← Environmental Law Center← Centro de Derecho Ambiental
Res. 28826-2026 Sala Constitucional · Sala Constitucional · 30/07/2026
OutcomeResultado
The Constitutional Chamber admitted the amparo, automatically staying both the environmental viability (Res. 0591-2022-SETENA) and the tree-cutting permit (SINAC-ACT-OSRSCC-052-2026) for Bahía Papagayo; the final disposition on the merits is not visible in the available text, which is truncated before the operative Por Tanto clause.La Sala dio curso al amparo, produciendo la suspensión automática de pleno derecho de la viabilidad ambiental (Res. 0591-2022-SETENA) y el permiso de corta forestal (SINAC-ACT-OSRSCC-052-2026) del Proyecto Bahía Papagayo; la disposición final sobre el fondo no es visible en el texto disponible por estar truncado antes del Por Tanto.
SummaryResumen
Costa Rica's Constitutional Chamber considers an amparo filed against SETENA, MINAE, and SINAC concerning the environmental viability granted to the Bahía Papagayo Project (docket D1-0170-2021-SETENA, Res. 0591-2022-SETENA) and a tree-cutting permit for 748 trees on 7.62 hectares of the Golfo de Papagayo Tourism Pole (PTGP) in Playa Panamá, Guanacaste. The petitioner argues the state-owned land contains forest constituting State Natural Heritage, that water-body buffer zones were reduced below Forestry Law Art. 33 minimums, and that the cutting permit (SINAC-ACT-OSRSCC-052-2026) relied on norms challenged in a pending parallel unconstitutionality action (docket 25-033926-0007-CO). Respondents—the Executive, SETENA, and SINAC—defend the PTGP's special legal regime under Law No. 6758, argue that a field inspection confirmed the area does not constitute 'forest' under the Fallas (2019) methodology and Forestry Law Art. 3, and that the environmental viability is a firm administrative act. The President and MINAE expressly acknowledge that admission of the amparo automatically stayed both administrative acts. The final disposition on the merits is not visible in the available text, which is truncated before the Por Tanto.La Sala Constitucional conoce un recurso de amparo interpuesto contra SETENA, MINAE y SINAC por la aprobación de la viabilidad ambiental del Proyecto Bahía Papagayo (expediente D1-0170-2021-SETENA, Res. 0591-2022-SETENA) y el permiso de corta de 748 árboles en 7,62 hectáreas del Polo Turístico Golfo de Papagayo (PTGP), en Playa Panamá, Guanacaste. El recurrente alega que los terrenos estatales contienen bosque que constituye Patrimonio Natural del Estado, que las zonas de protección de cursos de agua fueron reducidas en contravención al artículo 33 de la Ley Forestal N.° 7575, y que el permiso de corta (SINAC-ACT-OSRSCC-052-2026) se fundamentó en normas impugnadas en una acción de inconstitucionalidad paralela (exp. 25-033926-0007-CO). Los accionados —el Poder Ejecutivo, SETENA y SINAC— defienden el régimen jurídico especial de la Ley N.° 6758, argumentan que una inspección de campo acreditó que el área no constituye 'bosque' según la metodología Fallas (2019) y el artículo 3 de la Ley Forestal, y que la viabilidad ambiental es un acto firme. El Presidente de la República y el MINAE reconocen expresamente que dar curso al amparo suspendió de pleno derecho la ejecución de ambos actos administrativos. La disposición final sobre el fondo no es visible en el texto disponible, que aparece truncado antes del Por Tanto.
Key excerptExtracto clave
"The area where the trees are located does NOT correspond to the definition of forest under Forestry Law 7575 or the definition of forest under Decree No. 39952-MINAE. The trees requested for cutting are outside the water protection zones under article 33 of Forestry Law 7575. After completing the field review, there is no technical restriction under current regulations for harvesting the trees." (Field Report SINAC-ACT-OSRSCC 155-2026) "It must be borne in mind that vegetation cover is not equivalent to the concept of forest or forestry aptitude. The concept of vegetation cover is broad and general and may include trees, scrubland, grass, pasture, fruit trees, pastures, undergrowth, flora, plants, vegetables, agronomic species, forestry species, leaf litter or harvest residue, live fences, among others. The concept of forest, by contrast, is strict, different from that of vegetation cover, and must conform to article 3, paragraph (d) of Forestry Law No. 7575." (Sworn report of MINAE/SINAC) "The first, and perhaps most important, is that the filing of an unconstitutionality action does not suspend the general efficacy and applicability of the norms. The second is that only the application of the challenged norms by judicial authorities in proceedings before them, or by administrative authorities in procedures aimed at exhausting the administrative route, is suspended—but not the norms' general validity and application." (Constitutional Chamber, resolution of November 13, 2025, docket 25-033926-0007-CO)"El área donde se ubican los árboles NO corresponde con la definición de bosque de la Ley Forestal 7575 ni con la definición de Bosque del Decreto No.39952-MINAE. Los árboles solicitados están fuera de áreas de protección hídrica según el artículo 33 de la Ley Forestal 7575. Realizada la revisión de campo no existe ninguna restricción técnica según la normativa vigente para el aprovechamiento de los árboles." (Informe de Campo SINAC-ACT-OSRSCC 155-2026) "Debe tenerse presente, que cobertura vegetal no equivale al concepto de bosque ni aptitud forestal. El concepto de cobertura vegetal es amplio y general y puede incluir árboles, charral, zacate, potrero, frutales, pastos, patizal, flora, plantas, vegetales, especies agronómicas, especies forestales, hojarasca o residuos de cosecha, cerca viva, entre otros. Por su lado, el concepto de bosque es estricto, y diferente al de cobertura vegetal y tiene que estar conforme al artículo 3 inciso d) de la Ley Forestal No. 7575." (Informe bajo juramento MINAE/SINAC) "La primera, y quizás la más importante, es que la interposición de una acción de inconstitucionalidad no suspende la eficacia y aplicabilidad en general de las normas. La segunda, es que solo se suspenden los actos de aplicación de las normas impugnadas por las autoridades judiciales en los procesos incoados ante ellas, o por las administrativas, en los procedimientos tendientes a agotar la vía administrativa, pero no su vigencia y aplicación en general." (Sala Constitucional, resolución de las 15:46 horas del 13 de noviembre de 2025, exp. 25-033926-0007-CO)
Pull quotesCitas destacadas
"El área donde se ubican los árboles NO corresponde con la definición de bosque de la Ley Forestal 7575 ni con la definición de Bosque del Decreto No.39952-MINAE. Los árboles solicitados están fuera de áreas de protección hídrica según el artículo 33 de la Ley Forestal 7575. Realizada la revisión de campo no existe ninguna restricción técnica según la normativa vigente para el aprovechamiento de los árboles."
"The area where the trees are located does NOT correspond to the definition of forest under Forestry Law 7575 or the definition of forest under Decree No. 39952-MINAE. The trees requested for cutting are outside the water protection zones under article 33 of Forestry Law 7575. After completing the field review, there is no technical restriction under current regulations for harvesting the trees."
Informe de Campo SINAC-ACT-OSRSCC 155-2026 (citado en informe bajo juramento ACT/SINAC)
"El área donde se ubican los árboles NO corresponde con la definición de bosque de la Ley Forestal 7575 ni con la definición de Bosque del Decreto No.39952-MINAE. Los árboles solicitados están fuera de áreas de protección hídrica según el artículo 33 de la Ley Forestal 7575. Realizada la revisión de campo no existe ninguna restricción técnica según la normativa vigente para el aprovechamiento de los árboles."
Informe de Campo SINAC-ACT-OSRSCC 155-2026 (citado en informe bajo juramento ACT/SINAC)
"La primera, y quizás la más importante, es que la interposición de una acción de inconstitucionalidad no suspende la eficacia y aplicabilidad en general de las normas. La segunda, es que solo se suspenden los actos de aplicación de las normas impugnadas por las autoridades judiciales en los procesos incoados ante ellas, o por las administrativas, en los procedimientos tendientes a agotar la vía administrativa, pero no su vigencia y aplicación en general."
"The first, and perhaps most important, is that the filing of an unconstitutionality action does not suspend the general efficacy and applicability of the norms. The second is that only the application of the challenged norms by judicial authorities in proceedings before them, or by administrative authorities in procedures aimed at exhausting the administrative route, is suspended—but not the norms' general validity and application."
Sala Constitucional, resolución de las 15:46 horas del 13 de noviembre de 2025 (exp. 25-033926-0007-CO), citada en informes bajo juramento
"La primera, y quizás la más importante, es que la interposición de una acción de inconstitucionalidad no suspende la eficacia y aplicabilidad en general de las normas. La segunda, es que solo se suspenden los actos de aplicación de las normas impugnadas por las autoridades judiciales en los procesos incoados ante ellas, o por las administrativas, en los procedimientos tendientes a agotar la vía administrativa, pero no su vigencia y aplicación en general."
Sala Constitucional, resolución de las 15:46 horas del 13 de noviembre de 2025 (exp. 25-033926-0007-CO), citada en informes bajo juramento
Full documentDocumento completo
Document PJEDITOR Case: 26-013284-0007-CO Ruling No. 2026028826 CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF JUSTICE. San José, at nine hours and twenty-five minutes on the thirtieth of July, two thousand twenty-six.
Writ of amparo (recurso de amparo) processed under case file no. 26-013284-0007-CO, filed by Nombre01, national identity card (cédula de identidad) CED01, against the NATIONAL TECHNICAL ENVIRONMENTAL SECRETARIAT (SETENA), the MINISTRY OF ENVIRONMENT AND ENERGY (MINAE), and the NATIONAL SYSTEM OF CONSERVATION AREAS (SINAC).
Background:
1. A document submitted by the company as part of its response to the notice of deficiency (prevención)—identified as "Response to Notice of Deficiency, Ruling no. 1263-2021-SETENA," dated January 6, 2022: This document establishes that the protection zones for bodies of water will be 15 meters along the tidal streams (esteros) Rocha and Panamá, and 10 meters on each bank of the unnamed seasonal streams (quebradas estacionales), as an environmental mitigation measure. However, the petitioner argues that these measures expressly contravene the provisions of Article 33, subsection b) of Ley Forestal No. 7575.
2. A technical analysis included in Ruling No. 0591-2022-SETENA, specifically in the Georeferencing section, prepared by SETENA's Geography Unit: The petitioner affirms that it is established that the project area contains significant forest cover consisting of deciduous, mature, and secondary forest, according to official data from the National Territorial Information System (SNIT) and FONAFIFO, for the years 2005 and 2013. Furthermore, the land is classified under Land Use Class VII, intended for forest management. The petitioner adds that it is indicated that any intervention must be processed before MINAE/SINAC, pursuant to Article 27 of Ley Forestal.
3. Official communication SETENA-SG-0646-2025, through which SETENA formally requested from SINAC a technical opinion on the existence of forest and wetlands on the lands of the Bahía Papagayo project, as part of the processing of the nullity proceeding (incidente de nulidad) against Ruling 0591-2022-SETENA. The petitioner alleges that, in that communication, Nombre03 acknowledges that the Dirección01 present forest cover of up to 98%.
4. Legal opinion DAJ-MINAE-1591-2025, issued on August 6, 2025: The Legal Advisory Directorate of MINAE concluded that the Proyecto Turístico Golfo de Papagayo operates under a special legal regime pursuant to Law No. 6758, and that therefore—according to that opinion—it is valid to carry out a real-estate/tourism project in the terms authorized by the ICT under the concession granted to the development group, even where this entails land-use change on forested lands constituting state natural heritage (patrimonio natural del Estado). The petitioner notes that the document maintains that the concessionaires may remove up to 30% of the vegetation cover (cobertura vegetal), including forest, regardless of its nature.
5. Report INFTEC-DT-ASA-0324-2025, produced as a result of the inspection carried out on May 26, 2025, in the area of the Bahía Papagayo Project. The petitioner states that, in that report, the official forest cover layer from the year 2000—endorsed by Decreto Ejecutivo N.º 36818-MINAET—was overlaid, and it was demonstrated that the majority of the project areas (figures B, C, and D) are entirely contained within zones classified as forest constituting state natural heritage, by virtue of being located on state-owned land. The petitioner states that, by ruling of the Chamber issued at 15:46 hours on November 13, 2025, the unconstitutionality action (acción de inconstitucionalidad) no. 25-033926-0007-CO was admitted for processing, filed against specific provisions constituting the regulatory framework of the Proyecto Turístico Golfo de Papagayo. The petitioner contends that, in particular, the action challenges: (i) Article 74 of the Law on the Maritime-Terrestrial Zone (Law No. 6043) and Article 93 of its Implementing Regulation (Decreto Ejecutivo N° 7841-P), which establish the exceptional regime of continuous administration by the ICT over Bahía Culebra; (ii) Article 1, final paragraph, of Law No. 6370, and Articles 2 and 12 of Law No. 6758, which declare the project to be of public utility and extend the ICT's powers to authorize works and grant concessions within the expropriated area; (iii) Articles 1 and 2 of Decreto Ejecutivo N° 33132-MP-T, which declare the project to be of national interest and order its institutional support; and (iv) Article 5.1, subsections i) and j), of Regulation No. 4572 of the ICT (Plan Maestro General), which sets development guidelines, densities, and environmental conditions within the concession area.
The petitioner notes that, through ruling no. 0215-2026-SETENA, that entity suspended the processing of two nullity proceedings filed in administrative case file no. D1-0170-2021, on the basis of the decision issued by the Constitutional Chamber in the aforementioned ruling. However, the petitioner alleges that SETENA omitted any precautionary measure and instead stated: "It is reiterated that the foregoing does not prevent the determination that the Environmental Viability License granted to the project remains in full force." The petitioner contends that, through official communication no. CARTA-BD-DT-DEA-0109-2026, the environmental logbook (bitácora ambiental) was opened as part of the construction commencement process, and that on April 15, 2026, the presence of machinery at the site was confirmed. Furthermore, the petitioner alleges that, notwithstanding the aforementioned unconstitutionality action, through ruling no. SINAC-ACT-OSRSCC-052-2026 of April 9, 2026—which was known to the relevant officials as shown in the corresponding case file—a tree-felling permit (permiso de corta) was issued for 3,656 trees within the project area, including as grounds for the ruling, in the ninth recital, Decreto Ejecutivo N° 4572, the Reglamento Plan Maestro General del Proyecto Turístico Golfo de Papagayo, which has been challenged in the respective unconstitutionality action, thereby implying the suspension of the issuance of final administrative acts (actos administrativos finales), such as the referenced permit.
The petitioner mentions that the plan to begin tree felling (tala) in the forest, as stated in the application to SINAC, indicates February 2026, confirming the developer's urgency to commence works, which has been verified on-site with the presence of machinery. For the foregoing reasons, the petitioner requests the Chamber's intervention in this writ of amparo.
2. THIS WRIT OF AMPARO IS A REPETITION OF MANY OTHERS ALREADY REJECTED BY THE CONSTITUTIONAL CHAMBER, BOTH FROM THE PETITIONER AND FROM GADI AMIT, AS WELL AS OF NULLITY PROCEEDINGS AGAINST THE PROJECT'S ENVIRONMENTAL VIABILITY, WHICH Nombre03 HAS ALREADY REJECTED. THERE IS NO RISK OF HARM TO THE ENVIRONMENT OR TO THE ALLEGED FOREST THAT THE PETITIONER CLAIMS TO PROTECT. THE WRIT MUST BE REJECTED OUTRIGHT AND, CONSEQUENTLY, THE PRECAUTIONARY MEASURE SOUGHT FOR PURELY EXTORTIONATE PURPOSES MUST ALSO BE REJECTED.
Although the petitioner seeks to maliciously deceive the Constitutional Chamber with entirely false arguments and unjustified fears, the truth is that in this case there is no reasonable technical doubt whatsoever as to whether a risk to the alleged forest could arise, since the project, after years of processing, has obtained all required permits, which the petitioner has challenged before this Chamber, before Nombre03, and before other competent bodies, all to no avail given the unfavorable outcomes for his malicious actions, which serve no purpose other than to obstruct a sustainable tourism development and to repeat his "heroic" achievement of turning Crucitas into an environmental disaster and driving all tourism investment away from the country. In essence, this writ of amparo is a tantrum against the robust rulings of Nombre03 and MINAE, and even of this Chamber, which time and again have told him that all project permits comply with the law, that there is no environmental risk and no destruction of protected forest land.
The petitioner thus seeks to use this Chamber as an instrument for his political ends, disguised as forest protection, in order to once again cast himself as a "national hero" and destroy an environmentally sustainable project, turning it into a socioeconomic disaster for the region, which—if this Chamber allows him to prevail—will cease to receive investment, employment, and ecologically balanced development. In other words, another Crucitas, where the petitioner's political objectives, cloaked under the banner of environmental protection, did nothing but generate—there, truly—an ecological and socioeconomic disaster for the region, which is what he seeks to replicate here as well. Thus, in essence, he insists that the special regime of the Proyecto Turístico Golfo de Papagayo allows the removal of up to thirty percent of the vegetation cover, including forest cover, on state-owned lands, without distinction as to their nature as state natural heritage—which introduces a substantial reduction in the forest protection previously guaranteed by Law No. 7575—which is false and, in any case, represents a legal regime more protective of the environment, dating back many years, and grounded in provisions that remain in force.
Likewise, the petitioner argues that the issuance of a clear-felling permit for more than 3,500 trees, even while the regulatory provision invoked as the legal basis for that decision is being challenged before the constitutional forum and its application to final administrative acts is consequently suspended, constitutes a flagrant breach of the State's heightened duty of protection with regard to the safeguarding of nature. At this point, a glaring ignorance of administrative law and constitutional procedural law becomes apparent. As SETENA itself clarified to the petitioner, environmental viability, being an administrative act (acto administrativo), enjoys a presumption of validity (presunción de validez) and, consequently, a mere challenge through administrative channels does not suspend its effects, since it is enforceable and self-executing by virtue of administrative self-enforcement (autotutela) from the moment it is issued.
Moreover, the unconstitutionality action currently before the Constitutional Chamber suspends in the administrative channel only the act that exhausts that channel. The petitioner, in his Machiavellian attempt to destroy the project and create another Crucitas for political purposes, devised a legal strategy that did not work—because it was technically flawed—and now seeks to deceive this Chamber with fallacious arguments devoid of any evidentiary support in order to suspend the enforcement of final and binding permits. Indeed, the petitioner, more than a year after the environmental viability had been granted and, curiously, as elections drew near, suddenly awakened his environmental conscience and filed a nullity proceeding—entirely out of time—against the environmental viability. He then filed an unconstitutionality action against regulations approved many years ago that have enabled an ecologically sustainable development of an iconic tourism project in Costa Rica such as Papagayo.
On that basis, he calculated that, by having the Constitutional Chamber admit his action and by himself filing an administrative appeal against Nombre03's rejection of his nullity proceeding against the environmental viability, the effects of that administrative act would thereby be suspended. However, what he failed to take into account is that administrative acts enjoy a presumption of validity, are enforceable and self-executing, and that what the unconstitutionality action suspends in the administrative channel is only the act that exhausts the administrative channel; therefore, his administrative appeals against the rejection of his nullity proceeding are suspended, but not the administrative act granting environmental viability. Note, then, the unfounded, malicious, and borderline procedurally abusive litigation strategy that he now seeks to have this Chamber rectify by attempting to confuse, intimidate, and cause panic.
In this regard, please refer to the opinion of Dr. Rubén Hernández Valle on this matter, in which he analyzes the effects of the unconstitutionality action. Everything else, Honorable Justices, consists of falsehoods, entirely without foundation and, worse still, contrary to the factual and legal reality, which demonstrates—as shown by the attached evidence—that the project, after many years and thousands of technical and legal studies, has complied with all applicable legal and environmental requirements in Costa Rica for a tourism development in Papagayo, which, as has been demonstrated on multiple occasions, protects the environment to an even greater and better degree than the general legislation of Costa Rica, which is why one can barely even tell there are hotels built there and whales leap in the middle of the Gulf. On the foregoing grounds, and with the greatest respect, we request the Constitutional Chamber to reject this writ of amparo outright, as it seeks nothing more than political glory at the expense of the region's socioeconomic development and progress, aiming to achieve yet another heroic triumph like Crucitas—which brought about, there truly, an ecological and socioeconomic disaster for the region, as the petitioner also seeks to bring about here." The representative further states: "…I respectfully appear to provide, by way of supplement, a reference to various proceedings and rulings that unequivocally establish that the development of Proyecto Turístico Nombre04 has been carried out in strict compliance with the applicable legal framework.
For approximately one year and two months, Proyecto Turístico Nombre04 has been the target of a systematic, coordinated, and sustained campaign aimed at obstructing its execution and discrediting its public image. This campaign has not been limited to the filing of legal actions, but has included conduct that exceeds the legal framework, among them:
• The filing of false and defamatory complaints; • Repeated vandalism of project property; • Manipulation or planting of evidence for disinformation purposes; • Mass dissemination of false or inaccurate information, including claims such as: o The alleged impact on a mangrove at Playa Panamá, which is materially false, as the property does not border that ecosystem, with a public road even separating them; o The alleged construction of golf courses, which forms no part of the project's design or planning; o The restriction of beach access, despite the fact that the project has no beach access and is located more than 400 meters from the beach. • Unauthorized entry onto private property; • Acts of intimidation directed at public officials, institutions, and actors linked to the project's development.
As stated in the appearance and response, the writ of amparo filed is, in essence, a repetition of many other judicial and administrative actions previously filed, all of which have been rejected by the Constitutional Chamber and other competent bodies. For that reason, we take this opportunity to cite, below, relevant decisions and rulings adopted in multiple administrative and judicial proceedings brought with the aim of—unsuccessfully—halting the Project. These rulings confirm Proyecto Nombre04's lawful conduct and, equally, a bad-faith course of conduct on the part of the petitioners.
1. False complaint of alleged illegal tree felling and referral of records (testimonio de piezas) against complainants Initially, as one of the first actions taken, an anonymous complaint was filed against the Project, alleging the existence of illegal tree felling within the concession area. In response, the Public Prosecutor's Office requested an inspection from the Tempisque Conservation Area (ACT) of SINAC, which was carried out on February 25, 2025, according to official report ACTOSRSCC-0216-2025. The result of that inspection was categorical and admits no ambiguous interpretation, expressly concluding as follows: "No tree felling is observed; rather, brush clearing (chapia) of multiple regrowths of approximately 8 to 10 cm in diameter at the base, but not at breast height diameter. The predominant species at the site is guácimo. In the sector adjacent to vertex 13 of the survey plan, there are several individuals of the mango species (Mangifera indica), including individuals of very good stature and crown spread, of mature age, indicating that what is known in the province as a 'sitio' previously existed at the location, which included water tanks and a livestock corral." (Emphasis not in the original.)
Subsequently, on May 9, 2025, the Public Prosecutor's Office itself also conducted an inspection, again confirming the non-existence of the reported events. As a direct consequence, the Public Prosecutor's Office proceeded to refer records against the complainants, initiating a criminal investigation processed under case file number 25-000057-0611-PE, for the possible commission of the offense of Calumnious Complaint (Denuncia Calumniosa).
2. Nullity proceeding against the environmental viability and its rejection A nullity proceeding was filed against administrative act No. 0591-2022-SETENA, which granted environmental viability to the Bahía Papagayo Project, issued in 2022 and having become final. That proceeding was supported by incorrect assertions, such as:
• A land-use change is taking place. This is incorrect because, pursuant to our legal framework, these properties have been assigned a hotel-tourism land use, which has been respected at all times. • The Project is located in a mangrove or wetland zone. This assertion is also false; there is no mangrove or wetland within the property. This has been confirmed by the environmental authorities. • There is an alleged encroachment upon protection zones. The project has not yet commenced, which makes this materially impossible; however, according to the plans submitted to the competent authorities and the permits granted, the Project is respecting and recognizing a setback from each bank of the watercourses that exceeds the legal minimum.
The arguments set forth in that nullity proceeding were refuted on both technical and legal grounds. By ruling of November 10, 2025, Nombre03 rejected the nullity request in its entirety, reiterating the validity of the administrative act granting environmental viability and confirming that it constitutes an enforceable and self-executing act.
3. Writ of amparo for alleged failure to conduct social consultation. Case File NO. 25-012448-0007-CO On May 12, 2025, a writ of amparo was filed alleging the absence of social consultation in the environmental viability process. During the processing of the writ, documentary evidence was submitted confirming that such consultation had taken place. By ruling of June 13, 2025, the Constitutional Chamber declared the writ WITHOUT MERIT, ratifying the legality of the procedure followed.
4. Unconstitutionality action against Decreto Ejecutivo NO. 44448-MP-TUR. Case File NO. 25-024408-0007-CO The petitioner challenges the unconstitutionality of Decreto Ejecutivo N°44448 MP-TUR, of January 17, 2024, which regulates the possibility of transferring construction rights between concession properties. In this action, the petitioner affirms and acknowledges that the Polo Turístico Golfo de Papagayo was designed as a sustainable tourism development project, regulated by Law No. 6758 and its implementing regulation. The petitioner indicates that the challenged provisions, introduced through this Decree, allow construction rights to be transferred between concession properties, even if they are not adjacent. The petitioner adds that the challenged amendment could transform the low-density model into one that is potentially high-density. However, this challenge does not apply to the Bahía Papagayo project, given that it has neither proposed nor is it considering the application of cross-property compensation, and therefore, according to the petitioner's own assertions, the project is complying with the sustainability parameters and the density levels originally established. Consequently, this action has no material bearing on the specific case and should not be used as the basis for precautionary measures that are not connected to it.
The sequence of actions described clearly, objectively, and verifiably demonstrates that:
• The complaints filed or proceedings initiated against the Project have been systematically dismissed by the competent authorities; • The assertions disseminated lack technical and legal basis, even resorting to false claims; • The Project has acted, at all times, within the framework of legality and under institutional supervision."
