9.-That after said pronouncement was issued by this Court, the Municipal Council of the canton of Guácimo, in Ordinary Session # 66, held on November 15, 1995, adopted the agreement that is the object of this appeal and which states: “It is agreed to request Mr. Teodoro Umaña García to present to this Municipality, as a requirement to grant him the quarry exploitation license, a forest permit for tree felling and land-use change. Agreement definitively approved.”. That subsequently, another agreement was adopted in Ordinary Session No. 46 held on August 28, 1996, which is a simple reminder of the aforementioned one, and which in the pertinent part states: “In response to the request submitted by Mr. Teodoro Umaña – Representative of Quebradores Suerres S.A. through Lic. Bernal Salazar, on last August 18, '96, it is agreed to remind him that by means of Ordinary Session # 66, held on November 15, 1995, he is requested to previously present the forest permit for tree felling and land-use change, granted by the Regional Office of MINAE. As it is pending presentation to date, a resolution on the matter cannot be taken.” (folios 290 back and 301, pieces of evidence 20 and 13, respectively, and folios 353 and 362 back, likewise pieces of evidence 13 and 20).
II.-In disagreement with the resolution of the Municipal Council, of November 15, 1995, Ordinary Session No. 66, Mr. Teodoro Umaña García filed appeals for reconsideration with a subsidiary appeal before this Court, for which he argued, in summary, that the forest permit is not a requirement for the license to be granted to him since, in the event that said exploitation needs it, in accordance with the progress of the exploitation, it will be requested from the administrative entity that oversees it, and that likewise, the land-use change is not a requirement for the license to be granted to him. He adds that this Court already revoked the previous municipal agreement, which had been explicit in indicating the requirements that were missing, and therefore, upon being revoked by this Court, in his opinion, no other requirement remained pending to be fulfilled. By virtue of this, he begs to revoke said agreement, in addition to the legal consequences that this may entail. (folio 259).
III.-That by agreement adopted by the Municipal Council of the Canton of Guácimo in Ordinary Session # 20, held on July 28, 1999, it was agreed: “to admit the Appeal filed by Tehodoro Umaña García, against agreement # 4, adopted in Ordinary Session # 66, Minutes # 93, held on November 15, 1995. The interested party is summoned so that within a term of five (5) business days counted from the notification, they may appear to assert their rights before the Superior Administrative Litigation Court, Third Section. The appellant is warned that they must indicate the means and place to receive notifications within the perimeter of the Second Judicial Circuit of San José (Goicoechea). Notify.” (folio 264 and 267).
IV.-.-That by official letter dated July 3, 2000, the Municipality of Guácimo informs this Court that Mr. Teodoro Umaña García personally received a copy of the agreement cited in the previous point, # 16, adopted by the Council of said Municipal Corporation, in Ordinary Session # 30, held on July 28, 1999, in which he is summoned so that within a term of five business days counted from this notification, he may assert his rights before this Court. (folio 268).
V.-Prior to analyzing the merits of the matter, this Court considers it necessary to study the point regarding the admissibility of the appeal. In doctrine, it is peacefully accepted that mere procedural or preparatory acts cannot be the object of challenge, since they do not produce, as a matter of principle, direct, immediate, or own legal effects. Exceptionally, procedural administrative acts are susceptible to challenge in the administrative and jurisdictional channel when they are assimilated “ex lege” to a final act. Thus, by way of example, Article 345, paragraph 3, of the General Law of Public Administration stipulates that “A procedural act that indefinitely suspends or makes impossible the continuation of the procedure shall also be considered a final act.” Equally, Article 163, paragraph 2, of the same normative body establishes that “The inherent defects of preparatory acts shall be challenged jointly with the [final] act, unless those are, in turn, acts with their own effect.” For its part, the Regulatory Law of the Administrative Litigation Jurisdiction prescribes in its numeral 18, paragraph 1, that procedural acts are susceptible to challenge “… if they decide directly or indirectly on the merits of the matter, in such a way that they put an end to that administrative channel or make impossible or suspend its continuation.” The repealed Municipal Code and the current one contain norms of similar content, since they established that municipal agreements of a mere procedural nature are not susceptible to challenge (Article 172, subsection b, of the repealed Municipal Code and 154, subsection b, of the current one – Law No. 7794 of April 3, 1998-). On the subject, see vote of the Constitutional Chamber No. 4072-95 of 10:36 a.m. on July 21, 1995; judgment No. 176 of 9 a.m. on October 11, 1991, of the First Chamber of the Supreme Court of Justice, and vote of this Court No. 9756-99 of 9 a.m. on June 4, 1999. In the sub-lite case, the appellant party intends to challenge the municipal agreement adopted by the Municipal Council of the Canton of Guácimo, in Ordinary Session No. 66, Minutes No. 93, held on November 15, 1995, in which, despite what was previously resolved by this same Court, as a new requirement to grant him the quarry exploitation license, it agrees to request Mr. Teodoro Umaña García to present to said Municipality a forest permit for tree felling and land-use change. Evidently, it is a mere procedural act, but one that produces its own legal effects, assimilable to a final act, since by its virtue, it indefinitely suspends the course of the proceedings, making its continuation impossible. By virtue of the foregoing, and especially due to the manner in which this matter is resolved, as will be stated further on, this court considers that said agreement is indeed susceptible to the present appeal.
