Constitutional Review of the Crucitas Mining ProjectControl constitucional del proyecto minero Crucitas

*080140680007CO* user1 ggarrof 3 21 2010-07-09T16:48:00Z 2015-08-27T16:02:00Z 1 150177 825975 Poder Judicial 6883 1948 974204 11.6505 Print Clean 21 false false false MicrosoftInternetExplorer4 false ES-CR X-NONE X-NONE Decision No. 2010006922 SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, at fourteen hours and thirty-five minutes on the sixteenth day of April, two thousand ten.

Amparo proceeding (recurso de amparo) filed by [Nombre 001], of legal age, single, attorney, holder of identity card number [Valor 001], on behalf of Asociación Norte por la Vida, against Ministerio de la Presidencia; Ministerio de Ambiente, Energía y Telecomunicaciones; Secretaría Técnica Nacional Ambiental; and Industrias Infinito Sociedad Anónima.

Background

1. 1In a written submission received by the Office of the Clerk of the Chamber at one hour and eighteen minutes on the nineteenth day of October, two thousand eight, the petitioner filed an amparo proceeding against Ministerio de Ambiente, Energía y Telecomunicaciones, Industrias Infinito S.A., and SETENA, on the grounds that, in his opinion, in order to carry out the Crucitas Project, the mining company will raze a protection zone (zona de protección) for streams and springs (nacientes) in the excavation area and the tailings areas, where ponds will be built to store cyanide-bearing material. In addition, it will have to divert streams and affect aquifer recharge zones (zonas de recarga acuífera), thereby affecting important surface aquifers such as the “La Plata” and “La Mina” streams, as well as aquifer recharge zones. He states that on 21 de mayo del 2008 the company applied to MINAE for a land-use change (cambio de uso de suelo), for which a management plan (plan de manejo) was approved that will raze 262 hectares.He indicates that on 17 de julio del 2008, Executive Decree number 34801-MINAET was published in Diario Oficial La Gaceta number 201, in which Presidencia de la República and Ministerio de Ambiente, Energía y Telecomunicaciones declared the Las Crucitas mining project to be of public interest and national convenience (conveniencia nacional). They also authorized the cutting of the trees required by the project, including protected species subject to a logging ban (especies en veda) (yellow almond tree, habitat of the great green macaw), while omitting the number of hectares to be cleared; he also states that the benefits established therein are merely expectations. He asserts that this Decree has no technical basis and that recital IV (considerando IV) did not substantiate the declaration authorizing logging, and further that it is entirely silent regarding the assessment of the socio-environmental cost that would result from the total destruction of more than 196 hectares of forest, as well as the protection zones of rivers and streams that the mining company will encroach upon and destroy, with the resulting impact on water resources.In his opinion, all of the foregoing violates the right to a healthy environment, and he therefore requests that the proceeding be granted and that the challenged decree be annulled as unconstitutional.
2. 2In a written submission filed on 23 de octubre de 2008 at folio 45, José Merino del Río, of legal age, married, holder of identity card 8-046-249, political scientist and sociologist, member of the Legislative Assembly, and Heidi Murillo Quesada, of legal age, single, holder of identity card 2-522-758, accountant, resident of Ciudad Quesada de San Carlos, acting as representative of Federación Costarricense para la Conservación del Ambiente (FECON), filed an amparo proceeding against Presidente de la República, alleging that the proposed conversion of forest land to open-pit gold mining using cyanide leaching (lixiviación de cianuro) is intended to be carried out in an area of high environmental vulnerability located less than three kilometers in a straight line from the Costa Rican bank of the río San Juan, an area that is very close to several protected wilderness areas (áreas silvestres protegidas) intended to protect endangered species, such as the great green macaw.They state that, of the total area that would be affected by the land-use change, at least 191 hectares 7782.66 square meters consist of forested land. They allege that the land-use change plan calls for clear-cutting (tala rasa), that is, the complete removal of trees and vegetation cover (cobertura vegetal) from a total area of 262 hectares. In addition, the protection areas of streams and surface springs, such as the La Plata and La Mina streams, as well as aquifer recharge zones, could be affected. On 21 de mayo del 2008, the company applied to MINAE for a land-use change. They indicate that on 17 de julio del 2008, Executive Decree Number 34801-MINAET, issued at thirteen hours on the thirteenth day of October, two thousand eight, was published in Diario Oficial La Gaceta Number 201, in which Presidencia de la República and Ministerio de Ambiente, Energía y Telecomunicaciones declared the Las Crucitas mining project to be of public interest and national convenience.They also authorized the cutting of the trees required by the project, including protected species subject to a logging ban. They state that this decree has no technical basis and that it permits mining activity and declares it to be of public interest despite changing the use of forested land and felling trees in water-resource protection areas (áreas de protección del recurso hídrico). The decree is silent regarding the required assessment of the socio-environmental cost that would result from the total destruction of river and stream protection zones, with the resulting impact on water resources and endangered species of wild flora and fauna. The decree lacks a scientific and technical basis that would make it possible to assess objectively the socio-environmental cost of destroying the forest and water-resource protection areas and to determine with certainty that the social benefit of such destruction outweighs its socio-environmental cost.On 17 de octubre de 2008 itself, Subregión San Carlos-Los Chiles de MINAE authorized the mining company’s land-use change plan, and thus, at least from that date and during the following days, trees were felled and vegetation cover was destroyed in the area of the “Las Crucitas” mining project, without the environmental damage caused to the forest, biodiversity, endangered wildlife, and bodies of water having been quantified to date. In their opinion, the term national convenience used in article 2 of the challenged Decree is constitutionally defective because it violates the right to a healthy and ecologically balanced environment. They state that any interpretation in this regard must be restrictive and favor the pro homine principle (principio pro homine). They request that they be granted time to bring an action challenging article 2 of the Decree in question and that this proceeding be consolidated with 08-014068-0007-CO.

3- At folio 72, there is a written submission filed by Gladis Martínez de L., who, on behalf of Asociación Interamericana para la Defensa del Ambiente (AIDA), provides a document offering information because she requested that Presidente de la República suspend the authorization for the mining project.

1. 4Roberto Dobles Mora, in his capacity as Minister of the Ministerio de Ambiente, Energía y Telecomunicaciones, and Sonia Espinoza Valverde, in her capacity as Secretary General of SETENA, report under oath (folio 95 of the case file) that it is true that the company applied to SINAC for a land-use change permit (permiso para el cambio de uso de suelo), which application was processed under case file AH-O1-PM-003 2008, for which the corresponding requirements were requested. They clarify that the logging authorization did not cover 262 hectares of forest, but rather 191.77 in forest areas, 66.94 in agricultural-use areas without forest, and 4.17 in plantations. They state that the President’s Decree was indeed published on 17 de octubre del 2008 and is not unlawful in any respect. They explain that the Ley Forestal permits forest management (manejo forestal) of privately owned forests for works or projects declared to be in the public interest (interés público) and of national benefit (conveniencia nacional), where land-use change is necessary under forest management plans, pursuant to Articles 33 and 34.They state that the project underwent an environmental impact assessment (evaluación de impacto ambiental) and was granted environmental approval (viabilidad ambiental) number 3638-2005 SETENA. They further state that the petitioner (recurrente) quoted Articles 19 and 34 of the Ley Forestal only in part, and that, through Article 19, the legislature clearly established the manner in which forests are to be managed: although land-use change for timber purposes is prohibited, that prohibition is not absolute. On the contrary, the legislature prudently provided the State with a mechanism for authorizing activities in cases where national benefit so warrants, provided that the purpose of the land-use change is something other than the mere exploitation of timber resources, with the corresponding declaration being the responsibility of the Executive Branch. They state that studies have been conducted over a period of ten years and that the impacts, mitigation measures (medidas de mitigación), and compensation measures for impacts that cannot be mitigated have been duly assessed.They note that the declaration of public interest and national benefit was preceded by an extensive study of the case in relation to the Plan Nacional de Desarrollo and the objectives of Paz con la Naturaleza, both documents being governed by the principle of sustainable development (principio de desarrollo sostenible), insofar as they require the project to satisfy three dimensions of viability: environmental, social, and economic. They state that there is sufficient scientific certainty that the green macaw population and its habitat will not be endangered. According to the environmental management plan (plan de gestión ambiental) attached to the Environmental Impact Study (Estudio de Impacto Ambiental), the project’s entire area is used by the green macaw only occasionally as a passageway; it was also determined that the area is not a nesting site for this species, and therefore only the birds’ food source must be ensured, for which the maintenance and enhancement of an inter-numbered biological corridor is contemplated.The project includes a total area of 382 hectares to be reforested, of which 42 have been reforested with the almond tree species, totaling 2500 trees of that variety; in addition, a 2-hectare nursery was established with the capacity to produce 67.500 trees per year. The environmental commitments (compromisos ambientales) established were: 1- Installation of a training center for the INA to provide courses in sewing and garment-making, aquaculture, organic agriculture, cheese production, fabric painting, and food handling, thereby generating new small businesses and benefits. 2- Direct jobs during the construction phase: 300; indirect jobs: 1.265; during the operational phase: 250. 3- Improvement of the quality of life of 7 communities: support for the cooperative of community producers, quality-of-life improvement programs, and improvement of the water-supply system. 4- Before construction of the project, the company began a series of programs (training for microentrepreneurs, job training, creation of an Oficina de Atención al Ciudadano, construction of 4 bridges, road maintenance, among others). 5- Employment for 11 years. 6- The investment will be US $65.000.000, which will be used to purchase materials, professional services, machinery, contractors, etc. 7- An annual payroll of US $4.132.859. 8- The collection, over eight years, of local taxes totaling -US $11.529.263 and central-government taxes totaling $70.322.309. 9- A trust (fideicomiso) is maintained to develop social projects and activities through the monitoring commission, which would receive US $364.063 per year.They further state that, in constitutional-review proceedings, the exception provided for in Articles 19 and 34 of the Ley Forestal was declared constitutional in judgment number 2006-17126. They reject the allegations concerning the Decree, stating that it does have sufficient technical and scientific support. They explain that the Environmental Management Plan guarantees the water balance (balance hídrico), for which a hydrogeological study was attached. The lake is important to that balance because the waste rock will thereby remain covered, acid drainage will not occur, and aquatic ecosystems will not suffer environmental damage. They request that the amparo petition (recurso de amparo) be denied.
2. 5In a written submission filed on 24 de octubre de 2008, Marcos Elizondo A. states his opposition to the project and requests that the petition be granted (folio 116).
3. 6By a decision issued at once horas y trece minutos del veintiocho de octubre de dos mil ocho, the Justice-Rapporteur (Magistrada Instructora) ordered that the written submission filed by FECON be severed so that it could be processed as a new matter, because it alleged that Article 2 of Decreto Ejecutivo 25721-MINAE was unconstitutional. (folio 118).
4. 7In a decision issued at catorce horas y nueve minutos del veintiocho de octubre de dos mil ocho, the Justice-Rapporteur clarified the interim suspension measure (medida cautelar de suspensión) and ordered the suspension of all logging, including the application of Decreto Ejecutivo 34801-MINAET (folio 119).
5. 8Folios 127 and 128 of the case file contain the request made by the Fiscalía General for the administrative case files (expedientes administrativos) relating to the mining project in connection with the criminal proceedings brought against the President of the Republic for the offense of rendering an unlawful decision (Prevaricato).

9- In a written submission, Carlos Navarro Fumero requests that the permit to destroy the forest be revoked (folio 129).

10-. In written submissions appearing at folios 130 to 139, Henry Arias, Sharling Arcia Arce, Adriana Garuolis, Estefanía Fresno Vega, Elena González, Adult Dentistry of Costa Rica, Daniel Sánchez, and the Asociación para la Conservación y el Desarrollo Sostenible de los Cerros de Escazú express their opposition to the Crucitas project and advocate for environmental protection.

11- In a written submission filed on 31 de octubre de 2008, José Merino del Río and FECON request that the Chamber grant them a period within which to file a constitutional challenge (acción) (folio 141).

1. 12On 31 de octubre de 2008, the following deputies from the Fracción del Partido Acción Ciudadana entered an appearance before the Chamber: Patricia Romero B, Marvin Rojas, Sergio Alfaro Salas, José Joaquín Salazar, Leda Zamora Chaves, Alberto Salom, Orlando Hernández Murillo, Patricia Quirós Quirós, Lesvia Villalobos Salas, Olivier Pérez González, Rafael Elías Madrigal Brenes, Francisco Molina, as well as José Merino del Río and Oscar López, as supporting intervenors (coadyuvantes activos), requesting that Decreto Ejecutivo número 34801-MINAET be declared unconstitutional (folio 143).
2. 13In a written submission filed on 3 de noviembre de 2008, V. Vargas Elizondo, Wyna Araya Salazar, Víctor Peña N., Rolando Solano, Eduardo Chinchilla Blanco, Cristian Villegas Araya, Mario Alfaro, Daniel Campos Rodríguez, César Stiven León Solís, Mainor Q. B., Marta Quirós, Jorge Miranda Porras, Vilmer Castro, Carlos Luis Rojas Porras, Adrián Ramírez, Luis A. Suárez, Jeffrey Morera Chacón, Walter Rojas Oviedo, Deylin Bolaños Araya, and Franciny Alfaro request recognition as intervenors (coadyuvantes), although they do not indicate whether as opposing or supporting intervenors (pasivos o activos) (folios 148 to 152).

14- In written submissions attached at folios 154 to 158 of the case file, Jonathan Rodríguez Berrocal, Franklin Araya Gamboa, and Priscila Gamboa Calvo request recognition as intervenors, although they do not indicate whether as opposing or supporting intervenors.

15- Juan José Bolaños, [Nombre 021], Jeannina Barrientos Ching, Diego Grooscors Antillón, Leonor Isabel Antillón, Ronaldo Hirsch Keibel, and Isaac Jiménez Morera express their disapproval of the project and advocate for a healthy environment (folios 160 to 167).

16- In written submissions attached at folios 169 to 171 and 183 of the case file, [Nombre 003], [Nombre 004], and [Nombre 005] request recognition as intervenors, although they do not indicate whether as opposing or supporting intervenors.

17- [Nombre 006], [Nombre 007], [Nombre 008], [Nombre 009], [Nombre 010], [Nombre 011], [Nombre 012], [Nombre 013], [Nombre 014], [Nombre 015], [Nombre 016], [Nombre 017], [Nombre 018], [Nombre 019], [Nombre 020], [Nombre 021], [Nombre 022], [Nombre 023], [Nombre 024], [Nombre 025], [Nombre 026], [Nombre 027], [Nombre 028], [Nombre 029], [Nombre 030], [Nombre 031], [Nombre 032], [Nombre 033], [Valor 002], [Nombre 034], [Nombre 035], [Nombre 036], [Nombre 037], [Nombre 038], [Nombre 039], [Nombre 040], [Nombre 041], [Nombre 042], [Nombre 043], [Nombre 044], [Nombre 045], [Nombre 046], [Nombre 047], [Nombre 048], [Nombre 049], and [Nombre 050] express their support for the amparo proceeding against the mining project (folios 173 to 181 and 185 to 197, 202, 204, 207, 217, 219, 223, 231, 233, 235, 237, 239 to 249, 255).

18- In a written submission filed at folio 199, the petitioner requests that the Chamber order an expert examination (peritaje) and an inspection of the site, as well as the taking of testimony from two local residents.

19- On 3 de noviembre de 2008, Nicolás Boeglin forwarded to the Chamber the statements of the Universidad Nacional and the Universidad de Costa Rica rejecting open-pit mining (minería a cielo abierto) (folio 209).

20- On 3 de noviembre de 2008, José Eduardo Vargas Rivera, in his capacity as President of the Instituto Latinoamericano de Derechos Humanos y La Paz Social, enters an appearance in support of the government, stating that the matter involves controlled deforestation that produces no impact, but rather a broader reforestation program. He states that education and employment opportunities must be improved in order to eradicate poverty and crime (folio 226).

21- From folio 257 to 436, several persons enter appearances in the case file in support of this amparo petition.

22- John Thomas and Arnoldo Rudín Arias, both acting in their capacity as attorneys-in-fact with full powers of Industrias Infinito S.A. (folio 437), report that the project in question is a project whose exploration phase (fase de exploración) took place from 1993 to 1998. In 2001 it was granted the mining concession (concesión minera), and in the following year the environmental impact study (estudio de impacto ambiental) was submitted to SETENA. In 2004, the public hearing (audiencia pública) was held in the community, and in the following year SETENA granted environmental feasibility approval (viabilidad ambiental) for the saprolite model. In 2008 SETENA granted environmental feasibility approval for modifications to the project, including: 1- the extraction area was reduced by 60%, so that it will occupy only 15% of the property; 2- the area to be reforested was increased from 336 hectares to 382, using native species for conservation purposes; 611 thousand trees will be planted, thereby connecting more than 800 existing hectares of fragmented forest, which is equivalent to conserving approximately one million additional trees. 3- 30 thousand liters of diesel per day will not be used to generate electricity with a generating plant approved by SETENA, and therefore 3.3 tons of CO2 will not be emitted. 4- To supply electricity to Crucitas, the company will donate to COOPELESCA a 69 KW, $6 million, 74 km transmission line, to which other companies will be able to connect. 5- In the mining process (proceso de minado), clay materials or saprolite and the hard rock containing the gold will be obtained and processed by leaching (lixiviado) in a closed-loop tank cyanidation circuit (circuito cerrado de cianuración), using completely enclosed and controlled tanks located in a safe area capable of containing, in an emergency, the entire existing volume, thereby providing an additional safety factor of more than 20%.

It will operate independently, allowing the recirculation of process water and processing inputs; that is, it will be a hydraulically closed circuit. A cyanide destruction plant also operates continuously through the Cyplus process, reducing the levels even below those required by the regulations in force. Explosives will be used safely and in accordance with the law. A Joint Environmental Monitoring and Control Commission (Comisión Mixta de Monitoreo y Control Ambiental) has already been established, consisting of 14 members representing each of the seven communities in the area, the DGM, the Municipality, the company, the Ministerio de Salud, ACAHN, SETENA, the environmental association involved, as well as an Environmental Monitoring Commission (Comisión de Monitoreo Ambiental). As to acid drainage (drenaje ácido), it occurs when sulfide minerals contained in rocks oxidize upon exposure to air and water; if any of those factors does not interact with the others, it does not occur.

In any event, they use a safety factor whereby everything is kept submerged 2 meters below the water level in the tailings area (área de relaves), as in Canadá and Europa, which is why it is called Laguna de Relaves. The company has invested $57.553.519.00 in the project. Regarding water matters: by official letter number IMN-DA-1358-2008 dated diecinueve de mayo del año pasado, the Departamento de Aguas validated the Inventory of Watercourses in the Extraction Area, the Tailings Reservoir, and Flow Measurements at the Intake Sites (Inventario de Corrientes en la Zona de Explotación, el Embalse de Relaves y Aforos en los Sitios de Captación). Likewise, by official letter number ASUB-279-2008 dated catorce de julio siguiente, SENARA endorsed the study entitled “Hydrogeological Study (Estudio Hidrogeológico)” (although it refers only to the fuel tank); moreover, the project is inspected continuously, there are more than 20 monitoring plans and environmental protocols, and a Technical Mine Closure Plan (plan de Cierre Técnico de la Mina) is in place.

Three years ago, the company implemented the installation and maintenance of a forest nursery containing species native to the area, and to date there are more than 67.500 native trees, of which 15,000 are yellow almond trees; approximately 15 hectares have been reforested, corresponding to approximately 24.000 trees already planted, and pasture areas have been reforested for the past ten years. With the land-use change (cambio de uso de suelo), the species to be cut are not from primary forest but from secondary forest. The land-use change was permitted because of all the compensation measures that had to be implemented in connection with reforestation, since fifty trees must be planted for every tree cut down, and one hundred for every almond tree, within the areas to be reforested, comprising 382 hectares. The proceeds from timber sales finance other protection areas, monitoring activities will be financed, as will a trust fund for investments in the community.

They state that there is no protected wildland area (área silvestre protegida) within the project area. They indicate that the conditions of the streams and rivers within the project’s area of influence, as well as the watercourses, were adequately studied in the environmental impact study and its annex. They state that the regional aquifer is not used by the community and is not potable (because of its pH or acidity values). With respect to the shallower aquifer, it is highly constrained by topographic variations and, given the distance at which it lies, it would not even extend as far as the open pits. They state that this aquifer contains clay materials, meaning that it has low to very low productivity and is covered by a highly impermeable surface; consequently, the possibility of any contamination infiltrating it is very low to nonexistent. The great green macaw’s nesting area lies outside the project area; the project area is indeed a transit and foraging area, which is being addressed through the measures to be taken.

The area contains multiple stands of almond trees; there are 3.200 almond trees for every pair of macaws. They argue that the project is technically well supported. Both SETENA and the Dirección de Geología y Minas assessed its social, environmental, and economic feasibility. They indicate that the petitioner provides no technical evidence refuting the technical criteria supporting the project or demonstrating that environmental harm is occurring. The challenged Decreto is based on provisions that authorize mining and declare it to be in the public interest. Likewise, the project complies with the considerations previously issued by this Chamber concerning sustainable development (desarrollo sostenible) (see judgment Número 2005-16376). They state that the project has complied with all legal provisions and that the petitioner seeks a ruling from the Chamber on matters of an entirely technical nature, which is improper.

The environment is not being placed at risk, since all the studies show that the activity in question will not cause serious or irreversible harm. Nor does the mining activity contravene international conventions, as the Chamber has held in amparos 98-1742-007-CO and 02-2714-007-CO. They indicate that, as a result of the suspension ordered by the Chamber, the company had to suspend its existing contracts, causing the contractors to dismiss nearly 100 workers and preventing the company from implementing the corresponding environmental mitigation measures (medidas de mitigación ambiental). They request that the petition be denied and that they be permitted to implement the necessary mitigation measures.

23- At folios 567 to 876, 879 to 899, 966 to 971, 993 to 1007, 1087, 1089, 1091, 1095, 1096, 1098, 1133, 1134, 1316, 1318, 1345, 1348 to 1366, 1371, 1373, 1796, 1807 and 1808, several persons enter an appearance in the case file in support of this amparo petition (recurso de amparo).

24- On 22 de noviembre de 2008, the MINISTERIO DE AMBIENTE, ENERGÍA Y TELECOMUNICACIONES requested supplementation and clarification of the interim measure (medida cautelar) ordered by this Court, because the measure was extended to encompass the development of infrastructure works within protection areas (áreas de protección) (folio 877).

25- In a written submission filed on 24 de octubre del 2008, [Nombre 002] filed amparo petition 08-014454-0007-CO, alleging disagreement with Proyecto Minero Las Crucitas in Cutris de San Carlos. In that connection, the petitioner states that the project was declared to be in the public interest by means of a Decreto Ejecutivo, without taking into account endangered tree species or the list of tree species whose “cutting” is prohibited. The petitioner asserts that an extraction permit (permiso de explotación) was granted to Empresa Minera Industrias Infinito S.A, which proceeded to fell trees in the area where the project was to be developed, including protected trees such as the Almendro, according to Constitutional Chamber decision 13426-2008. For that reason, the petitioner considers that the respondent authorities permitted “the indiscriminate felling of endangered native species” (see folio 1 of the case file).

The petitioner further indicates that the Ley Forestal and its Reglamento do not permit a complete land-use change and therefore considers that “the removal of all tree cover (cobertura arbórea) constitutes a land-use change.” In addition, the petitioner states that open-pit mining projects (proyectos mineros a cielo abierto) pose a threat to public health because they use highly toxic chemicals, which could harm the residents of the Cutris de San Carlos area. Consequently, in the petitioner’s view, the content of that Decreto is contrary to law and therefore unlawful, for which reason the petitioner asks the Chamber to grant the petition and declare that Decreto null and void (folio 901).

26- By order Número 16489 issued at veinte horas y veintiocho minutos del treinta de octubre del dos mil ocho, amparo 08-14454 was consolidated with this case file (folio 911).

27- With respect to the amparo proceeding in case file number 08-14454-0007-CO, Sonia Espinoza Valverde, in her capacity as Secretary General of SETENA, reports under oath (folio 913) that the reports submitted in amparos 08-008647-0007-CO, 08-014068-0007-CO, and 08-014464-0007-CO must be added to the response provided. She indicates that the forested area (área boscosa) to be affected is 191.78 hectares, of which 66 have been cleared, that is, 30% of the total. The net forest area will be 804 hectares devoted to forest protection, while the pasture area to be reforested will comprise 382 hectares, of which 16 have already been planted with native species. Upon completion of the project, there will be 1.186 hectares of protected forest, and 611.200 trees will be planted. She indicates that the measures adopted in the environmental impact study will prevent contamination by chemical substances and that the project has an adequate water balance (balance hídrico); consequently, the natural subsurface water flows will not be substantially altered, with respect to either surface water or groundwater. She requests that the petition be denied.

28- In response to amparo proceeding 08-14454-0007-CO, Rodrigo Arias Sánchez, in his capacity as Minister of the Presidency, states under oath (folio 917) that, prior to the publication of the Decree, SETENA had granted environmental viability (viabilidad ambiental) on two occasions, incorporating all relevant modifications, which substantially improved the project and the benefits for the area, which currently depends on a monoculture. He reiterates the benefits already identified in SETENA’s report. Regarding the authorized logging (tala), he states that compensation for the proposed land-use change (cambio de uso del suelo) is set forth in recital IX of Executive Decree number 34801-MINAET. He states that the threefold viability of this Project—environmental, social, and economic—was assessed and is consistent with the Plan Nacional de Desarrollo and the objectives of Paz con la Naturaleza.

He asserts that no information has been concealed; this is a deliberate decision in which the removal of that area cannot be avoided, but other compensatory and mitigation measures can be taken, based on responsible advice and in compliance with the Ley Forestal. He states that both aquifers were assessed in the environmental impact study (estudio de impacto ambiental), but that they will not be affected, nor will the rivers and streams be polluted by the system to be implemented, known as CYPLUS, as alleged. He states that, in connection with potential pollution caused by an emergency, the environmental impact study contains a chapter entitled Contingency Plan (Plan de Contingencia), which addresses every type of contingency that could arise. In the event of earthquakes, the tailings pond (laguna de relaves) will have an overflow structure or spillway that was designed and approved in the environmental impact study and its Annex, in order to provide permanent stability to the dam and independently manage excess water during periods of maximum rainfall.

In addition to continuously monitoring the quality of the overflow water, a lime-dosing plant will be installed, as it will be at the pit outlets, so that the pH can be neutralized if necessary. The location of this plant constitutes an additional measure and an extra safety factor ensuring that the quality of the discharged water is acceptable, since it complies with international standards. The mining project area exhibits the same degraded characteristics as the surrounding area, where mosaic-type formations predominate, interspersed with extensive grasslands and certain agroecosystems, together with isolated forest patches of varying sizes. What has remained over time is an impoverished natural forest, alongside the development of secondary forest (bosque secundario). The almendro amarillo is a species found throughout the property where the project is being developed (1474 hectares), not only in the area where the infrastructure or extraction area will be established.

Regarding the Lapa Verde, he specifies: 1- the property is a transit area leading to the areas where the birds nest; the remaining almendro trees and thirty-seven additional species included in their diet, which also provide them with fruit and forage, ensure that the availability of food for these birds is not curtailed. 2- in open areas within the region, the almendro amarillo tree grows an average of 1.8 m in height per year during its first six years. Together with data indicating fruit production after seven to eight years, this provides certainty that degraded areas can be restored within a few years. 3- the project area is not a nesting area, as confirmed by the trees that were felled, in which no trace of nests was found. The developer of the Minero Crucitas project has undertaken to reforest 382 hectares within the property by planting 611.200 native-species trees, including on land previously degraded by extensive cattle ranching.

The Environmental Management Plan (Plan de Gestión Ambiental) provides for 20 monitoring plans during the project’s development, covering the physical and biological environments, to provide certainty that the proposed impact-mitigation measures are appropriate. The developer has also undertaken to ensure the proper handling and relocation of flora and fauna species that will be affected within the project area. Regarding the concern that the mitigation measures are not proportionate to the impacts caused by clear-cutting (tala rasa), the sampling of herbaceous species produced a total of 115 records, 56 of which correspond to species that had not previously been identified. A predominance of Araceae, mostly epiphytes, as well as members of the Rubiaceae and Melastomataceae families, was observed. Araceae species were reported in areas exhibiting some degree of regeneration, whereas fewer species were found in the most degraded areas—grasslands with scattered trees and scrublands—with grasses predominating.

He mentions that, in December two thousand six, FUNDATEC, affiliated with the Instituto Tecnológico de Costa Rica, through the Escuela de Ciencias Forestales, conducted a population study of merchantable tree species (especies de fustales) with diameters ranging from 10-29,9 centimeters. This analysis made it possible to provide the local Área de Conservación with appropriate scientific information concerning a disturbed secondary-forest stratum located within the project area (área de proyecto, AP). The study’s general conclusion was that the AP exhibits a floristic diversity of merchantable tree species that can be properly established in the areas to be reforested as part of the measures to mitigate and compensate for the project’s effects on vegetation cover (cobertura vegetal), particularly because these measures will not be undertaken merely as a reforestation activity; rather, the intent is to develop suitable habitats to form a biological corridor (corredor biológico) allowing small and medium-sized fauna species to travel and thereby facilitate the movement of seeds and fauna between the eastern and western sectors of the AP, which offer better habitat conditions than the highly fragmented disturbed forests found within the AP.