ON THE APPLICABLE REGULATORY FRAMEWORK. In the case of the Polo Turístico Golfo de Papagayo, it is necessary to review its historical background dating back 50 years and the State's commitment to dedicating a specific area to sustainable tourist development. The interaction between how Costa Rica developed this concept and how environmental regulations were progressively incorporated is highlighted. a) Law No. 5847 of November 18, 1975, approved the Loan Agreement entered into between the ICT and the BCIE, with the purpose of financing the preparation of a technical-economic feasibility study and a Plan Maestro for the Tourist Project of Bahía de Culebra. Specifically, Article 3 of the cited Law identifies the type of rule, designating it a Special Law: "ARTICLE 3.- The tourist development project of Bahía Culebra, arising from this feasibility study, shall be carried out by the Costa Rican State, in accordance with the special law that the Asamblea Legislativa shall issue for that purpose." b) Subsequently, Law 6043 of March 16, 1977, the Law on the Zona Marítimo Terrestre, was enacted.
It is within this law that the Polo Turístico Golfo de Papagayo originates, referred to as the "Comprehensive Development Project of Bahía Culebra" and designated as a "special case": "Special Cases Article 74.- Regarding the Comprehensive Development Project of Bahía Culebra, whose coastline is bounded to the north at the point on the Lambert Costa Rica Grid at latitude 2/94 and longitude 3/53, extending to the point at latitude 2/84 and longitude 3/50, that is, from Punta Cabuyal to Punta Cacique, the affected areas shall be placed under the direct administration of the ICT. The regulations governing this development shall be formulated by the Executive Branch, following prior consultation with that Institute. All of the foregoing is without prejudice to the usufruct (usufructo) and canon fees (cánones) accruing to the respective municipalities under this law." (Emphasis is ours.) Of particular importance is the provision of Article 73 on the non-application of this Law with respect to MINAE when dealing with a protected wildlife area (área silvestre protegida) or a property forming part of the State Natural Heritage (Patrimonio Natural del Estado), which is generally identified through the State Natural Heritage Certification issued by the Conservation Area with jurisdiction over that territory (Law 6043, Article 73 and Voto 16975-2008 of November 12, 2008). c) Law No. 6758 of May 6, 1982, published in the Official Gazette La Gaceta No. 122 of June 25, 1982, the Law Regulating the Development and Execution of the PTGP, established the following: "Article 2.- Within the area designated for the development of this project, only the works set forth in the Plan Maestro, as approved by the ICT, and all works consistent therewith, shall be carried out, in accordance with the provisions of this law and the technical standards issued by the Institute for that purpose.
Article 12.- The Board of Directors of the ICT may grant concessions for the use of the lands of the project within the area designated for it, in accordance with the terms and conditions established by the Institute, and in accordance with the provisions of Article 1073 of the Law on Public Financial Administration of the Republic. Article 18.- This law is of public order and repeals any provision contrary to it, except insofar as it grants rights or authorizes public law entities to collect fees and tariffs, or in any way grants them economic benefits. Nor may the concept of the public zone (zona pública), referred to in Article 20 of Law No. 6043 of March 2, 1977, be altered." (Emphasis is ours.) d) The Organic Law of the Ministry of Environment and Energy, No. 7152 of 1990, under which MINAE is responsible for overseeing natural, energy, and mineral resources and for their protection, conservation, and rational use.
From that year onward, MINAE assumed the competencies and powers over natural resources. The responsibilities for wildlife, forestry, national parks, and the IMN were transferred from the Ministry of Agriculture and Livestock (Ministerio de Agricultura y Ganadería, MAG) to MINAE. All forests, forest land (terrenos forestales), and wildlife areas owned by or administered by the MAG were transferred to MINAE's administration. The competencies of SETENA with respect to environmental assessment (evaluación ambiental) began with the Organic Law on the Environment of 1996. MINAE's jurisdiction over water resources began with the enactment of the ARESEP Law of 1996. Ley Forestal No. 7575 has been in force since 1996. Jurisdiction over biodiversity and access began with the enactment of the Biodiversity Law of 1998, through which the competencies for wildlife, forestry, and national parks were merged to create SINAC and the National Biodiversity Management Commission (Comisión Nacional de Gestión de la Biodiversidad).
ON THE LEGAL REGIME OF THE POLO TURÍSTICO GOLFO DE PAPAGAYO. The scope of the legal regime of the Polo Turístico Golfo de Papagayo has been defined by the Constitutional Chamber (Sala Constitucional) in Voto No. 2007-018483 of 18:00 hours on December 19, 2007, which states, in the relevant portion: "VII.- EXCEPTIONAL OR SPECIAL ADMINISTRATIVE LEGAL REGIME OF THE POLO TURÍSTICO GOLFO DE PAPAGAYO. SPECIFIC REGIME FOR THE USE OR EXPLOITATION OF PUBLIC DOMAIN ASSETS (BIENES DEMANIALES). The Polo Turístico Golfo de Papagayo has been subject to a special administrative legal regime. Thus, Law No. 6370 of September 3, 1979, declared the Bahía Culebra or Papagayo Tourist Project to be in the public interest. Article 1 of that law provides that the acquisition of real property, complete parcels, portions, rights, or legitimate patrimonial interests that, by reason of their location, are necessary to carry out and execute the tourist project—which comprises, within the coordinates delimiting it, the maritime zone of the Pacific coastline—constitutes public utility.
The ICT was authorized to carry out both voluntary acquisitions and expropriations (Articles 2 through 5). (Emphasis is ours.) For its part, the Law Regulating the Development and Execution of the Polo Turístico Golfo de Papagayo, Law No. 6758 of June 4, 1982, subjects the project to an intensive exceptional public regime, given its strategic importance for national tourist development, which provides for the registration of the lands in the name of the ICT and a series of promotional measures for its development. Specifically, Article 12 and subsequent provisions establish the regime for the exploitation of the project by private parties. Thus, Article 12 states that the Board of Directors of the ICT '(...) may grant concessions for the use of the lands of the project within the area designated for it (...)'; in turn, Articles 13, 14, and 15 provide, respectively, for cancellation, extinction, and rescission of the concession.
Additionally, through sub-statutory regulations, the concession figure is further emphasized; for example, Executive Decree No. 22489-MPJ-TUR of September 2, 1992 created the Concession Registry (Registro de Concesiones) of the Polo Turístico Golfo de Papagayo in Bahía de Culebra as a section of the General Concession Registry of the Public Property Registry of the National Registry (Registro Nacional). From the foregoing, it is sufficiently clear that the regime for use by private parties, as established by the legal framework governing the Polo Turístico Golfo de Papagayo, is clearly exclusive in nature, thereby excluding general and common use by any other person, all through the concession mechanism, which confers on the concessionaire administrative property rights (derechos reales administrativos)." (...) IX. (...) It should be noted that Law No. 6758 of June 4, 1982 exclusively vested in the ICT—through an executing office, its Governing Council, its Executive Director, and its Board of Directors—the authority to develop and execute the Polo Turístico Golfo de Papagayo (Article 1°)… it must be stated that Law No. 6758 of June 4, 1982 grants the administration and management of the Polo Turístico de Papagayo to a public entity of national competence such as the ICT, making it an exceptional or special regime relative to that contemplated in the Law on the Zona Marítimo Terrestre..." (Emphasis not in the original.)
Based on the foregoing, the Polo Turístico Golfo de Papagayo is governed by a specific, exceptional legal framework that includes the Law Regulating the Development and Execution of the Polo Turístico de Papagayo, Law No. 6758. This law, together with its implementing regulations and the project's Plan Maestro, establishes the standards for the development and execution of works in the designated area, that is, within the concession area. Furthermore, the ICT plays a fundamental role in the administration, regulation, and supervision of the project—understood to cover the entire parent area of the project and each of the concessions located within the boundaries of the project area—as well as in the management of a special fund for its financing. In legal terms, this special and exceptional rule can be framed within the Principle of Protection Afforded by a Specific Situation governing the development and execution of the works established by Law No. 6758, together with its regulations and the Plan Maestro.
The Polo Turístico Golfo de Papagayo encompasses an area of approximately 1,658 hectares, in addition to the public zone, registered in the name of the Costa Rican State under the administration of the ICT, with the primary purpose of attracting national and international tourism, making maximum use of the tourist resources of that region. Therefore, the ICT, through the Executing Office (Oficina Ejecutora), is responsible for executing and developing the project, for which it has the exclusive authority to direct, coordinate, administer, and oversee the development of the said project. The Project encompasses two main activities: a) the granting of concessions over the lands acquired for the development of tourist projects, and b) the construction of public infrastructure works that enable that development to consolidate. In another respect, and as part of the regulatory framework governing this Project, pursuant to Executive Decree No. 33132-MPT, published in La Gaceta No. 97 of May 22, 2006, the Declaration of National Convenience exists for the development and execution of the Polo Turístico Golfo de Papagayo under the administration of the ICT.
Part of the grounds for this Executive Branch decision were as follows: "2.- That by means of Article 1 of Law No. 6370 of September 3, 1979, the lands necessary for the development and execution of the Tourist Project at Bahía Culebra, located in the Province of Guanacaste, today known as the Polo Turístico Golfo de Papagayo under the administration of the ICT, were declared to be of public utility. 3.- That said Project has become the leading tourist development pole in all of Central America. 4.- That the Procuraduría General de la República, in Opinion C210-2002, has emphasized that by law the land use within said project is for tourist purposes, and this use prevails over any other type of use. 5.- That the guidelines established in the Plan Maestro of the Polo Turístico Golfo de Papagayo make it a model of sustainable tourist development, by establishing a properly planned development under state administration and supervision, incorporating environmental variables, low densities and coverage rates, appropriate wastewater treatment, etc. 6.- That it is the interest of the Government of the Republic to support the efforts of the ICT to promote the development of the Polo Turístico Golfo de Papagayo as a model of sustainable tourist development at the international level." In addition to the regulatory framework, the Executive Branch issued Executive Decree No. 25.439-MP-TUR, published on September 11, 1996, and its amendment (Executive Decree No. 37701-MPTUR of April 12, 2010), the Regulations for the Law on the Development and Execution of the Polo Turístico Golfo de Papagayo, which establishes the following important provisions: "Plan Maestro: A tool for controlling land use through zoning and urban development planning, approved by the ICT Board of Directors.
It is a directive planning instrument insofar as it sets out the broad guidelines or master lines intended to guide and coordinate urban or building development planning and land use within the Polo Turístico de Papagayo, within the applicable legal limitations and in harmony with the natural and cultural environment; its nature is both technical and of normative, binding scope. (Article 2, Section h.) Public Domain Asset (Bien Demanial): Each of the real property assets and their attributes, declared of public utility, that make up the development area of the Polo Turístico Golfo de Papagayo, affected by Laws Nos. 6370 and 6758 for tourist use, and over whose legal purpose the ICT exercises a power of administration, oversight, and control, the tourist purpose being the criterion for the dedication of such properties, which may be granted in concession to private parties by the ICT. This concept also includes the public zone of the Zona Marítimo Terrestre and the adjacent area permanently covered by the sea designated for the construction, administration, and operation of marinas and tourist berths located within the Polo Turístico Golfo de Papagayo, pursuant to the provisions of Law No. 7744, the Law on the Concession and Operation of Marinas.
(Article 2, Section i.) Concession: An administrative act of a contractual nature, agreed upon by the ICT Board of Directors in favor of a natural or legal person, which confers on that person an administrative property right for a private, exclusive, and excluding use—of a patrimonial nature—over a public domain asset within the Polo Turístico Golfo de Papagayo. This administrative property right allows the Concessionaire to exercise all ownership attributes except alienation of the land. For the purposes of the public tourist purpose of the Project, this includes, among other things, the Concessionaire's authority to use, enjoy, transform, build upon or co-develop, defend, mortgage, encumber, and lease the conceded public domain asset, for the fulfillment of its tourist development project, always subject to the oversight and control of the ICT. (Article 2, Section j.) Tourist Purpose (Fin Turístico): The ultimate and supreme public purpose pursued by Law No. 6758, consisting of the productive tourist development of the Polo Turístico Golfo de Papagayo.
(Article 2, Section q.) The Project shall be directed and administered by the Oficina Ejecutora, as a body with maximum administrative deconcentration (desconcentración máxima), reporting directly to the Board of Directors of the Institute. (Article 3.) Concessions within the project areas shall only be granted to entities incorporated and domiciled in the country. Any party seeking a concession must also meet the requirements established in the bid specifications (cartel) of the respective tender. (Article 4.) The granting of concessions, as well as any assignment, mortgage, lease, or trust (fideicomiso) relating to concessions, must be registered in the Concession Registry of the Project at the Registro Nacional. In cases of transfer of concessions, the acquiror shall be considered the concessionaire for all purposes. In the case of a lease, the lease shall follow the fate of the concession.
(Article 13.) The obligations of the concessionaire shall be those established in Law 6758, in these Regulations, in the Plan Maestro, in the concession contract, in the respective environmental impact assessment (evaluación de impacto ambiental, EIA), in the other provisions of the ICT Board of Directors, and in the other applicable rules. In particular, no concessionaire may modify its project as approved by the Institute, except upon prior express authorization from the Institute. (Article 14.) Once a concession has been awarded and a project approved, construction work must begin within a period of no more than six months, counted from the date of notification of the award. The completion deadline for the works shall be defined in the concession contract. (Article 17.)" Also as part of the regulatory framework governing this Project, Executive Decree No. 4572 was enacted, in force since July 24, 1995, on the Regulations of the "General Plan Maestro of the Polo Turístico Golfo de Papagayo." This rule establishes aspects relevant to an understanding of the figure created by Law No. 6758: In point 5.1, Specific Guidelines for the Design and Construction of Tourist Projects, the following is provided: "Surface coverage ratio (Coeficiente de ocupación de superficie): A surface coverage ratio of no more than 30% (thirty percent) of the total originally conceded area must be maintained, and the designs of the proposed tourist projects must conform to this limit." The foregoing implies that the concessionaires of Papagayo, in compliance with the planning instrument, are obligated to preserve the remaining 70% of the conceded land area, and may use (build upon) up to 30%, subject to the requirements applicable under the rules, regulations, guidelines, and provisions governing concessionaires.
Consequently, within the area where the project is to be developed, every concessionaire must comply with the regulations established by other public institutions, including, among others, holding a current and approved Environmental Viability (Viabilidad Ambiental) authorization for the project's development.
With regard to the provisions of Ley Forestal No. 7575 of February 13, 1996, this rule entered into force after Law No. 6758 of May 6, 1982, the Law Regulating the Development and Execution of the Polo Turístico de Papagayo, and Ley Forestal No. 7575 contains no specific provision that regulates, modifies, or repeals any article of Law No. 6758. Given that Law No. 6758 is a special and exceptional law, any public domain modification (mutación demanial) must, for reasons of legal certainty, meet three requirements: A prevailing or more pressing public interest to be protected. Support from a rule of sufficient rank. Guarantee of the inseparability of the public legal regime. Under this understanding, since the ICT is the state entity exclusively responsible for administering the Polo Turístico Golfo de Papagayo, and since a special use regime has been clearly defined for conceded land with a unique and supreme purpose oriented toward sui generis tourist development, the exceptional nature of this area must be recognized; accordingly, its purpose is not directed toward the absolute conservation of natural resources, but rather toward a sustainable and balanced use and conservation thereof, with environmental assessment of the projects developed therein.
ON THE PUBLIC AND PRIVATE FOREST REGIME. Ley Forestal No. 7575 of February 13, 1995 [sic], introduced into our legal system the concept of "State Natural Heritage (Patrimonio Natural del Estado)," administered by MINAE and comprising, pursuant to its Article 13, "the forests and forest land of the national reserves, of the areas declared inalienable, of the properties registered in its name, and of those belonging to municipalities, autonomous institutions, and other bodies of the Public Administration, except real property serving as collateral for credit transactions with the National Banking System that has become part of its assets." The concept of "State Forest Heritage (Patrimonio Forestal del Estado)" is the original concept found in the earlier Ley Forestal No. 4465 of November 25, 1969. The principal difference between the State Natural Heritage and the State Forest Heritage is the possibility of exploiting forest resources under the earlier legislation, either by the Administration itself or by private parties with its authorization, except in national parks and biological reserves.
Protected wildlife areas (áreas silvestres protegidas), of whatever management category—national parks, biological reserves (reservas biológicas), forest reserves (reservas forestales), national wildlife refuges (refugios nacionales de vida silvestre), protection zones (zonas protectoras), natural monuments (monumentos naturales), and wetlands (humedales)—are considered incorporated under this regime as "areas declared inalienable (áreas declaradas inalienables)" by virtue of Article 38 of the Organic Law on the Environment, No. 7554 of October 4, 1995. Finally, the State Natural Heritage also includes all other forests and forest land or land of forest aptitude belonging to the State, including national reserves and properties belonging to autonomous institutions, municipalities, and other bodies of the Public Administration.
Private property with forest cover (cobertura boscosa) is a legally established concept in our legislation, specifically in Title III of Ley Forestal No. 7575. Private forest property refers to forests and forest land belonging to private parties—that is, properties registered in the name of a natural or legal person under a Folio Real—and are therefore private properties, in contrast to those belonging to the State. These private forest land holdings are subject to regulations and protections, and their owners have specific rights and responsibilities under the law, including the rules governing their use, exploitation, and protection. Owners of private forest land have the right to use and exploit forest resources in accordance with the law and the established management plans, and have the responsibility to protect forests and forest land, preventing deforestation, erosion, and other activities that may harm the forest ecosystem. The forest law establishes limits and regulations with the aim of ensuring sustainability and environmental protection. Private property retains the attributes conferred upon it by law with respect to its ownership, use, and disposition. Private property does not lose its private character merely because it contains a forest within its boundaries, and it cannot be considered a public domain asset forming part of the State Natural Heritage.
Articles 19 and 20 of Ley Forestal No. 7575 regulate "private forest property" and forest exploitation, under which owners may carry out lawful activities. "TITLE III Private Forest Property CHAPTER I Forest Management ARTICLE 19.- Authorized Activities On land covered by forest, land-use change (cambio de uso del suelo) shall not be permitted, nor shall the establishment of forest plantations. However, the State Forest Administration (Administración Forestal del Estado) may grant permits in such areas for the following purposes: a) To construct dwellings, offices, stables, corrals, nurseries, roads, bridges, and facilities for recreation, ecotourism, and other similar improvements on private domain land and properties where the forests are located. b) To carry out infrastructure projects, whether state or private, of national convenience. c) To fell trees for reasons of human safety or scientific interest. d) To prevent forest fires, natural disasters, or other similar causes or their consequences. In these cases, felling of the forest shall be limited, proportionate, and reasonable for the aforementioned purposes. Prior to such activities, a pre-screening questionnaire must be completed before the State Forest Administration to determine whether an EIA may be required, as established by the regulations of this law." (Emphasis is ours.)
Consequently, private properties with forests are subject to regulations established by Ley Forestal No. 7575. This concept is consolidated in case law; by way of example, the following is presented: "(...) a distinction is drawn between the state forest heritage and the private forest heritage. The former is subject to a public domain regime and is formed by all the forests and forest land of the national reserves, of the areas declared inalienable, of the properties registered in its name, and of those belonging to municipalities, autonomous institutions, and other bodies of the Public Administration.
In this case, the administration may grant use permits (permisos de uso) only for projects that do not require timber harvesting (aprovechamiento forestal) and that do not affect ecosystems, wildlife, soils, wetlands, or aquifers. Private forest patrimony (patrimonio forestal privado), for its part, comprises all forests (bosques) and lands with forestry suitability (aptitud forestal) belonging to private natural or legal persons (Articles 1°, 32, and 43 of the Ley Forestal). Various activities may be carried out on these properties, depending on whether the land contains forest, forest plantations (plantaciones forestales), or is agricultural land without forest. (…)" (Sala Constitucional, Voto No. 3923-2007. Emphasis added.)
Restrictions on private forest property for the protection of the environment, insofar as they do not undermine the essential content of that right and have the necessary legal basis, "are constitutionally viable, and the State is also obligated to ensure their protection and rational use." (Sala Constitucional, ruling 5893-95. See also from the same Chamber Votos 2343-96, 2006-015106 and 2007-5598, 2007-06581, 2007-09119 and 2007-010578, among others. Emphasis added.)
THE CONCESSIONAIRE AND THE PRIVATE OWNER.
The concessionaire (concesionario) of an area within the Proyecto Turístico Papagayo is the party who submits to the legal regime governing that tourist area, in accordance with the mandates set out above. The contractual administrative act agreed upon by the ICT's Board of Directors confers upon the concessionaire an administrative real right (derecho real administrativo) — a patrimonial right for private, exclusive, and excluding use — over a public domain property (bien demanial) within the Proyecto Turístico Golfo de Papagayo, which has a specific, singular, and paramount tourism purpose by mandate of law, under a special regime. (Emphasis added.)
It is important to highlight that, by statutory provision, these State-owned lands of the Proyecto Turístico Golfo de Papagayo are not under the administration of the Ministry of Environment and Energy, nor do they bear any declaration as a protected wildlife area (área silvestre protegida) within their boundaries. The designated use and purpose of these lands is not the exclusive conservation of natural resources, but rather their sustainable development for tourism purposes, through infrastructure authorized by the ICT and subject to environmental viability (viabilidad ambiental) review, as an environmental control mechanism.
That administrative real right allows the Concessionaire to exercise all ownership attributes except alienation (enajenación) of the land, since the Concessionaire is not the registered title holder. For the purposes of the Project's public tourism objective, this entails, among other things, the Concessionaire's authority to use, enjoy, transform, build upon or co-develop, defend, pledge as security, encumber, and lease the public domain property under concession, all for the fulfillment of the tourist development project and always under the supervision and control of the ICT. (Article 2, Subsection j).
Accordingly, should any environmental permit be required — whether forestry-related, water-related, or for environmental viability — the concessionaire must obtain it from the competent authority.
Therefore, Art. 19 of the Ley Forestal No. 7575, which pertains to private forest property, does not apply here, because what is involved is not a private owner but rather a public domain property under a special regime, intended for projects with a single purpose: tourism. Art. 19 of the Ley Forestal is designed to regulate forest management on private properties, a legal condition that does not apply to the concession lands under the Project, given that such lands are public domain property belonging to the Republic of Costa Rica, whose administration has been delegated to the ICT for a tourism purpose and not for the conservation of natural resources or the establishment of a protected wildlife area.
The concessionaire, in this context, does not hold the status of a private owner of a registered property (Folio Real recorded in the Registro Nacional), but rather acts as the recipient of an administrative real right of exclusive and private use granted by the State, through the ICT, with limited powers and under strict conditions. Therefore, the figure of the concessionaire cannot be equated with that of the private forest owner regulated by Art. 19 of the Ley Forestal.
Likewise, it must be borne in mind that Article 18 of the Ley Forestal, which governs use permits over State-owned lands or protected wildlife areas under the administration of the Ministry of Environment and Energy, refers to a general ordinary administrative regime under the tutelage of MINAE, through SINAC, for other purposes.
The Use Permit (Permiso de Uso) granted by SINAC is governed by the Ley General de la Administración Pública and refers to the authorization to use a public domain property on a temporary and precarious basis, generally for a specific purpose and for the benefit of the community. This permit does not confer a real right over the property and may be revoked without prior notice.
However, the Use Permit figure is not applicable to the Proyecto Turístico Golfo de Papagayo, where a special and exceptional legal regime with a single designated purpose exists, defined by Ley No. 6758, which confers upon the ICT the exclusive authority to administer, plan, regulate, and execute tourism development within the delimited area of the project, as well as the authority to grant concessions for tourism purposes within the boundaries of the Project area, which concessions confer an administrative real right for private, exclusive, and excluding use of a patrimonial nature over a public domain property within the Proyecto Turístico Golfo de Papagayo.
Said special regime includes the possibility for the concessionaire to remove plant cover (cobertura vegetal) up to a maximum of 30% of the total concession area, with the remaining 70% reserved for conservation, in strict adherence to the project's Master Plan (Plan Maestro) and its regulations.
It must be borne in mind that plant cover is not equivalent to the legal concept of forest or to forestry suitability. The concept of plant cover is broad and general and may include trees, scrubland (charral), grass (zacate), pasture (potrero), fruit trees, lawns, grassland (patizal), flora, plants, vegetables, agronomic species, forestry species, leaf litter (hojarasca) or crop residue, living fence (cerca viva), among others. The concept of forest, on the other hand, is strict and distinct from that of plant cover, and must conform to Article 3, subsection d) of the Ley Forestal No. 7575:
"d) Forest: A native or indigenous ecosystem, whether intervened or not, regenerated by natural succession (sucesión natural) or other forestry techniques, covering an area of two or more hectares, characterized by the presence of mature trees of different ages, species, and varying size, with one or more canopies (doseles) covering more than seventy percent (70%) of that area and where more than sixty trees per hectare of fifteen or more centimeters in diameter measured at breast height (DAP) exist." (Emphasis added.)
The foregoing must always be understood within the framework of the general principles of conservation and protection of natural resources. Accordingly, it is imperative that the concessionaire of the Polo Turístico Papagayo observe and comply with the minimum and general regulations indicated by the State Forestry Authority (Autoridad Forestal del Estado), such as the prohibition on felling protected forestry species, the preparation of technical forest inventories, the application of technical standards, and the Fallas (2019) methodology for the determination of forest in Costa Rica, among others. Should a forestry permit be required, it must be requested from the relevant Conservation Area, in order to ensure the responsible and sustainable removal of forestry species. As for the environmental viability of a project, it must be submitted to the environmental assessment process before SETENA.
Now, the regime of the Proyecto Turístico Golfo de Papagayo must be distinguished from the regime of protected wildlife areas. The specific case at hand involves the Refugio Nacional de Vida Silvestre Playa Iguanita, created by Ley No. 8731 of July 3, 2009. This area, located at the back of Bahía Culebra, within the Península de Nacascolo, was identified by MINAE as a site of special concern due to its status as tropical dry primary forest and the presence of mangrove (manglar), which is why it falls under the administration of SINAC, through the Área de Conservación Tempisque, and is excluded from the application of the Proyecto Turístico Golfo de Papagayo regime.
