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Res. 31932-2026 Sala Constitucional · Sala Constitucional · 20/08/2026
OutcomeResultado
The Chamber suspended the amparo until constitutional action 25-033926-0007-CO is resolved and stated that the requested tree-cutting moratorium is already covered by an interim measure in another case, without deciding the merits.La Sala suspendió la tramitación del amparo hasta que se resuelva la acción de inconstitucionalidad 25-033926-0007-CO e indicó que la moratoria de tala solicitada ya está cubierta por una medida cautelar dictada en otro expediente, sin resolver el fondo del reclamo.
SummaryResumen
The Constitutional Chamber (Sala Constitucional) suspended proceedings on the amparo against SETENA, MINAE, and SINAC concerning tree-cutting authorization associated with the Gulf of Papagayo Tourist Project. It found that the applicant’s claims are connected to provisions challenged in constitutional action 25-033926-0007-CO and, under Article 48 of the Constitutional Jurisdiction Act, the amparo must await that action’s resolution. The Chamber also noted that an interim measure in another case had already imposed a total moratorium on tree-cutting permits in the Tourist Pole in the context of hotel projects; the requested interim relief was therefore addressed in that case, and no additional measure should be issued here. The ruling does not decide whether the challenged authorization violated the right to a healthy environment or resolve the merits of the amparo.La Sala Constitucional suspendió la tramitación del amparo contra SETENA, MINAE y SINAC por la autorización de corta de árboles vinculada al Proyecto Turístico Golfo de Papagayo. Consideró que las pretensiones del recurrente están relacionadas con las normas impugnadas en la acción de inconstitucionalidad 25-033926-0007-CO y que, conforme al artículo 48 de la Ley de la Jurisdicción Constitucional, corresponde esperar a que esa acción se resuelva. La Sala también indicó que una medida cautelar dictada en otro expediente ya estableció una moratoria total sobre permisos de tala en el Polo Turístico, en el contexto de proyectos hoteleros; por ello, la pretensión cautelar está atendida allí y no procede dictar otra medida en este amparo. La sentencia no decide si la autorización cuestionada vulneró el derecho a un ambiente sano ni resuelve el fondo del recurso.
Key excerptExtracto clave
Given the connection between the applicant’s claims and the provisions challenged in the aforementioned constitutional action, these proceedings must be suspended under Article 48 of the Constitutional Jurisdiction Act (see also judgment 2026-028826, issued at 9:25 on 30 July 2026). In that circumstance, to avoid contradictory rulings, the appropriate course is to abide by the interim measure issued in that case, which ordered a total moratorium on tree cutting in the Gulf of Papagayo Tourist Pole in the context of a hotel project. Any submission concerning that measure must therefore be made in that case. For the same reason, no additional interim measure should be issued at this stage of the proceedings.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 (ver en igual sentido la sentencia número 2026-028826 de las 9:25 horas de 30 de julio de 2026). 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 dictar ninguna medida cautelar adicional en este momento procesal.
Pull quotesCitas destacadas
"Se suspende la tramitación de este recurso de amparo, hasta tanto no sea resuelta la acción de inconstitucionalidad que se tramita bajo el expediente número 25-033926-0007-CO."
"Proceedings on this amparo are suspended until the constitutional action filed under case number 25-033926-0007-CO has been resolved."
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 número 25-033926-0007-CO."
Por tanto
"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."
"The first rule, and perhaps the most important, is that filing a constitutional action does not generally suspend the effectiveness and applicability of the provisions."
Resolución de curso de la acción de inconstitucionalidad citada
"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."
Resolución de curso de la acción de inconstitucionalidad citada
Full documentDocumento completo
CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF JUSTICE. San José, at 9:20 a.m. on 20 August 2026.
Amparo application filed by Nombre08, identity card CED03, against the NATIONAL ENVIRONMENTAL TECHNICAL SECRETARIAT (SETENA), the MINISTRY OF ENVIRONMENT AND ENERGY (MINAE), and the NATIONAL SYSTEM OF CONSERVATION AREAS (SINAC).
Background:
“CLARIFICATION. It is clarified that the resolution issued at ten hours and eleven minutes on 20 April 2026 contains an error of precision in that it indicates that among the officials required to submit the report on this amparo is “the director of the Nicoya Regional Office of the Tempisque Conservation Area of the National System of Conservation Areas”; whereas the position of director refers to the Director of the Tempisque Conservation Area, Mr. Nelson Marín Mora, and not as incorrectly cited. In addition, the “Nicoya Regional Office” is also cited incorrectly; the correct designation is “Santa Cruz-Carrillo Subregional Office.” For purposes of responding to this amparo, the requested report is submitted by the Director of the Tempisque Conservation Area of the National System of Conservation Areas.
PRELIMINARY CONSIDERATIONS. To clarify the legal framework governing the Papagayo Tourist Pole in relation to the administrative acts issued by the Ministry of Environment and Energy within the scope of our powers, we state the following:
According to the regulatory background, first, Law No. 5847 of 18 November 1975 approved the Loan Agreement entered into between the Costa Rican Tourism Institute and the Central American Bank for Economic Integration, for the purpose of financing the preparation of a technical and economic feasibility study and the preparation of a master plan for the Bahía de Culebra Tourism Project. Article 3 of that law provided that the project arising from the aforementioned feasibility study would be carried out by the Costa Rican State, in accordance with the law that was to be enacted for that purpose.
As a matter of fact, the decision to establish the Tourist Pole in Bahía Culebra stems from regional technical studies promoted by the BCIE in the 1960s and 1970s. Those studies identified the area as having high ecological, scenic, and cultural value, with potential for international tourism. This empirical basis served as grounds for the Costa Rican legislature to adopt a series of measures intended to facilitate implementation of the project under special conditions, including its declaration as being in the public interest (Law No. 6370 of 1979), the creation of a differentiated state administration regime (Law No. 6758 of 1982), and adoption of a Master Plan approved at ordinary session No. 4572, Article 2, paragraph VIII, of the ICT Board of Directors, held on 10 July 1995.
The exceptional legal regime of the Golfo Papagayo Tourist Project rests on the express exclusion of municipal jurisdiction over administration of the Maritime Terrestrial Zone within the defined area. Although Article 3 of Law No. 6043 grants municipalities the power to administer the restricted zone and grant concessions in the country’s Maritime Terrestrial Zone, Article 74 establishes a specific exception for the then-named “Bahía Culebra Project” (now known as the Golfo Papagayo Tourist Pole), assigning that power to the Costa Rican Tourism Institute (ICT). This exception has been affirmed by various opinions of the Procuraduría General de la República, for example, C-171-93 and C028-94, which reaffirm that the ICT has exclusive powers to administer and control the area and grant concessions there, without prejudice to residual municipal powers, such as issuing construction permits, once the projects have been previously approved by the ICT.
From the perspective of public law, this exceptional regime responds to the principle of heightened legality in the administration of public-domain property and falls within the logic of special regimes permitted by Article 121, paragraph 14, of the Political Constitution. The law precisely regulates the powers, limits, and conditions under which concessions are granted, imposing a more rigorous standard than that applicable to other coastal areas of the country. Thus, for example, the ICT may grant concessions only through public competitions, following technical and legal analysis, and on the basis of consistency with the Master Plan, which serves as a binding planning instrument.
The project is also covered by the Declaration of National Convenience under Executive Decree No. 33132 of 2005, which further strengthens its position within state public policy by treating it as a priority for economic development, job creation, and attracting foreign direct investment. This declaration is grounded in Ley Forestal No. 7575, Article 3, which defines activities of national convenience as those whose social benefit exceeds their environmental cost, a condition that must be demonstrated through the corresponding technical instruments.
APPLICABLE REGULATORY FRAMEWORK. In the case of the Golfo Papagayo Tourist Pole, it is necessary to review its historical background, which dates back 50 years, and the State’s intention to dedicate a specific area to sustainable tourism development. The interaction between Costa Rica’s development of this concept and the incorporation of environmental regulations is highlighted.
“ARTICLE 3.- The Bahía Culebra tourism development project 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.”
“Special cases Article 74.- With regard to the Bahía Culebra Comprehensive Development Project, whose shoreline extends north to the point on the Costa Rica Lambert Grid at latitude 2/94 and longitude 3/53, and as far as the point at latitude 2/84 and longitude 3/50, that is, from Punta Cabuyal to Punta Cacique, the affected areas shall be under the direct administration of the Costa Rican Tourism Institute. The regulations governing that development shall be formulated by the Executive Branch, after consultation with that Institute. All of the foregoing is without prejudice to the usufruct and fees due to the respective municipalities under this law.” (Emphasis ours) It is important to note that, as provided in Article 73, this law does not apply to MINAE when an area is a protected wild area or part of the State’s Natural Heritage, generally identified through a certification of the State’s Natural Heritage issued by the Conservation Area with jurisdiction over it (Law 6043, Article 73 and Voto 16975-2008 of 12 November 2008).
“Article 2.- Only the works provided for in the Master Plan approved by the Costa Rican Tourism Institute, and all works consistent with it, may be carried out in the area designated for development of this project, in accordance with this law and the technical standards issued by the Institute for that purpose.
Article 12.- The Board of Directors of the Costa Rican Tourism Institute may grant concessions for the use of the project lands in the area designated for it, subject to the terms and conditions established by the Institute for that purpose and in accordance with Article 1073 of the Law on the Financial Administration of the Republic.
Article 18.- This law is a matter of public order and repeals any conflicting rule, except insofar as it grants rights or authorizes public-law entities to collect fees and tariffs, or otherwise grants them economic benefits. Nor may the concept of the public zone referred to in Article 20 of Law No. 6043 of 2 March 1977 be altered.” (Emphasis ours)
LEGAL REGIME OF THE GOLFO DE PAPAGAYO TOURIST PROJECT The scope of the legal regime of the Golfo de Papagayo Tourist Project was addressed by the Constitutional Chamber (Sala Constitucional) in Voto No. 2007-018483, issued at 18:00 on 19 December 2007, which states, in relevant part:
“VII.- EXCEPTIONAL OR SPECIAL ADMINISTRATIVE LEGAL REGIME OF THE GOLFO DE PAPAGAYO TOURIST PROJECT. SPECIFIC REGIME FOR THE USE OR EXPLOITATION OF PUBLIC-DOMAIN PROPERTY. The Golfo de Papagayo Tourist Project has been subject to a special administrative legal regime. Thus, Law No. 6370 of 3 September 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, entire farms, portions, rights, or legitimate property interests that, by reason of their location, are necessary to carry out and implement the tourist project is of public utility. The latter includes, within the coordinates defining it, the maritime zone of the Pacific coast. The Costa Rican Tourism Institute was authorized to acquire property voluntarily or through expropriation (Articles 2 to 5). (Emphasis ours) In turn, the Law Regulating the Development and Implementation of the Golfo de Papagayo Tourist Project, No. 6758 of 4 June 1982, subjects it to an intensive exceptional public regime, given the project’s strategic importance to national tourism development.