VI.- The substantive matter to consider for the resolution of the present case is reduced to determining whether, from a strictly legal point of view, the new requirement requested by the Territorial Administration is appropriate or not, namely the presentation of a forest permit for tree felling and land-use change, for the granting of the requested quarry license with a crusher, and whether, therefore, the Municipality can or cannot validly condition the granting of said license upon the prior presentation of said requirements. In this regard, and for the reasons that will be stated below, this Court considers that said requirement is legally inappropriate. Let us see: The reason for the act denying a municipal license is perfectly regulated, since, under the shelter of Article 99 of the repealed Municipal Code and Article 81 of the new Code, “The municipal license … may only be denied when the activity is contrary to law, morality, or good customs, when the establishment has not met the requirements demanded by current laws and regulations, or when the activity, due to its physical location, is not permitted by laws, or failing that, by current municipal regulations.” As this same court previously resolved, by means of vote No. 4313-95, at 4:30 p.m. on September 8, 1995, the Ministry of Natural Resources, Energy and Mines, by resolution at 9:50 a.m. on October 4, 1993, granted the appellant a mining exploitation permit (for the extraction of sand, stone, and ballast) for a term of 25 years and on the property where the quarry with crushers would be located. Likewise, the appellant demonstrated, reliably, that the environmental impact assessment was approved by the Interinstitutional Commission for the Control and Evaluation of Environmental Impact Assessments, in session No. 199 of May 30, 1994, Article III, Agreement b, a resolution that was ratified by the Directorate of Geology and Mines (MIRENEM), by resolution at 8:14 a.m. on June 13, 1994. For this, this Court now adds, it was taken into account that the project and site to be exploited are not located in a forest reserve, national wildlife refuge, or protective zone. Specifically, it was demonstrated that it is located outside the limits stipulated by Executive Decree No. 17390-MAG-S, published in La Gaceta on January 21, 1987, for the two aquifer protection zones called Guácimo Protective Zone and Pococí Protective Zone. It turns out, then, that the concessionaire Teodoro Umaña García intends to develop an extractive and industrial activity of mineral substances, which, by its geographical location, according to the pertinent technical studies, is permitted by law (Article 68 of the Forestry Law No. 7174). It follows from the foregoing, that the appellant fully complied with the requirements demanded by the Mining Code and its Regulations, and therefore, the granting of the license cannot be denied to him, and we add, nor can it be conditioned upon the presentation of more requirements. Furthermore, in the instant case, we have that the granting of said mining concession implicitly entails, logically and legally, the corresponding authorization and/or land-use change. Namely, the exploitation of the quarry with a crusher. Said exploitation permit assumes that mineral substances susceptible to exploitation exist on the site. In the case file, it was accredited that “the area of application No. 2287, whose total extension is 1 ha. 9266, 91 m2, is completely disturbed, as a result of old illegal exploitations, which were carried out many years before Mr. Teodoro Umaña acquired said property. Therefore, in this area, there is an already established exploitation front, which is crossed by a rustic path, whose main function is not only as access to the selected site but also as a communication route for various settlers who own their properties in nearby mountainous terrains.” Likewise, it was demonstrated that “The area where the concession for Case File No. 2287 is located was exploited previously and illegally and without planning. Proof of this, - it was said - is the existence of an abandoned exploitation front, which was observed and analyzed during the field verification work. The current land use – it was affirmed – is composed for the most part by the opening of an exploitation front carried out in previous times and by an area composed of a residual secondary forest, where there are no relevant forest species. Therefore, the site is disturbed as a result of the exploitation actions carried out by man.” It must also be highlighted that if a Regulatory Plan does not govern in the canton of Guácimo, nor the corresponding development regulations, among them, specifically, a