"ARTICLE 2.- Administration of the refuge. The administration, protection, and management of the Refugio Nacional de Vida Silvestre Iguanita shall be the responsibility of SINAC, of the Ministry of Environment and Energy (Minae), through the Área de Conservación Tempisque, in accordance with Article 22 of the Ley de Biodiversidad, N° 7788, of April 30, 1998, and its amendments. The Instituto Costarricense de Turismo (ICT) is authorized to transfer to Minae, as of the publication of this Law, the section of land in the maritime-terrestrial zone (zona marítimo-terrestre) comprised within the Refuge, for its administration, protection, management, and development, through SINAC." ARTICLE 3.- Management Plan of the Refuge. The Directorate of the Área de Conservación Tempisque and the administration of the Refuge shall carry out the necessary administrative and technical steps to achieve broad participation by communities, institutions, and the private sector in the implementation of the management plan of the Refugio Nacional de Vida Silvestre Iguanita, taking into account the regulations of the ICT's Plan Maestro of the Polo Turístico Golfo de Papagayo." (Emphasis added.)
In the same vein, mangrove ecosystems, by virtue of their special environmental protection regime, are excluded from the ICT's concession regime and remain under the exclusive tutelage of SINAC-MINAE, in compliance with current environmental regulations.
REGARDING THE FACTS ALLEGED BY THE APPELLANT.
The appellant Nombre01, when referring both to the environmental viability granted by SETENA and to the felling permit (permiso de corta) issued by the Área de Conservación Tempisque of SINAC, sets forth a series of allegations in which he links administrative acts of different legal natures, issued by different authorities in the exercise of legally separate competencies, which are detailed below:
The project known as "Bahía Papagayo," promoted by the company Enjoy Hotels & Resorts S. A., processed before SETENA the file D1-0170-2021-Nombre03 in order to obtain environmental viability. The project is being developed on land belonging to the Costa Rican State, under a State concession, pursuant to Ley No. 6758, which governs the Proyecto Turístico Golfo de Papagayo over these State-owned lands where the forest that this writ of amparo (amparo) seeks to protect is located. Resolution No. 0591-2022-SETENA granted environmental viability to the project. There exists an authorization given by Nombre03 to reduce the legally established protection areas for watercourses within the State-owned area of the project, justifying that land-use change (cambio de uso de suelo). Resolution 1263-2021-Nombre03 of January 6, 2022, establishes that the protection zones for water bodies shall be 15 meters along the estuaries (esteros) of Rocha and Panamá, and 10 meters on both banks of the unnamed seasonal streams (quebradas), as environmental mitigation measures — measures that expressly contravene the provisions of Article 33, subsection b) of the Ley Forestal N.º 7575.
Resolution No. 0591-2022-SETENA finds that there is a significant cover of deciduous, mature, and secondary forest within the project area. The land is classified under Class VII of land use, designated for forest management. A nullity proceeding (incidente de nulidad) was filed against Resolution 0591-2022-SETENA. In legal opinion DAJ-MINAE-1591-2025, issued on August 6, 2025, the Legal Advisory Directorate of MINAE concluded that the Proyecto Turístico Golfo de Papagayo is subject to a special legal regime and that concessionaires may remove up to 30% of the plant cover. Report INFTEC-DT-ASA-0324-2025 resulted from an inspection carried out on May 26, 2025, in the area of the Proyecto Bahía Papagayo. It is noted that, in that report, the official forest cover (cobertura boscosa) layer for the year 2000 was overlaid and it was evidenced that the majority of the project areas (figures B, C, and D) are entirely contained within zones classified as State-owned natural heritage forest, given that they are located on land of State ownership.
By means of a ruling of the Sala Constitucional at 15:46 hours on November 13, 2025, the action of unconstitutionality No. 25-033926-0007-CO was admitted for processing, filed against specific provisions governing the Papagayo concession area. By means of Resolution 0215-2026-SETENA, any precautionary measure was omitted and, on the contrary, the resolution expressly states: "It is reiterated that the foregoing does not prevent the determination that the Environmental Viability License (Licencia de Viabilidad Ambiental) granted to the project remains in force." The environmental logbook (bitácora ambiental) was formally opened as part of the process of commencement of works, and on April 15, 2026, the presence of machinery at the site was confirmed. By Resolution No. SINAC-ACT-OSRSCC-052-2026 of April 9, 2026, a felling permit for 3,656 trees within the project area has been granted.
With respect to the allegations set forth above, we submit the following and present our defense:
In accordance with Decreto Ejecutivo No. 25.439-MP-TUR, published on September 11, 1996, and its amendment (Decreto Ejecutivo No. 37701-MPTUR of April 12, 2010), the Regulations to the Law for the Development and Execution of the Proyecto Turístico Golfo de Papagayo establish the following important provisions:
"b) Concession: A contractual administrative act agreed upon by the ICT's Board of Directors in favor of a natural or legal person, which confers upon that person an administrative real right — a patrimonial right for private, exclusive, and excluding use — over a public domain property within the Proyecto Turístico Golfo de Papagayo. That administrative real right allows the Concessionaire to exercise all ownership attributes except alienation of the land. For the purposes of the Project's public tourism objective, this entails, among other things, the Concessionaire's authority to use, enjoy, transform, build upon or co-develop, defend, pledge as security, encumber, and lease the public domain property under concession, all for the fulfillment of the tourist development project, always under the supervision and control of the ICT. (Article 2, Subsection j). g) The obligations of the concessionaire shall be those established in Ley 6758, in these Regulations, in the Plan Maestro, in the concession contract, in the respective Environmental Impact Study (Estudio de Impacto Ambiental), other provisions of the Board of Directors of the Instituto Costarricense de Turismo, and in the other applicable regulations. In particular, no concessionaire may alter its project, as approved by the Instituto, without prior express authorization from the Instituto. (Article 14)" (Emphasis added.)
In accordance with the foregoing, on April 7, 2021, the D1 Form for the Proyecto Bahía Papagayo was submitted before SETENA, promoted by the company ENJOY HOTELS & RESORTS SOCIEDAD ANÓNIMA, legal entity tax ID number CED02, duly represented by Mr. ANDRES PACHECO ALBONICO, holder of identity document number CED03, to which administrative file D1-0170-2021-SETENA was assigned.
It is relevant to highlight that the environmental viability application was submitted approximately five years ago, with no challenge to the regularity of the commencement of the procedure having been raised to date.
The D1 Form and the environmental assessment instrument, namely the Environmental Impact Study, in accordance with the Technical Instruments Manual for the Environmental Impact Assessment (evaluación de impacto ambiental) Process (Manual de EIA, Part II), were duly analyzed by the Environmental Assessment Department of SETENA, and it was concluded that they comply with the terms of reference and the technical requirements issued by the Secretariat, in accordance with the oversight and monitoring powers established in Article 20 of the Ley Orgánica del Ambiente. Said technical analysis was carried out in the full exercise of the powers legally attributed to Nombre03 as the national authority in the field of environmental impact assessment, verifying compliance with the applicable regulatory and technical provisions governing the process.
Based on the foregoing, the Technical Report of the Initial Environmental Assessment of the project known as Proyecto Bahía Papagayo, file number D1-0170-2021-SETENA, was submitted to the Plenary Commission of SETENA, and Resolution No. 0591-2022-Nombre03 of 10:11 hours on April 6, 2022, granting Environmental Viability, was duly issued.
This resolution was issued 4 years ago, and established the following important provisions:
"(…) FOURTH: That, in the present administrative proceeding, the D1 Form was submitted together with the environmental assessment instrument: the Environmental Impact Study, in accordance with the Technical Instruments Manual for the Environmental Impact Assessment Process (Manual de EIA, Part II), all of which were duly analyzed by the Environmental Assessment Department, and it was concluded that they comply with the terms of reference and the technical requirements issued by this Secretariat.
In light of the foregoing, and in accordance with the oversight and monitoring powers established in Article 20 of the Ley Orgánica del Ambiente, which provides: 'SETENA shall establish instruments and means to monitor compliance with the resolutions of the environmental impact assessment. In cases of violation of their content, it may order the suspension of works. The interested party, the author of the study, and those who approve it shall be directly and jointly liable for any damages caused.' Based on the foregoing, it has been analyzed and determined that they comply, and therefore the appropriate course of action in the present case is to approve the environmental impact assessment instrument — the Environmental Impact Study — and the environmental impact matrices submitted in the D1 Document, and to grant environmental viability.
FIFTH: In accordance with Article No. 45°.- Resolution and Granting of Environmental Viability (or License) of the Environmental Impact Assessment Regulations (D.E. No. 31849-2004-MINAE-MAG-MOPT,MEIC,S and its amendments), this article provides: 'The environmental commitment guidelines or directives that frame the granting of environmental viability (licencia ambiental), which shall be based on the entire EIA process, as well as a series of environmental monitoring and oversight conditions and instruments, including the following elements: Development and implementation of the Environmental Monitoring and Control Instruments (ICOS), which comprise 3 aspects: Appointment of an environmental officer and implementation of an Environmental Logbook; as well as an Environmental Guarantee Deposit in accordance with the provisions of the Ley Orgánica del Ambiente, the amount of which shall be set in this administrative act.
These instruments must be submitted to Nombre03 in accordance with the Plenary Commission Agreement of ordinary session No. 098-2014-Nombre03 and its Article No. 17, issued by means of Agreement No. ACP-015-2014 of August 26, 2014, which provides: "To order the developers of activities, works, or projects that the submission of the ICOS must take place prior to the commencement of such activities, works, or projects, once Environmental Viability has been granted, and that no commencement may occur until the ICOS are duly enabled. And that, should commencement occur without said instruments, the sanctions established in the applicable regulations shall be imposed."' SIXTH: That Article 6 of the Amendment to Article 45 of the General Regulations on EIA Procedures, under Decreto Ejecutivo No. 31849-MINAE-S-MOPT-MAG-MEIC, states the following regarding the Fundamental Environmental Commitment Clause: 'The present Environmental Viability (licencia) is granted on the understanding that the developer of the project, work, or activity will fully and completely comply with all technical, legal, and environmental regulations and standards currently in force in the country and to be enforced before other authorities of the Costa Rican State.
Non-compliance with this clause by the developer shall not only render the developer liable for the sanctions entailed by non-compliance with said regulations, but also, since this clause forms part of the fundamental basis upon which the VLA rests, shall automatically cause said VLA to be annulled, with the technical, administrative, and legal consequences that this entails for the activity, work, or project and its developer, in particular with respect to the scope of application of Article 99 of the Ley Orgánica del Ambiente.' SEVENTH: That at the time of issuing this resolution, there are no parties appearing or persons opposed to the development of the described project.
EIGHTH: That in accordance with the provisions of subsection 3 of Article 22 of Decreto Ejecutivo Nº 31849-MINAE-S-MOPT-MAG-MEIC, and after evaluating the information contained in the administrative file and the environmental assessment instrument submitted, through technical report DEA-0322-2022-SETENA, the Environmental Assessment Department recommends proceeding with the administrative Environmental Impact Assessment process and issuing the administrative resolution granting Environmental Viability (Licencia Ambiental), taking into account the provisions of Article 20 of Ley 7554.
THEREFORE THE PLENARY COMMISSION RESOLVES In Ordinary Session No. 026 of this Secretariat, held on April 6, 2022, under Agenda Item No. 14, it agrees:
FIRST: To approve the D1 Environmental Assessment Document — Environmental Impact Study — submitted for environmental assessment by the project developer.
SECOND: To inform the interested party that, in accordance with Articles 17, 18, and 19 of the Ley Orgánica del Ambiente, the environmental assessment procedure for the project 'Proyecto Bahía Papagayo', with administrative file D1-0170-2021-SETENA, has been completed, as described below.
Project name: Proyecto Nombre04 Location: Province: Guanacaste, Canton: Carrillo, District: Sardinal Coordinates: Latitude Longitude Coordinate Details 1 171 837,039 320 267,107 Mean coordinates of plot 5-1186670-2007 1 171 094,961 319 694,582 Mean coordinates of plot 5-1155787-2007 1 170 974,246 319 238,546 Mean coordinates of plot 5-1155787-2007 1 170 744,866 318 464,714 Mean coordinates of plot 5-1274126-2008 1 170 667,714 317 554,889 Mean coordinates of plot 5-1155786-2007 Cadastral plot number: G-1155786-2007, G-1155787-2007, G-1186670-2007 and G-1274126-2008 Property registration number: 2172-Z—000, 2169-Z—000, 2168-Z—000 and 2174-Z--000 Property area per plot (m²): 204165,91; 124827,92; 436563,63; 309064,25 Project area per design (m²): 1,176,420.79 ISIC classification and project category: 5510 = A SIA score: 117 …" (Emphasis added.)
Mr. Nombre01 makes a series of assertions that attribute to the approval of the Environmental Impact Study legal effects that do not properly belong to it, generating confusion regarding the scope and nature of the environmental viability granted by SETENA. In particular, he maintains that by means of Resolution No. 0591-2022-SETENA, of 10:11 hours on April 6, 2022, "there exists the authorization given by Nombre03 to reduce the legally established protection areas for watercourses and the elimination of forest within the State-owned project area is confirmed, thereby justifying a land-use change." This assertion is legally incorrect, as it is based on an erroneous interpretation of the purpose and effects of an environmental analysis, which is predictive and conditional in nature and does not constitute (nor can it constitute) a direct authorization for forestry interventions or modifications to legally established protection areas.
The Proyecto Nombre04 was submitted to the environmental viability process taking into account all four properties expressly identified in the approval resolution. In that context, the geospatial analysis carried out by Nombre03 encompasses all of said properties in order to comprehensively assess the environmental variables present in the project's area of influence. However, this does not imply or assume that all of those areas will be intervened by construction works, since the project's footprint (huella del proyecto) is concentrated solely on a specific portion of the concession area. Indeed, it must be borne in mind that the total concession area amounts to 42.01 hectares, while the constructive footprint of the project will be developed solely over an approximate area of 7.62 hectares, a circumstance that is decisive for understanding the true scope of the environmental analysis and for dismissing the thesis of a generalized impact on the territory subject to the concession.
The geospatial analysis constitutes a standard technical tool used in the environmental assessment processes handled by Nombre03 for any activity, work, or project submitted for its consideration. The reference to forest cover maps in said analysis is intended to identify elements present in the territory based on cartographic information, which reflects the tree canopy cover observed from an aerial perspective, but does not equate to nor replace the legal definition of "forest" established in Article 3 of the Ley Forestal N.º 7575. This aspect is central to the correct understanding of the case.
The determination of the existence of forest within the meaning of the Ley Forestal is not made on the basis of plant cover cartography, but through technical field verification, in accordance with the methodology recognized for such purposes, in particular that described in Fallas, Jorge (2019). Determinación de bosque acorde a la definición de la Ley Forestal 7575 de Costa Rica. Accordingly, a forest cover map cannot be equated with a forest declaration, since these are technically and legally distinct concepts. The confusion between the two is precisely the basis for the appellant's incorrect reasoning.
Resolution No. 0591-2022-Nombre03 does not at any point authorize, either expressly or implicitly, the reduction of protection areas for rivers, streams, or wetlands, nor the removal of any forest or forestry material without the corresponding authorization from the State Forestry Authority. First, because the effects that the appellant attributes to said resolution do not follow from its content, and second, because Nombre03 lacks the legal competence to grant forestry permits, a function that belongs exclusively to the Ministry of Environment and Energy through SINAC.
The foregoing is clearly evidenced upon examining Considerando III of Resolution No. 0591-2022-SETENA, in which the developer is expressly warned of the obligation to obtain from the competent authorities all permits that may be necessary for any potential felling of trees or forestry intervention, in accordance with current legislation, as detailed below.
"…THE DEVELOPER IS HEREBY NOTIFIED THAT: If the project requires the felling of trees, the permit must first be processed at the local subregional office of MINAE/SINAC (Art. 27 of the Ley Forestal); the developer is further notified that it must respect the Protection Areas (Art. 33 and 34 of the Ley Forestal) and must incorporate into the development of the project best practices aimed at promoting the optimal balance of natural resources and the sustainable use of forest in accordance with the applicable management category; and must reduce any possibility of contaminating soils, streams, and drainage systems with waste produced by its activity, in compliance with the Ley para la Gestión Integral de Residuos, Ley Nº 8839, and its Regulations, Decreto Ejecutivo Nº 37567-S-MINAET-H, known as the Reglamento General a la Ley para la Gestión Integral de Residuos." (Emphasis added.)
Mr. Nombre01 maintains that Resolution No. 1263-2021-SETENA, dated January 6, 2022 — which precedes the issuance of Resolution No. 0591-2022-Nombre03 approving the Environmental Impact Study — "establishes that the protection zones for water bodies shall be 15 meters along the estuaries of Rocha and Panamá, and 10 meters on both banks of the unnamed seasonal streams, as environmental mitigation measures, in contravention of Article 33, subsection b), of the Ley Forestal N.º 7575." This assertion is not correct from a legal standpoint, as it is based on an erroneous interpretation of the scope and nature of Resolution No. 1263-2021-SETENA, which does not constitute a decisive or enabling administrative act, but rather a procedural act issued within the Environmental Impact Assessment procedure.
Indeed, by means of Resolution No. 1263-2021-Nombre03, SETENA merely required the developer to submit an Annex document, in order to remedy, clarify, or expand upon technical and legal information regarding aspects that needed to be further elaborated before continuing with the review of the Environmental Impact Study.
In this context, the appellant improperly attributes to the Administration statements contained in the project developer's technical documents, which do not constitute decisions adopted by Nombre03 nor form part of the operative content of the administrative act. It was precisely for this reason that Nombre03 proceeded — within the scope of its legal competencies — to request clarifications and technical additions on matters requiring further development, as part of the analysis phase of the environmental impact assessment (Estudio de Impacto Ambiental, EIA), without this implying approval of specific measures or any authorization regarding water protection areas or potential forest interventions. That procedural stage was duly addressed by the developer and completed in accordance with the law, which subsequently allowed — after the comprehensive technical-environmental analysis was concluded — the issuance of the final administrative act approving the environmental viability (viabilidad ambiental) of the project through Resolución N.º 0591-2022-SETENA. Consequently, no administrative act issued by Nombre03 has established or approved setbacks (retiros) or distances from protection areas different from those expressly provided for by current legislation, and the appellant's assertion in this regard lacks any foundation.
In order to objectively clarify the assertion made by Mr. Nombre01, it is appropriate to refer to the literal text of Resolución N.º 1263-2021-SETENA, dated January 6, 2022, by which the formal submission of an Annex was requested from the project developer, the relevant terms of which are transcribed and analyzed below.
"FOURTH: In accordance with the analysis conducted by the multidisciplinary team of the Department of Environmental Assessment, the field inspection, the analysis of the EIA submitted to this Secretariat, and the documentation contained in the administrative file, it has been determined that legal and technical aspects must be corrected and clarified. For this reason, in order to continue with the Environmental Impact Assessment (Evaluación de Impacto Ambiental) process, this Secretariat requests that the following legal and technical aspects be corrected and clarified on a one-time basis, the correction of which is indispensable pursuant to article 29 of Decreto Ejecutivo Nº 31849-MINAE-S-MOPT-MAG-MEIC in order to comply with the applicable regulations:
(…) Description of the physical environment 7. On p. 10 of the EIA, it is stated that there will be earthworks (movimiento de tierras) (cut-excavation and import) for only four lots totaling 847.475 m³. According to their location, these lots are situated in areas with some degree of environmental fragility: Lot 1 is crossed by the Estero Rocha, Lot 3 is crossed by the Quebrada sin nombre (1), Lot 4 is crossed by the Estero Panamá, and Lot 5 is crossed by the Quebrada sin nombre (2). For the reasons stated above, special attention must be paid to these areas near ecosystems with a high degree of fragility to erosion and sedimentation events, such as mangroves (manglares). Therefore, the environmental measures to be applied to prevent, mitigate, and control sediment runoff from reaching the mangroves and surface water bodies must be specified.
8. Section 7.5, Hydrology, contains the following observations, which are contradictory:
a. According to the hydrological study conducted, the assessed watercourses are considered to discharge directly into the sea (Bahía Panamá), and the project will not generate an increase in peak flows that could affect populated areas or any downstream infrastructure. Accordingly, no mitigation measures are required in this regard.
b. It was determined that the Estero Rocha and Dirección02 present a risk of overflow in the event of extreme precipitation, due primarily to the inadequacy of the culvert (alcantarilla de paso) on Dirección03. It should be noted that this effect occurs only upstream of the culvert, up to a distance of no more than 50 meters; the remainder presents optimal flow conditions without any risk of overflow.
c. In general, it is concluded that the assessed watercourses have the natural carrying capacity to receive runoff water from the project, and that the risk of flooding due to overflow is low and could be effectively mitigated without causing a significant environmental impact.
d. However, the necessary preventive measures must be taken for the occurrence of extraordinary meteorological events that affect the area in this manner. Precipitation caused by extreme events must be taken into account in the design of drainage systems, downpipes, and other infrastructure of the stormwater and surface-water management system.
(…) Biological environment component:
12. In the section on Fragility of the Terrestrial Environment, what is presented or indicated is that the protection zones (zonas de protección) must be respected, both for the wetlands (humedales) present in the AP and for the rivers and streams present; however, it does not assess the fragility of these ecosystems based on their intrinsic capacity for recovery from any alteration or impact that cannot be naturally reversed within periods of less than one year (caused by the project); additionally, the respective mitigation and environmental compensation measures that the project will apply to balance or environmentally remediate this situation are not identified, particularly with respect to the coastal-wetland ecosystem, which is highly fragile in the face of erosion processes generated by the project, as established by decreto No. 32966-MINAE.
13. In section 7.5.1, Surface Waters, it is stated that 'the Estero Rocha crosses Lot 1 and the Estero Panamá crosses Lot 4. The project's site design must incorporate the protection zones established by our legislation, for example, the Ley Forestal, Ley Orgánica del Ambiente, Decreto No. 35803-MINAET, etc.' However, there is no assessment of this impact on these ecosystems (wetlands present in the AP); therefore, the impacts that would be caused by the probable presence of sediment in the littoral-estuarine ecosystem present in the AP must be identified and evaluated, along with the corresponding proposed mitigation measures; additionally, these must be included in: the PPGA Table and the monitoring summary table, with both being updated.
(…) POR TANTO, THE PLENARY COMMISSION RESOLVES At Ordinary Session No. 63 of this Secretariat, held on August 18, 2021, in Article No. 14, it was agreed:
FIRST: In order to continue with the Environmental Impact Assessment process, ENJOY HOTELS & RESORTS S.A., with legal entity registration number CED02, developer of the project 'Proyecto Bahía Papagayo,' is hereby ordered to submit a single annex (in original and two copies) containing the requirements set forth in Considerando CUARTO of this Resolution, for which a period of 6 months is granted." (Emphasis ours) As is evident from the documentary evidence incorporated into the administrative file, the requirement issued by the Secretaría Técnica Nacional Ambiental for the submission of an Annex containing additions and corrections neither includes nor supports the claims made by Mr. Nombre01. This is because Resolución N.º 1263-2021-Nombre03 was expressly limited to instructing the project developer to clarify and expand technical information relating to the works and the proposed environmental management measures in the vicinity of protection areas along rivers, streams, and wetlands, as part of the ordinary Environmental Impact Assessment procedure.
Consequently, at no point were setbacks with distances shorter than those established by the Ley Forestal authorized, nor was any ruling issued that modified or excepted the legal protection regime applicable to those bodies of water. Therefore, the argument raised by the appellant lacks legal basis and is inadmissible, and must accordingly be rejected.
Additionally, Mr. Nombre01 insists on arguing before the Sala Constitucional that Resolución N.º 0591-2022-SETENA, by which the environmental viability and the EIA of the project were approved, covers an area supposedly covered entirely by forest (bosque) within the concession area. Such an assertion does not correspond to the factual reality or to the content of the administrative act, and constitutes a claim lacking technical and evidentiary support, used to substantiate the filing of the present writ of amparo (recurso de amparo). The claim of acting in defense of a purported "forest" stems from a recurrent conceptual confusion between the geospatial analysis conducted by Nombre03 (based on vegetation cover (cobertura vegetal) maps) and the strict legal definition of forest, as established by the parameters set forth in the Ley Forestal. As previously indicated, the vegetation cover observed in aerial mapping is not equivalent to the legal existence of a forest, a distinction that is decisive for the correct understanding of the scope of the environmental viability granted.
For a better understanding of this point, the corresponding technical and legal explanation is set out below, as follows:
The lands acquired by the ICT to implement the Proyecto de Papagayo were confirmed in legal opinion C-194-94 of the Procuraduría General de la República to be public domain assets (bienes demaniales); their public purpose was assigned by Ley 6370, Articles 1° and 10. This character is evidenced by the manner of their exploitation, inherent to public domain assets. "The public domain is used on the basis of concessions." (Legal opinion 10 of 21/08/2002, PGR. Emphasis ours.)
The publicly owned lands that the State transferred, free of charge, to the Instituto Costarricense de Turismo, in whose name they are registered in the Registry of Real Property (property number 23252, Partido de Guanacaste), are designated for the granting of concessions, in accordance with the procedure set out in the Reglamento a la Ley sobre Zona Marítimo Terrestre (Art. 93) and the Reglamento a la Ley 6758 (legal opinions C-171-93, C-028-94, C-094-2000, C-2010-2002, PGR. Emphasis ours.)
The area covered by the "Proyecto Bahía Papagayo" approved by Nombre03 in connection with the EIA and its environmental viability is that contained in cadastral plans G-1155786-2007, G-1155787-2007, G-1186670-2007, and G-1274126-2008, corresponding to properties recorded under Folios Reales 2172-Z-000, 2169-Z-000, 2168-Z-000, and 2174-Z-000.
Within the project area, it must be clearly understood that 100% of the concession area will not be used as the construction footprint (huella constructiva); rather, pursuant to the provisions contained in Decreto Ejecutivo No. 4572, in force since July 24, 1995, which governs the Reglamento "Plan Maestro General del Proyecto Turístico Golfo de Papagayo," section 5.1, Specific Guidelines for the Design and Construction of Tourism Projects, provides the following:
"Surface occupancy coefficient (coeficiente de ocupación de superficie): A surface occupancy coefficient of no more than 30% (thirty percent) of the total originally conceded area must be maintained, to which the designs of the proposed tourism projects must conform." (Emphasis ours.)
