the Quebrada Mina. He argued that the tailings pond would be filled with water coming from the Quebrada Mina and then by a pumping system. Witness Sandra Arredondo Li (environmental regent) pointed out that the company committed to carrying out permanent monitoring of the tailings pond, and contemplated protocols for the handling of hazardous substances, for the management of hazardous waste, and for water management. Finally, witness Walter Montero Pohly (Geologist expert in seismology and neotectonics) indicated that in the project area, there is no active fault that crosses the site, ruled out that there are lineaments suggesting the existence of a fault in that sector, and pointed out that Crucitas is located in the zone of lowest seismic threat in Costa Rica. On this particular matter, the Court finds that there are technical and scientific criteria that are contradictory, insofar as some experts rule out the risks that the tailings pond represents for the environment, while other experts raise risks regarding this component that require better analysis through further studies. This situation reflects that on the topic of the tailings pond, there is a contradiction of criteria on the harmlessness of the human activity for the environment, and in such case, the Administration's decision could not be directed at approving the company's request for changes to the project, because that would violate the precautionary principle (principio precautorio). However, as has been repeatedly explained, in this case SETENA omitted to carry out a technical analysis that took into account all the foregoing aspects, and this circumstance renders resolution No. 170-2008-SETENA absolutely null and void in the terms already set forth in the foregoing recitals.\n\nXXIV- REGARDING THE DIKE.\n\nIn relation to this point, there was no major discussion according to the statements made by the expert witnesses in this debate. The record shows that only witness Sandra Arredondo explained the structure of the dike for the formation of the tailings pond, referring to the type of materials that would be used. From the other testimonies, no controversial elements are extracted regarding this specific component of the project, therefore a ruling on this particular matter is omitted.\n\nXXV- REGARDING THE ACID DRAINAGE POTENTIAL.\n\nOn this topic, witnesses Allan Astorga Gatgens (Geologist) and Yamileth Astorga Ezpeleta (Marine Biologist), affirmed that as a consequence of the increase in extraction depth in the pit area, \"pyrite\" will be exposed and that this, upon coming into contact with water and oxygen, generates sulfuric acid, which represents a risk of contamination because that component can drain towards the aquifers. For her part, witness Sandra Arredondo Li (environmental regent) stated that saprolite does not have acid drainage potential. In the case of hard rock, she mentioned that to determine its acid drainage potential, \"diamond drilling\" was carried out to obtain stone cores and then they were analyzed. She pointed out that the company's studies demonstrated that the drainage potential was low. She indicated that the mechanism to be implemented to eliminate acid drainage consists of submerging the material under water (2 meters). She emphasized that for controlling the acidity of the tailings pond water, adding lime is a mitigation measure. Witness Orlando Bravo Trejos (Chemist) explained that the sulfide contained in the rocks, when buried, is not in contact with oxygen, but at the moment this occurs, it oxidizes and produces sulfuric acid, causing what is known as acid drainage. He indicated that the measures intended to be implemented to control acid drainage, such as placing the processed rocks under water and using lime to prevent water acidity, are adequate, since a neutralization process would be achieved. Well, regarding this topic, the Court finds that the position of the defendants' witnesses was conclusive, showing that the risk of acid drainage is easily controllable and does not represent major difficulty. However, even though the foregoing would imply dismissing the plaintiffs' arguments regarding this reproach, we must remember that in this case SETENA omitted to carry out a technical analysis on this specific topic, and therefore resolution No. 170-2008-SETENA is vitiated by nullity in the terms repeatedly set forth. Moreover, it is necessary to indicate that the study provided by Industrias Infinito in relation to the acid drainage topic, regardless of the fact that it was presented in English (an aspect that does not have major relevance, since a free translation of it into Spanish was later provided), does present an essential problem, which is that it is a draft (or draft) that was prepared as something preliminary and that even contains incomplete sentences where the missing information is supplied with lines of X's. Thus, although the representative of Industrias Infinito stated that it was DEPPAT that used that information to prepare the environmental impact study, the truth is that it was the defendant company that presented that study before the Secretaría Técnica Nacional Ambiental, so it is Industrias Infinito that must assume the consequences of its actions, regardless of how it decides to proceed in relation to DEPPAT.\n\nXXVI- REGARDING THE PIT AREA.\n\nRegarding this aspect, it is clear that the original design or proposal of the project foresaw extraction in the Botija, Fortuna, and Fuentes hills, which can be verified in the Feasibility Study submitted before Geología y Minas in 1999, and its Annex, both of which are found in volumes 1 and 17 of the technical file of Geología y Minas. In 2007, the co-defendant company submitted a change proposal before SETENA, and in it, the extraction area was reduced to two hills: Botija and Fortuna. This topic by itself is not controversial, so a ruling on it is omitted.\n\nXXVII- REGARDING THE TECHNICAL CLOSURE.\n\nIn relation to this topic, there was no major discussion through the expert witness evidence; however, the defendants supported the thesis that this phase begins before the project starts, and that it requires adaptation during the operation phase, having to adjust to the circumstances that arise. They maintain that the company has the commitment to propose solutions that must be assessed by the involved technical bodies, and furthermore, that there will be constant follow-up monitoring of environmental variables. They argue that environmental guarantees are maintained until the technical closure phase. They note that there is a difference between technical closure and the closure of the source, regulated in Article 133 of the Reglamento al Código de Minería. Well, on this topic, the plaintiffs did not outline major argumentation, so it is appropriate to dismiss the arguments formulated in relation to this aspect.\n\nXXVIII- REGARDING THE SOCIO-ECONOMIC ANALYSIS\n\nIn the present case, through resolution number 119-2005-SETENA, the Secretaría Técnica Nacional Ambiental had required Industrias Infinito to submit as an annex various observations on the social aspect of the Crucitas mining project, in order to be able to carry out the cost-benefit analysis that would allow determining its environmental viability. However, in resolution number 3638-2005-SETENA, said dependency, despite mentioning that Industrias Infinito submitted the referred annex, did not make a single assessment of the documentation submitted by the company. The only thing indicated, regarding all the annexes in general, but never on the specifics related to the social aspect, is that the terms of reference and technical requirements were met. But that statement is isolated, it lacks any reasoning, since not a single argument that supports it is set forth. Thus, it is never stated why it is estimated that all the requirements were met, nor in what sense they are considered fulfilled. Furthermore, no section of resolution 3638-2005-SETENA expresses in what way the social benefits are considered greater than the environmental costs. Subsequently, in resolution number 170-2008-SETENA, the only thing indicated as a social benefit is the implementation of courses in association with the Instituto Nacional de Aprendizaje, but it ignores the fact that the on-site implementation of that type of training activities does not depend exclusively on the presence of the mining company. Donations to the Crucitas school are also mentioned, leaving aside that its maintenance is not inextricably associated with the development of the mining project either. In that sense, it is not appreciated how those social benefits can be classified as a necessary consequence of Industrias Infinito's activity, nor – and this is more important – is it explained in what sense these positive aspects – which this Court does not disregard – are more important than the environmental impact of the mining activity. Furthermore, although expert witness Sonia Lidia Cervantes Umaña declared, in her capacity as a sociologist, that the zone is very economically depressed and that the project would constitute a source of work for approximately one hundred and fifty or two hundred and fifty people (depending on whether only saprolite or also hard rock is extracted), as well as also referred to the expectation that the development of the mining activity would attract other companies to the area, the truth is that she did not refer to the transitory nature of the mining project, so it cannot be assured that carrying out the project will necessarily generate the expected results. Moreover, it has also not been explained why the development of the mine is required – as an indispensable condition – for those social investments to occur. For this reason, there is no certainty whatsoever that once the mining project is completed, what is presented today as great benefits will endure. And equally important, the referred professional did not explain in what way that uncertain result can be considered as something more valuable than the environmental impact that the mining activity would surely produce, if it were to be carried out, which demonstrates the lack of support for the decisions of the Secretaría Técnica Nacional Ambiental on the matter (a topic that is distinct from the basis of the decree declaring the project of national convenience, which is addressed in another section of this judgment). Thus, the referred resolutions of the Secretaría Técnica Nacional Ambiental lack reasoning and cause regarding the assessment of the social component, which affects an inadequate determination of the cost-benefit balance of the Crucitas mining project and, for this reason, they become null, since this is an essential aspect that must be considered in the granting of environmental viability. This latter point is what determines the impropriety of Asocrucitas' allegations, because even though the expectations held by the workers who make up that association are understandable, the truth is that the development of the zone and the improvement of their existential conditions do not necessarily depend on the development of the Crucitas Mining Project, but rather that the attraction of other types of companies through the improvement of roads, services, and through the elevation of the labor capabilities of the area's inhabitants can be carried out by the State without the need for Industrias Infinito's participation.\n\nXIX- REGARDING THE LACK OF SIGNATURE OF A CHEMICAL ENGINEER ON THE FLOW DIAGRAMS.\n\nOn this topic, it must be said that in this matter it has been demonstrated that the flow diagrams describing the project's chemical process lacked the signature and seal of the Chemical Engineer in charge of the process. Such circumstance was confirmed by witness Orlando Porras Mora (Chemical Engineer) who had before him the plates contained in Volume I of the environmental impact study. The flow diagrams were prepared by the company in 2002, therefore, they had to meet the requirement stated in Articles 18, 19, and 20 of Ley 6038, which was not rebutted by the defendants, even though a Decreto N° 35695-MINAET was invoked, published in January 2010, because that requirement was demanded by the Law in force at the time the referred plates were prepared. The plans provided by the representation of Industrias Infinito as evidence for better provision do not have the virtue of correcting this defect, since the mentioned requirement was omitted at the time and was thus approved by SETENA, a violation that affected resolution No. 3638-2005 and 170-2008-SETENA by omitting in its assessment compliance with the legal provision of the Colegio de Ingenieros Químicos, which had a substantive impact insofar as the flow diagrams contained sensitive information such as mass and energy balances, an aspect that the defendants also failed to rebut in this process.\n\nXXX- REGARDING THE PROTECTION OF FOREIGN INVESTMENT AND LEGAL CERTAINTY.\n\nDuring the stage of receiving expert witness testimony, the representation of Industrias Infinito posed questions regarding the attraction of foreign investment, a topic that was revisited during the closing arguments stage, when reference was made to the Environmental Cooperation Agreement between the Government of Costa Rica and the Government of Canada (Law No. 8286) and the Agreement with Canada on reciprocal promotion and protection of investments (Law No. 7870). On this matter, it is only necessary to indicate that, given the differentiated jurisdictional scope between the constitutional jurisdiction and the administrative litigation jurisdiction, no uncertainty can be generated by the fact that violations of fundamental rights are not found in one while illegalities of administrative actions are found in the other. In that sense, what is resolved in this venue does not contradict in any way what has been established by the Constitutional Chamber (Sala Constitucional), since this Tribunal and that Chamber issue their rulings in proceedings with different objects, as has already been explained. Furthermore, every businessperson or investor, national or foreign, has the certainty that if they comply with the regulatory requirements, they will be able to carry out their activity, but that if they do not comply, they will not be able to develop it. In that sense, this judgment only serves to reinforce the certainty of businesspeople and investors regarding what they must abide by. Legal certainty or foreign investment cannot be invoked to attempt to maintain completely illegal administrative conduct in force. The latter also derives from the aforementioned Laws 7870 and 8286. The former provides that between Costa Rica and Canada, investments must conform to the Law, which did not occur with what was sought by Industrias Infinito. Furthermore, Law 8286 establishes that environmental regulations cannot be attenuated in order to promote trade, which demonstrates the preponderance that environmental protection holds for Costa Rica and Canada. In that sense, what is decided here, insofar as it implies the nullity of illegal actions and to the extent that the conduct subject to the proceeding is subjected to the regulations related to environmental protection, in no way undermines legal certainty nor negatively affects foreign investment, particularly that which originates from Canada.\n\nXXXI- REGARDING THE POLITICAL OR IDEOLOGICAL CONNOTATIONS OF THIS PROCEEDING.\n\nIndustrias Infinito has insisted that this is a trial of Law, which cannot be decided according to conflicting ideological or political positions. In relation to this argument, it can only be said that the defendant company is correct, and that it is precisely in strict observance of the Costa Rican legal system that the illegality of various administrative conducts has been determined.\n\nXXXII- REGARDING THE PRINCIPLE OF REAL TRUTH AND DUE PROCESS\n\nThe defendants argue that during the debate there was an abuse of the principle of real truth. In this regard, the principle of real truth cannot be rigidly applied, much less subordinated, due to the nature of the issues discussed in this jurisdiction, whose purpose is the legality control of all administrative actions. All the same, this Tribunal must be emphatic in pointing out that due process and the right of defense of the parties were guaranteed at all times. In this sense, it is worth recalling that with the intention of avoiding leaving the parties defenseless, as well as resolving any aspect that could invalidate the proceeding or affect its continuity, the Tribunal, at the beginning of the oral and public trial, granted a hearing to all intervening subjects so that at that procedural moment they could express whatever they deemed pertinent. Nonetheless, none of the parties indicated the existence of defects or flaws capable of producing nullity or defenselessness. Likewise, it must be borne in mind that in this proceeding, the pre-trial motions were resolved, the parties were heard in their opening arguments, a hearing was granted on the new facts formulated, evidence and counter-evidence of those facts were received, a hearing was granted when evidence for a better resolution was proposed and a ruling was made on that evidence, extensive questioning was allowed during the debate, objections to the questions were heard, those objections were resolved, documentary evidence was permitted to be incorporated through expert witnesses, the appeals for revocation filed during the debate were resolved, a reasonable period of one day was granted for the parties to outline their conclusions, the necessary recesses were granted during questioning and conclusions, and in general, the Tribunal at all times sought to maintain procedural balance, procedural good faith, and the transparency of actions, all in compliance with the principles of orality, concentration of acts, and adversarial process as instruments for ascertaining the real truth of the facts, as ordered by Article 85 of the Administrative Litigation Procedure Code (Código Procesal Contencioso Administrativo).\n\nXXXIII- REGARDING THE MANAGEMENT OF FACTS AND CONCLUSIONS\n\nIn this matter, the defendants have questioned with unusual insistence the facts and the conclusions formulated by their counterparts. On this particular point, there is no alternative but to indicate that there is no provision in our Administrative Litigation Procedure Code that obliges the parties and the Judge to adjust the questioning of witnesses, expert witnesses, and experts to the faithful and exact formulation of the facts as they were formulated in the respective complaints and answers. Due to the very dynamics of oral hearings, it is more than logical and reasonable that during questioning the parties do not strictly adhere to the formulation of their facts, especially in matters such as this one, where environmental issues are debated and discussed, requiring extensive inquiry for their correct determination. And the same must be said regarding the conclusions that the parties may deliver at the end of the trial stage, given that the only control the Judge must exercise is to not allow actions or the introduction of probative elements during that phase, as there is a specific moment for that. It is reiterated that there is no provision in the Administrative Litigation Procedure Code that obliges the parties to conclude exclusively based on what was raised in the written stage of the proceeding, an interpretation that is not only absurd but also undermines any model of justice based on the principle of orality, rendering it ineffective. The limits of the proceeding are defined by the claims, so an action, a question, or a conclusion that does not vary the claim cannot generate any nullity or defenselessness, because ultimately the facts and the law are defined by the Judge in the judgment. In reality, challenges like these evidence attempts to obstruct what truly matters in any administrative litigation proceeding, which is undoubtedly the ascertainment of the real truth, a principle of maximum value that allows the Adjudicator to make effective the subjection of all to the Rule of Law.\n\nXXXIV- REGARDING THE WITNESSES HEARD IN THE DEBATE\n\nThe defendants and their coadjuvant question the quality of the plaintiffs' expert witnesses, indicating that their declaration was not based on a prior report, that they issued unsupported, alarmist opinions, and that none was present in the project area, all of which, in their opinion, affected the credibility of the deponents proposed by the plaintiffs. In this regard, the Tribunal finds such challenges to be unfounded and rejects them. The conclusiveness, credibility, and relevance of the evidence are assessed by the Judge according to the rules of sound criticism (sana crítica), and in this matter, all the expert witnesses who gave their testimony in this oral and public trial were duly accredited by the Tribunal itself and by the parties. It was found that all of them, both those of the plaintiffs and those of the defendants, proved to be qualified experts in their corresponding disciplines and clearly set forth their technical opinions on each of the subject matters. These reasons are deemed sufficient to take their statements into account in this proceeding.\n\nXXXV- REGARDING DAMAGES (DAÑOS Y PERJUICIOS).\n\n\"The State shall procure the greatest well-being to all the inhabitants of the country (...). Every person has the right to a healthy and ecologically balanced environment. Therefore, they are entitled to denounce acts that infringe upon that right and to claim compensation for the damage caused. The State shall guarantee, defend, and preserve that right. The law shall determine the corresponding responsibilities and sanctions.\"\n\nIn our Political Constitution (Constitución Política), Article 50 contains several presuppositions that must be addressed in the legality review carried out by this Tribunal regarding the plaintiffs' claims for damages (daños y perjuicios) caused by the actions alleged as null in this proceeding: the standing (legitimación) of the party filing suit, who claims the damage; that the State must guarantee that right; and that, upon prior review according to law, the existence of liability and the corresponding sanctions shall be determined.\n\nRegarding the standing held to support the claims:\n\nRegarding the plaintiff Apreflofas, a preservasionist association for wild Flora and Fauna, it alleges suffering a moral damage (daño moral), \"due to the frustration of seeing the destruction of Crucitas,\" and quantifies it in the amount of two hundred thousand colones.\n\nRegarding moral damages for legal entities, there are numerous resolutions from both the First Chamber (Sala Primera) and the Administrative Litigation Tribunal that develop the topic, and we take the liberty of citing number 36-2010, from section VIII of this Tribunal, which states:\n\n\"II.3)- REGARDING THE AVAILABILITY OF MORAL DAMAGE FOR LEGAL ENTITIES: Moral damage is divided into subjective moral damage (daño moral subjetivo) and objective moral damage (daño moral objetivo). As for the subjective, it refers to the extra-patrimonial, incorporeal damage caused to the individual that affects the intangible assets of the personality, such as freedom, honesty, good name, health, honor, psyche, physical integrity, intimacy. It refers, then, to the sadness, pain, physical or psychological suffering, anguish, anxiety, insecurity, affliction, despondency, loss of the satisfaction of living, despair, caused by the harmful act. As for objective moral damage, it is that which injures an extra-patrimonial right with repercussions on the patrimony, generating economically assessable consequences (See in that sense the judgment of the First Chamber of the Supreme Court of Justice, number 112 of 14:15 hours on July 15, 1992), and it is up to the petitioner to prove it, accrediting in the record what expenses or losses they suffered as a result of the moral affectation. As for subjective moral damage, a simple presumption of man is sufficient to demonstrate it, and the judge, as an expert of experts, is capable of determining its amount.\"\n\nRegarding the moral damage claimed, according to the statements outlined in the complaint, they refer specifically to a subjective moral damage, alleging frustration at seeing the destruction of Crucitas. It must be clear that, as it is a legal entity, the moral damage that could be claimed is the objective, not the subjective one. The objective occurs when the extra-patrimonial interest sphere of the individual is injured, when economically assessable consequences are generated—such as the case of the professional who, due to the attributed act, loses their clientele—which means it can and must be quantified, and it is possible to distinguish it from subjective moral damage or damage of affection. This conceptualization aims to separate the damage suffered by the individual in their social consideration (good name, honor, honesty, etc.) from that suffered in the individual field (affliction for the death of a relative), thus one refers to the social part and the other to the affective part of the patrimony. From the analysis of the claims, the plaintiff alleges suffering—subjective moral damage—which is not admissible for legal entities, as that type of damage refers to the inner sphere of the natural person: pain, worry, despondency, emotional affectation, all produced by an act inherent to the human being, emotions that a legal fiction cannot suffer. These cannot be affected in their subjective sphere, as they do not possess emotions or suffering. In accordance with the foregoing, the plaintiff Apreflofas, as a legal entity, lacks the necessary standing to claim subjective moral damage; it can only claim objective moral damage, but this is not the damage claimed in this case. Therefore, the defense of lack of active standing, specifically regarding the damages, must be accepted.\n\nIn the case of Jorge Lobo.\n\nThe first element of analysis must concern the standing held by the plaintiff Jorge Lobo regarding his claims for indemnification for damages (daños y perjuicios) caused by the challenged actions. In accordance with the aforementioned constitutional provision, every person is entitled to denounce environmental damage and claim its reparation. Environmental protection enjoys broad procedural standing, as it refers to a third-generation right, dealing with diffuse interests or popular action. This allows, under the first presupposition, a citizen to take action both in their own name, to seek individual compensation, and to take action on behalf of the community, which constitutes, according to doctrine, the reparation of environmental damage in its pure state. Collective environmental damage can be claimed by any person, on behalf of the community, in order to achieve the reparation of the environmental damage. In addition to the foregoing, numeral 10, subsection c) of the Administrative Litigation Procedure Code establishes active standing for those invoking the defense of diffuse and collective interests. The Constitutional Chamber has ruled on this point:\n\n\"In environmental law, the procedural prerequisite of standing tends to extend and broaden in such a dimension that it necessarily leads to the abandonment of the traditional concept. It must be understood that, in general terms, any person can be a party and that their right does not emanate from property titles, rights, or concrete actions that they could exercise according to the rules of conventional law. Rather, their procedural action responds to what modern authors call the diffuse interest, through which the original standing of the legitimate interested party, or even of the simple interested party, is diffused among all the members of a certain category of persons who are thus equally affected by the illegal acts that harm them. In the case of environmental protection, the interest, typically diffuse, that empowers the subject to take action is transformed, by virtue of its incorporation into the list of human rights, into a true 'reactional right,' which, as its name indicates, empowers its holder to 'react' against the violation originating from illegitimate acts or omissions. (...) That concept of 'diffuse interests' aims to develop a form of standing which, in recent times, has challenged one of the traditional principles of standing and which has been gaining ground, especially in the field of administrative law, as the latest, novel but necessary, extension so that this oversight becomes increasingly more effective and efficient.\n\nDiffuse interests, although difficult to define and even more difficult to identify, cannot be in our Law—as this Chamber has already stated—merely collective interests; nor so diffuse that their ownership is confused with that of the national community as a whole, nor so concrete that in relation to them, determined or easily identifiable persons, or personalized groups, are identified, whose standing would derive, not from diffuse interests, but from corporate interests or those that pertain to a community as a whole. It is, then, a matter of individual interests, but at the same time, diluted in more or less extensive and amorphous groups of people who share an interest and, therefore, receive a benefit or harm, current or potential, more or less equal for all. Hence, it is rightly said that they are equal interests of the groups of people who find themselves in determined situations and, simultaneously, of each one of them. That is to say, diffuse interests partake of a dual nature, since they are at once collective—being common to a generality—and individual, for which reason they can be claimed in such a character. (...) Thus, in the matter of Environmental Rights, standing corresponds to the human being as such, for the injury to that fundamental right is suffered by both the community and the individual in particular.\"\n\nVoto 2237-96 of the Constitutional Chamber, at fourteen hours and fifty-one minutes on May fourteenth, nineteen ninety-six.\n\nThe plaintiff Jorge Lobo, in his claims 3 and 5, requests the integral reparation of all environmental impacts or damages caused by the adoption of actions violating the legal system and their consequent execution. Under this perspective, he has active standing, in the opinion of this Tribunal, under a collective interest to validly take action in this proceeding.\n\nRegarding the applicability of damages (daños y perjuicios):\n\nEnvironmental damage affects biodiversity, ecosystems, and even health. It can originate from different sources; however, what is of interest to analyze in this proceeding is that generated by human intervention. That damage can be caused individually or by a plurality, the latter condition giving rise to the liability of each of the agents that cause it or make it possible. It can originate from private conduct or from the State and its institutions, the latter by action or omission, licit or illicit, or be produced from a single conduct or a plurality thereof, carried out simultaneously or over time. In our country, flora and forest resources have been declared of public interest, pursuant to numerals 1 and 3 of the Wildlife Conservation Law and numeral 1 of the Forestry Law (Ley Forestal), which establishes as an essential and priority function of the State to ensure the conservation, protection, and management of natural forests.\n\nFor the specific case, pursuant to the foregoing considerandos, the following administrative actions have been declared null: resolution No. 3638-2005-SETENA, in which environmental viability (viabilidad ambiental) is granted; No. 170-2008-SETENA, in which the modification of changes proposed in the project is approved; R-217-2008-MINAE, in which the mining concession is granted; 244-2008-SCH, issued by the National System of Conservation Areas (Sistema Nacional de Áreas de Conservación), in which the land-use change (cambio de uso del suelo) is approved, authorizing the cutting and utilization of protected species, the cutting and utilization of trees in protection zones, specifically the cutting of 12,391 trees in 262.88 hectares (according to the environmental viability resolution - proposed changes -, 227.6 hectares); and Executive Decree No. 34801-MINAET, in which the Crucitas Mining Project was declared of public interest and convenience. Consequently, it is essential to determine whether such actions caused the environmental damages requested by the plaintiff Jorge Lobo. It was proven in this proceeding that resolution 244-2008-SCH authorized the cutting and utilization of trees, a resolution whose execution began in October 2008. Specifically, clearcutting (tala rasa) was carried out in the areas designated for the development of the Crucitas mining project, beginning on a Friday and being suspended the Monday of the following week (as stated in her declaration during the oral and public trial by expert witness Sandra Arredondo, who was the project's environmental regent), resulting in the clearcutting of a large number of trees, an action carried out by persons contracted by Industrias Infinito and protected by resolution 244-2008. Even though it was not possible to determine in the trial the exact number of trees nor the amount of land, nor the exact location in the field of which sector of the project was cut, the existence of said damage was proven during the proceeding, insofar as the cutting was carried out under the protection of an action declared illegal here, a damage that in this Tribunal's judgment affected the flora, fauna, landscape, soil, and air, that is, altering an ecosystem in its natural functions. Having said this, it remains to define which procedural subject or subjects must bear this environmental damage.\n\n**In the foregoing recitals**, the participation in the acts denounced herein was demonstrated, such that both the company Industrias Infinito S.A. and the administrative body that granted the authorization – 244-2008 – and the body that issued the decree of national convenience, which allowed the adoption of the cited resolution, are jointly and severally liable for the environmental damage caused by the clearcutting (tala rasa) carried out. As a consequence of the foregoing, it is appropriate to order the defendants: Industrias Infinito S.A., the National System of Conservation Areas and the State, to fully restore (reparación integral) the affected areas on the properties of the company Industrias Infinito S.A., understood as the ecological or environmental damage caused by the execution of the clearcutting (tala rasa) authorized by resolution 244-2008-SCH, declared null here. Given that the trial did not determine how much was cut and in which sector, the matter is referred to the judgment enforcement proceedings for determination of the damages, the measures to be taken to repair said damage, and to set the sum necessary for such restoration (reparación). For this purpose, the following shall be considered: the environmental damage suffered shall be determined by expert evidence, which shall contain the necessary recommendations for the full restoration (reparación integral) of the affected area; likewise, the sum necessary for the full restoration (reparación integral) of the impacted area shall be quantified by expert evidence, and once set by the enforcing judge, although the plaintiff Jorge Lobo has standing to sue, he does not have standing to administer the sum set for care and restoration (reparación); said sum must be deposited into the State's single treasury account, in a client account created specifically for this purpose, which must be identified with the purpose and destination for which it was created, and the account holder shall be the Ministry of Environment, Energy and Telecommunications, which must allocate the set sum exclusively to execute the restoration (reparación) and remediation works in the affected area. Regarding the co-defendants: the State and SINAC, the Ministry of Finance must make the budgetary provision for the sums eventually established in the judgment enforcement proceedings, to guarantee the budgetary allocation to make said restoration (reparación) effective. Furthermore, the company Infinito S.A. must cooperate with and permit all activities aimed at the restoration (reparación) ordered herein. It is ordered that this judgment be communicated to the Ministry of Finance, the General Public and Environmental Services Area of the Office of the Comptroller General of the Republic, the Agrarian-Environmental Law Area of the Office of the Attorney General of the Republic, and the Office of the Ombudsperson, so that they may exercise oversight, control, and follow-up of the damage restoration (reparación) process, according to their competencies.\n\n**XXXVI- Regarding the remaining claims of Jorge Lobo Segura.**\nThe objection of lack of right in relation to the other claims in the lawsuit of Jorge Lobo Segura (numbered as 2 and 4) is upheld, as they found no support in our legal system. In this regard, it must be noted that this plaintiff does not have the right for this court to establish limitations and rules for the Executive Branch regarding the declaration of national convenience of projects, since those conditions are already established by regulation. The same applies to the request to order the State to refrain from adopting or executing conduct potentially harmful to the diffuse interests claimed by the plaintiffs, as the generality and abstraction of what was requested makes it unfeasible to recognize a right in the sense claimed.\n\n**XXXVII- ON THE OBJECTIONS.**\n**On the lack of active and passive standing (legitimación activa y pasiva) in relation to the claim for nullity of the contested acts.**\nThis objection is rejected in both its active and passive aspects, by virtue of the fact that doctrine and legislation are unanimous in recognizing the standing (legitimación) of any individual to take judicial action with the aim of demanding the defense of diffuse interests, as is the case with environmental rights. This is established by Article 10 of the Code of Contentious Administrative Procedure, in relation to section 105 of the Biodiversity Law, in close relation to Article 50 of the Political Constitution. Likewise, it is rejected in its passive aspect because the acts that were indeed susceptible to challenge were issued by State bodies that are duly represented in this proceeding. In the case of Industrias Infinito, being the legal entity that had a direct interest in the acts contested here, it was appropriate for it to be sued in this matter.\n\n**On the lack of active standing (legitimación activa) of Apreflofas to claim subjective moral damages.**\nThis objection must be upheld, given that, as explained in the preceding analysis, said association lacked standing (legitimación) to claim subjective moral damages.\n\n**On the lack of active and passive standing (legitimación activa y pasiva) in relation to the claim for damages (daños y perjuicios) filed by Jorge Lobo Segura.**\nThis objection, in both its passive and active forms, must be rejected, given that the standing (legitimación) to claim environmental damages is broad and diffuse, and in this case, the plaintiff's claim was appropriate in the terms explained previously.\n\n**On the current interest.