zoning regulation, the certificate of land use and/or land-use change demanded as a prior requirement for granting the license is inadmissible and inconsequential. Besides, the exploitation of the quarry itself, as recorded in the environmental impact assessment, equally implies, logically and legally speaking, the eventual felling of trees. Said report is explicit in indicating that “Any activity that involves the open-pit exploitation of any material necessarily involves a change in the landscape because said activity includes the removal of soil and vegetation. Naturally, the landscape of the worksite begins to experience changes from the very moment the first cubic meter of material is moved. Thus, the quarry site gradually begins to take the form of a series of terraces that tend to give the originally rounded surface (case of hills or small mountains) a flat and stepped appearance. In this way, at the end of the exploitation process, the original “protuberance” that corresponded to the hill of exploitable lithic or mineral material will remain as a small sub-plateau with wide and low steps. That is the case of what is happening here. The landscape will be gradually transformed by a process of artificial or induced “erosion.” In the end, the terraces abandoned as far as exploitation is concerned will be reforested and covered with grass, so that little by little the quarry aspect will integrate into the surrounding landscape and could even go unnoticed by those people who are not familiar with quarry operations. …” Although it cannot be affirmed that the concession or the approval of the environmental impact assessment signify an automatic and indiscriminate authorization for tree felling, the appellant is correct in indicating that the forest permit is not a requirement for the license to be granted to him since, in the event that said exploitation needs it, in accordance with the progress of the exploitation, he must request it from the administrative entity that oversees and is competent for it. Take into account again what was previously stated, that the current land use is composed for the most part by the opening of an exploitation front carried out in previous times and only the remainder by an area composed of a residual secondary forest. In any case, the need or not for felling and the forest permits are part of the quarry exploitation. This exploitation presupposes having the license or municipal operating permit beforehand. In other words, the interested party may not start the activity without the municipal license, and it is only once the project is in operation that the need or not for felling will be seen. Therefore, these permits are not a requirement that legally proceeds or precedes the operating license, but quite the opposite.
VII.- Now then, the exploitation permit is conditional upon compliance with the approved initial Work Plan contained in the administrative file, upon payment of the obligations imposed by law, and of course, upon the recommendations imposed by the Interinstitutional Commission for the Control of Environmental Impact Assessments, today the National Environmental Technical Secretariat, when approving the environmental impact assessment, with the aim of minimizing the impact on the environment and guaranteeing its recovery; among others, reforestation actions, as expressed above. That non-compliance may give rise to the expiration and cancellation of the exploitation concession (Articles 24, final paragraph, 58, and 63 of the Mining Code). Likewise, that Article 99 of the Organic Environmental Law, No. 7554, establishes a series of sanctions for the violation of environmental protection regulations for conducts harmful to the environment clearly established in the law, and specifically in its subsection f) it establishes the possibility of partial, total, permanent, or temporary cancellation of the permits, the licenses, the premises, or the companies that cause the complaint, the act, or the polluting or destructive event. For its part, the new Forestry Law No. 7575, in its Article 6, subsection f), attributes competence to the State Forestry Administration to coordinate forest and fiscal control with police authorities, the Municipalities, and the Ministry of Finance. Likewise, both the repealed Municipal Code and the current one are explicit in indicating that “The license (sic.) may be suspended due to (sic.) non-compliance with the requirements ordered in the laws for the development of the activity. …” (Articles 100 and 81 bis of said Codes, respectively). So that, under the shelter of this, the Municipalities can and must also monitor and report eventual non-compliances.