The Procuraduría General de la República has emphasized in legal opinion C210-2002 that, by law, the land use in said project is tourism-related, prevailing over any other type of use: "the purpose assigned by law to a public domain space can only be changed by a legislative act, and the use of the area designated for the Proyecto de Papagayo is tourism-related." (Legal opinions C-028-94 and C210-2002, PGR. Emphasis ours.)
Based on the foregoing and in accordance with the documentary evidence in the administrative file, the administrative acts issued by the Ministerio de Ambiente y Energía (both in the area of environmental impact assessment and in the forestry domain) are duly substantiated, issued by competent authorities, and consistent with the applicable technical and legal standards governing environmental viability and forestry permits. Resolución N.º 0591-2022-SETENA, by which environmental viability was granted to the Proyecto Bahía Papagayo, does not declare the existence of forest nor authorize the felling of any forestry material. Its content is confined to a comprehensive environmental analysis, which includes a geolocation study of vegetation cover, a technical element that is distinct from and cannot be equated with the legal determination of forest as provided for in the Ley Forestal. Likewise, the potential existence of rivers, streams, creeks, or wetlands was duly assessed during the environmental assessment process and does not constitute an obstacle to the development of a tourism project, since the legal framework provides for such situations the application of setbacks, protection zones, and specific environmental measures designed to prevent impacts and avoid harm to the surrounding environment.
Additionally, it is established that Mr. Nombre01 was aware, prior to the filing of the present writ of amparo, that the project area for which the tree-felling permit (permiso de corta) was requested — located exclusively within the authorized construction footprint — does not meet the conditions to be classified as forest within the meaning of Article 3 of Ley Forestal N.º 7575. This circumstance is established by various documentary and technical evidence, which is detailed below and objectively supports the legality of the challenged administrative actions.
The documentary evidence supporting our position is as follows:
Note SINAC-ACT-DR-782-2025 of May 26, 2025, issued by the Director of the Área de Conservación Tempisque and addressed to Nombre01, in response to the inquiry regarding the existence of a pending or approved Management Plan (Plan de Manejo) for the properties, Finca Matricula, Finca, with a tree-felling permit or Management Plan; and stating that in the case of the property owned by Enjoy Hoteles & Resorts S.A., Resolution ACT-OSRSCC-233-2021 of October 12, 2021, which authorized the felling of 35 trees, exists, but the process expired without being executed.
On January 19, 2026, the legal representative of Desarrollo Bahía Papagayo formally applied to the Oficina Subregional Santa Cruz-Carrillo of the Área de Conservación Tempisque for a tree-felling permit for trees located in areas of abandoned pasture (potreros en abandono) on said property. The forest inventory (Inventario Forestal) was submitted.
Field Inspection Report SINAC-ACT-OSRSCC 155-2026 of February 5, 2026, prepared by the Oficina Subregional Santa Cruz-Carrillo of the Área de Conservación Tempisque for the purpose of reviewing the information provided by the developer regarding the forest inventory and tree-felling permits, expressly states:
"Desarrollo Nombre04 BP.SA. (…) 2. The numbering reported in the inventory matches that found in the field. YES. 4. The species reported in the inventory match those found in the field. YES. 6. There are trees marked in a protection area. NO. 7. Protected species marked for felling were found. NO. 11. The harvesting area can effectively be considered non-forest. YES. 14. The mitigation measures identified correspond to the impacts mentioned in the technical document. YES. 15. (…) The trees are within the property indicated in the application. The area where the trees are located DOES NOT correspond to the definition of forest under Ley Forestal 7575 nor to the definition of Forest under Decreto No. 39952-MINAE. The trees subject to the application are outside water protection areas (áreas de protección hídrica) pursuant to article 33 of Ley Forestal 7575. Following the field review, there are no technical restrictions under current regulations for the harvesting of the trees." (Emphasis ours.)
By note ACT-OSRSCC-216-2025 of February 26, 2025, the Oficina Subregional Santa Cruz-Carrillo of the Área de Conservación Tempisque submitted a field inspection report in response to a reported forest clearing (tala de bosque) in the Playa Panamá sector, at Dirección04, cadastral plan G-00552763-2023, Concesión No. 5, which relevantly states:
"…The brush-cleared site begins at vertices 11, 12, and 13 and extends barely to vertex 40, equivalent to approximately 7 hectares. No brush clearing (chapia) work is observed at the protection zone of the existing watercourse. No tree felling is observed, only brush clearing of multiple regrowth sprouts (rebrotes) of approximately 8 to 10 cm in diameter at their base… the guácimo and mango species predominate… At the time of the inspection, no individuals were observed carrying out the activities described in the complaint, and there was no presence of persons at the site." (Emphasis ours.)
The foregoing was referred to the Fiscalía Auxiliar Ambiental de Santa Cruz.
By resolution SINAC-ACT-OSRSCC-052-2026 of April 9, 2026, file TE-TE01-IF-00033-2026, the Oficina Subregional Santa Cruz-Carrillo of the Área de Conservación Tempisque proceeded to authorize the tree-felling permit for the trees identified and approved in that act, including Field Inspection Report SINAC-ACT-OSRSCC 155-2026. Furthermore, consideration is given to what is stated in Considerando Décimo Segundo, which indicates that according to the forest inventory, the intervention covers an area of 7.62 hectares out of the 42.01 hectares of Dirección04, equivalent to 18.14%, in conformity with the surface occupancy coefficient (coeficiente de ocupación de superficie) (COS) of 27.93%. It is clarified that the forest inventory contains all 3,656 surveyed individuals, of which only 748 trees are authorized for felling. This resolution was notified on April 9, 2026, at 11:27 hours. No administrative appeals were filed, and it is therefore final as of this date, without exhaustion of the administrative avenue.
It is important to reiterate: the tree-felling permit applies to trees that do not constitute forest.
By written communication dated March 17, 2025, Mr. Nombre01 requested a copy of the administrative file containing the forestry permits.
The evidence cited above objectively refutes the arguments of the appellant that serve as the basis for the filing of the present writ of amparo, since there is no administrative act (neither issued by the S nor by SINAC) that authorizes the reduction of the legally established setback distances for protection zones along the banks of rivers, streams, or wetlands, nor any authorization for the illegal felling of forest. This is without prejudice to the fact that the intervened areas do not, in any event, meet the legal definition of forest as provided for in Ley Forestal N.º 7575, a circumstance that has been duly established through technical reports and field verifications.
It must be clearly established that the lands comprising the Proyecto Turístico Golfo de Papagayo are not administered by the Ministerio de Ambiente y Energía as areas designated for the conservation of natural resources; rather, they are State assets subject to a special legal regime, the purpose and use of which was expressly defined by the legislature as tourism-related, under the administration of the Instituto Costarricense de Turismo, in accordance with applicable law. Within this framework, the Ministerio de Ambiente y Energía, through its competent bodies, grants environmental viability, forestry permits, and other administrative authorizations on the basis of current technical regulations and under environmental sustainability criteria. However, the exercise of these competencies cannot and must not be removed from the context of the legal objective that gave rise to the Polo Turístico Golfo de Papagayo, nor from the specific regime governing the use and exploitation of the State lands comprised therein, whose exclusive purpose is tourism development as established by law.
This understanding has been reiterated by the Sala Constitucional, which in its Voto N.º 2007-018483 of 18:00 hours on December 19, 2007, expressly clarified the scope of the special legal regime of the Proyecto Turístico Golfo de Papagayo, establishing the framework within which State institutions must act in the execution, oversight, and supervision of said project, a criterion that is fully applicable to the case under analysis.
"VII.- EXCEPTIONAL OR SPECIAL ADMINISTRATIVE LEGAL REGIME OF THE PROYECTO TURÍSTICO GOLFO DE PAPAGAYO. SPECIFIC REGIME FOR THE USE OR EXPLOITATION OF PUBLIC DOMAIN ASSETS. The Proyecto Turístico Golfo de Papagayo has been subject to a special administrative legal regime; thus Ley No. 6370 of September 3, 1979, declared the Proyecto Turístico de Bahía Culebra o Papagayo to be of public interest. Article 1° of that law provides that the acquisition of real property, entire properties, portions, rights, or legitimate patrimonial interests that, by reason of their location, are necessary to implement and execute the tourism project is of public utility, the latter comprising, within the coordinates delimiting it, the maritime zone of the Pacific coast. The Instituto Costarricense de Turismo was authorized to carry out voluntary acquisitions or expropriation (Articles 2 to 5). (Emphasis ours.)" In conclusion, there is no forest present in the area for which the felling authorization was granted by the Área de Conservación Tempisque, limited exclusively to the portion of the concession area corresponding to the project's construction footprint, as was established through the field inspection conducted by the Oficina Subregional Santa Cruz-Carrillo.
Likewise, it has been fully demonstrated that the Secretaría Técnica Nacional Ambiental did not issue, directly or indirectly, any authorization for the felling of trees through the environmental viability granted. These are clearly distinct administrative acts, issued by different authorities in the exercise of legally separate competencies: on the one hand, the environmental viability, and on the other, the forestry tree-felling permit.
The tree-felling authorization was issued by the State Forest Authority (Autoridad Forestal del Estado) in strict compliance with the legal and technical provisions contained in Ley Forestal N.º 7575, Resolución N.º 648-98-MINAE, which regulates the requirements for granting forestry permits, and Decreto Ejecutivo N.º 38843-MINAE, which establishes specific conditions for timber harvesting (aprovechamiento maderable), felling, or removal of trees in public or private infrastructure projects declared to be of national interest. For its part, the environmental viability was granted by [the authority] on the basis of Decreto Ejecutivo N.º 31849-MINAE-S-MOPT-MAG-MEIC, Decreto Ejecutivo N.º 32734 of August 9, 2005, and Decreto Ejecutivo N.º 37803-MINAE-S-MOPT-MAG-MEIC, forming a clear and differentiated regulatory framework for each type of authorization.
Based on the foregoing, the granting of administrative tree-felling permits, duly regulated and subject to the principle of legality (bloque de legalidad), does not violate any constitutional provision, infringe any environmental principles, or conflict with the criteria of the Procuraduría General de la República or with constitutional jurisprudence. On the contrary, such acts constitute a concrete manifestation of the application of the principle of sustainable development within the framework of a project of national interest. Likewise, the granting of the environmental viability reflects the practical application of Article 50 of the Constitución Política, insofar as it harmonizes economic development with environmental protection.
It must be borne in mind that the development of the Proyecto Turístico Golfo de Papagayo is carried out within a special legal regime governing the use of conceded State lands, with a single and specific legal purpose oriented toward tourism development, without this implying that such lands are subject to the State natural heritage (patrimonio natural del Estado) regime or that they constitute protected wild areas (áreas silvestres protegidas). Nor is there a land-use change (cambio de uso del suelo), or use permits involved, but rather valid administrative acts issued by the Forest Authority and the Environmental Assessment Authority in accordance with their respective legal competencies. The purpose and use of the lands comprising the Polo Turístico Papagayo remains consistent with what is expressly provided in its enabling statute, namely tourism use, which prevails over any other.
The granting of a forestry permit, in the terms analyzed, does not imply any modification of land use, and for this reason the Ministerio de Ambiente y Energía has not violated any legal provisions, acting in accordance with the criteria established by the Procuraduría General de la República in repeated legal opinions on the matter. The concessionaire of the Proyecto Turístico Golfo de Papagayo holds an administrative property right (derecho real administrativo) of private, exclusive, and excluding use, of a patrimonial nature, over a public domain asset, and the fact that it must obtain the corresponding administrative permits in order to execute the authorized works in fulfillment of the concession contract does not constitute any violation of the principle of legality, nor do the administrative acts issued by MINAE in the exercise of its competencies.
The actions necessary for the implementation of the project (such as earthworks within the approved footprint, tree felling, removal of vegetation cover, and transportation of materials) form an ordinary part of the execution of a duly authorized civil works project. The applicable environmental regulations expressly provide for the possibility of removing vegetation cover up to a maximum of 30% of the concession area, while simultaneously guaranteeing the conservation of the remaining 70%, which evidences a significant protection regime. It must be reiterated that vegetation cover is not legally equivalent to forest, a distinction that is essential for the case under analysis.
In the Proyecto Bahía Papagayo, the construction footprint corresponds to 27.93% of the concession area, a percentage below the maximum permitted limit. Additionally, the authorized felling of 748 trees out of a total of 3,656 inventoried individuals, within an area of 7.62 hectares out of a total of 42.01 hectares of the parent property 5-2168-Z-000, represents approximately 20.45% of the total inventoried trees, which demonstrates a limited and technically controlled timber use (aprovechamiento forestal), supplemented by replacement and environmental compensation measures using native species. The forest inventory covers only 18.14% of the property area, fully conforming to the surface occupancy coefficient (COS) of 27.93% approved by the ICT, thus confirming the technical and legal sustainability of the project.
The most abundant species are: azuma ul (Guazuma ulmifolia) with 469 individuals (62.7%); laurel (Cordia alliodora) with 77 individuals (10.3%); ondias m (Spondias mombin) with 29 individuals (3.88%); guanacaste (Enterolobium cyclocarpum) with 27 individuals (3.61%); and guarumo (Cecropia peltata) with 23 individuals (3.07%). These five species represent 83.55% of the total individuals for which felling authorization was requested, confirming that the authorized timber use is concentrated in a limited number of common species, without affecting significant biodiversity or particularly sensitive ecosystems, in accordance with what was established in the forest inventory and the respective field inspections.
In another vein, Mr. Nombre01 argues that by resolution of the Sala Constitucional issued at 15:46 hours on November 13, 2025, the action of unconstitutionality (acción de inconstitucionalidad) No. 25-033926-0007-CO was admitted for processing, filed against specific provisions forming the regulatory framework of the Proyecto Turístico Golfo de Papagayo. This circumstance is accurate with regard to the admission of the action, but does not produce the legal effects that the appellant seeks to attribute to it.
In this regard, it is established that within Constitutional File No. 25-033926-7-CO, corresponding to the action of unconstitutionality brought by Mr. Álvaro Sagot Rodríguez, the Ministerio de Ambiente y Energía appeared in a timely manner and responded to the hearing granted by the Sala Constitucional on November 28, 2025, at 11:06 hours, fully exercising its right to institutional defense.
In the referral act by which the Sala Constitucional admitted the action of unconstitutionality for processing, contained in the resolution issued at fifteen hours and forty-six minutes on the thirteenth of November of two thousand twenty-five, the Constitutional Court set out in general terms the legal scope of the admission of the action, as well as the applicable rules regarding the suspension of acts and regulations, which are decisive for the analysis of the present remedy and are developed below.
"Legal effects of the filing of the action: The publication provided for in Article 81 of the Ley de la Jurisdicción Constitucional is intended to inform courts and bodies that exhaust the administrative avenue that the action of unconstitutionality has been filed, to the effect that in proceedings or procedures in which the application of the law, decree, provision, agreement, or resolution in question is being discussed, no final resolution shall be issued until the Sala has issued a ruling on the matter. Several rules are derived from this legal provision.
The first, and perhaps most important, rule is that the filing of an action of unconstitutionality (acción de inconstitucionalidad) does not suspend the general effectiveness and applicability of the challenged provisions. The second is that only the acts of application of the challenged provisions — by judicial authorities in proceedings brought before them, or by administrative authorities in proceedings aimed at exhausting administrative remedies (agotamiento de vía administrativa) — are suspended, but not the general validity and application of such provisions. The third rule is that the Sala may calibrate the scope of the suspensive effect (efecto suspensivo) of the action. The fourth is that — as a general rule — in cases of direct action, as occurs in the present action, the suspensive effect of the filing does not apply (see voto N° 537-91 of the Tribunal Constitucional). The fifth rule is that when what is alleged is an unconstitutional omission (omisión inconstitucional), no suspension may be ordered — that is to say, neither preventing the omitted conduct from taking place nor compelling its performance — since, in the latter scenario, doing so would amount to resolving the action of unconstitutionality by interlocutory ruling.
That is to say, the suspension of the application of the challenged provisions in the administrative sphere (sede administrativa) only takes effect in those cases where there is a process for the exhaustion of administrative remedies, which requires the filing of an appeal (recurso de alzada) or a motion for reconsideration (recurso de reposición) against the final act (acto final) by a party subject to administrative proceedings (administrado). Where there is no dispute regarding the application of the provision, no suspension of its effectiveness and applicability is warranted. In other words, in all matters where no procedure for the exhaustion of administrative remedies exists, in the terms indicated above, the provision must continue to be applied, regardless of whether it benefits — a favorable administrative act (acto administrativo favorable) — or harms the party subject to the proceedings (justiciable) — an unfavorable act that has not been challenged.
Within fifteen days following the first publication of the aforementioned notice, any persons appearing as parties in matters pending as of the date of filing of this action, in which the application of the challenged provisions is at issue, or any persons with a legitimate interest (interés legítimo), may appear before the Sala in order to support or oppose the admissibility of the action, or, where applicable, to expand the grounds of unconstitutionality with respect to the matter that concerns them. It is further made known that, in accordance with Articles 81 and 82 of the Ley de Jurisdicción Constitucional, and as the Sala has repeatedly held (resoluciones 0536-91, 0537-91, 0554-91 and 0881-91), this publication does not suspend the general validity of the provision, but only its application in the cases and under the conditions specified." Based on the foregoing, it is hereby brought to the attention of the Sala Constitucional that the Environmental Viability (Viabilidad Ambiental) has been approved, is final, and has not been subjected to the exhaustion of administrative remedies, by Resolución Nº 0591-2022-las 10 h de las 10 horas 11 minutos del 06 de abril de 2022; likewise, administrative act SINAC-ACT-OSRSCC-052-2026 of 9 de abril del 2026, Expediente TE-TE01-IF-00033-2026, issued by the Oficina Subregional Santa Cruz-Carrillo of the Área de Conservación Tempisque, which authorizes the tree-felling permit (permiso de corta) for trees in a non-forest area (área de no bosque), is also final and has not been subjected to the exhaustion of administrative remedies."
Nombre04 1. Nombre04 is a residential tourism development project being carried out on lands granted under concession by the Instituto Costarricense de Turismo (ICT) within the framework of the Polo Turístico Golfo de Papagayo and governed by the regulations that the Costa Rican State enacted for its development.
2. The Polo Turístico Golfo Papagayo — hereinafter PTGP — is a national project whose origins date to 1965, when the Banco Centroamericano de Integración Económica (BCIE) set out its policy to promote tourism development in the Central American region. That study identified the Bahía Culebra area in Guanacaste as a zone with high tourism potential, positioning it as a beach tourism destination in Central America.
3. More than 50 years have elapsed since those initial studies and ideas, during which time a lengthy process unfolded that involved, first, the approval of a special and specific legal framework for the development of the PTGP; subsequently, the properties were acquired by the ICT and granted under concession (concesionados) to private parties for the purpose of executing the Project, always in compliance with the duly enacted laws.
4. The PTGP is governed by a special legal framework that includes, among other provisions, Ley NRO. 6758 (the Law Regulating the Execution of the Papagayo Tourism Project), Ley NRO. 6370 (the Law Declaring as Public Utility the Real Property Designated for Tourism Development in Bahía Culebra or Papagayo), and the Reglamento del Plan Maestro General del Proyecto Turístico Golfo de Papagayo.
5. These laws expressly establish that the land use (uso de suelo) of these lands is designated for tourism and hospitality. In other words, a specific land use was determined by act of the Republic's legislature. In this regard, Article 2 of Ley NRO. 6758 provides:
"Article 2º.- Within the area designated for the development of this Project, only the works set forth in the Plan Maestro, approved by the Instituto Costarricense de Turismo, and all works consistent therewith shall be carried out, in accordance with the provisions of this law and the technical standards issued by that Institute for this purpose." (Emphasis not in original.)
6. Likewise, Ley NRO. 6370, which declares as public utility the real property designated for the development of the Bahía Culebra or Papagayo Tourism Project, states in Article 10:
"Article 10.- Once the lands indicated in this law have been acquired, they may only be used by the Costa Rican State for the tourism development project in Bahía Culebra, in accordance with the special law that the Asamblea Legislativa shall enact for that purpose in fulfillment of Article 3 of Ley Nº 5847 of 18 November 1975." (Emphasis not in original.)
7. The legislature's decision admits no doubt; indeed, the same Ley NRO. 6758, in Article 12, establishes a rule of supremacy over any conflicting norm:
"This Law is a matter of public order and repeals any norm that conflicts with it, except insofar as such a norm grants rights or authorizes public-law entities to collect fees and tariffs, …" 8. Consequently, the Polo Turístico Golfo de Papagayo operates under a special and exceptional legal regime, expressly defined as such by the legislature and confirmed by successive compositions of the Asamblea Legislativa. It constitutes a public-domain regime (régimen demanial) that employs the concession mechanism to achieve its tourism development objective.
9. Under this special regulation and legal regime, the interventions that a concessionaire (concesionario) may undertake are not unrestricted: they are predefined, limited, and regulated from the outset by the State's territorial design, and must comply with a series of conditions set out not only in the law and its regulations, but also in the concession contract. Accordingly, the actions of concessionaires are limited, regulated, and subject to multiple controls.
10. As noted above, the Nombre04 Project holds concessions over land located within the Polo Turístico Papagayo, specifically in the Playa Panamá area, but without beach access, as the beach is situated 300 to 400 meters away, outside the Maritime-Terrestrial Zone (Zona Marítimo Terrestre, ZMT).
11. Over the past 14 months, Nombre04 has suffered multiple attacks, including the mass and coordinated dissemination of false information, property damage, and the filing of multiple judicial and administrative proceedings that have the clear objective of halting the execution of the Project, resorting even to the spread of false information.
12. These attacks have been expanding to target the PTGP as a whole, with the evident intent of paralyzing this national project, which is an engine of development and a generator of thousands of jobs for the Guanacaste region.
13. Among the proceedings filed are six amparo actions, two actions of unconstitutionality (acciones de inconstitucionalidad), one criminal proceeding, one administrative-contentious proceeding, and multiple administrative petitions.
14. The actions of unconstitutionality are as follows:
i. Action of unconstitutionality number 25-024408-0007-CO. Filed against Decreto Ejecutivo N° 44448 MP-TUR, through which the Plan Maestro was reformed to authorize the transfer (compensación) of construction coverage (cobertura constructiva) between lots granted to the same concessionaire. It must be clarified, however, that this regulation has not been used or applied to the Bahía Papagayo Project, as no transfer of any kind is required in any of the project's designs or permit applications; and ii. Action of unconstitutionality number 25-033926-0007-CO. Filed against the legal framework governing the PTGP, particularly with respect to the regulation of the 30% construction footprint (huella constructiva) permitted under the Plan Maestro and the administrative powers granted to the ICT over the PTGP lands.
15. Although the action of unconstitutionality filed under number 25-024408-0007-CO, brought against Decreto Ejecutivo N° 44448 MP-TUR, does not apply to the Bahía Papagayo Project — since this Project neither requires nor has requested any transfer — it was within this action of unconstitutionality that the precautionary measure (medida cautelar) was ordered. It must therefore be concluded that the precautionary measure exceeds the scope of the action of unconstitutionality, as it should have, at most, been limited to preventing the authorization of transfers.
MANIPULATION AND INDUCEMENT TO ERROR 16. The actions of unconstitutionality set forth erroneous arguments that distort the meaning of the laws governing the PTGP.
17. The ICT is, by law, the entity that administers the PTGP properties and may grant concessions over them; however, these laws in no way exclude the participation of other Costa Rican State entities, such as MINAE, SINAC, and municipalities, in matters falling within their respective jurisdictions that have not been expressly delegated to the ICT.
18. It is incorrect to regard this as an exceptional regime, as the claimant argues, since the relevant institutions retain their competencies — a fact borne out by the operational history of the PTGP, where concessionaires follow all of the administrative procedures (tramitología) applicable to any construction project, plus the additional requirements imposed by the special legislation, the Plan Maestro, and the ICT.
19. The Procuraduría General de la República (for example, opinions C-171-93 and C-028-94) has reaffirmed that the ICT holds exclusive competencies over the administration, oversight, and granting of concessions in the zone, without prejudice to the residual municipal competencies, such as the issuance of building permits (permisos de construcción), once projects have been previously approved by the ICT.
20. For example, the ICT may grant concessions only through public competitive processes, following prior technical and legal analysis, and on the basis of consistency with the Plan Maestro, which serves as a binding planning instrument.
21. The Sala Constitucional has also endorsed special regimes in the Maritime-Terrestrial Zone when they serve public interests, without thereby violating Article 50 of the Constitution, provided that concurrent environmental competencies are integrated. On this point, the Constitutional Tribunal has stated:
"…this Chamber agrees with the view expressed by the Procuraduría General de la República in opinion C-151-97, in which it was held that the administration of the area assigned to the Papagayo Project falls exclusively with the Instituto Costarricense de Turismo and not with the municipalities of the cantons (cantones) included within the demarcation; however, since the Tourism Project does not constitute an exceptional regime with respect to the various regulations in force in the country, the absolute administrative power attributed to that Institute applies without prejudice to the special competencies assigned by reason of subject matter to other public bodies, such as the issuance of building permits by the local municipality, a function exercised for any type of construction. (Res 444-99 SALA CONSTITUCIONAL)." 22. In any event, the PTGP Plan Maestro includes a series of environmental regulations that promote its sustainability, among them the establishment of a maximum density of 20 rooms per hectare and a construction footprint of no more than 30% of the total area under concession — limitations not imposed on other projects in the country.
23. The conditions imposed by the PTGP Plan Maestro and by the ICT's administration constitute additional and non-exclusive control mechanisms that supplement the ordinary ones; accordingly, it is also incorrect to argue that the ICT's administration conflicts with the competencies of MINAE and SINAC.
24. Indeed, the felling (corta) authorized for Nombre04 under a permit regulated by SINAC is limited to the project's construction footprint, which is even smaller than the 30% permitted under the PTGT legislation.
25. The authorization covers 748 trees out of a total of 3,656 individually inventoried specimens within an area of 7.62 hectares relative to the total 42.01 hectares of the property, representing approximately 20.45%. This figure reflects a limited, proportionate, and technically controlled forest intervention (intervención forestal), complemented by replanting measures using native species.