**\nThe objection of current interest must be rejected, given that the contested acts remain in force to date, and therefore the plaintiffs’ interest in seeking their nullity remains, as well as the environmental damages arising from the illegality of those acts.\n\n**On the lack of right.**\nFinally, the lack of right must be denied in relation to the annulment claims and the claim for compensation for environmental damages, as set forth in this judgment, and upheld in relation to the other claims of Jorge Lobo Segura's lawsuit (numbered as 2 and 4), as they found no support in our legal system.\n\n**XXXVIII- ON THE PRECAUTIONARY MEASURE (MEDIDA CAUTELAR) DECREED IN THIS PROCEEDING AND THE REQUEST FOR ITS LIFTING.**\nThe precautionary measure (medida cautelar) ordered in this proceeding must remain in place. The precautionary measure (medida cautelar) was granted in this proceeding, suspending the clearcutting (tala rasa), and considering that this collegial body has declared null resolution 244-2008-SCH, issued by the ARENAL-HUETAR NORTE CONSERVATION AREA, which authorized the land-use change (cambio de suelo), and the cutting of 12,391 trees, distributed over 191.77 hectares of forest cover (bosque), 66.94 hectares of agricultural land without forest, and the cutting of 4.17 hectares of planted areas, for a total of 262 hectares and 57 square meters to be cut, and having ordered the defendants to fully restore (reparación integral) the damage caused, and precisely ordering that in the judgment enforcement proceedings the cut areas be determined, as well as the restoration (reparación) measures, the request for the lifting of the Precautionary Measure (Medida Cautelar) is entirely improper. It is important to note that precautionary measures (medidas cautelares) are intended to protect the object of the proceedings, as well as to prevent damages of difficult or impossible repair that a certain action or omission may cause; in the specific case, the execution of the formal administrative action, through resolution 244-2008 of the System of Conservation Areas, even though it was suspended, its initial execution permitted the clearcutting (tala rasa), and thus caused the damage already cited in the foregoing recital in the affected areas, a situation that was precisely seen and addressed as of April 16, two thousand ten, when a provisional measure (medida provisionalísima) was ordered by this Court, ordering the suspension of the authorized cutting, and in the judgment of April 20, 2010, the suspension of the clearcutting (tala rasa) was definitively upheld, in order to protect \"the habitat and ecosystems of many living beings, in addition to the trees,\" a precautionary measure (medida cautelar) that was in turn confirmed by the Court of Appeals, rulings for which this Court finds no grounds to vary, coupled with the fact that for this decision-making body, during the oral and public trial, it could be extracted from the evidence produced not only the damage caused by the cutting carried out, but also the potential damage that the ecosystem of the area would suffer, precisely because of the uncertainty regarding the species existing in the area, which of them were prohibited, and which were not, an element that is missing in the cited resolution 244-2008, which directly impacts the forest recovery plan.\n\n**XXXIX- ON THE DECISION TO RECORD THIS JUDGMENT IN THE NATIONAL MINING REGISTRY (REGISTRO NACIONAL MINERO).**\nHaving annulled in this proceeding the resolution that granted the mining exploitation concession, it becomes imperative to order that this decision be communicated to the National Mining Registry (Registro Nacional Minero), as expressly provided by Article 109 of the Mining Code.\n\n**XL- ON THE NOTIFICATIONS TO BE MADE OF THIS JUDGMENT.**\nIn the present case, such significant illegalities have been detected that this Court deems it pertinent to communicate the judgment to other public bodies, so that each of them may determine if, apart from the nullities declared by this jurisdictional body, other responsibilities on the part of persons whose actions have been relevant to the production of the administrative conduct declared null herein are applicable. First, it is ordered that this judgment be communicated to the Minister of Environment, Energy and Telecommunications, so that within that ministry the corresponding disciplinary proceedings may be initiated against Eduardo Murillo Marchena, José Francisco Castro Muñoz, and Cynthia Cavallini Chinchilla. On this subject, it is necessary to indicate that for this Court, the intervention of these persons, in their capacity as public officials, whether from the National Technical Environmental Secretariat (Secretaría Técnica Nacional Ambiental) (the first of them) or the Directorate of Geology and Mines (the second and third), in the production of administrative acts declared null here for their overt illegality, constitutes sufficient merit to carry forward the necessary proceedings to determine whether they incur in any form of personal liability for these acts. Furthermore, this judgment must be communicated to the Public Prosecutor's Office (Ministerio Público). In relation to this point, it is necessary to indicate that in the present case, something exceptional occurs: the various illegalities detected and the nullities declared are all coincident in the sense that they tended toward the approval of the Crucitas mining project, and several of them were adopted while an executive decree of moratorium on open-pit metallic gold mining was in force, all of which makes it feasible to think of a possible concurrence or orchestration of wills to carry forward this mining project, by any means. Therefore, given their intervention in the development of the conduct declared illegal and annulled here, it is pertinent to communicate what has been resolved to the Public Prosecutor's Office (Ministerio Público) so that it may determine whether or not it is appropriate to pursue a criminal case against any of the following persons: Oscar Arias Sánchez, Roberto Dobles Mora, Sonia Espinoza Valverde, Eduardo Murillo Marchena, José Francisco Castro Muñoz, Cynthia Cavallini Chinchilla, Sandra Arredondo Li, and Arnoldo Rudín Arias. It is necessary to remember that the President of the Republic and the respective Minister have the duty, established in Article 140, subsection 3) of the Political Constitution, to ensure the exact enforcement of the laws; thus, given that Executive Decree No. 34801-MINAET is openly illegal and was signed by Oscar Arias Sánchez and Roberto Dobles Mora, this is what gives rise to the possibility that some criminal liability may attach to them. Likewise, Messrs. Arias Sánchez and Dobles Mora are the ones who signed resolution R-217-2008-MINAE, by which the mining concession was granted to Industrias Infinito, an act also illegal and declared null in this ruling. For their part, Sonia Espinoza Valverde and Eduardo Murillo Marchena, acting as officials of the National Technical Environmental Secretariat (SETENA), participated in the environmental evaluation of the changes proposed to the Crucitas mining project and did not observe limitations that were set by the Directorate of Geology and Mines, which motivates the decision that their conduct be examined by the Public Prosecutor's Office (Ministerio Público). Furthermore, in the case of these two persons, their participation in the issuance of official letter ASA-013-2008-SETENA must be recalled, which, although it is true is an act that ultimately was not susceptible to challenge in this proceeding, it is also true that it was the subject of discussion, during which the statement by expert witness Marta Elena Chaves Quirós came to light, who deserves full credibility and stated in court that she did not participate in the environmental evaluation of the changes proposed to the Crucitas mining project, despite which Espinoza Valverde and Murillo Marchena stated that she did participate, a situation that could be clarified in a criminal court, should there be merit for it. Regarding Sonia Espinoza Valverde in particular, it must be recalled that it became necessary in this proceeding to order her arrest and presentation, because, after taking note of the statements by the lawyers of the plaintiff parties and the active coadjuvant, as well as after assessing what was recorded by the Office of Locations and Summonses of Pavas, it was considered reasonably possible that she was hiding to avoid being served by summons, a situation that this judging body considers must be brought to the attention of the Public Prosecutor's Office (Ministerio Público). In relation to José Francisco Castro Muñoz and Cinthya Cavallini Chinchilla, it must be recalled how the former initially claimed to be unaware of the matter regarding the mining easement (servidumbre minera) intended to be established over a public road, while the latter stated that the former was always aware of the issue, which could prove relevant for the Public Prosecutor's Office (Ministerio Público). Furthermore, Mr. Castro Muñoz, in his capacity as Director of Geology and Mines, and Ms. Cavallini Chinchilla, in her capacity as Head of the National Mining Registry (Registro Nacional Minero), participated when recommending the conversion of the concession granted to Industrias Infinito, which turned out to be something devoid of any legal viability, not only due to the inapplicability of the conversion figure, but also, among other things, for not considering the existence of a public road at the location where the tailings pond was planned to be built and for not observing that the environmental viability (viabilidad ambiental) given by the National Technical Environmental Secretariat (SETENA) to the changes proposed to the project contravened the technical limitations imposed by the Directorate of Geology and Mines itself, all of which should be brought to the attention of the Public Prosecutor's Office (Ministerio Público) for whatever it deems appropriate. Finally, in relation to Sandra Arredondo Li and Arnoldo Rudín Arias, it must be indicated that she was the environmental manager (regente ambiental) of the project from 2007 until mid-2010, while he was the legal representative, such that they participated in the decision-making by the company, which, during that period, carried out actions inducing the Administration into error, such as, for example, insisting on extracting material below the technical limit of seventy-five meters above sea level, and also in managing a mining easement (servidumbre minera) to permanently occupy a public road, all of which is pertinent to be examined by the Public Prosecutor's Office (Ministerio Público). Regarding this communication to the Public Prosecutor's Office (Ministerio Público), it is necessary to make clear that this Court is obligated to carry it out, pursuant to Article 281 of the Code of Criminal Procedure, as these are conducts which, viewed individually, would allow for the thought of the possibility of criminal acts in relation to public duty duties, among others. But, moreover, as already indicated, such a quantity of illegalities, all concurrent and coming from officials of various bodies and at the most varied levels, including senior political authorities, combined with the actions of the company itself, also makes it feasible to think of the possibility of some orchestration of wills to achieve the start-up of the Crucitas mining project by any means necessary. This possibility is appreciated not only because of the illegal actions themselves, but because of the context in which they occurred: the majority of the acts were issued while a moratorium decree on open-pit metallic mining activity was in force; this moratorium was lifted during the Arias Sánchez administration from 2006 to 2010; the decree declaring national convenience was issued in that same administration; without that declaration, the cutting could not be carried out; without that cutting, the project could not proceed; all of which justifies that it is the Public Prosecutor's Office (Ministerio Público) that determines whether or not there is merit to conduct a criminal investigation into this matter. Lastly, this judgment must be communicated to the Disciplinary Office (Fiscalía) of the Bar Association (Colegio de Abogados), to investigate the conduct of Licentiate Sergio Artavia Barrantes, during the trial held on the occasion of this process. Licentiate Artavia Barrantes, from the beginning of the trial, unjustifiably attacked the Court, labelling it biased in certain moments when it simply complied with the legal mandate to ascertain the real truth of the facts. Moreover, he was clear in branding the Court as a torturer for having ordered the arrest of expert witness Sonia Espinoza Valverde, whom he proceeded to defend despite not being her lawyer, to the point that he supported a motion for revocation filed by Licentiate José Manuel Echandi Meza against the decision to arrest and present said declarant, a motion which, incidentally, despite being signed by Licentiate Echandi Meza, bears the signature \"Artavia & Barrantes\" in the header of the document transmitted via fax (see the piece from folio 2296 to folio 2299 in volume IV of the judicial file). This defense of witnesses carried out by Licentiate Artavia Barrantes, who was a representative of a party in the trial, reached such a point that even, as he himself stated, he took the liberty of addressing concerns of the witness Sonia Lidia Cervantes Umaña, even though he had previously withdrawn her as his witness and she had been ordered as a court-ordered witness (para mejor resolver) by the Court. And citing that person's doubts, he questioned whether the Court would permit her to testify freely or whether it would give her degrading treatment by arresting her and making her spend the night in a cell, which we consider are tendentious and disrespectful statements that must be known by the Disciplinary Office (Fiscalía) of the Bar Association (Colegio de Abogados), as they attempt to portray this jurisdictional body as the perpetrator of arbitrariness in the treatment of witnesses, injuries to fundamental rights that, by the way, were dismissed by the Constitutional Chamber (Sala Constitucional) in the case of Sonia Espinoza Valverde, according to judgment 2010-18329, of 16:14 hours on November 2, 2010, by which a writ of habeas corpus filed on behalf of said witness was denied. Thus, all actions of Licentiate Artavia Barrantes must be brought to the attention of the Disciplinary Office (Fiscalía) of the Bar Association (Colegio de Abogados), so that it may determine whether or not he has incurred in any violation of the Code of Ethics of said corporation.\n\n**XLI- ON THE CONDUCT OF ATTORNEY MAURICIO CASTRO LIZANO IN THIS PROCEEDING.**\nEven though this Court has decided not to make any particular communication regarding Attorney Mauricio Castro Lizano, it does deem it necessary to make known that this is because the representation of the State changed its course of conduct from the moment Attorney Susana Fallas Cubero joined the trial. Notwithstanding this, it is pertinent to express that this jurisdictional body did not overlook the way in which, during the hearings, Attorney Castro Lizano coordinated, through papers, verbal communications, or even through signals, with the representation of Industrias Infinito on the most diverse topics, including whether questions should be objected to or revocations filed. In that sense, it gave the impression that Attorney Castro Lizano was not solely conducting the technical defense of public interests, but was also giving space to the defense of the company's private interests. And it is worth recalling here that the Office of the Attorney General of the Republic (Procuraduría General de la República), given the functions assigned to it, cannot divide itself and defend in court intransigent positions that deny what said body stated in its opinions. Such duality is not possible, because the Office of the Attorney General of the Republic (Procuraduría General de la República) must assume objective positions in contentious administrative proceedings, such as those it assumes in constitutional proceedings. Returning to the specific case, it should be noted that it was not until after Attorney Fallas Cubero joined the trial that Attorney Castro Lizano objected to a question from Industrias Infinito, which draws a great deal of attention. Finally, it should be indicated that during the closing arguments stage, what seemed to be an inadequate identification by Attorney Castro Lizano with the particular interests of Industrias Infinito was perceived, because when the representative of the company intended to present various materials, the referenced state representative defended the importance of the samples for the company's theory of the case even before the company's lawyer presented it.\n\nDespite that, it is the criterion of this Court that, due to the participation of Licenciada Fallas Cubero, it finds no reason to communicate this judgment to any body with respect to the actions of Licenciado Castro Lizano, without prejudice to whatever the plaintiff parties deem pertinent.\n\nThesis in Administrative Law Volume 2, p.574 Eduardo García de Enterría, (Course in Administrative Law, 2008, Volume I, p.630. 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by the Constitutional Chamber in the Crucitas case\",\n \"Unchallengeability in the jurisdictional venue of a criterion issued regarding a mining concession\",\n \"Nullity of administrative acts related to the Crucitas case\",\n \"Nullity of the constitution of a permanent occupation mining easement (servidumbre minera de ocupación permanente) on municipal-owned land due to absence of release from public domain (desafectación)\",\n \"Nullity of constitution over a cantonal public road due to absence of release from public domain\",\n \"Nullity of an administrative resolution approving changes to a mining project without requesting the corresponding evaluation\",\n \"Nullity of an administrative resolution approving changes to a project without requesting the corresponding evaluation\",\n \"Nullity of a resolution approving changes to a mining project without requesting the corresponding environmental study\",\n \"Nullity of resolutions and Decree related to the Crucitas case\",\n \"Expert opinions do not remedy SETENA's omission to request an environmental impact study and analyze the changes to the Proyecto Minero Crucitas\",\n \"Breach due to non-application of the moratorium decree on mining activity and conversion of the administrative act\",\n \"Defects in the declaration of public interest and national convenience of the Proyecto Minero Crucitas\",\n \"Violation of procedure, absence of a balance between benefits and costs, and lack of substantiation of the decree in the Crucitas Case\",\n \"Sentencing of Industrias Infinito, the State, and SINAC to comprehensive reparation for the damages caused in the Crucitas case\",\n \"Considerations on the depth of extraction and the impact on the interior aquifer in the Crucitas case\",\n \"Correct application does not undermine legal certainty nor negatively affect foreign investment\",\n \"Dismissal or declaration without merit of an amparo appeal does not generate it\",\n \"Distinction from the control exercised in the constitutional jurisdiction\",\n \"Favorable criteria brought into the judicial process do not substitute its technical function\",\n \"Duty of the Dirección de Geología y Minas and SETENA to assess their criteria reciprocally\",\n \"Sentencing of Industrias Infinito, the State, and SINAC to comprehensive reparation for the environmental damages caused\",\n \"Analysis regarding the burden of proof and the oversight role of the contentious-administrative judge\",\n \"Analysis regarding its public domain (demanial) nature\",\n \"Impossibility of disregarding what was resolved by the Dirección de Geología y Minas on environmental protection matters in relation to mining activity\"\n ],\n \"thesaurusPath\": [\n \"CENTRO DE INFORMACION JURISPRUDENCIAL\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Minero\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Minero||Concesión minera\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Minero||Concesión minera||Concesión de explotación minera\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Administrativo\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Administrativo||Acto administrativo\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Administrativo||Acto administrativo||Nulidad e ineficacia del acto administrativo\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Administrativo||Acto administrativo||Vicios del acto administrativo\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Administrativo||Acto administrativo||Decreto\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Minero||Organización administrativa minera\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Minero||Organización administrativa minera||Protección ambiental minera\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Procesal Contencioso Administrativo\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Procesal Contencioso Administrativo||Jurisdicción contencioso administrativa\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Procesal Contencioso Administrativo||Disposiciones generales del Derecho Procesal Contencioso Administrativo\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Procesal Contencioso Administrativo||Disposiciones generales del Derecho Procesal Contencioso Administrativo||Cosa juzgada en materia contencioso administrativa\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Constitucional\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Constitucional||Poder Ejecutivo\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Constitucional||Poder Ejecutivo||Ministerio de Agricultura y Ganadería\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Administrativo||Administración pública\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Administrativo||Administración pública||Instituto Nacional de Innovación y Transferencia de Tecnología Agropecuaria\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Ambiental\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Ambiental||Principios del derecho ambiental\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Ambiental||Principios del derecho ambiental||Principio precautorio en materia ambiental\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Ambiental||Legislación ambiental\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Ambiental||Legislación ambiental||Carga de la prueba en materia ambiental\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Procesal Contencioso Administrativo||Principios del proceso contencioso administrativo\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Procesal Contencioso Administrativo||Principios del proceso contencioso administrativo||Principio de legalidad en materia contencioso administrativa\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Administrativo||Fuentes del Derecho administrativo\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Administrativo||Fuentes del Derecho administrativo||Principio de inderogabilidad singular del reglamento\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Ambiental||Legislación ambiental||Estudio de impacto ambiental\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Minero||Organización administrativa minera||Evaluación del impacto ambiental minero\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Ambiental||Legislación ambiental||Secretaría Técnica Nacional Ambiental\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Procesal Contencioso Administrativo||Prueba en materia contencioso administrativa\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Procesal Contencioso Administrativo||Prueba en materia contencioso administrativa||Perito del proceso contencioso administrativo\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Administrativo||Acto administrativo||Conversión del acto administrativo\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Administrativo||Función pública\",\n \"CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Administrativo||Función pública||Declaratoria de interés público\",\n \"CENTRO DE INFORMacion JURISPRUDENCIAL||Derecho Administrativo||Bienes públicos\",\n \"CEN\n\nIV. PURPOSE OF THE PROCEEDING.\n\nIn this matter, the plaintiffs request that the absolute nullity of several administrative acts be declared, acts that were issued on the occasion of the mining exploitation concession application filed by the company Industrias Infinito S.A. By way of summary, the acts are as follows: 1) resolution No. 3638-2005-SETENA, through which environmental viability (viabilidad ambiental) was granted to the Crucitas Mining Project. 2) Resolution No. 170-2008-SETENA, through which the Administration approved the modification application for the Crucitas Mining Project submitted by Industrias Infinito S.A. 3) Report ASA-013-2008-SETENA, which constituted the report prior to the issuance of the aforementioned resolution. 4) Resolution No. R-217-2008-MINAE, through which the Administration converted resolution No. R-578-2001-MINAE, and granted the mining exploitation concession in favor of the company Industrias Infinito. 5) Resolution No. 244-2008-SCH, through which the Administration authorized the felling of trees on the properties of Industrias Infinito S.A. 6) Executive Decree No. 34801-MINAET, through which the Crucitas Mining Project was declared of public interest and national convenience. 7) Official letter No. DST-773-2006, through which INTA did not oppose the land-use change (cambio de uso de la tierra) on the properties of Industrias Infinito S.A. Likewise, the plaintiffs have requested the payment of damages, comprehensive reparation of environmental damages, and that the Administration be set the limits within which it must adjust its conduct, as well as the condemnation of the defendants to pay costs. In support of their claims, the plaintiffs argue that the indicated administrative acts contain a series of defects in their constitutive elements, and they reproach that a series of technical issues were not adequately evaluated or their consideration was omitted in the respective administrative procedures. The defendants, for their part, consider that the referred conduct is in accordance with the legal system, they posit that the Crucitas Mining Project is legally and technically viable, and in relation to the plaintiffs' claims, they raise the defenses of acts not subject to challenge, expiry (caducidad), res judicata (cosa juzgada), act consented (acto consentido), statute of limitations (prescripción), as well as the exceptions of lack of active and passive standing (falta de legitimación activa y pasiva), lack of current interest (falta de interés actual), and lack of right (falta de derecho). In the opinion of the Court, the claims must be partially granted, based on the following reasoning.\n\n**V- REGARDING THE DEFENSE OF RES JUDICATA (COSA JUZGADA).**\nIn the present matter, all the defendants, as well as their intervening party (coadyuvante), have raised the exception of res judicata (cosa juzgada). In unison, they have maintained—in essence—that what was raised by the plaintiffs and the active intervening party was already resolved by the Constitutional Chamber (Sala Constitucional), whose decisions—they say—produce the effect of res judicata (cosa juzgada) over this administrative contentious process. In support of the defense of res judicata (cosa juzgada), those invoking it argue that the Constitutional Chamber issued rulings 2010-06922, at 14:45 on April 16, 2010, and 2010-14009, at 13:59 on August 24, 2010, through which it ruled on the issues discussed in the process that concerns us here. They state that by virtue of the provisions of Article 13 of the Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional), what was decided in the constitutional venue is binding erga omnes and, consequently, cannot be disregarded by this Chamber. **The Court considers that this exception must be rejected.** In the first place, it should be noted that it cannot be ignored that the two rulings of the Constitutional Chamber alluded to by the defendants and the passive intervening party were **dismissals**. It is necessary to make clear here once and for all that even though ruling No. 2010-6922 partially grants the amparo (recurso de amparo) with regard to a single point (the requirement for a technical pronouncement by SENARA), the truth is that in all other respects the ruling in question dismissed the amparo action, and given that for the issuance of this judgment the SENARA issue lacks importance, for that reason resolution 2010-6922 is considered dismissive in general. Likewise, if this is considered in light of the fact that these were **amparo processes**, it is clear to this Court that what the Constitutional Chamber determined is that the conducts submitted to its knowledge in those two appeals did not imply the violation of fundamental rights of the appellants. And in that sense, this Court fully observes Article 13 of the Constitutional Jurisdiction Law, because the fact that the injury to fundamental rights of the amparo petitioners was not verified in the constitutional venue does not mean that the administrative conducts do not contain legality defects. And it is that non-affectation of fundamental rights does not follow from non-observance of legality. One and the other are different analyses, carried out from different parameters and, in the Costa Rican legal system, thanks to a matter of jurisdiction, by separate bodies. Thus, in the present case, what was resolved by the Constitutional Chamber in rulings 2010-06922 and 2010-14009, already cited, does not share identity of object, parties, or cause with what has been heard in the administrative contentious proceeding No. 08-001282-1027-CA, which is why it must be ruled out that the statements made by the Constitutional Chamber in the two aforementioned rulings generate res judicata (cosa juzgada) with respect to what this Court hears. Note that amparo 08-014068-0007-CO, which culminated with the issuance of ruling 2010-06922, was promoted by Edgardo Vinicio Araya Sibaja on behalf of the Asociación Norte por la Vida, but it cannot be overlooked that in the administrative contentious process of interest here, that organization has been an intervening party (coadyuvante), not a principal party, and Mr. Edgardo has only been the attorney-in-fact of the Association, not the appellant, as he was in the constitutional venue. On the other hand, the amparo processed as file 08-008647-0007-CO, which culminated with the issuance of ruling 2010-14009, was promoted by Carlos Manuel Murillo Ulate and Douglas Dayan Murillo Murillo, who have not appeared either as parties or as intervening parties in this administrative contentious process. Thus, there is no identity of parties between the constitutional processes and the one conducted in this venue, which, according to the provisions of Article 163 of the Civil Procedure Code, is sufficient, in itself, to rule out that what was resolved by the Constitutional Chamber in the two indicated amparos constitutes res judicata (cosa juzgada) with respect to what is decided here. But in addition, there is also no identity of object and cause between those processes and the present one, which is evident if one takes into account what is known by reason of an amparo appeal and what is resolved in an administrative contentious process. Remember that the amparo appeal is contemplated in Article 48 of the Political Constitution, where, after reserving the habeas corpus appeal to guarantee the freedom and integrity of the person, it is conceived as a means to maintain or restore the enjoyment of other **constitutional rights** or those **rights of a fundamental nature** contemplated in international human rights instruments. As can be seen, from the very Fundamental Law, constitutional and fundamental rights are distinguished from other rights, with the amparo appeal being provided only for the protection of those two. In the same sense, the Constitutional Jurisdiction Law, in its Article 2 subsection a) and in Article 29, is clear in providing that the amparo appeal is intended to guarantee fundamental rights and freedoms not protected by the habeas corpus appeal. Thus, what is determined through an amparo process is whether or not said fundamental rights were violated. What happens is that, when the Constitutional Chamber dismisses or declares an amparo appeal without merit, Article 55 of the Constitutional Jurisdiction Law becomes applicable, which establishes the following: \"*The rejection of the amparo appeal does not prejudge the responsibilities in which the author of the grievance may have incurred. The offended party or the Administration, as the case may be, may promote or exercise the corresponding actions, or apply the pertinent measures.*\" As can be appreciated, the Constitutional Jurisdiction Law itself provides for the consequences of the rejection of an amparo, and it happens that upon such an event, the decision does not prejudge other responsibilities on the part of the author of the grievance, that is, the dismissal of the appeal does not entail the non-existence of a grievance for the interested party, who may exercise other actions to try to prove it. It is here that what is contemplated in Article 49 of the Political Constitution, which creates the administrative contentious jurisdiction, acquires total relevance. By creating this jurisdiction within the chapter on individual rights and guarantees of the Magna Carta, it is clear that access to it constitutes a guarantee for the inhabitants of the Republic who seek to ensure that the Public Administration is subject to legality in its actions. In that sense, this Court considers that from the Political Constitution, an important difference is marked between the competencies assigned to the constitutional jurisdiction and the administrative contentious jurisdiction. **In both cases, what is sought—among other things—is the full subjection of public powers to the legal system, but the Constitutional Chamber must carry out this control from the perspective of fundamental rights, without being able to descend into an examination of legality once it has ruled out the violation of any fundamental right, whereas, in contrast, all the bodies that make up the administrative contentious jurisdiction are always obliged to carry out different types of analysis, from the Political Constitution down to the lowest levels of the scale of administrative normative sources, even if there is no violation of fundamental rights.** This distinction in the jurisdictional scope of each of the indicated bodies is what determines the non-existence of identity between the object and the cause of what was heard by the Constitutional Chamber in the amparo appeals already indicated and what was examined by the Administrative Contentious Court in this process. Before the constitutional jurisdiction, the aim was to guarantee the protection of fundamental rights, but before the administrative contentious jurisdiction, the aim has been to guarantee the legality of the administrative function. From that perspective, it is clear to this Chamber that the claims of the then appellants and those of the current plaintiffs differ significantly in terms of their foundation, because what was petitioned in the amparo appeals was made to depend on the declaration of injuries to fundamental rights (which did not happen), while what is sought in this process has been made to depend on the violation of legality (which has been taken as true). It is worth reiterating here that this approach finds its axis in the fact that the Constitutional Chamber, upon issuing rulings 2010-06922 and 2010-14009, declared the amparo appeals without merit, that is, it issued dismissive rulings. And this is very important to highlight in light of a precedent cited by Industrias Infinito's own representation during its closing arguments. When addressing the issue of res judicata (cosa juzgada), the defendant company invoked in its favor ruling No. 339-F-2005 of the First Chamber (Sala Primera) of the Supreme Court of Justice, at 14:45 on May 25, 2005, a resolution from which the very attorney-in-fact cited the following excerpt in debate: \"*In accordance with Article 163 of the Civil Procedure Code, judgments issued in ordinary or abbreviated proceedings, as well as those other resolutions exhaustively listed, produce the authority of material res judicata (cosa juzgada). Within this latter scenario are the estimatory judgments issued by the Constitutional Chamber, which, in light of the provisions of precept 13 of the Constitutional Jurisdiction Law, are not susceptible to discussion in other instances regarding the constitutional infraction.*\" As can be seen, what the First Chamber considered capable of producing res judicata (cosa juzgada) in accordance with Article 13 of the Constitutional Jurisdiction Law are the **estimatory** resolutions of the Constitutional Chamber, not the dismissive ones, the First Chamber also being clear in understanding that the binding erga omnes effect refers to the constitutional infraction. In other words, the argumentation of Industrias Infinito itself serves to strengthen this Court's thesis that, because the aforementioned amparo processes were dismissed, what was resolved by the Constitutional Chamber in those two cases does not produce the effect of res judicata (cosa juzgada) in relation to the matter being resolved in this judgment. Additionally, it is necessary to point out that the position taken by the Fourth Section of this Court in issuing this judgment is not isolated, but is in full consonance with what has been established by other Sections. Thus, for example, it is worth indicating that the Sixth Section, in judgment No. 730-2009, at 14:30 on April 21, 2009, has indicated the following: \"...*This Court considers that the exception of material res judicata should be rejected for the following reasons: **a)** The **Political Constitution defines the jurisdictional scope of both jurisdictions, based on the object that both pursue.