The regime provides for registration of the lands in the name of the Costa Rican Tourism Institute and a series of measures to promote the project’s development. Specifically, Article 12 and following establish the regime for private parties’ exploitation of the project. Thus, Article 12 states that the ICT Board of Directors ‘(…) may grant concessions for use of the project lands in the area designated for it (…)’; Articles 13, 14, and 15, in turn, provide, respectively, for cancellation, termination, and recovery of the concession. In addition, subordinate regulations emphasize the concession as a legal instrument. For example, Executive Decree No. 22489-MPJ-TUR of 2 September 1992 created the Registry of Concessions of the Golfo de Papagayo Tourist Project in Bahía de Culebra as a section of the General Registry of Concessions of the Property Registry of the National Registry. It is therefore sufficiently clear that the regime governing private parties’ use, as set out in the legal rules governing the Golfo de Papagayo Tourist Project, is exclusive in nature and thus excludes common and general use by any other person.
This is accomplished through the concession, which grants the concessionaire administrative real rights.” (…) IX. (…) It should be taken into consideration that Law No. 6758 of 4 June 1982 granted the Costa Rican Tourism Institute exclusive authority—through an executing office, its Governing Council, the Executive Director, and the entity’s Board of Directors—to develop and implement the Golfo de Papagayo Tourist Project (Article 1)… It must be stated that Law No. 6758 of 4 June 1982 grants administration and management of the Papagayo Tourist Project to a public entity with national jurisdiction, namely the ICT, making it an exceptional or special regime compared with that contemplated in the Law on the Maritime Terrestrial Zone…” (emphasis not in the original) On the basis of the foregoing, the Golfo de Papagayo Tourist Project is governed by a specific, exceptional legal framework that includes the Law Regulating the Development and Implementation of the Papagayo Tourist Project, Law No. 6758.
That law, together with its regulations and the project’s Master Plan, establishes the rules for development and implementation of works in the designated area, that is, within the concession area. In addition, the Costa Rican Tourism Institute (ICT) plays a fundamental role in administering, regulating, and supervising the project—meaning throughout the project’s overall area and for each concession within the project boundaries—as well as managing a special fund for its financing.
In legal terms, this special and exceptional rule can be framed within the Principle of Protection under a specific situation for the development and implementation of works established by Law No. 6758, together with its regulations and the Master Plan. The Golfo de Papagayo Tourist Project covers approximately 1,658 hectares, in addition to the public zone, registered in the name of the Costa Rican State and administered by the Costa Rican Tourism Institute (hereinafter, ICT), primarily to attract domestic and international tourism by making the most of the region’s tourism resources. Accordingly, the ICT, through the Executing Office, is responsible for implementation and development of the project and has exclusive authority to direct, coordinate, administer, and control its development.
The project comprises two major activities: a) granting concessions over land acquired for tourism projects; and b) construction of public infrastructure works that enable such development to take hold.
In another respect, as part of the regulations governing this project, under Executive Decree No. 33132-MPT, published in La Gaceta No. 97 of 22 May 2006, the Golfo de Papagayo Tourist Project, administered by the Costa Rican Tourism Institute, is covered by a Declaration of National Convenience for its development and implementation. Some of the grounds for this Executive Branch measure were as follows:
“2.- Whereas, by Article 1 of Law No. 6370 of 3 September 1979, the lands necessary to carry out and implement the Bahía Culebra Tourist Project, located in the Province of Guanacaste and now known as the Golfo de Papagayo Tourist Project, under the administration of the Costa Rican Tourism Institute, were declared to be of public utility.
To supplement the regulatory framework, the Executive Branch issued Executive Decree No. 25.439-MP-TUR, published on 11 September 1996, and its amendment (Executive Decree No. 37701-MPTUR of 12 April 2010), the Regulations to the Law for the Development and Implementation of the Golfo de Papagayo Tourist Project, which establish important provisions:
“Master Plan: A tool for controlling land use through zoning and planning urban development, approved by the ICT Board of Directors. It is a directive planning instrument, in that it sets out the broad guidelines or main lines to guide and coordinate urban or building development and land use in the Papagayo Tourist Project, within the statutory limits and in harmony with the natural and cultural environment. In addition to being technical in nature, it has regulatory and binding effect. (Article 2, paragraph h) Public-domain property: Each parcel of real property and its attributes, declared to be of public utility, that makes up the development area of the Golfo de Papagayo Tourist Project and is subject under Laws Nos. 6370 and 6758 to tourism use. The ICT exercises administrative, supervisory, and control authority over the property’s legally prescribed purpose, with tourism as the criterion governing the allocation of such real property; the ICT may grant it in concession to private parties.
This concept also includes the public-zone area of the Maritime Terrestrial Zone and the adjacent area permanently covered by the sea, designated for the construction, administration, and operation of tourist marinas and piers located within the Golfo de Papagayo Tourist Project, pursuant to Law No. 7744, the Law on the Concession and Operation of Marinas. (Article 2, paragraph i) Concession: An administrative act of a contractual nature, granted by the ICT Board of Directors to a natural or legal person, conferring an administrative real right for exclusive, exclusionary, private patrimonial use of public-domain property within the Golfo de Papagayo Tourist Project. This administrative real right allows the concessionaire to exercise all attributes of ownership except alienation of the land. For purposes of the Project’s public tourism objective, it includes, among other things, the concessionaire’s authority to use, enjoy, transform, build or build jointly, defend, provide as security, encumber, and lease the public-domain property under concession for purposes of the concessionaire’s tourism development project, always subject to ICT supervision and control.
(Article 2, paragraph j) Tourism purpose: The ultimate and paramount public purpose pursued by Law No. 6758, consisting of productive tourism development of the Golfo de Papagayo Tourist Project. (Article 2, paragraph q) The Project shall be directed and administered by the Executing Office, as an organ with maximum deconcentration, reporting directly to the Institute’s Board of Directors. (Article 3) Concessions in the project area shall be granted only to entities incorporated and domiciled in the country. Anyone seeking a concession must also meet the requirements set out in the terms of the respective competition. (Article 4) The grant of concessions and any assignment, mortgage, lease, or trust arrangement concerning the concessions must be registered in the Project’s Registry of Concessions, within the National Registry. In the case of transfers of concessions, the acquirer shall be treated as the concessionaire for all purposes.
In the case of a lease, the lease shall follow the concession. (Article 13) The concessionaire’s obligations shall be those established in Law 6758, these Regulations, the Master Plan, the concession agreement, the respective Environmental Impact Study, other provisions of the Costa Rican Tourism Institute Board of Directors, and the other applicable rules. In particular, no concessionaire may alter its project as approved by the Institute without the Institute’s prior express authorization. (Article 14) Once a concession has been awarded and a project approved, work must begin within no more than six months from the date notice of the award is given. The deadline for completion of the work shall be specified in the concession agreement. (Article 17)” Also as part of the regulations governing this project, Executive Decree No. 4572, in force since 24 July 1995, promulgated the regulation “General Master Plan for the Golfo de Papagayo Tourist Project.” This rule sets out relevant aspects for understanding the framework created by Law No. 6758. Under section 5.1, Specific Guidelines for the Design and Construction of Tourism Projects, it provides:
“Surface occupancy ratio: The surface occupancy ratio must not exceed 30% (thirty percent) of the total area originally granted in concession. The designs of the proposed tourism projects must comply with this maximum.” This means that concessionaires in Papagayo are required, in compliance with the planning instrument, to preserve the remaining 70% of the concession area, and may use a footprint of up to 30%, subject to the requirements of the rules, regulations, guidelines, and provisions governing concessionaires. Consequently, the area in which each concessionaire’s project will be developed must comply with the rules established by the other public institutions, including having current, approved environmental clearance for development of the project.
As regards Ley Forestal No. 7575 of 13 February 1996, this law took effect after Law No. 6758 of 6 May 1982, the Law Regulating the Development and Implementation of the Papagayo Tourist Project, and Ley Forestal No. 7575 contains no specific provision regulating, amending, or repealing any article of Law No. 6758. Given that Law No. 6758 is a special and exceptional law, any change in the allocation of public-domain property, for legal certainty, must meet three requirements: a prevailing or more compelling public interest to be protected; support in a rule of sufficient legal rank; and a guarantee that the property remains subject to the public-law regime.
On this understanding, because the Costa Rican Tourism Institute (ICT) is the state entity exclusively responsible for administering the Golfo de Papagayo Tourist Project, and a special-use regime is clearly defined for concession lands with a single and paramount purpose directed toward sui generis tourism development, the exceptional nature of this area must be recognized. Its designated purpose is therefore not the absolute conservation of natural resources, but their sustainable and balanced use and conservation, with environmental assessment of the projects developed there.
PUBLIC AND PRIVATE FORESTRY REGIME. Ley Forestal No. 7575 of 13 February 1995 introduced into our legal system the concept of “State Natural Heritage,” administered by the Ministry of Environment and Energy and, under Article 13, composed of “the forests and forest lands of national reserves, areas declared inalienable, properties registered in its name, and those belonging to municipalities, autonomous institutions, and other public-administration bodies, except real property securing credit transactions with the National Banking System and becoming part of its assets.” The concept of “State Forestry Heritage” was first included in the former Ley Forestal No. 4465 of 25 November 1969. The main difference between State Natural Heritage and State Forestry Heritage is that the earlier legislation allowed the forest resource to be exploited by the Administration or by private parties with its authorization, except in national parks and biological reserves.
Protected wild areas, whatever their management category, national parks, biological reserves, forest reserves, national wildlife refuges, protective zones, natural monuments, and wetlands are deemed incorporated into this regime as “areas declared inalienable,” by virtue of Article 38 of the Organic Law of the Environment, No. 7554 of 4 October 1995. Finally, State Natural Heritage also includes other forests and forest lands or lands suitable for forestry owned by the State, including national reserves and properties belonging to autonomous institutions, municipalities, and other public-administration bodies.
Private property with forest cover is a legal category established in our legislation, specifically in Title Three of Ley Forestal No. 7575. Private forest property refers to forests and forest lands belonging to private parties—that is, properties registered in the name of a natural or legal person under a Real Folio. Accordingly, these are private properties, as distinct from State-owned properties. These private forest lands are subject to regulation and protection, and their owners have specific rights and responsibilities under the law, including rules governing their use, exploitation, and protection. Owners of private forest lands are entitled to use and exploit forest resources in accordance with the law and established management plans, and are responsible for protecting forests and forest lands by preventing deforestation, erosion, and other activities that could harm the forest ecosystem. Forest law establishes limits and regulations to ensure sustainability and environmental protection. Private property retains the attributes conferred on it by law regarding ownership, use, and disposition. The fact that a forest lies within the boundaries of private property does not deprive it of its private character or make it public-domain property forming part of State Natural Heritage.