The forest-species inventory provides data on the number of trees, volume, and basal area per hectare, characterizing these as heavily logged areas. Although higher figures are observed and reported in some of the study plots, they do not reach the general averages for the region’s primary forests. Logged natural forests are regarded as “high-graded” natural forests from which virtually all material capable of generating profits was systematically extracted. Depending on the intensity of the interventions, what remains for an extended period is an impoverished natural forest, or a second-growth forest develops. In addition, the concessionaire submitted to the corresponding Área de Conservación a census prepared by a forestry regent (regente forestal), covering diameters greater than or equal to 30 centimeters, as well as a natural-regeneration study covering smaller diameters. SETENA, meanwhile, was provided with the number of trees to be removed and the corresponding prevention, mitigation, and compensation measures, information contained in the Environmental Management Plan that was assessed and approved by that body.

He states that these studies make it possible to ensure full knowledge of the available resources and made it possible to assess whether the mitigation and compensation measures contained in the Environmental Management Plan were appropriate; on that basis, Environmental Viability was granted. Regarding the corridor connecting Refugio Maquenque with lndio Maíz, that corridor lies within the project’s indirect area of influence, rather than its direct area of influence, and its impact was analyzed in the environmental impact assessment (evaluación de impacto ambiental), which determined the project to be viable. He asserts that the Administration has violated neither Article 50 of the Constitution nor the precautionary principle (principio precautorio) through the issuance of the Executive Decree and the forestry-permit decision authorizing the land-use change, because those acts comply with the principle of legality (principio de legalidad) and fall within the Executive Branch’s constitutional authority.

Nor does it disregard the rulings issued by this Constitutional Chamber on the subject; the generally applicable provisions establishing the ban on the almendro and the rulings issued on the matter are being observed, and no repeal or contrary provision exists. The decree declaring national benefit (conveniencia nacional) is an exceptional procedure provided for by law and adopted by the Executive Branch with full certainty regarding the impacts and the validity of the proposed compensation measures. The declaration of public interest and national benefit issued by the Executive Branch was preceded by an extensive study of the case in relation to the Plan Nacional de Desarrollo and the objectives of Paz con la Naturaleza, which, as already stated, are consistent with the Principle of Sustainable Development (Principio de Desarrollo Sostenible). Other factors were also considered, including the views expressed by other Costa Rican citizens who support the project and have sent letters contained in the case file, citizens who call upon the country to make decisions that will provide them with development opportunities and improve the quality of life of their families and communities.

The decision-making process was supported and grounded in knowledge of the various issues and in the scientific assessment available to the State, which it deemed appropriate and sufficient to act with scientific certainty. Every action was based on access to precise and accurate information regarding the project’s anticipated environmental impacts, the area of forest cover (cobertura forestal) to be removed, and the studies and actions undertaken by the State to obtain scientific certainty that the Lapa Verde population will not be affected. The State is in no way lacking certainty; on the contrary, it is the petitioner who lacks certainty and knowledge of the case files and who has doubts that the Administration could have resolved had he submitted inquiries. It is not true, as the petitioner claims, that Decree number 34801-MINAET failed to consider matters relating to the forest, flora and fauna species, or water resources; as has been explained, even if the Decree itself does not expressly state so, all the studies providing technical support exist.

Regarding the allegation that the project entails “destroying and razing the entire stream protection zone” and “diverting one or more streams,” thereby affecting surface water bodies and aquifer-recharge zones (zonas de recarga acuífera), the Management Plan guarantees the water balance (balance hídrico). The developer attached a detailed hydrogeological study establishing that, at the end of the project, both groundwater and surface water will have an adequate water balance. The lake is very important to that water balance because, once it is created, the waste rock (material estéril) will be covered, thereby preventing acid drainage (drenaje ácido) and ensuring that aquatic ecosystems are not subjected to environmental harm. He states that the Executive Branch acted in accordance with the law and that the decree in question was issued within the lawful scope of its authority. He requests that the petition be dismissed.

29- Roberto Dobles Mora, in his capacity as Minister of the Ministry of Environment, Energy and Telecommunications, and Sonia Espinoza Valverde, in her capacity as Secretary General of SETENA, submitted their report concerning the writ of amparo (amparo) 08-014454-0007-CO, in exactly the same terms as the Minister of the Presidency. They also requested that the consolidated writs of amparo 08-014164-0007-CO, 08-014454-0007 CO, 08-014488-0007 and 08-014593 be deemed answered. (folio 938) 30- In a written submission filed on 24 de noviembre de 2008, Sandra Arredondo, in her capacity as environmental manager (regente ambiental) of the Mina Crucitas project, expressed to the Chamber her concern regarding the suspension of the project as an interim measure (medida cautelar), because of the consequences that could arise from being unable to implement mitigation measures (medidas de mitigación) (folio 973).

31- In a written submission received on 25 de noviembre de 2008 (folio 1008), Roberto Dobles Mora, in his capacity as Minister of Environment, Energy and Telecommunications, states in amparo 08-0014592-0007-CO that he is submitting a request for the partial lifting of the measure imposed by the Chamber. This request is based on the fact that an inspection conducted on 13 de ese mes de noviembre by the Project’s Institutional Monitoring, Control, and Oversight Commission determined that the activities carried out had not generated environmental impacts (impactos ambientales) not anticipated in the studies and that the company had complied with the suspension of the relevant works. Nevertheless, authorization is requested to carry out certain activities because suspension of the project could itself produce adverse environmental effects that had not been contemplated. The requested authorization is permission to remove the felled timber, properly dispose of and treat the plant waste present in the open-pit areas and the tailings pond, clear the surface-water drainage channels and their respective protection zones, and maintain adequate phytosanitary control within the project.

It is also requested that forest-protection measures be adopted, that the implementation and completion of works for sediment control and soil conservation be permitted, and that the monitoring process be carried out.

32- On 25 de noviembre de 2008, John Thomas and Arnoldo Rudín Arias, in their capacity as attorneys-in-fact with full powers (apoderados generalísimos) of Industrias Infinito S.A., request that a hearing be held (folio 1021)- 33- In a written submission filed on 23 de octubre de 2008, Jorge Rodríguez Fonseca, identification card 3-234-169, files amparo 08-0014375-0007-CO, in which he states that he does not agree with the Mining Project intended to be developed in the Cutris de San Carlos area. He indicates that approval of the project will result in the deforestation of hectares of forest. He states that he works exclusively in tourism and therefore believes that approval of the project in question will cause many people to lose their jobs, principally those who work in tourism. He considers his fundamental rights to have been violated. The petitioner requests that the action be granted, with the consequences prescribed by law.

34- By resolution number 2008-16545, case file (expediente) 08-14375 was consolidated with this case file (folio 1027).

35- Mario José Suazo Palma, identification card 8-062-004, files amparo 08-0014461-0007-CO and alleges that a private company has been granted permission to conduct open-pit mining operations in Las Crucitas, which will cause harm to nature and to the bird and mammal species inhabiting that location. He states that there is talk of conserving nature, yet, to the contrary, the mountains and all the living beings in the forest will be destroyed. He requests that the action be granted (folio 1030).

36- By resolution number 16549 of catorce horas y treinta y cinco minutos del cinco de noviembre del dos mil ocho, amparo 08-0014461-0007-CO was consolidated with this case file (folio 1035).

37- Rebeca Naranjo Unfried, of legal age, single, identification card 1-1297-553, a resident of Plaza González Víquez, files amparo 08-014533-0007-CO, in which she alleges that an analysis of the articles relied upon by the Executive Branch in Decreto Ejecutivo número 34801-MINAET shows that it adopted its own interpretation of the law, thereby exercising powers outside the scope of its authority, because it uses only portions of the articles, fails to place them in context, and does not use the definitions established by artículo 33 for the application of artículo 34 of the Ley Forestal. She states that the protected tree species (especies de árboles vedadas) found in this area do not fall under any of the circumstances established by artículo 33 of the cited Law and therefore are likewise not subject to the circumstances contemplated in artículo 34. There is thus an evident violation of artículo 11 of our Constitución Política, because the public officials responsible for this decree assumed powers they do not possess by interpreting the law, as well as a breach of the constitutionally enshrined Principle of Legality (Principio de Legalidad), since the objective sought through this decree cannot be supported by the laws relied upon to issue it.

She considers the content of that Decree contrary to law and therefore unlawful, for which reason she requests that the Chamber grant the action, declare the Decree null and void, and set aside all resolutions issued pursuant to it (folio 1037).

38- By resolution Número 16547 of catorce horas y treinta y tres minutos del cinco de noviembre del dos mil ocho, amparo 08-0014533-0007-CO was consolidated with this case file (folio 1047).

39- In a written submission filed on 29 de octubre de 2008, Adriana Naranjo Rojas, of legal age, single, identification card 1-1149-229, a resident of Guadalupe, files amparo 08-014653-0007-CO (folio 1052), in which she indicates that Decreto Ejecutivo número 34801-MINAET, issued at the Presidencia de la República at trece horas del trece de octubre del dos mil ocho by the Presidente de la República de Costa Rica and the Ministro del Ambiente, Energía y Telecomunicaciones, bases its authorization to fell protected species, in this case the almendro tree, on Sala Constitucional judgment número 2002-002486 of diez horas y cincuenta y cuatro minutos del 08 de marzo del 2002 and on artículos 19 y 34 of the Ley Forestal. She indicates that the cited articles provide that land use (uso de suelo) may be changed for projects serving the national interest (conveniencia nacional). However, the protection regime applicable to the almendro trees located in the Proyecto Minero Las Crucitas area does not arise from land-use regulation, and therefore the cited judgment has erga omnes effect and may be modified only by a decision of the Sala Constitucional itself, not by an Executive Decree.

She notes that an analysis of the articles relied upon by the Executive Branch in the aforementioned Decree shows that it adopted its own interpretation of the law, thereby exercising powers outside the scope of its authority, because it uses only portions of the articles, fails to place them in context, and does not use the definitions established by artículo 33 for the application of artículo 34 of the Ley Forestal. She states that the protected tree species found in this area do not fall under any of the circumstances established by artículo 33 of the cited Law and therefore are likewise not subject to the circumstances contemplated in artículo 34. There is thus an evident violation of artículo 11 of our Carta Magna, because the public officials responsible for this decree assumed powers they do not possess by interpreting the law, as well as a breach of the constitutional principle known as the Principle of Legality, since the objective sought through this decree cannot be supported by the laws relied upon to issue it.

She considers the content of that Decree contrary to law and therefore unlawful, for which reason she requests that the Chamber grant the action, declare the Decree null and void, and set aside all resolutions issued pursuant to it. She considers that these facts violate the fundamental rights established in artículos 10, 11, 50, 56, 140, 148 y 149 of the Constitución Política. The petitioner requests that the action be granted, with the consequences prescribed by law.

40- By resolution number 16548 of catorce horas y treinta y cuatro minutos del cinco de noviembre del dos mil ocho, amparo 08-0014653-0007-CO was consolidated with this case file (folio 1057).

41- On 30 de octubre de 2008, Esteban Dato Morice, of legal age, single, a resident of Cartago, identification card 1-1206-450, files amparo 08-0014715-0007-CO (folio 1065), in which he states that Decreto Ejecutivo número 34801-MINAET, issued at the Presidencia de la República at trece horas del trece de octubre del dos mil ocho by the Presidente de la República de Costa Rica and the Ministro del Ambiente, Energía y Telecomunicaciones, bases its authorization to fell protected species, in this case the almendro tree, on Sala Constitucional judgment número 2002-002486 of 10:54 horas del 08 de marzo del 2002 and on artículos 19 y 34 of the Ley Forestal. He indicates that the cited articles provide that land use may be changed for projects serving the national interest. However, the protection regime applicable to the almendro trees located in the Proyecto Minero Las Crucitas area does not arise from land-use regulation, and therefore the cited judgment has erga omnes effect and may be modified only by a decision of the Sala Constitucional itself, not by an Executive Decree.

He notes that an analysis of the articles relied upon by the Executive Branch in the aforementioned Decree shows that it adopted its own interpretation of the law, thereby exercising powers outside the scope of its authority, because it uses only portions of the articles, fails to place them in context, and does not use the definitions established by artículo 33 for the application of artículo 34 of the Ley Forestal. He states that the protected tree species found in this area do not fall under any of the circumstances established by artículo 33 of the cited Law and therefore are likewise not subject to the circumstances contemplated in artículo 34. There is thus an evident violation of artículo 11 of our Carta Magna, because the public officials responsible for this decree assumed powers they do not possess by interpreting the law, as well as a breach of the constitutional principle known as the Principle of Legality, since the objective sought through this decree cannot be supported by the laws relied upon to issue it.

He considers the content of that Decree contrary to law and therefore unlawful, for which reason he requests that the Chamber grant the action, declare the Decree null and void, and set aside all resolutions issued pursuant to it. He considers that these facts violate the fundamental rights established in artículos 10, 11, 50, 56, 140, 148 y 149 of the Constitución Política. The petitioner requests that the action be granted, with the consequences prescribed by law.

42- By resolution number 16546 of catorce horas y treinta y dos minutos del cinco de noviembre del dos mil ocho, amparo 08-0014715-0007-CO was consolidated with this case file (folio 1073).

43- In a filing submitted on 4 de noviembre de 2008, Manuel Antonio Brenes Corrales, holder of identity card 3-203-250, filed the amparo proceeding (amparo) 08-014905-0007-CO (folio 1078), stating that the President and the Minister of Environment signed a Decree granting Industrias Infinitas S.A. permission to operate the Las Crucitas project in Cutris de San Carlos for the purpose of extracting gold. He asserts that the Decree violates all environmental law, despite knowledge that the area is protected. In addition, the land, flora, fauna, and Río San Juan are threatened. He considers Articles 50 and 51 of the Political Constitution to have been violated. He requests that the petition be granted, with the consequences prescribed by law.

44- By ruling number 16544 at fourteen hours and thirty minutes on cinco de noviembre del dos mil ocho, amparo 08-014905-0007-CO was consolidated with this case file (folio 1081).

45- By a ruling issued at eleven hours and thirteen minutes on veinticinco de noviembre del dos mil ocho, Justice Salazar requested, as evidence to assist adjudication (prueba para mejor resolver) (folio 1084), that SETENA submit a report identifying and certifying the instruments authorized and used to determine the cost-benefit relationship underlying the conclusion that the authorized removal of ciento noventa y dos hectares of forest in the case under review would provide the State with a socioeconomic benefit greater than the socio-environmental cost, as well as the outcome of that assessment, with a detailed explanation of the technical reasons supporting the corresponding conclusion.

46- By a ruling issued at eleven hours and twenty-nine minutes on veinticinco de noviembre del dos mil ocho (folio 1085), Justice Salazar requested, as evidence to assist adjudication, that the Director of the Escuela de Geología de la Universidad de Costa Rica provide the analyses conducted by three professors from that school concerning the environmental impact study (estudio de impacto ambiental) for the mining project submitted by the School to SETENA on 3 de julio del 2002, pursuant to official letter GD-371-02.

47- By a ruling issued at eleven hours and forty-nine minutes on veinticinco de noviembre del dos mil ocho (folio 1086), Justice Salazar requested, as evidence to assist adjudication, a report from SENARA certifying whether aquifers (acuíferos) exist in the region where the community of Las Crucitas, Cutris District, San Carlos Canton, Province of Alajuela, in the northern part of the country, is located; their use, size, recharge and discharge sites; and their significance for regional and national water resources. The report was also to state whether studies exist regarding the impact that mining activity conducted in the area could have on the existing aquifers and at the sites where they might discharge.

48- In a filing submitted on 2 de diciembre de 2008, Arnoldo Rudín, in his capacity as General Manager of Industrias Infinito S.A., reiterates his request that the Chamber hold a hearing (vista) (folio 1100).

49- On 2 de diciembre de 2008, Luis Guillermo Obando Acuña, in his capacity as Acting Director of the Escuela Centroamericana de Geología, responded to the request issued by this Chamber (folio 1104), stating that he was uncertain which documents had been submitted at that time, but that he was now providing official letter SG 1045-2002 of 2 de julio del 2002, official letter GD-371-02 of 3 de julio del 2002, and other documents received by that School from a mining geologist on 20 de junio de 2002, an environmental geology professor on 10 de junio del 2002, and an Environmental Auditor on 3 de junio del 2002.

50- In filings submitted on 25 de noviembre and 2 de diciembre de 2008, Arnoldo Rudín, in his capacity as General Manager of Industrias Infinito S.A., reiterates his request that the Chamber hold a hearing (folios 1137 and 1138).

51- Folio 1139 contains the transmission by the Office of the President of the Chamber to this case file of the note dated 9 de diciembre de 2008 in which the respondent company requests a hearing in this matter.

52- In a filing submitted on 3 de diciembre de 2008, Sonia Espinoza Valverde, in her capacity as Secretary General of SETENA (folio 1140), responds to the ruling requesting evidence to assist adjudication, stating that authority to declare a project to be of national interest (conveniencia nacional) rests with the President and the relevant Minister and that SETENA has no involvement in that determination. She further states that SETENA does not determine whether trees may be cut, as that responsibility belongs to SINAC. Within its jurisdiction, SETENA analyzes the project’s environmental impacts. She reiterates that the area to be affected is not 192 hectares but 191.77, and reiterates the grounds set forth in the previous reports.

53- In a filing submitted on 4 de diciembre de 2008 at folio 1143, Bernal Soto Zúñiga, in his capacity as General Manager with powers of an unlimited general attorney-in-fact (apoderado generalísimo sin límite de suma) of the Servicio Nacional de Aguas Subterráneas Riego y Avenamiento (SENARA), submits a report and states that, for the analysis requested by the Chamber, he commissioned the Área de Aguas Subterráneas del SENARA to certify whether aquifers exist in the community of Las Crucitas, Cutris District; their use, size, recharge and discharge sites; and their significance for regional and national water resources, as well as whether studies exist regarding the impact that mining activity conducted in the area could have on the existing aquifers. Pursuant to official letter number ASUB 543-08 dated 3 de diciembre del 2008, no wells or springs (nacientes) are registered within a radius of 10 kilómetros from coordinate 316000-501000 Lambert Norte.

Nor are any illegal springs or wells registered, which does not mean that none exist. SENARA has not conducted hydrogeological studies in the area. He states that no environmental impact studies for the Crucitas project assessing the impact of mining activity in the area on the aquifers have been submitted. Only the assessment of one case involving the installation of a fuel tank has been processed, and it was addressed through note ASUB 279-08. The submitted hydrogeological study indicates that 2 aquifers are located in the area. This study presented geological data for the entire area, as well as groundwater contour lines (isofreáticas) for the lower aquifer, based on exploratory drilling conducted to evaluate the feasibility of mining operations. He states that the study submitted on that occasion defines the site-specific conditions where the fuel tank is intended to be installed, rather than regional hydrogeological conditions, because the study was a site-specific assessment.

54- In a filing submitted on 8 de diciembre de 2008, Eliécer Rodríguez Carmona, in his capacity as President of the Junta de Educación de Las Crucitas de Cutris, expresses support for the Mining project because of all the benefits obtained (folios 1219 to 1221).

55- In filings received on 8 and 14 de diciembre de 2008, appearing at folios 1222, 1227, and 1258 to 1298, several employees of the respondent company entered appearances in the case file and expressed their agreement with the actions of the respondent authorities and company.

56- In filings received on 8 de diciembre de 2008, Lorena Castro Sandoval, in her capacity as Director of the Escuela Llano Verde, and Warner Rojas Quirós, in his capacity as President of the Comité de Caminos 2-110-104 for the Chamorro-to-Crucitas route, express their agreement with the project and with the actions taken by the respondent company (folios 1226 and 1228).

57- In a filing submitted on 8 de diciembre de 2008 at folio 1229, the Founders of COOPEVEGA DE CUTRIS, MORAVIA DE CUTRIS, CHAMORRO DE CUTRIS, CRUCITAS DE CUTRIS, LLANO VERDE DE POCOSOL, and JOCOTE DE POCOSOL submit their intervention in support of the respondent (coadyuvancia pasiva) and endorse the sustainable development of a community that had been neglected and that the company has succeeded in revitalizing.

58- In filings submitted on 8 de diciembre de 2008, the Asociación de Desarrollo Integral de Boca Arenal de Cutris, Almacén Coopevega y Estación de Servicio Coopevega, Asociación Pro Mejoras Chamorro y El Roble de Cutris, Asociación de Desarrollo Integral Llano Verde de Pocosol y Crucitas de Cutris, and ASOCRUCITAS express their support for the project (folios 1234, 1235, 1239, 1241, 1243).

59- On 9 de diciembre de 2008, residents of the communities of Ciudad Nelly, Corredores, Puntarenas, Palmar Sur, and Osa submit an intervention in support of the petitioner (coadyuvancia activa) in this matter (folios 1245 to 1250).

60- In a filing received on 10 de diciembre de 2008, the Executive Director of the Colegio de Geólogos de Costa Rica (folio 1252) attaches the statement issued by the Colegio de Geólogos de Costa Rica in support of the project.

61- On 11 de diciembre de 2008, the Municipalidad de San Carlos submits a certification stating that its Concejo Municipal supports the Mining project by majority vote (folios 1292 to 1298).

62- In a filing received on 11 de diciembre de 2008, the Comité Cantonal de Deportes y Recreación de San Carlos expresses its support for the Crucitas Mining project (folios 1299 to 1303).

63- Folios 1304 to 1315 of the case file contain submissions from residents of the area, the General Manager of the Asociación Deportiva San Carlos, the Director of the Ebais de Coopevega de Cutris, the President of the Asociación de Desarrollo Comunal de Coopevega de Cutris, the President of the Comité de Deportes de Coopevega, the Asociación de Mujeres Unidas de Coopevega, the group supporting the establishment of a Cruz Roja dispatch center in Coopevega, and Centro Turístico el Ranchón, supporting the Mining project.

64- With respect to the amparo proceeding processed under case file number 08-14454-0007-CO, on 12 diciembre de 2008 Jorge Rodríguez Quirós, in his capacity as Acting Minister of Environment, Energy and Telecommunications (folio 1320), stated that, through official letter DAJ-1829-08 dated 24 de noviembre de 2008, a request was submitted for the partial lifting of the measure imposed by the Chamber. This request was based on an inspection conducted on 13 de noviembre del 2008 by the Comisión Institucional de Seguimiento, Control y Fiscalización del Proyecto, which determined that the activities performed had not generated environmental impacts not anticipated in the studies and that the company had complied with the suspension of the relevant work. Nevertheless, authorization was requested to perform certain activities because suspension of the project could itself cause adverse environmental effects that had not been contemplated.

The requested permission is to remove the cut timber, properly dispose of and treat the plant waste present in the open-pit areas and the tailings pond (laguna de relaves), clear surface-water drains and their respective protection zones, and maintain adequate phytosanitary control within the project. It also includes adopting forest-protection measures, allowing the implementation and completion of sediment-control and soil-conservation works, and carrying out the monitoring process. An inspection conducted on 27 de noviembre de 2008 found that the same conditions remained; accordingly, they request that the Chamber rule on the matter. They attach the results of the inspections conducted.

65- On 15 de diciembre de 2008, Luis Obando Acuña, in his capacity as Acting Director of the Escuela Centroamericana de Geología de la Universidad de Costa Rica, submitted a statement in support of responsible mining activities (folio 1341).

66- On 16 de diciembre de 2008, petitioner Analive Arce requests a ruling on this amparo proceeding (folio 1344).

67- In a filing dated 19 de diciembre de 2008, Sonia Espinoza Valverde, in her capacity as Secretary General of SETENA, reiterates the arguments made in the previous reports in complying with the request for additional evidence to assist in adjudication (prueba para mejor resolver), which she submitted through official letter SG-AJ-1317-2008-SETENA (folio 1345).

68- On 12 de enero de 2009, Jorge Herrera Ocampo, in his capacity as Executive Director of the Colegio de Geólogos de Costa Rica, enters an appearance in the case file, considering that it is incumbent upon him to provide his opinion on the matter (folio 1347).

69- In a filing received on 20 de diciembre de 2008, Sonia Espinoza Valverde, in her capacity as Secretary General of SETENA, at folio 1367, responds to the evidence requested and states that Decreto número 32966-MINAE, corresponding to the Manual de Instrumentos Técnicos para el Proceso de Evaluación de Impacto Ambiental (Manual de EIA)—Parte IV, published in La Gaceta 85 of jueves 04 de mayo del 2006, establishes in its Anexo 2 the minimum methodology for assessing the environmental impacts caused by a project, work, or activity. The methodology for impact assessment provides for the use of an Environmental Impact Significance Matrix (Matriz de Importancia de Impactos Ambientales, MIIA), which makes it possible to determine the project’s effects and their significance and, consequently, to propose the corresponding prevention, mitigation, and compensation measures. She clarifies that although the Decreto was issued after the submission of the environmental impact study (Estudio de Impacto Ambiental, EIA) for the Proyecto Minero Crucitas, that instrument does incorporate an interaction matrix that made it possible to assess the environmental impacts, as may be verified on pages 301-429 of Volume II thereof.

At the same time, the document entitled Evaluación Ambiental de Cambios Propuestos al Proyecto, submitted on 6 de diciembre del 2007, constitutes an update to the MIIA on pages 32-53. The MIIA is a globally accepted tool for the qualitative assessment of projects that submit environmental assessment instruments, including Environmental Impact Studies (Estudios de Impacto Ambiental, EsIA); it helps determine the effect of each impacting action on every affected environmental factor and aspect, including the social and economic component, thereby determining the significance of the impact. The significance of the impact depends both on the degree of incidence or intensity of the alteration produced and on the characterization of the effect, which in turn is based on a series of qualitative attributes, such as intensity, extent, type of effect, manifestation period, persistence, reversibility, recovery capacity, synergy-accumulation, periodicity, and significance.

This impact significance is represented by a mathematical model that produces values between 13 and 100; impacts with significance values below 25 are irrelevant—that is, compatible—or the environmental measures were incorporated into the project design; moderate impacts have a significance between 25 and 50. They are severe when their significance is between 50 and 75 and critical when the value exceeds 75. The matrix allows socioeconomic factors to interact with the other environmental components that must necessarily be analyzed, which in turn makes it possible to propose the respective prevention, mitigation, and compensation measures incorporated into the Environmental Management Forecast-Plan (Pronóstico-Plan de Gestión Ambiental, P-PGA). Once the P-PGA and its corresponding measures have been approved, its implementation becomes an environmental commitment that must be assumed by the developer.

The MIIA is a highly relevant element in the analysis of Environmental Impact Studies and assists the multidisciplinary technical evaluation team in recommending whether or not to grant the environmental viability (license) (Viabilidad [Licencia] Ambiental) of projects, works, or activities submitted to SETENA. Assessment under this methodology required by SETENA entails determining a final impact, which is the difference between the environmental situation with and without the project, taking into account not only the effect of the impacting actions but also their continuing effects. In the specific case of the Proyecto Minero Crucitas, the MIIA incorporated into its analysis of the socioeconomic sphere such elements as land use, population characteristics, the needs of settlements in areas of direct and indirect influence, and employment, among others, and the values obtained yield a positive result for the project’s development; accordingly, an overall improvement in quality of life and a positive impact on the local economy are anticipated.

In this regard, and by way of example, pages 45-46 of the Evaluación Ambiental de Cambios Propuestos para el Proyecto Minero Crucitas show that the impacts considered severe include the effect on quality of life, with a score of +68, and the generation of employment and income, also with a score of +68; in both cases, the impact is positive, and therefore no mitigation measures are proposed beyond those already included in the corresponding instrument. Quality of life comprehensively assesses the interaction among components of the natural environment (physical, biological, and other components of the socioeconomic environment), such as air, water, soil, aquatic ecosystems, and terrestrial ecosystems, with respect to which the necessary measures were taken for the Mina Crucitas project to ensure that the project would be developed in a controlled environment. The necessary environmental measures have been established for all significant negative impacts, so no deficit has arisen in addressing environmental elements, and this precisely explains the positive balance of the quality-of-life component.

The document Evaluación Ambiental de Cambios Propuestos al Proyecto, approved through Resolución 170-2008-SETENA dated 04 de febrero del 2008, determines that all impacts identified as severe and critical in the socioeconomic sphere were positive for the project’s development and its surrounding environment. The P-PGA incorporated into the EIA approved by SETENA (including the P-PGA update made in the document Evaluación de Cambios Propuestos al Proyecto) is the basis for the document entitled “Balance Socioeconómico del Proyecto Minero Crucitas,” which was submitted to the Sala. She states that, under the environmental legislation in force and based on the significance of the environmental impact, the appropriate instrument for assessing the environmental impact of the Proyecto Minero Crucitas is the Environmental Impact Study, through which it may be determined that the project is environmentally viable and that its social benefits exceed its socio-environmental costs.