** Regarding the **Constitutional Jurisdiction (articles 10 and 48)**, it is to guarantee constitutional supremacy, through—in this case—the maintenance or restoration of the fundamental rights enshrined in the Political Constitution and in the International Instruments in force in the Republic, through the amparo appeal, with the exception of the rights protected by the habeas corpus appeal (see articles 1, 2.a and 3 of the Constitutional Jurisdiction Law). Regarding the **Administrative Contentious Jurisdiction (article 49)**, it constitutes guaranteeing the legality of the administrative function of the State, its institutions, and any other public law entity, given that the law shall protect, at least, the subjective rights and legitimate interests of the administered parties (see article 1 of the Administrative Contentious Procedure Code); **b)** It is true that **the Law of the Constitution is binding by itself** and that, being the foundation of the entire legal system, it must be applied by legal operators—whether of a jurisdictional nature or not—because at the highest level it forms part of the “principle of legality” to which the exercise of the administrative function is subject, and upon whose compliance ultimately depends its effective control, the guarantee of the fundamental rights of the administered parties, the realization of the purposes of public interest, and the preservation of the democratic principle that constitutes the essential basis of the Social State of Law; **c)** From that perspective, if the administrative contentious judge is responsible for acting as the controller of legality in the exercise of the administrative function, this implies that, by the nature of the object of his jurisdiction, he is one of the ordinary legal operators who best represents and exercises the function of protecting fundamental rights within that framework. This is because compliance with the principle of legality implies overseeing the exercise of the administration's powers of authority vis-à-vis the fundamental rights of its principal recipient—the administered party—not only from a negative point of view—that arbitrary conducts or those with an appearance of legality cause a violation of those rights—but also a positive one—that the achievement of public interest purposes be pursued efficiently; **d)** Notwithstanding the foregoing, we must be very clear that all of this falls within the scope of the jurisdiction granted by the constitutional text itself, which is ultimately determined by the object intended to be protected in each jurisdiction, which is why, **although guaranteeing, through the administrative contentious route, compliance with the principle of legality necessarily includes the Law of the Constitution; guaranteeing the principle of constitutional supremacy in the Jurisdiction provided for in articles 10 and 48 of the Political Constitution does not imply reviewing whether, in accordance with the legality framework applicable to each case, it is appropriate to recognize, restore, or declare the existence, non-existence, or content of a legal situation or a relationship subject to the administrative legal system, in order to protect a subjective right or a legitimate interest; e)** That derived from all the foregoing, we cannot maintain that the competencies between both jurisdictions are concurrent, because the fact that in some cases there is material identity of the conduct subject to the processes processed in both jurisdictions does not have the ability to assimilate the object pursued in each of them—which according to the very text of the Constitution—is distinct, which in turn implies that the scope of their jurisdiction is also different. Let us remember that concurrent jurisdictions imply that each body has the fullness of the corresponding jurisdiction and *can do the same as the other*: **if they are equal, what is done by one can be nullified by the other**—in accordance with the principle that the former repeals the latter—, and **if they are unequal, the superior can do or undo everything that the inferior does before or after resolving the matter submitted to its knowledge; f)** *In summary, although non-compliance with the principle of legality indirectly causes the violation of a fundamental right due to non-observance of the legal system, this does not imply that guaranteeing the principle of constitutional supremacy, in those cases of violations or threats that directly injure the essential content of a fundamental right thus causing an urgent situation, implies a concurrent jurisdiction; the only possible concurrence—and which is not one of jurisdictions—is the existence of alleged violations of fundamental rights, although originating from distinct reasons for injury, which is precisely what determines the scope of jurisdiction of each body, pursuant to what is established in articles 10, 48, and 49 of the Political Constitution;* **g)** From that perspective, the scope of what is provided in article 13 of the Constitutional Jurisdiction Law, regarding the binding erga omnes character of the jurisprudence issued by the Constitutional Chamber of the Supreme Court of Justice, **within the scope of its jurisdiction,** must be understood in two senses: **1)** If that Court estimates or grants an amparo appeal, habeas corpus appeal, or a question of constitutionality (action and judicial or legislative consultation), because the conduct or norms subject to the process are contrary to the Law of the Constitution, pursuant to the provisions of article 7 of the General Public Administration Law (Ley General de la Administración Pública), they constitute unwritten norms, whose application by legal operators is binding, for the purpose of guaranteeing and making effective the principle of constitutional supremacy in ordinary proceedings, both at the administrative and jurisdictional levels; **2)** If, on the contrary, the Constitutional Chamber dismisses or declares an amparo or habeas corpus appeal without merit, because the conduct subject to the process is not contrary to the Law of the Constitution, *this does not prevent the appellant from resorting to the competent jurisdictional route in protection of his subjective rights or legitimate interests, so that it may be determined there whether the impugned conducts are or are not contrary to the Legal System, since in accordance with the provisions of articles 10 and 48 of the Political Constitution, in relation to articles 1, 2 subsections a and b, and 3 of the Constitutional Jurisdiction Law, the analysis carried out by said jurisdictional body involves the confrontation of the text of the questioned norm or conduct, its effects, or its interpretation or application by public authorities, with constitutional norms and principles*; **h)** The foregoing not only responds to the jurisdictional limits established for both jurisdictions in articles 10, 48, and 49 of the constitutional text, but also to a general principle of justice whose effective application constitutes a fundamental right inherent to every person, which is extracted from the provisions of articles 41 and 153 of the Political Constitution; **i)** Thus, it is the criterion of this collegiate body that the pronouncements of the judgments issued in the constitutional venue (through amparo and habeas corpus appeals) have a direct impact on administrative contentious processes, when in that venue the irregularity of public conduct had been ordered due to injury to the regime of the Law of the Constitution and, as a consequence thereof, the suppression of the administrative functioning under study was ordered. In such cases, it would lack current interest to weigh the validity or not of a determined public conduct in an administrative contentious process, when the Constitutional Court has already established its invalidity, for other causes, but whose effect would be the same, that is, its legal annulment. The same does not happen with the dismissive decisions issued by that high jurisdictional body, since, in that hypothesis, the examination of the legality of the act acquires relevance and usefulness, an aspect that is not discussed in the constitutional venue, and such examination corresponds to this jurisdiction (article 49 of the Political Constitution), as has been stated. Ergo, the determination in the constitutional phase of no transgression of the Law of the Constitution is not an obstacle to a legality check, and may even generate the suppression of the act due to infringement of the infra-constitutional Legal System. Therefore, in those cases, res judicata cannot exist due to the rejection of an amparo appeal, because the object of analysis of this Court is very different from that addressed in constitutional processes...*\" (the emphasis in bold or underline is from the original). As can be appreciated, what was stated by the Sixth Section in the ruling just cited is essentially the same approach now set forth in the present resolution. And even more important is that what was set forth in ruling 730-2009, just mentioned, has already been confirmed by the First Chamber (Sala Primera) of the Supreme Court of Justice, acting as the Court of Cassation for Administrative Contentious and Civil Treasury Matters, in ruling No. 107-F-S1-2010, at 8:30 on April 30, 2010. In this ruling, the First Chamber indicated the following: \"*Regarding the **second** charge concerning the alleged contradiction with rulings issued by the Constitutional Chamber, such an approach forces us to question whether an administrative conduct, whose non-conformity with the Law of the Constitution has been ruled out by the constitutional court, can at the same time be illegal. On this point, it is the criterion of this Chamber, that although both jurisdictions are concurrent, insofar as they are both controllers of administrative conduct in its diverse manifestations (formal, material, and omissive), the parameter used is different in each; the former is based on the Law of the Constitution, and the latter, on the legality framework (bloque de legalidad). Indeed, one could not affirm that an entity acting in accordance with the possible framework of action provided by the legality framework incurs a defect of unconstitutionality, since it is precisely the infra-constitutional norms that achieve the materialization of the general aspirations stipulated in the constitutional texts. Hence, in administrative contentious matters, the analysis must be integrated with the entire legal system in order to determine any possible infringement of the legality framework, a task constitutionally attributed to the administrative contentious jurisdiction (art. 49 of the Political Constitution). For this reason, reviewable before the administrative contentious jurisdiction are both the cases where the constitutional court has dismissed or declared without merit the amparo or habeas corpus appeal filed, considering that the impugned conduct is not directly contrary to the Law of the Constitution, since in that case, reference is not made to the legality of the act or conduct (exclusive domain of the contentious judges), as well as those in which, once the non-conformity with the Magna Carta has been declared, the individual seeking justice deems it appropriate to discuss the conformity of the actions with the legality framework. In these cases, the administered party may resort to the administrative contentious route to assert his eventual subjective rights or legitimate interests and request that it be determined in that instance whether the impugned conducts or acts are or are not contrary to the legal system. Hence, the interpretation made by the defendant is not valid, in the sense that all rulings issued by the Constitutional Chamber produce res judicata, as the analysis carried out by said decision-making body is different from that conducted by the Administrative Contentious Court. Moreover, regarding the “erga omnes” application of constitutional rulings, this Court does not dispute that precept, contained in Article 13 of the [Constitutional Jurisdiction Law],* \"*but it is denoted that such pronouncements are made solely and exclusively regarding the framework of the infringement of the Law of the Constitution.*\" As can be appreciated, the First Chamber of the Supreme Court of Justice, acting as the Court of Cassation for Administrative Contentious Matters, has also expressed itself in the sense expressed by this Court in this judgment, the criterion of both jurisdictional bodies therefore being coincident that **the rulings of the Constitutional Chamber that dismiss or declare an amparo appeal without merit do not produce the effect of res judicata (cosa juzgada) on processes heard in the administrative contentious jurisdiction.** In addition to the foregoing, but in another order of ideas, it is necessary to point out that, in any case, the Constitutional Chamber itself, in its rulings 2010-06922 and 2010-14009, left the way open for the issues covered by this judgment to be heard in the administrative contentious venue. See, for example, that in ruling 2010-06922, the Constitutional Chamber, in Considerando XLIII of said judgment, takes up two other resolutions of that body (2004-09927 and 2005-06790) to indicate that in them \"*it has been repeatedly defined that **it escapes the scope of jurisdiction of this jurisdiction** to dwell on assessing whether the studies have been well carried out or whether they contain the necessary information, aspects that must in themselves be resolved by the corresponding technical instances*\" (bold and underline supplied). The foregoing reveals that the Constitutional Chamber itself made it clear that examining the technical correctness of the studies carried out on the Crucitas mining project escaped its jurisdiction.\n\nThat same position was expressed by that\nChamber in Considerando LX of the same judgment, in which it indicated: \"It must\nbe reiterated that the technical knowledge of the requests and claims such as\nthose indicated here falls within the purview of the technical entities of the\nadministration, so if the pertinent bodies have rendered their scientific\nopinion on the matter, it is beyond the scope of the competence of the\nconstitutional jurisdiction to discuss whether such opinion is\nin accordance with the equally technical nature of the elements taken into account by the\nadministration for the issuance of its pronouncement; consequently, if\nthe interested parties consider that there is any disagreement in this regard,\nthey must file the appropriate actions before the corresponding bodies\"\n(boldface and underlining are not from the original). It is immediately apparent how the same Sala\nConstitucional declined to rule on the correctness of the technical\nreports already mentioned, even holding (a criterion this Tribunal shares)\nthat this aspect is beyond its scope of competence and indicating that to\nchallenge the assessment that the Administration has made of those reports,\nthe \"appropriate actions\" must be filed, which are none other than\nthose brought before the administrative litigation jurisdiction. And it must\nbe remembered here that Article 49 of the Constitution assigns to the latter the\ncontrol of the legality of the Administration, which entails the oversight\nthat it conforms at all times to the rules of science and\ntechnique, as provided in numeral 16 of the Ley General de la\nAdministración Pública. This latter point acquires greater importance when it has been\nquestioned throughout this proceeding whether the Administration correctly\nassessed various technical aspects, such as the maximum elevation to which\nextraction could reach in the Crucitas mining project. It is necessary\nto note that in the same judgment 2010-06922, the Sala Constitucional itself,\nreferring to the issue of the public road, indicated in Considerando LXXXVII that\nthe complaints raised about the closure to which a public road would be subjected\nhad to be heard first by the Administration and that they lacked a direct\nrelationship with the object of the amparo (amparo) appeal then being heard, it being\nthen clearly evident that the constitutional jurisdiction did not\nrule on the merits of the problem, it thus being viable to hear it in\nthis administrative litigation proceeding. In that same judgment 2010-06922, the\nSala Constitucional assessed the executive decree (decreto ejecutivo) 34801, by which the Crucitas mining project was\ndeclared of public interest and national convenience,\nbut if one reads what was stated in Considerandos CIII and CIV of\nthat resolution, it is immediately apparent that what the Chamber did was simply\nverify that the decree set forth some reasons for its issuance, and therefore\nit deemed it well-founded from a constitutional standpoint, but the Sala\nConstitucional never descended to carrying out an analysis of legality, since when referring to the\nperformance of the cost-benefit balance, that jurisdictional body indicated\nthat \"since it is a technical determination, it is a matter of ordinary legality already defined by the competent entities\nin each case\". If the Sala Constitucional was satisfied with the\ntechnical assessment made by the Administration to issue said decree, and therefore\ndid not proceed to analyze that administrative technical assessment and furthermore\nindicated that this assessment was a matter of ordinary legality, it is then\nevident and manifest that it falls to the administrative litigation jurisdiction\nto examine whether the Administration complied with ordinary legality at the\ntime of issuing that decree, something that is done here and that finds support in the\ncompetences that the Constitución Política assigns to this jurisdiction in\nArticle 49. Now then, in addition to everything that judgment 2010-06922 reserves\nto be heard by the judges of the administrative litigation jurisdiction, it must\nbe noted that another such matter comes from judgment 2010-14009. In the\nConsiderando V of the latter, unanimously and with the\nparticipation of four Magistrates who had also voted on resolution\n2010-06922 (namely: Armijo, Jinesta, Cruz and Castillo), expressly\nit is indicated, that \"it is not a matter of constitutionality but of legality to\nexamine and assess whether a mining concession violates an executive decree (decreto ejecutivo)\",\nthis in relation to the decree of moratorium on mining activity; it is also stated\nthat \"nor is it such a matter to analyze whether it violates the regulations of the Colegio\nde Químicos\"; it is further indicated that \"it is not a matter of\nconstitutionality but of legality to examine and assess whether the respondents\nproceeded correctly or not in 'converting' the granting of the\nmining concession that had been previously annulled by\" the Sala\nConstitucional, after which that same body concludes the referred Considerando\nV indicating that \"said allegations must be taken by the appellants to\nthe administrative litigation route, which is the competent one to analyze the\nlegality in the granting of the concession in question, according to the\narguments that the appellants present\" (the boldface and underlining\nare supplied). The foregoing shows that the Sala Constitucional itself was\nalways aware of its constitutional competences and never ventured into\nthe realm of legality when assessing the Crucitas mining project,\nbut rather carried out its examination from the perspective of the violation or\nnot of fundamental rights, which is what is appropriate in the case of an amparo (amparo) appeal. Moreover, this position is consistent with the issues it had left to\nbe heard in the administrative litigation jurisdiction, from the\nissuance of judgment 2010-06922. Returning to the scope of judgment\n2010-14009, already mentioned, it is necessary to indicate that in Considerando VI of the\nsame, it was indicated that the majority vote of judgment 2010-06922 omitted to\nconsider that the modifications to the Crucitas mining project required a\nnew public hearing, so this is a point that, given what was indicated at the\nend of that Considerando VI, is also reserved for its hearing in\nthe ordinary venue, which is none other than the administrative litigation jurisdiction.\nLikewise, it becomes important to recall that, due to the very particular nature of\nthe rights sought to be protected through the amparo (amparo), said proceeding has been\nstructured as summary, in which decisions are made based on reports rendered\nunder oath, which differs considerably from the oral trials held\nin the administrative litigation venue. This procedural difference has acquired\nparticular relevance in this matter, as it suffices to consider the example of the\nexpert witness Hugo Virgilio Rodríguez Estrada to show why it is\nimpossible, through the amparo (amparo) appeal, for the Sala Constitucional to have been\nable to descend to the examination of all the relevant aspects to determine whether\nthe Crucitas mining project conforms to legality or not. Remember that this\nexpert witness admitted in open court that the document he issued and\nthat was presented as Anexo 7 (Anexo 7) in the report rendered by the then Minister\nof Ambiente y Energía before the Sala Constitucional on the occasion of the\namparo (amparo) proceeding 08-014068-0007-CO, contained a very important error, such as having\nreferred to a \"depth\" of \"seventy-five meters below\nground level\", when what was correct, as he himself acknowledged, is that\nit should have referred to \"elevation\" and should have alluded to \"meters above\nsea level\", since these are completely different notions and\nthat, if confused, could lead to misunderstandings regarding the technical\nconditions imposed by geologist Sofía Huapaya Rodríguez Parra for the\nextraction. This issue could only be understood through the adversarial process and\nis an example of how reports rendered under oath, which are useful for\ndetermining in a summary proceeding whether fundamental rights have been violated or not, do\nnot have the same scope when it comes to defining whether administrative conduct\nconforms or not to the legality framework. And this distinction is, in turn, important\nto reiterate the different object between an amparo (amparo) appeal and an ordinary\nadministrative litigation proceeding (proceso de conocimiento contencioso administrativo), which perfectly illustrates why\nthe dismissal judgment issued on the occasion of the former does not produce res\njudicata (cosa juzgada) regarding the latter. Finally, it must be indicated that in its\nconclusions, the representative of Industrias Infinito mentioned other judgments\nof the Sala Constitucional that supposedly would produce res judicata (cosa juzgada) in relation\nto the matter heard here. They mentioned, specifically, the resolutions:\n1998-05315, 2002-07882, 2004-13414, 2007-07973 and 2009-17155. In relation to\nthe first three, it must be indicated that all of them were issued\nprior to the issuance of the acts that are the object of this trial, which\nshows that they can never constitute res judicata (cosa juzgada) over what is heard here,\nsince the acts that have been challenged in this proceeding did not even exist when\nthose resolutions were issued. As for the 2007 decision, it must\nbe indicated that the first one only declares that a party’s motion is not admitted\nin the same amparo (amparo) proceeding that concluded with the issuance of judgment\n2004-13414, which shows that it does not produce the effect of res judicata (cosa juzgada) over what\nis now heard. And with respect to the 2009 judgment, it must\nbe indicated that it is an unconstitutionality action (expediente number\n08-014900-0007-CO) brought by Freddy Pacheco León against provisions of the\nCódigo de Minería, which shows that it is a matter that shares neither\nidentity of parties, nor identity regarding the object discussed in this\nordinary proceeding (proceso de conocimiento) and, consequently, does not produce res judicata (cosa juzgada) with respect\nto what is heard here. For all the foregoing, the defense of\nres judicata (cosa juzgada) raised by the defendants and the passive coadjuvant is rejected.\n\nVI- REGARDING THE DEFENSE OF LAPSE (CADUCIDAD).\n\nSaid defense must be rejected,\nsince it must be observed that resolution 3638-2005-SETENA, was issued in the year\n2005 and Transitional Provision III of the CPCA, establishes that the challenge regime for\nacts that became final prior to the entry into force of the\nCode, shall be governed by the legislation in force at that time. Article 175\nof the LGAP established a lapse (caducidad) period of 4 years to challenge\nabsolutely null acts. Consequently, the mentioned period has not elapsed\nsince the issuance of resolution N°3638-2005-SETENA, much less with respect\nto the other challenged acts, which were issued in the year 2008. As a corollary of\nthe foregoing, the lapse (caducidad) raised does not exist.\n\nVII- REGARDING THE DEFENSE OF TACIT CONSENT (ACTO CONSENTIDO).\n\nThis defense must be rejected since,\nthe requirement of mandatory exhaustion of administrative remedies (agotamiento preceptivo de la vía\nadministrativa) for non-municipal conduct having been eliminated, failing to challenge an act\nthrough administrative channels does not constitute an impediment to resorting to the administrative litigation\nroute to request its annulment, and therefore this preliminary defense\ndoes not proceed.\n\nVIII- REGARDING THE STATUTE OF LIMITATIONS (PRESCRIPCIÓN).\n\nThe statute of limitations (prescripción) is rejected, because there is\nno prescriptive period for challenging public conduct, but rather a lapse (caducidad)\nperiod, regulated in the CPCA, a matter already resolved by this\nTribunal. As for the claim for damages, the statute of limitations (prescripción)\nperiod is 4 years according to the LGAP and the same has not elapsed since the\nissuance of all the challenged acts.\n\nIX- REGARDING THE DEFENSE OF ACTS NOT SUBJECT TO CHALLENGE.\n\nThe defendants raised the defense\nof acts not subject to challenge in relation to various acts, namely: official letter DST-773-2006, from the INTA, official letter ASA-013-2008-SETENA,\nresolutions 3638-2005 and 170-2008-SETENA, as well as the executive decree (decreto ejecutivo)\n34801-MINAET. On this point, it must be indicated that only the\nofficial letters DST-773-2006 and ASA-013-2008-SETENA are, in the Tribunal's judgment,\nconduct whose challenge in this proceeding was not possible. For the\nforegoing, the exception of acts not subject to challenge is upheld with\nrespect to official letters DST-773-2006 and ASA-013-2008-SETENA. The remaining\nchallenged acts are final acts or acts with their own effect, and therefore, challengeable in\nthe administrative litigation venue. Particularly regarding official letter\nASA-013-2008-SETENA of January 14, 2008, this Tribunal has noted that it\nconstitutes only a recommendation from the Department of Environmental Audit and\nMonitoring (Departamento de Auditoría y Seguimiento Ambiental) to the Plenary Commission, both of the Secretaría Técnica\nNacional Ambiental. In that sense, since the administrative decision is\nembodied in what the Plenary Commission decides, it is evident that the\nrecommendation made by the Department of Environmental Audit and Monitoring (Departamento de Auditoría y Seguimiento Ambiental)\nlacks its own effects and therefore, the referred exception must be upheld with\nregard to that official letter, as it is not subject to challenge. With\nrespect to the document from the Instituto Nacional de Innovación y Transferencia\nen Tecnología Agropecuaria (the INTA), that is, official letter DST-773-06 of October 4,\n2006, it is necessary to indicate that it is not challengeable in this proceeding.\nOn this point, note that Ley 7779 amended Article 25 of the\nCódigo de Minería and introduced into it the obligation of the Ministerio de\nAgricultura y Ganadería, to issue its approval or oppose the granting\nof the exploration permit or the concession of a mining exploitation. The INTA\nwas created by law number 8149, but its objective is to contribute to the\nimprovement and sustainability of the agricultural sector, which it must do\nthrough the generation, innovation, validation, research and dissemination of\ntechnology. As can be seen, the INTA was not created to issue an opinion on whether to\noppose mining permits or concessions, a function that, according to the provisions of Ley\n7779 and Article 25 of the Código de Minería, continues to correspond to the\nMinisterio de Agricultura y Ganadería and not to the INTA, as that competence was never\ntransferred by law to the latter. Therefore, official letter DST-773-06 is not\nchallengeable in this venue, as it is a mere procedural act that lacks any\neffect in the matter under examination. It is worth adding that even though executive\ndecree (decreto ejecutivo) number 31857 (Reglamento a la Ley del Instituto Nacional de\nInnovación y Transferencia en Tecnología Agropecuaria), provided, in\nArticle 5, that the functions that Ley number 7779 assigned to the Department\nof Soils of the Dirección Nacional de Investigaciones Agropecuarias of the\nMinisterio de Agricultura y Ganadería, would become part of the INTA, the\ntruth is that such transfer of functions was made \"as\nappropriate\". This indicates that what was not appropriate for the INTA, would not be\ntransferred. Thus, since by law (not by decree) the INTA has a much\nnarrower functional scope than that established in Ley number 7779 for the\nMinisterio de Agricultura y Ganadería, then, those functions that the Law\nassigns to the Ministry that are not contemplated in Ley number 8149,\nremain with the former and cannot be transferred to the INTA by means of a\nregulation (reglamento). Among these functions that are assigned by law to the Ministry and\nthat the law did not transfer to the INTA, is precisely that of issuing a\npronouncement on soils for the purposes of mining concessions, so that\nit was not appropriate to hear in this proceeding an act (the INTA's official letter) that has\nno effect. Now then, with regard to resolutions 3638-2005 and\n170-2008-SETENA, as well as resolution N° R-217-2008-MINAE, resolution N°\n244-2008-SCH, and executive decree (decreto ejecutivo) N° 34801-MINAET, it must be indicated that all\nof these conducts have their own effects and, consequently, are challengeable in this\nvenue. The environmental viability produces effects by itself, so that if it is not\ngranted, the project cannot proceed; the same happens with the approval\nof the changes made to the project. For its part, without the decree of\nnational convenience the logging permit could not be granted, which reveals the\neffect that this provision of the Poder Ejecutivo has.\n\nX- REGARDING THE PRECAUTIONARY PRINCIPLE (PRINCIPIO PRECAUTORIO) AND\nTHE BURDEN OF PROOF\n\nIt is well known that the Constitución Política in its numeral 50 establishes the fundamental right of every person to\na healthy and ecologically balanced environment. Said norm entrusts the State\nwith the duty to guarantee, defend and preserve that fundamental right. The\ndevelopment of this constitutional provision is widely regulated\nin international instruments and in numerous provisions of the internal\nlegislation of our country. Doctrine and International Law have been\nresponsible for enshrining a series of guiding principles in environmental matters\nthat are universal in character, and that grant this area of the legal system\na singularity and its own regime, and among said\nprinciples the following can be listed: principle of equality, principle of sustainability,\nprinciple of the polluter pays, principle of broad procedural standing,\nprinciple of restoration of damage, principle of citizen participation,\npreventive principle and precautionary principle (principio precautorio). Of all of them, it is of interest to highlight\nfor the specific case the preventive principle, referring to those cases in\nwhich there is a scientific opportunity to measure risks and recommend measures\nfor the management of the activity, and the precautionary principle (principio precautorio) or principle of\nprudent avoidance, the latter being contained and regulated in the\nUnited Nations Conference on Environment and Development,\nRio Declaration (1992), whose Principle 15 literally provides: “Principle\n15.- In order to protect the environment, the precautionary approach shall be\nwidely applied by States according to their capabilities. Where there are\nthreats of serious or irreversible damage, lack of full scientific certainty\nshall not be used as a reason for postponing cost-effective measures\nto prevent environmental degradation.”\nIn our legislation, we find this principle embodied in Article 11\nof the Ley de Biodiversidad N° 7788, which to that effect provides: “Criteria for\napplying this law. The criteria for applying this law are: 1.- Precautionary\ncriterion or pro natura: When there is danger or threat of serious or\nimminent damage to the elements of biodiversity and the knowledge associated with\nthese, the absence of scientific certainty shall not be used as a reason for\npostponing the adoption of effective protection measures.” The Sala\nConstitucional has described the precautionary principle (principio precautorio) in the following manner: “properly\nunderstood, the precautionary principle (principio precautorio) refers to the adoption of measures,\nnot in the face of ignorance of risk-generating facts, but in the face of a\nlack of certainty that such facts will effectively produce\nharmful effects on the environment.” (resolution N° 3480-03, at 14:02 hours\non May 2, 2003), the Chamber highlighting that “in environmental matters,\na posteriori coercion is ineffective, since if the biologically and socially\nharmful consequences have already occurred, repression may have a\nmoral transcendence, but will hardly compensate for the damages caused to the\nenvironment” (resolution N° 17618-08, at 11:51 hours on December 5,\n2008). It is important to note that the precautionary principle (principio precautorio) constitutes a\nparameter of legality of administrative conduct, and on this\npoint, Doctor Aldo Milano states that “a large part of risky\nactivities are subject to an administrative police regime, which is\nmanifested in the granting or denial of authorizations of that same\nnature. This means that conflicts arise related to such\ndecisions, either because it is considered that by granting the\nauthorization in a specific case, the Precautionary Principle (Principio Precautorio) is breached or, because upon being\ndenied or conditioned based on it, the affected party considers the\ndecision illegitimate.” Thus, alluding to a specific case in French\njurisprudence, he indicates that the decision challenged in the administrative litigation (contencioso administrativo) constitutes the\nlast step in the long procedure of evaluating the harmlessness of the\nactivity in question, and that doctrine finds in the precautionary principle (principio precautorio)\na source of law that imposes a specific way of acting on the part of\nthe Administration, so that – in case of not respecting that way of acting -\nprocedure – the nullity of the final act adopted will be deemed (see Milano,\nAldo. “El Principio Precautorio”, 2005, p. 55 to 58). A procedural consequence\nproduced by the application of the precautionary principle (principio precautorio) is the reversal of the\nburden of proof, an aspect that is expressly regulated in Article 109\nof the Ley de Biodiversidad, which provides: “The burden of proof, of the\nabsence of unauthorized contamination, degradation or affectation,\nshall correspond to whoever requests the approval, permit or access to\nbiodiversity or to whoever is accused of having caused environmental damage”,\na norm that must be seen in close relationship with Article 5 of the same Law, which\nindicates that what is established in that legislation shall serve as a framework of interpretation\nfor the rest of the norms regulating the subject matter of said Law. This means\nthat in environmental matters the classic scheme that “whoever\nsues must prove” is broken, and the theory of the dynamic\nburden of proof acquires a preponderant role, according to which, “the burden is shifted to whoever, due to\ntheir personal situation, is in a better position to bring the proof\nto the proceeding, regardless of whether it is the plaintiff or the defendant” (on the dynamic\nburden of proof, see the judgment of the Sala Primera of the\nCorte Suprema de Justicia N° 212-2008 at 8:15 hours on March 25,\n2008). This position is accepted by the doctrine of environmental law, which\nin that sense has indicated the following: “In the environmental process,\nespecially based on the precautionary principle (principio precautorio), a modification\noccurs in the burden of proof of the classic framework (according to which it is a principle “that\neveryone who alleges a fact as a claim or defense has the burden of\nproving it”) and, based on precaution, the doctrine of dynamic\nevidentiary burdens comes to life as a palliative to lighten the arduous task of producing\ndiabolical proofs that, in certain cases, were placed without consideration\nupon the shoulders of one of the parties (plaintiff or defendant), due to misunderstanding\nthe sacrosanct a priori rules of distribution of proof. Finally,\nthe modifications indicated in the field of the environmental process require speaking\nof a “true environmental procedural law”, whether considered as an\nautonomous branch or not; and the scientific-technical complexity of environmental cases,\nwhich demand unprecedented solutions to equally unprecedented problems, impose as a mechanism\nto overcome the traditional structures of law the advisability of\nhaving specialized environmental courts as guarantors of the\neffective application of the precautionary principle (principio de precaución).” (Martínez, María Paulina.\n“El principio precautorio”. In Protección Ambiental, Argentina, 2008, p. 122).\nIn close relationship with this procedural variant, doctrine highlights the\nactive role of the Judge when faced with an environmental matter, and in this regard\nstates the following: “But it was Law N° 25.675 (LGA) that enshrined\nunprecedented innovations in terms of judicial powers (ordering and\ninvestigative), granting the adjudicator a completely active and\ninquisitorial role as guarantor of the application of the precautionary principle (principio precautorio) in those\nproceedings in which the preservation of natural balance is sought (see\nArticle 32 LGA), without this implying any breach of the principle of\ncongruence. (...) it is concluded that there are no areas immune to the\nnormative force of the Constitution and environmental norms, particularly the\nLey General del Ambiente, which constitute an environmental public order, which\nconfer broad powers, even to review matters of a technical\nnature, which allow full operability to the precautionary principle (principio precautorio) at\neach step of the procedural iter, in a concrete and undoubtedly\nmacroscopic task in pursuit of the right to effective judicial protection.”\n(idem, Martínez, p. 117). This role that doctrine assigns to the Judge in the\nface of environmental matters is not dissociated from the model that the\nConstitución Política and the Código Procesal Contencioso Administrativo\ngranted to the Administrative Litigation Judge. The Ley de Biodiversidad, whose\nnorms are applicable to the rest of the legal system in environmental matters, expressly provides\nin its Article 108 that “in matters of biodiversity and as long\nas there is no environmental jurisdiction, all disputes shall be the exclusive competence\nof the administrative litigation jurisdiction (jurisdicción contencioso-administrativa),” except those cases\nwhere there is no administrative act or public domain matter involved. Having established this\ncompetence, we must remember that the administrative litigation jurisdiction (jurisdicción contencioso-administrativa)\nenjoys a broad supervisory power, given by Article 49 of the\nConstitución Política, which allows it to exercise both subjective control,\nconsisting of the protection of the substantial legal situations of the\nadministered parties (subjective rights and legitimate interests), and objective control,\nconsisting of guaranteeing the legality of the administrative function of the entire\nAdministración Pública (whether actions or omissions).