Articles 19 and 20 of Ley Forestal No. 7575 regulate “private forest property” and forest use, under which owners may carry out lawful activities.
“TITLE THREE Private forest property CHAPTER I Forest management ARTICLE 19.- Authorized activities On land covered by forest, changing land use or establishing forest plantations is not permitted. However, the State Forestry Administration may grant permits in those areas for the following purposes:
In these cases, forest cutting shall be limited, proportionate, and reasonable for the purposes stated above. A pre-screening questionnaire must first be completed before the State Forestry Administration to determine whether an environmental impact assessment may be required, as provided by the regulations implementing this law.” (Emphasis ours) Accordingly, private properties with forest are regulated by Ley Forestal No. 7575. This concept is established in case law; by way of example:
“(…) a distinction is drawn between the State’s forestry heritage and private forestry heritage. The former is subject to a public-domain regime and consists of all forests and forest lands in national reserves, areas declared inalienable, properties registered in its name, and those belonging to municipalities, autonomous institutions, and other public-administration bodies. In this case, the administration may grant permits for use only for projects that do not require forest exploitation and do not affect ecosystems, wildlife, soils, wetlands, or aquifers. Private forestry heritage, in turn, consists of all forests and lands suitable for forestry belonging to private natural or legal persons (Articles 1, 32, and 43 of the Forest Law). On these properties, various activities may be carried out depending on whether the land is forested, has forest plantations, or is agricultural land without forest. (…)” (Constitutional Chamber, vote No. 3923-2007. Emphasis ours.)
Restrictions on private forest property to protect the environment, provided they do not impair the essential content of that right and have the necessary statutory basis, “are constitutionally viable, and the State is also obliged to protect and exploit it rationally.” (Constitutional Chamber, judgment 5893-95. See also the Chamber’s votes 2343-96, 2006-015106, 2007-5598, 2007-06581, 2007-09119, and 2007-010578, among others. Emphasis ours.)
THE CONCESSIONAIRE AND THE PRIVATE OWNER. A concessionaire of an area in the Papagayo Tourist Project is one who submits to the legal regime governing this tourism area, in accordance with the provisions indicated above. The contractual administrative act granted by the ICT Board of Directors confers on the concessionaire an administrative real right for exclusive, exclusionary, private patrimonial use of public-domain property within the Golfo de Papagayo Tourist Project, which by law has a specific, sole, and paramount tourism purpose under a special regime. (Emphasis ours) It is important to emphasize that, by law, these State lands in the Golfo de Papagayo Tourist Project are not administered by the Ministry of Environment and Energy, nor are any protected wild areas declared within their boundaries. The designated use and purpose of these lands is not the exclusive conservation of natural resources, but their sustainable development for tourism through infrastructure authorized by the ICT and subject to environmental clearance as an environmental safeguard.
This administrative real right allows the concessionaire to exercise all attributes of ownership except alienation of the land, since the concessionaire is not its registered owner. For purposes of the Project’s public tourism objective, this includes, among other things, the concessionaire’s authority to use, enjoy, transform, build or build jointly, defend, provide as security, encumber, and lease the public-domain property under concession to carry out its tourism development project, always subject to ICT supervision and control. (Article 2, paragraph j.)
Accordingly, if any environmental permit is required—forestry, water, or environmental clearance—the concessionaire must obtain it from the competent authority. Article 19 of Ley Forestal No. 7575 therefore does not apply, as it concerns private forest property. This is not a case involving a private owner, but public-domain property subject to a special regime for developing projects with a single purpose: tourism. Article 19 of the Forest Law is designed to regulate forest management on private properties, a legal status that does not apply to lands under concession within the Project. Those lands are public-domain property of the State, title to which belongs to the Republic and administration of which has been delegated to the ICT for a tourism purpose, not for conservation of natural resources or establishment of a protected wild area. In this context, the concessionaire is not a private owner of registered property (a Real Folio registered in the National Registry), but a recipient of an administrative real right of exclusive and private use, granted by the State through the ICT, with limited powers and subject to strict conditions. The concessionaire is therefore not equivalent to the private forest owner regulated by Article 19 of the Forest Law.
It should also be borne in mind that Article 18 of the Forest Law, which provides for permits to use State lands or protected wild areas administered by the Ministry of Environment and Energy, concerns the general regime of ordinary administration under MINAE’s oversight, through the National System of Conservation Areas (SINAC), for other purposes. The Permit for Use granted by the National System of Conservation Areas is governed by the General Law of Public Administration and refers to authorization to use public-domain property temporarily and precariously, generally for a specific purpose and for the benefit of the community. This permit does not grant a real right over the property and may be revoked at any time. However, this Permit for Use does not apply to the Golfo de Papagayo Tourist Project, which is subject to the special and exceptional legal regime of a single designated purpose established by Law No. 6758. That law grants the ICT exclusive authority to administer, plan, regulate, and implement tourism development in the project’s defined area, as well as the power to grant concessions for tourism purposes within the project boundaries. Those concessions confer an administrative real right for exclusive, exclusionary, private patrimonial use of public-domain property within the Golfo de Papagayo Tourist Project.
This special regime allows the concessionaire to remove vegetation cover up to a maximum of 30% of the total concession area, reserving the remaining 70% for conservation, in strict accordance with the project’s Master Plan and regulations. Vegetation cover is not equivalent to the concept of forest or land suitable for forestry. Vegetation cover is a broad, general concept that may include trees, secondary scrub, grass, pasture, fruit trees, grasses, ground cover, flora, plants, vegetation, agricultural species, forest species, leaf litter or crop residues, and living fences, among other things. The concept of forest, by contrast, is strict and differs from vegetation cover; it must meet the definition in Article 3, paragraph d), of Ley Forestal No. 7575:
“d) Forest: A native or indigenous ecosystem, whether disturbed or not, regenerated through natural succession or other forestry techniques, occupying an area of two or more hectares, characterized by the presence of mature trees of different ages, species, and sizes, with one or more canopy layers covering more than seventy percent (70%) of that area, and containing more than sixty trees per hectare with a diameter of fifteen or more centimeters measured at breast height (DBH).” (Emphasis ours) The foregoing must always be understood within the framework of the general principles for conservation and protection of natural resources. Accordingly, it is imperative that the concessionaire of the Papagayo Tourist Pole observe and comply with the minimum, general regulations issued by the State Forestry Authority, such as the prohibition on cutting protected forest species, preparation of technical forest inventories, application of technical standards, the Fallas (2019) methodology for determining forest in Costa Rica, among others. If a forestry permit is required, it must be requested from the respective Conservation Area to ensure responsible and sustainable removal of forest species. A project seeking environmental clearance must undergo the environmental assessment process before the National Environmental Technical Secretariat.
This regime of the Golfo de Papagayo Tourist Project must now be distinguished from the regime governing protected wild areas. In this specific case, there is the Playa Iguanita National Wildlife Refuge, created by Law No. 8731 of 3 July 2009. This area, located at the back of Bahía Culebra, within the Nacascolo Peninsula, was identified by MINAE as a site requiring special attention due to its tropical dry primary forest and the presence of mangroves. For that reason, it is administered by SINAC through the Tempisque Conservation Area and excluded from the regime of the Golfo de Papagayo Tourist Project.
“ARTICLE 2.- Administration of the refuge. Administration, protection, and management of the Iguanita National Wildlife Refuge shall be the responsibility of the National System of Conservation Areas of the Ministry of Environment and Energy (Minae), through the Tempisque Conservation Area, in accordance with Article 22 of the Biodiversity Law, No. 7788 of 30 April 1998, as amended. The Costa Rican Tourism Institute (ICT) is authorized, from the date this Law is published, to transfer to Minae the section of land in the Maritime Terrestrial Zone located within the Refuge, for its administration, protection, management, and development through the National System of Conservation Areas.” Article 3.—Management plan for the Refuge. The Director of the Tempisque Conservation Area and the Refuge administration shall carry out the administrative and technical procedures needed to ensure broad participation by communities, institutions, and the private sector in implementing the management plan for the Iguanita National Wildlife Refuge, taking into account the regulations governing ICT’s Master Plan for the Papagayo Gulf Tourism Pole.” (Emphasis added by us) In the same vein, mangrove ecosystems, given their special environmental protection regime, are excluded from ICT’s concession regime and remain under the exclusive protection of SINAC-MINAE, in compliance with the environmental regulations in force.
ALLEGATIONS MADE BY THE PETITIONER. Petitioner Nombre02, in referring both to the environmental viability granted by the National Environmental Technical Secretariat (Secretaría Técnica Nacional Ambiental, SETENA) and to the tree-cutting permit issued by the Tempisque Conservation Area of the National System of Conservation Areas (Sistema Nacional de Áreas de Conservación, SINAC), makes a series of allegations linking administrative acts of different legal natures, issued by different authorities exercising legally separate powers. These are set out below:
The project called “Bahía Papagayo,” promoted by the company Enjoy Hotels & Resorts S. A., submitted file D1-0170-2021- SETENA to the National Environmental Technical Secretariat (SETENA) to obtain environmental viability. The project is being developed on land belonging to the Costa Rican State, under a state concession, pursuant to Law No. 6758, which governs the Papagayo Gulf Tourism Project on these state-owned lands, where the forest that this amparo seeks to protect is located.
Resolution nro. 0591-2022 SETENA granted environmental viability to the project. SETENA authorized reducing the legally established protection areas for watercourses within the project’s state-owned area, justifying that change in land use.
Resolution 1263-2021-SETENA of 6 January 2022 provides that the protection zones for bodies of water shall be 15 meters along the Rocha and Panamá estuaries, and 10 meters along both banks of the unnamed seasonal streams, as an environmental mitigation measure. These measures expressly contravene Article 33(b) of Ley Forestal No. 7575.
Resolution No. 0591- 2022-SETENA confirms that there is significant coverage of deciduous, mature, and secondary forest in the project area. The land is classified as Class VII land use, designated for forest management. An incident seeking annulment of Resolution 0591 2022-SETENA was brought.
In legal opinion DAJ-MINAE-1591-2025, issued on 6 August 2025, the MINAE Legal Advisory Directorate concluded that the Papagayo Gulf Tourism Project is subject to a special legal regime and that concessionaires could remove up to 30% of the vegetation cover.
Report INFTEC-DT-ASA-0324-2025, prepared following the inspection carried out on 26 May 2025 in the Bahía Papagayo Project area, states that the official forest-cover layer for the year 2000 was superimposed and showed that most of the project areas (figures B, C, and D) lie entirely within zones classified as forest forming part of the State’s natural heritage, because they are located on state-owned land.