26. Likewise, the forest inventory (inventario forestal) covers only 18.14% of the total area of the property, consistent with the approved surface occupancy coefficient (coeficiente de ocupación de superficie, COS) of 27.93%, which supports the project's technical and regulatory consistency.
27. Regarding composition, the felling is concentrated mainly in five common species — guácimo, laurel, jobo, guanacaste, and guarumo — which together account for 83.55% of the authorized specimens. This demonstrates that the intervention focuses on predominant species without causing significant impact on biodiversity or sensitive ecosystems, as confirmed by the forest inventory and the field verifications conducted.
28. The Sustainability and Community Plan constitutes the comprehensive strategic framework guiding the planning, execution, and operation of the Bahía Papagayo Project, acting as a cross-cutting executive umbrella that integrates the environmental, social, urban, and economic components of the development. Its importance lies in the fact that it is not a declaratory instrument but rather an operational and binding tool, aligned with national regulations, the special regime of the Polo Turístico Golfo Papagayo, and international sustainability standards. Through this Plan, clear guidelines, key performance indicators (KPIs), and monitoring mechanisms are established to ensure that each phase of the project is executed under criteria of sustainability, legality, traceability, and social responsibility. The Plan also integrates environmental protection — including the conservation of natural forest cover (cobertura natural), resource management, and reforestation — with community development, transparent governance, and the generation of local economic value, ensuring technical coherence and a long-term vision.
In this regard, the Sustainability Plan functions as the central coordinating axis of the project, allowing it to demonstrate that the development not only meets regulatory requirements but also responds to a sustainable, planned, and permanently institutionally controlled tourism development model.
Specifically, we take the opportunity to address various false and incorrect statements made in administrative and judicial proceedings and irresponsibly disseminated to the general public:
− No mangroves (manglares) exist within the concessions: It is incorrect to assert the presence of mangroves within the project area, as demonstrated by the SNIT (Sistema Nacional de Información Territorial) system, the official platform that centralizes the country's geospatial information. These ecosystems are located outside the concession areas, on the other side of Dirección05, and are covered by protection and mitigation measures duly incorporated and approved in the Environmental Clearance (Viabilidad Ambiental).
− The project does not restrict public beach access. The Project is located 300 to 400 meters from the beach, outside the Maritime-Terrestrial Zone; accordingly, it is false to claim that it restricts public access to the beach.
− There is no golf course in the project. It is false that the development includes a golf course. The design contemplates public spaces, infrastructure, residences, and hotels, with no such component.
− There is no development in forest: It is false that the project is being developed in forest. Technical studies demonstrate that the areas subject to intervention do not meet the legal definition of forest under current forestry regulations, as they do not simultaneously satisfy the required criteria of canopy cover, density, and ecological characteristics.
− Vegetation composition: predominance of pasture (potrero) species. It is incorrect to claim that the area exhibits the characteristics of consolidated forest. The technical studies from the forest inventory demonstrate that more than 80% of the trees in Concesión Lote 01 correspond to species typical of pasture land, such as guácimo and laurel, among others, historically used for shade and livestock feed. It is also established that the dominance of 83% of the specimens corresponds to species associated with livestock production systems, confirming that the vegetation cover is disturbed rather than a natural forest ecosystem. This technical analysis supports the conclusion that the condition of the land is consistent with anthropized agricultural-livestock landscapes, and not with forest as defined under current law.
− Limited, controlled, and proportionate environmental intervention. The narrative of massive destruction and clear-cutting (tala raza) is false and incorrect. Technical data show that: • The authorized felling corresponds to 748 trees out of 3,656 inventoried (≈20.45%) • It is limited to the project's construction footprint • The inventory covers only 18.14% of the total area, consistent with the approved design • Replanting and compensation measures using native species are being implemented This confirms a technically controlled and environmentally managed intervention.
− Development below the permitted maximum: a criterion of responsibility. Although regulations allow for an occupancy of up to 30% of the concession area, the project has been designed to develop only 27.93%, keeping 72.07% of the land as open and natural areas. This decision reflects a responsible approach to sustainable development, prioritizing the conservation of the natural environment over maximum permitted exploitation. This criterion is formalized in the Sustainability and Community Plan, which serves as the project's governing instrument, integrating environmental, social, and governance guidelines with monitoring and control indicators.
− The project does NOT apply transfer of coverage between concessions. Nombre04 is not applying any mechanism for the transfer of coverage or density between concessions; therefore, arguments based on this concept are not applicable to the project.
− Project under complete institutional control. It is false to claim an absence of State oversight. The project has: (i) a Building Permit, (ii) Environmental Clearance, (iii) a Felling Permit, and (iv) an active Environmental Log (Bitácora Ambiental). In fact, the Project has been reviewed and approved by multiple institutions.
− The planned treatment plant does not generate contamination. It is false that the project contemplates the discharge of pollutants into bodies of water. The system implemented corresponds to a treatment plant (planta de tratamiento) with water reuse for irrigation, aligned with sustainable practices and duly approved by the Ministerio de Salud, AyA, CFIA, and the Municipalidad.
− Strict compliance with riparian setbacks (alineamientos fluviales). It is false that there is any encroachment on water protection zones. The project: • Complies with the applicable 15-meter riparian setbacks in rural zones, in accordance with applicable regulations. • These setbacks are verified by all competent institutions as part of the building permit process. • In Concesión Lote 01, an even more conservative approach was applied, leaving an additional 1-meter setback, for a total of 16 meters on each side of the ravine (Quebrada), as reflected in the plans approved by CFIA, the Cuerpo de Bomberos, AyA, the Ministerio de Salud, INVU, and the Municipalidad de Carrillo.
− No gentrification (gentrificación) or displacement. It is incorrect to claim that the project generates gentrification. The concessions: (i) are located on land with no prior settlements; (ii) have not entailed the displacement of any population; (iii) incorporate direct community benefits, including employment, infrastructure, and public spaces. All of these actions have been carried out in coordination with local stakeholders such as the ADI (Asociación de Desarrollo Integral) de Playa Panamá.
− Active and verifiable community engagement. It is false that the project has not conducted consultation or engagement processes with the community. The Nombre04 Development maintains formal and active working partnerships with the Asociación de Desarrollo Integral (ADI) de Playa Panamá and the School Board (Junta de Educación), which have materialized in concrete actions. During 2025 and 2026, these relationships have been strengthened through: • Implementation of community projects • Support for educational infrastructure • Joint social, cultural, and sporting activities • Dialogue forums and participatory planning The foregoing demonstrates a management approach grounded in verifiable facts, with real, ongoing, and structured community participation."
Article 17.- Environmental impact assessment. Human activities that alter or destroy elements of the environment, or that generate waste, toxic, or hazardous materials, shall require an environmental impact assessment by the National Environmental Technical Secretariat established in this law. Prior approval by this body shall be an indispensable requirement before initiating activities, works, or projects. Laws and regulations shall specify which activities, works, or projects shall require an environmental impact assessment.
Once the Environmental Viability (License) (VLA) has been granted and the effective commencement of the Activity, Work, or Project (AOP) has been verified, Nombre03 exercises its powers of permanent oversight and control. The primary objective of this Environmental Management phase is to ensure rigorous compliance with the environmental commitments and conditions imposed on the developer. For these purposes, the legal system provides a catalogue of Environmental Control and Monitoring Instruments, the applicability of which is determined according to the nature and risk of the project. These mandatory compliance mechanisms include:
• Environmental Compliance Bond (Garantía de Cumplimiento Ambiental): An economic security deposit intended to guarantee the implementation of prevention, mitigation, or compensation measures. • Appointment of the Environmental Officer (Responsable Ambiental): A duly accredited professional who acts as technical liaison and is responsible for implementing management plans. • Activation of the Environmental Log (Bitácora Ambiental): A legal-technical instrument in which incidents and the progress of environmental measures are chronologically recorded. • Environmental Accountability Reports (Informes de Responsabilidad Ambiental, IRA): Periodic reports that must be submitted by the developer and the Environmental Officer to this Secretariat, with the frequency and technical requirements established in the administrative resolution granting the license.
It is imperative to highlight that non-compliance with any of these instruments would empower Nombre03 to initiate the corresponding administrative sanctioning proceedings, which could even result in the suspension or revocation of the granted viability, in safeguard of the public environmental interest. In this regard, the Constitutional Chamber stated the following concerning the jurisdiction of this Secretariat, in expediente No. 05-015450-0007-CO, Resolution No. 2009002019:
(…) Environmental viability, for its part, represents the condition of acceptable harmonization or balance, from the standpoint of environmental load, between the development and execution of an activity, work, or project and its potential environmental impacts and the environment of the geographic area where it is intended to be implemented. From an administrative and legal standpoint, environmental viability corresponds to the act approving the environmental impact assessment process, whether in its Initial Environmental Assessment (Evaluación Ambiental Inicial) phase or in the phase of approval of the Environmental Impact Study (Estudio de Impacto Ambiental) or the Environmental Management Plan (Plan de Gestión Ambiental), depending on the activity in question and what it warrants. In accordance with Article 17 of the Organic Law on the Environment, No. 7554 of October 4, 1995, the activities requiring an environmental impact study approved by Nombre03 are those human activities that alter or destroy elements of the environment or generate waste, toxic, or hazardous materials.
Prior approval by this body shall be an indispensable requirement before initiating activities, works, or projects. Thus, the protection of the right to a healthy and ecologically balanced environment obliges the State to adopt preventive measures in order to avoid its impairment. In this way, among the principal measures established by the legislature to this end, several technical instruments stand out, foremost among them the Environmental Impact Study, as provided by the cited article, with the condition of the project or work determining, on a case-by-case basis, whether it is required. Likewise, pursuant to Article 18 of Law No. 7554, the legislature entrusted the National Environmental Technical Secretariat with assessments carried out by "(…) an interdisciplinary team of professionals, registered and authorized by the Secretariat (…) in accordance with guidelines developed by it.
The cost of the environmental impact assessments shall be borne by the interested party (…)". For its part, Article 19 of the aforementioned law established that "the resolutions of the Environmental Technical Secretariat must be substantiated and reasoned," thereby incorporating into this field the general principle of administrative act reasoning, which is, in turn, a guarantee forming part of due process. The approval of an environmental impact study requires, in accordance with international commitments undertaken by Costa Rica and entrusted to SETENA, a detailed analysis that includes, as required by Article 24 of the Environmental Law, the technical criteria and weighting percentages that make approval of the study possible. Furthermore, it must respond to the standards, management objectives, and environmental priorities of the national State and the local government, as reflected in Principle 11 of the Rio Declaration.
It must also be noted that the completion and approval of an environmental impact study does not, in itself, mean that the project in question may begin operating, since it is only one of the requirements needed to complete the authorization process, which in some cases will include obtaining a health permit, approval of the urbanization plans by the respective municipality, sign-off on the concession by the competent entity, the granting of commercial licenses, etc. This is so because, in matters of the environment, one cannot speak of immutable variables; quite the contrary—by its very nature, the environment is, by itself, and to an even greater degree through human intervention, constantly changing. The approval of an environmental impact study in the terms set forth in the Organic Law on the Environment also does not constitute an immutable authorization to carry out a given human project, since, through the oversight work entrusted to the Administration, if harm to the environment is detected as established by the Rio Convention, the permit may be revoked in order to guarantee the right established in Article 50 of the Political Constitution and, at the same time, to enforce the environmental bond provided to safeguard the application of corrective, mitigation, or compensation measures for environmental damage or uncontrolled negative environmental impacts arising from the activity, works, or projects. (…)
SECOND: General Description of the Project: The case before us corresponds to administrative file number D1-0170-2021-Nombre03 (…) Project Description: The Nombre04 project consists of a residential tourism complex designed to foster the development of residences and hotels with access to all basic and recreational services through the commercialization of housing units, residential lots, hotel and condhotel components, mixed residential-commercial use, and office space. The Hotel and Condhotel component will be developed with a capacity to accommodate more than 240 guests, and may include rooms equipped with a kitchen, private bathroom, and terrace, as well as the hotel lobby, swimming pools, spa, gymnasium, restaurants, bar, bathrooms and changing rooms, shops, event hall, wellness center, sales rooms, administrative offices, workshop, kitchen and laundry facilities, staff accommodation, and all the road infrastructure necessary for access and circulation within the facilities, parking areas, sidewalks, pathways, and a treatment plant.
The project will also include housing units with parking for one or two vehicles, and common areas comprising hallways, rooftop terraces, green areas and children's playgrounds, a "rancho" (open-air pavilion) with swimming pools, courts, and multipurpose halls, gymnasium, access lobby, as well as road infrastructure for access and circulation within the facilities, visitor parking, and sidewalks. The Residential Lots will be zones for the future development of residences that may include a patio, garages for multiple vehicles, a swimming pool, terraces, and rooftop terraces. The project will provide vehicular and pedestrian access, as well as basic-services infrastructure for future residents, as well as green areas, children's playgrounds, and pathways. The Clubhouse for the residential lots or housing units will include an administrative area, event hall, restaurant, bathrooms, social area, game room, swimming pool, gymnasium, tennis courts, and multipurpose courts.
It will also include green areas in which "ranchos" with electricity, walking paths, children's playgrounds, and vehicle parking are offered. A Country Club will be established featuring event halls, an administrative area, restaurant, bathrooms, social area, game room, swimming pool, gymnasium—both with showers and changing rooms—as well as jacuzzi and saunas. It will also include green areas offering tennis courts, multipurpose courts, five-a-side soccer fields, mini-golf, "ranchos" with electricity, walking and cycling paths, as well as children's playgrounds and road infrastructure for access and circulation within the facilities, visitor parking, and sidewalks. The commercial and office area development will be a zone for the construction of commercial premises and offices for subsequent sale or lease. The office spaces will include co-working areas with meeting rooms, cafeterias, libraries, and reading lounges.
The commercial area may include supermarkets, mini-markets, commercial kiosks, a pharmacy and medical clinic, restaurants, an outdoor cinema, a market or trade fair plaza—an area intended to promote commerce and entrepreneurship, with sales of local products and a green garden market. The mixed-use zone will be a site for the development of various social and cultural activities by residents of the site and surrounding areas, including research centers, a museum, school, daycare center, chapel, bullring, sports plaza, and community meeting centers. Among the other components and amenities that will form part of the project are: camping areas, natural walking paths and cycling trails, viewpoints and natural rest stops for observation, and meditation decks; open ecological parks with picnic areas, lakes, conservation and reserve areas, a bird forest with fruit trees, suspension bridges, public parking areas, a main avenue with tree-lined streets as well as pedestrian sidewalks, and bridges over seasonal streams (quebradas) to connect the project internally.
The project will feature LED lighting; buildings will be designed to provide and maximize natural light while avoiding solar heat gain. High-efficiency air conditioning systems will be used to improve indoor air quality with greater energy efficiency. A stormwater management plan to be implemented during construction will reduce pollution by controlling soil erosion and sedimentation of waterways. Treated wastewater and gray water will be used for irrigation in order to reduce potable water use for this purpose. All social and common areas are accessible in accordance with the provisions of Ley 7600.
Environmental Viability Resolution: On April 6, 2022, by means of Resolution No. 0591-2022-SETENA, issued at 10:11 a.m., Environmental Viability (License) was granted to the project in question, which to date has constituted a final administrative act issued prior to the filing of nullity motions (incidentes de nulidad) and the action of unconstitutionality (acción de inconstitucionalidad) in expediente No. 25-033926-0007-CO.
THIRD: Regarding the Chamber's Request. The Constitutional Chamber transmits the writ of amparo (recurso de amparo) proceeding and requests that Nombre03 address the following: (…) that, by means of the public tender identified as "Concesión para el Desarrollo Turístico de Áreas Libres del Polo Turístico Papagayo," published in La Gaceta N.º 122 of June 23, 2004, the company Enjoy Hotels & Resorts S. A. was awarded four lots in the Polo Turístico Golfo de Papagayo (hereinafter PTGP), as recorded in Agreement No. 5384 of the ICT Board of Directors, Article 2, Section III, paragraphs a), c), and d). It states that, in execution of the aforementioned concession, the project known as "Bahía Papagayo," promoted by the company Enjoy Hotels & Resorts S. A., filed proceedings before SETENA under expediente D1-0170-2021-SETENA, to obtain environmental viability. It notes that the project is located in Playa Panamá, canton of Carrillo, province of Guanacaste, on Costa Rican State land under state concession, pursuant to Ley N.º 6758, which governs the Proyecto Turístico Golfo de Papagayo.
It explains that it is on these state lands that the forest sought to be protected by the present amparo is located. It alleges that the environmental viability proceeding concluded with Resolution No. 0591-2022-SETENA, by which environmental viability was granted to the project. It notes that, according to the administrative file, the project was classified as Category A, corresponding to a high potential environmental impact, pursuant to Article 9 of Reglamento N.º 31849-MINAE. It argues that, within the environmental assessment file processed, there are a series of documents confirming the authorization given by Nombre03 to reduce the legally established water-protection zones (zonas de protección) for waterways and confirming the elimination of forest cover (cobertura boscosa) within the state area of the project, justifying that land-use change (cambio de uso del suelo) on the basis of a legal interpretation—purportedly binding—issued by the Legal Directorate of MINAE. It asserts that the documents referred to are the following:
1. Document submitted by the company as part of its response to the notice of deficiency—identified as "Respuesta Prevención, Resolución nro. 1263-2021-SETENA," dated January 6, 2022: It establishes that the protection zones for water bodies will be 15 meters along the Rocha and Panamá tidal inlets (esteros), and 10 meters along both banks of the unnamed seasonal streams, as an environmental mitigation measure. However, it alleges that those measures expressly contravene the provisions of Article 33, paragraph b), of Ley Forestal N.º 7575.
2. Technical analysis included in Resolution No. 0591-2022-SETENA, specifically in the Georeferencing section, prepared by the SETENA Geography Unit: It affirms that the project area contains significant forest cover consisting of deciduous, mature, and secondary forest, according to official data from the National Territorial Information System (SNIT) and FONAFIFO, for the years 2005 and 2013. Furthermore, the land is classified under Land-Use Class VII, designated for forest management. It adds that any intervention must be processed before MINAE/SINAC, in accordance with Article 27 of the Ley Forestal.
3. Official letter SETENA-SG-0646-2025, by which SETENA formally requested a technical opinion from SINAC regarding the existence of forest and wetlands on the lands comprising the Bahía Papagayo project, as part of the nullity motion proceedings against Resolution 0591-2022-SETENA. It alleges that, in that letter, Nombre03 acknowledges that lots 1, 3, and 4 have forest cover of up to 98%.
4. Legal opinion DAJ-MINAE-1591-2025, issued on August 6, 2025: The MINAE Legal Advisory Directorate concluded that the Proyecto Turístico Golfo de Papagayo is governed by a special legal regime under Ley N.º 6758, and therefore—according to that opinion—it is valid to pursue the execution of a real estate/tourism project under the terms in which the ICT authorized the concession to the developer group, even though this entails land-use change on lands containing State natural heritage forest (bosque patrimonio natural del Estado). It notes that the document maintains that concessionaires could remove up to 30% of the vegetation cover, including forest, regardless of its nature.
5. Report INFTEC-DT-ASA-0324-2025, resulting from an inspection conducted on May 26, 2025, in the area of the Bahía Papagayo project. It notes that, in that report, the official forest cover layer for the year 2000—validated by Decreto Ejecutivo N.º 36818-MINAET—was overlaid, and it was shown that the majority of the project's areas (figures B, C, and D) are entirely contained within zones classified as forest constituting the natural heritage of the State, given that they are located on State-owned land.
It states that, by resolution of the Chamber issued at 3:46 p.m. on November 13, 2025, the action of unconstitutionality No. 25-033926-0007-CO was admitted for processing, filed against specific provisions that make up the normative framework of the Proyecto Turístico Golfo de Papagayo. It alleges that, in particular, the action challenges: (i) Article 74 of the Law on the Maritime Terrestrial Zone (Ley N° 6043) and Article 93 of its Regulations (Decreto Ejecutivo N° 7841-P), which establish the exceptional regime of continuous administration by the ICT over Bahía Culebra; (ii) Article 1, final paragraph, of Ley N° 6370 and Articles 2 and 12 of Ley N° 6758, which declare the project a matter of public utility and expand the ICT's powers to authorize works and grant concessions within the expropriated area; (iii) Articles 1 and 2 of Decreto Ejecutivo N° 33132-MP-T, which declare the project to be of national benefit and direct its institutional support; and (iv) Article 5.1, paragraphs i) and j), of ICT Reglamento N° 4572 (General Master Plan), which sets development guidelines, densities, and environmental conditions within the concession area.
It notes that, by Resolution No. 0215-2026-SETENA, that body suspended the processing of two nullity motions filed in administrative file No. D1-0170-2021, on the basis of the Constitutional Chamber's ruling in the aforementioned resolution. However, it alleges that SETENA omitted any precautionary measure and, on the contrary, stated: "It is reiterated that the foregoing does not prevent the determination that the Environmental Viability License granted to the project remains in full force and effect." It alleges that, by official letter No. CARTA-BD-DT-DEA-0109-2026, the Environmental Log was formally opened as part of the process of commencing works, and that on April 15, 2026, the presence of machinery at the site was confirmed. It also alleges that, notwithstanding the aforementioned action of unconstitutionality, Resolution No. SINACACT-OSRSCC-052-2026 of April 9, 2026—which was known to officials as is apparent from the corresponding file—granted a tree-felling permit (permiso de corta) for 3,656 trees within the project area, citing as grounds in the ninth considerando Decreto Ejecutivo N° 4572, the General Master Plan Regulations of the Proyecto Turístico Golfo de Papagayo, which has been challenged in the respective action of unconstitutionality, thereby entailing the suspension of the issuance of final administrative acts, such as the permit in question.
It mentions that the plan for commencing the felling of forest trees, as set out in the application to SINAC, indicates February 2026, confirming the developer's urgency to commence works, which has been verifiable on site with the presence of machinery. For the reasons set forth, it requests the intervention of the Chamber in the present proceeding. (…)
FOURTH: With respect to the request for a report and based on the technical opinion for better resolution CARTA-SETENA-DT-DEA-0853-2026, issued by the Head of the Environmental Assessment Department of this Secretariat, and the documents on file in the digital record, the following is noted:
First Allegation: "that, by means of the public tender identified as 'Concesión para el Desarrollo Turístico de Áreas Libres del Polo Turístico Papagayo,' published in La Gaceta N.º 122 of June 23, 2004, the company Enjoy Hotels & Resorts S. A. was awarded four lots in the Polo Turístico Golfo de Papagayo (hereinafter PTGP), as recorded in Agreement No. 5384 of the ICT Board of Directors, Article 2, Section III, paragraphs a), c), and d). It states that, in execution of the aforementioned concession, the project known as 'Bahía Papagayo,' promoted by the company Enjoy Hotels & Resorts S. A., filed proceedings before SETENA under expediente D1-0170-2021-SETENA, to obtain environmental viability. It notes that the project is located in Playa Panamá, canton of Carrillo, province of Guanacaste, on Costa Rican State land under state concession, pursuant to Ley N.º 6758, which governs the Proyecto Turístico Golfo de Papagayo.
It explains that it is on these state lands that the forest sought to be protected by the present amparo is located. It alleges that the environmental viability proceeding concluded with Resolution No. 0591-2022-SETENA, by which environmental viability was granted to the project. It notes that, according to the administrative file, the project was classified as Category A, corresponding to a high potential environmental impact, pursuant to Article 9 of Reglamento N.º 31849-MINAE. It argues that, within the environmental assessment file processed, there are a series of documents confirming the authorization given by Nombre03 to reduce the legally established protection zones for waterways and confirming the elimination of forest cover within the state area of the project, justifying that land-use change based on a legal interpretation—purportedly binding—issued by the Legal Directorate of MINAE. It asserts that the documents referred to are the following:
1. Document submitted by the company as part of its response to the notice of deficiency—identified as 'Respuesta Prevención, Resolución nro. 1263-2021-SETENA,' dated January 6, 2022: It establishes that the protection zones for water bodies will be 15 meters along the Rocha and Panamá tidal inlets, and 10 meters along both banks of the unnamed seasonal streams, as an environmental mitigation measure. However, it alleges that those measures expressly contravene the provisions of Article 33, paragraph b), of Ley Forestal N.º 7575.
2. Technical analysis included in Resolution No. 0591-2022-SETENA, specifically in the Georeferencing section, prepared by the SETENA Geography Unit: It affirms that the project area contains significant forest cover consisting of deciduous, mature, and secondary forest, according to official data from the National Territorial Information System (SNIT) and FONAFIFO, for the years 2005 and 2013. Furthermore, the land is classified under Land-Use Class VII, designated for forest management. It adds that any intervention must be processed before MINAE/SINAC, in accordance with Article 27 of the Ley Forestal.
3. Official letter SETENA-SG-0646-2025, by which SETENA formally requested a technical opinion from SINAC regarding the existence of forest and wetlands on the lands comprising the Bahía Papagayo project, as part of the nullity motion proceedings against Resolution 0591-2022-SETENA. It alleges that, in that letter, Nombre03 acknowledges that lots 1, 3, and 4 have forest cover of up to 98%.
4. Legal opinion DAJ-MINAE-1591-2025, issued on August 6, 2025: The MINAE Legal Advisory Directorate concluded that the Proyecto Turístico Golfo de Papagayo is governed by a special legal regime under Ley N.º 6758, and therefore—according to that opinion—it is valid to pursue the execution of a real estate/tourism project under the terms in which the ICT authorized the concession to the developer group, even though this entails land-use change on lands containing State natural heritage forest. It notes that the document maintains that concessionaires could remove up to 30% of the vegetation cover, including forest, regardless of its nature.