\n\nVIII.-As a corollary of the foregoing, being inconsistent with the juridical order, it is imperative to annul Agreement No. 4 adopted by the Municipal Council of the Canton of Guácimo, in Ordinary Session No. 66, Minutes No. 93, held on November 15, 1995, and by connection and as a consequence, the agreement adopted in Ordinary Session No. 46 held on August 28, 1996, a reminder of the aforementioned one.
IX.-In accordance with Article 6 of Law 7274 of December 10, 1991, the administrative channel must be deemed exhausted.
THEREFORE:
The appealed Agreement No. 4 adopted by the Municipal Council of the Canton of Guácimo, in Ordinary Session No. 66, Minutes No. 93, held on November 15, 1995, is annulled, and by connection and as a consequence, the agreement adopted in Ordinary Session No. 46 held on August 28, 1996, a reminder of the aforementioned one. The administrative channel is deemed exhausted.
\n\nLet the Municipality take note of what was stated in Considerando VII.\n\nRose Mary Chambers Rivas \n\nAna Isabel Vargas Vargas Bernardo Rodríguez Villalobos \n\n*Exp. 99-000764-161-CA Municipal*\n\n*Teodoro Umaña García v/Municipalidad de Guácimo*\n\n*vic*\n\nThat\nnon-compliance may result in the expiration (caducidad) and cancellation of the exploitation concession\n(Articles 24 final paragraph, 58 and 63 of the Mining Code. Likewise, that Article\n99 of the Organic Law of the Environment, No. 7554, establishes a series of sanctions for\nthe violation of environmental protection regulations for\nharmful conduct against the environment clearly established in the law, and specifically in its\nsubsection f) establishes the possibility of partial, total, permanent or temporary cancellation\nof permits, **patents (patentes)**, the premises or\nthe companies that cause the complaint, the act or the polluting or destructive fact. For\nits part, the new Forestry Law (Ley Forestal) No. 7575, in its Article 6 subsection f) assigns competence\nto the State Forestry Administration to coordinate forest and fiscal control with\nthe police authorities, the Municipalities and the Ministry of Finance. Likewise, both\nthe repealed Municipal Code and the current one are explicit in indicating that \"The\nlicense (sic.) may be suspended for (sic.) non-compliance with the requirements ordered\nin the laws for the development of the activity. …\" (Articles 100 and 81 bis of\nsaid Codes respectively). So that, under the protection of this,\nthe Municipalities can and must also monitor and report potential non-compliances. VIII.-As a corollary of the foregoing,\nbeing in disagreement with the legal system, it is imperative to annul\nagreement No. 4 adopted by the Municipal Council of the Canton of Guácimo, in Ordinary Session No. 66,\nMinutes No. 93, held on November 15, 1995, and by connection and as a consequence the\nagreement adopted in Ordinary Session No. 46 held on August 28, 1996, a reminder\nof the aforementioned.\n\nIn the sub‑lite, obviously, any discretion of the Territorial Administration in denying licenses was fully limited by the technical and scientific studies carried out in the procedure initiated to obtain the mining concession, which resulted, in their conclusions, in opposition to what was agreed by the Municipal Corporation.”..(see folios 248 to 250).\n\n9.-That after the issuance of said pronouncement by this Tribunal, the Municipal Council of the canton of Guácimo, in Ordinary session # 66, held on November 15, 1995, adopted the agreement that is the object of the present appeal and that states: “It is agreed to request Mr. Teodoro Umaña García to present to this Municipality, as a requirement to grant him the quarry exploitation license, a forest permit for tree felling and land-use change (cambio de uso de suelos). Definitely approved agreement.” That subsequently another agreement was adopted in Ordinary Session No. 46 held on August 28, 1996, which is a mere reminder of the aforementioned, and which in pertinent part states: “Responding to the request submitted by Mr. Teodoro Umaña – Representative of Quebradores Suerres S.A. by Lic. Bernal Salazar, on the past August 18, 96, it is agreed to remind him that through Ordinary Session # 66, held on November 15, 1995, he is requested to first present the forest permit for tree felling and land-use change, granted by the Regional Office of MINAE. As to date it is pending submission, a resolution cannot be taken on the matter.” (folios 290 vuelto and 301, evidence items 20 and 13, respectively and folios 353 and 362 vuelto, likewise evidence items 13 and 20).