By Chamber resolution at 15:46 on 13 November 2025, action of unconstitutionality nro. 25-033926-0007-CO was admitted, challenging specific provisions comprising the Papagayo concession.
By resolution 0215-2026-SETENA, no precautionary measure was adopted; on the contrary, it expressly states: “It is reiterated that the foregoing does not prevent a determination that the Environmental Viability License granted to the project remains in force.” The environmental logbook was opened as part of the process for commencing the works, and on 15 April 2026, machinery was observed at the site.
By resolution nro. SINAC-ACT-OSRSCC-052-2026 of 09 April 2026, a permit was granted to cut 3656 trees within the project area.
Regarding the allegations made, we state the following and present our defense:
Under Decreto Ejecutivo No. 25.439-MP-TUR, published on 11 September 1996, as amended by Decreto Ejecutivo No. 37701-MPTUR of 12 April 2010, the Regulations to the Law for the Development and Implementation of the Papagayo Gulf Tourism Project establish important provisions:
“b) Concession: An administrative act of a contractual nature agreed upon by ICT’s Board of Directors in favor of a natural or legal person, conferring an administrative real right for private, exclusive, and excluding patrimonial use of a public-domain asset within the Papagayo Gulf Tourism Project. This administrative real right allows the Concessionaire to exercise all attributes of ownership except alienation of the land. For the public tourism purpose of the Project, it entails, among other things, the Concessionaire’s authority to use, enjoy, transform, build or co-build, defend, provide as security, encumber, and lease the concessioned public-domain asset to carry out its tourism development project, always under ICT’s supervision and control. (Article 2, subsection j)
The D1 Form and the environmental assessment instrument, namely the Environmental Impact Study, were duly reviewed by SETENA’s Environmental Assessment Department in accordance with the Manual of Technical Instruments for the Environmental Impact Assessment process (Manual de EIA, Part II). The Department concluded that they comply with the terms of reference and technical requirements issued by the Secretariat, in accordance with the monitoring and follow-up powers established in Article 20 of the Organic Law of the Environment. This technical analysis was carried out in the full exercise of the powers legally conferred on SETENA as the national authority for environmental impact assessment, verifying compliance with the regulatory and technical provisions applicable to the process.
Based on the foregoing, the Technical Report on the Initial Environmental Assessment of the project called Proyecto Bahía Papagayo, file number D1-0170-2021 SETENA, was submitted to SETENA’s Plenary Commission, and Resolution Nº 0591-2022-SETENA was issued at 10 hours 11 minutes on 06 April 2022, approving Environmental Viability. This resolution was issued 4 years ago and established the following important points:
“(…) FOURTH: Whereas, in this administrative proceeding, the D1 Form was submitted together with the environmental assessment instrument, the Environmental Impact Study, in accordance with the Manual of Technical Instruments for the Environmental Impact Assessment process (Manual de EIA, Part II). These were duly analyzed by the Environmental Assessment Department, which concluded that they comply with the terms of reference and technical requirements issued by this Secretariat. In view of the foregoing, and in accordance with the monitoring and follow-up powers established in Article 20 of the Organic Law of the Environment, which states: ‘The National Environmental Technical Secretariat shall establish instruments and means to monitor compliance with environmental impact assessment decisions. In cases of violation of their content, it may order the works to be halted. The interested party, the author of the study, and those who approve it shall be directly and jointly responsible for any damage caused.’ It has been analyzed and determined that these requirements are met; therefore, the proper course in this case is to approve the environmental impact assessment instrument, the Environmental Impact Study and environmental impact matrices submitted in Document D1, 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 provides for: ‘The environmental commitments, guidelines, or directives that govern the granting of environmental viability (license) and are based on the entire EIA process, as well as a series of environmental conditions and monitoring and follow-up instruments, including the following elements: Development and implementation of Environmental Monitoring and Follow-up Instruments (ICOS), comprising three aspects: appointment of an environmental officer and implementation of an Environmental Logbook; likewise, an Environmental Guarantee Deposit, in accordance with the Organic Law of the Environment, the amount of which shall be set in this administrative act. These instruments must be submitted to SETENA in accordance with the Plenary Commission Agreement for ordinary session No. 098-2014-SETENA and Article No. 17 thereof, issued by means of agreement No. ACP-015-2014 of 26 August 2014, which provides: “Order developers of activities, works, or projects to submit the ICOS before commencing them, once Environmental Viability has been granted, and prohibit them from commencing until the ICOS have been duly enabled.
If they begin without these instruments, the sanctions established in the regulations in force shall apply.”’ SIXTH: Article 6 of the amendment to Article 45 of the General Regulations on EIA Procedures, Decreto Ejecutivo No. 31849-MINAE-S-MOPT-MAG-MEIC, addresses the Fundamental Environmental Commitment Clause as follows: ‘This Environmental Viability (license) is granted on the understanding that the developer of the project, work, or activity will fully and properly comply with all technical, legal, and environmental regulations and standards in force in the country and those to be implemented before other authorities of the Costa Rican State. The developer’s failure to comply with this clause will not only make it subject to the sanctions applicable for noncompliance with those regulations, but, because this clause forms part of the fundamental basis on which the VLA rests, it will automatically invalidate that VLA, with the technical, administrative, and legal consequences this entails for the activity, work, or project and its developer, particularly with respect to the scope of application of Article 99 of the Organic Law of the Environment.’ SEVENTH: At the time this resolution was issued, no party had appeared or opposed development of the project described.
EIGHTH: In accordance with Article 22(3) of Decreto Ejecutivo Nº 31849-MINAE-S-MOPT-MAG MEIC, and after assessing the information in the administrative file and the environmental assessment instrument submitted, the Environmental Assessment Department, by technical report DEA-0322-2022-SETENA, recommends continuing the environmental impact assessment administrative process and issuing the administrative decision granting Environmental Viability (License), taking into account Article 20 of Law 7554.
THEREFORE, THE PLENARY COMMISSION RESOLVES:
At this Secretariat’s Ordinary Session Nº 026, held on 06 April 2022, under Article Nº 14, it agrees:
FIRST: To approve the D1 Environmental Assessment Document, Environmental Impact Study, submitted for environmental assessment by the project designer.
SECOND: To inform the interested party that, in accordance with Articles 17, 18, and 19 of the Organic Law of the Environment, the environmental assessment procedure for the project ‘Proyecto Bahía Papagayo,’ administrative file D1-0170-2021-SETENA, has been completed, as described below.
Project name: Proyecto Bahía Papagayo Location: Province: Guanacaste, Canton: Carrillo, District: Sardinal Coordinates: Latitude Longitude Coordinate details 1 171 837,039 320 267,107 Mean coordinates of map 5 1186670-2007 1 171 094,961 319 694,582 Mean coordinates of map 5 1155787-2007 1 170 974,246 319 238,546 Mean coordinates of map 5 1155787-2007 1 170 744,866 318 464,714 Mean coordinates of map 5 1274126-2008 1 170 667,714 317 554,889 Mean coordinates of map 5 1155786-2007 Number of cadastral map: G-1155786-2007, G-1155787-2007, G-1186670-2007 and G-1274126-2008 Property number: PRN02, PRN03, PRN04 and PRN05 Property area according to map (m²): 204165,91; 124827,92; 436563,63; 309064,25 Project area according to design (m²): 1,176,420.79 CIIU classification and project category: 5510 = A SIA score: 117 …” (Emphasis added by us) Mr. Nombre02 makes a series of assertions attributing legal effects to the approval of the Environmental Impact Study that do not belong to it, thereby causing confusion about the scope and nature of the environmental viability granted by the National Environmental Technical Secretariat.
In particular, he maintains that Resolution N.º 0591-2022-SETENA, at 10:11 on 06 April 2022, “contains SETENA’s authorization to reduce the legally established protection areas for watercourses and confirms the removal of forest within the project’s state-owned area, thereby justifying a change in land use.” That assertion is legally incorrect because it rests on a mistaken interpretation of the purpose and effects of an environmental analysis, which is predictive and conditional in nature and does not constitute (and cannot constitute) direct authorization for forest interventions or changes to legally established protection areas.
The Bahía Papagayo Project underwent the environmental viability process considering all four properties expressly identified in the approval resolution. In that context, the geospatial analysis conducted by SETENA covers all those properties in order to assess comprehensively the environmental variables present in the project’s area of influence. However, this does not mean or imply that all those areas will be affected by construction works, since the project footprint is limited to a specific portion of the concessioned area. Indeed, it must be borne in mind that the total concessioned area is 42,01 hectares, while the project’s construction footprint will cover only approximately 7,62 hectares. This is determinative in understanding the actual scope of the environmental analysis and rejecting the claim that the territory covered by the concession will be affected across the board.
Geospatial analysis is an ordinary technical tool used in the environmental assessment processes handled by SETENA for any activity, work, or project submitted to it. References to forest-cover maps in such analysis are intended to identify features present in the territory based on cartographic information. This reflects the tree-canopy cover observed from an aerial perspective, but it is neither equivalent to nor a substitute for the legal definition of “forest” established in Article 3 of Ley Forestal No. 7575. This point is central to correctly understanding the case. Whether forest exists within the meaning of Ley Forestal is not determined using vegetation-cover maps, but by technical field verification in accordance with the recognized methodology for that purpose, 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 declaration that forest exists, since these are technically and legally distinct concepts. Confusion between the two is precisely the basis of the petitioner’s incorrect reasoning.
Resolution N.º 0591-2022-SETENA does not expressly or implicitly authorize reducing protection areas for rivers, streams, or wetlands, or removing forest or any forest material without the corresponding authorization from the State Forestry Authority. First, the effects attributed to that resolution by the petitioner do not follow from its contents; second, SETENA lacks legal authority to issue forestry permits, a function that belongs exclusively to the Ministry of Environment and Energy through SINAC. This is clearly shown by examining Recital Three of Resolution N.º 0591 2022-SETENA, which expressly advises the developer that it must obtain from the competent authorities any permits required for possible tree cutting or forest intervention, in accordance with the legislation in force, as detailed below:
“…THE DEVELOPER IS HEREBY ADVISED THAT: If the project requires tree cutting, a permit must first be processed at the local subregional office of MINAE/SINAC (Art. 27 of Ley Forestal). The developer is also advised that Protection Areas must be respected (Arts. 33 and 34 of Ley Forestal), and that good practices must be included in project development to promote an optimal balance of natural resources and the sustainable use of the forest according to its management category. Any possibility of contaminating soil, streams, and drains with waste produced by the activity must be reduced, in compliance with the Comprehensive Waste Management Law, Law Nº 8839, and its Regulations, Decreto Ejecutivo Nº 37567-S-MINAET-H, entitled General Regulations to the Comprehensive Waste Management Law.” (Emphasis added by us) Mr. Nombre02 maintains that Resolution N.º 1263-2021 SETENA, dated 6 January 2022—which predates the issuance of Resolution N.º 0591-2022-SETENA approving the Environmental Impact Study—“provides that the protection zones for bodies of water shall be 15 meters along the Rocha and Panamá estuaries, and 10 meters along both banks of the unnamed seasonal streams, as environmental mitigation measures, in contravention of Article 33(b) of Ley Forestal N.º 7575.” That assertion is legally incorrect because it rests on a mistaken interpretation of the scope and nature of Resolution N.º 1263-2021 SETENA, which is not a final or authorizing administrative act, but a procedural act issued during the Environmental Impact Assessment procedure.