70- In a filing submitted on 26 de octubre de 2008, Carlos Alberto Alfaro Mata, of legal age, married, an attorney, resident of Florencia de San Carlos, holder of identification card 3-207-739, files amparo proceeding (recurso de amparo) 08-014464-0007-CO (folio 1376), and states that on 17 de julio del año en curso, Decreto Ejecutivo Número 34801-MINAET, issued at the Presidencia de la República at thirteen hours on 13 de octubre del 2008 by the Presidente de la República de Costa Rica and the Ministro del Ambiente, Energía y Telecomunicaciones, was published in the Official Gazette La Gaceta número 201, página 5, decreeing, insofar as relevant: “...Article 1. The Proyecto Minero Crucitas developed by Industrias Infinito, S.A. is declared to be in the public interest and of national benefit; Article 2- By virtue of this declaration, the developer, subject to prior authorization from the corresponding office of the Sistema Nacional de Áreas de Conservación, may proceed with the cutting of trees (including species whose cutting is prohibited) and the development of infrastructure works in protection areas, as specified in the project; Article 3- The developer shall comply with each of the compensation measures set forth in Considerando IX.

For the monitoring and oversight of the foregoing, it shall submit a report to the corresponding office of the Sistema Nacional de Áreas de Conservación, which shall in turn certify compliance; Article 4- Effective as of its publication....” He states that Industrias Infinito S.A. holds the mining exploitation concession (Concesión de Explotación Minera) registered in the Registro Nacional Minero of the Dirección de Geología y Minas under expediente número 2594. Through resolución número 217 issued at fifteen hours on 21 de abril del año en curso, the Ministerio del Ambiente y Energía granted that company the mining exploitation concession. The Secretaría Técnica Nacional Ambiental granted environmental viability to the Proyecto Minero Crucitas on 12 de diciembre del 2005 through resolución 3638-2005-SETENA and, through resolución número 170-2008-SETENA dated 04 de febrero del 2008, approved modifications to it.

The content of that Decreto is contrary to law and therefore unlawful; for that reason, he requests that the Sala grant the proceeding and declare it null and void, that all resolutions granted pursuant to it be set aside, that all acts resulting from it be suspended immediately, and that restoration of the damage caused to the ecosystem by the issuance and application of the challenged Decreto also be ordered.

71- Sonia Espinoza Valverde, in her capacity as Secretary General of the Secretaría Técnica Nacional Ambiental, reports under oath regarding amparo 08-014464-0007-CO (folio 1398) that the Ministerio de Ambiente, Energía y Telecomunicaciones must report on Decreto 34801-MINAET, which declares the Proyecto Minero Crucitas to be in the public interest and of national benefit, because it is the entity that processed and approved that Decreto. It is true that the Secretaría granted environmental viability to the Proyecto Minero Crucitas (expediente número 129-2002-SETENA) through resolución número 3638-2005-SETENA, dated 12 de diciembre del 2005. It is likewise true that, by virtue of resolución número 170-2008-SETENA dated 4 de febrero del 2008, SETENA approved the project modification proposed by the developer. In compliance with the order issued to the Secretaría by the Sala Constitucional (expediente 08-014068-0007-CO), it ordered the suspension of tree cutting through official letter número SG-AJ-1150-2008-SETENA, dated 21 de octubre del 2008.

Through official letter número SG-AJ-1196-2008-SETENA dated 30 de octubre del 2008, construction in the protection areas associated with the project was suspended. Through official letter número SG-AJ-1039-2008-SETENA dated 19 de setiembre del 2008, the Secretaría granted the developer’s request that the Área de Conservación Huetar Norte be informed: “that the social, environmental, and economic benefits assessed in the environmental impact study supported the granting of the environmental viability that remains in effect to date”; “if developed in accordance with the established environmental measures, the project will be viable from environmental, socio-environmental, and economic-environmental perspectives.” Through official letter número SG-ASA-259-2008 dated 10 de octubre del 2008, an additional opinion was issued to the corresponding Área de Conservación. She requests that the proceeding filed be dismissed.

1. 72Rodrigo Arias Sánchez, Roberto Dobles Mora, and Sonia Espinoza Valverde, in their respective capacities as Minister of the Presidency, Minister of Environment, Energy and Telecommunications, and Secretary General of the Secretaría Técnica Nacional Ambiental, report under oath regarding the amparo proceeding (amparo) 08-014464-0007-CO (folio 1409) that, from a social standpoint, the project not only provides sources of employment for the area and entails a series of commitments, but, to date, it has already begun implementing certain agreements signed with the Municipalidad de San Carlos aimed at improving road conditions, and with Coopelesca R.L. to enable the supply of electricity to the communities within the project’s area of influence. As part of its social responsibility program, the company has entered into a cooperation agreement with the Región Huetar Norte of the Instituto de Desarrollo Agrario to develop vocational education and training programs for the area’s residents, in order to promote small and medium-sized enterprises as an alternative for community development.It is not advisable for one or more communities, however small they may be, to depend on a monoculture, since this results in migration to other population centers, including the capital, in search of better opportunities. From an economic standpoint, the project will bring tax benefits to the country; it should be borne in mind that the company must pay all national and municipal taxes imposed by law and must also pay the 2% established in Article 55 of the Código de Minería. In addition, the company must obtain the business licenses (patentes) required for any industry. Under the applicable regulations, it must pay social security contributions (cargas sociales). To ensure full payment of the taxes, Resolution 217-2008-MINAE of 21 de abril del 2008, whereby the concession (concesión) was granted, imposed the condition that the company could not avail itself of the free-trade-zone regime (régimen de zona franca).It is true that the compensation for the land-use change (cambio de uso del suelo) proposed by Industrias Infinito S.A. appears in recital IX (considerando IX) of Decreto Ejecutivo número 34801, but it must be clarified to the Chamber and the petitioner that this is only an excerpt, because the studies for that project are very extensive and complex and it is physically impossible to include them in the Decree, although they are indeed contained in the case files. The petitioner does not know the procedure that the company has followed step by step over 17 años to obtain all the licenses and permits required by law before mining operations may begin. Decreto Ejecutivo número 34801-MINAET must be viewed from that perspective and in relation to the entire procedure, because the Declaration of National Convenience (Declaratoria de Conveniencia Nacional) is a prior step or stage that the activity must complete before the trees may be cut or removed and work may begin to access the mineral material it intends to extract.In the case at hand, the project has been under discussion for many years and has environmental approval (viabilidad ambiental), a requirement whose absence was noted by the Sala Constitucional in judgment número 2004-13414 dated 26 de noviembre del 2004. They state that the act is supported by reasons and has sufficient scientific and technical grounds for its responsible adoption. The State does not suffer from any lack of certainty whatsoever; on the contrary, it is the petitioner who lacks certainty and knowledge of the case files and has doubts that the Administration could have resolved had he consulted it, but he chose not to do so. Instead, he has resorted to the constitutional jurisdiction (sede Constitucional) seeking to have the Chamber replace the functions of the active administration (administración activa) and judge and evaluate the environmental assessment instrument (herramienta de evaluación ambiental) defined by SETENA, a multidisciplinary collegiate body with maximum technical deconcentration (desconcentración máxima técnica) from the Ministerio de Ambiente, Energía y Telecomunicaciones, and also to have the Chamber substitute its will for that of the Executive Branch in deciding whether to declare a specific project to be of national convenience.In summary, he seeks to challenge a matter of legality before the constitutional jurisdiction and, moreover, to turn the Sala Constitucional into a processor of permits falling within the jurisdiction of the active administration. They request that the amparo petition be dismissed.

73- By Resolution Número 16.572 of trece horas y treinta y nueve minutos del veintisiete de octubre del dos mil ocho, the amparo proceeding 08-14464-007-CO was admitted for processing (folio 1432).

74- In a brief filed on 18 de noviembre de 2008, José Joaquín Salazar Rojas, a deputy of the Fracción del Partido Acción Ciudadana, filed a motion to intervene in support of the petitioner (coadyuvancia activa) and stated that the legislature’s intention in addressing the issue of forests was to authorize management, not the clear-cutting (tala rasa) of trees, which is a legal institution (instituto jurídico) absent from our legislation (folio 1437).

75- Folios 1441 and 1458 of the case file contain the same motion for reconsideration (gestión de reconsideración) of the interim measure (medida cautelar) ordered by this Court, filed by Roberto Dobles Mora in his capacity as Minister of the Ministerio de Ambiente, Energía y Telecomunicaciones in connection with case file 08-014464-0007-CO.

76- On 11 y 12 de febrero de 2009, the petitioner [Nombre 001] requested that he be granted time to file an action (interponer acción) (folios 1479 and 1504).

77- In a brief filed on 12 de febrero de 2009, the petitioner [Nombre 001] submitted evidence to the case file (press releases from Semanarios Universitarios, Comité Patriótico de Pérez Zeledón, and Municipalidad de Grecia) (folio 1482).

78- On 13 de febrero del 2009, John Thomas and Arnoldo Rudín Arias, both in their capacity as holders of general powers of attorney with full authority (apoderados generalísimos) for Industrias Infinito S.A. (folio 1505), stated: Acid Rock Drainage (Drenaje Acido de Roca, DAR) is the product formed by the atmospheric oxidation—caused by the presence of water, oxygen, and carbon dioxide—of relatively common iron sulfide minerals and certain other products generated as a result of those oxidation reactions. The result is highly corrosive solutions that leach and incorporate heavy metals from the rock (heavy metals may be present in solution only under acidic pH conditions; in alkaline or neutral environments they bind to sediments or soils and are immobile). The discharge of these solutions affects the chemistry of surface water and groundwater, creating various types of environmental problems.

There are two courses of action for managing this problem, listed in order of preference: preventing the generation process and treating the solutions generated. Studies to determine the presence of Acid Drainage in the rocks of the Crucitas gold deposit began in 1996. For that purpose, tests were conducted on oxidized material, fresh rock, and tailings materials. The tests included static acid-base accounting (análisis Acido-Base estático, ABA), mineralogy/petrology, particle-size analysis, and kinetic tests, all recommended by the world’s leading specialists in the field (the initial study was conducted by Graham A. Johnson, P. Eng., and the studies were subsequently reviewed by Richard Donald, PhD, P.Ag and Peter Pheeney, MSc.E,eng. of Jacques Whitford ltd. 2007). More than 380 rock, saprolite, and tailings samples representative of all lithologies present were analyzed; processed materials, or tailings, were also analyzed using static acid-drainage analysis methods, including acid-base accounting (ABA), humidity-cell testing, mineralogical analyses, and total-metals analyses.

The sample-analysis results show that sulfide minerals would tend to react under particular conditions and that minerals capable of neutralizing acidification processes are present in smaller quantities; metals are also present at low levels in the deposit and the tailings. Despite the potential for sulfide oxidation in waste rock and tailings, proper management must be implemented to completely prevent contact among air, water, and sulfides. Placing these materials (waste rock and tailings) underwater completely eliminates their acid-generation potential. Proposed Acid Drainage Management: Waste rock with acid-drainage potential from the Botijas and Fortuna open pits (tajos) will be deposited in the tailings-pond sector. To prevent the generation of acid drainage, the material resulting from the gold-recovery process, known as “tailings,” as well as the fresh-rock material, will be placed subaqueously—that is, fully submerged underwater—in the tailings area known as “Laguna de Relaves.” During operations, rainwater and local runoff will be added to the process water, thereby maintaining a water layer approximately 2 metros deep over the entire tailings area.

After the project closes, the process tailings will remain underwater at a depth of 1 metro; this depth will be permanently controlled by a spillway located in the main dike of the tailings dam. During open-pit operations, the DAR potential of water seeping through the pit walls will be assessed, and DAR seepage monitoring will be established. A detailed explanation of the system to be used is contained in the attached document entitled “Manejo de Roca y de Colas Proceso con Potencial de Drenaje Acido.” Based on a detailed review of various scenarios for managing waste rock and process tailings with acid-drainage potential, it is concluded that the subaqueous placement of tailings and waste material is the most efficient method for managing and mitigating the potential occurrence of a DAR event. This conclusion is consistent with the recommendations provided by William A. Price and John C. Errinqton of the Ministerio de Energía y minas de Canadá, who published “Guidelines for metal leaching and acid rock drainage at minesite in British Columbia” in 1998.

The company asked Mr. Arauz for an opinion on how DAR would be controlled during the project’s development, and he issued a professional opinion stating that Proyecto Crucitas meets the technical requirements and guidelines recommended by the US EPA and other North American environmental bodies. The information generated is of high quality and provides a sound basis for predicting DAR and developing mitigation measures (medidas de mitigación). The mitigation measure developed by the experts and adopted by Industrias Infinito is the most appropriate. The technique of submerging material suspected of having DAR potential beneath a layer of still water has proven to be the most effective way of preventing the generation of acidic water. This is because, at that depth, oxygen exchange between the rock and the air through the water is minimal. Numerous studies and practical experiences confirm this (SRK Consulting, 1989). He concludes that the methodology proposed by the company for managing the rock’s acid-drainage potential is the best available and will ensure that no environmental damage occurs.

79- On 12 de febrero de 2009, the petitioner [Nombre 001] requested that he be granted time to file an action (folio 1509).

80- On 13 de febrero del 2009, John Thomas and Arnoldo Rudín Arias, both acting as general attorneys-in-fact with full powers (apoderados generalísimos) of Industrias Infinito S.A. (folio 1533), state: Cyanide is the chemical substance chosen for gold recovery. It is one of the few chemical reagents that dissolve gold in water. For technical and economic reasons, cyanide is used to recover gold from ore. Mining operations use highly diluted sodium cyanide solutions, typically between 0.01% and 0.05% (100 to 500 parts per million). Most of the cyanide produced worldwide is used as a starting (base) compound by the chemical industry. Cyanide is found in many plants and fruits that we consume daily. Thus, we are constantly exposed to cyanide, but it is eliminated by the liver as long as its concentration is low and, therefore, not harmful. Nevertheless, cyanide is a “potentially” lethal substance when used without the necessary precautions.

Cyanide poisoning will depend on the amount to which a person has been exposed, the manner of exposure, and its duration. Depending on the exposure, symptoms may include rapid breathing, headache, nausea, seizures, low blood pressure, and loss of consciousness, among others. However, it is important to note that these symptoms are not unique to cyanide poisoning, nor do they make it possible to identify the presence of cyanide in our bodies. As with many other chemical substances used in our production processes, knowledge of the proper procedures, the use of modern and efficient technologies, strict compliance with safety standards, and a responsible attitude are essential for the proper use of cyanide. Cyanide is not persistent because, in nature, it is destroyed by sunlight, breaking down through oxidation into carbon and nitrogen gases. The maximum cyanide level permitted in drinking water is 0.2 parts of cyanide per million parts of water (0.2 ppm).

The U.S. Occupational Safety and Health Administration (OSHA) has established a workplace-air limit for hydrogen cyanide and most cyanide salts of 10 parts of cyanide per one million parts of air (10 ppm). Cyanide at the Proyecto Crucitas: Cyanide, the primary reagent used to leach (lixiviar) the metal of interest, will arrive at the facilities in hermetically sealed containers, each holding one ton, which will be stored in a warehouse specially equipped and monitored for that purpose. The control protocols will include significant safety measures covering transportation, storage, handling of the reagent, and controls for the leaching (lixiviación) and cyanide-destruction processes (Cyplus, Combinox). As stated in the annex to the environmental impact study (estudio de impacto ambiental), Appendix 2-a, b, Environmental Protection Plan (Plan de Protección Ambiental), PM-PPA-100, details the hazardous-waste management program (programa de manejo de desechos peligrosos), procedure PM­PPA-105, while Annex 3 addresses cyanide management in mining projects.

Only personnel trained in reagent preparation and equipped with all personal protective equipment will perform the transportation and preparation work within the facilities. It emphasizes that a technician will be hired on a full-time, dedicated basis to monitor cyanide management and analysis within the circuit. The cyanide leach tailings (colas de lixiviación con cianuro) (the material remaining after gold extraction) will be treated in a continuously operating cyanide-destruction reactor. The design of the cyanide-destruction system was based on operating and site specifications provided by Industrias Infinito S.A. to international experts, who used that information to design the plant. The processes will be conducted in closed circuits to control every stage of the process; thus, solution preparation, application, treatment, and the tailings area (área de relaves) will be enclosed to prevent any environmental contamination.

The reagent-treatment and dosing conditions were based on laboratory work performed by Cyplus personnel on samples provided by Industrias Infinito S.A. It was demonstrated that the CombinOx® process produced the best results, thereby ensuring compliance with national and international environmental standards. In conclusion on this issue, they state that the technology and procedures adopted by the company they represent ensure that cyanide poses no risk to the environment.

81- On 13 de febrero del 2009, John Thomas and Arnoldo Rudín Arias, both acting in their capacity as attorneys-in-fact with plenary powers for Industrias Infinito S.A. (folio 1563), state: Based on the recitals of judgment number 13246-08, it is concluded that the restriction on the harvesting, use, or extraction of the almendro tree applies under the following circumstances: I. When the harvesting affects the macaw’s habitat (nesting site); ii. When the harvesting affects the macaw’s feeding sites. iii. When its nesting site is located between the San Carlos and Sarapiquí rivers. iv. When any harvesting (for timber) of the almendro tree must be carried out pursuant to a technically and legally reasoned decision. They state that the restrictions imposed by the Constitutional Chamber on the harvesting of the almendro tree do not apply to the Crucitas project; therefore, the felling of the trees is lawful.

Based on technical studies, it was determined that the area in which this species (great green macaw) is found is essentially the northern Huetar sector between the mouth of the Sarapiquí River and the San Carlos River. Several native tree species can host macaw nests; however, because their fruiting season coincides with the relevant period and because they contain cavities that provide shelter, the yellow almendro trees are preferentially used by the great green macaw. Several important conditions must be met for these trees to constitute suitable nesting sites, including a diameter at breast height (diámetro a la altura del pecho, DAP) greater than 124 cm. Within the forest-cover area (cobertura forestal) of the Crucitas project, and according to the study conducted by forestry engineer Rolando Barrientos, the average diameters of the almendro trees located within the area for which felling was requested are less than 80 cm.

The diameters of some of the felled trees do not exceed 80 cm DAP, supporting the conclusion that this is not primary forest and that these are residual forest specimens remaining from timber extraction carried out 30 or 40 years ago. Furthermore, these studies of the great green macaw clearly identify the nesting sites as being located outside the Crucitas project area; accordingly, the maps produced by Chassot, 2003 are attached, together with a summary map from the same study (see documentary evidence number 123). Moreover, the study conducted by Bernardo Madriz in 2004 confirms that the nesting conditions of the great green macaw in the northern Huetar region remain similar; a map is submitted for this purpose (see documentary evidence N° 124). Moreover, an assessment of the project’s location in relation to the protected areas in the region confirms that the Crucitas project will not affect any of them because it is located more than 15 km from those protected areas.

They state that the baseline studies (estudios de línea base) conducted for the project’s Environmental Impact Study (Estudio de Impacto Ambiental) established that the activities to be performed by the project do not affect the existence of this species and that, in addition, the mitigation and compensation measures will create better conditions for establishing suitable habitats for wildlife in general. b. Crucitas as a Feeding Site for Macaws: The mountain almendro (Dypterix panamensis) is present within the project area; however, the macaw’s nonbreeding season, when groups of this species are expected to disperse into the area, does not coincide with the almendro’s fruiting season. c. Timber or Commercial Harvesting of the Almendro Tree: In the case of the Crucitas Project, the felling of the almendro tree is incidental and is not intended for the commercial exploitation of the timber.

The almendro trees are felled because the areas must be cleared of trees to construct the infrastructure necessary for developing the mining project; in other words, the area must be cleared. The felled trees resulting from the land-use change (cambio de uso)—duly identified in the decision granting the felling permit—will be sold to sawmills within the project’s area of influence in order to revitalize the area. The proceeds from the sale of the trees will be donated to the Asociación Pro Desarrollo del Parque Nacional Juan Castro Blanco (APANAJUGA), an association dedicated to protecting and conserving Parque Juan Castro Blanco. The importance of Parque Juan Castro Blanco lies in the fact that 60% of Costa Rica’s milk is produced in San Carlos, and 80% of that production requires water from Parque Juan Castro Blanco. This park contains three volcanoes: Volcán Viejo, Volcán Platanar, and Volcán Porvenir.

The park supplies drinking water to cantons such as San Carlos, Alfaro Ruiz, Valverde Vega, and Naranjo. They state that the amount of money estimated to be donated to APANAJUCA is approximately US $ 700,000.00. d. Felling Permit under the Land-Use Change Modality: The company addressed land-use change in the Environmental Impact Study and its Annex submitted to and approved by SETENA. In its decision 2351-2006-SETENA, SETENA confirmed the statements regarding the nature of the forest located on the properties belonging to the company they represent. SETENA requested that the company provide an inventory (sampling) of the forests to be affected, particularly those on Cerros Botija and Fortuna. The forest-measurement data (datos dasométricos) provided by the company in the annex satisfy SETENA’s request and confirm the preliminary conclusion that these are disturbed natural forests, based on the volumes, basal area, number of trees per hectare obtained, and the floristic composition involved.

According to the cited annex, the floristic composition of these plots includes some threatened species, such as Tostado and Cola de Pavo, which generally occur with very low frequency and relative abundance or representativeness. It is stated that, in these cases, the company will take the actions prescribed by Área de Conservación Huetar Norte as mitigation or compensation measures. In decision number 2351-2006-SETENA, which addresses the technical objections raised by the petitioners in this constitutional rights action (recurso de amparo) concerning the granting of environmental approval (viabilidad ambiental), SETENA addresses forestry matters, land-use change, and biological aspects. They state that none of the circumstances relied upon by the Constitutional Chamber to prohibit the felling of almendro trees applies to the Crucitas project. The project satisfied all the factual requirements (exclusion as a nesting and feeding site for the macaw) and legal requirements (no harvesting for commercial purposes and the existence of technical assessments by the technical bodies) necessary for authorization to fell the yellow almendro trees. 3.

Land-Use Change Regime—Exceptional Regime: As established by Ley Forestal number 7575, the governing principle for forestry harvesting on privately owned land covered by forest is the prohibition against land-use change and the limitations on use (including forestry harvesting) applicable to the protection areas described in Articles 33 and 34 of the Law. Under this general rule, forest management (manejo forestal) of privately owned forests in the country allows their sustainable harvesting, and the public in the country is familiar with the permit process for forested lands subject to forest management plans (see Article 1 of Ley 7575). The exception to the rule is contained in Ley Forestal itself because the legislature, aware of the situations that might arise, provided a legal mechanism enabling the Executive Branch (through the State Forestry Administration) to grant land-use change permits for privately owned land for works or projects declared to be in the public interest and of national benefit, a declaration that also permits the removal of trees within the protection areas defined in Article 33 of Ley Forestal; this is precisely what the challenged decree did in the case of the Las Crucitas mining concession. 4.

Compensation for Felling the Trees: A fundamental aspect of the land-use change application is the proposal, evaluation, and outcome of the compensation proposed in connection with the request to fell 191 hectares of disturbed forest within the project. This analysis defines the conditions of proportionality and reasonableness applicable to the felling, which must substantially outweigh the potential impact of felling those 191 hectares of disturbed and “high-graded” forests within the Crucitas project. The compensation measures proposed and established as environmental commitments under the felling plan include: i. Reforestation of 382 ha of pastureland as natural forest; 16 hectares of pastureland have already been reforested with trees from the project’s forest nursery. ii. Maintenance of a forest nursery containing native species; it currently contains more than 67 500 native trees removed as seedlings from the areas covered by the felling plan.

There are also zotacaballo trees for revegetating slopes and watercourse protection areas. iii. More than 800 hectares of existing forest cover that will not be used for the project and that form part of the 1474 hectares of property owned by Industrias Infinito will be maintained as natural forest. iv. 50 trees will be planted for every tree felled, and 100 trees will be planted for every almendro tree felled, within the 382 hectares to be reforested, where natural forest will be developed through the planting of more than 600.000 native trees. v. Biological and forestry monitoring will be maintained to verify the regeneration of the areas to be reforested, allowing effective habitats to develop that continuously connect forested sectors and mitigate the fragmentation of existing habitats. vi. A biological corridor (corredor biológico) will be established to permit species mobility and the genetic exchange of flora and fauna. vii.

An amount of $250 000 (two hundred fifty thousand U.S. dollars) will be deposited in a trust of the MINISTRY OF THE ENVIRONMENT, ENERGY AND TELECOMMUNICATIONS, exclusively for the purchase of land within a protected area in the San Carlos region. The communities will be supported with a portion of the timber collected from the felling to meet local needs. ix. The anticipated proceeds from the sale of the timber, amounting to approximately $1.000.000 (one million U.S. dollars), will be deposited in APANAJUCA’s existing trust. APANAJUCA is the Asociación del Parque Nacional Juan Castro Blanco, whose sole purpose is to purchase privately owned land for the conservation of the Parque Nacional, also known in San Carlos as Parque del Agua, more than 90 % of whose area is currently under private ownership. Based on all the foregoing, they conclude that the felling of the almendro trees pursuant to the tree-felling permit under the land-use change modality (Article 19 of Ley Forestal) is constitutional and lawful under our legal system.

82- On 13 de febrero del 2009, John Thomas and Arnoldo Rudín Arias, both acting as attorneys-in-fact with full powers (apoderados generalísimos) for Industrias Infinito S.A. (folio 1577), comment on the reports submitted by various professors from the Escuela de Geología de la Universidad de Costa Rica concerning the project. They state that SETENA initially requested reports from this University but did not disclose them to the company, for which reason they filed an amparo proceeding (recurso de amparo), which was granted pursuant to judgment número 2004-9220. When they had an opportunity to respond, the Escuela de Geología indicated that what had been submitted was the opinion of three professionals, rather than the institution’s official position. SETENA requested an addendum to the Study addressing each professor’s comments. With respect to Professor Rivera (2002), they state that his report approaches the matter from the perspective of Norma ISO 14001, which is absurd because that standard applies to projects already in operation, whereas an environmental impact study (estudio de impacto ambiental) is predictive by nature; accordingly, potential impacts must be considered, but never actual impacts, as he claims.

The certainty of the impacts is unknown; they can only be considered within a range from highly likely to unlikely. They state that, in any event, the observations made by both Professor Rivera and Astorga were addressed in the addendum submitted with the environmental impact study. Professor Gabriel Segura’s report was favorable to the project, finding it environmentally viable; however, SETENA did not take it into consideration at that time.

83- On 13 de febrero del 2009, John Thomas and Arnoldo Rudín Arias, both acting as attorneys-in-fact with full powers for Industrias Infinito S.A. (folio 1602), state that the arguments submitted by the petitioner allege defects directed not against the decree and logging permit (permiso de corta), but against the provision supporting them (artículo 19 de la Ley Forestal), on which the Chamber ruled in expediente número 05-16376. They state that the Crucitas project complies with all permits and requirements providing for the rational use of resources and the corresponding economic and social benefits, based on Feasibility Studies reviewed by the Dirección de Geología y Minas. Mining activity is declared to be in the national interest (conveniencia nacional) and for public use (utilidad pública) pursuant to artículo 3 del Reglamento a la Ley Forestal and 6 del Código de Minería.

84- On 17 de febrero del 2009, John Thomas and Arnoldo Rudín Arias, both acting as attorneys-in-fact with full powers for Industrias Infinito S.A. (folio 1615), state, with respect to the great green macaw (lapa verde), that the company conducted an inventory of the bird species present within the Project, collecting field data to assess ecological aspects such as diversity, abundance, and the habitats present at the site. In addition, a review was conducted of the literature used, which was the most current available. It was concluded that the birdlife in the area, particularly that associated with forest habitats, has a relatively low abundance of species and individuals. One of the factors that may have had the greatest influence on this is the disturbance the area experienced in the past due to the selective harvesting of commercially valuable timber species. Likewise, other biologists indicated that the great green macaw does not depend exclusively on the yellow almond tree (almendro amarillo) for food, but also feeds on 36 other plant species, including woody and non-woody plants.

The great green macaw does not depend exclusively on the Crucitas area for food. Its principal feeding area is the Refugio Nacional de Vida Silvestre Maquenque. Other areas include those located in the Atlantic lowlands near Puerto Viejo de Sarapiquí and Chilamate, along the coast in Tortuguero, and on the slopes of the cordillera Volcánica Central and Tilarán, where the birds reach elevations of up to 1.000 m and occasionally cross the continental divide toward the Pacific slopes. Furthermore, the great green macaw does not nest exclusively in yellow almond trees, nor does it nest in the Crucitas area. Neither is this area its exclusive migration corridor (ruta de paso). The mining project will not disrupt the reproductive process of the 25 parejas or 35 parejas of great green macaws nesting in the Maquenque reserve because there are sufficient almond and titor trees in the nesting area.

Accordingly, the felling of the authorized trees will not disrupt the great green macaw’s feeding cycle either. A census of the yellow almond trees was conducted on the mining project’s properties, and there are 521 mature trees that will not be felled. Moreover, as already stated, the great green macaw feeds not only on the yellow almond tree but also on the fruits of 36 other species.