5. Report INF-TEC-DT-ASA-0324-2025, resulting from an inspection conducted on May 26, 2025, in the area of the Bahía Papagayo project. It notes that, in that report, the official forest cover layer for the year 2000—validated by Decreto Ejecutivo N.º 36818-MINAET—was overlaid, and it was shown that the majority of the project's areas (figures B, C, and D) are entirely contained within zones classified as forest constituting the natural heritage of the State, given that they are located on State-owned land." Response to the First Allegation: The project was filed with Nombre03 in 2021, and the assessment instrument applied was the Environmental Impact Study (Estudio de Impacto Ambiental, EsIA), which is the most rigorous instrument and for which extensive technical studies are required. Environmental Viability was granted upon full compliance with all the technical requirements set out in Decreto N.º 31849-MINAES-MAG-MOPT-MEIC, in force at the time, on April 6, 2022, by means of Resolution No. 0591-2022-SETENA, issued at 10:11 a.m., as indicated above.
It is important to recall that the Environmental License is a preliminary and initial act for the realization of a project, the purpose of which is to enable the proposal and anticipation of all mitigation or compensation measures necessary to prevent irreparable harm to the environment, in accordance with Article 17 of the Organic Law on the Environment, with respect to the environmental factors identified in the project area. This technical representative clarifies that the granted license does not constitute an authorization for immediate execution nor a final construction permit. On the contrary, it is an intermediate and necessary administrative act within a complex procedure. Its function is to authorize the applicant to continue the process of obtaining specific permits from the competent authorities. The concrete realization of the project is subject, on a mandatory basis, to obtaining these final authorizations, without which the Environmental Viability lacks operative effect for the development of works.
The petitioner's claim regarding an alleged authorization to reduce waterway protection zones is categorically rejected. This Secretariat acts under the Principle of Legality (Art. 11 of the Political Constitution and Art. 11 of the General Law on Public Administration), which prevents any administrative resolution from contravening legal norms, specifically the provisions of the Ley Forestal. No resolution issued by this body has the virtue or the jurisdiction to modify the legal setbacks (retiros) or protective standards established by law.
Any assertion to the contrary lacks factual and legal basis, seeking to attribute to this Secretariat powers that the legal order has not conferred upon it. It is imperative to note that any intervention in watercourses (cauces) or timber harvesting (aprovechamiento forestal) must be processed before the corresponding sectoral institutions. In fulfillment of its duty, every Environmental Viability (viabilidad ambiental) resolution includes an express warning clause indicating that the developer has the legal obligation to approach the competent authorities to obtain the final permits. In this regard, Considerando TERCERO of Resolution N° 0591-2022-SETENA states: "The studies conducted set out a series of recommendations that must be followed as indicated, as part of the project's environmental commitments. Should the removal of any tree be required, the corresponding permit must be obtained from the MINAE office, and if surface water bodies or wells are located within or on the boundaries of the project area (AP), the legislation in force regarding protection zones (zonas de protección) shall apply." At the time of the administrative file (expediente) review, the analysis using Geographic Information Systems (GIS) (Sistemas de Información Geográfica, SIG) conducted by this Secretariat was taken into account, based on official data layers from SNIT (National Territorial Information System / Sistema Nacional de Información Territorial), and in consideration of Ley 6758, Ley Reguladora del Desarrollo y Ejecución del Proyecto Turístico de Papagayo; additionally, official memorandum DAJ-MINAE-1591-2025, issued by the Legal Advisory Department (Dirección de Asesoría Legal) of MINAE, is available, which concludes that: "Based on the foregoing, the Proyecto Turístico Golfo de Papagayo is governed by a specific, exceptional legal framework that includes the Ley Reguladora del Desarrollo y Ejecución del Proyecto Turístico de Papagayo, Ley No. 6758.
This law, together with its regulations and the Plan Maestro of the project, establishes the rules for the development and execution of works within the designated area, that is, within the concession area. Furthermore, the Instituto Costarricense de Turismo (ICT) plays a fundamental role in the administration, regulation, and supervision of the project, encompassing the entire main project area and each of the concessions within the project area boundaries, as well as the management of a special fund for its financing. In legal terms, this special and exceptional norm may be framed within the Principle of Protection under a specific situation for the development and execution of works, as established by Ley No. 675, together with its regulations and the Plan Maestro." Additionally, this same memorandum states: "In another respect, and as part of the regulations governing this Project, pursuant to Decreto Ejecutivo No. 33132-MP-T, published in La Gaceta No. 97 of May 22, 2006, a Declaration of National Convenience (Declaratoria de Conveniencia Nacional) is in effect for the development and execution of the Proyecto Turístico Golfo de Papagayo, under the administration of the Instituto Costarricense de Turismo.
The grounds for this Executive Branch order included the following: "2.- That by Article 1 of Ley Nº 6370 of September 3, 1979, the lands necessary for the development and execution of the Tourism Project in Bahía Culebra, located in the Province of Guanacaste, now known as the Proyecto Turístico Golfo de Papagayo under the administration of the Instituto Costarricense de Turismo, were declared of public utility. 3.- That said Project has become the principal hub of tourism development for all of Central America. 4.- That the Procuraduría General de la República has emphasized, through legal opinion C210-2002, that by law the land use (uso del suelo) within said project is tourism-based, taking precedence over any other type of use. 5.- That the guidelines established in the Plan Maestro of the Proyecto Turístico Golfo de Papagayo make it a model of sustainable tourism development, by establishing a duly planned development under state administration and supervision, incorporating environmental variables, low densities and coverages, adequate wastewater treatment, etc. 6.- That it is the interest of the Government of the Republic to support the efforts of the Instituto Costarricense de Turismo to promote the development of the Proyecto Turístico Golfo de Papagayo as a model of sustainable tourism development at the international level." And concludes: "Said special regime includes the possibility for the concessionaire to remove vegetation cover (cobertura vegetal) —without distinguishing its nature (forest, scrubland (charral), pasture (potrero), agroforestry, among others)— up to a maximum of 30% of the total concession area, reserving the remaining 70% for conservation, in strict adherence to the Plan Maestro of the project and its regulations.
Nonetheless, this must always be understood within the framework of the general principles of conservation and protection of natural resources. Consequently, it is imperative to observe minimum regulations, such as the prohibition on the felling of protected forest species and the preparation of technical forest inventories, in order to ensure responsible and sustainable removal of vegetation cover." Based on the foregoing, verification was carried out by means of the site plan submitted by the Developer, assuming as a hypothesis that all cadastral plots (planos catastrados) had 100% forest cover (cobertura boscosa) —and therefore the observations made by the forestry engineer are not relevant—; it was verified that the land use (aprovechamiento) will indeed not exceed 30%, which complies with the regulations governing that Polo Turístico, as shown in the following table: (Table inserted) It is important to emphasize that the project is developed across 4 cadastral plots, whose coverages are described in accordance with the geospatial analysis conducted by this Secretariat. During the administrative file review process, and as part of the information submitted for a better-informed decision, the developer presented the following:
Additionally, in the present analysis, for the calculation of forest cover, the assumption was used that the entire area of the cadastral plots constitutes forest; therefore, the question of whether or not the areas qualify as forest does not affect the coverage analyzed in the environmental viability assessment. Currently, memorandum DAJ-MINAE-1591-2025 is available, which was issued as part of the proceedings to reach a better-informed decision, in connection with the absolute nullity (nulidad absoluta) challenge filed in 2025 against the resolution that granted the Environmental Viability, and which, according to the legal opinion expressed therein, confirms the permissibility of land use up to 30% as established in the Plan Maestro of the Proyecto Turístico Golfo de Papagayo, and that a constitutional challenge (acción de inconstitucionalidad) is currently pending. Thus, at the time the Environmental Viability was issued, all the necessary technical and legal elements to support it were available.
Furthermore, it should be borne in mind that the total concession area amounts to 42.01 hectares, while the project's construction footprint (huella constructiva) will extend over an area of approximately 7.62 hectares only, a circumstance that is decisive for understanding the true scope of the environmental analysis and for dismissing the thesis of generalized impact on the concession territory.
The geospatial analysis constitutes a technical tool of ordinary use within the environmental assessment processes handled by Nombre03 for any activity, work, or project submitted for its review. The reference to forest cover maps in said analysis is intended to identify elements present in the territory based on cartographic information, which reflects the tree canopy cover observed from an aerial perspective, but does not equate to nor replace the legal definition of "forest" established in Article 3 of the Ley Forestal N.º 7575. This aspect is central to the correct understanding of the case. The determination of the existence of forest within the meaning of the Ley Forestal is not made on the basis of vegetation cover cartography, but rather through technical field verification, in accordance with the recognized methodology for such purposes, and the determination of forest in accordance with the definition set forth in Ley Forestal 7575 of Costa Rica. Consequently, a forest cover map cannot be equated with a declaration of forest, as these are technically and legally distinct concepts. The confusion between the two is precisely the foundation of the appellant's erroneous reasoning.
Resolution N.º 0591-2022-Nombre03 does not at any point authorize, expressly or implicitly, the reduction of protection areas for rivers, streams, or wetlands, nor the removal of any forest or forestry material without the corresponding authorization from the State Forestry Authority (Autoridad Forestal del Estado). First, because the effects that the appellant attributes to said resolution do not follow from its content, and, second, because Nombre03 lacks the legal competence to grant forestry permits, a function that belongs exclusively to the Ministry of Environment and Energy (Ministerio de Ambiente y Energía) through SINAC.
The appellant, Mr. Nombre01, alleges that Resolution N.º 1263-2021-Nombre03 (of January 6, 2022) —issued prior to the approval of the Environmental Impact Study (Estudio de Impacto Ambiental, EsIA)— contravenes Article 33, paragraph b), of Ley Forestal N.º 7575, by supposedly establishing protection areas of 15 meters along the Rocha and Panamá estuaries, and of 10 meters along unnamed seasonal streams (quebradas estacionales). Said allegation lacks legal basis, as it derives from an erroneous interpretation of the nature and effects of the aforementioned resolution. Resolution N.º 1263-2021-Nombre03 does not constitute a final, decisive, or enabling administrative act; it is, strictly speaking, a procedural or instructional act issued within the environmental impact assessment (evaluación de impacto ambiental, EIA) procedure. In exercising its oversight powers, SETENA limited itself to requesting the developer to submit a technical annex to correct, clarify, and supplement information.
Consequently, the appellant incurs an error of appreciation by attributing to the Administration statements contained in the technical documents of the proponent, which do not form part of the decision-making will of Nombre03 and have not been validated as mitigation measures at that stage. It is precisely due to the duty of technical rigor that Nombre03 requested such additions, without this implying, under any circumstances, the approval of setbacks (retiros) or distances in water protection areas (áreas de protección hídrica). This requirement was duly fulfilled by the developer, allowing the Administration, following a comprehensive analysis and in conformity with the applicable legal framework (bloque de legalidad), to issue the definitive administrative act: Resolution N.º 0591-2022-SETENA, by which the environmental viability was granted. In conclusion, no administrative act issued by Nombre03 authorizes distances shorter than those mandatorily prescribed by the Ley Forestal, and therefore the appellant's allegation is legally inadmissible, as it is directed against an act that does not produce the harmful effects attributed to it.
Second Allegation: "The appellant states that, by way of a ruling by the Sala at 15:46 hours on November 13, 2025, the constitutional challenge case no. 25-033926-0007-CO was admitted, filed against specific provisions that form the regulatory framework of the Proyecto Turístico Golfo de Papagayo. The appellant alleges that, in particular, the action challenges: (i) Article 74 of the Ley sobre la Zona Marítimo Terrestre (Ley N° 6043) and Article 93 of its Regulations (Decreto Ejecutivo N° 7841-P), which establish the exceptional regime of continuous administration by the ICT over Bahía Culebra; (ii) Article 1, final paragraph, of Ley N° 6370 and Articles 2 and 12 of Ley N° 6758, which declare the project to be of public utility and expand the powers of the ICT to authorize works and grant concessions within the expropriated area; (iii) Articles 1 and 2 of Decreto Ejecutivo N° 33132-MP-T, which declare the project to be of national convenience and order its institutional support; and (iv) Article 5.1, paragraphs i) and j), of ICT Regulation N° 4572 (Plan Maestro General), which establishes development guidelines, densities, and environmental conditions within the concession area.
The appellant points out that, by way of Resolution No. 0215-2026-SETENA, that entity suspended the processing of two nullity challenges (incidentes de nulidad) raised in administrative file No. D1-0170-2021, on the basis of what was decided by the Sala Constitucional in the aforementioned ruling. However, the appellant accuses that it omitted any precautionary measure (medida cautelar) and instead states: 'It is reiterated that the foregoing does not prevent a determination that the Environmental Viability License granted to the project remains in force.'" Response to the Second Allegation: On March 26, 2025, a nullity challenge against Resolution 0591-2022-Nombre03 of 10 hours and 11 minutes of April 6, 2025, which granted the Environmental Viability to the project, was received by this Secretariat under sequence number 03073-2025. On November 11, 2025, through Resolution No. 1695-2025-Nombre03 of 11 hours and 17 minutes of November 10, 2025, the filed nullity challenge was decided, declaring it without merit (sin lugar) and rejecting the request for a precautionary measure.
Said resolution was notified on November 14, 2025. Following the analysis of the effects arising from the admission of the constitutional challenge under case file No. 25-033926-0007-CO, and with two motions for reconsideration (recursos de revocatoria) and appeals against the resolution that denied the nullity of the act still pending, this Secretariat issued Resolution N° 0215-2026-SETENA. In said act, the suspension of the administrative appeal procedure against Resolution No. 1695-2025-SETENA was ordered, by virtue of the existing constitutional prejudiciality (prejudicialidad constitucional). This measure is based on the fact that the final decision to be adopted by the Sala Constitucional regarding the challenged provisions is decisive for resolving the merits of the appeals. The constitutional ruling will definitively establish the applicable parameters for the evaluated area, the permitted use percentage, and the conditions under which any modification to the project would be permissible, thereby ensuring respect for the principle of legal certainty and avoiding contradictory decisions.
The statement that the Environmental License (Licencia Ambiental) is a final administrative act corresponds to the reality of the acts issued and appearing in the administrative file, as has been extensively explained.
The aforementioned resolution expressly stated at the end of Considerando TERCERO the following:
(…) It should be noted that, although the review of the administrative appeals filed is being suspended, as indicated in the ruling issued by the Sala Constitucional, the effects of said provisions remain in force, and accordingly, the Environmental Viability License remains in force.
Within the scope of SETENA's powers, the Environmental Viability must be understood as a predictive instrument (arts. 17, 34 and 83 of the Ley Orgánica del Ambiente). This technical ruling certifies that the developer's proposal is compatible with the environmental setting; however, it does not in itself authorize the execution of the works. As it is not a final construction or operating permit, the interested party must resort to the corresponding administrative channels to complete its enabling process. Under this scenario, it is the final sectoral authorities —and not SETENA— that are called upon to weigh the effects of the constitutional challenge on the granting of their own permits.
(…) The Environmental Viability remains as a final and valid administrative act, given that the suspension of appeals due to constitutional prejudiciality does not nullify its current effects. As a predictive instrument, its finality does not authorize immediate execution, such that, with respect to the constitutional challenge, the sectoral authorities responsible for granting the final permits must analyze the effects of the constitutional challenge themselves.
Third Allegation: "The appellant alleges that, through memorandum N° CARTA-BD-DT-DEA-0109-2026, the environmental log (bitácora ambiental) was opened as part of the process of initiating works, and that on April 15, 2026, the presence of machinery at the site was confirmed." Response to the Third Allegation: As explained above, when Environmental Viability is granted to activities, works, or projects subject to the environmental impact assessment process, the resolution orders compliance with the submission of Environmental Monitoring and Compliance Instruments (Instrumentos de Control y Seguimiento Ambiental, ICOS), whose mandatory nature is determined according to the nature and risk of the project. These mandatory compliance mechanisms include:
• Environmental Compliance Bond (Garantía de Cumplimiento Ambiental): A financial security deposit designed to ensure the implementation of prevention, mitigation, or compensation measures.
• Appointment of the Environmental Officer (Responsable Ambiental): A duly accredited professional who acts as a technical liaison and is responsible for implementing the management plans.
• Activation of the Environmental Log (Bitácora Ambiental): A legal and technical instrument in which the occurrences and progress of environmental measures are recorded chronologically.
• Environmental Responsibility Reports (Informes de Responsabilidad Ambiental, IRA): Periodic reports that must be submitted by the developer and its environmental officer to this Secretariat, with the frequency and technical requirements established in the administrative resolution that granted the license.
The activation of the environmental log does not constitute a final or enabling administrative act for the execution of works, but rather takes the form of a procedural or intermediate act with internal effects. Its procedural function is to certify formal compliance with the submission of the ICOS, for purposes of monitoring and oversight. Legally, its relevance lies in the interruption of the validity period of the Environmental Viability (VA), as it formally marks the commencement of the environmental management stage. Therefore, this act ensures the license's validity over time, without this implying substantive authorization to begin physical activities, which depend on subsequent sectoral permits.
As stated in memorandum CARTA-BD-DT-DEA-0109-2026, the digital environmental log is activated, and it is noted that:
"The developer and environmental officer are advised that the activation of the Environmental Log and compliance with the ICOS marks the beginning of the environmental management stage before SETENA; however, to initiate the construction stage, final permits from the competent institutions must be obtained, and once these are in hand, the commencement of works must be notified to the Environmental Auditing and Monitoring Department (Departamento de Auditoría y Seguimiento Ambiental). Furthermore, once the log is activated, Environmental Responsibility Reports (IRA) must be submitted in accordance with the established frequency, even in cases where works have not yet commenced." Given that the activation of the Environmental Log represents only the commencement of the environmental management stage, and that, in addition, to initiate the construction stage, final permits from the competent institutions must be obtained, and once these are in hand, the commencement of works must be notified to the Environmental Auditing and Monitoring Department. In this case, SETENA has not been informed, as of this date, of the commencement of any construction activity on the project.
Through memorandum CARTA-DAJ-MINAE-747-2026, regarding the inquiry into the possibility of activating the Environmental Log for D1-170-2021, it is clarified that:
(…) In light of the foregoing, taking into account what was ordered by the Sala Constitucional, given that the execution and operation of the project with file No. D1-170-2021, it is clear that the Ley de la Jurisdicción Constitucional provides that final acts may not be issued; the activation of the environmental log is not a final act; however, there is a pending appeal stage against the decision in Resolution No. 1695-2025-SETENA, which declared the nullity challenge without merit, rejecting the request for a precautionary measure against Resolution No. 591-2022-Nombre03 of 10 hours 11 minutes of April 6, 2022, which granted the Environmental Viability License to the project; therefore, in principle, the activation of the environmental log may proceed, since the Environmental Viability is a final and binding act. (…)
Fourth Allegation: "The appellant also accuses that, notwithstanding the aforementioned constitutional challenge, through Resolution No. SINAC-ACT-OSRSCC-052-2026 of April 9, 2026, which is known to the officials as evidenced by the corresponding file, a felling permit (permiso de corta) for 3,656 trees within the project area has been granted, citing as grounds for the resolution, in Considerando Noveno, Decreto Ejecutivo N° 4572, Reglamento Plan Maestro General del Proyecto Turístico Golfo de Papagayo, which has been challenged in the respective constitutional challenge, thereby implying the suspension of the granting of final administrative acts, such as the aforementioned permit. The appellant states that the plan to commence forest clearing, as indicated in the request submitted to SINAC, sets February 2026 as the start date, confirming the developer's urgency to begin works, which has been verified on-site by the presence of machinery. For the foregoing reasons, the appellant requests the intervention of the Sala in the present appeal." Response to the Allegation: The matters stated do not correspond to material actions generated by SETENA.
Conclusions: Based on the technical and regulatory background set forth above, this representation concludes:
1. The "Bahía Papagayo" project underwent the most rigorous evaluation process in the Costa Rican legal system (Environmental Impact Study, Estudio de Impacto Ambiental, EsIA). The Environmental Viability (Resolution N.º 0591-2022-SETENA) was granted after verifying exhaustive compliance with all applicable technical and legal requirements, ensuring the identification and prevention of environmental impacts.
2. It is emphatically clarified that the Environmental Viability is a preparatory and intermediate act. It does not, in any case, constitute an authorization for immediate execution or a construction permit. Its legal effect is subject to the obtaining of final permits before other competent authorities, which hold ultimate jurisdiction over intervention in watercourses or timber harvesting, such that the obtaining of the Environmental License does not enable immediate execution. Its finality certifies technical viability from an environmental perspective, but does not exempt the developer from the obligation to obtain final permits from the sectoral authorities in order to carry out the project.
3. Respect for Protection Areas: it is false that this Secretariat has authorized the reduction of water protection areas. In strict adherence to the Principle of Legality, Nombre03 lacks the competence to modify the setbacks established by law. The challenged resolution includes an express warning clause obligating the developer to comply with the legislation in force regarding protection zones at the time of execution.
4. The Polo Turístico Golfo de Papagayo enjoys a regime of National Convenience and an exceptional legal framework. Under this regulatory scheme and its Plan Maestro, the removal of vegetation cover of up to 30% of the concession area is lawful, with the remaining 70% designated for conservation.
5. Through the analysis using Geographic Information Systems (GIS) and official SNIT data layers, it was established that the site design respects the permitted use limits. Even under the most conservative hypothesis (assuming 100% initial forest cover), the construction footprint falls within the legal range (between 22% and 30% depending on the plot), thus complying with the specific regulations of this sustainable tourism development hub.
6. The Environmental Viability (Resolution N.º 0591-2022-SETENA) is a final and valid administrative act. The rejected absolute nullity challenge, the filing of the constitutional challenge, and the subsequent suspension of the appeal procedure due to constitutional prejudiciality do not per se nullify the current effects of the granted license, which maintains its presumption of legality.
7. Through Resolution N.º 0215-2026-SETENA, the Secretariat acted diligently by suspending the review of the motions for reconsideration and appeals against the rejection of the nullity. This measure guarantees legal certainty, conditioning the resolution of the merits on what the Sala Constitucional decides in case file No. 25-033926-0007-CO, thereby avoiding potentially contradictory decisions. It falls exclusively to the sectoral authorities (those responsible for granting construction or use permits) to weigh the effects of the constitutional challenge on their own final acts. Nombre03 has fulfilled its duty of notice and transparency, stating that environmental viability does not constitute an authorization for the execution of works if supervening legal or constitutional impediments exist.
8. The opening of the environmental log (Memorandum N° CARTA-BD-DT-DEA-0109-2026) is a procedural and intermediate act, strictly for monitoring and oversight before SETENA. Its purpose is not to authorize the commencement of physical works, but to certify that the developer has complied with the Environmental Monitoring and Compliance Instruments (ICOS), such as the compliance bond and the appointment of technical officers. It does not constitute substantive authorization for the physical intervention of the land, which remains subject to the final permits of the sectoral authorities. In the same act of activating the environmental log, Nombre03 incorporated a binding warning to the developer, indicating that the commencement of the construction stage mandatorily requires the final permits from other institutions. To date, this Secretariat has not received the formal notification of commencement of works that is required by regulation once said permits have been obtained.
9. In accordance with the opinion of the Legal Advisory Department (CARTA-DAJ-MINAE-747-2026), the activation of the environmental log does not violate what was ordered by the Sala Constitucional.
Given that the Ley de la Jurisdicción Constitucional prohibits issuing final acts (actos finales) in suspended proceedings, and given that the environmental logbook (bitácora) is a procedural act (acto de trámite) and the Environmental Viability (Viabilidad Ambiental) had already become final and binding, its opening is a valid administrative act (acto administrativo) that is in conformity with the law.
Article 34, second paragraph, of the Law of Constitutional Jurisdiction (Ley NRO. 7135) categorically sets forth the right of third-party procedural intervention (intervención procesal) in the following terms: '(...) Furthermore, any person having a legitimate interest in the outcome of the appeal may appear and intervene therein as a co-intervenor (coadyuvante) on behalf of the petitioner or the respondent.' This legal provision provides the indisputable legal basis for the formal appearance (apersonamiento) of the Instituto Costarricense de Turismo (ICT) in the present proceedings.
As this Honorable Constitutional Tribunal has consistently recognized, intervenorship in the writ of amparo (recurso de amparo) is a form of adhesive intervention designed to grant formal participation to those parties who, while not constituting appellants or primary respondent authorities, hold a legitimate, direct, and legally protected interest in the outcome of the constitutional litigation. In the present case, this representation fully satisfies the normative requirement set forth in the aforementioned Article 34. The legislature, through Ley NRO. 6758 (Regulatory Law for the Development and Execution of the Papagayo Tourism Pole Project), delegated exclusively to the ICT the competencies of administration, oversight, execution, and promotion of said Tourism Pole (Polo Turístico), explicitly classifying it as a project of national interest. Since the writ of amparo filed by Mr. Nombre01 seeks the suspension or annulment of planning and environmental viability acts issued by MINAE within the framework of the Tourism Pole, it is unquestionable that any judgment rendered will bear directly on the sphere of public competencies and institutional purposes entrusted to the ICT.
The interest of this Institute is not merely abstract or one of mere legality, but rather a legitimate, current, and direct interest in the preservation and defense of the sustainable development model and legal certainty governing the zone under our administration. Consequently, we are fully authorized to intervene as passive intervenors in support of the respondent authorities.
PRELIMINARY MATTERS: HISTORICAL AND LEGAL BACKGROUND OF THE GOLFO DE PAPAGAYO TOURISM PROJECT The coastal zones of our country have always been subject to legislative regulation, with very significant changes over time. Thus, through the Water Law, N° 276 of August 27, 1942, the legislature determined beaches and the maritime zone to be national property (article 3, subsection l), the latter being understood as 'the stretch of the Republic's coastlines washed by the sea at its ebb and flow, and the adjacent lands up to a distance of one mile, or one thousand six hundred and seventy-two meters, measured from the line marking the high-water mark. This maritime zone also extends along the margins of rivers up to the point where they are navigable or where tides are perceptible, with a width of two hundred meters from each bank, measured from the high-water mark line.' Subsequently, through the Land and Settlement Law (ITCO INDER), Ley 2825, of October 14, 1961, the aforementioned maritime mile was reduced to the currently known 200 meters, thus rendering the 'maritime-terrestrial zone (zona marítimo terrestre)' inalienable lands in the public domain (dominio público): 'Article 7.- While the State, of its own accord or at the indication of the Ministry of Agriculture or the Land and Settlement Institute, taking into account reasons of national convenience, does not determine which lands must remain under its domain, the following shall be considered inalienable and not susceptible to acquisition by claim or possession, except for those already under private domain with legitimate title: (...) b)1 Those comprised within a maritime-terrestrial zone two hundred meters wide along the coasts of both seas, measured from the ordinary high-water mark (pleamar ordinaria), as well as those comprised within a zone fifty meters wide along both banks of navigable rivers;' Subsequently, with the Tourist Urbanization of the Maritime-Terrestrial Zone Law, Ley 4558, of April 22, 1970, a significant portion of the public domain within the maritime-terrestrial zone was effectively removed from public-domain status (desafectada del dominio público), leaving only the fifty-meter strip from the ordinary high-water mark with public-domain character (carácter demanial) (article 6), today referred to as the public zone (zona pública).