By Resolution N.º 1263-2021-SETENA, the National Environmental Technical Secretariat merely required the developer to submit an annex in order to remedy, clarify, or expand technical and legal information on matters requiring further development before review of the Environmental Impact Study could continue. In this context, the petitioner improperly attributes to the Administration statements contained in the project designer’s technical documents; those statements are not decisions adopted by SETENA and do not form part of the operative content of the administrative act. For that very reason, SETENA, within the scope of its legal powers, requested technical clarifications and additions on matters requiring further development as part of the Environmental Impact Study review phase, without approving any specific measures or authorizing anything with respect to water-protection areas or possible forest interventions.
The developer duly addressed and completed that procedural stage in accordance with law, allowing the definitive administrative act approving the project’s environmental viability to be issued later, after completion of the comprehensive technical and environmental analysis, by means of Resolution N.º 0591-2022-SETENA. Consequently, no administrative act issued by SETENA has established or approved setbacks or protection-area distances other than those expressly prescribed by the legislation in force. The petitioner’s assertion on this point therefore lacks support.
To clarify Mr. Nombre02’s assertion objectively, reference should be made to the text of Resolution N.º 1263-2021-SETENA, dated 6 January 2022, by which the project designer was formally asked to submit an annex. The relevant terms are reproduced and analyzed below:
“FOURTH: Based on the analysis by the multidisciplinary team of the Environmental Assessment Department, the field inspection, the Environmental Impact Study submitted to this Secretariat, and the documentation in the administrative file, it has been determined that legal and technical matters must be remedied and clarified. Accordingly, to continue the Environmental Impact Assessment procedure, this Secretariat requests, on a single occasion, that the following legal and technical matters be remedied and clarified. Remedying these points is essential, pursuant to Article 29 of Decreto Ejecutivo Nº 31849-MINAE S-MOPT-MAG-MEIC, in order to comply with the regulations: (…)
Description of the physical environment 7. Page 10 of the EsIA states that earthworks (movimientos de tierra) will be undertaken (cutting, excavation, and importation) for only four lots, totaling 847.475m3. According to their locations, these lots lie in areas with some degree of environmental fragility: lot 1 is crossed by the Rocha estuary, lot 3 by the unnamed stream (1), lot 4 by the Panamá Estuary, and lot 5 by the unnamed stream (2). In light of the foregoing, special attention must be given to these areas near ecosystems that are highly fragile with respect to erosion and sedimentation events, such as mangroves. 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. The following observations in section 7.5, Hydrology, are contradictory:
a. According to the hydrological study, the watercourses assessed flow directly into the sea (Panamá Bay), and the project will not increase maximum flows in a way that could affect settlements or works downstream. Therefore, no mitigation measures are required in this regard.
b. It was determined that the Rocha Estuary and Dirección02 are at risk of overflowing during extreme precipitation, mainly because the culvert over Dirección03 is inefficient. It should be noted that this effect occurs only upstream of the culvert, for a distance of no more than 50 meters; the remainder has optimal flow conditions and presents no risk of overflow.
c. In general, it is concluded that the assessed watercourses have the natural capacity to receive runoff from the project, that the risk of flooding due to overflow is low, and that it could be effectively mitigated without causing a major environmental impact.
d. However, the necessary preventive measures must be taken for extraordinary weather events affecting the area in this way. Precipitation caused by extreme events must be considered in the designs for drains, downspouts, and other infrastructure in the river and stormwater systems. (…)
Biological environment component:
12. In the section on terrestrial environmental fragility, the document states that protection zones must be respected, both for the wetlands present in the Ap and for the rivers and streams present. However, it does not assess the fragility of these ecosystems in terms of their intrinsic capacity to recover naturally from any alteration or impact that cannot be reversed within a period of less than one year (caused by the project). In addition, it does not identify the relevant mitigation measures or environmental compensation the project will apply to balance or remedy this situation, especially in the coastal-wetland ecosystem, which is highly fragile in the face of project-related erosion, as established by Decreto No. 32966-MINAE.
13. Section 7.5.1, Surface Waters, states: ‘the Rocha estuary crosses lot 1 and the Panamá estuary crosses lot 4. The project site design must include the protection zones prescribed by our legislation, for example (Ley Forestal, Organic Law of the Environment, Decreto No. 35803-MINAET, etc.).’ However, it does not assess the impact on these ecosystems (wetlands present in the AP). The impacts that the possible presence of sediment would cause to the coastal-estuarine ecosystem in the AP must therefore be identified and assessed, and the corresponding mitigation measures proposed. These must also be included in the PPGA table and the monitoring summary table, both of which must be updated. (…)
THEREFORE, THE PLENARY COMMISSION RESOLVES:
At this Secretariat’s Ordinary Session Nº 63, held on 18 August 2021, under Article Nº 14, it agrees:
FIRST: In order to continue the Environmental Impact Assessment procedure, ENJOY HOTELS & RESORTS S.A.., corporate identification Nº 3-101-318205, developer of the project “Proyecto Bahía Papagayo,” is ordered to submit a single annex (one original and two copies) containing the requirements set out in FOURTH RECITAL of this Resolution. A period of 6 months is granted for this purpose.” (Emphasis added by us) As shown by the documentary evidence incorporated into the administrative file, the matters for which the National Environmental Technical Secretariat required an annex containing additions and corrections do not include or support what Mr. Nombre02 stated. This is because Resolution N.º 1263-2021-SETENA expressly did no more than instruct the project designer to clarify and expand technical information concerning works and proposed environmental management measures near the protection areas for rivers, streams, and wetlands, as part of the ordinary Environmental Impact Assessment procedure. At no point, therefore, were setbacks shorter than those established by Ley Forestal authorized, nor was any decision issued changing or creating an exception to the legal protection regime for those bodies of water. Accordingly, the petitioner’s argument lacks legal support and is unfounded and must be rejected.
Additionally, Mr. Nombre02 continues to argue before the Constitutional Chamber (Sala Constitucional) that Resolution N.º 0591-2022-SETENA, which approved the project’s Environmental Viability and Environmental Impact Study, concerns an area supposedly covered entirely by forest within the concessioned area. That assertion does not accord with the facts or the contents of the administrative act and is unsupported by technical or evidentiary material; it is used to support the filing of this amparo application. The claim that he is acting to defend a supposed “forest” stems from repeated conceptual confusion between SETENA’s geospatial analysis, based on vegetation-cover maps, and the strict legal definition of forest under the parameters established in Ley Forestal. As stated previously, vegetation cover observed in aerial cartography is not equivalent to the legal existence of forest. This distinction is determinative in correctly understanding the scope of the environmental viability granted. For a better understanding of this point, the relevant technical and legal explanation follows.
In Opinion C-194-94, the Procuraduría General de la República reiterated that the land acquired by ICT to carry out the Papagayo Project is in the public domain; the public purpose assigned to it is established in Law 6370, Articles 1° and 10. This status is reflected in the manner in which the land is exploited, which is inherent to public-domain assets. “The public domain is used on the basis of concessions.” (Opinion 10 of 21/08/2002, PGR. Emphasis added by us) The publicly owned land transferred by the State, free of charge, to the Costa Rican Tourism Institute, in whose name it is registered in the Real Property Registry (property number PRN10, Guanacaste Province), is designated for the granting of concessions, consistent with the procedure under the Regulations to the Law on the Maritime-Terrestrial Zone (Art. 93) and the Regulations to Law 6758 (Opinions C-171-93, C-028-94, C-094-2000, C-2010-2002 PGR. Emphasis added by us).
The area covered by “Proyecto Bahía Papagayo,” approved by SETENA in relation to the Environmental Impact Study and its environmental viability, is that shown on cadastral maps G 1155786-2007, G-1155787-2007, G-1186670-2007 and G-1274126-2008, corresponding to Real Folio properties PRN02, PRN03, PRN04 and PRN05. It must be clear that the entire concessioned area will not be used as the construction footprint. Under the provisions of Decreto Ejecutivo No. 4572, in force since 24 July 1995, governing the Regulations for the “General Master Plan for the Papagayo Gulf Tourism Project,” section 5.1, Specific Guidelines for the Design and Construction of Tourism Projects, provides:
“Surface occupancy ratio: A surface occupancy ratio not exceeding 30% (thirty percent) of the total area originally concessioned must be maintained, and the proposed tourism project designs must comply with it.” (Emphasis added by us) The Procuraduría General de la República has emphasized in Opinion C210-2002 that, by law, the land use in that project is tourism, which takes precedence over any other type of use: “the use assigned by law to an area in the public domain may be changed only by legislative act, and the use of the area designated for the Papagayo Project is tourism.” (Opinions C-028-94 and C210-2002 PGR. Emphasis added by us.)
Based on the foregoing and the documentary evidence in the administrative file, the administrative acts issued by the Ministry of Environment and Energy, both concerning environmental impact assessment and forestry, are duly supported, issued by competent authorities, and consistent with the applicable technical and legal rules governing environmental viability and forestry permits. Resolution N.º 0591-2022-SETENA, granting Environmental Viability to the Bahía Papagayo Project, does not declare that forest exists or authorize the cutting of any forest material. Its contents are limited to a comprehensive environmental analysis, which includes a georeferencing study of vegetation cover, a technical element distinct from and not equivalent to the legal determination of forest under Ley Forestal.
The possible presence of rivers, streams, brooks, or wetlands was also duly assessed during the environmental assessment process and does not prevent development of a tourism project, since the legal system provides for the application of setbacks, protection zones, and specific environmental measures in such cases, intended to prevent impacts and avoid harm to the surroundings. Moreover, it is established that, before filing this amparo application, Mr. Nombre02 knew that the project area for which the tree-cutting permit was requested, located exclusively within the authorized construction footprint, does not meet the requirements for classification as forest under Article 3 of Ley Forestal No. 7575. This is supported by various documentary and technical evidence, detailed below, which objectively substantiates the legality of the challenged administrative actions.