\n\nArticle 1 of the Contentious-Administrative Procedure Code reproduces the content of Article 49 of the Constitution and indicates that the contentious-administrative jurisdiction aims to protect the legal situations of every person, guarantee or restore the legality of any conduct of the Public Administration subject to Administrative Law, as well as to hear and resolve the various aspects of the legal-administrative relationship (Jinesta, Ernesto. “Manual del Proceso Contencioso Administrativo, 2008, p.29). National doctrine reaffirms the broad supervisory character of the Contentious-Administrative Judge in our legal system, stating the following: “When the norm allows control of the “administrative function,” it adopts, without ambiguity, a broad formula of supervision, in which the Judge is empowered to control the entirety of administrative conduct. Indeed, the precept breaks sharply with any limitation built around the contentious-administrative object, because when it inserts the generality of the administrative “function” within the supervisory eye of the Judge, it opens the jurisdictional range with respect to any administrative function, behavior, or conduct. Note that the contentious jurisdiction is not attributed control of the administrative “activity” or “action,” much less of the “administrative act,” but of the “function,” which, not by chance, is all-encompassing not only of all of them, but also of the entire sphere of inactivity. When the article assigns the Judge control of the “function,” it is allowing the Judge to legally analyze any of the functions inherent to it, any of its conducts in any of its administrative manifestations. The Court can control both active conduct and omissions. Whenever the conduct is administrative and the control is carried out within the legal framework, there is not, or should not be, any sphere exempt from jurisdictional control; its review can and must be complete, without any immunity regarding the object. (...) In this aspect, the constituent offers us a new closing clasp, an additional security door as a guarantee of full and universal control, since in addition to subjecting the administrative function to jurisdictional control of legality, it allows the Judge to verify whether or not it is adjusted to the purposes that justify it.” (González, Oscar. “Sentencia”. In: El Nuevo Proceso Contencioso-Administrativo, 2006, p.426). Regarding the leading and active role that the Judge exercises in the dynamics of the Procedural Code, it is noted: “Such active and organizational autonomy for the restoration of the public legal order (written and unwritten) and the effective protection of legitimate interests and subjective rights, confirms the transcendence of this jurisdiction as a reparatory and protective mechanism for legal situations potentially affected by the undue interference of public power through its multiplied universe of organs and entities with their officials, generally de iure and exceptionally de facto. (...) Even the classic civil law principle that identifies the object of the process with the claims alleged and deduced by the parties was disrupted, so that the judicial authority, as an active subject in the process, dispenses justice not only in accordance with what was claimed but also adjusting the claims to prompt and complete justice, according to the new legislation, to satisfy the values embedded in the Rule of Law present in each process for the restoration of legality or, better yet, of the legal order. Under the new scheme, the judge, before being governed by the dispositive principle, will also be governed by the inquisitorial one, typical of constitutional courts, as when, in our case, the Constitutional Chamber (Sala Constitucional) condemns the losing parties in both costs and damages in amparo actions (acciones de amparo), even if the winning parties did not request it.” (Jiménez, Manrique. “Bases constitucionales para la reforma de la jurisdicción contencioso administrativa”. In: El Nuevo Proceso Contencioso Administrativo, p. 18 and 19, 2006). Well then, the review of all these principles, norms, and legal institutions has been intended to be established in this considerando (whereas clause), with the purpose of keeping in mind the legal framework within which the issues and arguments outlined by the parties in the process will be analyzed and resolved, as well as the evidence that was evacuated during the debate, just as set forth below.\n\n**XI- ON THE NON-APPLICATION OF THE MORATORIUM DECREE FOR THE SPECIFIC CASE.**\nIn the administrative legal system, we find a fundamentally important principle called the principle of singular non-derogability of the regulation (principio de inderogabilidad singular del reglamento), also known as the principle of singular non-derogability of the norm. According to this principle, administrative acts of specific scope must conform to the provisions of a general nature issued by the Administration itself, and cannot disapply them for a specific case. This principle is provided for in our legal system in Article 13 of the General Public Administration Law (Ley General de la Administración Pública), which for this purpose states: “The Administration shall be subject, in general, to all written and unwritten norms of the administrative order, and to the supplementary private law thereof, without being able to derogate or disapply them for specific cases. The previous rule shall also apply in relation to regulations, whether they originate from the same authority or from another higher or lower competent authority.” This criterion is important, as it forms part of the essential content of the principle of legality (principio de legalidad), which is the guiding principle of all administrative activity, both in its negative aspect (what cannot be done) and in its positive aspect (what must be done). Thus, the irrefutable consequence derived from the principle of singular non-derogability of the norm is that the public authority cannot issue resolutions for a specific case whose content disregards or disapplies what, in the opposite sense, the same public authority had previously ordered through an act of a general nature (Article 120.2 of the General Public Administration Law). In the specific case, we find that on June 12, 2002, the highest authority in environmental matters, which is the Ministry of Environment and Energy (Ministerio de Ambiente y Energía, now MINAET), issued by way of a general provision, specifically Decreto Ejecutivo N° 30477-MINAE, an indefinite moratorium on open-pit metallic gold mining activity in the national territory. In Transitorio I° of that general provision, the President of the Republic and the Minister of Environment and Energy clearly established that “all proceedings related to the exploration and exploitation of the mineral gold by open-pit method that are pending before the Dirección de Geología y Minas and before the Secretaría Técnica Nacional Ambiental as of the publication date of this executive decree, shall be suspended. Any right acquired (derecho adquirido) before the publication of this decree shall be respected.” Well then, it is also a demonstrated fact that in the year 2004, through resolution N° 2004-13414 at 9:29 a.m. on November 26 of that year, the Constitutional Chamber annulled resolution N° R-578-2001-MINAE, which was the resolution through which Geología y Minas had granted the exploitation concession (concesión de explotación) to Industrias Infinito. So that, subsequent to this resolution of the Constitutional Chamber, the logical consequence of having annulled resolution N° R-578-2001 is that the exploitation concession right granted by that resolution disappeared, regardless of whether the Administration later illicitly ordered the conversion of the act, since this occurred until the month of April 2008, a topic to which we will refer later, and it must be remembered in any case that it was not until June 4, 2008, that the Executive Branch lifted the moratorium on open-pit metallic gold mining activity. Thus, we have that from the month of December 2004 until the month of April 2008, neither materially nor formally did an exploitation concession right declared in favor of the company Industrias Infinito exist, and from the month of June 2002 until the month of June 2008, a provision of a general nature was in force, issued by the highest hierarchical body of the Executive Branch (President of the Republic) and by the highest hierarchical body in environmental matters (Ministry of Environment and Energy), which ordered the suspension of procedures pending before Geología y Minas and before SETENA, aimed at obtaining exploration permits (permisos de exploración) or exploitation concessions. If we carefully observe, the acts challenged here, with the exception of the Decreto de Conveniencia Nacional and the logging permit (permiso de corta), were acts issued by Geología y Minas and by SETENA during the period of validity of Decreto Ejecutivo N° 30477, and both bodies belong to the Ministry of Environment, Energy, and Telecommunications (Ministerio de Ambiente, Energía y Telecomunicaciones). Certainly, this Contentious-Administrative Court finds that the act that granted the environmental viability (viabilidad ambiental), the act that approved the changes to the project, and the act through which the conversion of the exploitation concession act was applied in favor of Industrias Infinito, violated the principle of singular non-derogability of the norm, since the Administration failed to apply for this specific case Decreto N° 30477-MINAE, which ordered that pending exploitation concession proceedings be suspended. Consequently, SETENA, by granting the environmental viability, Geología y Minas, by making the concession recommendation, and the Ministry of Environment, Energy, and Telecommunications itself, by converting the concession act, all disregarded that general provision which was binding (vinculante) on those bodies, and proceeded to issue the final act, both of environmental viability and of the granting of the concession. A parenthesis must be made here to point out that both acts (the viability and the concession) constitute what is legally termed a “complex act” (acto complejo) (a figure regulated in Article 145 of the General Public Administration Law), meaning that the concession act requires the prior environmental viability to acquire validity. Therefore, the Administration could not issue any of the described acts, because at that moment there existed a general provision in force and binding for the bodies of the Ministry of Environment and Energy, which ordered the suspension of the procedure, and in this case, the procedure continued in both offices until the issuance of the environmental viability act, the approval of changes act, and the concession conversion act, whereby the principle of legality was openly disrespected in this particular case.\n\nIn its defense, the developing company, on this issue, has argued that according to Articles 23 and 26 of the Mining Code (Código de Minería), the exploration permit grants its holder, in and of itself, the right to the exploitation concession, and they adduce that through Voto N° 2010-14009 of the Constitutional Chamber, the issue of the violation of Decreto N° 30477 has already been resolved. Regarding these arguments, the Court finds that they are absolutely unfounded and furthermore do not conform to reality. In the first place, certainly Article 23 of the Mining Code, in its wording, indicates that the holder of an exploration permit has the right especially to obtain one or several exploitation concessions, and Article 26 of the same Law states that during the validity of an exploration permit and up to 60 days after the expiration of the term or its extension, the holder shall have the right to obtain an exploitation concession. Notwithstanding the foregoing, it must be kept in mind that these norms, in their correct reading, prevent understanding that the exploration permit grants its holder, automatically, the right to an exploitation concession. This is easily verifiable from the reading of other norms contained in the Mining Code itself, which clearly differentiate one right from the other. Thus, Article 2 of the cited Law defines both rights as follows: “Permit: Authorization granted by the Executive Branch, through the Dirección de Geología y Minas (DGM), by which a right is consolidated in favor of the petitioner, allowing the exploration or search for materials in general for a term of three years, which may be extended only once. “Concession: Authorization granted by the Executive Branch through the DGM for a determined period, as appropriate, which grants the petitioner a limited real right to exploit or extract minerals from a determined zone, transform them, process them, and dispose of them for industrial and commercial purposes, or grants the exclusive right to explore the mineral substances specifically authorized therein.” Then, as we can see, there is a clear differentiation between one right and the other, the former exclusively permitting the search for materials, while the latter permits the extraction, transformation, and processing of the authorized materials.\n\nOn the other hand, note that the same Article 23 subsection b) conditions the possibility of obtaining a concession right, insofar as the existence of one or several exploitable deposits of mineral substances, located within the perimeter of its exploration permit, is justified. That is to say, the exploration permit does not grant per se the right to the concession, and this condition required by Law must be demonstrated, which evidently requires a specific pronouncement from the Administration making that assessment. Now then, we can also note that Article 26, likewise, conditions the right to obtain an exploitation concession on compliance with the obligations and requirements of the law and the regulation, and if we observe Article 9 of the Regulation to the Mining Code (Decreto Ejecutivo N° 29300-MINAE), it can be verified that to obtain a concession right, the interested party must comply with a series of technical and legal requirements detailed therein, which are independent of those required by Article 8 of the Regulation to obtain an exploration permit. Finally, it is necessary to highlight that Article 14 of the Mining Code clearly states that “the permit, or the concession, shall be understood as acquired from the date on which the granting resolution is registered in the National Mining Registry (Registro Nacional Minero). From then on, the original holder or its successor, as appropriate, shall be the possessor of its concessionaire right or holder of the exploration permit.” As can be deduced from the cited norm, the exploration right is independent of the exploitation right, and one or the other right, as appropriate, is understood as acquired from the date on which it is registered in the Mining Registry. In the specific case, as indicated before, the Constitutional Chamber in 2004 had annulled the exploitation concession, so that in accordance with Articles 62, 65, and 109 of the Mining Code, the company's right was extinguished and could not have been registered in the Mining Registry. All these reasons allow us to discard the notion that the exploration permit granted per se the exploitation right to Industrias Infinito, with which we can affirm that said company did not have an acquired right (derecho adquirido) to an exploitation concession in the Mining Project at the time it requested the convalidation of the act (May 30, 2007), a date on which the Moratorium Decree was in force. Therefore, the Administration should have suspended the proceedings pending before SETENA and before Geología y Minas for the case of the Proyecto Minero Crucitas. However, in this case, it is evident that the Administration disapproved its own binding provision.\n\nFinally, in relation to the Constitutional Chamber's resolution N° 14009-2010, it is worth noting that this issue was already resolved previously when the reasons why there is no res judicata (cosa juzgada) in this matter were explained. Nevertheless, one cannot refrain from reiterating that the statements of Industrias Infinito on this aspect are totally mismatched with reality, and this clearly follows from the Constitutional Chamber's own resolution, which expressly indicated that the argument regarding the violation of the moratorium decree, and the argument regarding the conversion of the exploitation concession, are allegations that the appellants should have brought “to the contentious-administrative route (vía contencioso administrativa), which is the competent one to analyze the legality of the granting of the concession in question”. It is clear, then, that it is not true that the Constitutional Chamber already ruled on this particular issue, which is a matter within the competence of this Court, was raised by the plaintiffs in the lawsuit and in the conclusions, and is one of the essential issues analyzed in this ruling. Consequently, for all the foregoing, in accordance with Articles 158 and 166 of the General Public Administration Law, resolutions N° 3638-2005-SETENA, N° 170-2008-SETENA, and R-217-2008-MINAE, by violating the principle of legality and being non-conforming with the legal order, are vitiated by absolute nullity (nulidad absoluta) and are so declared.\n\n**XII- ON THE PROPOSED CHANGES AND THE OMISSION TO REQUEST A NEW ENVIRONMENTAL IMPACT ASSESSMENT.**\nAs already indicated, in 2005, through resolution N° 3638-2005-SETENA, the Administration granted environmental viability to the Proyecto Minero Crucitas. Two years later, on December 6, 2007, the developing company submitted to SETENA a proposal for changes to the mining project. This request was resolved by SETENA in two months, approving the changes introduced by Industrias Infinito, through resolution N° 170-2008-SETENA, issued on February 4, 2008. This administrative resolution, in the opinion of the Court, is vitiated by absolute nullity both in its motive and in its procedure, because the Administration did not request a new Environmental Impact Assessment (Estudio de Impacto Ambiental, EIA) to evaluate the changes intended to be incorporated.\n\nBefore going into the detail of that omission, it must be borne in mind that the act by which the Administration grants environmental viability to a project is undoubtedly a regulated administrative act, insofar as it is provided for in Article 17 of the Organic Environmental Law (Ley Orgánica del Ambiente) and in the Regulation on Environmental Impact Assessment Procedures (Reglamento sobre los Procedimientos de Evaluación de Impacto Ambiental, Decreto Ejecutivo N° 31849), as well as in the Manual of Technical Instruments for the Environmental Impact Assessment Process (Decreto Ejecutivo N° 32966). However, the company Industrias Infinito defends the thesis that, in cases where the assumptions contained in subsection 3 of Article 46 of Decreto Ejecutivo N° 31849 are met, a new environmental impact assessment was unnecessary. Nevertheless, this Court observes that subsection 3 of that Article 46, while containing a series of criteria for making adjustments to the original design (not for dispensing with an EIA), criteria that were indeed invoked by the witnesses of the co-defendants in their statements, it is also true and forceful that said subsection was not in force in Decreto Ejecutivo N° 31849 on the date when Industrias Infinito submitted its change proposal, nor on the date when SETENA approved such modifying proposal, since subsection 3 of Article 46 was added to the Regulation on Environmental Impact Assessment Procedures through Decreto Ejecutivo N° 34688, which was issued only on February 25, 2008, i.e., on a date subsequent to those two moments of the administrative procedure. In the specific case, we could hear the witnesses Sandra Arredondo (environmental regent, regente ambiental), Eduardo Murillo (SETENA official), and Sonia Espinoza (SETENA official at that time), state that given the change proposal by the company Industrias Infinito, SETENA did not consider it necessary to require a new environmental impact assessment to analyze those changes, for several reasons: the project did not vary in its essence, it was developed on the same site, it did not change its project category, the activity remained the same, and neither the industrial zone nor the tailings zone varied, with the extraction area actually being reduced. They stated that according to SETENA's criteria, under those circumstances, it was not required to request a new environmental impact assessment. All the foregoing reflects that in the event of introducing changes to the original design of a project, there exists a scope of administrative discretion to assess whether or not a new Environmental Impact Assessment must be requested. This Court, acting as a controller of legality (Article 49 of the Political Constitution), and specifically the control of administrative discretion (Articles 16 and 160 of the General Public Administration Law), finds that according to logic and reasonableness, the changes proposed by the company Industrias Infinito in 2007 were, without a doubt, substantial modifications to the project originally presented before SETENA. The changes discussed here being substantial, the interpretation made by SETENA could not be restrictive regarding the Environmental Impact Assessment, given the assessment of the impacts that a project classified as Category A and in a sensitive area such as the environmental one would cause. Therefore, it could not opt, as it did in the specific case, to dispense with that environmental assessment instrument, nor would it have been valid to dispense with the environmental impact assessment by relying on a regulatory norm (we refer to subsection 3 of Article 46 of the aforementioned Regulation), because we must clearly remember that it is the Law itself that requires the Environmental Impact Assessment when human activities alter or destroy elements of the environment or generate toxic or hazardous waste or materials, as ordered by Article 17 of the Organic Environmental Law, and Article 3 of the Mining Code, for the specific case of mining exploitation concessions, norms that should have been applied in light of the precautionary principle (principio precautorio) provided for in Article 11 of the Biodiversity Law (Ley de Biodiversidad), and thus imposed the obligation on the Administration to best guarantee the protection of the environment. (Only for illustrative purposes, reference is made on this issue to Constitutional Chamber resolution N° 2003-6322 at 2:14 p.m. on July 3, 2003). Well then, the Court reaches the conclusion that the proposed changes were substantial, because from the document called “Environmental Assessment of Proposed Changes” and from the testimonies of Sandra Arredondo and Eduardo Murillo, it follows that the extraction depth was varied, going from an original proposal that provided for extraction only of the superficial soil layer called saprolita, whose depth reaches up to a maximum of 20 meters, to extracting not only saprolita but also hard rock, whose extraction depth reaches up to 67 meters deep, thereby increasing the volume of material to be processed (6700 tons per day). Furthermore, the project went from originally providing for the creation of a single lagoon (tailings lagoon, laguna de relaves) to creating a second lagoon, called Fortuna, which arose precisely from the effect of increasing the extraction depth at Cerro Fortuna, impacting the lower or confined aquifer that exists in the area. It is not omitted to refer that the term of the operation phase was extended to 9.25 years. These changes, from the conceptual design point of view, were extremely relevant for the development of the project, and in any case, it is evident that these new actions proposed by the co-defendant Infinito were not harmless to the environment, since such modifications generated a serious impact on the natural resources of the area, especially on the water resource, which enjoys significant protection in our legal system. On this point, suffice it to say, regarding Laguna Fortuna, that according to the Environmental Assessment of Proposed Changes document, the area of the base of the Fortuna pit (tajo) was calculated at 19103.8 m2, and the area of the water surface once recovered was calculated at 88096.6 m2 (folio 176). That is, as can be seen by its dimensions, it involves an impact on the soil and water resource that implies a quite considerable extension. Now then, from a strictly logical point of view, it is not possible for this Court to conceive that the Administration requested an Environmental Impact Assessment when the proposal only provided for the extraction of saprolita, but decided not to request it when the company intended the extraction of hard rock, which significantly increased the depth level, even allowing the impact on a lower aquifer without knowing its recharge zones and its extension. Let us recall that the Proyecto Minero Crucitas was classified by SETENA as a Category A project, that is, of high environmental impact significance, and in this sense, it is relevant to highlight that in addition to the legal norms previously cited, Article 27 of the General Regulation on Environmental Impact Assessment Procedures (Decreto Ejecutivo N° 31849) and its Anexo 1, require that projects of this category, within which mining exploitation concessions are included, require the submission of an Environmental Impact Assessment. From this perspective, there do not appear to be valid justifications from a legal point of view, nor applying average human logic and reasonableness, for the Administration to have omitted to request the aforementioned environmental assessment instrument.\n\nFurthermore, it should be taken into account that the expert witnesses Allan Astorga (geologist) and Yamileth Astorga (marine biologist expert in water resources), who are credible to this Court by reason of their testimonies, classified the changes introduced as substantial, indicating that by having changed the project in that manner, SETENA should have issued new terms of reference to evaluate those changes, through form D1. Both were clear on the point that the risks related to the water upwelling (brote de agua) that would be produced by the impact on the lower or confined aquifer, the risk of contamination of that water resource, and the omission to analyze the environmental cost of affecting that aquifer were not analyzed, coupled with the fact that the studies presented by the company did not analyze the size of the aquifer and its impact on the public supply wells in the area. These opinions expressed by experts in the matter show that the criticisms pointed out by the Court at a legal and logical level also find support at a technical level, which allows the conclusion that resolution No. 170-2008-SETENA is vitiated by absolute nullity for having dispensed with the Environmental Impact Study, which affects the purpose of the act by not having taken said instrument into account for the issuance of the final act, and also generates a defect in the procedure, since, evidently, the procedural course established by articles 27 and following of Executive Decree No. 31849 was not followed, a formal omission that is considered substantial in accordance with article 223 of the General Public Administration Act, by virtue of having dispensed with the entire pre-established procedure for those purposes.\n\nIt cannot be left unsaid that although article 95 of the Biodiversity Law grants SETENA the discretion to determine when a public hearing must be held, in this case the same reasons that lead this Court to consider that a new environmental impact study should have been requested are applicable for holding a public hearing in view of the proposed changes. While it is true that the witness Sonia Cervantes (Sociologist) explained that the people in the area were informed, by the company, of the modifications intended to be introduced to the project and that there was no opposition to them, SETENA could not ignore that the Organic Law of the Environment imposes a duty on the State to promote the participation of the inhabitants of the Republic in decision-making and actions aimed at protecting the environment (principle of citizen participation regulated in article 6), and article 22 of that law provides that every physical or legal person has the right to be heard at any stage of the evaluation process and in the operational phase. Thus, it is considered that, in application of the precautionary principle, in this case it was essential to convene a public hearing to publicize the proposed changes, since it was a mega-project of national interest and because the public hearing was the mechanism that best guaranteed the participation of all the inhabitants of the country in the evaluation procedure.\n\nFinally, and for greater abundance, the Court considers that the environmental viability (viabilidad ambiental) that SETENA had granted to the Crucitas Mining Project through resolution No. 3638-2005-SETENA had expired by the time resolution No. 170-2008-SETENA was issued, which is why a new act preceded by an environmental assessment (evaluación ambiental) should have been issued and not simply the approval of the changes proposed by the company. See that resolution No. 3638-2005-SETENA, issued on December 12, 2005, provided in point number 8 of its operative part (por tanto) the following: *\"The validity of this viability (viabilidad) shall be for a period of two years for the start of extraction. In the event that extraction does not begin within the established time, the provisions of current legislation shall apply.\"* For its part, the Regulation on Environmental Impact Assessment Procedures, Executive Decree No. 31849, in the wording of its article 46 at the time of the presentation of the changes, established the following: *\"The environmental viability (viabilidad (licencia) ambiental), once granted, shall have a maximum validity of two years prior to the start of activities of the activity, work, or project. In the event that, within that period, activities are not initiated, the developer must request, prior to expiration, an extension of its validity from SETENA, in accordance with the procedure to be established in the EIA Manual.\"* As can be derived from the foregoing elements, once the environmental viability was granted in the month of December 2005, Industrias Infinito should have begun the extraction works, or else, requested an extension of the validity of the viability prior to the expiration of the term, the same having been fulfilled in the month of December 2007. In this matter, there is no record that the developer requested an extension from SETENA; consequently, when resolution No. 170-2008-SETENA was issued, the term established in the regulation and in resolution 3638-2005-SETENA itself had fatally elapsed, so by that time the viability had expired (caduca). Let us remember that according to doctrine, expiration (caducidad) has the effect of extinguishing the act, and its cause arises from the non-exercise of the right within a determined period. In this regard, it cannot be affirmed that the modification request submitted by the codefendant company had the virtue of interrupting the term of the viability, since by basic principle the institute of expiration (caducidad) is fulfilled by the simple passage of time and is not susceptible to being interrupted, as happens with the case of prescription (prescripción). Neither can it be affirmed that the introduction of changes has the effect of tacit extension of the environmental viability, since subsection 3 of article 46 of Decree No. 31849 was not in force at the time the request was submitted, nor at the time resolution No. 170-2008-SETENA was issued. Consequently, since the environmental viability granted in 2005 had expired (caducado), this is found to be yet another reason that obligated SETENA to request a new Environmental Impact Study, to carry out a new evaluation procedure, and to issue a new final act, and not to limit itself simply to approving the modification presented by the codefendant company, as it did.\n\nTherefore, for all the reasons stated, in accordance with numerals 158 and 166 of the General Public Administration Act, resolution No. 170-2008-SETENA is vitiated by absolute nullity and is so declared.\n\n**XIII- ON THE OMISSION TO EVALUATE THE PROPOSED CHANGES AND THE FAILURE TO FULFILL DUTIES BY SETENA.**\n\nStill in relation to the issue of the proposed changes, and without ignoring that the Administration in this case should have requested a new Environmental Impact Study to evaluate said changes, the Court finds that SETENA, in its resolution No. 170-2008-SETENA, failed to fulfill its legally assigned functions, regulated in articles 84 subsection a) of the Organic Law of the Environment and 2 of the Mining Code, which establish, in their respective order, that said body is responsible for *\"analyzing environmental impact assessments\"*, and that its operational and functional responsibility is the *\"comparative, technical, economic, social, cultural, financial, legal, and multidisciplinary analysis of the effects of a project on the environmental surroundings, as well as the proposal of measures and actions to prevent, correct, or minimize such effects.\"* In this regard, it must be remembered that numeral 66 of the General Public Administration Act establishes that the powers of imperium and their exercise, and the public duties and their fulfillment, are non-waivable, non-transferable, and imprescriptible, and in the specific case, it is observed that the Administration omitted to carry out a technical and scientific analysis regarding the proposal for changes presented by the company Industrias Infinito, especially of the impacts that the modifications would produce and the mitigation and compensation measures suggested, with SETENA limiting itself to producing a report in which the aspects mentioned by the developing company itself in its proposal are basically reproduced. Observe that in the document called Environmental Assessment of Proposed Changes, the company makes a description of the project activities in its different phases: construction, operation, and closure, and makes its own assessment of the impacts in each of the phases and on the resources air, water, and soil, and finally lists what, in its opinion, would be the mitigation and compensation measures to be implemented in the three phases (pages 143 to 214). However, SETENA, through its Environmental Auditing and Monitoring Department (Departamento de Auditoría y Seguimiento Ambiental), in report ASA-013-2008-SETENA, which served as the basis for the issuance of resolution No. 170-2008-SETENA, merely limited itself to repeating the information that was already contained in the document presented by the company, and omitted to carry out the technical analysis required by Law. Thus, by way of recount, the referenced report indicates that it is intended to reduce the extractive area, extracting, in addition to the saprolite, also the hard rock, which entails working at average depths of 67 meters. That the area to be intervened corresponds to the Botija and Fortuna hills. That the extraction of rock implies the use of blasting and that the company commits to contracting a company certified in this type of intervention. That the rest of the areas remain almost unaltered. That the CYPLUS technology is used for the cyanide destruction process. That the baseline studies show a low potential for acid drainage. It copies the comparative table of changes presented by the company. And it ends by pointing out that an updated diagnosis of environmental, social, and economic conditions of the project was attached, that an identification of impacts and their assessment in the project phases was presented, that within the monitoring plans, the follow-up of baseline data regarding various elements as well as a protocol for hazardous substances is incorporated, and that within the Environmental Management Plan an Oversight and Monitoring Commission for the Crucitas Project will be created.\n\nWith this simple enunciation, without an analysis of the studies presented by the company and the required assessment of environmental impacts, the evaluation team finally recommended that the Plenary Commission of SETENA proceed to accept the modification proposal. Based on this lax report, the Plenary Commission decided to approve the changes suggested by Industrias Infinito, and issued resolution No. 170-2008-SETENA, which, it is worth saying, also did not incorporate any major analysis regarding the modification proposal presented. Here we must remember that at the trial stage, the witness Marta Elena Chaves Quirós, a Geologist by profession, who at the time of the facts worked as an official of the Environmental Auditing and Monitoring Department, clearly stated that she had not participated in the evaluation of the request for changes to the project, even though in the certification admitted as evidence for better provision on page 2204 of the judicial file, her name is indicated as part of the evaluation team, which was composed of Forestry Engineer Eduardo Murillo Marchena and Agricultural Engineer Sonia Espinoza Valverde. The witness also stated that, in her experience, approximately 6 to 7 months would be required to evaluate the modifications to the project. If we confront these statements with the fact that Industrias Infinito's proposal was approved in two months, and that a geologist, who would be the most suitable professional to evaluate the impacts that the change in extraction depth would produce and the impact on the lower aquifer, did not participate in the supposed evaluation, added to the fact, easily verifiable, that report ASA-013-2008 and resolution No. 170-2008-SETENA did not analyze the documentation provided by the developing company, we can conclude, according to sound criticism, that in this case SETENA failed to fulfill the competence legally assigned to that public body, omitting not only having requested a new Environmental Impact Study, a defect that has already been explained, but also omitted to analyze the documentation of changes presented by the codefendant Industrias Infinito, an omission that, therefore, also occurs with respect to each of the technical issues discussed in this proceeding, as will be explained in subsequent recitals (considerandos). Consequently, in the opinion of this Chamber, resolution No. 170-2008-SETENA violated articles 19 and 84 subsection a) of the Organic Law of the Environment, and article 66 of the General Public Administration Act, and being inconsistent with the legal order, in accordance with articles 158 and 166 of the General Public Administration Act, the cited administrative resolution is vitiated by absolute nullity and is so declared.\n\n**XIV- ON THE IMPROPRIETY OF THE CONVERSION OF THE EXPLOITATION CONCESSION ACT.