85- On 17 de febrero del 2009, John Thomas and Arnoldo Rudín Arias, both acting as attorneys-in-fact with full powers for Industrias Infinito S.A. (folio 1660), reiterate their previous statements concerning the yellow almond tree and also refer to other aspects of the forestry issue. They state that studies conducted by various engineers determined that the forest within the area to be developed for the Mining Project consists of secondary forest (bosque secundario) and disturbed primary forest (bosque primario intervenido). The results of those studies identified different types of forest: hillside and lowland primary forest, which together accounted for 5,6% and are located outside the Crucitas Mining Project; disturbed hillside and lowland primary forest, which together account for 52%; and secondary forest, accounting for 6.9%. The remainder of the study area consists of brushland (charrales), agricultural uses and forest plantations, lagoons, and infrastructure (35.3%).

According to these studies, the mitigation and compensation plan (plan de mitigación y compensación) proposed for the project’s forestry component complies with the principles of reasonableness and proportionality because, according to the analysis conducted, it calls for planting 611.392 trees on 382 hectares of pastureland, as compared with felling 11.427 trees within an area of 262 hectares (forest cover (cobertura boscosa) and pastureland). This is in addition to restoring 55,3 hectares of the Development Area, which entails planting another 88.480 trees. This means that approximately sixty-one trees will be planted for every tree felled. Forest cover within the project area will increase by 277,41 hectares relative to the current forested area—that is, from 65% to 84% of the total AP. No primary forests were identified within the project area; rather, the forest cover is classified as heavily disturbed (forests harvested by the timber industry) or secondary (areas formerly consisting of pastureland or brushland that regenerated naturally).

Forested areas in the same category were observed at sites adjacent to the project area. It was very important for Biological Corridor areas (áreas de Corredor Biológico) to be established in the Compensation Plan (Plan de Compensación), thereby preventing the fragmentation of forest cover both within the project area and between the AP and neighboring sectors. They state that a review of the documentation concluded that the great green macaw bird species will not be affected by the felling of the 197 yellow almond trees located within the Development Area because this is not a significant quantity compared with the number of trees of this species existing both within the project area and in the Región Huetar Norte.

86- In a filing dated 17 de febrero de 2009, Roy Ramírez states that he has the right to a healthy environment (folio 1721).

87- On 30 de octubre del año pasado, Adriana Calvo Aguilar, of legal age, unmarried, holder of identity card 1-981-719, filed the amparo proceeding being processed under expediente número 08-0014706-007-CO (folio 1722), in which she challenges the constitutionality of Decreto Ejecutivo número 34801-MINAET on the grounds that the Poder Ejecutivo exceeded its powers, authorized the felling of endangered trees, and acted arbitrarily in authorizing mining activity in that area. She states that she opposes the Proyecto Minero Las Crucitas in Cutris de San Carlos. She states that this project was declared to be in the public interest (interés público)—by means of a Decreto Ejecutivo—without considering endangered tree species, such as the Almendro. She maintains that the challenged decree based its authorization to fell protected species (especies vedadas) on Sala Constitucional judgment número 2002-002486 de las diez horas y cincuenta y cuatro minutos del 08 de marzo del 2002, concerning the almond tree in this case, and on artículos 19 y 34 de la Ley Forestal.

She states that the cited provisions indicate that land-use change (cambio de uso de suelo) may be permitted for projects deemed to be in the national interest; however, the protective regime (régimen de protección) governing the almond trees located within the Proyecto Minero Las Crucitas area is not a land-use regulation. Accordingly, the cited ruling has erga omnes effect and may be modified only by the Sala Constitucional itself, not by Decreto Ejecutivo. She states that an analysis of the provisions relied upon by the Poder Ejecutivo in the aforementioned Decreto shows that it applied its own interpretation of the law, assuming powers outside the scope of its authority, because it relied on only portions of the provisions, failed to place them in context, and did not use the definitions established by artículo 33 for the application of artículo 34 de la Ley Forestal. She states that the protected tree species found in this area do not fall within any of the circumstances established by artículo 33 de la Ley cited and are therefore likewise not subject to the circumstances contemplated by artículo 34.

Consequently, the violation of artículo 11 de nuestra Carta Magna is evident, because the public officials responsible for this decree assumed powers they do not possess by interpreting the law and, moreover, violated the constitutional Principle of Legality (Principio de Legalidad), since the objective sought through this decree cannot be supported by the laws invoked for that purpose. She states that the decree based its declaration of public interest and national interest on the information set forth in punto VII del Considerando, which establishes that the mine will have a useful life of 11 años, will foster development in the communities near Crucitas, and will require labor. However, this reasoning fails to consider that, once the useful life of the aforementioned gold mine ends, the area will be rendered entirely unusable for other economic activities because the nature of open-pit mining (minería a cielo abierto) entails the complete destruction of the area used.

It therefore fails to fulfill the guarantee that the State must provide its citizens of a healthy and ecologically balanced environment, as established in numeral 50 de la Carta Magna, and in the long term also denies the right to work of current and future residents of the area where the cited Project is located. She argues that the species found in this area are subject to a protective regime different from that referred to in the provisions on which the decree is based, and that its content is contrary to law and therefore unlawful. For this reason, she requests that the Chamber grant the petition, declare the decree null and void, and invalidate all decisions issued pursuant to it. She requests that the petition be granted.

88- By resolution number 16790, issued at twelve hours and seven minutes on seven de noviembre del dos mil ocho, constitutional protection action (amparo) 08-014706-0007-CO was consolidated with this case file (folio 1733).

89- [Nombre 051], of legal age, married, holder of identification card [Valor 003], and a resident of Paso Ancho, files constitutional protection action 08-015072-0007-CO (folio 1737), in which he states that he opposes Proyecto Minero Las Crucitas in Cutris de San Carlos. He states that said project was declared to be in the public interest (interés público)—by means of an Executive Decree—without considering endangered tree species, such as the almendro. He contends that the challenged decree based its authorization to cut species whose harvesting had been prohibited by judgment number 2002-002486 of the Constitutional Chamber (Sala Constitucional), issued at ten hours and fifty-four minutes on 08 de marzo del 2002, in this case the almendro, on Articles 19 and 34 of the Ley Forestal. He indicates that the cited articles establish that land-use change (cambio de uso del suelo) may be authorized for projects deemed to be of national benefit (conveniencia nacional); however, the protection regime applicable to the almendro trees located in the area of Proyecto Minero Las Crucitas does not arise from land-use regulation, and therefore the cited judgment has erga omnes effect and may be modified only by a ruling of the Sala Constitucional itself, not by Executive Decree.

He states that an analysis of the articles relied upon by the Poder Ejecutivo in the aforementioned Decree shows that it applied its own interpretation of the law, thereby assuming powers inconsistent with its nature, because it uses only portions of the articles, fails to place them in context, and does not apply the definitions established by Article 33 for the application of Article 34 of the Ley Forestal. He asserts that the protected tree species (especies de árboles vedadas) found in this area do not fall under any of the circumstances established in Article 33 of the cited Law and therefore are likewise not subject to the circumstances contemplated in Article 34. This clearly violates Article 11 of our Constitution because the public officials responsible for this decree assumed powers that they do not possess by interpreting the law, and also breaches the constitutional Principle of Legality (Principio de Legalidad), since the objective sought through this decree cannot be supported by the laws relied upon for its issuance.

He states that the decree based its declaration of public interest and national benefit on the information set forth in point VII of the Recitals (Considerando), which states that the mine will have a useful life of 11 years, will foster development in the communities near Las Crucitas, and will require labor; however, this assessment fails to consider that, once the useful life of the aforementioned gold mine ends, the area will be rendered completely unusable for any other type of economic activity because the nature of open-pit mining (minería a cielo abierto) entails the total destruction of the area used. It therefore fails to uphold the State’s obligation to guarantee citizens a healthy and ecologically balanced environment, as provided in Article 50 of the Constitution, and in the long term also denies the right to work of the current and future residents of the area where the cited Project is located.

He argues that the species found in this area are subject to a protection regime different from that addressed by the articles upon which that decree is based. He considers the content of said Decree to be contrary to law and therefore unlawful; accordingly, he requests that the Chamber grant the action, declare said Decree null and void, and revoke the resolutions issued pursuant thereto.

90- By resolution 16933, issued at eight hours and fifty minutes on once de noviembre del dos mil ocho, constitutional protection action 08-015072-0007-CO was consolidated with this case file (folio 1747).

91- On February 26 of the current year, Roberto Dobles Mora, in his capacity as Minister of the Ministerio de Ambiente, Energía y Telecomunicaciones, appeared to expand upon his defense arguments (folio 1751). He states that the challenged decree is legal and constitutional because it respects the limits of science and technology and is supported by technical studies conducted and approved by SETENA. Regarding the commercial exploitation of the yellow almond tree, he states that the petitioners incorrectly cite precedents 2008-13426 and 2002-2486, since those cases involved very different circumstances: not the cutting of trees, but the exploitation of the almond tree for commercial purposes. The precedent most closely related to the present case would be judgment 2005-5790 concerning Mina Bellavista. He states that developing a mine requires cutting down trees, which causes land-use change (cambio de uso del suelo), and that this is permissible if a declaration of national interest (declaratoria de conveniencia nacional) is issued.

In order to make that decision, the environmental impact study (estudio de impacto ambiental) must have been approved and the mining concession (concesión minera) obtained; only thereafter is the forestry permit (permiso forestal) granted. Other attached studies were also evaluated. Based on this, an Interdisciplinary Commission was formed, comprising SETENA, the Dirección de Geología y Minas, SINAC, and the legal counsel of the Ministerio de Ambiente, Energía y Telecomunicaciones, in coordination with the Vice Minister. This commission evaluated the compensation and mitigation measures contained in the case file, which resulted in the granting of environmental viability (viabilidad ambiental). He further states that the Chamber had already upheld Articles 19.b and 34 of the Ley Forestal and Article 2 of the Reglamento a la Ley Forestal in judgment number 2006-17126. He states that Article 6 of the Mining Code declares the activity to be of public utility (utilidad pública).

He notes that this is the generally applicable provision, while the declaration of national interest for each particular site is the instrument through which that provision is given effect in the specific case. In judgment 2004-13414, the Chamber annulled the resolution granting the respondent company the mining exploitation concession (concesión de explotación minera) because no environmental impact study existed, a defect that was subsequently cured. Consideration was given to matters related to the economic benefits derived from serious projections and studies—not mere speculation, as the petitioner claims—submitted in the project’s administrative case files (expedientes administrativos). The studies analyzed were those that, for purposes of this Administration, are held at two offices (SETENA and Dirección de Geología y Minas), without failing to mention the third AFE case file relating to the forestry permit.

The case file contains a SETENA certification, official letter SG-ASA-259-2008 dated October 10, 2008, establishing that the environmental assessment (Evaluación Ambiental) considered an analysis of the project’s benefits in relation to its environmental cost and that it satisfies the Environmental and Social Cost Balance (Balance del Costo Ambiental y Social). But that is not the sole basis for the act; all the petitioner’s arguments concern matters that were extensively studied. The assessment of the socio-environmental cost of the land-use change is included in the environmental assessment conducted by SETENA. The decree, as a legal instrument, is not where the scientific studies conducted to evaluate the issue are included; for that purpose, it expressly states that the project has environmental viability, which is itself supported by extensive evidence and studies, and this does not invalidate the act.

The decree was not the means through which the State first became aware of the land-use change or the cutting of protected species (especies vedadas); this is a technical matter that was known and studied. He considers Decreto Ejecutivo 34801-MINAET to be constitutionally valid because it was preceded by a lengthy and thorough environmental impact study. The Ley Orgánica del Ambiente establishes the following criteria for approving a productive project, which must be observed before a mining concession is granted: a) an appropriate relationship between potential use and the economic capacity of the soil and subsoil; b) control of practices that promote erosion and other forms of degradation; and c) soil- and water-conservation practices or works that prevent soil deterioration (Articles 53 and 54). The regulations establish that, for a particular project to be declared to be of national interest, there must be a positive balance analyzing socio-environmental costs in relation to socioeconomic benefits.

The balance must be determined using the appropriate instruments. The case file for processing the declaration of national interest, DAJ-077-08, contains Official Letter SG-ASA-259-2008, which establishes that the environmental assessment considered an analysis of the project’s benefits in relation to its environmental cost and that the Environmental and Social Cost Balance is positive. In addition, Decreto número 32966-MINAE, corresponding to the Manual de Instrumentos Técnicos para el Proceso de Evaluación de Impacto Ambiental (Manual de estudio de impacto ambiental)- Parte IV, sets forth in Anexo 2 the minimum methodology for assessing the environmental impacts generated by a project, work, or activity. The methodological framework for impact assessment provides for the use of an Environmental Impact Significance Matrix (Matriz de Importancia de Impactos Ambientales, MIIA), which makes it possible to determine the project’s effects and their significance and, consequently, to establish the corresponding prevention, mitigation, and compensation measures.

He clarifies that Decreto Ejecutivo número 34801-MINAET was issued after the Environmental Impact Study for Proyecto Minero Crucitas had been submitted. This study incorporates an interaction matrix that made it possible to assess the environmental impacts, as may be verified on pages 301-429 of Volume II. At the same time, the document entitled Environmental Assessment of Proposed Changes to the Project (Evaluación Ambiental de Cambios Propuestos al Proyecto), submitted on December 6, 2007, constituted an update to the MIIA on pages 32-53. The MIIA is a globally accepted tool for the qualitative assessment of projects that submit environmental assessment instruments (instrumentos de evaluación ambiental), including Environmental Impact Studies (Estudios de Impacto Ambiental, EsIA). It helps determine the effect of each impact-producing action on each affected environmental factor and aspect, including the social and economic component, thereby determining the significance of the impact.

The significance of the impact depends both on the degree of incidence or intensity of the resulting alteration and on the characterization of the effect, which in turn reflects a series of qualitative attributes, such as intensity, extent, type of effect, manifestation period, persistence, reversibility, recovery capacity, synergy, accumulation, periodicity, and significance. This significance is represented using a mathematical model with values between 13 and 100; impacts with significance values below 25 are negligible, that is, compatible, or the environmental measures were incorporated into the project design; moderate impacts have a significance between 25 and 50. They are severe when the significance is between 50 and75, and critical when the value exceeds 75. The matrix makes it possible to assess the interaction of socioeconomic factors with the other environmental components that must necessarily be analyzed, which in turn makes it possible to establish the respective preventive, mitigation, and compensation measures incorporated into the Environmental Management Forecast-Plan (Pronóstico-Plan de Gestión Ambiental, P-PGA).

Once the P-PGA and the corresponding measures have been approved, their implementation becomes an environmental commitment (compromiso ambiental) that must be assumed by the developer. In the specific case of Proyecto Minero Crucitas, the MIIA’s analysis of the socioeconomic sphere includes factors such as land use, population characteristics, the needs of communities in the areas of direct and indirect influence, and employment, among others. The resulting values are positive for the project’s development, and an overall improvement in quality of life and a positive impact on the local economy are therefore anticipated. In this regard, and by way of example, pages 45-46 of the Evaluación Ambiental de Cambios Propuestos para el Proyecto Minero Crucitas show that the impacts deemed severe include the effect on quality of life, with a score of +68, and the generation of employment and income, also with a score of +68; in both cases, the impact is positive, and therefore no mitigation measures are proposed in addition to all those already included in the corresponding instrument.

The document Evaluación Ambiental de Cambios Propuestos al Proyecto, approved by Resolución 170-2008-SETENA of February 4, 2008, determines that all impacts identified as severe and critical in the socioeconomic sphere were positive for the development of the project and its surrounding environment. Finally, the Constitutional Chamber has held that it is not its role to review every scientific and technical report and study necessary for the approval of an Environmental Impact Study. They therefore request a declaration that all permits were granted in accordance with the law and that the Constitutional Chamber will not review the entire Environmental Impact Study again. They reiterate that all the scientists who participated in the Las Crucitas mining project during the process of obtaining permits and authorizations concluded that the project complied and continues to comply with the law and was also consistent with the unequivocal standards of the applicable science and technology.

He states that the investigations conducted by scientists for SETENA’s approval of the Environmental Impact Study made it possible to study all the project’s environmental aspects and that, accordingly, the environmental viability and declaration of national interest were properly issued. Nevertheless, in view of the challenges raised by the petitioners and for purposes of these amparo proceedings (recursos de amparo), the Ministerio de Ambiente, Energía y Telecomunicaciones submitted the case to various scientists so that they could conduct a professional audit or assessment and determine whether the information available when Decreto Ejecutivo N° 34801-MINAET was issued was reliable. The result is once again positive, as explained below. The report prepared by biologists 0livier Chassot and Giselle Monge Arias, the leading experts on the great green macaw, clearly concludes that the Las Crucitas mining project will not disrupt the great green macaw’s reproductive process or its annual feeding cycle.

The report states that during the most critical reproductive period (October-February), 74.4% of the great green macaw’s diet consists of the fruit of the Almendro Amarillo. The Lapa Verde does not reproduce in areas where Almendro Amarillo is scarce or nonexistent. During the post-reproductive period (March ­November), when there is less, little, very little, or no availability of Almendro Amarillo fruit, the Lapa Verde feeds mainly on Titor (Sacoglottis - trichogyna) and, during some months of the year (September), when both Almendro Amarillo and Titor are scarce, on as many as thirty-five other species. They conclude that the Lapa Verde depends entirely on a combination of Almendro Amarillo and Titor for food throughout the year and to complete its reproductive cycle.

The green macaw population uses an extensive territory shared by Nicaragua-Reserva Biológica lndio-Maíz and its buffer zone (zona de amortiguamiento) in the municipalities of El Castillo and San Juan de Norte, as well as the Región Autónoma del Atlántico Sur and Costa Rica (parts of the cantons of San Carlos, Sarapiquí and Pococí). Therefore, the geographic area in which the green macaw conducts its foraging activities, estimated at 1.275.621 hectares, exceeds the area of influence of the Las Crucitas mining project (approximately 1.500 hectares). The nesting data they have collected indicate that 87% of green macaws nest in mature Almendro Amarillo trees (N=66) having cavities suitable for the green macaw’s body size (average DBH [diámetro a la altura del pecho, DAP] of 129 cm). Therefore, the green macaw is highly dependent on the availability of Almendro Amarillo trees. The nest nearest to Las Crucitas is located 8,7 Km away.

Las Crucitas may not be part of the green macaw’s nesting area due to the high degree of habitat fragmentation (fragmentación del hábitat) in this area and the lack of mature Almendro Amarillo trees. Because Las Crucitas lies outside the green macaw’s breeding range, the reproductive process of the population of that species will not be interrupted. The feeding cycle of the green macaws that visit the Las Crucitas area of influence will be affected because a significant number of Almendro Amarillo trees will be removed; accordingly, green macaw visits to the mining project area are likely to decrease in the coming years because of the removal of Almendro Amarillo trees and the disturbances caused by intense human activity in the gold-mining area. The land-use change (cambio de uso del suelo) affecting 192 hectares of the Las Crucitas mining project will not interrupt the feeding cycle of the green macaw population nesting in RNVSM Maquenque, which is located 8,1 kilómetros away.

However, the mining project could cause the green macaw population that visits the Las Crucitas area to relocate, possibly to RNVSM Maquenque, where it will have to compete with other species for access to food sources. It is considered that the conclusions of scientists Chassot and Monge are indisputable. The Las Crucitas mining project will neither interrupt the green macaw’s reproductive cycle nor its annual feeding cycle. Therefore, there is no danger to that species. This position is corroborated by another scientist who has objectively studied the issue for these amparo proceedings (casos de amparo). With regard to protecting the Almendro Amarillo tree, the report issued in February of the current year by scientists Dr. Olman Murillo, M.S.c Braulio Vilchez and Ing. Yorleny Badilla, of the Escuela de Ingeniería Forestal del Instituto Tecnológico de Costa Rica, concludes that removing 196 trees from a total of slightly more than 700 Almendro trees (Dipteryx panamensis) does not entail a significant deterioration in the green macaw’s (Ara ambigua) feeding opportunities.

They also conclude that removing some individuals from a population of slightly more than 700 leaves more than 500 individuals, representing an effective population size (tamaño de población efectivo) sufficient to guarantee its genetic variability and rule out any degree of threat over the coming generations. There is a solid scientific basis and validation of the information concerning the forests on the property of Industrias Infinito SA., which supports the management and mitigation plan (plan de manejo y mitigación) proposed by the company’s technical personnel for the Proyecto Minero Crucitas. Based on their structure and composition, the forests located on Industrias Infinito’s property in the Las Crucitas area should technically be regarded mostly as secondary forests (bosques secundarios) and, to a lesser extent, as heavily disturbed primary forests (bosques primarios), as a result of the logging they underwent approximately thirty years ago.

The secondary forests visible on the property in question were, in fact, pastures used for livestock production thirty or thirty-five years ago. Removing the 92 hectares of secondary forest for the benefit of the mining concession (concesión minera) does not entail a significant loss of the biodiversity and representativeness of the ecosystems in the northern region of the country. The sustainable management of the company and the region must be addressed not only from the perspective of the severity of threats to biodiversity, but also in terms of the opportunities those forests offer to contribute to conservation. Poor management is a threat; proper management can make an important contribution. The Proyecto Minero Crucitas should provide an opportunity to demonstrate that a sound balance among the components at the national, regional and landscape levels can be achieved through the forest management unit (unidad de manejo forestal) of its ecosystems.

The result of the forest management and mitigation plan proposed for the company will increase forest cover (cobertura de bosques) from 968 hectáreas to 1182, an increase of approximately 20%; eliminate existing fragmentation; and allow its biodiversity to undergo a gradual process of enrichment. Removing 196 trees from a total of slightly more than 700 Almendro trees (Dipteryx panamensis) for the benefit of the direct mining area, on land owned by Industrias Infinito S.A., does not entail a significant deterioration in the green macaw’s (Ara ambigua) feeding opportunities, nor can it be considered a significant loss of habitat, given that no green macaw nesting has been recorded in this area during the past fourteen years and given the degree of deterioration already present in these forests since the last logging operation conducted there in the 1980s. Given that the green macaw’s (Ara ambigua) diet is based on at least thirty-seven plant species and that the Almendro tree (Dipteryx panamensis) bears fruit for only 2 or 3 months of the year, it cannot be argued that these birds depend exclusively on a single forest species for food.

Removing one hundred ninety-six Almendro trees from a population of slightly more than seven hundred individuals leaves more than 500, representing an effective population size sufficient to guarantee its genetic variability and rule out any degree of threat over the coming generations. The planting of more than 5000 Almendro trees over the past three years in unforested areas within the property will considerably increase the effective population size of the species in the very short term. The company’s presence in the area prevented the continued deterioration of the forests, soils and waters on the acquired property. The proposed management plan (plan de manejo) will allow the forests to undergo a process of recovery and enrichment, supported by the abundance of seeds in the residual forests (bosques residuales) on neighboring properties. A natural population of tree species remains in relative equilibrium and free from the threat of extinction for several generations when its effective population size (breeding individuals) is no fewer than fifty individuals; the existing Almendro Amarillo population on the property of Industrias Infinito S.A. includes more than that number of individuals capable of reproduction.

The Ministerio de Ambiente, Energía y Telecomunicaciones program a que sembrás un árbol succeeded in planting 1.437.974 trees in San Carlos, the canton where the Las Crucitas mine is located, amounting to 20.5% of the total planted throughout the country. During the period 1998-2007, Programa Fonafifo invested 2.500 million colones in Pago de Servicios Ambientales in the Distrito de Cutris, cantón de San Carlos, covering an area of 17,064.72 hectares. In 2007, 7,007.323 trees were planted throughout the country, making us the first country to plant the highest number of trees per capita and per square kilometer. It is important to emphasize that 30% of the total was planted in Alajuela (2.081.023), and that San Carlos, the canton where the Las Crucitas mining project is located, planted 1.437.974 trees, or 20.5% of the nationwide total. The report by scientist M.S.C Hugo Virgilio Rodriguez Estrada, Hydrogeologist, Credencial Colegio de Geólogos de Costa Rica Número 45, Registro de Consultor SETENA Número 01-97, concluded that the Proyecto Crucitas is viable and that no adverse effects on groundwater are expected.

The report states that, according to the design of the Proyecto Minero Crucitas, the upper aquifer (acuífero superior) does not impose limitations on its development because it will not be contaminated by the material-extraction process or by industrial processes, provided that the proposed prevention and mitigation measures are implemented. The lower aquifer (acuífero inferior) is located in igneous basement rocks; it is confined and has no surface outcrops. This characteristic means that its recharge areas (áreas de recarga) are located outside the Área del Proyecto Crucitas. It exhibits regional flow from northwest to southwest, with an average hydraulic gradient (gradiente hidráulica) of 3.2%, meaning that the water flow does not drain toward the Río San Juan. The confining layer (capa confinante) is not formed by saprolite, but by certain low-permeability horizons located within the basement rocks themselves.

There are currently no records of this aquifer being tapped in the region and, as regards the water quality of the lower aquifer, it has higher concentrations for all chemical parameters, which is understandable because it is a deeper aquifer in which water has a longer residence time and is more susceptible to being affected by hydrothermal alterations associated with the mineral deposit. For this reason, the water in this aquifer is of poor quality, and the ammonium, iron, potassium, sulfate, color and turbidity values fall outside national water-quality standards for human consumption. Because this aquifer lies at depths greater than 50 metros below the ground in the project area, it will not be affected by project activities in terms of the possibility of infiltration from the surface. As a general conclusion, analyses of the available data indicate that, from a hydrogeological perspective, the Proyecto Crucitas is viable and no adverse effects on groundwater are expected if all established control, prevention and mitigation measures are implemented.

The hydrogeological assessment (evaluación hidrogeológica) conducted by SENARA, for its part, was communicated through an official letter signed by Ing. Bernal Soto Zúñiga Gerente General; it likewise validated the project and found that it poses no danger to the aquifers. The hydrogeological study conducted by ECOAMBIENTE, S.A. for the Proyecto Crucitas and evaluated by the Dirección de Investigación y Gestión Hídrica clearly defines the situation in the Proyecto Crucitas area and identifies the conceptual hydrogeological model (modelo hidrogeológico conceptual), thereby allowing an analysis of the project’s potential impact on groundwater. After evaluating the conceptual hydrogeological model proposed by the project developer, it proceeded to validate that model within the framework of the commitments undertaken by the company to mitigate the potential impact on groundwater in the area of interest.

The report by the scientists, geologist Jorge Laguna Morales, Ph.D., and Franz Ulloa Chaverri, M.Sc., concluded that the risk of an accident involving cyanide due to spills or improper handling is nil. They also concluded that the risks of poisoning humans and other living beings through exposure to cyanide are technically nonexistent. With regard to acid mine drainage (drenaje ácido), which had already been studied in the case of Mina Bellavista, they concluded that acid mine drainage cannot occur under the control conditions and management techniques to be implemented to eliminate that effect. The technology; infrastructure; and protocols for the transportation, handling, storage, control, use, recirculation, and destruction of cyanide and cyanide-containing substances set forth in the official documents of Industrias Infinito S.A., which are to be used and implemented in gold mining operations at the Las Crucitas mine, indicate that the risk of an accident due to spills or improper technical handling is nil.

The safety and monitoring measures to be implemented in the handling of cyanide and cyanide-containing substances are the most appropriate and up-to-date measures applicable to this type of activity; therefore, the risks of poisoning humans and other living beings are technically nonexistent. The risk of contamination due to spills or improper disposal of cyanide-containing waste is also considered nonexistent, provided that the technical measures (infrastructure) and management measures (protocols) set forth in the documents analyzed are applied, thereby ruling out the possibility of eventual contamination of both surface water and groundwater. It was also concluded that acid mine drainage cannot occur under the control conditions and management techniques to be implemented to eliminate that effect. The analyses of the available data indicate, as a general conclusion, that from a hydrogeological perspective, the Crucitas project is viable and no adverse impact on groundwater is expected if all established control, prevention, and mitigation measures are applied.

The report by sociologist Sonia Cervantes concludes that the area is classified as poor or extremely poor and that the people lived very badly, below the poverty line. It states that the investment made by the mine is positive, has improved the roads, and has provided training to people so that they can live better. The overall balance of the project is positive. Some three decades ago, Costa Rica had the vision to implement policies to ensure the absolute protection of a large portion of the national territory; however, the national territory does not grow, whereas the population does, not only as a result of the natural process of reproduction but also because of immigration from neighboring nations. The success of future environmental protection policies in Costa Rica and throughout the world will be based on finding a balance between human beings and other living beings, without placing them in situations of competition for survival.

In the area of influence of the Crucitas project, many families are desperately awaiting an opportunity for a better life. When she visited the area at the end of two thousand seven, she found it difficult to accept that it was part of our country, given the harsh conditions in which these families lived—without roads, basic services, communications, employment, or food—and the Crucitas project is offering to meet many of these needs. It is incumbent upon our country’s Environmental Authorities, through a strict environmental management plan (plan de gestión ambiental) and appropriate, responsible oversight mechanisms, to ensure the protection of the area’s flora and fauna, which is of concern to every responsible Costa Rican, while also providing quality of life to the population of this neglected region of the country. The populations of the communities of Crucitas, Chamarra, Moravia, El Roble, and Coopevega in the district of Cutris, and Jocote and Llano Verde in the district of Pocosol, all in the canton of San Carlos, must be integrated into the country’s development and afforded opportunities to attain the standards of living enjoyed by other rural communities in the country.