The other 150 contiguous meters were declared susceptible to acquisition by two means: the first by sale where there had been a lease agreement of more than 10 years, and the second by possession for more than 30 years in a continuous, peaceful, public manner and under claim of ownership, counting the duration of any lease toward that period (Transitorio III). Thus, private properties reduced to private domain exist within the ZMT. However, this Transitorio III remained in force for only a brief period (from April 22, 1970 to October 4, 1971), as it was repealed by Ley 4847 of October 4, 1971, entitled 'Amendment to the Maritime-Terrestrial Zone Urbanization Law (Transitorio III)².' As regards the regulatory background, the first step was taken through Ley N° 5847 of November 18, 1975, which approved the Loan Agreement entered into between the Instituto Costarricense de Turismo and the Central American Bank for Economic Integration (BCIE), with the purpose of financing the preparation of a techno-economic feasibility study and the development of a master plan for the Bahía de Culebra Tourism Project.
Article 3° of that law provided that the project arising from that feasibility study would be carried out by the Costa Rican State in accordance with the special law to be enacted for that purpose. From a factual standpoint, the decision to establish the Tourism Pole at Bahía Culebra was based on regional technical studies promoted by BCIE in the 1960s and 1970s, which identified this zone as having high ecological, scenic, and cultural value with potential for international tourism. This empirical basis served as the foundation for the Costa Rican legislature to adopt a series of measures aimed at facilitating the execution of the project under special conditions, including the declaration of public utility (declaratoria de utilidad pública) (Ley NRO. 6370 of 1979), the creation of a differentiated regime of state administration (Ley NRO. 6758 of 1982), and the adoption of a Master Plan approved at ordinary Board of Directors (Junta Directiva) Session No. 4572, Article 2, subsection VIII, held on July 10, 1995.
The exceptional legal regime of the Polo Turístico Golfo Papagayo project is anchored on the express exclusion of municipal jurisdiction over the administration of the ZMT within the delimited area. While Article 3 of Ley NRO. 6043 grants municipalities the authority to administer the restricted zone (zona restringida) and grant concessions in the country's maritime-terrestrial zone, Article 74 establishes a specific exception for the then-named 'Proyecto Bahía Culebra' (today known as the Polo Turístico Golfo Papagayo), attributing that competency to the Instituto Costarricense de Turismo (ICT). This exception has been upheld by various opinions of the Procuraduría General de la República (for example, C-171-93 and C-028-94), which reaffirm that the ICT holds exclusive competencies for the administration, control, and granting of concessions in the zone, without prejudice to residual municipal competencies, such as the issuance of building permits, once projects have been previously approved by the ICT.
From the standpoint of public law, this exceptional regime responds to the principle of reinforced legality (legalidad reforzada) in matters of public domain administration and is inscribed in the logic of special regimes permitted by Article 121, subsection 14, of the Constitución Política. The law precisely regulates the competencies, limits, and conditions under which concessions are granted, imposing a more rigorous standard than that provided for other coastal zones of the country. Thus, for example, the ICT may grant concessions only through public tenders, after prior technical and legal analysis, and on the basis of consistency with the Master Plan, which serves as a binding planning instrument. At the administrative level, the exceptional regime includes a Project Executing Office attached to the ICT, which, with maximum functional deconcentration (desconcentración funcional), enables more efficient technical and operational management. The Directing Council (Consejo Director), composed of representatives from the public and private sectors, holds competencies for direction, oversight, and recommendation, constituting a mixed governance model uncommon in Costa Rican public administration. This reinforces the planned and controlled nature of tourism development, aligned with the principle of administrative efficiency and the general interest pursued by the project.
From an environmental and territorial perspective, the project is also subject to regulatory restrictions limiting population density, building height, lighting intensity, and the location of electrical infrastructure, and prohibiting polluting practices such as the use of septic tanks. These limitations, it bears repeating, do not exist in other tourism projects carried out in other coastal zones of the country, and they respond to the need to protect the area's natural and scenic resources, in keeping with the environmental law principles enshrined in Articles 50 and 89 of the Constitución Política. Likewise, Executive Decree NRO. 32051-MINAE of 2005 declares the development of environmental research and education projects in the zone to be of priority interest, evidencing the sustainable development approach that inspires the regime. The declaration of national convenience (conveniencia nacional) for the project (Decreto Ejecutivo NRO. 33132 of 2005) further reinforces its position within state public policies, by considering it a priority for economic development, job creation, and the attraction of foreign direct investment.
This declaration is grounded in Ley Forestal NRO. 7575, Article 3, which defines activities of national convenience as those whose social benefit outweighs their environmental cost, a condition that must be demonstrated through the corresponding technical instruments.
The historical evolution of the Polo Turístico Golfo Papagayo (hereinafter PTGP), known in its origins as 'Bahía Culebra', began with Ley N° 5847 of November 18, 1975, through which the Loan Agreement entered into between the Instituto Costarricense de Turismo and the Central American Bank for Economic Integration was approved, with the purpose of financing the preparation of a techno-economic feasibility study and the development of a master plan for the Bahía de Culebra Tourism Project. Article 3° of that law provided: 'ARTICLE 3.- The tourism development project of Bahía Culebra, arising from this feasibility study, shall be carried out by the Costa Rican State, in accordance with the special law that the Legislative Assembly must enact for that purpose.' From the legislative records of Ley 6043-ZMT, the following text is extracted: 'Majority opinion: "The present bill seeks to grant the ICT the powers that, by virtue of its organic law, correspond to it with respect to the direction, administration, and execution of tourism development projects that are largely intended to be carried out in the maritime-terrestrial zones and insular territories regulated by this bill." (p. 61, administrative file (expediente administrativo))' By March 2, 1977, with the enactment of Ley 6043, the Law on the Maritime-Terrestrial Zone, the legal regime of the maritime-terrestrial zone—as well as that of islands—was definitively regulated as it remains to this day, and the Integral Development Project of Bahía Culebra was declared an area placed under the exclusive administration of the ICT.
It is therefore through Ley 6043 that the Polo Turístico Golfo Papagayo was born, then named the 'Integral Development Project of Bahía Culebra,' and classified as a 'special case.' 'Special Cases Article 74.- Regarding the Integral Development Project of Bahía Culebra, whose coastline is bounded to the north at the point on the Lambert Costa Rica Grid (cuadrícula Lambert Costa Rica) at latitude 2/94 and longitude 3/53, extending to the point at latitude 2/84 and longitude 3/50—that is, from Punta Cabuyal to Punta Cacique—the affected areas shall be placed under the direct administration of the Instituto Costarricense de Turismo. The regulations governing this development shall be formulated by the Executive Branch, after prior consultation with said Institute. All of the foregoing without prejudice to the usufruct and fees (usufructo y cánones) corresponding to the respective municipalities under this law.' On December 16, 1977, through Executive Decree 7841-P, the Regulations to Ley 6043, the aforementioned Article 74 was regulated:
'Special Provisions Article 93.- In accordance with Article 74 of the Law, the maritime-terrestrial zone included in the Integral Development Project of Bahía Culebra, from Punta Cabuyal to Punta Cacique, is placed under the direct administration of the ICT. Concessions in that area shall be granted by said institute; applications shall be submitted to it and processed in accordance with the procedure set forth in these regulations, to the extent applicable. The ICT shall grant such concessions only when they conform to the Integral Development Plan or do not interfere with it. Once a concession has been granted, the Institute shall notify the respective municipality so that it may collect the corresponding fee. In all other respects, the provisions of the Law and the regulations shall govern this zone, without prejudice to any special rules that may be issued.' With Ley 6370, the Law Declaring the Polo Turístico Golfo Papagayo a Public Utility, of August 20, 1979, the boundaries established in 1977 under Ley 6043 were redefined, and the ICT was authorized to acquire the real estate properties that, in its judgment, are necessary for the development of the tourism project: 'Article 1°.- The real estate properties—whether complete parcels, portions, rights, or legitimate patrimonial interests—that by virtue of their location are necessary for the execution and implementation of the tourism project in Bahía Culebra, in the province of Guanacaste, are hereby declared to be of public utility.
This project, based on the Lambert Costa Rica Grid of map sheet 3047.1 Carrillo Norte, Costa Rica 1:50,000 (prepared by the Instituto Geográfico Nacional), shall be located between the following coordinates: 2.94 North with 3.50 East and 2.94 North with 3.62 East, as the northern boundary; 2.85 North with 3.50 East and 2.85 North with 3.54 East, 2.84 North with 3.54 East, and 2.84 North with 3.62 East, as the southern boundary; 2.94 North with 3.62 East and 2.84 North with 3.62 East, as the eastern boundary; and 2.94 North with 3.50 East and 2.85 North with 3.50 East, 2.85 North with 3.54 East, and 2.84 North with 3.54 East, as the western boundary. This territorial portion encompasses the maritime zone of the Pacific coast, located from Punta Cabuya to the north, to one kilometer south of Punta Ballena.
Article 2°.- The Instituto Costarricense de Turismo is hereby authorized to acquire directly, without the need for a public tender process, but subject to the countersignature of the Contraloría General de la República, the real estate properties within the zone described in Article 1° of this law that, in its judgment, are necessary for the development of the project.
Article 6°.- Persons who, upon the entry into force of this law, can demonstrate that they are occupying real estate within the inalienable zone of Playa Panamá shall be compensated in accordance with the same criteria set forth in the preceding article. Such occupation must have been exercised continuously for the previous ten years, in a peaceful and public manner; interested parties may invoke in their favor the occupation exercised by their transferors and predecessors. Proof of occupation under the foregoing conditions shall be made through a proceeding conducted by the Instituto Costarricense de Turismo, which shall be responsible for approving or disapproving it, without prejudice to the right of appeal that interested parties may file before one of the administrative-contentious courts, whose decision shall be final.
Article 9°.- Within eight years of the publication of this law, all administrative proceedings relating to the acquisition by mutual consent of the real estate and rights referred to in Article 1° must be concluded and, where applicable, the corresponding expropriation decree published. In the absence of such legal acts, the properties and possessory rights shall automatically be released from the declaration of public utility, and their respective owners shall recover full exercise of all attributes of ownership over those properties and rights.
Article 10°.- Once the lands referred to in this law have been acquired, they may only be used by the Costa Rican State for the tourism development project in Bahía Culebra, in accordance with the special law that the Legislative Assembly must enact for that purpose in fulfillment of Article 3° of Ley N° 5847 of November 18, 1975.' Finally, with Ley N° 6758 of May 6, 1982, published in the Official Gazette La Gaceta N° 122 of June 25, 1982, the Regulatory Law for the Development and Execution of the PTGP, it was provided: 'Article 2.- In the area designated for the development of this project, only those works set forth in the Master Plan approved by the Instituto Costarricense de Turismo, and all works consistent therewith, may be carried out, in accordance with the provisions of this law and the technical standards issued by said Institute.
Article 12.- The Board of Directors of the Instituto Costarricense de Turismo may grant concessions over the use of the project's lands within the zone designated for that purpose, in accordance with the terms and conditions established by the Institute, and in accordance with the provisions of Article 1073 of the Law on Public Financial Administration.' Following the enactment of the aforementioned legislation, the ICT, in collaboration with the relevant authorities—the State Notary's Office, MOPT, the Contraloría General de la República, among others—carried out the expropriation proceedings to incorporate private properties and to compensate certain possessors, with the PTGP being constituted by the following areas (Article 2, subsection i, second paragraph, of the Regulations to Ley 6758, Regulatory Law for the Development and Execution of the PTGP): '(...) This territorial portion encompasses those areas that have been acquired by the ICT for the development of the project, including the inalienable public zone of fifty meters, the restricted zone of one hundred and fifty meters, and the continental zone, the latter understood as the area located inland, beyond the two hundred meters of the maritime-terrestrial zone of the Pacific coast.
The Polo Turístico Golfo Papagayo is located from Punta Cabuyal to the north, to one kilometer south of Punta Ballena, with the coordinates of Ley 6370 taking precedence, and it also encompasses the area permanently covered by the sea within those coordinates, designated for the construction, administration, and operation of marinas and tourist moorings within the Polo Turístico Golfo de Papagayo, as provided by the Law on the Concession and Operation of Tourist Marinas and Moorings, Ley N° 7744 of December 19, 1997 and its amendments, published in the Official Gazette La Gaceta N° 26 of February 6, 1998.' It should be clarified that not all areas within the coordinates of Ley 6370 form part of the sectors administered exclusively by the ICT, since not everything was expropriated. Nevertheless, from the various expropriation files, it can be identified that the majority of the lots were described as 'pastureland,' 'agricultural land,' or 'scrubland.' As an example, in the case of the expropriation of the area that today lies within what is known as Lot 1 (plan G-52763-2023, 2168-Z-000) and Lot 3 (plan G-43129-2022, 2169-Z-000), both concession rights of ENJOY HOTELS & RESORTS S.A., the acquisition was made through the expropriation of Mr.
Nombre08's property, based on the plan, with the nature described as 'PASTURELAND — MIXED GRASS VARIETIES,' as it remains registered today in the National Registry under the title number in the name of the ICT. It should be noted that even the boundary descriptions still make reference to the 'maritime mile.' On February 9, 2005, through Decree 33132-MP-T, 'Declaring the development and execution of the Polo Turístico Golfo de Papagayo to be of national convenience,' the following was provided: 'Article 1°.- The development and execution of the Polo Turístico Golfo de Papagayo, under the administration of the Instituto Costarricense de Turismo, located in the cantons of Liberia and Carrillo in the province of Guanacaste, is hereby declared to be of national convenience. Article 2°.- For the optimal development of this Project, all branches of the Government, ministries, and public institutions are urged to provide all possible assistance and cooperation within the scope of their material capabilities and their respective competencies.' The Polo Turístico Golfo de Papagayo thus constitutes a paradigmatic case in Costa Rican administrative law, having been consolidated as a strategic national project developed under an exceptional legal regime.
This special framework, granted by the legal system, is justified not only by reasons of economic convenience, but also by reasons of planning, sustainability, and state control. Its creation and execution are grounded in a series of legislative and administrative acts that, in a systematic manner, establish a differentiated regulatory framework distinct from the common regime of the Zona Marítimo Terrestre (ZMT) governed by Ley NRO. 6043.
From the standpoint of substantive legal analysis, the regime of the Proyecto Golfo Papagayo presents a reasoned and proportionate exception within the Costa Rican constitutional framework, in that it does not nullify the common rules but modulates them for a specific case, ensuring greater state intervention, technical control, and environmental protection. It is an example of how a special regime can coexist with common law, provided it has legal backing, a legitimate purpose, and control mechanisms that guarantee adherence to the public interest.
From the standpoint of legal certainty, the project has a robust and systematized regulatory framework, composed of laws, regulations, decrees, and administrative acts, that articulate a coherent legal structure for its development. This legal structure provides certainty both to the State and to potential investors regarding the rights, duties, and conditions for participating in the project. At the same time, it ensures protection of the State's natural heritage and the principles of sustainability, planning, and legality.
ON THE WRIT OF AMPARO FILED On the inadmissibility of extending suspensive or invalidating effects of general scope to the present amparo with respect to administrative acts issued within the Polo Turístico Golfo de Papagayo The argument proceeds from a legally untenable premise: the assumption that, by the mere fact of having filed this amparo and of the existence of an action of unconstitutionality (acción de inconstitucionalidad) related to certain rules of the legal regime of the Polo Turístico Golfo de Papagayo, every administrative act within the scope of the project automatically becomes ineffective, illegitimate, or constitutionally invalid. Such reasoning cannot be accepted.
The petitioner conflates, within a single argument, statutory and regulatory provisions challenged in constitutional proceedings, administrative-law legal opinions, acts within the environmental assessment (evaluación ambiental) procedure, acts of technical execution, and a specific logging permit (permiso de corta); yet does not demonstrate, directly, presently, and on an individualized basis, how each of those elements itself constitutes a certain, immediate, and specifically attributable constitutional violation against each authority involved. In reality, the appeal seeks to transform a complex, eminently technical and administrative controversy into a manifest constitutional violation, even though the very facts put forward by the petitioner refer to disputes over forest cover (cobertura boscosa), land classification, the delimitation of protection areas, the interpretation of the PTGP's special regime, the evaluation of administrative files, and the scope of technical and legal opinions issued by various administrative bodies.
This procedural approach is particularly inadmissible with respect to the Instituto Costarricense de Turismo, given that the ICT does not even appear as a respondent authority in the admission order, although it does hold a legitimate, current, and direct interest in the outcome of the proceedings, since an eventual ruling based on expansive or imprecise premises would immediately affect the exercise of the special legal competencies that the legal system has conferred upon the ICT for the administration, planning, and execution of the Polo Turístico Golfo de Papagayo.
The existence of an action of unconstitutionality against certain provisions of the project's special regime does not authorize, without more, the disqualification of any administrative act connected to the PTGP. For that inference to be legally sustainable, the petitioner would have to demonstrate that the specific act being challenged depends in a necessary, exclusive, and inseverable manner on a suspended or directly challenged provision—an element that is not clearly established in this case. On the contrary, the factual framework presented itself reveals that the petitioner constructs a chain of inferences and general conclusions based on technical documents and administrative opinions whose assessment exceeds the summary scope of the amparo proceeding, especially given the existence of specialized actions by SETENA, SINAC, and other competent bodies, issued within their own administrative files and under their respective technical and regulatory parameters.
It is therefore not appropriate, in these proceedings and by mere assertion of a party, to consider it established that there is forest throughout the entire intervened area, that a constitutionally unlawful land-use change (cambio de uso del suelo) occurred, that protection zones were unlawfully reduced, or that derivative nullity (nulidad refleja) attaches to all acts issued under the project's special regime. Such matters require rigorous, individualized proof, which this appeal does not provide. On the contrary, what is evident is an attempt to obtain, through the amparo, a general suspension of the project's development and of the associated administrative acts, based on an expansive reading of the constitutional dispute and a presumption of illegality that disregards both the presumption of legitimacy of administrative acts and the existence of specialized sectoral proceedings already processed by the competent authorities.
Inadmissibility of the writ of amparo as formulated The appeal as filed does not describe a simple, direct, immediate, and manifest constitutional violation. On the contrary, and according to the admission order itself, the petitioner bases the argument on a concatenation of documents, opinions, cartographic layers, inspection reports, actions from administrative file D1-0170-2021-SETENA, subsequent administrative resolutions, and an independent action of unconstitutionality—all in order to assert that an unlawful land-use change occurred, that forest was affected, that protection zones were unlawfully reduced, and that a logging permit was improperly granted.
That type of construction reveals a complex and highly technical controversy, one that depends on the interpretation and comparison of administrative files, specialized studies, vegetation cover classifications, sectoral legal opinions, and technical determinations specific to the competent authorities. Consequently, this is not a case in which a constitutional violation arises in an evident and self-evidencing manner from the facts presented; rather, it is an administrative and technical dispute that the petitioner seeks to convert into a manifest constitutional grievance without satisfying that argumentative burden. This converts the matter into one of legality.
Furthermore, the appeal conflates distinct levels of constitutional review. The action of unconstitutionality already admitted against certain provisions of the PTGP framework is one thing; the examination of specific administrative acts within the present amparo is quite another. It is not legally admissible to use the amparo to anticipate, extend, or generalize the potential effects of that action to all administrative acts, contracts, permits, technical instruments, and decisions adopted within the project. The appropriate course of action is to pursue the matter through the legality proceedings or to include the relevant acts in the filed actions of unconstitutionality." Inadmissibility of Extending General Suspensive Effects One of the central pillars of the appeal consists of the assertion that, because a constitutional challenge (acción de inconstitucionalidad) numbered Telf01 was admitted against certain rules linked to the PTGP, this implies the suspension of the issuance of final administrative acts, such as the tree-felling permit (permiso de corta) granted by SINAC.
That assertion cannot be accepted in the absolute terms in which it has been framed. The very summons (emplazamiento) itself does not indicate that the Constitutional Chamber ordered a general, indiscriminate, and sweeping suspension of all administrative acts related to the project, nor that it ordered the total halt of every sectoral action taken by the competent authorities within the area. On the contrary, the appellant's own account acknowledges that resolution nro. 0215-2026-mbre03 d ordered the suspension of the nullity motions (incidentes de nulidad), but expressly kept the environmental viability license (licencia de viabilidad ambiental) in full force. This demonstrates that not even at the administrative level can a thesis of automatic and universal inefficacy of all acts related to the project be sustained. Nor is it legally correct to argue that the mere existence of a constitutional challenge renders any subsequent administrative act automatically invalid or suspended by extension.
For that conclusion to even be open to discussion, it would be essential to demonstrate that the specific challenged act depends necessarily, exclusively, and inextricably on a suspended or directly inapplicable rule; however, the appellant does not develop that demonstration, but merely asserts a generic relationship between the tree-felling permit and the Master Plan Regulations (Reglamento del Plan Maestro), disregarding the fact that forestry and environmental acts are also grounded in specific sectoral competencies and their own technical rules.
Forest (bosque), Pastureland (potrero), Land-Use Change (cambio de uso del suelo), and Protection Zones (zonas de protección) The appellant argues that the project is being developed on State-owned land where there is forest that must be protected, that mbre03 h would have allowed a reduction of the protection areas along watercourses, and that there is an illegitimate land-use classification supported by a legal opinion (criterio jurídico) from MINAE. However, the very manner in which the appellant sets out its grievances reveals that it is not describing undisputed facts, but rather drawing conclusions from documents whose interpretation is contested. This is precisely what occurs when it invokes the georeferencing (georreferenciación) section of resolution 0591-2022-SETENA, official memorandum (oficio) SETENA-SG-0646-2025, legal opinion DAJ-MINAE-1591-2025, and report (informe) INF-TEC-DT-ASA-0324-2025, to infer from them that the entire project area, or the majority of it, must be treated outright as forest forming part of the State natural heritage (bosque patrimonio natural del Estado) and that any intervention amounts to a constitutionally prohibited land-use change.
That conclusion does not follow automatically from the cited documents. References to forest cover (cobertura boscosa), official geographic data layers, or general soil-type classifications do not substitute for the specific technical and legal determination required in each sectoral procedure, nor do they by themselves convert the entirety of a parcel into forest for all possible legal purposes. Likewise, the fact that mbre03 h requested SINAC's opinion on the existence of forests and wetlands (humedales) demonstrates precisely that these are matters subject to specialized technical verification and not notorious or uncontroverted facts. Furthermore, it must be noted that, according to the brief submitted by MINAE, the forestry permit was granted with respect to trees inventoried in pastureland, not forest, and on the basis of the forestry and technical regulations applicable to the harvesting (aprovechamiento) authorized by the State Forest Authority (Autoridad Forestal del Estado).
This point directly contradicts the appellant's narrative, which seeks to treat as established—without the proper individualized technical analysis of the challenged act—a uniform forested condition and a presumed environmental harm that do not emerge as established facts from the summons itself. With respect to the alleged reduction of protection zones, the appellant cites a response-to-notice document submitted by the project developer, in which certain distances are recorded as mitigation measures. Nevertheless, this alone does not establish that the Administration has waived or abrogated the application of the Ley Forestal, nor that there is an immediate and manifest constitutional violation.
Scope of MINAE's Legal Opinion The appellant attempts to give legal opinion DAJ-MINAE-1591-2025 a scope that is practically constitutive of illegality, claiming that it purportedly endorsed the removal of up to 30% of vegetation cover (cobertura vegetal), including forest, regardless of its nature. Even accepting as true that this legal opinion exists in the terms described by the appellant, this does not automatically make that document an autonomous constitutional violation. An administrative legal opinion does not replace the specific procedures, assessments, and technical authorizations that must be issued by the competent bodies in environmental and forestry matters; even less can it be understood—without a full review of the administrative file (expediente)—as an unrestricted authorization to intervene in any existing cover within the area.
Actions of mbre03 and SINAC The very account contained in the summons reveals that mbre03 n has not remained inactive; rather, it processed the environmental viability file, issued the corresponding resolution, heard nullity motions, requested SINAC's technical opinion regarding forests and wetlands, and then resolved to suspend the processing of those motions in light of the Constitutional Chamber's ruling in the constitutional challenge, while keeping the environmental viability license in full force in the meantime. Far from proving manifest arbitrariness, these facts reveal the existence of an active administrative file involving specialized bodies and decisions adopted within the framework of their respective competencies. The appellant's disagreement with the substance of those decisions or with the interpretation of the technical reports is not sufficient to transform that disagreement into an evident constitutional violation.
With respect to SINAC, the appellant asserts that the tree-felling permit was granted for 3,656 trees—a figure that is clearly invented by the appellant—even with knowledge of the constitutional challenge and of the alleged forest impact. However, MINAE's brief indicates that the permit is grounded in specific technical forestry requirements, applicable sectoral regulations, and the fact that the trees involved were inventoried in pastureland—a circumstance that eliminates the oversimplifying premise that the challenged act constitutes, by definition, an authorization to destroy forest in open violation of the legal order.
Presumption of Legitimacy The appeal's argumentation rests on an improper reversal of the argumentative burden. Instead of demonstrating a specific, current, direct, and attributable constitutional violation tied to specific acts, the appellant starts from a general suspicion about the project, its regulatory framework, and the developer's interest in carrying out the works, and then presumes the illegitimacy of the acts issued by the sectoral authorities. This approach disregards the presumption of legitimacy (presunción de legitimidad), enforceability, and technical correctness of administrative acts issued by competent bodies within formally established procedures. If the appellant believes those acts are tainted for reasons of ordinary legality, administrative technique, or evidentiary assessment, it must demonstrate this with the requisite rigor; a narrative that pieces together disparate documents and converts them collectively into supposed conclusive proof of a constitutional violation is not sufficient.