**\n\nIn relation to this issue, the Court finds that there are three criteria for which it was not legally appropriate to apply the institute of conversion of the administrative act, in relation to the exploitation concession (concesión de explotación) that had been annulled by the Constitutional Chamber in 2004.\n\nIn the first place, we must keep in mind that convalidation (convalidación), cure (saneamiento), and conversion (conversión), are mechanisms designed so that the Administration can preserve administrative acts that, while suffering from some defect of relative or absolute nullity, are still in force in the legal order. However, this was not the situation of resolution No. R-578-2001-MINAE, through which the Executive Branch had granted the mining exploitation concession in favor of Industrias Infinito, and it was not the same situation because this administrative act had been annulled by the Constitutional Chamber through a final and definitive resolution, and consequently, from that moment on the act was eliminated from the legal order; in other words, it was no longer in force, thus making the discussion of whether the conversion of that act was viable or not lose its interest. Here the distinction, to some extent raised by Mr. Eduardo Ortiz, between \"defect of absolute nullity\" as a condition that affects the act and \"declaration of absolute nullity\" as a pronouncement that extinguishes the act, acquires importance. In this latter case, the act ceases to have validity in the legal order and therefore the Administration would be unable to \"revive\" it. From the foregoing, a very important consequence is derived, because admitting the thesis of converting an act annulled by the Constitutional Chamber, a thesis that is defended in this proceeding by the representation of Industrias Infinito, would imply accepting that the Administration can disregard the final and definitive decisions issued by the Courts of Justice and the Constitutional Chamber (article 153 of the Political Constitution), with the Administration being able to resort to the conversion of the act to revive public conducts that had already been eliminated from the legal order, which is clearly violative of the principle of legal certainty, and would constitute a very dangerous precedent for the stability of our Rule of Law. In this regard, Eduardo Ortiz Ortiz is clear when referring to the effects of annulment judgments, indicating the following: *\"There is a clear difference in the LGAP between jurisdictional annulment and declaration of nullity. The latter, as was said, provides the legal order with a single legal innovation, which is the creation of res judicata on the existence of that nullity as a fact, which is thus converted into legally indisputable and certain for all legal effect and for all subjects and Courts, given the erga omnes character that the respective judgment has\"* (Ortiz, Eduardo. Tesis de Derecho Administrativo Tomo 2, p.574). Consequently, in the Court's opinion, it was not viable to apply the conversion to an administrative act that had been annulled by a resolution of a Court of the Republic, regardless of the fact that in the Operative Part (Por Tanto) of its resolution, the Chamber inserted the phrase: *\"all without prejudice to what the environmental impact study determines,\"* since from it no express permission can be inferred for the Administration to apply the conversion of the act at a later time, and this is confirmed from resolution No. 14009-2010, invoked by the defendants, where the Chamber itself clearly indicates that the propriety or not of the conversion of the concession is a matter of legality that must be discussed in this venue, as well as the issue of the nullity of the act, by indicating that at the time it was interpreted that what was declared by that Chamber was a relative nullity, so that by referring the discussion of those aspects to this venue, any intention of the Constitutional Court to allow the annulled concession act to be revived subsequently is discarded, and that the nullity declared was a relative nullity, because had it been so, it would have expressly stated so in that resolution. These reasons, assessed in accordance with the rules of sound criticism, generate in the Court the conviction that the conversion used by the Administration to revive the concession act constituted a fraudulent mechanism to circumvent the application of the moratorium decree, since at the time of the issuance of resolution No. R-217-2008-MINAE (April 2008), said Decree was still in force and was binding for the specific case.\n\nAs a second criterion for considering the conversion of the act improper, we find that the implementation of that legal figure was contrary to the precautionary principle in environmental matters, for the following reasons. In a correct application of the complex act theory, we consider that the Directorate of Geology and Mines (Dirección de Geología y Minas) was obligated to review and analyze in detail the content and scope of the act that granted viability to the Project, as well as the act that approved the proposed changes, and could not disregard the content of those conducts, as was acknowledged in the oral and public trial by the Director of Geology and Mines, Francisco Castro Muñoz, who indicated that the department under his charge does not intrude upon the competence of SETENA and that in their resolutions they only cite what SETENA says, but do not review that information. If Geology and Mines had proceeded in that manner, exercising its competences in a due and lawful manner as the law mandates, it could have noticed that SETENA was approving an impact that said department had prohibited in the very resolution they were attempting to convert. We refer to the maximum extraction limit up to elevation number 75 (meters above sea level), a technical condition that was set in resolution No. R-578-2001-MINAE, and which resolution No. R-217-2008-MINAE ordered to maintain, by expressly referring to official communication No. DGM-DC-2085-2001, prepared by the geologist Sofía Huapaya, an official of Geology and Mines (a topic which will be further elaborated upon later). This condition is not capricious because numeral 6 of the Mining Code establishes that concessions may be conditioned for reasons of national interest, and without a doubt, the protection of the lower aquifer is a matter of public interest, as it concerns potential sources of water supply to the communities. Therefore, faced with these circumstances that reveal uncertainty regarding the treatment that would be given to the underground water resource, in application of the precautionary principle, the Directorate of Geology and Mines should have, in the specific case, rejected the requests formulated by the company Industrias Infinito to convalidate the act annulled by the Constitutional Chamber, and instead, immediately ordered the performance of a new administrative procedure in accordance with the Mining Code and its regulation, and issue a new final act, in which it would be technically defined whether or not impacting the lower aquifer would be permitted, and also guaranteeing the harmlessness of the extractive activity on that aquifer, just as the precautionary principle mandates.\n\nLastly, and for greater abundance, the Court finds that from the point of view of its nature, it was improper to apply the institute of conversion in this case. It is essential to remember that said figure presupposes the issuance of an act different from the absolutely null act (something that does not happen in this case), and its purpose is not aimed at curing the invalidity of the act but rather tempering its effects. In this sense, Eduardo García de Enterría explains: *\"Finally, article 65 of the law regulates the scenario of the conversion of null and voidable acts such that if said acts contain the constituent elements of a different one, they may produce the effects of the latter. The law operates here on the plane of effectiveness, not on that of validity. The null or voidable act does not cease to be such, nor is it cured or convalidated. If so requested by the interested parties, there will be no remedy but to declare its nullity. However, the consequences of said nullity are sweetened, admitting by law as legitimate those effects that may be considered protected or justified by the elements of the act not affected by the defect that determines its nullity or voidability (for example, an irregular appointment of a permanent official may produce the effects of an interim appointment)\"* (Curso de Derecho Administrativo, 2008, Tomo I, p.630). In the same sense, Mr. Eduardo Ortiz Ortiz referred, as recorded in record No. 103 of legislative file No. A23E5452, corresponding to the General Public Administration Act, in the following manner: *\"This is somewhat odd but it is simply the following, suppose that an official is unduly appointed in the Civil Service without observing the procedures that the Service contemplates, the doctrine calls 'conversion' the phenomenon consisting in that the Administration that carried out that act, even if absolutely null, due to total disregard of the Civil Service selection procedure, may convert the appointment of an absolutely null permanent official into the appointment of an interim, because for an interim appointment there is no need for a competitive examination or selection, then provided that the absolutely null act presents all the formal and material elements of another that does not require the elements of the act that was intended to be performed, this latter can be converted into the former, in the case of the appointment of a permanent official with the selection procedure, into the appointment of an interim official that does not require a selection procedure, provided it is declared that the absolutely null appointment of a permanent official is converted into the appointment of that same gentleman as an interim employee ...\"* (Ley General de la Administración Pública, concordada y anotada con el debate legislativo y la jurisprudencia constitucional, 1996, pp.286 and 287). Therefore, in accordance with the foregoing, in conversion it is required that the absence of the element that vitiated the first act (for example a selection procedure) must be an element inherent to the second valid act (for example, selection procedure is not required in an interim appointment). In short, the defect that invalidates the first act must be contained in the second, but in a valid form. We understand, then, why article 189 of the General Public Administration Act demands as a condition for conversion that the invalid act present all the formal and material requirements of the valid act. Having clarified these elements, we can easily deduce that in the case under examination such assumptions were not fulfilled and could not be fulfilled, since the lack of an Environmental Impact Study, which was the defect producing the absolute invalidity of the first concession act, was not an element inherent to the second concession act issued through resolution No. R-217-2008-MINAE, because the apparent existence of an Environmental Impact Study was the reason adduced by the Administration to apply the conversion of the first act. Therefore, for these reasons, the application of article 189 was absolutely improper, as is hereby declared.\n\nIt must be said in this judgment that this Court is quite surprised that, having the interested company requested the convalidation of the concession act, the Administration was so solicitous in this case – something that is not common – and, ex officio, reframed the presented request, setting aside the consideration of any of the reasons that have been here missed, but the Administration finding what was sought at that time by the company Industrias Infinito to be highly viable, a situation that in light of sound criticism further confirms the conviction of these judges of the irregularity and illegitimacy of resolution No. R-217-2008-MINAE.\n\nNow then, it is necessary to remember that, during its conclusions, the representation of Industrias Infinito insisted on the point that the Constitutional Chamber, when issuing judgment 2004-13414, applied retroactively the principle that environmental impact studies must have been carried out and the environmental viability must have been granted, prior to the start of the activity that requires said type of study to be carried out.\n\nLikewise, the representative of Industrias Infinito emphasized the argument that Article 34 subsection ch) and numeral 97 subsection g), both of the Mining Code, were declared unconstitutional only in 2009. With these allegations, that defendant has attempted to suggest that even though in 2001 the law did not contemplate the environmental impact assessment (estudio de impacto ambiental) as a prerequisite to granting the concession, the Constitutional Chamber interpreted that it was necessary and in 2004 annulled said concession, despite the fact that it was not until 2009 that the legal framework establishing said study as something subsequent to the granting of a mining concession was declared unconstitutional. On this point, it must be noted that this proceeding does not discuss the act by which the mining concession was granted in 2001, much less the Constitutional Chamber ruling of 2004 that declared said concession null, nor is the constitutionality of the Mining Code articles that were annulled by the Constitutional Chamber through ruling number 2009-17155 of November 5, 2009, being judged. However, since this is an argument put forward by the representation of Industrias Infinito during the oral and public trial conducted in this proceeding, it becomes appropriate to state that this Court appreciates that the Constitutional Chamber never retroactively applied the rule that environmental impact assessments and the corresponding environmental viability (viabilidad ambiental) are prerequisites for the authorization of certain activities. This is because by 2004, when the Constitutional Chamber annulled the mining concession granted to Industrias Infinito in 2001, a tacit repeal of Article 34 subsection ch) and numeral 97 subsection g) of the Mining Code had already occurred. Indeed, through the Organic Environmental Law, number 7554, of October 4, 1995, published in the Official Gazette La Gaceta number 215, of November 13, 1995, it was provided, in Article 17 of said legal body, that human activities that alter or destroy elements of the environment must have an environmental impact assessment as a prerequisite for the initiation of activities, works, or projects. In that sense, the Crucitas mining project could not even begin, much less be a concessionaire, if it did not first have the approval of the environmental impact assessments. And it must be observed that the environmental impact assessment is a requirement for the development of mining activity, as provided in numerals 3 and 6 of the Mining Code, which is Law number 6797 of October 4, 1982, published in the Official Gazette La Gaceta number 203 of October 22, 1982, which, as can be seen, predates the Organic Environmental Law. Furthermore, Article 3 of the Mining Code already mentions the approval of the study as something prior to the granting of the exploitation concession. It being evident that by provision of law, specifically the Mining Code, mining activity requires an environmental impact assessment, then numeral 17 of the Organic Environmental Law determines that in this matter, the environmental impact assessment and the corresponding environmental viability are conditions precedent to the granting of a mining concession. This, in turn, implies the tacit repeal, from the effectiveness of the Organic Environmental Law, that is, from November 13, 1995, of numerals 34 subsection ch) and 97 subsection g) of the Mining Code, which, in contradiction with the same Code, allowed granting a concession before having approved environmental impact assessments. Seen this way, the annulment pronouncement made by the Constitutional Chamber in 2009 does nothing more than expressly resolve a normative problem that had been tacitly resolved since 1995. In that sense, furthermore, the Constitutional Chamber pronouncement that in 2004 meant the absolute nullity of the mining concession granted to Industrias Infinito in 2001, did not retroactively apply any norm, but rather, in protection of the right to a healthy and ecologically balanced environment, what it did was order that, as legally corresponded, the then already effective (and it had been since 1995, it is worth reiterating) rule that prior to granting a mining concession, duly approved environmental impact assessments were required (or what is the same, a previously granted environmental viability is needed to be able to grant a mining concession) be applied in mining activity. And it cannot be overlooked that in matters of environmental impact assessments, the Organic Environmental Law contains a special and subsequent norm, of the same rank as the Mining Code, that requires carrying out such examinations and having their approval, as a step prior to the development of any project, which implies that it is a condition that must be met before a mining concession is granted.\n\nOn the other hand, as part of its arguments, the representation of Industrias Infinito invokes Transitory Provision I of Decreto Ejecutivo N° 29300-MINAE, which is the Regulation to the Mining Code (effective from March 16, 2001), which establishes that “all applications that are in process as of the date of publication of this regulation, will continue their process under the regulatory norms in effect at the time of their submission.” In relation to this norm, the Court does not find that it justifies the propriety of the conversion of the act, because it must be reiterated that, in this case, the co-defendant company, after 2004, had no concession rights declared in its favor. It was eliminated from the legal system by the Constitutional Chamber. Nevertheless, it was revived in an unlawful manner by the Administration seven years later, which is precisely the defect that is being declared in this administrative litigation proceeding. Therefore, the only right that Industrias Infinito has had declared in its favor and that has not been questioned, is the exploration permit, which, as already indicated, could never automatically grant the right to a concession, since such an interpretation injures the intelligence of this Court, violates the legal system, and translates into nothing more and nothing less than a gross fraud of law (fraude de ley).\n\nFinally, the co-defendant cites Articles 164, 168, and 223 of the General Public Administration Law; the first two embody the principle of conservation of administrative acts and the second also does so in relation to administrative procedure. These provisions must be discarded to support the conversion so often mentioned, since, as explained before, it was not legally possible to revalidate or revive an act that had already been annulled by the Constitutional Chamber, nor were the conditions established by numeral 189 of the General Public Administration Law met, and in any case, the substantive law applicable to the specific case (environmental law) imposed that, due to the inaccuracies and contradictions that existed between the environmental viability, the approval of the changes to the project, and the technical conditions set by Geology and Mines, there was uncertainty about the impact on the lower aquifer, which necessarily obliged the Administration to conduct a new administrative procedure.\n\nThus, for all these reasons, in accordance with Articles 158 and 166 of the General Public Administration Law, because it is inconsistent with the legal system, resolution N° R-217-2008-MINAE is vitiated by absolute nullity and is so declared.\n\n**XV- ON THE VIOLATION OF PROCEDURE, THE ABSENCE OF A BALANCE BETWEEN BENEFITS AND COSTS, AND THE LACK OF REASONING OF DECRETO N° 34801-MINAET.**\n\nIn relation to the decree that declared the Crucitas Mining Project of public interest and national convenience, Decreto Ejecutivo N° 34801-MINAET, this Court considers that it presents defects in procedure, in motive, and in reasoning, as explained below.\n\nIn relation to procedure, it is important to begin by noting that, according to the classification of administrative acts established in the General Public Administration Law, decrees are administrative acts of general scope, that is, they are not directed at an identified subject, but at the generality of citizens (Article 121 of the cited Law). In that sense, it is important to remember that the General Public Administration Law provides a special procedure for the preparation of this type of general scope provisions. Thus, numeral 361 provides the following: “1. A hearing shall be granted to decentralized entities on draft general provisions that may affect them. 2. Representative entities of general or corporate interests affected by the provision shall be given the opportunity to express their opinion, within a ten-day period, unless reasons of public interest or urgency duly recorded in the preliminary draft oppose it. 3. When, in the judgment of the Executive Branch or the Ministry, the nature of the provision so advises, the preliminary draft shall be submitted to public information, during the period indicated in each case.” In the specific case, the Court finds that the President of the Republic and the relevant Minister grossly disregarded this procedure, since a review of administrative file N° DAJ-077-2008, which supports Decreto Ejecutivo N° 34801-MINAET, does not show, not even remotely, acts aimed at complying with the procedure stipulated by Law to be able to lawfully issue this Decree, nor is it found that there exist reasons of public interest or urgency that justify the non-compliance with this requirement necessary for the validity of the alluded Decree, much less were such reasons expressed in that act. Rather, the Court considers that, on the contrary, as it concerned a provision declaring a mega-mining project of “public interest and national convenience,” it was absolutely necessary to grant the representative entities of general or corporate interests, whether environmentalists, academic sectors, or business groups, the period established in the cited Article 361, so that these organizations could pronounce on the project, and based on those pronouncements, the Executive Branch could perform the balance required by Law, to decide whether or not to declare the activity of national convenience and public interest, something that did not happen as can easily be verified. Even the Court considers that the enormous national importance of this mining project made it imperative to submit the preliminary draft of the Decree to public information, as permitted by subsection 3 of Article 361, in relation to numeral 6 of the Organic Environmental Law (principle of citizen participation), applicable to the specific case due to the specialty of the matter, which very clearly provides as follows: “The State and the municipalities shall encourage the active and organized participation of the inhabitants of the Republic, in decision-making and actions aimed at protecting and improving the environment.” Despite the foregoing, the intention of the Executive Branch to comply with said provisions was never reflected in the administrative file, nor in the text of the document itself. In administrative file DAJ-077-2008, which supports the challenged Decree, only the following pieces are recorded: (1) approximately twelve letters signed by neighbors, the mayor of the municipality, some associations, and others addressed to Minister Roberto Dobles; (2) an unsigned executive summary that says “October 2008”; (3) copies of some rulings of the Constitutional Chamber; (4) official communication SG-ASA-259-2008, of October 10, 2008, signed by Sonia Espinoza Valverde, Secretary General of SETENA, addressed to the Director of the Huetar Norte Conservation Area, where she points out that if environmental viability is granted to a project, it is because the balance obtained shows that the benefits are greater than its costs; (5) the draft of the Decree; (6) official communication DAJ-1570-2008, of October 13, 2008, signed by attorney Marianela Montero Leitón, Legal Advisor of the Ministry of Environment, Energy, and Telecommunications, addressed to the Minister, stating as follows: “With the approval of this Legal Department, please find attached for your respective signature, the Decree identified as DAJ-077-2008, corresponding to the “Declaration of Public Interest and National Convenience of the Crucitas Mining Project.”; (7) a one-page executive summary also signed by the Ministry’s Legal Advisor, which, in relevant part, states: “Subject: Declare the Crucitas Mining Project as of public interest and national convenience, with the consequences that said declaration produces. (...) Derived Results: The developing company, with prior authorization from the corresponding office of the National System of Conservation Areas, may proceed with the felling of trees, including prohibited species, and the development of infrastructure works in protection areas.”; (8) official communication DAJ-1573-2008, of October 14, 2008, signed by the same Advisor, addressed to the Directorate of Laws and Decrees of the Ministry of the Presidency, which states as follows: “So that it may be signed by the President, please find attached, the Decree identified as DAJ-077-2008, corresponding to the “Declaration of Public Interest and National Convenience of the Crucitas Mining Project” (folios 4 to 102 of the referenced file). As can be observed, the file through which Decreto Ejecutivo N° 34801-MINAET was processed reflects that the preparation of that act lacked the slightest rigor, diligence, and respect for analyzing the merits of the matter, or for giving publicity and participation to citizens or organizations regarding the scope of this declaration. This action is found to be extremely harmful, inasmuch as not only was the special procedure for the preparation of general scope provisions regulated in Article 361 of the General Public Administration Law not complied with, but neither was the minimum requirement that our legal system demands for the valid issuance of an administrative act met, which is the completion of a prior administrative procedure (ordinary or summary), as ordered by Articles 214, 308, and 320 of the cited Law, in relation to ordinals 5 and 106 of the Biodiversity Law. Given this panorama, what is perceived in light of the rules of sound criticism is the most “unprecedented” haste of public officials to issue, at all costs, this Decree and to allow, as a main purpose, the co-defendant company to fell the forest and trees in the area in dispute, without even stopping to analyze whether prohibited, endangered, or endemic species existed there, a situation that, in the judgment of this Court, translates into a clear deviation of power (desviación de poder) (Article 131.3 of the General Public Administration Law), that is, the pursuit of an end different from the main purpose that a declaration of public interest and national convenience must follow, emptying the prohibition of felling established in the Forest Law and Decreto 25700-MINAE of content, and favoring the developing company in the execution of the Crucitas Mining Project. With all that, it is relevant to point out that the violation of the procedure enshrined in Article 361 of the General Public Administration Law constitutes an omission of a substantial formality, which, pursuant to Article 223 of the referenced legislation, entails the nullity of everything acted upon by the Administration, an aspect that this Court can declare even ex officio, as expressly provided by Article 182.1 of the General Public Administration Law. For all the reasons set forth, the arguments put forward by the defendants that the challenged Decree constitutes an act of execution are rejected, since it is abundantly clear that it is a separate act of a general nature, which has its own procedure and responds to a regime and purposes independent and distinct from the exploitation concession act and the environmental viability act.\n\nNow, in relation to the motive of the act, the Court finds that this element is vitiated in Decreto N° 34801-MINAET, given that the Forest Law in its Article 3 subsection m) provides that activities of national convenience are those whose social benefits are greater than the socio-environmental costs, and the norm states that the balance must be made through “appropriate instruments.” It is clear then that, in order to determine whether the Crucitas Mining Project was of national convenience, the Ministry of Environment, Energy, and Telecommunications had to establish an ordinary administrative procedure, and proceed, through the appropriate technical and scientific instruments, and with the prior pronouncement of the affected sectors, to perform the balance between social benefits and socio-environmental costs. Once the procedure was completed, and having taken into account the previous elements, the Executive Branch could lawfully issue the Decree, declaring national convenience, if the weighing of those elements permitted it. However, as we could verify in this case, Decreto 34801-MINAET was issued in the absence of the balance and in the absence of the criteria that organizations of general or collective interests could have put forward, all of which seriously vitiates the motive of the general provision challenged here. It is important to add here that the testimony of Sonia Cervantes (Sociologist) is not useful for demonstrating that balance, because said professional made a biased analysis, which only considered social and economic variables of the Project zone, but not a global analysis of costs and benefits in national terms. The witness clearly indicated that she conducted two studies, one in 2007 to present before SETENA and another this year, to be presented in this proceeding. Evidently, neither of the two corresponds to the analysis that the Executive Branch had to perform to declare the Crucitas Mining Project of public interest and national convenience, and it is not valid to affirm in this proceeding that it corresponds to the same SETENA procedure, because they are different acts, with different legal purposes and different regulated procedures. As explained by witnesses Sandra Arredondo, Eduardo Murillo, and Sonia Espinoza, in the SETENA procedure what is applied is an environmental importance matrix, which is a methodology aimed at evaluating the environmental impacts of a specific project or activity, carried out within the framework of that specific competence assigned by the Organic Environmental Law to SETENA, and it cannot be equated with the balance of costs and benefits established by the Forest Law for the purpose of declaring a specific activity of national convenience, whose competence corresponds to the Executive Branch, as provided in Article 34 of said Law, recalling that the Executive Branch is exercised by the President of the Republic and the relevant Minister (Article 130 of the Political Constitution). The same reasons must be stated regarding the document called “Executive Summary Socio-Economic Balance” provided by the State and appearing in a separate file, since this document does not indicate the date it was prepared, the professionals who participated in its elaboration, or whether it was presented to a specific public office, and under these conditions, it constitutes evidence that generates many doubts for the Court to be taken into account. For these reasons, this Chamber concludes that the Decree is seriously vitiated in its motive.\n\nFinally, the Court finds that Decreto N° 34801-MINAET presents a defect in the element of reasoning or motivation (fundamentación o motivación), insofar as this is considered not only scarce for the magnitude of what was being declared in that act of general scope, but also that it does not make even the slightest reference to the documents, studies, expert reports, or other technical and scientific elements that support and justify the national convenience of the project, and no further information can be obtained beyond the references made there in a very general way, to the supposed benefits that the mine will bring, which basically boil down to potential jobs and payment of taxes (an obligation established by law), aspects that in themselves do not imply any substantial difference with respect to other commercial activities developed in the country day by day, and for which a Decree of national convenience has not been required. The generality of the information presented there and the absence of the technical and scientific basis that supports that information prevent the Court from exercising control over the technical correctness of the so-called “appropriate instruments” provided for in the Forest Law, based on which the Executive Branch had to perform the balance of costs and benefits to later issue the decree. In addition to this, it is duly noted that the challenged Decree indicates a number of areas on which the felling of trees is required on the properties of Industrias Infinito, specifically, 191 ha 7782.66 m² of forest, 66 ha 9474.53 m² of agricultural/livestock use without forest, and 4 ha 1751.38 m² of forest plantations (for an approximate total of 262 ha); however, at no time does the Decree indicate where this data comes from, nor is that information found in file N° DAJ-077-2008, with the aggravating factor that SETENA permitted the exploitation activity in the Crucitas Mining Project on a total area of 227.6 ha, meaning there is a difference in areas between one act and the other of approximately 34 ha, a situation that creates in this Tribunal a state of absolute uncertainty regarding the correct and serious determination of the zones subject to tree felling, which, pursuant to the precautionary principle, obliged the Executive Branch to refrain from issuing said Decree, for containing so many technical imprecisions detrimental to the conservation and protection of forested areas and detrimental to the conservation of wildlife. All these absences and inconsistencies, in the Court's judgment, translate into a violation of Article 136 of the General Public Administration Law, which imposes on the Administration the duty to adequately state the reasons for its acts.\n\nIt remains to be noted that the fact that Article 6 of the Mining Code declares mining activity to be of public utility, does not imply that the Crucitas Mining Project had, in and of itself, the condition of being a project of national convenience, because to acquire that condition, a series of assessments and procedures are required that must be verified in each specific case, and these are established by the Forest Law, as has been previously explained. In any case, it could not be accepted that the public utility provided for in the Mining Code constitutes per se the exception to the prohibition of tree felling in forest zones and in protected areas, since such an interpretation would be somewhat incoherent and, on top of that, fraudulent, given that the Forest Law is not only a special law regarding such aspects, but is also a law subsequent to the Mining Code.\n\nIn summary, for all the reasons set forth, it is concluded that Decreto Ejecutivo N° 34801-MINAET, in accordance with Articles 131, 133, 136, 158, 166, 223, and 361 of the General Public Administration Law, is vitiated by absolute nullity and is so declared.-\n\n**XVI- ON THE DEFECTS OF THE LAND-USE CHANGE PERMIT.**\n\nClosely related to the previously developed topic, the Court finds that resolution N° 244-2008-SCH, issued by the Arenal-Huetar Norte Conservation Area, presents defects in motive and also incurs a deviation of power. In this debate, expert witnesses expressly recognized that the questioned resolution presented serious errors in the identification of the species or individuals existing in the project zone. In this regard, witness Quírico Jiménez Madrigal (Forestry Engineer) was emphatic in pointing out that the list of trees to be felled in areas with forest cover, contained in table N° 2 of the Por Tanto of resolution N° 244-2008-SCH, a fact proven in this proceeding, included species that do not grow in the area and species that do not exist in Costa Rica, additionally detecting that there were threatened species and species in extinction. As species not from the sector, he indicated, among others, the following: Copalillo, Corteza, Guabo, Lechoso, Lorito, Mangle, Muñeco, Nance, Nancite, Nene, Panamá, Pellejo de Vieja, Poró, Ron Ron, Sangrillo, Targuá, among others. Among the endangered species, he pointed out Cipresillo, Cola de Pavo, and Tostado, the latter which he also classified as endemic (that is, only grows in that region). For his part, witness Javier Baltodano Aragón (Biologist specializing in Dendrology) also referred that in the list of species contained in resolution N° 244-2008-SCH, individuals were identified that are not typical of the Huetar Norte zone. He stated that in the project zone there are only 5 Cola de Pavo trees in 161 hectares, and that the Tostado is an endemic species in that sector. He indicated that Tostado, Cola de Pavo, and Cipresillo are species prohibited by Regulation.