If the State or local government lacks the capacity to make the investment required by the area, private enterprise must be given the opportunity to do so. Industrias Infinito has demonstrated that the social commitment it assumed toward the population and the national environmental authorities is becoming a reality. Even before operations and mining have begun, the mine has become a source of hope for these communities that the difficult conditions they currently face will change. Their expectations are very high, and they express great confidence that IISA will abide by the commitments it made to the communities. This confidence is based on the work the company has carried out for nearly twelve years, promoting and providing training to organized groups, contributing to road, educational, and healthcare infrastructure, and responding to numerous requests for assistance in many areas of local activity.

Many environmentalists forget that, when hungry, human beings can become nature’s principal predators, but they can also become its principal allies in environmental protection when they find opportunities to live with dignity through environmental awareness and training processes. The report by economist Lic. Juan Muñoz concludes that, using the appropriate methodology, available information, and reasonable assumptions for the calculation, the Crucitas Project’s biophysical impact amounts to US $ 1,48 million and its social impact to US $ 2.26 million, for a total of US $ 3,74 million. The social benefits derived from the Project exceed US $ 158,11 million in terms of employment, taxes, or investment in the communities within its area of influence. This represents a difference of $ 154,36 million in favor of the Project. The Crucitas Project provides the country, the Canton of San Carlos, and the communities within its area of influence with benefits that greatly exceed the potential adverse impacts it might generate.

The Crucitas project has carried out a considerable number of activities, including social investment, donations for the reconstruction and improvement of infrastructure and basic community services, the physical and mental health of the population, training in trades and tools, and forms of community organization that enable these populations to achieve greater social and economic vitality. By 2008, the Project had invested more than $5.58 million, an amount that will increase throughout its operations. The Crucitas Project is in the public interest (interés público) because of its high added value in terms of social benefits, thereby satisfying the national benefit criterion (criterio de conveniencia nacional) required by the Ley Forestal and its regulations for authorization of the project. The mining project has been processed in accordance with Costa Rican law, and the company has patiently and diligently complied with all procedures and requests of the Government of Costa Rica.

None of the laws, regulations, directives, or circulars has ever provided that mining activity is prohibited in places where forests exist or in places where yellow almond trees are present. This is why the company has continued the procedures for obtaining permits and authorizations under the current rules governing the land-use change (cambio de uso del suelo) of forest land, such that, for the company and the Government of Costa Rica, the current legal and technical rules are clear in permitting the mining activities of the Las Crucitas project. The legal certainty (seguridad jurídica) provided by the Government of Costa Rica is fundamental to the development of private activities, whether financed with local or international capital. Above all, however, legal certainty is the fundamental element for attracting investments vital to sustaining and growing the country’s economy. Indeed, the Promotora de Comercio Exterior, Procomer, describes it in this manner in its report.

Disputes that may arise from a failure to respect the legal certainty that must prevail in our country create an unfavorable investment climate that discourages the establishment of new companies and jeopardizes the continued presence of existing ones. It requests that the consolidated applications for amparo relief (recursos de amparo) be dismissed in their entirety.

92- In a written submission filed on 2 de marzo de 2009 (folio 1798), Enid Gamboa Robles, in her capacity as President of the Consejo Técnico Asesor en Minería del Poder Ejecutivo, appeared and stated that, for reasons of geological genesis, gold deposits in our country are generally found in soils unsuitable for agriculture and livestock farming; consequently, gold-bearing areas are home to communities with low levels of social development, such as Las Juntas de Abangares, Desmontes and Crucitas, among others. Mining may be open-pit or underground. The development of a gold mine affects very specific areas, unlike other extensive activities such as livestock farming, human development (urban development), and agriculture. Gold extraction processes have been tested over a long period and scientifically studied, and therefore their environmental impact is well known, measurable, and remediable.

Gold mining drives other economic activities because, for its own functioning and operation, it must build roads, electricity and telephone services, medical infrastructure, drinking-water supplies, and Internet service, which become integrated into the communities where the project is located. One example is Miramar, which benefited considerably from the Mina Bellavista project. Furthermore, mining is an activity that does not enjoy any type of tax exemption, and gold is the only metal unaffected by worldwide financial recessions. The impact of mining operations can be controlled and monitored with great precision and at low cost because this is a highly localized activity that is widely understood worldwide.

93- At folio 1803 of the case file, Luis Evelio Segura Morales, Dora Alicia Araya Saborío, Guisela Rodríguez Rodríguez, Margarita Durán Acuña, Norma Quirós Arce, Tito Antonio Guerrero Sánchez, José Antonio Acuña Salas, María Estelita Vásquez, Edgar Chacón Pérez, Efrén Zúñiga Pérez, and Edgar Rodríguez Alvarado appeared to file an intervention in support (coadyuvancia) of the respondent company because of the benefits it had provided to the community.

94- On 2 de diciembre de 2008, Arnoldo Rudín, in his capacity as General Manager of Industrias Infinito S.A. (folio 1809), requested that a hearing be held.

95- In written submissions filed on veinticinco de marzo del año en curso, Jorge Rodríguez, in his capacity as Minister of the Ministerio de Ambiente, Energía y Telecomunicaciones, requested that official communication SG-196-2009-SETENA, in which he expanded upon the arguments in defense, be deemed filed in case files 08-14068-0007-CO, 08-14592-0007-CO, 08-14454-0007-CO, 08-14464-0007-CO. It stated that SETENA had indeed included an analysis of the hydrological component in the environmental impact study (estudio de impacto ambiental) (see volume I, Section 6.5, pages 190-211). Once the developer requested a modification of the project to extract material at a greater depth, the impacts of that modification were properly assessed in the document entitled Assessment of Proposed Changes to the Project (Evaluación de Cambios Propuestos al Proyecto). This demonstrated that the aquifer flows away from the río San Juan and therefore does not drain into it; that the lower aquifer already has a very high concentration of chemical parameters, meaning that its waters are not of high quality and are not potable; and that the upper aquifer is confined, does not communicate with other areas, and is bounded by the terrain’s topography because rainwater flows from higher to lower areas.

The water’s travel time is very slow, at one centimeter per day; it therefore will not be contaminated by the material-extraction process or by industrial processes, provided that the proposed prevention and mitigation measures are followed. Furthermore, as already indicated, acid rock drainage (drenaje ácido de roca) was ruled out (folios 1811 and 1820, 1829, 1838).

96- On 26 de marzo del 2009, John Thomas and Arnoldo Rudín Arias, both in their capacity as attorneys-in-fact with full powers (apoderados generalísimos) for Industrias Infinito S.A. (folio 1847), submitted a chart setting out the parties’ allegations and responses in this amparo proceeding (amparo).

97- On veintiséis de marzo de este año, Patricia Romero Barrientos, a legislator from the Partido Acción Ciudadana caucus, submitted a video concerning the Crucitas project (folio 1879).

98- At folios 1881, 2958, 2960, 2963, 2970, 2973, 2976, 2983, 2984, 2987, 2989, 2991, 2993, 2995, 2999, 3002, 3004, 3007, 3009, 3014, 3016, 3018, 3020, 3022, 3023, 3025, 3029 a 3073, 3161 a 3183, 3188 a 3203, 3208 a 3311, 3314 a 3318 y 4371, several individuals appeared in the case file in support of this amparo action (recurso de amparo).

99- On 1 de abril de 2009, José Andrés Soto Rivera, in his capacity as Social Responsibility Manager for the Proyecto de Crucitas, submitted a DVD and a publication summarizing the principal technical aspects relating to the project (folios 1883 and 1884).

100- Attached at folio 1890 of the case file is a severed written submission that was ordered to be processed as an amparo action, filed by Alvaro Sagot Rodríguez and Mario Peña Chacón, in which they allege that Decreto Ejecutivo número 34801-MINAET del 13 de octubre del 2008, which declares the “Proyecto Minero Crucitas” to be in the public interest (interés público) and of national benefit (conveniencia nacional), is unconstitutional because they consider it contrary to Articles 21, 50, and 89 of the Political Constitution; the principles of proportionality and reasonableness; Article 4 of the Convention Concerning the Protection of the World Cultural and Natural Heritage (ley 5980); and Article 5 of the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (ley 3763). They allege that the challenged provision violates “environmental logic” and the standards of proportionality that must apply when dealing with indeterminate concepts such as “national benefit” or “public interest.” A balancing and subsequent decision-making process must be carried out in which social benefit is weighed against socio-environmental considerations.

Scientific studies must exist, and precaution must prevail; however, none of the recitals (considerandos) of the decree cites any study shedding light on whether social considerations outweigh socio-environmental ones. The challenged decree has a serious constitutional defect because it violates, among other things, the precautionary principle (principio precautorio o cautelar), which has been extensively developed in the case law of this Chamber and is contained in international instruments such as Principle 15 of the “Rio Declaration on Environment and Development,” Principle 11 of the “World Charter for Nature,” and the preamble to the “Convention on Biological Diversity.” That precautionary principle means that, where there is absolute uncertainty due to a lack of studies, the determination must favor denying authorization or, as in this case, denying a declaration of national benefit and public interest.

They state that environmental studies concerning the project’s feasibility must not be confused with the socio-environmental studies required for a declaration of national benefit and public interest, because they are very different matters. As can be seen from the grounds of the challenged decree, it lists possible monetary revenues but never mentions the environmental effects or environmental cost of carrying out the work proposed by a mining company. This reveals a gap that creates great uncertainty: determinations based on standards such as national benefit or public interest cannot be made as they were conceived in the decree at issue, because in that event anything could be deemed beneficial and could entail transferring wealth belonging to society and future generations to a transnational corporation that might ultimately leave us with irreparable losses of biodiversity. They therefore insist that this lack of supporting grounds creates a gap that leaves the decree without any genuine balancing of assets belonging to all Costa Ricans; accordingly, a constitutional defect and violations of the principles of environmental rationality, proportionality, and precaution are manifest.

A land-use change (cambio de uso del suelo) is authorized on the basis of purported “national benefit,” but the legal system and principles of constitutional rank cannot be contravened, including the right to a healthy and ecologically balanced environment, the principle against reducing forest protection (principio de irreductibilidad del bosque), the precautionary principle, the right to enjoy the landscape, and the principles of intragenerational equity and intergenerational solidarity. These matters are not only addressed in constitutional provisions but have also been developed in the case law of this Chamber. There should have been restraint, balancing, and environmental studies justifying a declaration such as the one now challenged; however, they insist that the decree is entirely devoid of information justifying that authorization and, to the contrary, goes so far as to glorify environmental degradation by stating in Article 2 of the decree that even the felling of protected species (especies vedadas) is authorized, including, in this instance, the almendro amarillo.

Through the Ministerio de Ambiente, Energía y Telecomunicaciones, our country voluntarily included that species in Appendix 111 of the “Convention on International Trade in Endangered Species of Wild Fauna and Flora” (CITES), because its preservation is vital nationally and internationally; accordingly, its international trade is restricted, and the country undertook to adopt all measures necessary to protect it within our borders. The glorification of “ecocide” and the disregard of constitutional case law are evident in the authorization to fell almendros amarillos, even though the Ministerio de Ambiente, Energía y Telecomunicaciones has been ordered to preserve that species (voto 2008-13426). They request that the decree in question be declared unconstitutional.

101- By Resolution Número 17570 de las once horas tres minutos del cinco de diciembre del dos mil ocho, amparo proceeding número 08-016115-0007-CO was consolidated with this case file. (folio 1909) 102- At folio 1914 of the case file appears amparo action (recurso de amparo) number 08-016200-0007-CO filed by [Nombre 052] and [Nombre 053], in which they allege that on seis de agosto del dos mil siete, Industrias Infinito S.A. requested that SETENA approve the environmental viability (viabilidad ambiental) of a modification to the original design of the Mina Crucitas project, for which SETENA had granted environmental viability through resolution number 3638-2005-SETENA of dos de diciembre del dos mil cinco. They state that on seis de diciembre del presente año, the developer submitted a document entitled “Environmental Assessment of the Proposed Modification to the Project” (Evaluación Ambiental de la Modificación Propuesta al Proyecto) Mina Crucitas, which contained an Environmental Management Plan (Plan de Gestión Ambiental) and a Sworn Declaration of Environmental Commitments (Declaración Jurada de Compromisos Ambientales), explaining the nature of the modification and the positive and negative impacts that it would generate.

They indicate that the modification was presented to and processed before SETENA as a reduction in area and was approved by that Secretariat through resolution number 170-2008-SETENA at doce horas con cincuenta minutos on cuatro de febrero del dos mil ocho, issued by the Plenary Commission of the Secretaría Técnica Nacional Ambiental at ordinary session Número 12-2008, article 5, whose Por tanto states: “FIRST: To approve the Modification of the project known as Proyecto Minero Crucitas (Mining and Processing of Gold Minerals), including the updated Environmental Management Plan and the proposed monitoring plans. SECOND: To order the establishment and operation of the Inspection and Monitoring Commission (Comisión de Fiscalización y Monitoreo) for the Crucitas project; for which purpose the Office of the Secretary General of SETENA is designated to request the names of the representatives of the different entities comprising it (…).” They contend that SETENA acted contrary to the principles that this Chamber has stated must be observed in environmental impact assessment proceedings (procesos de Evaluación de Impacto Ambiental) to guarantee a healthy and ecologically balanced environment because, although the requested modification reduces the horizontal area to be exploited, it actually constitutes a new project that should have undergone an Environmental Impact Study (Estudio de Impacto Ambiental) and a public hearing (audiencia pública), as occurred with the originally approved project, none of which took place.

They assert that the approved modification constitutes a new project for the following reasons: a.-It increases the depth to be exploited from 15 metros to 67 metros on average. b.-It increases the volume of material to be exploited by more than 100%. c.-It increases gold production by almost 70%. d.-It extends the extraction period from 6 to 9 años. e.-It expands the material to be extracted, since originally it consisted solely of saprolite (soil or soft material), whereas the modification requests the extraction of hard rock. f.-It entails the use of new extraction technology involving explosives; however, the impacts that this may cause and the safety measures that must be followed to prevent accidents harming persons or natural resources and to ensure compliance with current legislation were not adequately analyzed. g.-The possible impacts that the modification may cause were not analyzed.

They consider that the above-cited resolution is contrary to article 50 of the Political Constitution (Constitución Política), as well as to the precautionary and preventive principles (principios precautorio y preventivo) and the right to public participation (derecho de participación ciudadana) in the environmental impact assessment process, as enshrined in several decisions of the Constitutional Chamber (Sala Constitucional). They add that SETENA did not notify any of the parties to the administrative proceeding (procedimiento administrativo) of the modifications submitted by the company or of the granting of environmental viability for those modifications, even though many of them, such as geologist Allan Astorga, had submitted technical observations regarding the Environmental Impact Study. The petitioners request that the action be granted, with the consequences prescribed by law.

103- By resolution Número 17970 at once horas tres minutos cuarenta y ocho minutos on doce de diciembre del dos mil ocho, amparo action number 08-016200-0007-CO was joined to this case file. (folio 2035) 104- In a pleading filed on 17 de abril de 2009, the environmental manager (regente ambiental) of the Proyecto Minero Las Crucitas submitted a document summarizing the current conditions of the areas that had been cleared and were covered by the land-use change (cambio de uso de suelo) permits, as well as the cutting plan (plan de corta). (folio 2039) 105- At folio 2050, Lorenzo Cambronero Méndez, representing the Frente de Oposición a la Minería de Oro de la Zona Norte de Costa Rica, files an amparo action against the Dirección de Geología y Minas del Ministerio del Ambiente y Energía and states that the action alleges a violation of article 50 of the Constitución Política, the Tratado Cañas-Jerez de mil ochocientos cincuenta y ocho, the Convención sobre el Derecho de Usos No Navegables de Cursos de Agua Internacionales de mil novecientos noventa y siete, the Convenio Regional para el Manejo y Conservación de los Ecosistemas Naturales Forestales y el Desarrollo de Plantaciones Forestales del Sistema de Integración Centroamericana (SICA) de mil novecientos noventa y seis, the Declaración de Río sobre ambiente y Desarrollo de mil novecientos noventa y dos, and the Declaración de Estocolmo sobre el Medio Humano de mil novecientos setenta y dos, all because, on cinco de junio del dos mil dos, Decreto Ejecutivo DE 30477-MINAE was enacted, establishing an indefinite moratorium on open-pit mining (minería a cielo abierto) in Costa Rica.

He indicates that, through resolution number 2004-13414 at nueve horas on veintiséis de noviembre del dos mil cuatro, the Sala Constitucional annulled the mining concession (concesión de explotación minera) granted to Industria Infinito, Sociedad Anónima because the legally required hearing was not held and the environmental impact study was not submitted before the concession was approved, thereby violating the precautionary principle, or in dubio pro natura, recognized by the Ley de Biodiversidad. Notwithstanding the foregoing, on veinte de mayo del dos mil ocho, through resolution R-217-2008-MINAE at quince horas on veintiuno de abril del dos mil ocho, the concession to explore for gold at the Mina Crucitas was granted again, even though the decree establishing the country’s moratorium on open-pit mining remained in force. On cuatro de junio del dos mil ocho, catorce días after the challenged concession was granted, Decreto Ejecutivo N° 34492-MINAET was issued, repealing that moratorium.

He states that the concession violates the constitutional right to a healthy and ecologically balanced environment because, in this case, forests are severely affected through irreparable environmental damage.

106- By resolution Número 521 at once horas cincuenta minutos on dieciséis de enero del dos mil nueve, amparo action number 08-017475-0007-CO was joined to this case file. (folio 2071) 107- In a pleading filed by [Nombre 054], in his capacity as special general attorney-in-fact with full powers (apoderado generalísimo especial) of Industrias Infinito S.A., he requests permission from the Chamber to carry out environmental and forestry mitigation measures (medidas de mitigación ambiental y forestal) within the area covered by the cutting permit (permiso de corta), in order to prevent unnecessary environmental risks. (folio 2075) 108- In a pleading filed on 20 de abril de 2009, [Nombre 054], in his capacity as special general attorney-in-fact with full powers of Industrias Infinito S.A., clarifies the extraction system, the contained reserves, and the parts comprising the Project’s mineral deposit.

The environmental viability of the Crucitas project is closely linked to the nature of the deposit: saprolite and hard rock. He reiterates that the extraction area will be reduced by 60% from the area currently approved, resulting in a larger reforestation area around the pits or open cuts (tajos). Extraction will be conducted using heavy machinery (excavators), dump trucks, and blasting beginning at the rock level. The use of blasting is currently a safe process when all handling, storage, and use protocols are in place. Controlled blasting is even used in cities and in nonmetallic-material open cuts (for construction aggregates), to expand or build basements in the former case and to advance the extraction blocks in the latter. For the project, a specialized company holding all current permits will be hired. Electricity demand is expected to be met through the service provided by COOPELESCA in the area; therefore, the approximately 5.4 MW electricity-generation plant will not be installed, favorably eliminating atmospheric gas emissions amounting to 3.3 toneladas de CO2 por hora.

The foregoing will lead to a reduction in fuel storage in the project area (área del proyecto, AP), from 1500 de diesel to 50 m3 and from 38 to 3.7 m3 de gasolina. The cyanide-destruction plant will use more modern technology; therefore, rather than using the INCO process, the CYPLUS process will now be installed, which is more efficient and achieves the expected results with a discharge into the tailings containing less than 1 ppm de cianuro. With respect to social matters, the commitments remain in place through all training programs, promotion of small and medium-sized enterprises (PYMES), collaboration on community infrastructure works, etc. It is currently proposed that closure be completed with two lagoons, one corresponding to that used as tailings storage during the operational phase and one in the Tajo Fortuna; the remainder of the properties would be reforested with native species to regenerate natural forest.

He states that the seven communities within the project’s area of influence were also duly informed and that a sociologist’s study is available. He indicates that SETENA’s approval of the modification to the Crucitas project never involved improvisation or favoritism. (folio 2091) 109- From folio 2115 through 2831 of the case file, various persons submitted pleadings requesting that the Chamber endorse continuation of the mining project.

110- At folio 2834 of the case file, there is a written constitutional challenge (acción de inconstitucionalidad) filed by Jorge Enrique Romero Pérez, which was severed and processed as amparo proceeding (amparo) Number 08-16125-0007-CO, in which he requests that Executive Decree number 34801-MINAET of 13 de octubre del 2008, which declared the so-called “Proyecto Minero Crucitas” to be in the public interest and of national benefit (conveniencia nacional), be declared unconstitutional. He alleges that, in the aforementioned decree, the President of the Republic and the Minister of the Environment, under the justification of the declaration of public interest and national benefit, authorize a mining company to cut down all the trees it requires, including species subject to a logging ban (veda), among which are a large number of yellow almond trees (almendro amarillo) (dipteryx panamensis), a species that, in addition to being threatened per se, constitutes the essential habitat and primary food source during the breeding season of the great green macaw (lapa verde) (ara ambiguus), a species seriously threatened with extinction.

All of this is despite the provisions established by the Executive Branch itself in Decree Nº 25700 of 15 de noviembre de 1996 concerning other threatened species and the binding case law of this Constitutional Chamber, set forth in decisions 2486-2002 and 13426-2008, which expressly prohibit the Ministry of the Environment from granting any type of permit to cut or harvest yellow almond trees. This authorization, issued arbitrarily and without any technical justification, directly threatens the environmental balance and biodiversity of the entire Región Huetar Norte de Costa Rica and southern Nicaragua, including the Refugio de Vida Silvestre Corredor Fronterizo Norte, the Refugio Nacional Mixto Maquenque, and the Corredor Biológico San Juan-La Selva. The justification for declaring the Proyecto Minero Crucitas to be in the public interest and of national benefit is based solely on the potential economic benefits that it is speculated the project will generate.

The challenged decree is also entirely silent regarding the assessment of the socio-environmental cost that would result from the complete destruction of more than 196 ha. of forest—including species afforded special protection because of their importance to the ecosystem—and of the protection zones (zonas de protección) of rivers and streams that the mining company will encroach upon and destroy, with the resulting impact on water resources. The decree has no scientific or technical basis that would objectively allow the socio-environmental cost of such destruction to be assessed or make it possible to establish with any degree of certainty that the social benefit of this destruction exceeds its socio-environmental cost, as required by the forest legislation currently in force. Furthermore, no type of infrastructure—understood as a “Set of basic services required for the operation of a modern economy”—is intended to be built anywhere in the forest area slated for removal; instead, large excavations will be made in the earth to process the material through cyanide leaching (lixiviación de cianuro) in order to extract the gold dispersed throughout the soil.

Processing will take place in an area other than where the excavations, which include the use of explosives, will be conducted. The construction of tailings ponds (lagunas de relaves) to store cyanide-treated material is also planned in that forested area. It is therefore evident that what was decreed by the President of the Republic and the Minister of the Environment violates our constitutional right to a healthy and ecologically balanced environment, enshrined in Article 50 of the Constitución Política. First, this is because the challenged decree arbitrarily and without any justification authorizes the cutting of yellow almond trees, whose logging has been expressly prohibited by this Constitutional Chamber, including through decisions 2486-2002 and 13426-2008, because the Chamber considers the tree to be a key species for protecting the great green macaw, which is itself threatened with extinction.

Second, the declaration of national benefit issued by the Executive Branch through the challenged decree goes beyond the provisions of environmental and forest legislation by declaring an economic activity to be of national benefit when it could not be considered an “infrastructure project,” in light of the meaning of that term and in keeping with the legislature’s intent, as reflected in the provision, to restrict forest removal to the greatest possible extent through application of the principle of forest irreducibility (principio de irreductividad del bosque), thereby depriving the provision at issue of its substance. Third, the challenged declaration of national benefit lacks even the most minimal scientific and technical basis for establishing, beyond any doubt and objectively, that the social benefits to be provided by the operation of an open-pit gold mine using cyanide leaching exceed the socio-environmental cost that would result from the devastation of more than 196 ha. of forest, including the disappearance of all yellow almond trees in the area to be destroyed, the inevitable local extinction of the great green macaw, the destruction of existing biodiversity, and the repercussions for the protected wilderness areas (áreas silvestres protegidas) located within the area affected by the authorized destruction.

This is compounded by the fact that the Administration has not established appropriate instruments for measuring social benefit against socio-environmental cost, as required by law. All of the foregoing violates the constitutional principles of reasonableness and proportionality that must be applied in this case, in which environmental balance and its protection, provided for in Articles 50 and 89 of the Constitución Política, are at stake. He requests that the petition be granted and the challenged decree annulled.

111- By Resolution Number 50, issued at nueve horas diecinueve minutos on seis de enero del dos mil nueve, amparo proceeding Number 08-016125-0007-CO was consolidated with this case file. (folio 2845) 112- At folio 2850, there appears an amparo petition (recurso de amparo) filed by Alain Murillo Bolaños, in which he states that he is challenging the authorization of the mining operation (explotación) known as Proyecto minero Las Crucitas, belonging to Industrias Infinito S.A., through Decreto Ejecutivo 34801-MINAET, a mining project regarding which he believes no information has been made available to the public. The petitioner believes that this decree violates the international conventions on the protection of flora and fauna, particularly endangered species, signed by Costa Rica at the Organización de las Naciones Unidas, and that it seeks to violate the Bolsón protector boscoso mesoamericano and the border treaties with Nicaragua.

He states that this open-pit mining infrastructure project will destroy the microclimates, the scenic beauty of the area, and the water resources, thereby threatening human life and species of flora and fauna, including marine species. He considers the argument that this is being done in the national interest to be unacceptable, because the State has no means of stopping pollution caused by an accident or internal sabotage. He explains that, even today, the consequences of cyanide poisoning persist along more than three kilometers of a freshwater river network. He states that no one controls the removal of any wealth that may ultimately be extracted, and asserts that development of this project will increase drought, alter the course of waterways, and destroy the existing habitat. He believes that the Ministerio de Ambiente, Energía y Telecomunicaciones and the Secretaría Técnica Nacional Ambiental (SETENA) must allow a historical, geological, and satellite study of the affected groundwater basin and sub-basins, rivers and streams, and the environmental impact on the hills and plains.

He believes that assistance from international experts should be requested to measure the regional environmental impact. He states that it must be clarified why SETENA and other related bodies issued permits. He believes that the environmental impact studies must be presented to the public in order to legitimize the origin of Decreto Ejecutivo número 34801-MINAET, and considers that it constitutes a precedent that will later permit the destruction of other fauna and flora habitats. He argues that the Ministerio de Ambiente, Energía y Telecomunicaciones must provide an inventory of the species endangered by the creation of that pit in a primary forest. He alleges that the area contains many of the tree species found in the country and, consequently, believes that a full classification must be made of tropical forest plants that have medical, pharmaceutical, industrial, and food-related applications, as well as an inventory of what will be affected.

He further believes that a project must be presented explaining how surface water and groundwater will be protected, because the complete removal of forest cover (cobertura boscosa) will have serious adverse effects on water quality, as well as on oxygen production, and because of the environmental impact on the habitat and microclimate, erosion, increased sedimentation, and loss of soil fertility. He explains that the site has great scenic beauty and is home to birds, reptiles, mammals, and microorganisms. He notes that the study to be conducted must also examine the impact on buffer zones (zonas de amortiguamiento), and that it must address fire prevention. He states that the controls governing the handling of toxic substances such as cyanide must also be clearly established, as must the manner in which neighboring areas will be protected from the use of those toxic substances, because within a radius of diez kilómetros there are rivers and streams, as well as water basins and sub-basins.

He believes that the site will be drastically affected and that it will take cientos de miles de años to restore what is destroyed; accordingly, a geophysical study must be conducted to determine the physical characteristics of the underlying material and identify the methods that should be used for geophysical exploration. The petitioner asks how much water the open-pit mine will use in order to operate, and states that groundwater is currently the planet’s most important mineral resource and is stored beneath the earth’s surface. A study must therefore detail the groundwater table (nivel freático) of the soil, which is higher in the tropics because of rainfall; he accordingly believes that serious studies certified by licensed professionals in the field must be conducted. The petitioner argues that the impact of this project on tourism in Costa Rica must be determined, and states that for years he has written to various international bodies regarding the advisability of protecting the corredor biológico Bolsón and the buffer zones of Mesoamérica, with particular emphasis on the northern border, which is a natural paradise that many countries would wish to have.

He states that the claim promoted by the Viceministro and the Alcalde de San Carlos—that the area is worthless and that this project will create jobs as a factor in national development and will also generate tax revenue for the municipality—is untrue. He contends that politicians fail to consider the need to protect and preserve the area for future generations, on whose behalf he is filing this amparo petition, and believes that the country must have space for residential developments, agricultural fields, tourism, and conservation, rather than rules of death and destruction that disturb peace with nature. He requests that the petition be granted.