JURISDICTION OF THE CONSTITUTIONAL CHAMBER IN ENVIRONMENTAL MATTERS As is apparent from the record, what the appellant is actually seeking is for the Constitutional Chamber to conduct an ordinary legality analysis (análisis de legalidad) of the conduct and administrative acts related to the Project in Papagayo—an analysis that exceeds the Chamber's jurisdiction. Long-standing case law has drawn a clear jurisprudential line between constitutional review, which falls within the Chamber's competence, and ordinary legality review, which belongs to administrative bodies and/or the contentious-administrative jurisdiction (jurisdicción contenciosa administrativa). The Chamber has held, among other things, that determining whether a given course of conduct complies with the administrative legal order—even when linked to a healthy and ecologically balanced environment—falls within the domain of ordinary jurisdiction and not the constitutional route.
Similarly, it has defined that constitutional review of cases in which a violation of the right to a healthy and ecologically balanced environment is alleged is conducted only when the Administration has not yet intervened (even in cases where the violation is evident, requiring the appellant to have previously appeared before the relevant institution, since the Chamber holds that it is not a reviewer of administrative conduct); in the contrary case—when the Administration has intervened—the matter must be raised and discussed in the ordinary legality review route (vía de legalidad), so that the alleged non-compliance may be examined and supervised with greater precision. It is also emphasized that the Constitutional Chamber is not a processing body for environmental complaints, since administrative mechanisms exist for that purpose that the appellant must necessarily exhaust first, and may only resort to an amparo proceeding (recurso de amparo) in the absence of a response.
This is because the amparo process was conceived as a summary proceeding (proceso sumario)—brief, simple, and expeditious—and, therefore, the analysis of the Administration's conduct or its acts in contrast to regulatory provisions exceeds the scope of an amparo, since it requires the in-depth review proper to the ordinary legality review route. As a complement to what has been stated thus far regarding the Constitutional Chamber's jurisdiction in environmental matters, the following rulings merit citation:
By means of Ruling No. 08710 – 2024, of April 5, 2024 at 09:20, the Constitutional Chamber set out the summary nature of the amparo proceeding, emphasizing its incompatibility with the review of evidence and the assessment of whether projects or resolutions comply with special regulations, as follows:
"Having clarified the foregoing, it is necessary to recall that the amparo proceeding is of an eminently summary nature, so its processing is incompatible with the conduct of extensive or complex evidentiary procedures, which are better suited to the ordinary jurisdiction. Consequently, with respect to the appellant's arguments in this considerando, it is not within the competence of this Constitutional Court to verify whether, in fact, the condominium project Vistas de Santa Bárbara did or did not meet the technical and legal requirements to obtain the water availability certificate granted, nor to determine whether the aforementioned well BA-777 can or cannot supply the water demand that the users of that condominium would require. Nor is it appropriate for this specialized court to analyze whether the environmental fragility certificate (certificación de fragilidad ambiental) was or was not properly issued.
Such an examination would require conducting extensive and complex evidentiary proceedings, a task that falls instead within the ordinary legality review route and not within this specialized forum. Now, if the appellant sees fit, it may raise the disagreements in question before the very authorities named as respondents or in the ordinary judicial jurisdiction. Therefore, the appeal is dismissed with respect to this grievance (…)" Its position is clear: any analysis requiring regulatory and evidentiary review to determine whether a project or act complies with the applicable technical and legal requirements—and whether permits were properly granted—exceeds the Chamber's jurisdiction, since it is the ordinary legality review route that is responsible for conducting the legality examination and evidentiary review in order to determine whether such non-compliance exists. In the same vein, it further stated:
"Therefore, simple non-compliance with obligations and duties legally imposed on the various public administrations in environmental matters is properly heard in the legality review route—whether administrative or jurisdictional—where, with much greater latitude, the non-compliance or omissions alleged may be scrutinized. It must be borne in mind that the amparo proceeding is a summary, informal, simple, and expeditious process, such that from the very moment the Administration intervenes in an environmental matter, in the exercise of its competencies, and processes a procedure with the issuance of administrative acts, its review falls outside the scope of action of this specialized court. Therefore, the review of administrative actions carried out in connection with an environmental matter that requires, for its proper assessment, a full-knowledge proceeding, is only possible in the ordinary jurisdiction, since the design of the amparo process is incompatible with the comparison or review of technical or legal criteria elaborated under applicable statutory or regulatory rules, or with the gathering of new and additional elements of conviction needed to compare or review the criteria already on record in the administrative file of the case.
The contrary would involve transforming the amparo into an ordinary full-knowledge proceeding, which would distort its nature and render nugatory the purposes for which it was designed, thereby causing it to lose its character as an instrument for the effective protection of fundamental rights. As a consequence of the foregoing, we find that when a public entity or body has intervened, in various forms, or has issued administrative acts in connection with an environmental matter, its review and supervision falls within the contentious-administrative jurisdiction. It is precisely the verification of the existence of that administrative intervention that determines that the matter falls within the competence of the legality review route. Under this understanding, this Court will verify, in relation to the grievances raised, whether in the specific case, in connection with the environmental complaints, there was or was not a violation of the right to prompt and effective justice, limiting itself to conducting only that examination, without making any pronouncement whatsoever regarding the substance of the matter raised, as that belongs to the ordinary jurisdiction." (Constitutional Chamber. Ruling No. 16400 – 2022, of July 15, 2022).
In the same vein, in Resolution No. 22606 – 2022, of September 28, 2022, the Chamber emphasizes that determining whether or not environmental requirements have been met is a matter of ordinary legality, as follows:
"The other group of arguments (4, 7, and 8) must be rejected because they do not identify the specific rule being challenged and, moreover, are arguments of legality and not of constitutionality. Thus, permitting construction without meeting requirements (argument 4) and indicating that those constructions 'could' not harmonize with the environment (argument 7) are matters of legality, and it falls to the ordinary jurisdiction to determine whether those constructions were in fact carried out without meeting requirements or do not 'harmonize' with the environment." The Constitutional Chamber's position is clear and unequivocal: the review of administrative actions on an environmental matter, in order to be properly assessed, requires a full-knowledge proceeding, which is only possible in the ordinary jurisdiction, since the amparo process is incompatible with the review of technical or legal criteria elaborated on the basis of applicable rules. Therefore, the supervision or review of an administrative act linked to an environmental matter falls within the contentious-administrative jurisdiction; delegating it to the constitutional route distorts the summary procedure established at the constitutional level for that purpose.
As an additional element for the admission of amparo proceedings in environmental matters, the Constitutional Chamber requires proof of the Administration's demonstrated inaction (inercia comprobada) and, furthermore, that a complaint has been filed through administrative channels, since it holds that it is not within its competence to process environmental complaints, as detailed in the following resolutions:
"V.- ON THE RIGHT TO A HEALTHY AND ECOLOGICALLY BALANCED ENVIRONMENT. Consequently, the possibility of judicially demanding, through an amparo proceeding, a specific type of performance or benefit from the State in fulfillment of its duty to protect life, health, or the right to the environment for the benefit of its inhabitants is restricted to the clear verification of an imminent danger to those rights of individuals. This leads to the conclusion that the intervention of constitutional jurisdiction is only viable when there is demonstrated inaction on the part of the State, through its competent bodies, in addressing the demands that inhabitants of the country make in the exercise of their rights." "VI.- ON THE SPECIFIC CASE. This Chamber considers that the protection of a healthy and ecologically balanced environment in the Costa Rican legal order is safeguarded not only in Article 50 of the Political Constitution, but also in a series of laws and executive decrees (regulations) in force, such as the Organic Environmental Law, Ley N° 7554 of October 4, 1995; the Biodiversity Law, Ley N° 7788 of April 30, 1998; the Wildlife Conservation Law, Ley N° 7317 of October 21, 1992; and Decreto Ejecutivo N° 31849 of May 24, 2004, the General Regulation on Environmental Impact Assessment (evaluación de impacto ambiental, EIA) Procedures, to cite but a few.
This makes it necessary, in environmental matters, to separate constitutional review from legality review. In this regard, it is the majority's view that, through an amparo proceeding, the Chamber should only hear a matter in which a violation of the right to a healthy and ecologically balanced environment is alleged if the Administration has not yet intervened, even when the violation of that right is manifest and evident, easy to verify, of a certain importance or gravity, and directly affects a specific person or community. Otherwise, the matter must be raised and discussed in the legality review route." (Constitutional Chamber. Ruling No. 16400 – 2022, of July 15, 2022).
The Chamber emphasizes that it is NOT a processing body for environmental complaints; hence the necessity and obligation to demonstrate that a complaint was filed through administrative channels and has not been addressed by the competent Administration. Thus, in Ruling No. 26246 – 2022, of November 4, 2022, it held:
"This is fundamentally because the appellant neither alleged nor, much less, demonstrated having filed, prior to the filing of this amparo, a complaint either before CONAVI or before the authorities of the Municipalidad de Parrita or the Ministry of Health, through which the only grievances raised herein were likewise set out (namely, the generation of water pooling that, in the appellant's view, produces mosquitoes, foul odors, and moreover diseases) and that, for their part, such authorities have not issued a resolution within a reasonable time…" In that regard, it must be clarified to the appellant that this Constitutional Chamber is not a processing body for environmental complaints—a criterion that has been consistently upheld through extensive case law. To that effect, in Ruling No. 2018-3787 of 09:15 hrs. of March 6, 2018, this constitutional body, when hearing a matter similar to the one now raised, stated expressly the following:
"(…) I.- PRELIMINARY CONSIDERATIONS: ON AMPARO PROCEEDINGS FILED IN ENVIRONMENTAL MATTERS. This Chamber has repeatedly held that through the amparo route it is not possible to directly substitute administrative will or to supplant public offices in the management of matters within their competence. For this reason, before admitting an amparo in environmental matters, it is required that the appellant have appeared before the competent Authorities to raise the relevant claims and complaints, and that the Administration has not acted with due diligence in addressing them, it being understood that the foregoing is not the same as requiring any type of exhaustion of administrative remedies, but rather the simple acknowledgment that this Court is not an alternative active Administration. So much so that the Chamber has declined to hear certain amparo proceedings filed over environmental problems, in the following terms: '[...] it must not be lost sight of that the petitioners did not provide any evidentiary element demonstrating that they had previously appeared before the aforementioned Health Area.
It is important to explain to the appellants that this Constitutional Chamber is not a complaints-processing body, which is why they must appear before the Ministry of Health to raise the relevant claims.' (Ruling N° 2012-18538 of 09:05 hours of December 21, 2012). In this regard, it is recalled that the amparo process is of an eminently summary character—that is, brief and simple—and its processing is not compatible with the practice of slow and complex evidentiary procedures, or with the need to first examine—with declaratory effect—whether the sub-constitutional rights that the parties cite as part of the factual record of the amparo proceeding or of the statutory report (informe de ley), as the case may be, actually exist in reality. Hence this route is not suited to conducting broad investigations in environmental matters, since these would require opening the process to evidence (…)." In an identical vein, in Resolution No. 07061 – 2024, of March 15, 2024, the Chamber stated:
"First, in accordance with the jurisprudential criterion developed by this Chamber in this type of matter, the existence of a prior complaint requesting the intervention of the named authorities in the situation alleged to be harmful to the right to the environment is necessary (see voto 2022-026246 of 9:45 hrs. of November 4, 2022). In the case at hand, the appellant neither alleged nor demonstrated having filed, prior to the filing of this amparo, a complaint before mbre03 o or before the named authorities, through which the invoked grievances were likewise raised, and that, for their part, such authorities have not issued a resolution within a reasonable time. In this regard, in response to the inquiry made by resolution of the examining Justice (Magistrado instructor), the National Environmental Technical Secretary was emphatic in stating that 'a review of this Secretariat's database was conducted and no complaint whatsoever against the project in question appears on record, nor any other unregistered complaint in the area indicated in the present proceeding.' Hence it cannot be argued that there has been any omissive conduct on the part of the named authorities in addressing the appellant's disagreements as to the suitability and admissibility of the works in question." The Constitutional Chamber's jurisdiction is therefore clearly residual and delimited to a series of elements that the Chamber has developed and clearly and unequivocally identified over the years.
Consequently, the amparo route cannot be used to seek to have the Constitutional Chamber become a reviewer of environmental complaints, nor a reviewer of the legality of administrative acts intended to grant permits, authorizations, and validations to various projects with environmental impact. Thus, in accordance with the Constitutional Chamber's precedents on its jurisdiction in environmental matters, the following conclusions can be drawn with total clarity:
1. The amparo proceeding is of an eminently summary nature. Its processing is incompatible with the conduct of extensive or complex evidentiary procedures.
2. The Constitutional Chamber's jurisdiction does not extend to determining whether a project meets the applicable technical and legal requirements, nor does it include analyzing an act to determine whether it was properly granted or not.
3. The demand through an amparo proceeding for a specific course of conduct or benefit for the protection of the right to the environment cannot be arbitrary or hypothetical; it must be linked to the verification of an imminent danger to that right. It is therefore necessary to establish the Administration's inaction in the face of the demands or requests of those subject to its authority.
4. Through the amparo route, the Chamber will hear matters in which a violation of the right to a healthy and ecologically balanced environment is alleged, provided the Administration has NOT intervened, even when the violation of that right is evident and manifest. Otherwise, when the Administration has intervened, the challenge and review of its actions falls within the legality review route. The appellant must necessarily demonstrate that a complaint was already filed through administrative channels without receiving a response.
5. The assessment of administrative actions in environmental matters that require a full proceeding in which technical or legal criteria, administrative acts, and their compliance with applicable statutory and regulatory rules must be reviewed can only be carried out through a full-knowledge proceeding—whether administrative or contentious-administrative—since it is not possible to transform the summary amparo procedure into an ordinary full-knowledge proceeding, as doing so would distort the nature of the amparo institution.
In the case under analysis, as will be demonstrated, the conditions set out above are NOT met and, therefore, the amparo proceeding must be rejected.
6. The subject matter of this amparo proceeding is far from being a constitutional matter; rather, it requires a legality analysis.
Impossibility of the Constitutional Chamber Conducting an Ordinary Legality Analysis Through an Amparo Proceeding Such as the One Filed by the Asociación Confraternidad Guanacasteca.
Despite the fact that this position of the Constitutional Chamber has been reiterated since long ago, that the Chamber had recently already rejected an amparo filed over the same situation, and that nullity motions had been filed before mbre03 d challenging the environmental viability of the Project—on the basis of the alleged precedence of the Ley Forestal over the special regulations, which has been duly processed and is pending resolution—the present amparo has been filed with the practical purpose of requesting that the Chamber conduct a legality analysis of the permits granted to the Project; a request that, as set out above, does not meet the conditions necessary to be considered a purely constitutional matter.
The Plan Regulador Integral El Coco-Hermosa-Bahía Azul provides: The Reglamento de Construcciones del Instituto Nacional de Vivienda y Urbanismo provides: 'ARTICLE 95. Coverage. For the calculation of coverage, the provisions of the Regulatory Plan must be applied. In the absence thereof, coverage must comply with the following:
Drafted by Magistrate Rueda Leal; and,
Whereas:
SINGLE WHEREAS CLAUSE.— The petitioner files a constitutional protection action (amparo) alleging a violation of Article 50 of the Constitution. He argues that the concession granted to the company Enjoy Hotels & Resorts S.A., based on the public tender "Concesión para el Desarrollo Turístico de Áreas Libres del Polo Turístico Papagayo," breaches the environmental legal framework.
In that regard, he argues that the protection zones of the Ley Forestal are being disregarded, that an area with forest cover (cobertura boscosa) of 98% is being affected, and that the land use (uso del suelo) of State Natural Heritage is being changed.
This Sala Constitucional is processing unconstitutionality action 25-033926-0007-CO, in which the following provisions are challenged:
With respect to the request for a precautionary measure, by resolution issued at 14:52 hours on May 20, 2026, in those proceedings, the following was ordered:
"As a second claim, the petitioner requested the application of a precautionary measure:
'The felling permit may be executed at any moment in the coming hours, and it is therefore urgent that this Sala Constitucional request the corresponding reports and even issue an emergency precautionary measure (medida cautelarísima) suspending the permit in question.' With respect to this request, it must be noted that by resolution issued at 13:00 hrs. on April 17, 2026—that is, prior to the petitioner's application—Magistrate Cruz Castro, as supervising magistrate (magistrado instructor) for expediente n.°25-024408-0007-CO, issued a precautionary measure in the following terms:
'A) A total moratorium (moratoria total) on the granting of tree-felling permits in the Polo Turístico Golfo de Papagayo in the context of the development of a hotel-type project is hereby declared. B) The granting of construction authorizations and density modifications in the Polo Turístico Golfo de Papagayo is suspended. C) The issuance of administrative acts, in particular those originating from MINAE, Nombre03, and ICT, issued pursuant to the provisions challenged in this action, is suspended.'" To that end, the supervising magistrate specifically weighed the possibility of carrying out the felling of approximately seven hundred trees in the Polo Turístico Golfo Papagayo, as well as the constitutional precautionary and pro natura principles. As is explicit in that ruling, the moratorium on tree felling denounced by the petitioner was ordered therein.
By resolution of May 5, 2026, the supervising magistrate modified the terms of the ruling but maintained—in the part relevant here—the precautionary measure set out in point A). Indeed, that resolution states:
"Given that the resolution ordering precautionary measures in this action was issued in the context of the application of the challenged regulations, specifically regarding the figure of density compensation, such that the suspended acts were suspended precisely because they were a consequence of the application of the challenged regulations, the following applies:
1. Regarding the precautionary measure identified as B) in the resolution of 13:00 hours of April 17, 2026, IT IS CLARIFIED THAT: The suspension of the granting of construction authorizations and density modifications in the Polo Turístico Golfo de Papagayo encompasses only those cases in which the figure of density and coverage compensation set forth in the challenged Executive Decree has been applied or is intended to be applied.
2. In all other respects, the resolution issued does not contain ambiguous or omitted elements that would warrant clarification or addition." In other words, there already exists—by order of the magistrate overseeing expediente n.°25-024408-0007-CO—a total moratorium on the granting of tree-felling permits in the Polo Turístico Golfo de Papagayo in the context of the development of a hotel-type project. Accordingly, the petitioner's claim is already addressed by that precautionary measure.
In that case, and in order to avoid contradictory rulings, what is appropriate is to abide by the precautionary measure issued in that case file, by which the total moratorium on tree felling in the Polo Turístico Golfo Papagayo was ordered (in the context of the development of a hotel project). Therefore, any representations regarding that measure must be submitted in that case file." For the same reason, the motion seeking authorization for the execution of the project by Enjoy Hotels & Resorts Sociedad Anónima cannot be granted.
Therefore:
The processing of this constitutional protection appeal (recurso de amparo) is hereby suspended until such time as the unconstitutionality action being processed under expediente nro. 25-033926-0007-CO is resolved.
Fernando Castillo V. President Fernando Cruz C.
Paul Rueda L. Luis Fdo. Salazar A.
Jorge Araya G. Anamari Garro V.
Ingrid Hess H.
Telephone numbers: Telf02/ ALA-4TA (Telf03). Fax: Telf04 / Telf05. Electronic address: www.poder-judicial.go.cr/salaconstitucional. Address: (Dirección07, Dirección08, 100 meters south of the Iglesia del Perpetuo Socorro).
Documento PJEDITOR SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, a las nueve horas veinticinco minutos del treinta de julio de dos mil veintiseis .
Recurso de amparo que se tramita en el expediente nro. 26-013284-0007-CO, interpuesto por Nombre01, cédula de identidad CED01, contra la SECRETARÍA TÉCNICO NACIONAL AMBIENTAL (SETENA), el MINISTERIO DE AMBIENTE Y ENERGÍA (MINAE) y SISTEMA NACIONAL DE ÁREAS DE CONSERVACIÓN (SINAC).
Resultando:
Redacta el Magistrado Rueda Leal; y,
Considerando:
ÚNICO.- El recurrente interpone un amparo por la presunta violación del artículo 50 constitucional. Alega que la concesión otorgada a la empresa Enjoy Hotels & Resorts S. A., con base en el concurso público “Concesión para el Desarrollo Turístico de Áreas Libres del Polo Turístico Papagayo”, quebranta el ordenamiento ambiental.
En ese sentido, arguye que se irrespetan zonas de protección de la ley Forestal, se afecta una zona con cobertura boscosa de un 98% y se cambia el uso de suelo del patrimonio natural del Estado.
Esta Sala tramita la acción de inconstitucionalidad 25-033926-0007-CO, en la cual se cuestiona: 1) el numeral 74 de la Ley de la Zona Marítimo Terrestre, Ley nro. 6043 del 02/03/77; 2) el ordinal 93 del Reglamento de la Ley de la Zona Marítimo Terrestre, Decreto Ejecutivo nro. 7841-P, del 16/11/77, que es el reglamento a la Ley nro. 6043, que reglamenta la norma 74 de la ley; 3) el artículo 1, párrafo final, de la Ley nro. 6370, que se denomina Ley que Declara de Utilidad Pública el Proyecto Turístico Golfo Papagayo, del 20/08/79; 4) los ordinales 2 y 12 de la Ley nro. 6758 del 04/06/1982, que Regula la Ejecución del Proyecto Turístico de Papagayo; 5) los artículos 1 y 2 del Decreto Ejecutivo nro. 33132-MP-T del 9 de febrero de 2005, publicado en La Gaceta nro. 97 del 22 de mayo de 2006, que es decreto de conveniencia nacional, del desarrollo y ejecución del Proyecto Turístico Golfo de Papagayo; y, 6) el ordinal 5.1 incisos i) y j) del Reglamento nro. 4572 del 10/07/1995 del Instituto Costarricense de Turismo, denominado "Plan Maestro General del Proyecto Turístico Golfo de Papagayo".
Dado el vínculo entre las pretensiones del recurrente y las normas cuestionadas en la citada acción de inconstitucional, procede la suspensión de este proceso, de conformidad con lo dispuesto en el artículo 48 de la Ley de la Jurisdicción Constitucional.
En lo que respecta a la solicitud de una medida cautelar, por resolución de las 14:52 horas del 20 de mayo de 2026, dictada en ese proceso, se dispuso:
“Como segunda pretensión, el accionante requirió la aplicación de una medida cautelar:
“El permiso de tala se puede ejecutar en cualquier momento en las próximas horas y por ello urge que esta Sala disponga pedir los informes correspondientes y hasta emitir una medida cautelarísima que suspenda el permiso en cuestión”.
En lo relativo a esta solicitud, es preciso destacar que mediante resolución de las 13:00 hrs. del 17 de abril de 2026 –es decir, de previo a la gestión del accionante– el magistrado Cruz Castro, como magistrado instructor del expediente n.°25-024408-0007-CO, dictó una medida cautelar en el siguiente sentido:
“A) Se declara la moratoria total sobre el otorgamiento de permisos de tala de árboles en el Polo Turístico Golfo de Papagayo, en el contexto del desarrollo de un proyecto de naturaleza hotelera. B) Se suspenden el otorgamiento de autorizaciones de construcción y modificaciones de densidad en el Polo Turístico Golfo de Papagayo. C) Se suspende el dictado de actos administrativos, en particular provenientes del MINAE, Nombre03 e ICT, dictados al amparo de la normativa cuestionada en esta acción”.” Para lo anterior, dicho magistrado instructor valoró precisamente la posibilidad de ejecutar una tala de aproximadamente setecientos árboles en el Polo Turístico Golfo Papagayo, así como los principios constitucionales precautorio y pro natura. En dicha resolución, como es explícito, se ordenó la moratoria de la corta de árboles denunciada por el accionante.
Mediante resolución de 5 de mayo de 2026, el magistrado instructor moduló los términos de la resolución, pero mantuvo –en lo acá interesa– la medida cautelar dispuesta en el punto A). En efecto, tal resolución señala:
“Dado que la resolución que ordenó medidas cautelares en esta acción se dictó en el contexto de la aplicación de la normativa impugnada, referida a la figura de compensación de densidad, de modo que, los actos que se suspendieron fueron suspendidos justamente por ser consecuencia de la aplicación de la normativa impugnada. Así entonces:
1. Respecto de la medida cautelar identificada como B), en la resolución de las 13:00 horas del 17 de abril de 2026, SE ACLARA que: La suspensión del otorgamiento de autorizaciones de construcción y modificaciones de densidad en el Polo Turístico Golfo de Papagayo comprende solo aquellos casos en las que se ha aplicado o se pretende aplicar la figura de la compensación de densidades y coberturas previsto en el Decreto Ejecutivo impugnado.
2. En todo lo demás, la resolución dictada no contiene elementos oscuros ni omisos que ameriten aclaración o adición”.
Es decir, ya existe –por disposición del magistrado que instruye el expediente n.°25-024408-0007-CO– una orden de moratoria total sobre el otorgamiento de permisos de tala de árboles en el Polo Turístico Golfo de Papagayo, en el contexto del desarrollo de un proyecto de naturaleza hotelera. Conforme a lo cual, la pretensión del accionante se encuentra atendida en aquella medida cautelar.
En tal caso y, a fin de evitar fallos contradictorios, lo que corresponde es estarse a la medida cautelar dictada en aquel expediente, mediante la cual se ordenó la moratoria total de tala de árboles en el Polo Turístico Golfo Papagayo (en el contexto del desarrollo de un proyecto hotelero). Por lo que cualquier manifestación sobre esa medida deberá ser gestionada en ese expediente”.
Por este mismo motivo, no procede acoger la gestión, tendente a que se autorice la ejecución del proyecto de la sociedad Enjoy Hotels & Resorts Sociedad Anónima.
Por tanto:
Se suspende la tramitación de este recurso de amparo, hasta tanto no sea resuelta la acción de inconstitucionalidad que se tramita bajo el expediente nro. 25-033926-0007-CO.
Fernando Castillo V.
Fernando Cruz C.
Paul Rueda L.
Luis Fdo. Salazar A.
Jorge Araya G.
Anamari Garro V.
Ingrid Hess H.
Document not found. Documento no encontrado.