\n\nHe further explained that the yellow almendro is not in danger of extinction, but its cutting is prohibited because it is a nesting site for the green macaw (lapa verde). Finally, witness Olman Murillo (Forestry Engineer) explained that what exists in the area is mostly secondary and intervened forest. He stated that he agreed with Quírico Jiménez in the sense that, as a scientist, it is not acceptable to have species identification errors. He acknowledged that Ajillo, Mangle, and Panamá are not native to the area, and that Tostado and Cola de Pavo are endemic and threatened species. He pointed out that from the standpoint of the land-use change (cambio de uso) authorized by the State, the identification of species is irrelevant because what will be applied there is a clearcutting (tala rasa); however, he argued that as a Forestry Engineer, the correct identification of species is indeed relevant for their conservation purposes. Well then, in accordance with the foregoing statements of the expert witnesses, which are coincident, the Court concludes that three defects in the grounds of the act occurred. First, the Administration omitted, when issuing the resolution, to take into account the fact that in the sector subject to logging there are species that are protected by a logging ban under Executive Decree No. 25700-MINAE, in force since January 16, 1997, and as of the date of issuance of the act, such as Cipresillo, Cola de Pavo, and Tostado. This omission is considered serious, given that the Área de Conservación Arenal-Huetar Norte only took into consideration that an Environmental Impact Assessment (Estudio de Impacto Ambiental) existed and that Executive Decree No. 34801, published on the same day this resolution was issued, declared the Crucitas Mining Project of national convenience. Notwithstanding the foregoing, the logging ban established by Executive Decree No. 25700-MINAE was issued under a different legal regime than that regulated by the Forestry Law (Ley Forestal), as it was done under the protection of the Convention on Biological Diversity (Law No. 7416) and the Wildlife Conservation Law (Law No. 7317), and its purpose was the conservation of certain trees in danger of extinction, based on the right of the species that make up wildlife to their subsistence. The aforementioned laws do not provide for the possibility that the State may disapply a general prohibition to protect endangered or threatened species when a project is declared of national convenience, as the Forestry Law does establish for two specific cases: areas covered by forest (article 19) and protection areas (article 34), situations that do not correspond to that regulated by Executive Decree No. 25700-MINAE. It is even important to note that in the Forest Management Plan (Plan de Manejo Forestal) itself, presented by the co-defendant company, the presence of threatened or protected species is acknowledged, such as those mentioned previously, which appear with very low representation; and in this regard, the consulting team that prepared that plan clearly indicated that “in these cases, the company will take the actions indicated by MINAE, Área de Conservación Arenal-Huetar Norte, Subregional San Carlos-Los Chiles, Alajuela, as mitigation or compensation measures” (folio 665 of volume 3 of the administrative file of the Área de Conservación No. AH01-PM-03-08), which allows the conclusion that the company knew of the existence of protected species prior to the authorization process. In summary, it is deemed that by failing to take this aspect into account when issuing resolution No. 244-2008-SCH and not having ruled on the matter, a defect in the grounds of the act occurred, as this was an essential issue affecting its content. Second, another defect in the grounds of the act occurred, since it is clear that the Área de Conservación Arenal-Huetar Norte did not correctly identify the individual trees in the area, a situation that had a significant impact in this case, because it was not a simple clearcutting in the area for which the land-use change permit was granted; rather, the company committed to reforesting 382 hectares of forest with native species, a commitment that was proposed as a compensation measure both in the Forest Management Plan (folios 270, 288, and 289 of volume II of the administrative file of the Área de Conservación No. AH01-PM-03-08), and in the oft-mentioned document of Proposed Changes to the Project (see point 6 of table 1.3 at folio 199 of the Environmental Assessment of Proposed Changes to the Project document). Evidently, due to the lack of certainty regarding the native species existing in the area, as a result of the multiple errors contained in resolution No. 244-2008-SCH, such a situation renders nugatory one of the essential purposes that this administrative act was required to fulfill, which was precisely the correct execution of the Management Plan, which itself had to contain, regarding the species to be cut, the certainty necessary to carry out the reforestation in a technically correct manner. Finally and thirdly, the aforementioned resolution is vitiated in its grounds, for having taken into account, as an essential element for its issuance, Executive Decree No. 34801-MINAET, which was an absolutely null act, in the terms explained in the preceding recital. Despite the arguments of the representation of Industrias Infinito, the discussion regarding whether the questioned logging affected primary or secondary forest areas is not relevant here, because according to the testimony of witnesses Olman Murillo and Sandra Arredondo, secondary and intervened forests predominate on the properties of the co-defendant company, so there is no controversy on this aspect. The essential defect is that the company committed to reforesting the project area with native tree species existing there, such that their incorrect identification in the challenged act affects the fulfillment of that commitment, which goes hand in hand with the purpose established in Article 1 of the Forestry Law, which is precisely the conservation and protection of forests, regardless of whether they are intervened or not, as established by subparagraph d) of Article 3 of that Law. Therefore, the land-use change permit in this case cannot be seen as a simple clearcutting, as that would entail ignoring the essential purpose pursued by the Forestry Law, and even the essential purpose of the Convention on Biological Diversity and the Wildlife Conservation Law, regarding the conservation of certain species, such as, in this case, those subject to a cutting prohibition.\n\nFor the same reasons, it is also not relevant to discuss whether the intervened forest could or could not be subject to exploitation, because what is essential here, as has been stated many times, is the full compliance with the purpose of the act, as it was formulated by the company itself, such that the improper identification of native species and the omission of taking into account protected species affects the grounds of the act and causes its absolute nullity. These omissions are also attributable to the company Industrias Infinito, because if they had assumed the commitment to reforest the areas with native species, they should have exercised the due diligence and interest to ensure that the act had sufficient technical correctness, a situation that is dismissed here because at no time did the company request that threatened species be taken into account, whereas, on the contrary, it was very diligent in commencing without delay the cutting of trees on the very same day that Executive Decree No. 34801 was published, which by the way was the same day resolution No. 244-2008-SCH was issued; such a circumstance is presumed based on the relationship of dates of both the issuance of the resolutions and the notification from the Chamber of the suspension of logging. The foregoing is inferred from the declaration of Sandra Arredondo, who indicated that the logging began on a Friday and was stopped on a Monday by order of the Constitutional Chamber, which is coincident with the date of the resolution that authorized the logging (Friday, October 17, 2008) and the official letters issued by the Minister of Environment and Energy, on Monday, October 20, 2008, requesting the company to refrain from continuing actions in the Project area, due to the filing of an amparo appeal. All of the foregoing reveals that the land-use change permit and Decree 34801-MINAET, published on the same day, October 17, 2008, constitute a set of actions that pursued a purpose that was not the one established by the aforementioned laws, and therefore both present the defect of deviation of power, and it is so declared.\n\n**XVII- REGARDING THE PUBLIC ROAD.**\n\nDuring the oral debate and trial, the existence of a public road was formulated as a new fact, duly admitted by this Court, as is evident from the first recital, over which the company intends to build part of the tailings pond (laguna de relaves). This Court was informed that, through a petition filed by the defendant company Industrias Infinito S.A., before the Dirección de Geología y Minas on March 10, 2009, it requested said body to constitute a mining easement (servidumbre minera) of permanent occupation over a municipally owned piece of land, specifically over a road. Prior to the specific analysis, it is important to cite some indispensable regulations for resolving the specific point at issue.\n\n**Public roads are defined and classified in the General Law of Public Roads, in its first article referring to the cantonal road network, which establishes the following:**\n\n**(..)** CANTONAL ROAD NETWORK: Its administration corresponds to the municipalities. It shall be constituted by roads not included by the Ministerio de Obras Públicas y Transportes within the National Road Network: such as; a) Local roads: Public roads providing direct access to farms and other economically rural activities; connecting hamlets and villages with the National Road Network, and characterized by low traffic volumes and high proportions of short-distance local trips, b) Local streets: Public roads included within the quadrant of an urban area, not classified as urban crossings of the National Road Network, and finally c) Unclassified roads: Public roads not classified within the categories described above, such as bridle paths, footpaths, trails, that provide access to very few users, who will defray the maintenance and improvement costs. (Thus amended by Law No. 6676 of September 18, 1981, Article 1). **For its part, Article two establishes that** \"The municipalities have ownership of the streets within their jurisdiction.\", numeral 28 prohibits the disposition of said roads other than that of their nature, indicating, in what is relevant: \"It is strictly prohibited (...) for Municipalities to grant permits or rights of occupation, enjoyment, use, or simple possession of the right-of-way of public roads or to exercise acts that imply in any manner tenancy of the same by individuals.\" For the protection of said roads, Article 32 provides that \"No one shall have the right to close partially or totally, or to narrow, by fencing or building, roads or streets given by law or in fact to the public service or to the service of an owner or residents of a locality, unless it proceeds by virtue of a judicial resolution issued in proceedings conducted with the intervention of representatives of the State or the respective municipality, or by rights acquired in accordance with laws prior to this one or the provisions of this law.\", in this regard, the Construction Law, in its Article 5, provides that: \"Public roads are inalienable and imprescriptible, and therefore, no mortgage, attachment, use, usufruct, or easement (servidumbre) in benefit of a specific person, in the terms of common law, may be constituted over them.\" On this point, the Constitutional Chamber, in its reiterated rulings, among them ruling 2005-07053 of June 7, 2005, develops: \"II.- LEGAL NATURE OF PUBLIC ROADS. Public roads constitute public domain assets (bienes demaniales). This is evident from Article 5 of the Construction Law, No. 833 of November 2, 1949 (...) This allocation to the public domain regime originates from the power inserted in Article 121, subparagraph 14, of our Political Constitution, where it is enshrined as an attribution of the Legislative Assembly to *\"decree the alienation or the application to public uses of the Nation's own property\"*. Regarding the characteristics (...) it has expressed the following:\n\n\"The public domain is composed of assets that manifest, by express will of the legislator, a special destiny of serving the community, the public interest. These are the so-called dominical assets, demanial assets, public assets or things, which do not individually belong to private parties and which are destined for public use and subject to a special regime, outside the commerce of men, that is, affected by their own nature and vocation (Ruling No. 2306-91 of 14:45 hrs. of November 6, 1991). Consequently, these assets belong to the State in the broadest sense of the concept, they are affected to the service they provide, and which is, invariably, essential by virtue of an express norm. Notable characteristics of these assets are that they are inalienable, imprescriptible, unseizable, cannot be mortgaged or susceptible to encumbrance in the terms of Civil Law, and administrative action substitutes for interdicts to recover possession. Under this line of reasoning, highways, streets, or public roads, by their condition as assets forming part of the public domain, cannot be alienated without first having been removed (desafectados) from the public domain regime. Thus, the public domain nature of public roads is presumed and excludes any other possession that may be claimed, provided that the title over the property is backed by reliable evidence and without prejudice that in the ordinary jurisdictional venue, the better right that is claimed may be discussed.\"\n\nFrom the summary of the facts deemed proven, regarding the public road, it is extracted that the defendant company Infinito S.A., in March 2009, submitted an express request before the Registro Minero de la Dirección de Geología y Minas, based on Article 50 of the Mining Code, so that a mining easement of permanent occupation over municipal land would be processed, without directly informing in its request that it involved a road, for which it attached to its request photographs of the aforementioned road, as well as an appraisal of the same. In said body, Ms. Cynthia Cavallini, head of the Registro Minero, granted processing to the easement, requesting the corresponding appraisal from the Ministerio de Hacienda. From the evidence in the case file, a certification from the Municipalidad de San Carlos accredits the existence of a cantonal public road, specifically 2-10-104, which has been registered since 1962 on Cartographic Sheet No. 3348 IV of the Instituto Geográfico Nacional. This Court, in reviewing the factual framework and the evidence in the case file regarding such fact, finds not only an absolutely irregular action by the Registro Minero but also a violation of the legal system, both by the administration and the defendant company, which, despite having knowledge of the existence of the road since its initial project proposal in December 1999, the request for environmental viability (viabilidad ambiental), the one for proposed changes before SETENA, and the convalidation of the act, did not disclose before the administrative bodies the existence of the public road and its intention to build part of the tailings pond over said road, grossly evading the necessary procedures to gain access to said land. It is of interest to highlight that both the Municipal entity and the administrative bodies had full knowledge that the construction of an essential component of the mining project (tailings pond or tailings) was intended over a public road, because from all the reports rendered from the year 2000 until the last approval in 2008, both by SETENA and by the Dirección de Geología y Minas, field visits were conducted, which allowed them to verify the location of the project and each of its components; nevertheless, they ignored the existence of the public road, since from both the facts and the evidence in the case file, as well as from the requests of the mining company, it is evident that the location of the tailings pond has not varied since the start of the project, nor its size, which is corroborated in the table of proposed changes analyzed by SETENA and not questioned by the Dirección de Geología y Minas, within its obligation to analyze SETENA's decision when granting environmental viability; furthermore, from the same easement request, the company informs that studies were conducted since the end of the \"90s\", and \"that based on the results found, the design engineers of the company Industrias Infinito decided to locate the tailings pond at the site currently proposed, because it meets the best conditions from a technical and environmental standpoint\", which reveals that the disposition of the public road intended by the company was a circumstance known since its initial proposal - year 1999 -, a circumstance that was never mentioned and evaluated by the administrative bodies in charge of granting both environmental viability and the exploitation concession. This was a core situation to assess, because to approve the location and construction of one of the essential components of the project - the tailings pond - over a cantonal public road, which would disappear completely, indispensably required that the company process with the Municipalidad de San Carlos the possibility of removing (desafectar) the public road from public use in order to dispose of it, and that the administrative bodies request from the company the indispensable requirement regarding whether it had disposition of said land, occupied by the public road, an essential condition that was disregarded. The defendant company, in defense of its interests, has argued that the road was in a state of abandonment and disuse, this latter element being indispensable according to its criterion, which meant that when a new section of the road - cantonal route 2-10-104 - was enabled, that sector which was of its interest and indispensable for its project was considered disaffected (desafectado), both due to disuse and its compensation in a new section; a thesis that is unacceptable to this Court, as it is flagrantly violative of our legal system. It cannot be overlooked that the public nature of the road is not under discussion to assess elements of its constitution - such as its use - because it has been declared as public at least since 1962 on the cartographic sheet of the Instituto Geográfico Nacional. In addition to the foregoing, the company has argued that when the Municipality realigned the road, part of it is immediately disaffected, a statement that violates the entire regime of protection of public domain assets, because the contrary would be to allow private individuals, according to their interests and by attributing disuse or abandonment to them, to freely dispose of public domain assets, which clashes against what is established by constitutional norm - Article 121, subparagraph 14 -. The affectation of public domain assets can occur by formal act, by integration as a consequence of their purpose, by law, and some others by constitutional norm under the assumptions of subparagraphs a, b, and c of subparagraph 14 of numeral 121 of our Political Constitution; the foregoing means that public domain assets declared as such can only be removed (desafectados) from their special regime or purpose by legislative act, not by discretionary acts of the administration or extensive interpretations by such bodies or private subjects for whom it is of interest; in the specific case, the unacceptable attempt is made to justify that a section of route 2-10-104, a cantonal public road, was disaffected by a realignment carried out by the municipal entity, a situation that the Ministerio de Obras Públicas y Transportes itself highlights, by indicating in the evidence provided in the case file, that both the administration and the disposition of cantonal routes correspond to the Municipalities, and that in the specific case, even though the realignment of the road was communicated by the Municipalidad de San Carlos, the original layout of the road, as well as the section added to it, is preserved in the registration at the cantonal road network department. It is extracted from the evidence provided to the process - folios 2309 to 2374, 2379, 2380, 2408, 2409, 2412 to 2415 of the judicial file - that although since 2006, Gerardo Fernández Salazar and María Ester Pérez Hidalgo donated a piece of land to the Municipalidad de San Carlos, on which a new section of the road - route 2-10-104 - was built, which was also enabled in substitution for the section of the road over which the company Infinito S.A. intends to build part of the tailings pond, and that local residents expressed their agreement with such substitution, such a proceeding does not have the intended effect claimed by the defendant Infinito S.A. of disaffecting part of a cantonal public road that is of its interest, which, as indicated supra, can only occur through the corresponding legislative proceeding and authorization, which is notably absent in this process.\n\nRegarding the disregard of such a requirement by public bodies, it is a complete violation of the legal system not to have asked the company whether the municipal land over which it intended to arrange the construction of part of the tailings pond had been disaffected.\n\nIt is of special importance to analyze the mining easement request. A request for a permanent mining easement over municipal land, destined since 1962 as a cantonal public road, was filed before the Dirección de Geología y Minas, which was processed personally by Ms. Cavallini. In the oral and public trial, Mr. Francisco Castro stated that he has worked in that directorate for 35 years, and since 1984 has been under his supervision; he declares that even though he exclusively and personally processed the request for reconvention of the act, he was unaware of the company's easement request, which he learned of a few days before his testimony in the trial, and that the initial technical procedure to follow in that type of procedure is to conduct a field inspection to determine the viability of the easement, and then continue with the legal processing. He also acknowledges that when a concession request is filed, the first thing that must be done is its location on the mining map, that the topographer in charge conducts a field study with the registered plan of the property that must be submitted by the interested party; he also indicated that he is unaware if they want to close the road, even though he acknowledges visiting the project site on several occasions. On the other hand, and contradictorily, Ms. Cavallini declares in the trial that her boss, Mr. Francisco Castro, knew about the easement request, and that the procedure first involves requesting the appraisal, which is what she did, and not a field visit. This Court cannot overlook such a contradiction, and what is even more serious, that the head of the mining registry since 1993, who is a lawyer, processed the request for a permanent mining easement over a cantonal public road, information that is clearly derived from the appraisal provided by the company, as well as from the photographs accompanying said appraisal and the company's request, without the official taking into account that the land over which the permanent easement was sought is a public road, since the documents submitted did not indicate that it had been disaffected. In the trial, she accepted that due to her legal training, she knows it is indispensable that the land must have been disaffected to assess the constitution of the easement, and she openly acknowledges that it was her responsibility to corroborate such a requirement, since she personally processed the request in her capacity as head of the Registro Minero, but she did not do so, and sent the request to the Ministerio de Hacienda for its valuation. She further indicates that she does not know the document shown to her at trial (the response from the Tax Administration of Alajuela, visible in the administrative file labeled as new fact) in which she is informed that the land cannot be valued for its consequent expropriation, by virtue of being allocated to the public domain, because it is a public road, and that faced with such a circumstance, in a general situation, not for the specific case, Ms. Cavallini states that an easement request in those terms should have been rejected. She added that, according to the submitted request, if the tailings pond could not be built in the location indicated from the beginning of the project, its relocation and construction in another part of the project substantially varied the conceptual framework of the same, which obliged the concessionaire to notify Geología y Minas, so that the corresponding studies could be carried out. Thus, it is manifest, in this Court's opinion, that the administrative body - Dirección de Geología y Minas - was responsible, through its officials, for processing the mining easement request. They did not perform work in accordance with the functions imposed by law, and in this way they accepted the processing of a permanent mining easement over a public domain asset, in the absence of the indispensable requirement for its course: the disaffectation (desafectación) of the road.\n\nIt should be borne in mind that, pursuant to the regulations cited at the beginning of this Considerando, Article 28 of the Public Roads Law (Ley de caminos públicos), as well as Article 5 of the Construction Law (ley de construcción), both laws contain an express prohibition on the disposal of public roads, and on the constitution or granting thereon of permits, rights of occupation, enjoyment, use, possession, usufruct (usufructo), or easement (servidumbre) for common use, norms that were grossly disregarded both by the company Infinito in seeking the constitution of a permanent easement (servidumbre permanente), and by the administrative bodies and officials responsible for complying with the foregoing regulatory provisions.\n\nThe defendant company, in its pleadings, maintains that the easement (servidumbre) finds its basis in numerals 50 to 52 of the Mining Code (Código de Mineria); upon review of the same, these provide for matters relating to the constitution of a mining easement (servidumbre minera), including for the placement of tailings (relaves) deposits as in the specific case. However, it is evident that the company knew that the municipal land over which they sought the constitution of the permanent easement (servidumbre permanente) was a public road, which had to disappear to make the construction of the tailings pond (laguna de relaves) viable. This deposit, as was proven by the statements given at trial by the experts from both the plaintiff and the defendants, is permanent in its location, and its construction cannot be reversed, which would imply the permanent disappearance of the road. Consequently, the non-declassification and attempted disposal of the public road constitutes a defect that affects the grounds of Resolutions No. 3638-2005-SETENA, 170-2008-SETENA, and R-217-2008-MINAE, issued by SETENA and the Ministry of Environment, Energy, and Telecommunications (Ministerio de Ambiente, Energía y Telecomunicaciones), and it is so declared due to the disregard of the public road.\n\n**XVIII- ON THE TECHNICAL ISSUES INVOLVED.**\n\nAlthough the Court is not unaware that the administrative file contains studies prepared by the co-defendant company, in which the technical issues questioned by the plaintiffs are mentioned, the truth is that in this matter SETENA omitted to request a new Environmental Impact Study (Estudio de Impacto Ambiental) and omitted to analyze the changes proposed by the company to the original project design. This resulted, in this Court's opinion, in a waiver of the powers entrusted by Law to SETENA and, ultimately, in a lack of grounds for the act that approved the changes. Evidently, by not having carried out a technical analysis of the design changes and their impact, SETENA also omitted to provide a specific analysis on each of the technical issues involved, such as the use of cyanide, the risk of seismicity, and others. Faced with such an absence, the defendant parties attempted to substitute the technical function that corresponded to SETENA, bringing to the judicial process experts who would provide a favorable opinion on each of the technical issues questioned by the plaintiffs. The foregoing, however, is inconsequential for this case, because the Court could not exercise control over the technical correctness of the Administration's actions if the challenged act, nor its prior basis, contains a technical analysis from which such control can be exercised, as occurs in the case of Resolution No. 170-2008-SETENA and report ASA-013-2008-SETENA. Under such conditions, the Court could also not proceed in accordance with Article 128 of the Administrative Contentious Procedure Code (Código Procesal Contencioso Administrativo), which allows ordering the exercise of powers with discretionary elements, since the mentioned acts lack the technical elements that prevent exercising said control. It would be different if SETENA had carried out an exhaustive technical analysis of all the studies and documents submitted by the developer, issuing its opinion on each of the relevant technical issues and their challenges, so that in that case the expert witness testimony would aim to demonstrate, but not to supply, the technical and scientific correctness of the analyses carried out by the Administration. If this is not so, as is attempted in this matter, we would be allowing the Administration to cease exercising its legal functions and, in those cases where an administrative contentious lawsuit is filed, the defendant simply opts to bring an expert to substitute the work that the competent technical body failed to carry out. This conduct is deemed inconsequential and does not have the effect of remedying the omission to request an environmental impact study (estudio de impacto ambiental), as well as to verify the established procedure for conducting the corresponding impact assessment (evaluación de impactos). Notwithstanding the foregoing, the court will proceed to address the most relevant aspects that arose from the expert witness testimony in relation to the technical issues that have been questioned, evaluating them in accordance with the rules of sound criticism. It must be remembered that by virtue of the precautionary principle (principio precautorio) applicable to the case, the plaintiffs were not obliged to undeniably prove each of the proposed challenges, given that the assessment of these aspects arises from the weighting of the diverse technical opinions heard at trial, a task that corresponds to this Court, and which is set forth below, with the caveat that this pronouncement does not have the virtue of remedying the lack of technical analysis on the part of the Administration, a defect that affects Resolution No. 170-2008-SETENA with absolute nullity.\n\n**XIX- ON THE DEPTH OF EXTRACTION AND THE AFFECTATION OF THE LOWER AQUIFER (ACUÍFERO INFERIOR).**\n\nThe Public Administration is subject, as provided in Article 16 of the General Law of Public Administration (Ley General de la Administración Pública), to the unequivocal rules of science and technique, such that in no case can acts contrary to them be issued. This is important to remember because in the present matter a very relevant technical aspect has been discussed, which is the limit elevation (cota límite) for the extraction that Industrias Infinito projects to carry out. When the Crucitas mining project was initially submitted to the Directorate of Geology and Mines (Dirección de Geología y Minas), it contemplated extracting saprolite (saprolita) and hard rock from three hills: Fortuna, Botija, and Fuentes. That same original project contemplated, as part of the extraction process, intercepting two aquifers (acuíferos): one near the surface and another located several meters below the former. The first will be referred to as the upper aquifer (acuífero superior), while the second, as the lower aquifer (acuífero inferior). In this regard, it must be observed that in Resolution R-217-2008-MINAE, the Executive Branch (Poder Ejecutivo) made the mining concession (concesión minera) granted to Industrias Infinito subject to the condition that the technical conditions given by geologist Ana Sofía Huapaya Rodríguez-Parra through official letters DGM-DC-320-2001, of March 14, 2001, and DGM-DC-2085-2001, of November 26, 2001, be respected. This second official letter can be seen from folio 202 bis to folio 199 in the first volume of the administrative file (expediente administrativo) of the Directorate of Geology and Mines, and it should be noted that it is a document of great importance for the present matter, because in it, the aforementioned geologist, when specifying the technical conditions for extraction, was clear in stating: \"_According to the approved extraction methodology (Fortuna, Botija and Fuentes pits (tajos)) and the hydrogeological studies carried out in the area to be exploited and in which two aquifers are identified, the upper one being of potable nature, **the maximum extraction elevations (cotas máximas de extracción) will be up to 75 meters above sea level (msnm)** . Likewise, the company must guarantee the supply of drinking water to the town of Crucitas, special attention merits the well of the School of this same place. For this, it must build the necessary infrastructure_\" (bold and underline are not from the original). As can be seen, geologist Huapaya Rodríguez-Parra was precise in the referred document, establishing as the maximum extraction limit for the entire project, the elevation of seventy-five (75) meters above sea level (msnm). That official letter was issued on November 26, 2001, and is clear regarding the technical condition of limiting the extraction of material up to elevation seventy-five, which implies that excavation cannot be done below seventy-five meters above sea level. The reason for this limitation was explained in person by Huapaya Rodríguez-Parra herself, who, testifying at trial as an official of the Directorate of Geology and Mines, stated that said elevation (cota) was fixed in consideration that the lower aquifer (acuífero inferior) (also called the confined aquifer (acuífero confinado)) is located approximately at fifty or fifty-five meters above sea level and that the aim was not to intercept that aquifer. And the referred professional clarified that in this matter **the correct approach** is to speak of **meters above sea level** to have a uniform starting point, such as sea level, and from there a measurement of the **elevation** is made upwards. Thus, points are located according to their elevation above sea level, and this guarantees a standardized measurement of all excavations. And that geologist explained that the foregoing differs greatly from speaking of **depth** , because depth is relative, does not provide certainty about the extent of excavations, given that it starts from ground level downwards and since the surface height varies, indicating the depth of an excavation in **meters below ground level** will likewise always be relative to the point from which it began to descend. Returning to official letter DGM-DC-2085-2001, what is important to highlight is that it imposed the technical condition that extraction had as its limit the elevation of seventy-five meters above sea level. And here it is necessary to indicate that this technical condition was always known to Industrias Infinito, as it was included in Resolution R-578-2001 MINAE (visible from folio 240 to folio 227 in the first volume of the administrative file (expediente administrativo) of the Directorate of Geology and Mines), through which the concession (concesión) was granted that was later annulled by the Constitutional Chamber (Sala Constitucional) in judgment 2004-13414. It is necessary to point out that geologist José Francisco Castro Muñoz, Director of Geology and Mines, stated during his testimony in this trial that the extraction limit was set at the elevation of seventy-five meters above sea level, precisely to prevent the lower aquifer (acuífero inferior) from being intercepted. This coincides with what was stated by geologist Ana Sofía Huapaya Rodríguez-Parra and is fully consistent with the content of the technical condition contained in official letter DGM-DC-2085-2001. For these reasons, this Court considers that the purpose of the technical condition established by the Directorate of Geology and Mines was to prevent the referred lower aquifer from being intercepted; that is, the aim was to protect it. This technical condition was, as indicated, known to Industrias Infinito, since, as stated, it was contemplated in the mining concession (concesión minera) of 2001, which was later annulled. The importance of this condition, which there is no record that Industrias Infinito ever objected to, is that it meant a considerable reduction in the amount of material that could eventually be extracted. If one looks at the graphic visible at folio 3340 of volume XVII of the technical file (expediente técnico) of the Directorate of Geology and Mines, it can be seen that it was prepared by hydrogeologist Hugo Virgilio Rodríguez Estrada (who is the same professional who prepared the document visible from folio 3331 to folio 3350 in volume XVII of the technical file (expediente técnico) of the Directorate of Geology and Mines) in September 2000. Being a document from the year 2000, it is obvious that it was used during the processing before the Directorate of Geology and Mines, prior to the issuance of official letter DGM-DC-2085-2001. That is, it is one of the pieces examined in said Directorate before granting the concession (concesión) of 2001. And this is relevant, because **from the graphic it is inferred that the referred professional Rodríguez Estrada used the unit of meters above sea level (msnm) to establish the elevation of the excavations. It is also inferred from the graphic that the lowest point of the excavation planned to extract material from the Fortuna pit (tajo) would reach an approximate elevation of forty (40) meters above sea level (msnm), which implied intercepting the lower aquifer (acuífero inferior). This is what was projected by Industrias Infinito in the year 2000 and is precisely what the Directorate of Geology and Mines rejected by setting the extraction limit at seventy-five (75) meters above sea level (msnm), a decision that implies an impediment, based on technical reasons aimed at protecting the water resource (recurso hídrico), for Industrias Infinito to intercept the lower aquifer** . It is worth reiterating here that there is no record that this technical condition established in 2001 was ever objected to by Industrias Infinito, despite knowing it and being aware of the consequences it entailed for its extraction aspirations. Now it is necessary to indicate that both Ana Sofía Huapaya Rodríguez-Parra and José Francisco Castro Muñoz were in agreement in pointing out that the project that Industrias Infinito presented before the Directorate of Geology and Mines involved, at all times, the extraction of saprolite (saprolita) and hard rock, as well as being divided into extraction stages. That is, the purpose of the defendant company was, from the beginning, to exploit hard rock, which contemplated in its plans the interception of the lower aquifer (acuífero inferior). That is what the company itself stated before the Directorate of Geology and Mines. But that is precisely what Industrias Infinito did not state before the National Environmental Technical Secretariat (Secretaría Técnica Nacional Ambiental). If one looks at the graphics prepared by the same hydrogeologist Hugo Virgilio Rodríguez Estrada at folios 213 and 211 of the environmental impact study (estudio de impacto ambiental) (those contained in a single volume that says it brings together the two volumes of the study, indicating that the first goes from chapter 1.0 to 5.0 and that the second goes from chapter 6.0 to chapter 14.0) submitted by Industrias Infinito before the National Environmental Technical Secretariat in **March 2002** (that is, after knowing the technical condition of the Directorate of Geology and Mines that limited extraction to seventy-five meters above sea level), it can be noticed that they only describe the upper aquifer (acuífero superior) and that they contemplate a measurement of elevation in meters above sea level. Although it might seem that this conduct conforms to the limitation imposed by the Directorate of Geology and Mines, this Court considers that this is not so, because after obtaining environmental viability (viabilidad ambiental) in 2005, two