113- At folio 2865 of the case file appears the order admitting the amparo petition 08-14488-0007-CO filed by Alain Murillo Bolaños.

114- At folio 2871, Roberto Dobles Mora, in his capacity as Ministro of the Ministerio de Ambiente, Energía y Telecomunicaciones, submits the report concerning amparo petition 08-14488-0007-CO, stating under oath that, upon analysis, the petitioner’s allegations lack any supporting technical basis and are therefore merely subjective interpretations, since the matters raised were extensively assessed by the Ministerio, with the assistance of its departments, throughout the administrative proceedings. The petitioner is unaware of the 17-year process undertaken by the company before it could begin mining operations. All of the petitioner’s arguments concern extensively studied matters. The assessment of the social and environmental cost of land-use change (cambio de uso del suelo) is included in the environmental assessment (evaluación ambiental) conducted by SETENA. Scientific studies performed to assess the matter are not included in the decree as a legal instrument; for that purpose, the decree expressly states that the project has environmental clearance (viabilidad ambiental), which is itself supported by very extensive evidence and studies, and their omission from the decree does not invalidate the act.

The decree was not the means by which the State first became aware of the land-use change or the cutting of protected species; this was a known and studied technical issue. When the project was presented for public consultation, the forestry issue had already been assessed and was publicly disclosed. He states that the act sets forth its reasons and has sufficient technical and scientific support for its responsible adoption. The State is in no way uncertain; on the contrary, it is the petitioner who lacks certainty and knowledge of the case files and who, if he had doubts, could have resolved them by consulting the administration. He requests that the amparo petition be dismissed.

115- By Resolution Número 17403, issued at diez horas seis minutos del veintiuno de noviembre del dos mil ocho, amparo petition número 08-014488-0007-CO was consolidated with this case file. (folio 2910) 116- At folio 2913, Roberto Dobles Mora, in his capacity as Ministro of the Ministerio de Ambiente, Energía y Telecomunicaciones, files in amparo proceeding 08-14592-0007-CO a request for partial lifting of the measure imposed by the Sala. This request is based on the fact that an inspection conducted by the Comisión Institucional de Seguimiento, Control y Fiscalización del Proyecto on 13 de noviembre del 2008 determined that the activities performed had not caused environmental impacts that were not anticipated in the studies and that the company had complied with the suspension of the relevant works. Nevertheless, authorization is requested to perform certain activities because suspension of the project may itself cause adverse environmental effects that were not contemplated.

Specifically requested is permission to remove the felled timber, properly dispose of and treat the plant waste present in the pit and tailings pond (laguna de relaves) areas, clear the surface-water drainage channels and their respective protection zones, and maintain appropriate phytosanitary controls within the project. It is also requested that forest-protection measures be adopted, that implementation and completion of works for sediment control and soil conservation be permitted, and that the monitoring process be carried out.

117- At folio 2926, Jorge Rodríguez Quirós, in his capacity as Ministro a.i. of the Ministerio de Ambiente, Energía y Telecomunicaciones, states in amparo proceeding 08-14488-0007-CO that he is filing a request for partial lifting of the measure imposed by the Sala. This request is based on the fact that an inspection conducted by the Comisión Institucional de Seguimiento, Control y Fiscalización del Proyecto on 13 de noviembre del 2008 determined that the activities performed had not caused environmental impacts that were not anticipated in the studies and that the company had complied with the suspension of the relevant works. Nevertheless, authorization is requested to perform certain activities because suspension of the project may itself cause adverse environmental effects that were not contemplated. Specifically requested is permission to remove the felled timber, properly dispose of and treat the plant waste present in the pit and tailings pond areas, clear the surface-water drainage channels and their respective protection zones, and maintain appropriate phytosanitary controls within the project. It is also requested that forest-protection measures be adopted, that implementation and completion of works for sediment control and soil conservation be permitted, and that the monitoring process be carried out.

118- In a filing submitted on 25 de marzo de 2009, Jorge Rodríguez, in his capacity as Ministro of the Ministerio de Ambiente, Energía y Telecomunicaciones, attaches the expanded statement of defense arguments submitted in connection with amparo petition Número 08-014488-0007-CO. (folio 2947) 119- At folio 3076 of the expediente, there is a petition for a writ of amparo (recurso de amparo) filed on October 28, 2008, by Javier Berrocal Obando, of legal age, single, a resident of Escazú, holder of identification card 1-1828-012, alleging a violation of Articles 10, 11, 50, 56, 140, 148, and 149 of the Constitución Política, because Executive Decree Number 34801-MINAET, issued at the Presidencia de la República at thirteen hours on October 13, 2008, by the President of the Republic of Costa Rica and the Ministro del Ambiente, Energía y Telecomunicaciones, bases its authorization to cut species whose logging is prohibited by Sala Constitucional decision number 2002-002486 of 10:54 hours on March 08, 2002—in this case, the almendro tree—on Articles 19 and 34 of the Ley Forestal.

He states that the cited articles establish that land-use change (cambio de uso del suelo) may be permitted for projects of national interest (conveniencia nacional); however, the protection regime applicable to the almendro species located in the area of the Proyecto Minero Las Crucitas does not arise from land-use regulation. Accordingly, the cited decision has erga omnes effect and may be modified only by a decision of the Sala Constitucional itself, not by an Executive Decree. He states that an analysis of the articles relied upon by the Poder Ejecutivo in the aforementioned Decree shows that it applied its own interpretation of the law, thereby exercising powers beyond its authority, since it uses only portions of the articles, fails to place them in context, and does not apply the definitions established by Article 33 for the application of Article 34 of the Ley Forestal. He asserts that the tree species subject to a logging prohibition (especies de árboles vedadas) located in this area do not fall under any of the circumstances established by Article 33 of the cited Law and therefore are likewise not subject to the circumstances set forth in Article 34.

This plainly violates Article 11 of our Carta Magna because the public officials responsible for this Decree assumed powers they do not possess by interpreting the law, and it also breaches the constitutional Principle of Legality (Principio de Legalidad), since the objective sought through this Decree cannot be supported by the laws relied upon for its issuance. He considers the content of that Decree to be contrary to law and therefore unlawful, for which reason he requests that the Sala grant the petition, declare the Decree null and void, and set aside all decisions issued pursuant to it.

120- At folio 3089 of the expediente, the Ministro de la Presidencia, the Ministerio de Ambiente, Energía y Telecomunicaciones, and the Secretaria General de SETENA submit their report in amparo 08-14593-0007 on the same terms as the reports previously submitted.

121- On November 4, 2008, Sonia Espinoza Valverde, in her capacity as Secretaria General de SETENA, filed a brief in amparo 08-14593-0007-CO stating that the petitioner’s brief did not name her as a respondent, but nevertheless providing certain clarifications regarding the petitioner’s allegations. She states that the area to be used for the open pit (tajo) is 50 hectares. A total of 382 hectares will be reforested. Of the 50 hectares of open pits, 25 hectares will be fully restored, while the other 25 will perform an important environmental function. Conditions conducive to ecosystems will be created, and therefore it cannot be said that the land will be rendered unusable. With regard to the use of cyanide, it will be neutralized by the CYPLUS system, which performs above the level required by national regulations and meets international standards. The Environmental Impact Study (Estudio de impacto ambiental) also contains a chapter entitled Contingency Plan (Plan de Contingencia), which addresses every type of event that could occur.

In the event of earthquakes, the tailings pond (laguna de relaves) will have an overflow structure or emergency spillway (vertedor de excedencias) that was appropriately designed and approved in the Environmental Impact Study and its Annex, in order to ensure the permanent stability of the dam and to manage excess water independently during periods of maximum rainfall. At the outlet of this emergency spillway, the quality of the overflow water will be continuously monitored, and a lime-dosing plant will also be installed there, as at the outlets of the open pits, so that its pH can be neutralized if necessary. The location of this dosing plant is an additional measure and an extra safety factor because, based on detailed studies conducted by Canadian experts from Jacques Withford, it has been projected that the quality of the discharged water will be acceptable and will comply with national and international standards for release into the environment.

Regarding tree cutting, she refers to the documentation previously submitted and reiterates that, upon completion of the project, there will be 1.186 hectares of protected forest (bosque de protección). (folio 3107) 122- At folio 3113 of the expediente, there is a brief filed by Roberto Dobles Mora, in his capacity as Ministro del Ministerio de Ambiente, Energía y Telecomunicaciones, in which he states in amparo 08-014592-0007-CO that he is requesting the partial lifting of the measure imposed by the Sala. This request is based on an inspection conducted by the Comisión Institucional de Seguimiento, Control y Fiscalización del Proyecto on November 13, 2008, which determined that the activities carried out had not generated environmental impacts unforeseen in the studies and that the company had complied with the suspension of the relevant work. Nevertheless, authorization is requested to conduct certain activities because suspending the project could itself produce adverse environmental effects that had not been contemplated.

The request seeks permission to remove the cut timber, properly dispose of and treat the plant waste present in the open-pit and tailings-pond areas, clear the surface-water drainage channels and their respective protection zones (zonas de protección), and maintain appropriate phytosanitary control (control fitosanitario) within the project. It also seeks permission to adopt forest-protection measures, implement and complete works for sediment control and soil conservation, and carry out the monitoring process.

123- The same request for partial lifting of the measure imposed by the Sala was filed by Jorge Rodríguez Quirós, in his capacity as Acting Ministro of the Ministerio de Ambiente, Energía y Telecomunicaciones, in amparo 08-014593-0007-CO (folio 3126).

124- By a brief received on March 25, 2009, Jorge Rodríguez, in his capacity as Ministro of the Ministerio de Ambiente, Energía y Telecomunicaciones (folio 3148), attached a brief expanding the arguments in defense in amparo 08-014593-0007-CO.

125- By decision Number 8178 of thirteen hours thirty minutes on March 19, 2009, amparo number 08-014593-0007-CO was consolidated with this expediente. (folio 3157) 126- On June 9, 2009, Alberto Cortés Ramos, in his capacity as a member of the Consejo Universitario, requested that the Sala grant him a hearing so that he could present and submit the Consejo’s position regarding the project in question. (folio 3186) 127- At folio 3204, there is a document concerning the Crucitas project submitted to SETENA in which an international environmental audit (auditoría ambiental) is proposed in order to dispel any doubts regarding various technical criteria.

128- By a decision issued at eleven hours and six minutes on June 17, 2009, the Reporting Justice (Magistrado Instructor) ruled: “In briefs appearing at folios 437, 1008, 1320, 1441, 1458, 2039, 2075, 2913, and 2926 of the expediente, the Ministerio del Ambiente, Energía y Telecomunicaciones, the respondent company, and the Environmental Manager (Regente Ambiental) of the Proyecto Minero Crucitas request authorization to undertake mitigation measures (medidas de mitigación) relating to the tree cutting carried out at the mining project before the precautionary measure (medida cautelar) ordered in this constitutional-protection proceeding. In general terms, the proposed mitigation measures concern the removal of the cut timber and its placement in storage yards within the project area; the disposal and treatment of plant waste to reduce the possibility of forest fires and to clear surface-water drainage channels; the adoption of measures to protect and conserve forest resources in areas bordering the protection zones; and the implementation of works for sediment control and soil conservation.

In particular, the Environmental Manager of the mining project states that the specific measures must focus on four principal areas, namely: a) prevention of forest fires; b) mitigation of effects on river and stream protection zones; c) mitigation of soil erosion; and d) the wildlife program (programa de vida silvestre), with specific actions established for each of these areas. In this regard, and pursuant to the precautionary principle in environmental matters (principio precautorio en materia ambiental); in view of the impact being caused by the inability to remove from the site the cut timber and plant waste obstructing internal roads and surface-water drainage channels; and to prevent greater environmental risks arising from the difficulty of regenerating vegetation cover (cobertura vegetal) and even the threat of forest fires that cannot be brought under control, the Sala authorizes implementation of the proposed mitigation measures appearing at folios 2048 and 2078 of the expediente, with the exception of the construction of drainage ditches along access roads and the construction of sedimentation plants, since these two specific measures entail works involving other types of machinery, the placement of exogenous materials, and the participation of a larger number of workers in the area.

The Ministerio del Ambiente, Energía y Telecomunicaciones is ordered to rigorously carry out all necessary oversight and supervisory actions to ensure that only the mitigation measures authorized herein are implemented and that they are implemented in a manner that does not entail any separate environmental harm or risk.” (folio 3313) 129- In a brief filed on June 23, 2009, residents of the communities of Coopevega, Chamorro, El Roble, and Las Crucitas in the district of Cutris, El Jocote, and Llano Verde requested that the Sala conduct a site visit to verify the poverty and neglect affecting that area and asked that the project in question be authorized because of the benefits it has provided to the communities. (folios 3322 to 3351) 130- Folios 3352 to 3575 of the expediente contain submissions in which residents of the locality where the project is situated request that the matter be decided promptly so that they may work and that the project be allowed to continue so that their community may be lifted out of the dreadful conditions in which they live through roads, schools, training, employment, electricity, and income.

131- On June 30, 2009, a document was submitted that the Ministro of the Ministerio de Ambiente, Energía y Telecomunicaciones had sent to the Directora Ejecutiva del Sistema Nacional de Áreas de Conservación and the Director del Área de Conservación Arenal Huetar Norte, setting forth the mitigation measures approved by the Sala. (folio 3578) 132- At folio 3582 of the case file is the amparo petition (amparo) 08-018101-0007-CO filed by ESTEBAN ZAMORA QUESADA, identity card number 1-1048-824, FANNY MARÍA GONZÁLEZ QUIRÓS, identity card number 1-750-192, LUIS FERNANDO UREÑA DELGADO, identity card number 1-1006-584, PABLO CHACÓN VARGAS, identity card number 4-196-833, PATRICIA DOMÍNGUEZ VILLALOBOS, identity card number 4-158-795, VERA AGUERO V, identity card number 1-613-661, JEANNETH CHAVARRÍA MUÑOZ, identity card number 4-155-185, RODRIGO ALFARO CAMBRONERO, identity card number 04-0171-0903, YENDRY HERNÁNDEZ SOLÍS, identity card number 01-1151-0778, JOSÉ ANTONIO MEJÍA C, identity card number 04-0119-0995, HAZEL LÓPEZ ALPIZAR, identity card number 01-1098-0446, WILLIAM GUADAMUZ CASTRO, identity card number 01-1280-0224, JENNIFFER RAMÍREZ VINDAS, identity card number 02-0578-0071, GILDO LÓPEZ CARBALLO, identity card number 04-0195-0369, SONIA REYES BOLAÑOS, identity card number 01-0690-0851, WILLIAM CHINCHILLA MORA, identity card number 01-0609-0815, MARÍA ISABEL CHAVES LEÓN, identity card number 04-0122-0054, ERICK ALFARO CAMACHO, identity card number 04-0182-0554, LAURA GRANDA VARGAS, identity card number 04-0169-0275, FRANK MORALES CONEJO, identity card number 01-0798-0586, LETICIA LORÍA PRENDAS, identity card number 05-0212-0556, MARISOL ZAMORA SALAZAR, identity card number 04-0179-0445, LAURA DELGADO ULATE, identity card number 01-0739-0987, AXEL HERNÁNDEZ VARGAS, identity card number 01-0968-0694, WATSON LAWRENCE 07-0127-0432, KAREN SIBAJA CASCANTE, identity card number 04-0190-0354, LIDIA CHANTO CANTILLANO, identity card number 01-0773-0296, RANDALL GERARDO GARRO QUESADA, identity card number 01-0819-0983, MARÍA ISABEL QUIRÓS E, identity card number 01-0339-0408, RONALD GONZÁLEZ Q, identity card number 01-0914-0127, LUIS DIEGO GONZÁLEZ QUIRÓS, identity card number 04-0192-0436, ROSA ELENA CHACÓN COTO, identity card number 03-0310-0912, HASSELL GONZÁLEZ QUIRÓS, identity card number 01-1013-0264, JOSÉ J. GONZÁLEZ CH, identity card number 01-0969-0219, and BARRANTES B, identity card number 01-0654-0016, in which they allege that, like all Costa Ricans, they have the right to respect for the environment and therefore oppose authorization of “the Open-Pit Gold Mine in the Crucitas Area.” 133- By Resolution Number 86, issued at nine o’clock on 9 de enero del dos mil nueve, amparo petition number 08-018101-0007-CO was consolidated with this case file. (folio 3585) 134- Folio 3588 of the case file records that Resolution 2009-86 could not be served on the petitioners because they had not designated a place to receive notices.

135- On 3 de julio de 2008, [Nombre 055], in her capacity as Director of the Sistema Nacional de Áreas de Conservación of the Ministerio de Ambiente, Energía y Telecomunicaciones, submitted a document informing Mr. Oldemar Corrales of the Área de Conservación Huetar Norte that he would be responsible for supervising compliance with the mitigation measures (medidas de mitigación) authorized by the Chamber. (folio 3589) 136- On 7 de julio de 2009, [Nombre 054], in his capacity as special attorney-in-fact with full powers (apoderado generalísimo especial) for Industrias Infinito S.A. (folio 3590), informed the Chamber of the mitigation measures that had been taken with the approval of the Oficina Subregional de San Carlos de ACAHN.

137- The case file includes official letter CCT-PI 023-09 of 20 de febrero del 2009, issued by the Centro Científico Tropical, responding to several questions from the Minister of the Ministerio de Ambiente, Energía y Telecomunicaciones. Among other matters, it states that the great green macaw does not depend exclusively on the Las Crucitas area for food, since it uses an extensive territory shared by Nicaragua and Costa Rica (parts of the cantons of San Carlos, Sarapiquí and Pococí). The great green macaw’s foraging area exceeds the area of influence (área de influencia) of the mining project by approximately 1.500 has. The great green macaw does not nest in the Las Crucitas area. The nearest nest is 8.7 km away. It states that this is probably due to the severe habitat fragmentation in that area and the lack of mature mountain almond trees. Nor is this an exclusive transit area for the great green macaw; it uses an extensive territory shared by Nicaragua (Reserva Biológica Indio-Maíz and its buffer zone (zona de amortiguamiento) in the municipalities of El Castillo and San Juan del Norte, as well as in the Región Autónoma del Atlántico Sur) and Costa Rica (parts of the cantons of San Carlos, Sarapiquí and Pococí).

The reproductive process of the 25 or 35 pairs of great green macaws nesting in Maquenque will not be interrupted by the mining project because Las Crucitas lies outside the great green macaw’s breeding range. What may decrease is the great green macaw’s visitation of the mining project site due to the reduction in mountain almond trees and the presence of human activity. Nevertheless, it states that the land-use change (cambio de uso de suelo) on 192 has of the project will not interrupt the feeding cycle of the great green macaw population nesting in Maquenque, which is located 8.1 km away; what it may cause is the aforementioned displacement. It states that the project is located in the northwestern part of the Corredor Biológico San Juan-La Selva and forms part of one of the most important Bird Conservation Areas, the Reserva de Biosfera Agua-Paz, and the Corredor Binacional El Castillo-San Juan-La Selva.

This area has been identified as an important conservation core within the Corredor Biológico San Juan-La Selva and has been prioritized by SINAC. It states that the mining project affects a unique ecosystem and that, for this reason, measures to mitigate the felling of individual mountain almond trees and its harmful impacts on the great green macaw population must be aimed at repairing the damage caused. Planting even a very large number of mountain almond trees to compensate for those felled does not help restore this ecosystem or enable the great green macaw to feed there in the short or medium term, since it does not usually frequent short trees. Purchasing land in the upper Sala Carlos River basin for the conservation of Parque Nacional Juan Castro Blanco does nothing to ensure the viability of the mountain almond tree and great green macaw populations. Therefore, the project’s compensation and mitigation projects must pursue the following objectives: 1-consolidate the Refugio Nacional de Vida Silvestre Maquenque through implementation of its Management Plan (SINAC officials, surveillance, infrastructure, land purchases, education, monitoring and science, etc.); 2-strengthen the connectivity of the Corredor Biológico San Juan–La Selva through ecological restoration activities at critical links along the identified connectivity routes, as well as secure a greater commitment from the government to consolidate RNVSM Maquenque with the support of civil society.

(folio 3591) 138- On 27 de julio de 2009, Juan Carlos Hernández Jiménez, in his capacity as special attorney-in-fact with full powers for Industrias Infinito S.A. (folio 3645), submitted the report entitled “Water Resources and the Crucitas Mining Project,” prepared by hydrogeologist Sandra Arredondo Lee, which concludes that, from the standpoint of water-resource use and protection, the project is viable and will cause no adverse effects during its operation and closure.

139- In a written submission filed on 27 de julio de 2009, petitioner [Nombre 001], in his capacity as representative of the Asociación Norte por la Vida, expressed concern regarding the mitigation measures authorized for the respondent company. He is concerned about how the felled timber will be collected without affecting the vegetation cover (cobertura vegetal) that remains at the site. He states that he does not know whether the measures authorized by this Chamber have been brought to the attention of the Ministerio Público, which would be important in order to prevent timber from being unlawfully diverted. (folio 3738) 140- By a decision issued at once horas y trece minutos on veintiocho de octubre del dos mil ocho, the filing in which José Merino del Río, in his capacity as a citizen and deputy, and Heidi Murillo Quesada, in her capacity as representative of the Federación Costarricense para la Conservación del Ambiente, brought a constitutional protection proceeding (recurso de amparo) against the Presidente de la República and the Ministerio de Ambiente, Energía y Telecomunicaciones was severed.

They alleged a violation of Articles 21, 50, and 89 of the Constitución Política because, in their view, the respondent authorities authorized land-use change (cambio de uso de suelo) on forest land located in Las Crucitas de Cutris de San Carlos, Alajuela, as well as the removal of vegetation cover (cobertura vegetal) in water-source protection areas (áreas de protección), for the purpose of constructing an open-pit mining project using cyanide leaching, pursuant to Decreto Ejecutivo Número 34801-MINAET de 30 de octubre de 2008. That decree, in turn, is based on the definition of national expediency (conveniencia nacional) set forth in Article 2° of Decreto Ejecutivo Número 25721-MINAE, known as Reglamento a la Ley Forestal, which they consider unconstitutional. Accordingly, they expressly argued as follows: “(…) As stated in recitals (considerandos) III and IV of the aforementioned Decreto Ejecutivo N° 34801-MINAET, the Poder Ejecutivo bases the authorization granted for tree cutting (including prohibited species and the construction of infrastructure works in forest-covered areas and water-resource protection areas) on the provisions of Article 2 of Decreto Ejecutivo N° 25721-MINAE (…) This regulatory provision defines—for the purposes relevant here—the concept of activities of ‘national expediency’ for purposes of Articles 19(b) and 34 of the Ley Forestal as activities ‘related to the study and implementation of projects or activities in the public interest carried out by centralized State agencies, autonomous institutions, and private enterprise that provide benefits to all or a large part of society, such as: “(…) mining activities.”’ Thus, according to the statement of reasons for the act provided by the Poder Ejecutivo at the end of recital IV, ‘as a result of this declaration,’ that is, based on the cited definition in Article 2 of the Reglamento a la Ley Forestal, ‘the company may proceed to request authorization to cut trees and carry out works within the protection area of streams and rivers.’ Accordingly, the reasoning followed by the Poder Ejecutivo to justify its decision is as follows: Article 6 of the Código de Minería generically declares all mining activities to be ‘in the public interest,’ and Article 2 of the Reglamento a la Ley Forestal declares ‘activities in the public interest,’ including ‘mining activities,’ to be of ‘national expediency’; therefore, it must automatically be concluded that the ‘Las Crucitas’ mining project is of national expediency and that the interested company is authorized to change the use of forest land and fell trees in water-resource protection areas (…).” Consequently, they maintained that the definition of national expediency contained in Article 2° of the Reglamento a la Ley Forestal is constitutionally defective because it infringes the constitutional right to a healthy and ecologically balanced environment, which would directly entail the unconstitutionality of Decreto Ejecutivo Número 34801-MINAET.

To that end, they explained that the Ley Forestal establishes, in principle, a general prohibition against land-use change on privately owned forest-covered land, as well as against the removal of trees in the water-resource protection areas listed in Article 33 thereof. They further stated that, immediately thereafter, the same Ley Forestal establishes in Articles 19(b) and 34 a series of exceptions to that prohibition, respectively including “public or private infrastructure projects of national expediency” and “projects declared by the Poder Ejecutivo to be of national expediency.” On that understanding, they argued that, pursuant to the pro homine principle (principio “pro homine”), such exceptions must be construed narrowly and restrictively because they are exceptions to prohibitions that protect the right of human beings to enjoy forests, water, biodiversity, and so forth. They therefore maintained that the Poder Ejecutivo is not empowered to expand such exceptions by regulation beyond what is expressly provided by law.

They added that the inclusion of the phrase “mining activities” in the challenged provision therefore constitutes an overreach in the exercise of the Poder Ejecutivo’s regulatory authority, exceeding the limits established in Articles 19 and 34 of the Ley Forestal and entirely undermining the purposes of protecting forests and water against land-use change and tree cutting in general. They stated that the Ley Forestal nowhere provides authorization to change the use of forest land for mining purposes. They further noted that the challenged provision includes mining projects among the activities considered to be of national expediency, disregarding the fact that there are many types of mining activity with widely varying social and environmental impacts. In that regard, they explained that there is nonmetallic mining (exploitation of borrow pits and quarries, extraction of materials from riverbeds, etc.), as well as open-pit metallic mining, including the extraction of heavy metals using highly hazardous techniques such as leaching with cyanide or other toxic chemicals.

They requested that, pursuant to Article 48 of the Ley de la Jurisdicción Constitucional, they be granted a period within which to file an action of unconstitutionality (acción de inconstitucionalidad) against the definition of national expediency contained in Article 2° of Decreto Ejecutivo Número 25721-MINAE de 17 de octubre de 1996 y sus reformas, known as Reglamento a la Ley Forestal.

1. 141By a decision issued at quince horas y veinte minutos on once de noviembre de dos mil ocho, amparo proceeding 08-014992-0007-CO was admitted for processing (folio 3772).
2. 142On 18 de noviembre de 2008, José Merino del Río requested that the Sala supplement the decision issued at quince horas con veinte minutos on once de noviembre de dos mil ocho and grant them a period within which to file the action (folio 3778).

143- Sonia Espinoza Valverde, in her capacity as Secretary General of the Secretaría Técnica Nacional Ambiental, reported under oath in connection with the amparo proceeding (amparo) 08-014992-0007-CO (appearing at folio 3781) that, based on an erroneous interpretation, the petitioners set the “pro homine” principle against implementation of the project, identifying the latter with the right to a healthy and suitable environment. The predominant geomorphological characteristics in the area of direct influence of the Proyecto Crucitas are not considered a constraint on its development; it is evident, however, that this is one of the components of the physical environment that will be most affected by the excavation required for gold extraction, which will cause a greater impact on the areas known as Volcanic Landforms (Formas de Origen Volcánico), to which the Botija and Fortuna hills belong.

With regard to the hydrological network (red hídrica), in terms of its drainage pattern, it still retains the typical characteristics of the area’s hydrological network, which to date has not been altered by human influence; its distribution follows the routes permitted by the topographic, soil, and lithological conditions, shaping the characteristics of the terrain and the distribution of the hydrological network. Regarding water quality, it was determined that the water draining from the area of influence of the Proyecto Minero Crucitas is not potable, which is associated with the predominant land-use characteristics in the area, where livestock farming is one of the principal productive activities. Land-clearing and cutting activities, together with the occurrence of heavy rainfall, create the conditions that trigger erosion and the transport of materials into the bodies of water draining the project area.

These effects will occur during operation of the project; therefore, the Environmental Management Plan (Plan de Gestión Ambiental) includes the measures necessary for their control and mitigation. Hydrogeologically, 2 aquifers lie beneath the project area. The shallow aquifer (acuífero superficial) is contained in weathered surficial materials, with a water table approximately 4 m deep, discharge into some streams, and flow governed by the terrain; therefore, no regional flow can be established. Physicochemical analyses conducted in September 2000 and 2006 indicate that the upper aquifer meets potable-water standards except for pH, which is low; the reported data record a pH between 5.76 and 4.92, below the minimum national standard (6.5 pH). According to the design of the Proyecto Minero Crucitas, the upper aquifer does not impose constraints on its development. The lower aquifer (acuífero inferior) is contained in igneous basement rocks, is confined, and has no surface outcrops; this aquifer does exhibit regional east-west and east-southwest flow, with a hydraulic gradient of 3.2%.

Apparently, the confining layer is not composed of saprolite but instead consists of certain low-permeability horizons located within the basement itself. The lower aquifer has a higher concentration of all chemical parameters, which is understandable because it is a deeper aquifer in which the water has a longer residence time and is more susceptible to being affected by hydrothermal alterations associated with the mineral deposit. Consequently, this aquifer has poor water-quality conditions, since its ammonium, iron, potassium, sulfate, color, and turbidity values exceed the potable-water standard. Regarding the possibility of contamination of rivers and streams, including the San Juan River, it is stated that the cyanide-reduction system is known as CYPLUS. This system is an indispensable tool for the project’s environmental management because, as a state-of-the-art system proven in other countries such as the United States, where it has been endorsed by that country’s Environmental Protection Agency (EPA), it makes it possible to ensure compliance with the levels established by current national regulations (less than 1 ppm). ppm=parts per million.