The documentary evidence supporting our position is as follows:
Note SINAC-ACT-DR-782-2025 of 26 May 2025, issued by the Director of the Tempisque Conservation Area and addressed to Nombre02, responding to an inquiry about whether a Management Plan or tree-cutting permit was pending or had been approved for properties PRN06, property PRN01, PRN07, property PRN08, G-002999-2023, PRN09 with G-0052191-2022. In the case of property PRN01, owned by Enjoy Hoteles & Resorts S.A., Resolution ACT-OSRSCC-233-2021 of 12 October 2021 authorized cutting 35 trees. That permit expired but was not carried out.
On 19 January 2026, the legal representative of Desarrollo Bahía Papagayo formally applied to the Santa Cruz-Carrillo Subregional Office of the Tempisque Conservation Area for a permit to cut trees located in abandoned pasture areas on that property. A Forest Inventory was submitted.
The Field Report SINAC-ACT-OSRSCC 155-2026 of 5 February 2026, prepared by the Santa Cruz-Carrillo Subregional Office of the Tempisque Conservation Area to review the information provided by the developer regarding the Forest Inventory and tree-cutting permits, expressly states:
“Desarrollo Bahía Papagayo BP.SA. (…) 2. Does the numbering reported in the inventory match that found in the field? YES. 4. Do the species reported in the inventory match those found in the field? YES. 6. Are any trees marked for cutting located in a protection area? NO. 7. Were any prohibited species marked for cutting? NO. 11. Can the area to be used effectively be considered non-forest? YES. 14. Do the identified mitigation measures correspond to the impacts mentioned in the technical document? YES. 15. (…) The trees are within the property identified in the application. The area where the trees are located does NOT meet the definition of forest in Ley Forestal 7575 or the definition of Forest in Decreto No.39952-MINAE. The trees requested for cutting are outside water-protection areas under Article 33 of Ley Forestal 7575. Following the field review, there is no technical restriction under the regulations in force on the harvesting of the trees.” (Emphasis added by us) By note ACT-OSRSCC-216-2025 of 26 February 2025, the Santa Cruz-Carrillo Subregional Office of the Tempisque Conservation Area issued a field inspection report concerning an alleged forest clearing in the Playa Panamá sector, on property PRN01, map G-00552763-2023, Concession No. 5. It states, in relevant part:
“…The cleared site begins at vertices 11, 12, and 13 and extends only as far as vertex 40, equivalent to approximately 7 ha. No clearing is observed in the protection zone of the existing watercourse. No trees have been felled; rather, multiple shoots approximately 8 to 10 cm in diameter at the base have been cleared…The predominant species are guácimo and mango…At the time of inspection, no persons were observed carrying out the activity described in the complaint; no one was present at the site.” (Emphasis added by us) The foregoing was referred to the Environmental Auxiliary Prosecutor’s Office of Santa Cruz.
By resolution SINAC-ACT-OSRSCC-052-2026 of 9 April 2026, File TE-TE01-IF-00033-2026, the Santa Cruz-Carrillo Subregional Office of the Tempisque Conservation Area proceeded to authorize cutting the trees identified and approved in that act, including those in Field Report SINAC-ACT-OSRSCC 155-2026. It also takes into account the statement in Twelfth Recital that, according to the Forest Inventory, the intervention covers 7.62 hectares out of the 42,01 hectares of property PRN01, equivalent to 18.14%, and complies with the Surface Occupancy Ratio (COS) of 27.93%. It clarifies that the Forest Inventory contains all 3656 individuals inventoried, of which cutting is authorized for only 748 trees. This resolution was served on 9 April 2026 at 11:27 hours. No administrative appeals were filed, and it is therefore final, without exhaustion of the administrative process. It is important to clarify that the tree-cutting permit concerns trees that do not constitute forest.
By written submission dated 17 March 2025, Mr. Nombre02 requested a copy of the administrative file containing the forestry permits.
The evidence cited above objectively refutes the petitioner’s arguments supporting this amparo application, since no administrative act, whether issued by SETENA or SINAC, authorizes reducing the legally established setback distances for protection zones along rivers, streams, or wetlands, or authorizes the unlawful cutting of forest. This is so without prejudice to the fact that the areas affected do not, in any event, meet the legal definition of forest under Ley Forestal No. 7575, as duly established through technical reports and field inspections.
It must be clearly established that the lands comprising the Golfo de Papagayo Tourism Project are not administered by the Ministry of Environment and Energy as areas designated for the conservation of natural resources. Rather, they are State property subject to a special legal regime, whose purpose and use the legislature expressly defined as tourism, under the administration of the Costa Rican Tourism Institute, in accordance with the applicable regulations. Within that framework, the Ministry of Environment and Energy, through its competent bodies, grants environmental viability, forest permits, and other administrative authorizations on the basis of current technical regulations and environmental sustainability criteria. However, the exercise of those powers cannot and must not be detached from the statutory purpose that gave rise to the Golfo de Papagayo Tourism Center, or from the specific regime governing the use and exploitation of the State lands included there, whose exclusive purpose under the law is tourism development.
The Constitutional Chamber (Sala Constitucional) has reiterated this understanding. In Voto N.º 2007-018483, issued at 18:00 on 19 December 2007, it expressly clarified the scope of the special legal regime governing the Golfo de Papagayo Tourism Project, establishing the framework within which State institutions must act in implementing, monitoring, and supervising that project—a standard that fully applies to the case under review.
“VII.— EXCEPTIONAL OR SPECIAL ADMINISTRATIVE LEGAL REGIME OF THE GOLFO DE PAPAGAYO TOURISM PROJECT. SPECIFIC REGIME FOR THE USE OR EXPLOITATION OF PUBLIC-DOMAIN PROPERTY. The Golfo de Papagayo Tourism Project has been subject to a special administrative legal regime. Thus, Ley No. 6370 of 3 September 1979 declared the Bahía Culebra or Papagayo Tourism Project to be in the public interest. Article 1 of that law provides that the acquisition of real property, entire farms, portions, rights, or legitimate patrimonial interests is of public utility where, by reason of their location, they are necessary to carry out and implement the tourism project, which includes, within the coordinates that delimit it, the maritime zone of the Pacific coastline. The Costa Rican Tourism Institute was authorized to make voluntary acquisitions or acquisitions by expropriation (Articles 2 to 5). (Emphasis added by us)” In conclusion, there is no forest in the area for which the tree-felling authorization issued by the Tempisque Conservation Area was granted; that authorization is confined exclusively to the portion of the concession area corresponding to the project’s construction footprint, as established by the field inspection conducted by the Santa Cruz-Carrillo Subregional Office.
It has likewise been fully demonstrated that the National Environmental Technical Secretariat did not issue, directly or indirectly, any authorization to fell trees through the environmental viability it granted. These are clearly distinct administrative acts, issued by different authorities exercising legally separate powers: on the one hand, environmental viability and, on the other, the forest tree-felling permit. The authorization to fell trees was issued by the State Forestry Authority in strict compliance with the legal and technical provisions in Ley Forestal N.º 7575, Resolution N.º 648-98-MINAE, which regulates the requirements for granting forest permits, and Decreto Ejecutivo N.º 38843-MINAE, which establishes specific conditions for timber use, felling, or removal of trees in public or private infrastructure projects declared to be in the national interest. Environmental viability, in turn, was granted by SETENA on the basis of Decreto Ejecutivo N.º 31849-MINAE-S-MOPT-MAG-MEIC, Decreto Ejecutivo N.º 32734 of 9 August 2005, and Decreto Ejecutivo N.º 37803-MINAE-S MOPT-MAG-MEIC, forming a clear and distinct regulatory framework for each type of authorization.
On the basis of the foregoing, the granting of administrative permits to fell trees, duly regulated and subject to the body of law, does not violate any constitutional provision, breach environmental principles, or conflict with criteria of the Procuraduría General de la República or constitutional case law. On the contrary, those acts are a concrete application of the principle of sustainable development within the framework of a project of national interest. Likewise, the granting of environmental viability reflects the practical application of Article 50 of the Political Constitution, insofar as it harmonizes economic development with environmental protection. It must be borne in mind that the Golfo de Papagayo Tourism Project is being developed under a special legal regime governing the use of State lands under concession, with a single, specific statutory purpose directed toward tourism development.
This does not mean that those lands are subject to the State’s natural heritage regime or constitute protected wild areas. Nor is this a land-use change or the granting of use permits; rather, these are valid administrative acts issued by the Forestry Authority and the Environmental Assessment Authority in accordance with their respective statutory powers. The purpose and use of the lands comprising the Papagayo Tourism Center remain as expressly provided in its enabling law, namely tourism use, which prevails over any other use. A forest permit granted on the terms analyzed does not entail any change in land use. Accordingly, the Ministry of Environment and Energy has not violated any legal regulation and has acted in accordance with criteria established by the Procuraduría General de la República in repeated opinions on the subject.
The concessionaire of the Golfo de Papagayo Tourism Project holds an administrative real right of private, exclusive, and exclusionary use, of a patrimonial nature, over public-domain property. The fact that it must obtain the corresponding administrative permits to carry out works authorized under the concession contract does not violate the body of law, nor do the administrative acts issued by MINAE in the exercise of its powers. The actions necessary to carry out the project, such as earthworks (movimientos de tierra) within the approved construction footprint, tree felling, removal of vegetation cover (cobertura vegetal), and transport of materials, are ordinary parts of carrying out a duly authorized civil works project. The applicable environmental regulations expressly allow removal of vegetation cover from up to 30% of the concession area, while ensuring conservation of the remaining 70%, which demonstrates a significant protective regime.
It must be reiterated that vegetation cover is not legally equivalent to forest; this distinction is essential to the case under review. In the Bahía Papagayo Project, the construction footprint accounts for 27,93 % of the concession area, a percentage below the maximum permitted limit. In addition, the authorized felling of 748 trees, out of a total of 3.656 inventoried specimens, within an area of 7,62 hectares out of a total of 42,01 hectares on the parent property PRN01 , represents approximately 20,45 % of all inventoried trees. This demonstrates limited and technically controlled forest use, supplemented by replacement and environmental compensation measures involving native species. The forest inventory covers only 18,14 % of the property, fully complying with the surface occupancy coefficient (COS) of 27,93 % approved by the ICT, thereby confirming the project’s technical and legal sustainability.
The most abundant species are: Guácimo (Guazuma ulmifolia), with 469 specimens (62,7%). Laurel (Cordia alliodora), with 77 specimens (10,3%). Jobo (Spondias mombin), with 29 specimens (3,88%). Guanacaste (Enterolobium cyclocarpum), with 27 specimens (3,61%). Guarumo (Cecropia peltata), with 23 specimens (3,07%). These five species account for 83,55 % of all specimens for which authorization to fell was requested. This confirms that the authorized forest use is concentrated in a limited number of common species, without affecting significant diversity or ecosystems of particular sensitivity, as established by the forest inventory and the respective field inspections.