years later, in 2007, Industrias Infinito requested various modifications to the original environmental viability, among which are the extraction of hard rock and the interception of the lower aquifer (acuífero inferior). See the graphic on folio 175 in the file called \"Environmental Assessment of Proposed Changes to the Project\" and it will be appreciated that the design is basically the same one that in the year 2000 had been proposed to the Directorate of Geology and Mines and that in 2001 had been technically limited to an extraction elevation of seventy-five meters above sea level. **What happens is that in 2007, Industrias Infinito, fully aware of that technical limitation imposed by the Directorate of Geology and Mines, submitted to the National Environmental Technical Secretariat an application that sought to excavate below the elevation of seventy-five meters above sea level. Again, in 2007, it was Industrias Infinito that insisted on extracting material with excavations that would reach, at their lowest point, an elevation of between thirty-five and forty meters above sea level, which, by all accounts, violates the condition imposed in official letter DGM-DC-2085-2001, which, it bears repeating, there is no record was ever objected to by that legal entity. And that is a conduct attributable to Industrias Infinito, and to no one else** . Through this action, the defendant company misled the National Environmental Technical Secretariat, and this **malicious conduct** by the referred company cannot be overlooked, not even due to the fact that the officials of the indicated Secretariat also acted with total disregard for their duty to verify the conditions imposed by the Directorate of Geology and Mines before approving what was requested by Industrias Infinito. And it is that in mining matters, in which the Directorate of Geology and Mines also has an active role in protecting the environment, the officials of the National Environmental Technical Secretariat cannot disregard what is mandated by that other agency when assessing the studies related to the environmental viability (viabilidad ambiental) of a project. In this matter, both Sonia Espinoza Valverde and Eduardo Murillo Marchena expressed that they, as officials of the National Environmental Technical Secretariat, had no reason to examine what was decided by the Directorate of Geology and Mines. They are mistaken, as they needed to fully know the technical limitations set by the latter, since they configure the framework within which the mining activity could potentially be developed and, consequently, it is on this framework that the environmental viability should have been examined. That the officials of the National Environmental Technical Secretariat disregard the technical limitations imposed by the Directorate of Geology and Mines for the development of a mining activity constitutes, in this Court's opinion, an unjustified neglect of the norms that seek to guarantee sustainable development. If examination on any other framework not pre-configured by the Directorate of Geology and Mines were permitted, this would imply a way of circumventing the technical limitations imposed by it, just as it would mean if the Directorate, when granting a concession (concesión), did not review the terms under which the Secretariat granted an environmental viability. **In matters of environmental protection related to mining activity, neither of these two bodies can disregard what was decided by the other** . In the particular case of the lower aquifer (acuífero inferior), the action taken by Industrias Infinito in 2007 and approved by the National Environmental Technical Secretariat on February 4, 2008, through Resolution No. 170-2008-SETENA, constitutes an illegal act, as it implies the violation of the technical conditions established in official letter DGM-DC-2085-2001. But not only that: **by seeking the interception of an aquifer (acuífero) that the Directorate of Geology and Mines expressly sought to protect, this action by Industrias Infinito, combined with the carelessness of the officials of the National Environmental Technical Secretariat, constitutes, in the eyes of this Court, a fraud of law (fraude de ley)** . This concept is contemplated in Article 5 of Law No. 8422 of September 14, 2004 (published in Official Gazette La Gaceta No. 212 of October 29, 2004), which is the Law against Corruption and Illicit Enrichment in Public Office (Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública). Fraud of law is configured when conduct is carried out under the protection of a normative text, but to pursue a result that does not conform to public purposes and the legal system. In the present matter, it is clear to this Court that, even if reasons such as the variation in the price of gold are invoked, the truth is that from the beginning the interception of the lower aquifer (acuífero inferior) was contemplated, because this was necessary to extract all the gold that Industrias Infinito planned to exploit. But that plan encountered the obstacle that, in order to protect the water resource (recurso hídrico), the Directorate of Geology and Mines established as the extraction limit the elevation of seventy-five meters above sea level, considering that the lower aquifer is located approximately between fifty and fifty-five meters above sea level. Thus, although it did not object to this limitation before the indicated Directorate, Industrias Infinito chose, in 2002, to present environmental impact studies (estudios de impacto ambiental) and to request environmental viability (viabilidad ambiental), announcing to the National Environmental Technical Secretariat that it would extract gold only from the saprolite (saprolita), which implied bypassing the lower aquifer. But having obtained environmental viability in 2005 for the extraction of saprolite, in 2007 it returned to the original plan, which did contemplate the interception of the lower aquifer. This plan had been announced before the Directorate of Geology and Mines since 2000 and was structured in stages, all components of a single project, as indicated at trial by Ana Sofía Huapaya Rodríguez-Parra and José Francisco Castro Muñoz. But to the National Environmental Technical Secretariat, Industrias Infinito presented, as if it were the entire project, what in Geology and Mines was only the first stage: the extraction of saprolite. And after securing that environmental viability to extract saprolite, they presented the misnamed modification, which was nothing other than returning to the plan originally presented in 2000. With this last action, what Industrias Infinito was evidently seeking was to overcome the obstacle posed by the technical limitation imposed in official letter DGM-DC-2085-2001 in order to intercept the lower aquifer (acuífero inferior) and extract all the gold it desired. And to be able to circumvent that limitation, Industrias Infinito took advantage of the regulatory possibility it has to request modifications to the environmental viability. That is, it used a regulatory provision to achieve a result not in conformity with the satisfaction of public purposes or the legal system, which this Court considers constitutes a fraud of law (fraude de ley). And the determination of this fraudulent action by the company is reinforced by the fact that during the debate, hydrogeologist Hugo Virgilio Rodríguez Estrada was confronted with the diagrams he himself created and that are visible at folios 3338 and 3340 of volume XVII of the technical file (expediente técnico) of the Directorate of Geology and Mines. Upon having them in view, the referred expert witness was clear in pointing out that they indicate the elevation in meters above sea level, as well as that he had created them in the year 2000. He also explained why it is important to indicate the elevation in said measurement and also established that this differs from the concept of depth, stating that elevation and depth are not coincident notions. The important thing is that after expressing all the foregoing, the witness was shown the document identified as **Annex 7 (Anexo 7)** and which is observed from folio 130 to folio 137 of the **volume corresponding to official letter DM-249-2009, of February 27, 2009** , through which the then Minister of Environment and Energy, Roberto Dobles Mora, issued a report expanding on the arguments of discharge in relation to the amparo process 08-014068-0007-CO, which culminated with the issuance of judgment 2010-06922 of the Constitutional Chamber (Sala Constitucional). What is important to highlight is that this Annex 7 (Anexo 7), titled \"Summary of the hydrogeological conditions and the expected effects in the Crucitas mining project,\" was prepared by the already mentioned expert witness, that is, by Hugo Virgilio Rodríguez Estrada himself. What draws attention is that in it (see in particular folio 132), this professional records that the lower aquifer (acuífero inferior) \"_is located at **depths** greater than **50 m below the ground** in the project area_\" (bold and underline are supplied) and then states that the \"_water would emerge upon reaching the topographic **elevation (cota)** of **73 meters below ground level (mbns)** _\" (bold and underline are not from the original). Upon reading the document during the hearing, hydrogeologist Rodríguez Estrada was clear in indicating that it contained an error, because it spoke of depths and meters below ground level, when previously, he himself had indicated that the correct approach was to speak of elevation and meters above sea level. Questioned about the error and its consequences, the deponent himself stated that both measures are not coincident and that confusing them could lead to mistakes. Asked whether carrying out the extraction as he describes it in Annex 7 (Anexo 7) (that is, starting from the idea of depth and meters below ground level and intercepting the lower aquifer (acuífero inferior)) would mean exceeding the technical limit set by the Directorate of Geology and Mines at seventy-five meters above sea level, the deponent limited himself to responding that the extraction he describes in that document does imply reaching the piezometric level of the lower aquifer, or what is the same, that the referred aquifer would indeed be intercepted. As can be seen, former Minister Dobles Mora provided, to be presented before the Constitutional Chamber (Sala Constitucional) (which was misled on the point), an apparently scientific document in which the interception of the lower aquifer (acuífero inferior) is presented as viable, in which the notion of depth and a measurement in meters below ground level are mistakenly used, when what is scientifically correct, as narrated by the very professional who prepared the document (which coincides with the opinion given by geologist Ana Sofía Huapaya Rodríguez-Parra and by geologist José Francisco Castro Muñoz), was to indicate the elevation in meters above sea level. And the important thing about this supposed error by hydrogeologist Hugo Virgilio Rodríguez Estrada is that this depth measurement indicated in Annex 7 (Anexo 7) is coincident with the idea of depth that the National Environmental Technical Secretariat handled in Resolution No. 170-2008-SETENA (visible from folio 4152 to 4157 in volume X of the administrative file (expediente administrativo) of the indicated Secretariat), in which was mentioned in the second Considerando, the need to excavate \"_at average depths of 67 m_\" (note in particular folio 4155 in the indicated volume of the referred file). In this sense, it is easy to appreciate how the confusion between the notions of depth and elevation was one of the factors that made possible the granting of the environmental viability (viabilidad ambiental) to the changes proposed to the project, thus ignoring and disregarding the technical limitation established by the Directorate of Geology and Mines since 2001, which consists of limiting extraction up to the elevation of seventy-five meters above sea level, which in turn implies intercepting the lower aquifer (acuífero inferior) contrary to the technical provisions of the mentioned Directorate.\n\nAnd Industrias Infinito's intention to mislead the Administration on the matter of comment becomes even more evident if it is considered that the interception of the lower aquifer is something essential for the development of the Crucitas mining project, since they counted on the water derived from said interception, which would be pumped to the tailings (relaves) or tails (colas) lagoon (which is an indispensable component of the project) and, furthermore, it was foreseen that with the interception of that lower aquifer, once the extraction was completed, the water would allow the creation of a lake (the so-called Lake Fortuna), which has been presented as one of the positive legacies that the mining project would leave and it has even been announced that the community could exploit the new lake. That is to say, the company has always counted on the interception of the lower aquifer, which demonstrates that Industrias Infinito has not tried to comply with the technical condition contained in official letter DGM-DC-2085-2001 and, in that sense, the fraud of law that has been attempted by presenting in 2007 before the Secretaría Técnica Nacional Ambiental supposed changes to the project that, in reality, were contemplated in the original plan presented since 2000 before the Dirección de Geología y Minas is apparent. The technical importance of the lower aquifer issue is, as indicated, evident, because without it, the Crucitas mining project cannot be developed as the company has foreseen. Regarding this, it must be said, finally, that even though in its conclusions the representation of Industrias Infinito argued that the company would simply abide by the extraction limit elevation (cota límite), the truth is that this is a simplistic and completely unsubstantiated statement, since not only does the documentation demonstrate that Industrias Infinito plans to do exactly the opposite of what its lawyers indicated here, but also the very professional who served as environmental regent (regente ambiental) of the project from 2007 to 2010, geologist Sandra Arredondo Li, stated openly how they plan to use the water from the lower aquifer, thus making it completely false that Industrias Infinito intends to respect the extraction limit it has known since 2001, that is, the elevation (cota) of seventy-five meters above sea level. For all the foregoing, independently of other reasons set forth in this judgment, this Tribunal considers that resolution number 170-2008-SETENA is absolutely null, since it lacks adequate reasoning, as well as a lawful motive, insofar as it disregarded the technical limitation established in official letter DGM-DC-2085-2001 of the Dirección de Geología y Minas and endorsed the changes proposed to the project, which were legally impossible to even examine given the aforementioned technical condition. And, in turn, given that resolution 170-2008-SETENA was essential for the issuance of resolution R-217-2008-MINAE, since the first is null, the second also becomes null and both must be so declared.\n\n**XX- ON THE USE OF HEAVY MACHINERY.**\n\nRegarding this point, witness Sandra Arredondo Li (environmental regent) stated that the use of crushers was foreseen from the initial design of the project, and explained that this was because although the saprolite (saprolita) layer is mostly clay soil, in that layer there may also be stone blocks that would need to be crushed, and witness Eduardo Murillo Marchena (Forestry Engineer and SETENA official) referred to it in the same sense. On this particular issue, the Tribunal finds that there is no major controversy, and therefore, proceeds to dismiss the arguments outlined on this topic.\n\n**XXI- ON THE USE OF EXPLOSIVES.**\n\nOn this topic, expert witnesses Sandra Arredondo Li (environmental regent) and Eduardo Murillo Marchena (Forestry Eng. of SETENA) testified, basically indicating that the studies presented by the company did foresee the use of explosives for the extractive activity. Expert witness Adrián Salazar Cyrman (Geologist), who declared exclusively on this subject, indicated that two weeks before giving his statement he had read the environmental impact assessment (Estudio de Impacto Ambiental), exclusively regarding the use of explosives. The witness was shown the document \"Evaluation of Proposed Changes\" (\"Evaluación de Cambios Propuestos\"), and after reviewing it on the topic of interest, he gave his favorable opinion alluding to the correction in aspects such as the established protection zone and the transport and safety protocols. On this particular issue, the Tribunal finds that although the statement of witness Adrián Salazar Cyrman was forceful in establishing that the company's studies guarantee adequate management of the use of explosives, his testimony does not have the virtue of substituting the technical analysis that the Administration omitted to issue when evaluating the proposed changes. As is evident from resolution No. 170-2008-SETENA, and from report ASA-013-2008-SETENA, the issue of explosives was not analyzed by SETENA, and consequently, the defects noted previously are reproduced.\n\n**XXII- ON THE DESTRUCTION OF CYANIDE.**\n\nIn relation to this topic, witness Eduardo Murillo Marchena, a SETENA official, stated that the company's studies foresaw a cyanide quantity of one part per million and that this was below what the standard establishes. He alluded to the fact that the company's study was endorsed by a Chemical Engineer. He also indicated that the cyanide destruction process was foreseen in the first study using an INCO technology, and that with the proposed change, a more efficient technology (Cyplus) was adopted. For her part, witness Sandra Arredondo Li, regent (regente) of the project, described the cyanidation (cianuración) process in the ground material for obtaining gold, the process of destroying cyanide in a specific plant, and that both the processed and unprocessed material are submerged in the tailings (relaves) lagoon, to which water with cyanide is also sent but at low levels. Finally, witness Orlando Bravo Trejos, Chemist, stated that he reviewed only the documentation provided to him by the company Industrias Infinito and that they contacted him in the month of August of this year. He described the cyanide destruction process, stated that with the new technology the cyanide is destroyed and that the levels of this component in the water after the process were very low and are not dangerous, which finish degrading naturally in the tailings (relaves) lagoon. He indicated that with this concentration of cyanide, no \"hydrocyanic rain\" (\"lluvia cianhídrica\") will occur nor will there be caustic gases. Well then, on this topic, the Tribunal considers that although the statement of witness Orlando Bravo was clear in establishing that the company's studies guaranteed adequate management of cyanide in material processing and that the concentrations of that substance will not represent danger in the tailings (relaves) lagoon, his testimony does not have the virtue of substituting the analysis that SETENA should have issued on this particular matter when evaluating the proposed changes. In resolution No. 170-2008-SETENA, and in report ASA-013-2008-SETENA, a rigorous analysis of the studies presented by the developer regarding this technical topic, as well as its impacts and mitigation measures, was omitted, and it simply indicates that there will be a leaching (lixiviado) process with cyanidation (cianuración), that the company committed to using the new CYPLUS technology (improved INCO), and that the natural degradation of that component in the tailings (relaves) lagoon is foreseen. As observed, the Administration omitted to conduct a technical analysis of this topic, and it is not admissible that the co-defendants, through an expert witness, intend to substitute that function proper to the competence of SETENA in this process, emptying the exercise of its legal powers of content. Consequently, the defects noted in this judgment are reproduced, just as was indicated before.\n\n**XXIII- ON THE TAILINGS LAGOON.**\n\nOn the point of this topic, witness Allan Astorga Gatgens (Geologist) stated that the tailings (relaves) lagoon (also called tails (colas) dam) has an area of 140 hectares, and that the ground rock from which the gold has been extracted is going to be deposited in it. He indicated that this material is dangerous because it contains cyanide, which represents a danger for the watersheds of the area, such as the Río San Juan. He pointed out that there could be a geological fault (falla geológica) underneath this dam, and that this could cause the rupture of the lagoon floor. He alluded that more studies are required on seismicity in the area. Witness Yamileth Astorga Ezpeleta (Marine Biologist) stated that it was not contemplated who would assume the maintenance of the equipment for controlling that lagoon after the closure stage. She argued that materials with heavy metals will be deposited in the dam, and that this could affect the Río San Juan, due to the risk of the dike rupturing. Witness Carlos Quesada Mateo (Civil Engineer) indicated that there is a risk to the stability of the tailings dam due to the country's climatic conditions. He points out that a rupture could occur due to soil saturation as a result of severe precipitation periods, or an overflow of surface waters. Witness Eduardo Murillo Marchena (Forestry Engineer and SETENA official) indicated that the annex to the environmental impact assessment (Estudio de Impacto Ambiental) analyzed the seismic threat issue, and that in that study it was determined that the zone has low seismicity. He pointed out that the studies modeled possible catastrophes, such as the impact from lagoon rupture, and in the event of an earthquake, the mitigation measure consisted of the collection of sediments at the confluence with Quebrada Mina. He argued that the tailings (relaves) lagoon would be filled with water coming from Quebrada Mina and then by a pumping system. Witness Sandra Arredondo Li (environmental regent) pointed out that the company committed to carrying out permanent monitoring of the tailings lagoon, and contemplated protocols for the management of hazardous substances, for the management of hazardous waste, and for water management. Finally, witness Walter Montero Pohly (Geologist expert in seismology and neotectonics) indicated that in the project area there is no active fault (falla) that crosses the site, he ruled out that there are lineaments suggesting the existence of a fault (falla) in that sector, and pointed out that Crucitas is located in the zone of lowest seismic threat in Costa Rica. On this particular matter, the Tribunal finds that there are technical and scientific criteria that are contradictory, insofar as some experts rule out the risks that the tailings (relaves) lagoon represents for the environment, while other experts raise risks regarding this component that require better analysis through further studies. This situation reflects that on the topic of the tailings (relaves) lagoon, there is a contradiction of criteria on the innocuousness of human activity for the environment, and in such a case, the Administration's decision could not be directed at approving the request for changes to the project presented by the company, because that would violate the precautionary principle (principio precautorio). However, as has been repeatedly explained, in this case SETENA omitted to carry out a technical analysis that took into account all the preceding aspects, and this circumstance absolutely nullifies resolution No. 170-2008-SETENA in the terms already set forth in the preceding considerations (considerandos).\n\n**XXIV- ON THE DIKE.**\n\nIn relation to this point, there was no major discussion according to the statements given by the expert witnesses in this debate. It is on record that only witness Sandra Arredondo explained the structure of the dike for the formation of the tailings (relaves) lagoon, referring to the type of materials that would be used. No contentious elements are extracted from the other testimonies regarding this specific component of the project, so a ruling on this particular matter is omitted.\n\n**XXV- ON THE POTENTIAL FOR ACID DRAINAGE.**\n\nOn the point of this topic, witnesses Allan Astorga Gatgens (Geologist) and Yamileth Astorga Ezpeleta (Marine Biologist) affirmed that as a consequence of the increase in extraction depth in the area of the pits (tajos), the \"pyrite\" (\"pirita\") will be left exposed and that when it comes into contact with water and oxygen, it generates sulfuric acid, which represents a contamination risk because that component can drain towards the aquifers. For her part, witness Sandra Arredondo Li (environmental regent) stated that the saprolite (saprolita) does not have acid drainage potential. In the case of hard rock, she mentioned that to be able to determine its acid drainage potential, \"diamond drilling\" (\"perforaciones diamante\") was done to obtain stone cores and then they were analyzed. She pointed out that the company's studies demonstrated that the drainage potential was low. She indicated that the mechanism to be implemented to eliminate acid drainage consists of submerging the material underwater (2 meters). She emphasized that for controlling the acidity of the water in the tailings (relaves) lagoon, adding lime is planned as a mitigation measure. Witness Orlando Bravo Trejos (Chemist) explained that the sulfide contained in the rocks, while buried, is not in contact with oxygen, but the moment this occurs, it oxidizes and produces sulfuric acid, causing what is known as acid drainage. He indicated that the measures intended to be implemented to control acid drainage, such as placing the processed rocks underwater and using lime to prevent water acidity, are adequate, since a neutralization process would be achieved. Well then, regarding this topic, the Tribunal finds that the position of the defendants' witnesses was forceful, suggesting that the risk of acid drainage is easily controllable and does not represent major difficulty. However, even though the foregoing would imply dismissing the arguments of the plaintiffs regarding this reproach, we must remember that in this case SETENA omitted to carry out a technical analysis on this specific topic, and therefore resolution No. 170-2008-SETENA is vitiated by nullity in the terms repeatedly set forth. For further abundance, it is necessary to indicate that the study provided by Industrias Infinito in relation to the topic of acid drainage, regardless of the fact that it was presented in English (an aspect that is not of major relevance, since a free translation of it into Spanish was later provided), does present an essential problem, which is that it is a draft (borrador) that was prepared as something preliminary and that even contains incomplete sentences where the missing information is supplied with lines of X. Thus, although the representative of Industrias Infinito stated that it was DEPPAT that used that information to prepare the environmental impact assessment (estudio de impacto ambiental), the truth is that it was the defendant company that presented that study before the Secretaría Técnica Nacional Ambiental, so it is Industrias Infinito that must assume the consequences of its conduct, regardless of how it decides to proceed in relation to DEPPAT.\n\n**XXVI- ON THE PIT AREA.**\n\nRegarding this aspect, it is clear that the original design or proposal of the project foresaw extraction in the Botija, Fortuna, and Fuentes hills, which can be verified in the Feasibility Study (Estudio de Factibilidad) presented before Geología y Minas in 1999, and its Annex, which are contained in volumes 1 and 17 of the technical file of Geología y Minas. In 2007, the co-defendant company presented a proposal for changes before SETENA, and in it, the extraction area was reduced to two hills: Botija and Fortuna. This topic by itself is not controversial, so a ruling on it is omitted.\n\n**XXVII- ON TECHNICAL CLOSURE.**\n\nIn relation to this topic, there was no major discussion through the expert witness evidence; however, the defendants sustained the thesis that this phase begins before the project starts, and that it requires adaptation during the operation phase, having to adjust to the circumstances that arise. They argue that the company has the commitment to propose solutions that must be assessed by the technical bodies involved, and also that there will be constant follow-up monitoring of environmental variables. They argue that environmental guarantees are maintained until the technical closure phase. They note that there is a difference between technical closure and closure of the source, regulated in article 133 of the Regulation to the Mining Code. Well then, on this topic, the plaintiffs did not outline major arguments, so it is appropriate to dismiss the arguments formulated in relation to this aspect.\n\n**XXVIII- ON THE SOCIO-ECONOMIC ANALYSIS.**\n\nIn the present case, through resolution number 119-2005-SETENA, the Secretaría Técnica Nacional Ambiental had required Industrias Infinito to present as an annex various observations on the social aspect of the Crucitas mining project, in order to be able to carry out the cost-benefit analysis that would allow determining its environmental viability (viabilidad ambiental). However, in resolution number 3638-2005-SETENA, said department, despite mentioning that Industrias Infinito presented the referred annex, did not carry out a single assessment of the documentation presented by the company. The only thing indicated, regarding all the annexes in general, but never on the particular matter relating to the social aspect, is that the terms of reference and technical requirements were met. But that statement is isolated, it lacks all reasoning, as not a single argument is presented to support it. Thus, it is never stated why it is considered that all the requirements were met, nor in what sense they are considered met. Furthermore, it is not expressed in any section of resolution 3638-2005-SETENA in what way the social benefits are considered greater than the environmental costs. Later, in resolution number 170-2008-SETENA, the only thing indicated as a social benefit is the holding of courses in association with the Instituto Nacional de Aprendizaje, but the fact is ignored that the holding on site of that type of training activities does not depend exclusively on the presence of the mining company. Donations to the school in Crucitas are also mentioned, leaving aside that the maintenance thereof is also not indissolubly associated with the development of the mining project. In that sense, it is not apparent how those social benefits can be classified as a necessary consequence of Industrias Infinito's activity, nor – and this is more important – is it explained in what sense these positive aspects – which this Tribunal does not ignore – are more important than the environmental impact of the mining activity. Furthermore, although expert witness Sonia Lidia Cervantes Umaña declared, in her capacity as a sociologist, that the area is very economically depressed and that the project would constitute a source of employment for approximately one hundred fifty or two hundred fifty people (depending on whether only saprolite or also hard rock is extracted), as well as also referring to the expectation that the development of the mining activity would attract other companies to the area, the truth is that she did not refer to the transitory nature of the mining project, so it cannot be assured that carrying out the project will necessarily generate the expected results. Moreover, it has also not been explained why the development of the mine is required – as an indispensable condition – for those social investments to occur. Therefore, there is no certainty whatsoever that once the mining project is concluded, what is presented today as great benefits will endure. And equally importantly, the referred professional did not explain in what way an uncertain result can be considered as something more valuable than the environmental impact that the mining activity would certainly produce, if it were to be carried out, which demonstrates the lack of support for the decisions of the Secretaría Técnica Nacional Ambiental on the matter (a topic that is distinct from the basis of the decree by which the project is declared of national convenience, which is addressed in another section of this judgment). **Thus, the referred resolutions of the Secretaría Técnica Nacional Ambiental lack reasoning and lawful motive with respect to the assessment of the social component, which impacts an inadequate determination of the cost-benefit balance of the Crucitas mining project and, for this reason, they become null, because that is an essential aspect that must be considered in the granting of environmental viability (viabilidad ambiental).** This last point is what determines the impropriety of the allegations of Asocrucitas, because even though the expectations held by the workers that make up that association are understandable, the truth is that the development of the area and the improvement of their living conditions does not necessarily depend on the development of the Crucitas Mining Project, but rather that the attraction of other types of companies through the improvement of roads, services, and through the elevation of the labor capacities of the area's inhabitants can be carried out by the State without the need for Industrias Infinito's participation.\n\n**XIX- ON THE LACK OF A CHEMICAL ENGINEER'S SIGNATURE ON THE FLOW DIAGRAMS.**\n\nOn this topic, it must be said that in this matter it has been demonstrated that the flow diagrams that described the chemical process of the project lacked the signature and seal of the Chemical Engineer in charge of the process. Such circumstance was confirmed by witness Orlando Porras Mora (Chemical Engineer) who had before him the plates that are contained in volume I of the environmental impact assessment (estudio de impacto ambiental). The flow diagrams were prepared by the company in 2002; therefore, they had to comply with the requirement indicated in articles 18, 19, and 20 of Law 6038, which was not disproved by the defendants, even though a Decree No. 35695-MINAET that was published in the month of January 2010 was invoked, because that requirement was mandated by the Law in force at the time the referred plates were prepared. The plans provided by the representation of Industrias Infinito as evidence for better provision do not have the virtue of correcting this defect, since the mentioned requirement was omitted at the time and it was approved as such by SETENA, a violation that affected resolutions No. 3638-2005 and 170-2008-SETENA by omitting in their assessment compliance with the legal provision of the Colegio de Ingenieros Químicos, which had a substantive incidence insofar as the flow diagrams contained sensitive information such as the mass and energy balances, an aspect that the defendants also failed to disprove in this process.\n\n**XXX- ON THE PROTECTION OF FOREIGN INVESTMENT AND LEGAL SECURITY.**\n\nDuring the stage of receiving expert witness testimony, the representation of Industrias Infinito formulated questions about the attraction of foreign investment, a topic that was revisited in the concluding arguments stage, when reference was made to the Environmental Cooperation Agreement between the Government of Costa Rica and the Government of Canada (Law No. 8286) and the Agreement with Canada on the Reciprocal Promotion and Protection of Investments (Law No. 7870). On this topic, it is only necessary to indicate that, given the differentiated scope of jurisdiction between the constitutional jurisdiction and the contentious-administrative jurisdiction, no insecurity can be generated by the fact that violations of fundamental rights are not found in one while illegalities in administrative actions are found in the other. In this sense, what is decided in this venue in no way contradicts what was established by the Constitutional Chamber, since this Court and that Chamber issue their pronouncements in proceedings with different objects, as has already been explained. Furthermore, every businessperson or investor, national or foreign, has the certainty that if they comply with regulatory requirements, they may carry out their activity, but that if they do not comply, they will not be able to develop it. In that sense, this judgment only serves to reinforce the certainty of businesspersons and investors regarding what they must adhere to. Legal certainty or foreign investment cannot be invoked to attempt to keep completely illegal administrative conduct in force. This latter point also derives from Laws 7870 and 8286, already cited. The former provides that between Costa Rica and Canada, investments must conform to the Law, which is not the case with what was intended by Industrias Infinito. Furthermore, Law 8286 establishes that environmental regulations cannot be attenuated for the purpose of promoting trade, which evidences the preponderance that environmental protection holds for Costa Rica and Canada. In this sense, what is decided herein, insofar as it entails the nullity of illegal actions and to the extent that the conduct subject to the proceedings is subjected to the regulations related to environmental protection, in no way diminishes legal certainty nor negatively affects foreign investment, particularly that which comes from Canada.\n\nXXXI- ON THE POLITICAL OR IDEOLOGICAL CONNOTATIONS OF THIS PROCEEDING.\n\nIndustrias Infinito has insisted that this is a trial of Law, which cannot be decided according to conflicting ideological or political positions. In relation to that argument, it can only be said that the defendant company is correct and that it is precisely in strict observance of the Costa Rican legal system that the illegality of various administrative conducts has been determined.\n\nXXXII- ON THE PRINCIPLE OF MATERIAL TRUTH AND DUE PROCESS\n\nThe defendants argue that an abuse of the principle of material truth occurred in the debate. On this particular point, it cannot be applied rigidly, much less over the principle of material truth, due to the nature of the issues discussed in this jurisdiction, which has as its object the legality review of the entire administrative function. Nevertheless, this Court must be emphatic in pointing out that due process and the right of defense of the parties were guaranteed at all times. In this sense, it is worth recalling that with the aim of avoiding creating defenselessness for the parties as well as resolving any aspect that could invalidate the proceeding or affect its continuity, the Court, at the beginning of the oral and public trial, granted a hearing to all intervening parties, so that at that procedural moment they could state what they deemed pertinent; however, none of the parties indicated the existence of vices or defects capable of producing nullity or defenselessness. Likewise, it must be borne in mind that in this proceeding the motions prior to trial were resolved, the parties were heard in their opening arguments, a hearing was granted on the new facts formulated, evidence and counter-evidence of those facts were received, a hearing was granted when evidence for better provision was proposed and a ruling was made on that evidence, extensive questioning was permitted during the debate, objections to questions were heard, those objections were resolved, documentary evidence was allowed to be incorporated through expert witnesses, the appeals for revocation filed during the debate were resolved, a reasonable time of one day was granted for the parties to outline their conclusions, the necessary recesses were granted during questioning and conclusions, and in general, the Court at all times sought to maintain procedural balance, procedural good faith, and the transparency of actions, all in compliance with the principles of orality, the concentration of acts, and the adversarial principle as instruments for ascertaining the material truth of the facts, as ordered by Article 85 of the Contentious-Administrative Procedure Code.