The plant is designed so that discharge into the tailings pond (laguna de relaves) will have a concentration between 30-90 ppb (parts per billion), allowing the project to comply with the international standard of 100 ppb (0.1 ppm); in addition, the process successfully removes all base materials, including copper. The final polishing of waste through the natural degradation of cyanide takes place in the tailings pond, this process being understood as the complete reduction of cyanide in wastewater without human intervention; therefore, neither surface water nor groundwater in the project area and its area of influence will be contaminated. As regards hard-rock extraction, the effect, compared with the saprolite-extraction system, consists of an impact on the quantity of groundwater due to the lower aquifer being exposed during excavation of the open pits (tajos). The groundwater level is expected to be drawn down to the base of this aquifer.

As presented in the environmental impact study (estudio de impacto ambiental), given the aquifer’s distribution and flow characteristics, this situation would produce a maximum anticipated radius of influence of 267 meters. This clearly would not affect properties outside that radius, which is located entirely within the properties of Industrias Infinito; therefore, water intakes or wells on neighboring properties would not be affected. The drawdown (abatimiento) would occur in the immediate vicinity of the excavation, but the magnitude of the decline in the water level could be virtually imperceptible beyond that radius of 267 meters. There are no groundwater withdrawals within that distance, so this impact was considered irrelevant in terms of use of the aquifer. This effect would be permanent at the Fortuna open pit, since the Fortuna open-pit area would remain even after operations cease.

The lower aquifer is confined and, in some sectors, exhibits flowing artesian behavior; the piezometric level has an approximately northeast-southwest flow direction, and the elevation of the piezometric level in the sector where the open pits will be located is approximately 73 masl. The lower aquifer will therefore be intersected at that point, in which case the water emerging as extraction proceeds below the elevation of 73 will be pumped into the tailings pond until extraction is completed. Thereafter, in the Botija open pit, which will be backfilled, the water level will be able to return approximately to its location within the material placed in the open pit, after which vegetation will be restored on the ground surface. In the case of the Fortuna open pit, the water level will return to its location but will fill the pit, forming a lake. To assess the effects of excavating the open pits on the lower aquifer, an evaluation was performed by modeling the drawdown of the water level within the excavation itself and in the surrounding area.

For this purpose, a radial-flow model (Rushton and Redshaw, 1979) was used, and the discharge required to be pumped from the excavation in order to maintain the water level at the floor of the open pit while extraction work was being completed was calculated, as was the radius of influence. For this purpose, the geometry of the open pits was simplified, with emphasis placed on the Fortuna open pit because the Botija excavation will be backfilled. In general terms, the area of the base of the Fortuna open pit was taken as 19103.8 m2. The surface area of the water once the level has recovered is calculated at 88096.6 m2. This drawdown effect on the level of the lower aquifer is temporary because, once material-extraction work ceases and water is no longer pumped from the excavation, the groundwater level will begin to recover until it reaches its current elevation of 73 masl. It must be borne in mind that, as specified in the Environmental Impact Study (Estudio de Impacto Ambiental), the lower aquifer is not used in the project area.

Its water is not potable because of high levels of turbidity, color, sulfates (partially), ammonium, iron, and potassium, among others. She asserts that the project is environmentally viable and that its implementation therefore cannot be set against preservation of the environment, since a state of harmonious balance was contemplated in the environmental impact assessment (evaluación de impacto ambiental). She stated that identifying the principle solely with the right to a suitable environment in its natural dimension is inaccurate, because the concept of environment includes a social component that will benefit from the project, as well as a natural component that is subject to the corresponding environmental measures. She added that the principles of reasonableness and proportionality are observed. She asserted that what is relevant is the environmental impact assessment process to which the activity has been subjected, through which its environmental viability and the proper balance between the activity and the environment have been demonstrated.

Finally, she expressly stated the following: “(…) The classification of the project, under both the Mining Code (Código de Minería) and the Regulations (Reglamento), as having a high potential environmental impact (A), has meant that the environmental impact assessment (EIA) was conducted by requiring preparation of the strongest and most rigorous assessment instrument, namely the Environmental Impact Study (Estudio de Impacto Ambiental, EsIA), with the assessment process reaching the conclusion that the project is environmentally viable (…)”. She requests that the petition be denied.

144- Roberto Dobles Mora, in his capacity as Minister of Environment, Energy and Telecommunications, reports under oath in connection with the amparo proceeding 08-014992-0007-CO (appearing at folio 3800) that Executive Decree Number 34801-MINAET is based not only on Article 2 of the Regulations to the Ley Forestal (Reglamento a la Ley Forestal), but also on Articles 3, subsection m), 19, and 34 of the Ley Forestal. He stated that the challenged provision had previously been reviewed by the Sala Constitucional (Decision Number 2006-17126), which regarded it as one of the limits on administrative discretion when issuing a declaration of national benefit (declaratoria de conveniencia nacional). He argued that the declaration of public interest and national benefit (declaratoria de interés público y conveniencia nacional) is established by law and that the provision in question merely sets forth a numerus apertus list of possible activities to guide legal practitioners and the public administration itself. Consequently, he asserted that the provisions of Article 2 of the Reglamento a la Ley Forestal are consistent with the provisions established by law. He reiterates the arguments presented in the other consolidated amparo proceedings. He requests that the petition filed be denied.

1. 145In connection with the amparo proceeding 08-014992-0007-CO, Rodrigo Arias Sánchez, in his capacity as Minister of the Presidency, reported under oath in terms similar to those stated by the Minister of Environment, Energy and Telecommunications and to the reports previously submitted in the amparo proceedings consolidated into this case file. (appearing at folio 3905),
2. 146At folio 3930 appears the aforementioned request by Jorge Rodríguez Quirós, in his capacity as Minister of the Ministerio de Ambiente, Energía y Telecomunicaciones, to lift the interim measure (medida cautelar) in order to implement the corresponding mitigation measures.

147- By Resolution Number 523, issued at eleven fifty-two hours on dieciséis de enero de dos mil nueve, the Chamber annulled the resolution issued at fifteen twenty hours on once de noviembre de dos mil ocho and ordered that amparo action (amparo) Number 08-014992-0007-CO be consolidated with this case file. (folio 3951) 148- In a filing submitted on 25 de marzo de 2009, Jorge Rodríguez, in his capacity as Minister of the Ministry of Environment, Energy and Telecommunications, attached the supplemental arguments in defense submitted in amparo Number 08-014992-0007-CO. (folio 3962) 149- On 30 de julio de 2009, the petitioner, [Nombre 001], in his capacity as representative of the Asociación Norte por la Vida, reiterated his concern regarding the mitigation measures (medidas de mitigación) authorized for the respondent company. He is concerned about how the felled timber will be collected without affecting the vegetative cover (cobertura vegetal) that remains at the site. He states that he does not know whether the measures authorized by this Chamber have been brought to the attention of the Ministerio Público, which would be important in order to prevent the unlawful diversion of timber (folio 3971).

1. 150By resolution issued at twelve forty-eight hours on tres de agosto de dos mil nueve, an on-site inspection (inspección ocular) of the Proyecto Minero Las Crucitas was ordered as evidence to assist in adjudication (prueba para mejor resolver), and scheduled for eleven hours on once de setiembre de 2009 (folio 3973).

151- In a filing submitted on 13 de agosto de 2009, Gustavo Oreamuno Vignet, in his capacity as President of the Asociación de Iniciativas Populares DITSO, stated his support for this action and requested that it be granted (folio 4022).

152- On 13 de agosto de 2009, Juan Carlos Hernández Jiménez, in his capacity as special attorney-in-fact with full powers (apoderado generalísimo especial) for Industrias Infinito S.A., requested that the Court clarify how the inspection would be conducted, the persons authorized to participate, and the locations to be inspected (folio 4025).

153- The Environmental Manager (Regente Ambiental) of the project in question, Sandra Arredondo, addressed the physical conditions at the site in the filing submitted on 14 de agosto de 2009, so that they could be taken into consideration for the on-site inspection.

154- By resolution issued at thirteen fifty-four hours on dieciocho de agosto de dos mil nueve, the Chamber clarified that the proceeding to be conducted was an on-site inspection and not a hearing (vista), and therefore the parties would speak only in response to any questions the Court might ask. It further clarified that, although any interested person may attend in public areas, access to restricted areas would be limited to those who had entered an appearance as petitioners in the case file and no more than two representatives from each respondent institution and from Industrias Infinito S.A. The latter must make the necessary arrangements to ensure access for those persons and for the attending delegation from this Chamber. The locations to be visited would be: the area where the trees were felled and the full extent of the area authorized for clearing, the nursery, the gold extraction area, the tailings ponds (lagunas de relave) and contingency areas, outcrops of the upper aquifer, streams, gullies, and rivers within the project area, the area where cyanide and any containers would be stored, projects implemented in the area for social benefit, and any other area in which the parties express an interest at the time and which the Court deems relevant. For these purposes, the Ministerio de Seguridad Pública must take the appropriate measures to ensure proper access to the roads and maintain public order.

155- In a filing submitted on 19 de agosto de 2009, petitioner Lorenzo Cambronero Méndez requested clarification as to whether all persons would participate in the inspection, where it would begin, how much time the parties would have for their questions, who could accompany them, and how much time they would have to present arguments.

156- On 21 de agosto de 2009, Jorge Rodríguez Q., in his capacity as Minister of Environment, Energy and Telecommunications, requested that the Chamber summon the Departamento de Aguas, the Dirección de Geología y Minas, and the Área de Conservación Huetar Norte to the inspection.

157- On 27 de agosto de 2009, Juan Carlos Hernández Jiménez, in his capacity as special attorney-in-fact with full powers for Industrias Infinito S.A., requested that the Court expressly identify the persons authorized to enter the project site and state whether supporting intervenors (coadyuvantes) would be allowed to participate in the inspection (folio 4123).

158- At folio 4128 of the case file appears amparo 08-014592-0007-CO, filed by Alexa Villavicencio Córdoba against MINAET, SETENA, and the Ministerio de la Presidencia, in which she states that she opposes the Proyecto Minero Las Crucitas in Cutris de San Carlos. She indicates that the project was declared to be in the public interest (interés público)—by means of Decreto Ejecutivo número 34801-MINAET—without considering endangered tree species, such as the Almendro. She maintains that the challenged Decree based its authorization on Articles 19 and 34 of the Ley Forestal to permit the felling of species whose cutting had been prohibited by Constitutional Chamber judgment número 2002-002486, issued at ten fifty-four hours on ocho de marzo del dos mil dos. However, she indicates that the cited articles establish that land-use change (cambio de uso de suelo) may be permitted for projects deemed nationally beneficial (conveniencia nacional), but the protective regime applicable to the almendro species found in the Proyecto Minero Las Crucitas area was established not through land-use regulations but through the cited judgment, which has erga omnes effect and therefore may be modified only by a decision of the same Constitutional Chamber, not by Executive Decree.

She states that an analysis of the articles relied upon by the Executive Branch in the aforementioned Decree shows that it applied its own interpretation of the law, thereby exercising powers outside the scope of its authority, because it relied on only portions of the articles, failed to place them in context, and did not apply the definitions established in Article 33 for the application of Article 34 of the Ley Forestal. She asserts that the protected tree species found in this area do not fall within any of the circumstances established in Article 33 of the cited Law and therefore are likewise not subject to the circumstances contemplated in Article 34. Accordingly, the public officials responsible for this Decree clearly violated Article 11 of the Constitución Política by assuming powers they do not possess to interpret the law, and also breached the constitutional principle of legality (Principio de Legalidad), because the objective sought through the Decree cannot be supported by the laws invoked for that purpose, thereby making the act an abuse of power and an ultra vires exercise by the Executive Branch.

She adds that Article 6 of the Código de Minería does not authorize companies to conduct mining activities on any public or private land; it merely authorizes mining activity, which is subject to permits requiring studies and support from technical criteria, as well as compliance with special laws concerning environmental protection and with Constitutional Chamber decisions affecting that subject matter. She considers that the Executive Branch lacks authority to interpret legal provisions in order to justify its actions. She further states that point VII of the recitals (Considerando) of the challenged Decree provides that the mine will have a useful life of eleven years, but fails to consider that, once the useful life of the gold mine ends, the area will be rendered entirely unusable for other activities because the nature of open-pit mining entails the complete destruction of the area used, as well as risks prior to closure, including those associated with the water used in the gold-separation process and left in cyanide leach pads.

She considers that this situation fails to satisfy the State’s obligation to guarantee citizens the healthy and ecologically balanced environment referenced in constitutional Article 50, and likewise fails to guarantee the right to decent work of current and future residents of the area where the Proyecto Minero Las Crucitas is located. She considers the content of the Decree contrary to law and therefore unlawful, and for that reason requests that the Chamber grant the action, declare the Decree null and void, and set aside all decisions issued pursuant to it.

1. 159Sonia Espinoza Valverde, in her capacity as Secretary of the Secretaría Técnica Nacional Ambiental, states under oath in case file No. 08-14592-0007-CO (folio 4145) that the Ministry of Environment, Energy and Telecommunications must report on Decreto número 34801-MINAET, which declares the Proyecto Minero Crucitas to be in the public interest and nationally beneficial, because that Ministry is the entity that processed and approved the decree. She adds that, with respect to the tree-felling permit, the competent authority to issue a determination is the Sistema Nacional de Áreas de Conservación. She indicates that, regarding the actions of the entity she represents in the Proyecto Mina Crucitas, she refers to the reports contained in amparo actions 08-008647-0007-CO, 08-014068-0007-CO, 08-014464-0007-CO, 08-014454-0007-CO, and 08-014593-0007-CO. She adds that, in compliance with the order issued by the Chamber to the entity she represents in case file 08-014068-0007-CO, the tree felling was halted by official letter número SG-AJ-1150-2008-SETENA dated veintiuno de octubre del dos mil ocho, and construction in the project’s protected areas (zonas de protección) was halted by official letter número SG-AJ-1196-2008-SETENA dated treinta de octubre siguiente.She indicates that it is impossible to submit the administrative record (expediente administrativo) because it is in the custody of the Poder Judicial, having been seized by the Fiscalía General de la República on veintiuno de octubre del dos mil ocho. She concludes by requesting that the action be denied.
2. 160Roberto Dobles Mora, in his capacity as Minister of Environment, Energy and Telecommunications, states under oath in expediente No. 08-14592-0007-CO (folio 4148) that the Almendro species is not endangered. He states that Article 6(e) of Ley Forestal 7575 assigned the State Forestry Administration (Administración Forestal del Estado) the authority to establish logging bans (vedas) on forest species that are threatened or endangered, or whose harvesting would endanger other species of plants, animals, or other organisms, in accordance with the respective technical studies and other provisions of the legal system in force, without such bans applying to forest plantations. He indicates that, based on that authority, the Ministry he represents established the logging ban on the Almendro Amarillo in order to protect the endangered Lapa Verde, which was done by decreto 25167-MINAE del doce de junio de mil novecientos noventa y seis.He adds that the Ministry is well aware of the restriction on felling (tala) Almendro Amarillo for timber harvesting (aprovechamiento maderable) and that this species is therefore protected ultimately to protect the lapa verde; this recognition was not contravened by the Executive Branch when it issued the challenged Decreto 34801-MINAET, which declares the Proyecto Minero Crucitas to be of national convenience (conveniencia nacional) and in the public interest (interés público). He adds that resolución de la Sala Constitucional número 2002-02486 del ocho de marzo del dos mil dos expressly states that the prohibition against felling that species must be observed, particularly where the optimal habitat for the species’ survival is located, and that, according to the technical studies contained in expediente 129-2002, under which the environmental impact assessment (Evaluación de Impacto Ambiental) was processed, and in the Environmental Management Plan (Plan de Gestión Ambiental) submitted to the Secretaría Técnica Nacional Ambiental, the various studies on protection of the lapa verde, as well as the official maps of that species’ habitat, show that there are currently no active lapa verde nests within the project area, and therefore any impact on nesting sites is ruled out.He emphasizes that it has been scientifically established that the almendro amarillo is only one of the 36 species on which the lapa verde feeds and that the almendro amarillo bears fruit only between November and March. He argues that the environmental approval (viabilidad ambiental) granted by the Secretaría Técnica Nacional Ambiental assessed all anticipated environmental impacts and approved the mitigation measures necessary to prevent harm to the endangered species. He states that it must be taken into account that resoluciones 3638-2005 SETENA del doce de diciembre del dos mil cinco, which approved the project’s environmental approval, and 170-2008-SETENA del cuatro de febrero del dos mil ocho, which approved modifications to the project, are final administrative acts (actos firmes) and were issued after an extensive analysis using the prescribed instrument, namely the Environmental Impact Study (Estudio de Impacto Ambiental).He adds that, in this specific case, the logging ban that prohibits felling the almendro has been analyzed by the Sala Constitucional only in the context of timber harvesting, never in the context of national convenience, such that these are two distinct circumstances involving different elements in the configuration of the factual situation (especie fáctica). He states that felling the almendro under the instrument known as National Convenience (Conveniencia Nacional), provided for by Ley Forestal, calls for other considerations when analyzed in light of Article 50 of the Constitución Política, given the social implications of that instrument and its relationship to a healthy and ecologically balanced environment, as well as the absence, in Articles 19 and 34 of Ley Forestal, of exceptions for particular species or distinctions within the forest ecosystem regarding which national convenience may be declared.He adds that the Sala Constitucional itself held in sentencias números 2006-17126 y 2008-13426 that Articles 19 and 34, insofar as they establish national convenience, are fully consistent with the Constitution. He states that, regarding sustainable development, the Declaración de Río sobre Medio Ambiente y Desarrollo provides that human beings are at the center of concerns related to sustainable development and are entitled to a healthy and productive life in harmony with nature, and also that the right to development must be exercised so as to equitably meet the developmental and environmental needs of present and future generations. He considers the national-convenience mechanism to be fully consistent with those principles. He adds that the declaration of the Proyecto Minero Crucitas as being of national convenience does not in any way entail lifting or violating the logging ban, because the authorized felling is carried out pursuant to the applicable regulations, through the application of an instrument legally established as an exception and supported by technical studies.In his opinion, the petitioner has misconstrued the legal basis of Decreto Ejecutivo 34801-MINAE, and he asserts that, in sentencia número 2002-002486, the Sala Constitucional analyzed a specific activity—timber harvesting of the almendro in relation to protection of the lapa verde—and found it essential, in order genuinely to safeguard that species, to restrict the felling of almendro more broadly under the terms already indicated. He indicates that the felling of almendro trees located within the project area is authorized not on the basis of land-use change (cambio de uso) as a specific exception to the logging ban because, as is generally known, no such scenario exists, but rather as an immediate consequence of applying national convenience, which is permitted by law as an exception allowing the use of a forest to be changed, without exception, and which was not precluded by resolución 2002-002486 de la Sala Constitucional.He adds that, in the case of Crucitas, national convenience is being declared for a private infrastructure project in the mining category and of national interest, which is fully consistent with Article 2 of Decreto Ejecutivo número 25721-MINAE, the Reglamento a la Ley Forestal. He indicates that the clearing of forest (tala de bosque) is an activity inherent in the project, the impact of which was assessed by the Secretaría Técnica Nacional Ambiental in the environmental impact assessment. He adds that national convenience, as a legal doctrine (instituto legal) and an instrument of sustainable development, permits forest clearing in general, and this necessarily requires examination of the basis for national convenience so that the petitioner may understand its proper application. He argues that national convenience is a legal instrument governed by Articles 19 and 34(m) of Ley Forestal and Article 2 of its Reglamento, and that such a declaration is necessary to legally authorize the felling of trees in two situations established in those articles: a) land-use change established in Article 19 of Ley Forestal; and b) felling of trees in protected areas (áreas de protección) described in Article 33 of Ley Forestal.He indicates that, with respect to those provisions, the Sala Constitucional, mediante resolución número 2006-17126, held that they do not contravene constitutional provisions. He considers those articles to embody the opportunity that the country must afford itself to achieve genuine sustainable development. He indicates that the concept of national convenience may be found in Article 3(m) of Ley Forestal and Article 2 of its Reglamento. He adds that it follows from the foregoing that mining activities may be declared to be of national convenience and that this instrument presupposes the existence of socio-environmental costs. He indicates that the specific type of forestry permit (permiso forestal) processed for the mining concession is for land-use change, which entails an unavoidable technical decision to completely remove the vegetation cover (cobertura vegetal) from the authorized area, a technical decision for which there are no alternatives because it is required to carry out the proposed mining operation.He emphasizes that the defining characteristic of a land-use change permit (permiso de cambio de uso del suelo) is that its purpose is not to harvest the forest resource as such, but to remove it in order to conduct an activity that is incompatible with retaining the trees and soil during the extraction phase, together with the fact that the State Forestry Administration is empowered to issue this type of permit, which is governed by the principle of legality (principio de legalidad). He states that proper application of the cited provisions means that, once the requirements have been met, national convenience is declared, and this entails clearing the forest regardless of the species found within the project area. He adds that the foregoing does not mean that the studies necessary to determine that the lapa verde would not be harmed were not conducted, because, in strict observance of the preventive principle (principio preventivo), at the appropriate procedural stage—namely, the environmental assessment (evaluación ambiental)—the competent entity, the Secretaría Técnica Nacional Ambiental, determined that the species would not be harmed and approved the necessary mitigation measures; therefore, he considers that there can be no finding that the principle of legality was breached.He concludes that, because the authority to issue a declaration of national convenience is expressly conferred on the Executive Branch by law, and because the Proyecto Minero Crucitas met the legally established requirements for such a declaration, the Administration would have committed an omission contrary to the principle of legality had it not issued Decreto 34801-MINAET, which is now being challenged, not only by failing to perform an act prescribed by law, but also because denying the declaration of national convenience would have been contrary to Article 16 of the Ley General de la Administración Pública. He considers that the actions of the Ministry under his direction have strictly complied with the legal provisions governing the matter and with the principle of legality, without violating any constitutional rule or principle, and therefore requests that the petition be denied (declarar sin lugar el recurso).
3. 161Rodrigo Arias Sánchez, in his capacity as Ministro de la Presidencia, reports under oath in expediente 08-14592-0007-CO (folio 182) in the same terms as the Ministro de Ambiente, Energía y Telecomunicaciones. He adds only that, pursuant to Article 70 of the Ley General de la Administración Pública, authority (competencia) shall be exercised by the head of the respective body, and relates this to the provisions of Article 129 of that same body of law. He adds that executive power is exercised by the Presidente de la República together with the Ministros de Gobierno, and that both have the duty and authority, for decrees, agreements, and resolutions to be valid, to sign them jointly. He states that the Presidente de la República is responsible for signing decrees, agreements, orders, or resolutions together with the corresponding Minister or the Minister governing the subject matter, based on an internal institutional administrative procedure under which a draft decree, resolution, or agreement is submitted to the Office of the President, since such matters fall exclusively within the purview of the various Ministries and technical entities knowledgeable about the specific subject matter.It is submitted to the Presidente de la República for approval and signature, and for the subsequent effectiveness and validity of the Decree, Agreement, or Resolution. Based on the foregoing, he considers that, in this specific case, the actions of the ministerial head and the Presidente de la República have strictly complied with the legal provisions governing the matter and with the principle of legality (principio de legalidad), without violating any constitutional rule or principle; he therefore requests that the appeal be dismissed.
4. 162By written submission at folio 4319, Roberto Dobles Mora appears in his capacity as Ministro de Ambiente, Energía y Telecomunicaciones and states that, by official letter DAJ-1757-08 dated doce de noviembre del dos mil ocho, the Comisión Institucional de Seguimiento, Control y Fiscalización del Proyecto Minero Crucitas was ordered to conduct an inspection in the area of the stated project to determine whether any unforeseen environmental impacts existed. He states that, in compliance with the order issued and as part of the monitoring, control, and oversight of that project, the Comisión Institucional, composed of the Secretaría Técnica Nacional Ambiental, the Sistema Nacional de Áreas de Conservación, and the Dirección de Geología y Minas, conducted an inspection in the project area on trece de noviembre del dos mil ocho. He states that the results of that inspection are set forth in report DAP-1379-2008-SETENA, which was forwarded to the Ministerial Office by official letter CP-274-2008-SETENA on diecinueve de noviembre del dos mil ocho.He states that, as reflected in that report, the activities carried out by Industrias Infinito Sociedad Anónima in the project area and authorized by the Ministerio de Ambiente, Energía y Telecomunicaciones have not caused environmental impacts unforeseen in the environmental assessment (evaluación ambiental). He adds that, as verified, Infinito Sociedad Anónima has complied with the suspension of work ordered by the Sala Constitucional in the area it designated as the protection area (área de “protección”). He states that, through report DAP-1379-2008-SETENA, the competent technical bodies recommended that the Ministry request that the Sala Constitucional allow the mining project developer to carry out certain activities as mitigation measures (medidas de mitigación), in order to prevent the suspension of activities from causing adverse environmental effects not anticipated in the Environmental Impact Study (Estudio de Impacto Ambiental) and its corresponding Environmental Management Plan (Plan de Gestión Ambiental).He adds that, in view of the foregoing and based on the precautionary principle (principio de prevención) governing environmental matters, he requests authorization for the developer of the project, Industrias Infinito Sociedad Anónima, to carry out the following mitigation measures within the area designated as the “protection” area:1) remove the felled timber and properly place it in a stockyard within the project area;2) properly dispose of and treat the plant waste present in the Fortuna and Botija open-pit areas and in the area intended for construction of the Laguna de Relaves dam, so as to reduce the possibility of forest fires, clear obstructions from surface-water drainage channels and their respective protection zones, and maintain adequate phytosanitary control within the project area;3) adopt measures to protect and conserve forest resources in the areas bordering this “protection” area;4) permit the implementation and completion of sediment-control and soil-conservation works, such as constructing energy dissipators and ditches to retain and channel water that may contain sediment, clearing existing access routes, and constructing perimeter channels for runoff management; and5) allow the monitoring process to proceed for the tracking of baseline data (datos de línea base) concerning soils, surface water, groundwater, fish fauna, aquatic macroinvertebrates, amphibians and reptiles, birdlife, the floristic component, mammals, and the forest component within this area.
5. 163In a written submission at folio 4332, Jorge Rodríguez Quirós appears in his capacity as acting Ministro de Ambiente, Energía y Telecomunicaciones and states that, as reflected in the record, through official letter DAJ-1829-08 dated veinticuatro de noviembre del dos mil ocho, a request was submitted for partial lifting of the interim measure (medida cautelar) imposed by the Sala on the Proyecto Minero Crucitas. He adds that the request was made because the Comisión Institucional de Seguimiento, Control y Fiscalización del Proyecto Minero Crucitas, composed of the Secretaría Técnica Nacional Ambiental, the Sistema Nacional de Áreas de Conservación, and the Dirección de Geología y Minas, conducted an inspection in the project area on trece de noviembre del dos mil ocho and stated the following in report DAP-1379-2008-SETENA: a) that the activities carried out by Industrias Infinito Sociedad Anónima in the Proyecto Minero Crucitas area and authorized by the Ministerio de Ambiente, Energía y Telecomunicaciones had not caused environmental impacts unforeseen in the environmental assessment; b) that, as verified, Infinito Sociedad Anónima had complied with the suspension of work ordered by the Sala Constitucional in the area that the Justices had designated as the protection area; and c) that the Ministro de Ambiente, Energía y Telecomunicaciones should request that the Sala Constitucional allow the developer of the Proyecto Minero Crucitas to carry out certain activities as mitigation measures, in order to prevent the suspension of activities from causing adverse environmental effects not anticipated in the Environmental Impact Study and its corresponding Environmental Management Plan.He states that the requested authorization sought permission for the project developer, Industrias Infinito Sociedad Anónima, to carry out the following mitigation measures within the area designated as the “Protection” area:1) remove the felled timber and properly place it in a stockyard within the project area;2) properly dispose of and treat the plant waste present in the Fortuna and Botija open-pit areas and in the area intended for construction of the Laguna de Relaves dam, so as to reduce the possibility of forest fires, clear obstructions from surface-water drainage channels and their respective protection zones, and maintain adequate phytosanitary control within the project area;3) adopt measures to protect and conserve forest resources in the areas bordering this “protection” area;4) permit the implementation and completion of sediment-control and soil-conservation works, such as constructing energy dissipators and ditches to retain and channel water that may contain sediment, clearing existing access routes, and constructing perimeter channels for runoff management; and5) allow the monitoring process to proceed for the tracking of baseline data concerning soils, surface water, groundwater, fish fauna, aquatic macroinvertebrates, amphibians and reptiles, birdlife, the floristic component, mammals, and the forest component within this area. He states that, on veintisiete de noviembre del dos mil ocho, the Comisión Institucional de Seguimiento, Control y Fiscalización del Proyecto Minero Crucitas conducted another inspection in the project area and that, as a result, the Secretaría Técnica Nacional Ambiental issued report DAP-1448-2008-SETENA. He states that this report indicates that the conditions, conclusions, and recommendations set forth in report DAP-1379-2008-SETENA remain unchanged and again recommends that the Minister request that the Sala allow Industrias Infinito Sociedad Anónima to carry out the stated activities. He adds that, to date, the Ministry has received no response to the request made in official letter DAJ-1829-08. In light of the foregoing, he reiterates the request that the developer be allowed to carry out the mitigation measures stated in reports DAP-1379-2008-SETENA, DGM-CMRHN-120-2008, and DAP-1448-2008-SETENA.
6. 164By order (resolución) issued at diecinueve horas y veintiocho minutos del veintiséis de mayo de dos mil nueve, amparo proceeding (amparo) 08-014592-0007-CO was consolidated with this case file (folio 4354).
7. 165On 1 de setiembre de 2009, Juan Carlos Hernández Jiménez, in his capacity as special attorney-in-fact with full powers (apoderado generalísimo especial) for Industrias Infinito S.A., requested that the appellant, Alexa Villavicencio Córdoba, be served with notice (folio 4364).
8. 166On 1 de marzo de 2009, the Colegio de Geólogos de Costa Rica entered an appearance through two of its representatives for the site inspection (inspección ocular) (folio 4365).