II.-Dissatisfied with the resolution of the Municipal Council, of November 15, 1995, Ordinary Session No. 66, Mr. Teodoro Umaña García filed remedies of reconsideration with subsidiary appeal before this Tribunal, for which he argued, in summary, that the forest permit is not a requirement for granting him the license, since in the event that said exploitation requires it, according to the progress of the exploitation, it shall be requested from the administrative body that oversees it, and that likewise the land-use change is not a requirement for granting him the license. He adds that this Tribunal already revoked the previous municipal agreement, which had been explicit in indicating to him the requirements that were missing, and therefore, upon being revoked by this Tribunal, in his opinion no other pending requirement remained to be fulfilled. By virtue of this, he requests to revoke said agreement, in addition to the legal consequences that this may entail. (folio 259).
III.-That by agreement adopted by the Municipal Council of the Canton of Guácimo in Ordinary session # 20, held on July 28, 1999, it was agreed: “to admit the Appeal filed by Tehodoro Umaña García, against agreement # 4, adopted in Ordinary Session # 66, Record # 93, held on November 15, 1995. The interested party is summoned so that within a period of five (5) business days counted from the notification, he may appear to assert his rights before the Superior Administrative Litigation Tribunal, Third Section. The appellant is warned that he must indicate a means and place for receiving notifications within the perimeter of the Second Judicial Circuit of San José (Goicoechea). Notify.” (folio 264 and 267).
IV.-.-That by official communication dated July 3, 2000, the Municipality of Guácimo informs this Tribunal that Mr. Teodoro Umaña García personally received a copy of the agreement cited in the previous point, # 16, adopted by the Council of said Municipal Corporation, in Ordinary Session # 30, held on July 28, 1999, in which he is summoned so that within a period of five business days counted from this notification, he may assert his rights before this Tribunal. (folio 268).
V.-Before analyzing the merits of the matter, this Tribunal considers it necessary to study the point regarding the admissibility of the appeal. In legal doctrine, it is peacefully accepted that mere procedural or preparatory acts cannot be subject to challenge, since they do not produce, in principle, direct, immediate, or own legal effects. Exceptionally, procedural administrative acts are susceptible to challenge in the administrative and jurisdictional venue when they are assimilated “ex lege” to a final act. Thus, by way of example, Article 345, paragraph 3, of the General Law of Public Administration stipulates that “A procedural act that indefinitely suspends or makes the continuation of the procedure impossible shall also be considered a final act.”. Equally, Article 163, paragraph 2, of the same regulatory body establishes that “The defects inherent to preparatory acts shall be challenged jointly with the act, unless those are, in turn, acts with their own effect.”. For its part, the Regulatory Law of the Administrative Litigation Jurisdiction prescribes in its numeral 18, paragraph 1, that procedural acts are susceptible to challenge “… if they decide directly or indirectly the merits of the matter, in such a way that they put an end to that administrative venue or make its continuation impossible or suspend it”. The repealed Municipal Code and the current one contain rules of similar content, since they established that municipal agreements of mere procedure are not susceptible to challenge (Article 172, subsection b, of the repealed Municipal Code and 154, subsection b, of the current one –Law No. 7794 of April 3, 1998-). On this particular matter, see ruling of the Constitutional Chamber No. 4072-95 of 10:36 a.m. on July 21, 1995; judgment No. 176 of 9:00 a.m. on October 11, 1991, of the First Chamber of the Supreme Court of Justice and ruling of this Tribunal No. 9756-99 of 9:00 a.m. on June 4, 1999. In the sub-lite, the appellant seeks to challenge the municipal agreement adopted by the Municipal Council of the Canton of Guácimo, in Ordinary Session No.66, Record No. 93, held on November 15, 1995, in which despite what was previously resolved by this same Tribunal, as a new requirement to grant him the quarry exploitation license, it agrees to request Mr. Teodoro Umaña García to present to said Municipality a forest permit for tree felling and land-use change. Evidently, it is a mere procedural act but one that produces its own legal effects, assimilable to a final act, since by its virtue, it indefinitely suspends the course of the procedures making its continuation impossible. By virtue of the foregoing, and especially for the way this matter is resolved, as shall be stated later, this tribunal considers that said agreement is indeed susceptible to the present appeal.