On another point, Mr. Nombre02 maintains that, by a resolution of the Constitutional Chamber issued at 15:46 on 13 November 2025, the constitutional action No. 25-033926-0007-CO was admitted for processing. That action was filed against specific provisions forming part of the regulatory framework of the Golfo de Papagayo Tourism Project. This is true as to the admission of the action, but it does not produce the legal effects the applicant seeks to attribute to it. In this regard, the record shows that, in Constitutional Case File No. 25-033926-7-CO, relating to the constitutional action brought by Mr. Nombre08, the Ministry of Environment and Energy appeared in due course and responded to the notice issued by the Constitutional Chamber on 28 November 2025 at 11:06, fully exercising its institutional right of defense. In the notice by which the Constitutional Chamber admitted the constitutional action for processing, contained in the resolution issued at fifteen hours and forty-six minutes on thirteen November two thousand twenty-five, the Constitutional Court set out in general terms the legal effects of admitting the action, as well as the rules applicable to the suspension of acts and regulations. Those rules are determinative for the analysis of this application and are set out below.
“Legal effects of filing the action: The publication provided for in Article 81 of the Ley de la Jurisdicción Constitucional is intended to notify the courts and bodies that exhaust the administrative process that the constitutional challenge has been filed, so that in proceedings in which the application of the law, decree, provision, agreement, or resolution is disputed, no final ruling is issued while the Chamber has yet to decide the case. Several rules follow from this legal provision. The first, and perhaps the most important, is that filing a constitutional action does not generally suspend the effectiveness or applicability of the regulations. The second is that only acts applying the challenged regulations are suspended when issued by judicial authorities in proceedings brought before them, or by administrative authorities in proceedings aimed at exhausting the administrative process; the regulations’ validity and general application are not suspended.
The third rule is that the Chamber may calibrate the scope of the action’s suspensive effect. The fourth is that, in principle, the filing has no suspensive effect in cases of direct actions, as is the case here (see Voto N° 537-91 of the Constitutional Court). The fifth rule is that when an unconstitutional omission is alleged, no suspension may be ordered; in other words, neither preventing the omitted conduct from taking place nor requiring that conduct to take place is appropriate, since the latter would amount to deciding the constitutional action on an interlocutory basis. That is, suspension of the application of challenged regulations in administrative proceedings applies only in cases where there is a proceeding to exhaust the administrative process, which presupposes that an individual has filed an appeal to a higher authority or a motion for reconsideration against the final act.
Where there is no dispute regarding the application of the regulation, its effectiveness and applicability may not be suspended. In other words, in all matters where there is no proceeding to exhaust the administrative process, as described above, the regulation must continue to be applied, regardless of whether it benefits the person subject to adjudication—as a favorable administrative act—or prejudices that person—as an unfavorable, unchallenged act. Within fifteen days following the first publication of the aforementioned notice, any persons who are parties to matters pending on the date this action was filed, in which the application of the challenged provisions is disputed, or persons with a legitimate interest, may appear in order to support or oppose the action, or, where applicable, to expand the grounds of unconstitutionality in relation to the matter of interest to them. It is further notified that, pursuant to Articles 81 and 82 of the Ley de Jurisdicción Constitucional, and as the Chamber has repeatedly ruled (resolutions 0536-91, 0537-91, 0554-91, and 0881-91), this publication does not suspend the general validity of the regulation, but only its application in the cases and under the conditions indicated.” On the basis of the foregoing, the Constitutional Chamber is hereby informed that the environmental viability was approved, is final, and has not exhausted the administrative process, pursuant to Resolution Nº 0591-2022-SETENA issued at 10 hours 11 minutes on 06 April 2022.
Likewise, the administrative act SINAC-ACT-OSRSCC-052-2026 of 9 April 2026, Case File TE-TE01-IF-00033-2026, by which the Santa Cruz-Carrillo Subregional Office of the Tempisque Conservation Area proceeds to authorize the permit to fell trees in a non-forest area, is final and has not exhausted the administrative process (…)”.
“REQUEST TO JOIN AS A SUPPORTING PARTY I request that the Institution be admitted as a supporting party, principally for the following reasons:
The lands located in the Golfo Papagayo Tourist Pole belong to the State and are administered by the ICT under the Law on the Maritime-Terrestrial Zone, No. 6043 of 02 March 1977, and the Law Declaring the Golfo Papagayo Tourism Project to Be of Public Utility, Ley 6370 of 20 August 1979. In other words, by legislative decision they are public-domain assets that are not subject to private ownership, are inalienable, and are not subject to acquisitive prescription.
Before the enactment of the cited laws, Law No. 5847 of 18 November 1975 approved the loan agreement between the Costa Rican Tourism Institute and the Central American Bank for Economic Integration, for the purpose of financing a technical and economic feasibility study and preparing a master plan for the Bahía de Culebra Tourism Project. Article 3 of that law provided that the Project arising from the feasibility study would be carried out by the Costa Rican State, in accordance with the law to be enacted for that purpose.
Following enactment of the cited legislation, the ICT, in collaboration with the relevant authorities, including the State Notary’s Office, MOPT, and the Office of the Comptroller General of the Republic, carried out expropriation procedures to incorporate privately owned properties and compensate certain possessors. The PTGP was thereby made up of the following areas (second paragraph of Article 2(i) of the regulations to Ley 6758, the Law Regulating the Development and Implementation of the PTGP):
‘(…) That territorial portion comprises areas acquired by the ICT for development of the project, including the inalienable public-zone area of fifty meters, the restricted-zone area of one hundred and fifty meters, and the continental zone, meaning the area located inland, beyond the two hundred meters of the maritime-terrestrial zone of the Pacific coastline. The Golfo Papagayo Tourism Project extends from Punta Cabuyal in the north to one kilometer south of Punta Ballena. The coordinates set out in Ley 6370 prevail, and the Project also covers the area permanently covered by the sea within those coordinates, designated for the construction, administration, and operation of marinas and tourist moorings within the Golfo Papagayo Tourism Project, in accordance with the Law on the Concession and Operation of Marinas and Tourist Moorings, Law No. 7744 of 19 December 1997, as amended, published in the Official Gazette La Gaceta No. 26 of 6 February 1998.’ It should be clarified that not all areas within the coordinates in Ley 6370 form part of the sectors administered exclusively by the ICT, since not all of them were expropriated.
However, the various expropriation files show that most of the lots were described as ‘pastureland,’ ‘agriculture,’ or ‘scrubland.’ For example, in the expropriation of the area now within what is known as lot 1 (survey plan G-52763-2023, concession right registered under number 2168-Z-000, the land where the challenged tree-felling permit was issued), now a concession right in the name of DESARROLLO BAHÍA PAPAGAYO BP S.A., the acquisition was made by expropriation from Mr. Nombre05, based on survey plan G 0643968-1986, whose land use was described as ‘PASTURELAND WITH VARIETY OF GRASSES.’ It is currently registered in the National Registry under registration CED02 in the ICT’s name. Note that even the boundaries still refer to the ‘maritime mile.’ On 09 February 2005, Decree 33132-MP-T, entitled ‘Declares the Development and Implementation of the Golfo de Papagayo Tourism Project to Be of National Interest,’ provided:
‘Article 1.—The development and implementation of the Golfo de Papagayo Tourism Project, administered by the Costa Rican Tourism Institute and located in the cantons of Liberia and Carrillo in the Province of Guanacaste, are declared to be of national interest. Article 2.—For the optimal development of this Project, all Government departments, ministries, and public institutions are urged to provide it with all assistance and cooperation, within their material capacities and respective areas of competence.’ Accordingly, the Golfo de Papagayo Tourist Pole is a paradigmatic case in Costa Rican administrative law, having become a strategic national project developed under an exceptional legal regime. This special arrangement, granted by the legal system, is justified not only on grounds of economic convenience, but also by planning, sustainability, and State oversight considerations. Its creation and implementation are based on a series of legislative and administrative acts that together establish a distinct regulatory framework in relation to the ordinary regime of the Maritime-Terrestrial Zone (ZMT), governed by Law No. 6043.
From the standpoint of substantive legal analysis, the Golfo Papagayo Project’s regime establishes a reasoned and proportionate exception within Costa Rica’s constitutional framework. It does not nullify the ordinary rules, but adjusts them for a specific case, ensuring greater State intervention, technical oversight, and environmental protection. It exemplifies how a special regime can coexist with ordinary law, provided it has a legal basis and a legitimate purpose, and includes oversight mechanisms that ensure compliance with the public interest.
As for legal certainty, the project has a robust, systematized body of rules comprising laws, regulations, decrees, and administrative acts that form a coherent legal structure for its development. This legal structure gives the State and potential investors certainty about the rights, duties, and conditions for participating in the project. At the same time, it safeguards the State’s natural heritage and the principles of sustainability, planning, and legality.
The exceptional nature of the Golfo Papagayo tourism project has been affirmed in various opinions of the Procuraduría General de la República (for example, C-171-93 and C-028-94). Those opinions reaffirm that the ICT has exclusive authority to administer and oversee the zone and grant concessions, without prejudice to residual municipal authority, such as issuing construction permits, once projects have been approved in advance by the ICT, and subject, of course, to all environmental permits required for tourism projects to be carried out.
For these reasons, MINAE and SINAC limited their actions to exercising their specific environmental powers: SETENA granted environmental viability without authorizing tree felling, and SINAC, based on a field inspection that determined the intervened area is not forest under Article 3 of the Ley Forestal, issued tree-felling permit ACT-OSRSCC 052-2026, authorizing only 748 of the 3.656 trees inventoried.
Therefore, this request to join as a supporting party is based essentially on two grounds. First, the outcome of these proceedings could directly affect the contractual commitments of the concessionaire DESARROLLO BAHÍA PAPAGAYO BP S.A. to carry out a tourism project on the land known as lot 1 (survey plan G-52763-2023, concession right registered under number 2168-Z-000), where SINAC issued the challenged tree-felling permit. Second, by law the ICT has exclusive authority to administer the Golfo de Papagayo Tourism Project, under a special legal regime created by Laws No. 5847, 6043, and 6758, and affirmed by the Procuraduría and by the Constitutional Chamber (Sala Constitucional) itself in Voto No. 2007-018483. That ruling establishes that land use in the area is tourism and takes precedence over any other use. Accordingly, the concessioned lands are not administered by MINAE, are not State Natural Heritage (PNE), are not forest, and are not protected wild areas; rather, they are public-domain assets designated for tourism and administered by the ICT, not by SINAC or MINAE.