\n\nXXXIII- ON THE HANDLING OF FACTS AND CONCLUSIONS\n\nIn this matter, the defendants have questioned with unusual insistence the facts and conclusions formulated by their counterparts. On this particular point, there is nothing else to indicate except that there is no rule in our Contentious-Administrative Procedure Code that obliges the parties and the Judge to adjust the questioning of witnesses, expert witnesses, and experts to the faithful and exact formulation of the facts as they were formulated in the respective complaints and answers. Due to the very dynamics of oral hearings, it is more than logical and reasonable that during questioning the parties do not strictly adhere to the formulation of their facts, especially in matters such as this one where environmental issues are debated and discussed that require extensive inquiry for their correct determination. And the same must be said regarding the conclusions that the parties may present at the end of the trial stage, with the only control that the Judge must exercise being based on not allowing actions to be taken or elements of an evidentiary nature to be introduced during that phase, as there is a specific moment for that. It is reiterated that there is no rule in the Contentious-Administrative Procedure Code that obliges the parties to conclude exclusively on the basis of what was raised in the written stage of the proceeding, an interpretation that is not only absurd but also undermines any model of justice based on the principle of orality, rendering it ineffective. The limits of the proceeding are defined by the claims, so that an action, a question, or a conclusion that does not vary the claim cannot generate any nullity or defenselessness, because ultimately the facts and the law are defined by the Judge in the judgment. In reality, questions like these evidence attempts to obstruct what is truly of interest in any contentious-administrative proceeding, which is undoubtedly the ascertainment of the material truth, a principle of maximum value that allows the Adjudicator to make effective the subjection of all to the Rule of Law.\n\nXXXIV- ON THE WITNESSES HEARD IN THE DEBATE\n\nThe defendants and their coadjuvant question the quality of the expert witnesses of the plaintiffs, indicating that their declaration was not based on a prior report, that they issued criteria without support, were alarmist, and that none were present in the project area, all of which, in their opinion, affected the credibility of the deponents proposed by the plaintiffs. In this regard, the Court finds that such questions are unfounded and rejects them. The forcefulness, credibility, and pertinence of the evidence are assessed by the Judge according to the rules of sound criticism, and in this matter, all the expert witnesses who gave their testimony in this oral and public trial were duly accredited by the Court itself and by the parties, finding that all of them, both those of the plaintiffs and those of the defendants, turned out to be qualified experts in their corresponding disciplines, and presented their technical criteria with complete clarity on each of the topics, reasons that are considered sufficient to take their statements into account in this proceeding.\n\nXXXV- ON DAMAGES AND LOSSES.\n\n\"The State shall procure the greatest well-being for all the inhabitants of the country (...). Every person has the right to a healthy and ecologically balanced environment. Therefore, they are legitimized to denounce acts that infringe upon that right and to claim reparation for the damage caused. The State shall guarantee, defend, and preserve that right. The law shall determine the corresponding responsibilities and sanctions.\"\n\nIn our Political Constitution, Article 50 contains several presuppositions that must be addressed in the legality review that this Court carries out regarding the plaintiffs' claims for damages and losses caused by the conduct alleged as null in this proceeding; the standing of whoever brings the action and claims the damage, the fact that the State must guarantee that right, and that, prior examination in accordance with the law, the existence of responsibility and the consequent sanctions be determined.\n\nOn the standing held to support the claims:\n\nRegarding the plaintiff Apreflofas, the Asociación Preservacionista de Flora y Fauna Silvestre, it alleges the suffering of non-material damage, \"due to the frustration of seeing the destruction of Crucitas,\" and quantifies it in the sum of two hundred thousand colones.\n\nRegarding non-material damages with respect to legal persons, there are numerous resolutions from both the First Chamber and the Contentious-Administrative Court that develop the topic, and we allow ourselves to cite number 36-2010, from Section VIII of this Court, in which it reports:\n\n\"II.3)- AS TO THE APPROPRIATENESS OF NON-MATERIAL DAMAGE TO LEGAL PERSONS: Non-material damage is divided into subjective non-material damage and objective non-material damage. As for subjective non-material damage, it refers to extra-patrimonial, incorporeal damage caused to the individual that affects the immaterial assets of personality, such as freedom, honesty, good name, health, honor, the psyche, physical integrity, intimacy. It refers, then, to the sadness, pain, physical or psychological suffering, anguish, anxiety, insecurity, affliction, discouragement, loss of the satisfaction of living, desperation, caused by the harmful act. As for objective non-material damage, it is that which injures an extra-patrimonial right with repercussions on the patrimony, generating economically valuable consequences (See in this sense judgment of the First Chamber of the Supreme Court of Justice, number 112 of 14:15 hours on July 15, 1992) and it is up to the petitioner to prove it, crediting in the record what expenses or losses were suffered as a result of the non-material impact, and regarding subjective non-material damage, a simple presumption of man is sufficient to demonstrate it and the judge as expert of experts is capable of determining its amount.\"\n\nRegarding the non-material damage claimed, in accordance with the statements outlined in the complaint, they refer specifically to subjective non-material damage, alleging a frustration upon seeing the destruction of Crucitas; it must be clear that, as it involves a legal person, the non-material damage that could be claimed is objective, not subjective. Objective non-material damage is verified when the sphere of extra-patrimonial interest of the individual is injured, when economically valuable consequences are generated - the case of the professional who, due to the attributed act, loses their clientele -, which means that it can and must be quantified, and it is possible to distinguish it from subjective or affection-based non-material damage. This conceptualization aims to delimit the damage suffered by the individual in their social consideration (good name, honor, honesty, etc.) from that suffered in the individual field (affliction due to the death of a relative), thus one refers to the social part and the other to the affective part of the patrimony. From the analysis of the claims, the plaintiff alleges suffering - subjective non-material damage -, which is not admissible for legal persons, since that type of damage refers to the inner sphere of the natural person, the pain, the worry, the discouragement, the emotional affectation, all of these produced by an act, inherent to the human being, emotions that a legal fiction cannot suffer. These cannot be affected in their subjective sphere, as they are not holders of emotions or suffering. In accordance with the foregoing, the plaintiff Apreflofas, as a legal person, lacks the necessary standing to claim subjective non-material damage; it can only claim objective non-material damage, but this is not the damage claimed in this case, so the defense of lack of active standing, specifically regarding damages, must be accepted.\n\nIn the case of Jorge Lobo.\n\nThe first element of analysis must revolve around the standing that the plaintiff Jorge Lobo holds, regarding his claims for indemnification of damages and losses caused by the challenged conduct. In accordance with the aforementioned constitutional norm, every person is legitimized to denounce environmental damage and claim its reparation; environmental protection has broad procedural standing, referring to a third-generation right, dealing with diffuse interests or popular action, which allows, under the first presupposition, the citizen to bring action both in their own name, to request individual indemnification, as well as to bring action on behalf of the community, which constitutes, according to the doctrine, the reparation of environmental damage in its pure state. Collective environmental damage can be requested by any person, on behalf of the community, in order to achieve the reparation of environmental damage. Added to the foregoing, numeral 10, subsection c) of the Contentious-Administrative Procedure Code establishes active standing for those who invoke the defense of diffuse and collective interests. The Constitutional Chamber on this point has provided:\n\n\"In environmental law, the procedural prerequisite of standing tends to extend and broaden in such a dimension that it necessarily leads to the abandonment of the traditional concept, it being necessary to understand that in general terms, any person can be a party and that their right does not emanate from property titles, rights, or concrete actions that they could exercise according to the rules of conventional law, but rather that their procedural action responds to what modern legal writers call the diffuse interest, through which the original standing of the legitimate interested party or even the simple interested party diffuses among all the members of a certain category of persons who are thus equally affected by the illegal acts that harm them. When dealing with the protection of the environment, the typically diffuse interest that legitimizes the subject to bring action is transformed, by virtue of its incorporation into the list of rights of the human person, becoming a true 'reactional right,' which, as its name indicates, empowers its holder to 'react' against the violation originating from illegitimate acts or omissions. (...) That concept of 'diffuse interests' aims to develop a form of standing, which in recent times has constituted one of the traditional principles of standing and which has been gaining ground, especially in the sphere of administrative law, as a final, novel but necessary broadening, so that such oversight is increasingly more effective and efficient.\n\nVoto 2237-96 of the Constitutional Chamber, at fourteen hours fifty-one minutes on May fourteenth, nineteen ninety-six.\n\nDiffuse interests, although difficult to define and more difficult to identify, cannot be in our Law - as this Chamber has already stated - merely collective interests; nor so diffuse that their ownership merges with that of the national community as a whole, nor so concrete that in contrast, determined or easily identifiable persons result identified, or personalized groups, whose standing would derive, not from diffuse interests, but from corporate interests or those that concern a community as a whole. It concerns, then, individual interests, but, at the same time, diluted in more or less extensive and amorphous sets of people who share an interest and, therefore, receive a benefit or a detriment, actual or potential, more or less equal for all, for which reason it is accurately said that it concerns equal interests of sets of people who find themselves in certain situations and, at the same time, of each one of them. That is, diffuse interests partake of a dual nature, since they are at the same time collective - for being common to a generality - and individual, for which reason they can be claimed in such character. (...) Thus, when dealing with the Right to the Environment, standing corresponds to the human being as such, since the injury to that fundamental right is suffered by both the community and the individual in particular.\"\n\nThe plaintiff Jorge Lobo, in his claims 3 and 5, requests the integral reparation of all environmental impacts or damages caused by the adoption of conduct violating the legal system, and their consequent execution; under such perspective, he is actively legitimized in the opinion of this Court under a collective interest to validly bring action in this proceeding.\n\nRegarding the appropriateness of damages and losses:\n\nEnvironmental damage affects biodiversity, ecosystems, and even health; it can originate from different sources. However, what is of interest to analyze in this proceeding is that generated by human intervention. That damage can be caused individually or by a plurality, this latter condition entailing the responsibility of each of the agents that cause it or make it possible. It can arise from private conduct or from the State and its institutions, the latter by action or omission, lawful or unlawful, or may be produced by a single act or by a plurality of them, carried out simultaneously or over time. In our country, the flora and forest resources have been declared of public interest, in accordance with numerals 1 and 3 of the Wildlife Conservation Law and numeral 1 of the Forest Law, which establishes as an essential and priority function of the State to ensure the conservation, protection, and management of natural forests.\n\nFor the specific case, in accordance with the previous recitals, the following administrative conducts have been declared null: resolution number 3638-2005-SETENA, by which the environmental viability is granted; number 170-2008-SETENA, by which the modification of changes proposed in the project is approved; R-217-2008-MINAE, by which the mining concession is granted; 244-2008-SCH, issued by the National System of Conservation Areas, by which the land-use change (cambio de uso de suelo) is approved, authorizing the cutting and harvesting of prohibited species, the cutting and harvesting of trees in protection zones, involving the cutting of 12,391 trees on 262.88 hectares (according to the environmental viability resolution - proposed changes -, 227.6 hectares); and Executive Decree number 34801-MINAET, by which the Crucitas Mining Project was declared of public interest and convenience. As a consequence of the foregoing, it is essential to determine whether such conduct caused the environmental damages claimed by the plaintiff Jorge Lobo. It was demonstrated in this proceeding that resolution 244-2008-SCH authorized the cutting and harvesting of trees, a resolution whose execution began in October 2008. Specifically, clear-cutting (tala rasa) was carried out in the areas designated for the development of the Crucitas mining project, starting on a Friday and being suspended on Monday of the following week (as stated in her declaration during the oral and public trial by the expert witness Sandra Arredondo, who was the project's environmental regent), achieving the clear-cutting (tala rasa) of a large number of trees, an action carried out by persons contracted by Industrias Infinito, and protected under resolution 244-2008. Even though it was not possible to determine in the trial the exact number of trees or terrain, nor the exact location in the field of which sector of the project was cut, the existence of such damage was proven during the proceeding, insofar as the cutting was carried out under the protection of a conduct declared illegal here, damage that, in the judgment of this Court, affected the flora, the fauna, the landscape, the soil, the air, that is, altering an ecosystem in its natural functions. Having said the foregoing, it remains to be defined which procedural party or parties is responsible for bearing that environmental damage.\n\n**In the preceding recitals**, it was demonstrated that both the company Industrias Infinito S.A. and the administrative body that granted authorization — 244-2008 — and the body that issued the decree of national convenience, which allowed the adoption of the cited resolution, are jointly and severally liable for the environmental damage caused by the clear-cutting (tala rasa) carried out. As a consequence of the foregoing, it is appropriate to order the defendants: Industrias Infinito S.A., the National System of Conservation Areas (Sistema Nacional de Áreas de Conservación, SINAC), and the State, to the integral reparation of the affected zones on the properties of the company Industrias Infinito S.A., understood as the ecological or environmental damage caused by the execution of the clear-cutting (tala rasa), authorized by resolution 244-2008-SCH, here declared null. Given that the trial did not determine how much was cut and in which sector, the matter is remanded to the sentence execution phase for the determination of the damages, the measures that must be taken to repair said damage, and to set the sum necessary for such reparation. For this, the following must be taken into account: the environmental damage suffered shall be determined by expert evidence, which must contain the necessary recommendations for the integral reparation of the affected zone; likewise, the sum necessary for the integral reparation of the impacted zone shall be quantified by expert evidence, and once set by the executing judge, although the plaintiff Jorge Lobo has standing to bring action, he does not have standing for the administration of the sum set for attention and reparation; said sum must be deposited in the State's single treasury (caja única del Estado), in a client account created specifically for this purpose, which must be identified with the object and purpose for which it was created, and the account holder shall be the Ministry of Environment, Energy, and Telecommunications (Ministerio de Ambiente, Energía y Telecomunicaciones, MINAE), which must allocate the set sum exclusively to execute the repair and restoration works in the affected zone. Regarding the co-defendants: the State and SINAC, the Ministry of Finance (Ministerio de Hacienda) must make the budgetary provision for the sums that are established during the sentence execution, in order to guarantee the budgetary allocation to make the cited reparation effective. Furthermore, the company Infinito S.A. must collaborate with and permit all activities aimed at the reparation ordered herein. It is ordered that this judgment be communicated to the Ministry of Finance (Ministerio de Hacienda), to the General Public and Environmental Services Area of the Comptroller General of the Republic (Contraloría General de la República), to the Agrarian-Environmental Law Area of the Attorney General's Office (Procuraduría General de la República), and to the Ombudsman's Office (Defensoría de los Habitantes), so that they may exercise oversight, control, and follow-up of the damage reparation process, according to their competencies.\n\n**XXXVI- Regarding the remaining claims of Jorge Lobo Segura.**\nThe exception of lack of right is granted in relation to the other claims of the lawsuit by Jorge Lobo Segura (numbered 2 and 4), since they found no support in our legal system. In this regard, it must be noted that this plaintiff does not have the right for this court to set limitations and rules for the Executive Branch to decree the national convenience of projects, because such conditions are already normatively established. The same applies to the request that the State be ordered to refrain from issuing or executing conduct potentially harmful to the diffuse interests claimed by the plaintiffs, as the generality and abstractness of what was requested makes it unfeasible to recognize a right in the claimed sense.\n\n**XXXVII- ON THE EXCEPTIONS.**\n**On the lack of active and passive standing in relation to the claim for nullity of the challenged acts.**\nThis exception is rejected in both its active and passive aspects, by virtue of the fact that doctrine and legislation are settled in recognizing the standing of any individual to bring action in court to claim the defense of diffuse interests, as is the case with environmental rights. This is established by Article 10 of the Contentious Administrative Procedure Code, in relation to numeral 105 of the Biodiversity Law, in close relation with Article 50 of the Political Constitution. Likewise, it is rejected in its passive aspect because the acts that were indeed susceptible to challenge were issued by State bodies that are duly represented in this proceeding. In the case of Industrias Infinito, as the legal entity that had a direct interest in the acts challenged here, it was proper for it to be sued in this matter.\n\n**On the lack of active standing of Apreflofas to request subjective moral damages.**\nThis exception must be granted, since, as explained in the preceding analysis, said association lacked standing to request subjective moral damages.\n\n**On the lack of active and passive standing in relation to the claim for damages and losses requested by Jorge Lobo Segura.**\nThis exception, in both its passive and active forms, must be rejected, in view of the fact that the standing to claim environmental damages is broad and diffuse, and in this case, the plaintiff's claim was proper in the terms explained previously.\n\n**On current interest.**\nThe exception of current interest must be rejected, given that the challenged acts remain in force to date, and therefore the interest of the plaintiffs in requesting their nullity, as well as the environmental damages derived from the illegality of those conducts, persists.\n\n**On lack of right.**\nFinally, the lack of right must be denied in relation to the annulment claims and the claim for redress of environmental damages, as set forth in this judgment, and granted in relation to the remaining claims of the lawsuit by Jorge Lobo Segura (numbered 2 and 4), since they found no support in our legal system.\n\n**XXXVIII- ON THE PRECAUTIONARY MEASURE DECREED IN THIS PROCEEDING AND THE REQUEST FOR ITS LIFTING.**\nThe precautionary measure ordered in this proceeding must be maintained. The precautionary measure was granted in this proceeding, suspending the clear-cutting (tala rasa), and taking into account that this collegiate body has declared null resolution 244-2008-SCH, issued by the ARENAL-HUERTAR NORTE Conservation Area, which authorized the land-use change (cambio de uso del suelo) and the cutting of 12,391 trees, distributed over 191.77 hectares of forest cover (cobertura boscosa), 66.94 hectares of agricultural land without forest, and the cutting of 4.17 hectares of planted areas, for a total of 262 hectares and 57 square meters to be cut, and having ordered the defendants to the integral reparation of the damage caused, and precisely ordering that in the sentence execution phase, the cut areas be determined, as well as the reparation measures, the request for the lifting of the Precautionary Measure is entirely improper. It is important to note that precautionary measures have the purpose of protecting the subject matter of the proceeding, as well as avoiding damages of difficult or impossible reparation that a certain action or omission may cause; in the specific case, the execution of the formal administrative action, through resolution 244-2008 of the System of Conservation Areas, which, even though it was suspended, its initial execution permitted the clear-cutting (tala rasa) and thus caused the damage already cited in the preceding recital in the affected zones, a situation that was precisely seen and addressed on April 16, two thousand ten, when the provisional measure was ordered by this Court, instructing the suspension of the authorized cutting, and in the judgment of April 20, 2010, the suspension of the clear-cutting was definitively granted, in order to protect \"the habitat and ecosystems of many living beings, in addition to the trees\"—a precautionary measure that was in turn confirmed by the Court of Appeals, resolutions that this Court finds no reasons to vary, added to the fact that, for this decision-making body, during the oral and public trial, it could extract from the evidence produced not only the damage caused by the cutting carried out, but also the potential damage that the ecosystem of the zone would suffer, precisely because of the uncertainty regarding the species existing in the zone, which of them were protected, and which were not, an element that is absent in the cited resolution 244-2008, which directly impacts the forest recovery plan.\n\n**XXXIX- ON THE DECISION TO REGISTER THIS JUDGMENT IN THE NATIONAL MINING REGISTRY.**\nHaving annulled in this proceeding the resolution that granted the mining exploitation concession, it becomes essential to order that this decision be communicated to the National Mining Registry, as expressly provided by Article 109 of the Mining Code.\n\n**XL- ON THE COMMUNICATIONS THAT MUST BE MADE OF THIS JUDGMENT.**\nIn the present case, such significant illegalities have been detected that this Court deems it pertinent to communicate the judgment to other public bodies, so that each of them may determine if, apart from the nullities declared by this jurisdictional body, some other responsibilities are appropriate on the part of persons whose actions have been relevant to the production of the administrative conducts declared null herein. In the first place, **it is ordered that this judgment be communicated to the Minister of Environment, Energy, and Telecommunications (Ministro de Ambiente, Energía y Telecomunicaciones)**, so that within that ministry the corresponding disciplinary proceedings may be initiated against Eduardo Murillo Marchena, José Francisco Castro Muñoz, and Cynthia Cavallini Chinchilla. On this point, it is necessary to indicate that for this Court, the intervention of these persons, in their capacity as public officials, whether from the National Technical Environmental Secretariat (Secretaría Técnica Nacional Ambiental, SETENA) (the first of them) or from the Directorate of Geology and Mines (Dirección de Geología y Minas) (the second and the third), in the production of administrative acts declared null herein for their open illegality, constitutes sufficient merit to carry forward the necessary procedures to determine if they incur any grounds for personal liability for these acts. **Furthermore, this judgment must be communicated to the Public Prosecutor's Office (Ministerio Público)**. In relation to this point, it is necessary to indicate that something exceptional occurs in this case: the distinct illegalities detected and the nullities declared are all coincident in the sense that they tended toward the approval of the Crucitas mining project and several of them were issued while an executive decree establishing a moratorium on open-pit metallic gold mining was in force, all of which makes it viable to think of a possible eventual concurrence or orchestration of wills to carry forward, by any means, this mining project. Therefore, given their intervention in the development of the conducts declared illegal and annulled herein, it is pertinent to communicate what was resolved to the Public Prosecutor's Office so that it may determine whether or not it is proper to pursue a criminal case against any of the following persons: Oscar Arias Sánchez, Roberto Dobles Mora, Sonia Espinoza Valverde, Eduardo Murillo Marchena, José Francisco Castro Muñoz, Cynthia Cavallini Chinchilla, Sandra Arredondo Li, and Arnoldo Rudín Arias. It is necessary to remember that the President of the Republic and the respective Minister have the duty, established in Article 140 subsection 3) of the Political Constitution, to ensure the exact compliance with the laws; thus, given that executive decree number 34801-MINAET is openly illegal and was signed by Oscar Arias Sánchez and Roberto Dobles Mora, this is what gives rise to the possibility that some criminal liability may apply to them. Likewise, Messrs. Arias Sánchez and Dobles Mora are the ones who signed resolution R-217-2008-MINAE, through which the mining concession was granted to Industrias Infinito, an act also illegal and declared null in this ruling. For their part, Sonia Espinoza Valverde and Eduardo Murillo Marchena, acting as officials of the National Technical Environmental Secretariat (SETENA), participated in the environmental evaluation of the proposed changes to the Crucitas mining project and did not observe limitations that were set by the Directorate of Geology and Mines, which motivates the decision for their conduct to be examined by the Public Prosecutor's Office. Furthermore, in the case of these two persons, their participation in the issuance of official communication ASA-013-2008-SETENA must be remembered; although it is true that this is an act that ultimately was not susceptible to challenge in this proceeding, it is also true that it was the subject of discussion, during which the testimony of the expert witness Marta Elena Chaves Quirós came to light—she deserves full credibility and stated in trial that she did not participate in the environmental assessment of the proposed changes to the Crucitas mining project, despite which Espinoza Valverde and Murillo Marchena stated that she did participate, a situation that could be clarified in the criminal jurisdiction, if there is merit for it. Regarding Sonia Espinoza Valverde in particular, it must be remembered that it became necessary in this proceeding to order her arrest and presentation, since, after learning of the statements from the attorneys for the plaintiffs and the active coadjuvant, as well as after evaluating what was recorded by the Office of Locating and Serving Notice of Pavas, it was considered reasonably possible that she was hiding to avoid being served personally, a situation that this judging body considers must be brought to the attention of the Public Prosecutor's Office. In relation to José Francisco Castro Muñoz and Cinthya Cavallini Chinchilla, it must be remembered how the former initially claimed not to know about the mining easement (servidumbre) that was intended to be constituted over a public road, while the latter stated that the former always knew about the issue, which could be of relevance for the Public Prosecutor's Office. Additionally, Mr. Castro Muñoz, in his capacity as Director of Geology and Mines, and Mrs. Cavallini Chinchilla, in her capacity as Head of the National Mining Registry, participated in recommending the conversion of the concession granted to Industrias Infinito, which turned out to be something lacking any legal viability, not only due to the inapplicability of the conversion figure, but also, among other things, for not considering the existence of a public road at the location where the tailings pond was planned and for not observing that the environmental viability given by the National Technical Environmental Secretariat (SETENA) to the proposed changes to the project contravened the technical limitations imposed by the Directorate of Geology and Mines itself, all of which is appropriate to bring to the attention of the Public Prosecutor's Office, for its consideration. Finally, in relation to Sandra Arredondo Li and Arnoldo Rudín Arias, it must be indicated that she was the environmental regent of the project from 2007 until mid-2010, while he was the legal representative, meaning they participated in decision-making by the company, which, during that period, carried out actions inducing the Administration into error, such as, for example, insisting on extracting material below the technical limit of seventy-five meters above sea level, and also in managing a mining easement (servidumbre minera) to permanently occupy a public road, all of which is pertinent for examination by the Public Prosecutor's Office. Regarding this communication to the Public Prosecutor's Office, it is necessary to note that this Court is obligated to make it, by virtue of the provisions of Article 281 of the Criminal Procedure Code, as these are conducts that, viewed individually, would permit thinking of the possibility of criminal actions in relation to the duties of public office, among others. But, in addition, as already indicated, such a quantity of illegalities, all concurrent and coming from officials of various bodies and the most varied levels, including top political authorities, combined with the actions of the company itself, also makes it viable to think of the possibility of some orchestration of wills to achieve the start-up of the Crucitas mining project by any means. This possibility is appreciated not only by the illegal actions themselves but by the context in which they occurred: most of the acts were issued while a moratorium decree on open-pit metallic mining activity was in force; this moratorium was lifted during the Arias Sánchez administration from 2006 to 2010; the decree declaring national convenience was issued in that same administration; without that declaration, the cutting could not be carried out; without that cutting, the project could not be carried forward; all of which justifies that it be the Public Prosecutor's Office that determines whether there is merit or not to conduct a criminal investigation of this matter. Lastly, **this judgment must be communicated to the Disciplinary Prosecutor's Office of the Bar Association (Fiscalía del Colegio de Abogados), so that it may investigate the conduct of licensed attorney Sergio Artavia Barrantes**, during the trial held on the occasion of this proceeding. The licensed attorney Artavia Barrantes, from the beginning of the trial, unjustifiably attacked the Court, calling it biased at some moments when the legal mandate to ascertain the real truth of the facts was simply being complied with. Furthermore, he clearly labeled the Court as a torturer for having ordered the arrest of the expert witness Sonia Espinoza Valverde, whom he proceeded to defend despite not being her attorney, to the point that he supported a motion for revocation brought by the licensed attorney José Manuel Echandi Meza against the decision to arrest and present said declarant—a motion that, incidentally, although signed by licensed attorney Echandi Meza, bears the marks \"Artavia & Barrantes\" in the header of the document transmitted via fax (see the piece from folio 2296 to folio 2299 in volume IV of the judicial file). This defense of witnesses carried out by licensed attorney Artavia Barrantes, who was a representative of a party in the trial, reached such a point that even, as he himself stated, he took the liberty of attending to concerns of the witness Sonia Lidia Cervantes Umaña, even though he had previously withdrawn her as his witness and she had been called by the Court to provide evidence for a better resolution. And alleging doubts from that person, he questioned whether the Court would allow her to testify freely or whether it would give her a degrading treatment by arresting her and making her spend the night in a cell, which we consider are tendentious and disrespectful statements that must be known by the Disciplinary Prosecutor's Office of the Bar Association, since they attempt to portray this jurisdictional body as the author of arbitrary acts in the treatment of witnesses, violations of fundamental rights that, incidentally, were dismissed by the Constitutional Chamber in the case of Sonia Espinoza Valverde, according to ruling 2010-18329, of 4:14 PM on November 2, 2010, by which a habeas corpus petition filed on behalf of said witness was dismissed. Thus, all the actions of licensed attorney Artavia Barrantes must be brought to the attention of the Disciplinary Prosecutor's Office of the Bar Association, so that it may determine therein whether he has incurred or not in any violation of the Code of Ethics of said corporation.\n\n**XLI- ON THE CONDUCT OF ATTORNEY MAURICIO CASTRO LIZANO IN THIS PROCEEDING**. \nEven though this Court has decided not to make any particular communication in relation to Attorney Mauricio Castro Lizano, it does deem it necessary to note that this is because the representation of the State changed its conduct from the moment Attorney Susana Fallas Cubero joined the trial. Notwithstanding this, it is pertinent to express that it did not escape the notice of this jurisdictional body the way in which, during the hearings, Attorney Castro Lizano coordinated, through papers, verbal communications, or even through signals, with the representation of Industrias Infinito, on the most diverse issues, including whether to object to questions or to seek revocations. In that sense, it gave the impression that Attorney Castro Lizano was not solely conducting the technical defense of public interests, but was also making room for the defense of the private interests of the company. And it is worth remembering here that the Attorney General's Office (Procuraduría General de la República), given its assigned functions, cannot divide itself and defend in trial extreme positions that negate what was stated by that body in its opinions. Such duality is not possible, as the Attorney General's Office (Procuraduría General de la República) must assume objective positions in contentious administrative proceedings, such as those it assumes in constitutional proceedings. Returning to the specific case, it is worth highlighting that it was not until after Attorney Fallas Cubero joined the trial that Attorney Castro Lizano objected to a question from Industrias Infinito, which draws much attention. Finally, it is worth indicating that during the conclusions stage, what appeared to be an inadequate identification of Attorney Castro Lizano with the private interests of Industrias Infinito was perceived, since when the company's representative was about to present various materials, the aforementioned state representative defended the importance of the samples for the company's theory of the case even before the company's lawyer presented it. Despite this, it is this Court's opinion that due to the participation of licensed attorney Fallas Cubero, it finds no reasons to communicate this judgment to any body with respect to the actions of the licensed attorney Castro Lizano, without prejudice to what the plaintiffs deem pertinent.”" }