VI.- The substantive matter to consider for the resolution of the present matter is reduced to determining whether, from a strictly legal standpoint, the new requirement requested by the Territorial Administration is proper or not, namely the presentation of a forest permit for tree felling and land-use change, for the granting of the quarry license with crusher applied for, and if therefore, the Municipality can validly or not condition the granting of said license on the prior presentation of said requirements. In this regard and for the reasons that shall be stated below, this Tribunal considers that said requirement is legally improper. Let us see: The grounds for the denial of a municipal license are perfectly regulated, since, under Article 99 of the repealed Municipal Code and Article 81 of the new Code, “The municipal license … may only be denied when the activity was contrary to the law, to morality, or to good customs, when the establishment had not fulfilled the requirements demanded by current laws and regulations, or when the activity, by reason of physical location, was not permitted by the laws, or in their absence, by the current municipal regulations”. As this same tribunal already resolved, through ruling No. 4313-95, of 4:30 p.m. on September 8, 1995, the Ministry of Natural Resources, Energy and Mines, through a resolution of 9:50 a.m. on October 4, 1993, granted the appellant a mining exploitation permit (for the extraction of sand, stone, and ballast) for a period of 25 years and on the property where the quarry with crushers would be located. Likewise, the appellant demonstrated, conclusively, that the environmental impact assessment (estudio de impacto ambiental, EIA) was approved by the Interinstitutional Commission for the Control and Evaluation of Environmental Impact Assessments, in session No. 199 of May 30, 1994, Article III, Agreement b, a resolution that was ratified by the Directorate of Geology and Mines (MIRENEM), through a resolution of 8:14 a.m. on June 13, 1994. For this purpose, this Tribunal now adds, it was taken into account that the project and site to be exploited are not located in a forest reserve, national wildlife refuge, or protected zone. Specifically, it was demonstrated that it is outside the limits stipulated by Executive Decree No. 17390-MAG-S, published in La Gaceta on January 21, 1987, for the two aquifer protection zones called Guácimo Protected Zone and Pococí Protected Zone. It follows then that the concessionaire Teodoro Umaña García intends to develop an extractive and industrial activity of mineral substances, which by its geographical location, according to the pertinent technical studies, is permitted by law (Article 68 of the Forest Law No. 7174). It follows from the foregoing, that the appellant fully complied with the requirements demanded by the Mining Code and its Regulation, with which he cannot be denied the granting of the license, and we add, nor can it be conditioned on the presentation of more requirements. Furthermore, in the specific case we have that the granting of said mining concession implicitly entails, logically and legally, the corresponding authorization and/or land-use change. Namely, quarry exploitation with crusher. Said exploitation permit assumes that at the site there exist mineral substances susceptible to exploitation. In the case file, it was accredited that “the area of application No. 2287, whose total extension is 1 ha. 9266, 91 m2., is found totally intervened, as a result of old illegal exploitations, which were carried out many years before Mr. Teodoro Umaña acquired said farm. Therefore, in this area there is an already established exploitation front, which is crossed by a rustic road, whose main function is not only as access to the selected site, but also as a communication route for various residents, who possess their farms in adjoining mountainous terrains”. Likewise, it was demonstrated that “The area where the concession of File No. 2287 is located was exploited previously and illegally and without planning. Proof of this, - it was stated - is the existence of an abandoned exploitation front, which was observed and analyzed during the field verification work. The current land use – it was affirmed - is composed for the most part by the opening of an exploitation front carried out in previous times and by an area composed of a secondary residual forest, where there are no forest species of relevance. Therefore, the site is found intervened as a result of the exploitation actions carried out by man”. It should also be highlighted that if no Regulatory Plan is in effect in the canton of Guácimo, nor the corresponding development regulations, among them, specifically, a zoning regulation, the certificate of land use and/or land-use change demanded as a prerequisite for the concession of the license is inadmissible and inconsequential. Apart from that, the exploitation of the quarry itself, as is reflected in the environmental impact assessment, likewise implies, logically and legally speaking, the eventual felling of trees. Said report is explicit in indicating that “Any activity that implies the open-pit exploitation of any material, necessarily involves a change in the landscape because said activity