Accordingly, this Institute adopts MINAE’s submissions that there is no constitutional violation or imminent environmental harm; that the tree-felling permit was issued by the institutions with authority to do so; and that the ICT’s functions are limited to administration, which does not authorize it to issue any environmental permits. In any event, the matters alleged here do not fall within the constitutional avenue but should be referred to the ordinary legal avenue. I therefore request that jurisdiction over these proceedings be declared to lie with the Administrative Litigation Court and not the Constitutional Chamber.
Information is provided concerning repeal of provisions challenged in constitutional challenge file No. 25-024408-0007-CO The claimant explains that, in the other constitutional challenge, the request was to declare unconstitutional Articles 12 and 17 ter, as well as points VIII (Requirements for Density and Coverage Compensation in Concessions) and X (Procedure for Requesting a Term Adjustment) of the Sole Annex, entitled ‘Procedures and Requirements under the Concession Regime of the Golfo Papagayo Tourism Project,’ all of which form part of the regulations to the Law for the Development and Implementation of the Golfo de Papagayo Tourism Project, Executive Decree No. 25439-MP-TUR of 27 August 1996, as amended by Executive Decree No. 44448 MP-TUR of 17 January 2024. (Constitutional file No. 25-024408-0007-CO). The purpose is to prevent felling within forests that are also PNE. The claimant considers that, procedurally and on the merits, those provisions would allow clear-cutting at sites with forests on public-domain land because those lands are STATE NATURAL HERITAGE. But, according to the claimant, those hypotheses ceased to be hypothetical and have now been realized in an administrative act that makes felling viable.
In response to the claimant’s statements, it should be reported that, in connection with constitutional challenge file No. 25-024408-0007-CO, I hereby bring to the attention of this honorable Chamber the publication of Executive Decree No. 45823-MP, entitled ‘Amendment of the first paragraph of Article 12 and Article 17 ter and repeal of point VIII of the sole annex to the Regulations to the Law for the Development and Implementation of the Golfo de Papagayo Tourism Project, Executive Decree No. 25439-MP-TUR of 27 August 1996 and its amendments,’ published in Supplement No. 76 to La Gaceta No. 110 of 16 June 2026. A copy of the cited Supplement 76 is attached. The decree amends the first paragraph of Article 12 and Article 17 ter of those regulations to remove references to density and coverage compensation, leaving the remainder of their text unchanged; it also repeals point VIII of the sole annex, entitled ‘Requirements for Density and Coverage Compensation in Concessions.’ Under Article 3, the decree takes effect upon publication in the Official Gazette La Gaceta, and therefore constitutes a regulatory amendment relevant to resolving constitutional challenge file No. 25-024408-0007-CO; that regulation is now in force.
In light of the foregoing, I respectfully request that this new fact be accepted into the record and that the matter be resolved as required by law, taking into account the regulations currently in force.
In addition, certain clarifications directly related to the claimant’s statements must be made:
‘Any comparison of the scale of development permitted by the Master Plan with that permitted by any Regulatory Plan will show that the technical rules governing PTGP development are even more restrictive than those applicable to the rest of the ZMT administered by the municipalities and under the Construction Regulations of the INVU. By way of example, under the PTGP Master Plan regulations, coverage (or the surface occupancy ratio) must be no more than 30%, as provided in Article 5(j), whereas in the Playa Hermosa area, coverage of 70% (that is, 30% green areas) is permitted in low-density areas and coverage of 80% (that is, 20% green areas) in high-density areas, under Article 4 of the regulations to the Playa Hermosa-El Coco-Bahía Azul Comprehensive Plan. The latter is consistent with the INVU Construction Regulations, which provide that coverage may not exceed 75% of the property area (…)’
REQUEST FOR RELIEF On the basis of Article 34 of the Law on Constitutional Jurisdiction, Article 107 of the Code of Civil Procedure, and Article 13 of the CPCA, I request that the Institution I represent be admitted as a supporting party. This is because the outcome of these proceedings could directly affect the contractual commitments of the concessionaire DESARROLLO BAHÍA PAPAGAYO BP S.A. to carry out a tourism project on the land known as lot 1 (survey plan G-52763-2023, concession right registered under number PRN04), where SINAC issued the challenged tree-felling permit, and because the ICT is the administering body for the tourism project of national interest known as the Golfo Papagayo Tourist Pole.
In addition, I request that the amparo application be dismissed in its entirety, because the challenge to the legality of the acts issued by MINAE and SINAC must be heard through the ordinary legality process, not in constitutional proceedings. I therefore request that jurisdiction over these proceedings be declared to lie with the Administrative Litigation Court and not the Constitutional Chamber. Consequently, the ICT should be exempted from payment of the costs of these proceedings.”
Drafted by Justice Araya García; and, Reasons:
I.In the case at hand, the claimant files an amparo application alleging a violation of Article 50 of the Constitution. The claimant argues that the concession granted to Enjoy Hotels & Resorts S. A., on the basis of the public tender “Concession for Tourism Development of Unallocated Areas of the Papagayo Tourist Pole,” violates environmental law. In that regard, the claimant contends that forest-law protection zones are being disregarded, that an area with 98% forest cover is being affected, and that the land use of the State’s natural heritage is being changed.
This Chamber is processing constitutional challenge No. 25-033926-0007-CO, which challenges:
As to the claimant’s request for an interim measure, it should be noted that, by a ruling issued at 14:52 hours on 20 May 2026 in constitutional challenge No. 25-033926-0007-CO, the following was ordered:
“By way of a second request, the claimant sought an interim measure:
‘The felling permit may be carried out at any time in the coming hours, and for that reason it is urgent that this Chamber order the relevant reports and even issue an urgent interim measure suspending the permit in question.’ As to this request, it should be emphasized that by a ruling issued at 13:00 hours on 17 April 2026—that is, before the claimant’s application—the justice Cruz Castro, as the justice instructing file No. 25-024408-0007-CO, ordered an interim measure as follows:
‘A) A total moratorium is declared on the granting of tree-felling permits in the Golfo de Papagayo Tourist Pole in the context of development of a hotel project. B) The granting of construction authorizations and density modifications in the Golfo de Papagayo Tourist Pole is suspended. C) The issuance of administrative acts, particularly those issued by MINAE, SETENA, and ICT under the provisions challenged in this action, is suspended.’” In doing so, that instructing justice specifically assessed the possibility of carrying out the felling of approximately seven hundred trees in the Golfo Papagayo Tourist Pole, as well as the constitutional precautionary and pro natura principles. That ruling expressly ordered a moratorium on the tree felling reported by the claimant.
By a ruling of 5 May 2026, the instructing justice adjusted the terms of the ruling but maintained, insofar as relevant here, the interim measure set out in point A). The ruling states:
“Given that the ruling ordering interim measures in this action was issued in the context of applying the challenged provisions concerning density compensation, the acts suspended were suspended precisely because they resulted from the application of the challenged provisions. Accordingly:
1. With respect to interim measure B) in the ruling issued at 13:00 hours on 17 April 2026, IT IS CLARIFIED that the suspension of the granting of construction authorizations and density modifications in the Golfo de Papagayo Tourist Pole covers only cases in which the density and coverage compensation mechanism provided for in the challenged Executive Decree has been applied or is proposed to be applied.
2. In all other respects, the ruling contains no ambiguity or omission warranting clarification or addition.” That is, by order of the justice instructing file No. 25-024408-0007-CO, there is already a total moratorium on the granting of tree-felling permits in the Golfo de Papagayo Tourist Pole in the context of developing a hotel project. Accordingly, the claimant’s request has been addressed by that interim measure.
In that case, to avoid contradictory rulings, the proper course is to abide by the interim measure ordered in that file, which imposed a total moratorium on tree felling in the Golfo Papagayo Tourist Pole in the context of developing a hotel project. Any submission concerning that measure must therefore be made in that file.” For the same reason, no additional interim measure may be ordered at this stage of the proceedings.
II.Documents submitted to the case file. The parties are advised that if they have submitted any paper document, as well as objects or evidence contained on any additional electronic, computer, magnetic, optical, telematic, or new-technology device, they must collect them from the Court within a maximum period of 30 business days from notification of this judgment. Otherwise, all such material not collected within that period will be destroyed, as provided in the “Regulations on Electronic Case Files before the Judiciary,” approved by the Full Court at session No. 27-11 on 22 August 2011, Article XXVI, and published in Judicial Bulletin No. 19 on 26 January 2012, as well as under the resolution approved by the Higher Council of the Judiciary at session No. 43-12 held on 3 May 2012, Article LXXXI.
Therefore:
The proceedings in this amparo application are suspended until the constitutional challenge being processed under file number 25-033926-0007-CO has been resolved.
Fernando Castillo V.
President Fernando Cruz C.
Paul Rueda L.
Luis Fdo. Salazar A.
Jorge Araya G.
Anamari Garro V.
Ingrid Hess H.
FILE No. 26-013350-0007-CO Telephone: 2549-1500 / 800-SALA-4TA (800-7252-482). Fax: 2220-4607 / 2220-4844. Electronic address: www.poder-judicial.go.cr/salaconstitucional. Address: (Dirección01).
SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, a las nueve horas veinte minutos del veinte de agosto de dos mil veintiseis .
Recurso de amparo interpuesto por Nombre08, cédula de identidad CED03, 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 Araya García; y,
Considerando:
I.En el sub lite, el recurrente interpone un recurso 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:
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 (ver en igual sentido la sentencia número 2026-028826 de las 9:25 horas de 30 de julio de 2026).
En lo que respecta a la solicitud de una medida cautelar realizada por el recurrente, debe señalarse que, por resolución de las 14:52 horas del 20 de mayo de 2026, dictada en la acción de inconstitucionalidad 25-033926-0007-CO, 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, SETENA 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 dictar ninguna medida cautelar adicional en este momento procesal.
II.Documentación aportada al expediente. Se previene a las partes que de haber aportado algún documento en papel, así como objetos o pruebas contenidas en algún dispositivo adicional de carácter electrónico, informático, magnético, óptico, telemático o producido por nuevas tecnologías, éstos deberán ser retirados del despacho en un plazo máximo de 30 días hábiles contados a partir de la notificación de esta sentencia. De lo contrario, será destruido todo aquel material que no sea retirado dentro de este plazo, según lo dispuesto en el “Reglamento sobre Expediente Electrónico ante el Poder Judicial”, aprobado por la Corte Plena en sesión No. 27-11 del 22 de agosto del 2011, artículo XXVI y publicado en el Boletín Judicial No. 19 del 26 de enero del 2012, así como en el acuerdo aprobado por el Consejo Superior del Poder Judicial, en la Sesión No. 43-12 celebrada el 3 de mayo del 2012, artículo LXXXI.
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 número 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.
EXPEDIENTE N° 26-013350-0007-CO
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