includes the removal of soil and vegetation. Naturally, the landscape of the work site begins to experience changes from the very moment the first cubic meter of material is moved. Thus, the quarry site begins gradually to take the form of a series of terraces that tend to give the originally rounded surface (case of hills or small mountains) a flat and stepped aspect. In this way, upon finishing the exploitation process, the original “protuberance” that corresponded to the hill of lithic or exploitable mineral material will remain as a small sub-meseta with wide and low steps. That is the case of what is happening here. The landscape will be gradually transformed by a process of artificial or induced “erosion”. In the end, the terraces abandoned as far as exploitation is concerned will be reforested and covered with grass, in such a way that little by little the aspect of a quarry will integrate into the landscape that surrounds it and could even go unnoticed by those people who are not familiar with quarry operations. …”. Although it cannot be affirmed that the concession nor the approval of the environmental impact assessment signify an automatic and indiscriminate authorization for tree felling, the appellant is correct in indicating that the forest permit is not a requirement for granting him the license, since in the event that said exploitation requires it, according to the progress of the exploitation, he must thus request it from the administrative body that oversees it and is competent for that purpose. Note again what was previously stated, that the current land use is composed for the most part by the opening of an exploitation front carried out in previous times and only the remainder by an area composed of a secondary residual forest. In any case, the need or not for felling and the forest permits form part of the quarry exploitation. This exploitation presupposes first having the license or municipal operating permit (patente). Stated in other terms, the interested party cannot begin the activity without the municipal license and it will not be until the project is in operation that the need or not for felling will be seen. Therefore, these permits are not a requirement that legally proceeds nor precedes the operating license, but quite the opposite.
VII.- Now then, the exploitation permit is conditioned on compliance with the approved initial Work Plan that is contained in the administrative file, on the payment of the obligations that the law imposes, and of course on the recommendations imposed by the Interinstitutional Commission for the Control of Environmental Impact Assessments, today National Environmental Technical Secretariat (Secretaria Técnica Nacional Ambiental, SETENA), upon approving the environmental impact assessment, with the objective of minimizing the impact on the environment and guaranteeing its recovery; among others, reforestation actions, as expressed above. That its non-compliance may give rise to expiration and cancellation of the exploitation concession (Articles 24 final paragraph, 58 and 63 of the Mining Code. Likewise, that Article 99 of the Organic Law of the Environment, No. 7554, establishes a series of sanctions for the violation of environmental protection regulations for harmful conduct towards the environment clearly established in the law, and specifically in its subsection f) establishes the possibility of partial, total, permanent or temporary cancellation of permits, the licenses (patentes), the premises or the companies that provoke the complaint, the contaminating or destructive act or fact. For its part, the new Forest Law No. 7575, in its Article 6 subsection f) attributes competence to the State Forest Administration to coordinate forest control and surveillance with the police authorities, the Municipalities, and the Ministry of Finance. Likewise, both the repealed and the current Municipal Code are explicit in indicating that “The license may be suspended for non-compliance with the requirements ordered in the laws for the development of the activity. …” (Articles 100 and 81 bis of said Codes respectively). So that, under this, the Municipalities can and must also monitor and report any eventual non-compliance.
\n\nVIII.-As a corollary of the foregoing, being inconsistent with the legal system, it is imperative to annul agreement No. 4 adopted by the Municipal Council of the Canton of Guácimo, in Ordinary Session No.66, Record No. 93, held on November 15, 1995, and by connection and as a consequence the agreement adopted in Ordinary session No. 46 held on August 28, 1996, reminder of the aforementioned.
IX.-In accordance with Article 6 of Law 7274 of December 10, 1991, the administrative venue must be deemed exhausted.
POR TANTO:
The appealed agreement No. 4 is annulled, adopted by the Municipal Council of the Canton of Guácimo, in Ordinary Session No.66, Record No. 93, held on November 15, 1995, and by connection and as a consequence the agreement adopted in Ordinary session No. 46 held on August 28, 1996, reminder of the aforementioned. The administrative venue is deemed exhausted. The Municipality is to take note of what is stated in Considerando VII.
Exp. 99-000764-161-CA Municipal
Teodoro Umaña García c/Municipalidad de Guácimo
vic