167- By order issued at nueve horas treinta y un minutos del tres de setiembre de dos mil nueve, it was reiterated that the site inspection does not constitute a hearing, and therefore the parties are not entitled to ask questions. If they wish a particular location to be observed, they may so advise the Court, which will then determine what it deems appropriate. Because Coopevega is the first community along the route to the Project, the proceeding will officially begin there. As previously stated, to maintain order during the proceeding, only the parties are authorized to enter the property to be inspected; they may, if they deem it appropriate, be accompanied by a legal representative duly accredited in the case file. In amparo proceedings, interventions by supporting parties (coadyuvancias) are admitted solely for purposes of assessing the facts alleged by the parties, but such supporting parties are not considered parties to the case; consequently, persons who have entered an appearance in that capacity are not authorized to participate in the proceeding. The order issued at doce horas y cuarenta y ocho minutos del tres de agosto de dos mil nueve was also modified to provide that the hearing would begin at diez horas rather than at once, as previously stated (folio 4374).

1. 168On 6 de setiembre de 2009, the appellant [Nombre 001] requests authorization for the participation of Alfredo Arias Elizondo (a resident of the location to be inspected), Quírico Jiménez Madrigal (a forestry engineer), and Oscar Villalobos Chavarría (a professional camera operator), in order to safeguard the principles of equality and procedural fairness (principio de igualdad y equidad procesal) (folio 4375).
2. 169On 7 de setiembre de 2009, Alfredo Córdoba Soro, in his capacity as Mayor of the Municipalidad de San Carlos, requested that the Chamber permit him to participate in the inspection to be conducted on 11 de setiembre.
3. 170On 7 de setiembre de 2009, the petitioner [Nombre 052] entered an appearance through attorney Gabriela Cuadrado Quesada as her legal representative and also requested authorization to bring Allan Astorga Gatgens and Rafael Arce Mesén as technical consultants (folios 4408 and 4409).
4. 171By a ruling issued at nueve horas y trece minutos del ocho de septiembre del dos mil nueve, it was ordered: Regarding the request submitted by petitioner [Nombre 001] to allow Mr. Quírico Jiménez Madrigal to participate in the relevant proceeding in his capacity as a Forestry Engineer, authorization shall be subject to the number of persons whom all the parties intend to have accompany them when actually entering the Project, for obvious reasons of order. Authorization is denied for Mr. Alfredo Arias Elizondo, whose entry was requested by the petitioner because of his familiarity with the area, since the locations to be inspected have been predetermined by the Chamber. Likewise, the request to authorize cameraman Oscar Villalobos Chavarría is denied, because the Chamber will be accompanied by the appropriate professionals for purposes of audiovisual technical documentation, and their evidence will subsequently be made available to the parties. With regard to the request submitted by Mr. Alfredo Córdoba Soro in his capacity as Mayor of the Municipalidad de San Carlos, one representative of that municipal corporation is authorized to participate in the hearing to be held on 11 de setiembre, taking into consideration the constitutional representation held by local governments with respect to local interests.
5. 172On 8 de setiembre de 2009, Carlos Alberto Alfaro Mata requested that the Chamber authorize the entry, during the inspection, of the vehicle bearing provisional license plate 00052670282 and its driver (folio 4433).
6. 173On 8 de setiembre de 2009, petitioner Lorenzo Cambronero Méndez requested that Lic. Freddy Humberto Vargas Chavarría and adviser Félix Díaz Rivera be recognized as duly accredited (folios 4434 and 4435).
7. 174On 8 y 10 de setiembre de 2009, petitioner José Merino del Río requested that the Chamber authorize biologists Gabriel Rivas Ducca and Javier Baltodano Aragón, and attorney José María Villalta, to participate in the inspection (folios 4438 and 4496).
8. 175At folios 4442 and 4443, Cristina Werdlich Hidalgo and Tony Villalobos Ayros enter appearances and request that this amparo proceeding (recurso de amparo) be granted, because they believe that the destruction of forests containing protected species cannot be permitted.
9. 176On 9 de setiembre de 2009, petitioner Heidy Murillo Quesada requested that Lic. Jorge Antonio Mora Portugués be recognized as duly accredited, and petitioner Alain Murillo Bolaños made the same request with respect to Lic. Ronald Joaquín Campos Arias (folios 4445 and 4447).
10. 177In a filing submitted on 10 de setiembre de 2009, the Ministro de la Presidencia de la República accredited the Ministro del Ministerio de Ambiente, Energía y Telecomunicaciones to attend the site inspection (inspección ocular) (folio 4446).
11. 178By a ruling issued at catorce horas y nueve minutos del diez de setiembre de dos mil nueve, the President of the Chamber appointed Luis Francisco Cervantes Gamboa, a Law Clerk of the Sala Constitucional, as ad hoc secretary solely for purposes of the site-inspection proceeding (folio 4495).
12. 179At folio 4494 (with a copy at folio 4447), Alain Murillo Bolaños enters an appearance and states that he appoints Ronald Joaquín Campos Arias as his attorney for the proceedings on once de setiembre de dos mil nueve.
13. 180On once de setiembre de dos mil nueve, a judicial inspection (Inspección Judicial) was conducted in the area of the Crucitas mining project (folio 4621).
14. 181During doce, trece y diecisiete de noviembre de dos mil nueve, a public hearing (vista pública) was held so that the parties could present their claims to the Chamber. Evidence was submitted at the hearing and was admitted, with the Proven Facts chapter specifying in each instance when it is taken into consideration.
15. 182In a filing dated catorce de setiembre de dos mil nueve (folio 4497), Denise Echeverría Robert enters an appearance in her capacity as an expert in Natural Resource Management and Protection at the Universidad Estatal a Distancia and states that she requests application of the Pro Natura Precautionary Principle (Principio Precautorio Pro Natura) in light of the serious threat of opening the country to Open-Pit Metal Mining.
16. 183By a ruling issued at nueve horas cincuenta y nueve minutos del dieciocho de setiembre de dos mil ocho, signed by the Investigating Justice (Magistrado Instructor) (folio 4514), evidence to assist the Court in reaching a decision (prueba para mejor resolver) was requested from the General Manager of SENARA and the legal representative of Industrias Infinito S.A., requiring them to report the outlet into which the stream or streams that will be affected by the tailings pond (laguna de relaves) flow.
17. 184By a document submitted on dieciséis de setiembre de dos mil ocho (folio 4515), a copy was provided of official letter No.4134-09-DGFP dated once de setiembre de dos mil nueve, signed by the Director General de la Fuerza Pública, Erick Lacayo Rojas, and addressed to the Directora de la Dirección Regional de San Carlos, instructing her to take the necessary measures to ensure public order during the visit on once de setiembre.
18. 185In a filing dated veinticuatro de setiembre de dos mil nueve (folio 4519), Juan Carlos Hernández Jiménez enters an appearance in his capacity as Special General Attorney-in-Fact with Full Powers (Apoderado Generalísimo Especial) of Industrias Infinito Sociedad Anónima and complies with the requirements imposed by the ruling issued at nueve horas cincuenta y nueve minutos del dieciocho de setiembre de dos mil nueve. He states that there are two streams in the area of the Proyecto Minero Crucitas, known as “Quebrada Descubrimiento” and “Quebrada la Mina.” He indicates that Quebrada Descubrimiento will not be affected by the tailings pond because the stream’s watershed is physically isolated from this component of the project. He states that Quebrada La Mina will be partially modified by the tailings pond; this modification will entail impounding part of the drainage area, but this does not mean that the stream’s flow will disappear, as that flow will continue below the tailings dam until its confluence with Río Infiernito.He explains that during construction of the tailings pond, the flow and ecological systems associated with the stream will not be affected. He states that, throughout the project’s construction, operational, and closure stages, Monitoring and Control Plans concerning water quality and quantity, aquatic fauna, vegetation, and terrestrial fauna, among other matters, will remain in periodic and continuous operation. He states that the tailings pond is an area for storing ground rock and water that contain no toxic substances; this tailings pond is not the same as a leaching pond (laguna de lixiviación) used by other mining projects, as they are two different systems. He indicates that the tailings pond will receive the water and rock treated at the cyanide-destruction plant (CyPlus); the system’s high efficiency will ensure that neither cyanide nor heavy metals are present in the water and rock sent to the tailings pond.He states that, consequently, water from the tailings pond will be used in the processing plant; this is known as a “hydraulically closed system” (“sistema hidráulicamente cerrado”), which demonstrates that the water is not “consumed,” but instead reused, treated again, and returned to the tailings pond. He emphasizes that excess water from the tailings pond will be discharged into Quebrada la Mina in compliance with national and international discharge standards. He notes that the water discharged from the tailings pond into Quebrada La Mina, together with the water contributed by the natural flow, travels a distance of 1 km before emptying into Río Infiernito. Río Infiernito then travels 20,3 kilómetros along its natural channel before emptying into Río San Juan.
19. 186In a filing dated veinticinco de setiembre de dos mil nueve (folio 4580), Bernal Soto Zúñiga, Manager with the powers of a General Attorney-in-Fact with Full Powers and without monetary limitation (Apoderado Generalísimo sin límite de suma) of Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento-SENARA-, enters an appearance and states that the stream known as La Mina lies within the tailings pond, has several unnamed tributaries, and drains toward Río Infiernillo; the distance between the dam of the tailings pond to be constructed and Río Infiernillo is un kilómetro. He indicates that Río Infiernillo travels veinte kilómetros before emptying into Río San Juan, specifically from its intersection with Quebrada La Mina to the mouth of Río San Juan. He states that, in the tailings-pond sector, Quebrada Caño Crucitas drains toward Río San Juan; however, it belongs to a different surface-drainage system.
20. 187In the filing at folio 4583, [Nombre 001] enters an appearance and requests that the evidence sought in the ruling issued at nueve horas cincuenta y nueve minutos del dieciocho de setiembre de dos mil nueve be expanded so that SENARA and Industrias Infinito S.A. report the full course of the waterways that will be affected by the tailings ponds, up to their final outlet into the Caribbean Sea.

188- In a filing dated treinta de setiembre de dos mil nueve (folio 4589), Warner Rojas Quirós, in his capacity as President of the Junta Directiva de ASOCRUCITAS, enters an appearance and requests that this Chamber promptly decide this amparo proceeding.

1. 189In a filing dated primero de octubre de dos mil nueve (folio 4591), Francisco Alfaro Bolaños, in his capacity as President of the Junta Directiva de la Asociación Desarrollo Coopevega; Oldemar Durán Cordero, in his capacity as President of the Junta Directiva de la Asociación Desarrollo Llano Verde; Rodrigo Blanco Solís, in his capacity as President Asociación Pro-mejoras Chamorro-El Roble; and Eliécer Rodríguez Carmona, in his capacity as President Asociación Pro-Mejoras Crucitas, enter appearances and reiterate their support for Industrias Infinito, which is developing the Crucitas mining project.
2. 190At folio 4594 (see original at folio 4610), Vladimir Arroyo Rojas enters an appearance in his capacity as President of Grupo Ocho Zona Norte S.A. and states his support for Industrias Infinito.
3. 191At folio 4596 (see original at folio 4611), Alfredo Córdoba Soro enters an appearance in his capacity as Mayor of the Municipalidad de San Carlos and expresses his concern about the social conflict that the Crucitas mining project has caused in the community.
4. 192In a filing dated veintidós de setiembre de dos mil nueve (folio 4600), Bernal Soto Zúñiga enters an appearance in his capacity as General Manager of Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento and explains the reasons why he was unable to participate throughout the visit on once de setiembre de dos mil nueve.
5. 193At folios 4603, 4605 and 4607, Alexis Jiménez, Helvetia Jiménez Díaz, and Beatriz Herrero Elizondo enter appearances to reiterate their support for the petitioner in this amparo proceeding.
6. 194At folio 4613, Jennifer Segura Ramírez enters an appearance and states her support for the petitioner’s position.
7. 195By a written submission dated catorce de octubre de dos mil nueve, Carlos Alberto Vega Rojas, Hannia Mena Molina, Petrona Serrano Ruiz, Freddy Rojas, Rebeca Mora Sandoval, Arturo Barrantes Alfaro, Marlene Varela Acuña, Lauren Barrantes Varela, Karen Barrantes Varela, Ademar Amador González, Natalia Vega Amador, José Alberto Vega Amador, Carlos Vega Amador, Cecilia Amador González, Oldemar Durán Cordero, Ángela Alemán Cortés, Ricardo Miranda Jarquín, and José Antonio Vega Corrales enter appearances and express their appreciation for the visit conducted on once de setiembre de dos mil nueve.
8. 196The Preliminary Visit Record (Acta de Visitas Preliminares) and the Judicial Inspection Record (Acta de Inspección Judicial) conducted on once de setiembre de dos mil nueve are included at folios 4621 through 4640.
9. 197In the written submission appearing at folio 4642, Rafael Ángel Rojas Jiménez enters an appearance and requests recognition as an active supporting party (coadyuvante activo) in favor of the petitioners.
10. 198By a ruling issued at ocho horas seis minutos del veinte de octubre de dos mil ocho (folio 4644), it was ordered that the statements made by petitioner [Nombre 001], appearing at folio 4627 of the case file, in which he files a habeas corpus petition (recurso de hábeas corpus) against the Ministerio de Seguridad Pública and the Organismo de Investigación Judicial, be severed so that they may be processed as a new matter.
11. 199By a ruling issued at quince horas cincuenta y tres minutos del veintitrés de octubre de dos mil nueve, a public hearing (Vista pública) was scheduled for nueve horas del doce de noviembre de dos mil nueve in these proceedings.
12. 200By a written submission dated veintisiete de octubre de dos mil nueve, Juan Carlos Hernández Jiménez, in his capacity as general attorney-in-fact with full powers (Apoderado Generalísimo) of Industrias Infinito Sociedad Anónima, enters an appearance and makes statements regarding the speaking time they will be allotted at the hearing of doce de noviembre de dos mil nueve.
13. 201At folio 4704, Jorge Herrera Ocampo, in his capacity as Executive Director of the Colegio de Geólogos de Costa Rica, enters an appearance and asks whether representatives of the Colegio he represents must appear at the hearing of doce de noviembre de dos mil nueve.
14. 202By a written submission dated veintiocho de octubre de dos mil nueve (folio 4706), Rodolfo Alberto Leonardo Ulloa enters an appearance. Because he now believes that the Proyecto Minero Crucitas may bring social well-being to the surrounding communities through the creation of employment and wealth, he withdraws his intention to continue with this amparo proceeding (recurso de amparo).
15. 203In the written submission at folio 4707, Lorenzo Cambronero Méndez enters an appearance and states that he appoints Freddy Humberto Vargas Chavarría as his legal representative.
16. 204By a written submission dated treinta de octubre de dos mil nueve, Heidi Murillo Quesada, in her capacity as general attorney-in-fact with full powers of Federación Costarricense para la Conservación del Ambiental –FECON–, enters an appearance and states that she grants a special judicial power of attorney (Poder Especial Judicial) to Marcos Alexander Piedra Rodríguez.
17. 205At folios 4709 and 4716, Sergio Quirós Marín and Marlon Chaves Jiménez enter appearances and express their support for the petitioning party’s position.
18. 206By a written submission dated cuatro de noviembre de dos mil nueve (folio 4719), José Eduardo Vargas Rivera, in his capacity as President of Instituto Latinoamericano de los derechos humanos y Paz Social, enters an appearance and states that they will attend the hearing of doce de noviembre de dos mil nueve. He reiterates his support for the respondent party.
19. 207By a written submission dated cuatro de noviembre de dos mil nueve (folio 4722), José Merino del Río enters an appearance and states that he appoints José María Villalta Flores-Estrada as his representative for the hearing of doce de noviembre de dos mil nueve.
20. 208By a ruling issued at nueve horas veintiocho minutos del cuatro de noviembre de dos mil nueve, evidence for further consideration (prueba para mejor resolver) was requested from the Head of the Área de Conservación Arenal Huetar Norte of the Ministerio de Ambiente, Energía y Telecomunicaciones.
21. 209At folio 4725 of the case file, Yamileth Astorga and [Nombre 001] enter appearances and raise questions regarding the ruling issued at quince horas cincuenta y tres minutos del veintitrés de octubre de dos mil nueve. Likewise, in the written submission appearing at folio 4725, Yamileth Astorga states that she appoints Ph.D. Allan Astorga Gatgens as her representative for the day of the hearing.
22. 210By a written submission dated cuatro de noviembre de dos mil nueve, Bernal Soto Zúñiga, in his capacity as general attorney-in-fact with full powers of Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento –SENARA–, enters an appearance and states that Geologist Roberto Ramírez Chavarría and M.Sc. Juan Alberto Corrales Ramírez will accompany him on the day of the hearing.
23. 211In the written submission at folio 4729, Gladis Martínez, in her capacity as Legal Adviser to Asociación Interamericana para la Defensa del Ambiente, enters an appearance to confirm that she will appear at the hearing of doce de noviembre de dos mil nueve.
24. 212By a written submission dated seis de noviembre de dos mil nueve (folio 4730), Cristhian González Chacón, in his capacity as attorney-in-fact for Sonia Espinoza Valverde, Secretary General of Secretaría Técnica Nacional Ambiental, enters an appearance and requests technical equipment for a PowerPoint presentation at the hearing of doce de noviembre de dos mil nueve.
25. 213By a written submission dated seis de noviembre de dos mil nueve (folio 4733), Jorge Rodríguez, in his capacity as Minister of Environment and Energy, enters an appearance to specify the technical equipment they will require on the day of the hearing. Likewise, in the written submission appearing at folio 4734, he states that Cynthia Cavallini Chinchilla, Jorge Hernández Benavides, and Oldemar Corrales Jiménez are accredited for the hearing.
26. 214By a written submission dated seis de noviembre de dos mil nueve (folio 4735), John Thomas and Arnoldo Rudín Arias, in their capacity as general attorneys-in-fact with full powers of Industrias Infinito Sociedad Anónima, enter appearances and state that the company’s representatives on the day of the hearing will be John Thomas, Juan Carlos Obando Umaña, and Juan Carlos Hernández Jiménez.
27. 215By a written submission dated seis de noviembre de dos mil nueve (folio 4736), Rodrigo Arias Sánchez, in his capacity as Minister of the Presidency, enters an appearance and states that the representatives he appoints for the day of the hearing are Jorge Rodríguez Quirós, Fabián Volio, and Lorena Polanco Morales.
28. 216At folio 4737 (see original at folio 4739) of the case file, [Nombre 001] enters an appearance and specifies the technical equipment he will require on the day of the hearing.
29. 217By a written submission dated nueve de noviembre de dos mil nueve, Álvaro Sagot Rodríguez enters an appearance and states that, for the day of the hearing, he designates Rafael Arce Mesén, Doctor of Geography.
30. 218By a written submission dated nueve de noviembre de dos mil nueve (folio 4741), John Thomas and Arnoldo Rudín Arias, in their capacity as general attorneys-in-fact with full powers of Industrias Infinito Sociedad Anónima, enter appearances and state that, pursuant to the request made in the ruling issued at nueve horas veintiocho minutos del cuatro de noviembre de dos mil nueve, the gold contained in the rock will be extracted from two locations: cerro Botija and cerro Fortuna. They indicate that three types of material are present at the extraction sites: soil or topsoil, gold-bearing rock, and rock without gold. They state that, pursuant to the Mining Plan (Plan de Explotación) approved by the Dirección de Geología y Minas, rock will be extracted from cerro Botija and cerro Fortuna simultaneously; once the material has been removed from cerro Botija, that site will be backfilled with material from cerro Fortuna.
31. 219At folio 4772, Manuel Antonio Brenes Corrales enters an appearance and states that he will be unable to attend on doce de noviembre de dos mil nueve, the day of the hearing.
32. 220By a ruling issued at once horas cuarenta minutos del diez de noviembre de dos mil nueve, a response was given to the application filed by Yamileth Astorga appearing at folio 4725.
33. 221By a written submission dated diez de noviembre de dos mil nueve (folio 4776), Álvaro Salas Orozco enters an appearance and states that he will be unable to attend the hearing of doce de noviembre de dos mil nueve.
34. 222At folio 4778, Uriel Juárez Baltodano, in his capacity as Acting Secretary General of Secretaría Técnica Nacional Ambiental, enters an appearance and states that he has complied with the request made in the ruling issued at nueve horas veintiocho minutos del cuatro de noviembre de dos mil nueve. He indicates that, regarding the intended disposition of the waste material—rock and soil—to be extracted at Proyecto Minero Crucitas, all topsoil removed from the extraction areas must be transported to the soil disposal site, where all measures necessary to ensure its proper storage will be applied, preserving its original condition to the greatest extent possible so that it may be used without difficulty in subsequent reclamation work. He indicates that, as is well known in all metal-mining projects, some material does not contain gold and is therefore known as waste rock (roca estéril) or barren saprolite (saprolita estéril); in the case of Proyecto Minero Crucitas, these materials will not be sent through the plant’s production process and will therefore be properly transported to the tailings area (área de relaves), while some of the saprolite that does not contain gold will be used to construct the tailings dam (dique de relaves).He states that the waste rock will be transported to and placed within the tailings area, primarily in the eastern sector. He adds that the material to be handled, both that extracted as waste rock and that processed at the production plant, makes it possible to place the entire volume appropriately in the tailings area and the backfill and will also make it possible to restore the volume extracted from the Botija open pit (tajo Botija) beginning in year six; that is, the Botija open pit will be completely backfilled by the end of the operational phase. He mentions that the engineering and hydraulic studies conducted for Proyecto Crucitas indicate that the volumes of material can indeed be properly managed within the project components intended for that purpose. He mentions that, to eliminate the potential for acid drainage (drenaje ácido), the tailings and waste rock must be deposited in the pond so that they remain submerged beneath a water column with an average depth of 2 metros, preventing their exposure to air and eventual oxidation; they will be handled using a movable floating pipeline that distributes the material uniformly throughout the pond in the western sector, while the waste rock will be deposited immediately, without storage, by mechanical means in the eastern sector, with controls to ensure that it remains flooded.Additionally, the excess saprolite will be used to reinforce the covering of the tailings dam and to cover the waste rock in the storage area and the slopes of the extraction pits (pits de extracción) to inhibit oxidation. He reports that, if possible, a layer of inert tailings from barren material will be deposited at the end of the operational phase to form a sealing layer over the remaining tailings and material with the potential to generate acid drainage. He indicates that waste rock must be deposited in the pond in the same manner as the tailings.
35. 223Information submitted by the Ministerio de Ambiente, Energía y Telecomunicaciones is included at folios 4780 through 4791.
36. 224At folio 4792, Jorge Rodríguez Fonseca grants a special judicial power of attorney to Lic. Edgar [Nombre 001] and appoints Ing. Allan Astorga Gatgens as technical adviser.
37. 225At folio 4793, Manuel Antonio Brenes Corrales grants a special judicial power of attorney to Lic. Freddy Vargas Chavarría and appoints Ing. Allan Astorga Gattgens as technical adviser.
38. 226At folio 4795, Adriana Calvo Aguilar grants a special judicial power of attorney (Poder Especial Judicial) to Gabriela Cuadrado Quesada and appoints biologist Javier Baltodano Aragón as technical adviser.
39. 227By written submission dated doce de noviembre de dos mil nueve, Leda María Zamora Chaves enters an appearance in her capacity as a member of the Legislative Assembly from the Partido Acción Ciudadana (folio 4795), and states that she grants a special judicial power of attorney to Lic. Diego Pacheco Alvarado.
40. 228At folio 4797 of the case file, Gladis Martínez enters an appearance on behalf of the Asociación Interamericana para la Defensa del Ambiente to clarify that the Association has not requested leave to participate as an intervenor (coadyuvante); it merely intends to provide information concerning its analyses.
41. 229By written submission dated trece de noviembre de dos mil nueve (folio 4800), Alberto Delgado Artavia enters an appearance in his capacity as Acting Director of the Área de Conservación Arenal Huetar Norte and states that, on cerro Fortuna, 6 has 5598.15m remain to be cleared, that is, 342 trees; in Relaves A and B, 115 has 2165.56m and 5520 trees remain; in dikes, roads, sections, and lines, 7 has 8085.05m, that is, 1396 trees; and in non-forested areas, 8 has 8259.88 m and 563 trees, for a total of 7821 trees. He clarifies that information concerning cerro Botija is not included because all the trees there had already been cut initially. In response to the question of how many of those trees are almendros, he reports that all trees of the almendro amarillo species were cut, both those located in forested areas and those in non-forested areas.
42. 230By written submissions dated dieciséis de noviembre de dos mil nueve, José Eduardo Vargas Rivera enters an appearance in his capacity as representative and spokesperson of the Instituto Latinoamericano de Derechos Humanos y Paz Social (folio 4807), and states that he supports the Crucitas project because he believes that it benefits the country by creating jobs during a time of crisis.
43. 231At folios 4811 to 4826, Armando Zúñiga Alvarado, Estefanny Zúñiga Alvarado, Miriam Alvarado Rodríguez, and José Alberto Zúñiga Alvarado enter appearances to reiterate their support for the petitioner in the amparo proceeding (amparo), because they believe that the destruction of more than 192 hectares of forest containing protected species cannot be permitted.
44. 232By written submission dated dieciséis de noviembre de dos mil nueve (folio 4877), Rodrigo Arias Sánchez, in his capacity as Ministro de la Presidencia, submits a list of persons authorized to attend the Hearing (Vista).
45. 233By written submissions included at folios 4878 and 4882, Marcos Gómez Martínez and José Luis Cruz Borbón enter appearances to reiterate their support for the petitioner in the amparo proceeding, because they believe that the destruction of more than 192 hectares of forest containing protected species cannot be permitted.
46. 234By written submission dated diecisiete de noviembre de dos mil nueve (folio 4886), Javier Baltodano submits a report entitled “Biological Corridors of Costa Rica.”
47. 235At folio 4929, Javier Baltodano submits the “Floristic Assessment of the Forests of the Northern Region of Costa Rica,” prepared by Nelson Zamora of the Instituto Nacional de Biodiversidad.
48. 236On diecisiete de noviembre de dos mil nueve, Ricardo Araya submits, on behalf of the Unión Internacional para la Conservación de la Naturaleza Comité Nacional de Costa Rica, the press release “No to Open-Pit Mining.” He also submits articles he considers relevant, in English and Spanish, which support his conclusion that the Crucitas mining project will have a negative environmental impact.
49. 237At folio 5244, dated diecisiete de noviembre de dos mil nueve, Yamileth Astorga Espalda attaches a document entitled “Regarding the Environmental Cost-Benefit Assessment That SETENA Should Have Conducted,” the “Manual of Technical Instruments for the Environmental Impact Assessment Process,” a document entitled “Regarding the Possible Existence of a Geological Fault Beneath the Tailings Reservoir Dam Site of the Crucitas Project,” and the “Environmental Impact Study” prepared by Desarrollos en Ecología, Paisajismo, Planificación, Arquitectura y Turismo S.A.
50. 238By an order issued at quince horas diecinueve minutos on dieciocho de noviembre de dos mil nueve, additional evidence to aid adjudication (prueba para mejor resolver) was requested from the Director del Observatorio Vulcanológico y Sismológico de Costa Rica, who was asked to report whether any seismic fault exists in the Crucitas area of San Carlos.
51. 239At folio 5315, Jorge Rodríguez enters an appearance in his capacity as Ministro de Ambiente, Energía y Telecomunicaciones and submits additional evidence to aid adjudication. He states that the attached documents constitute a summary of the matters presented at the hearing, entitled “Closing Argument Based on the Evidence” (“Alegato de Bien Probado”), highlighting topics including the granting of the mining concession (concesión minera), the environmental impact assessment (evaluación de impacto ambiental), the tree-cutting permit for land-use change (cambio de uso de suelo), the decree of national interest (decreto de conveniencia nacional), the tree-cutting process, the technical feasibility study, the SETENA matrix, and forest compensation measures, among others.
52. 240At folios 5419 and 5420 is the record of the Hearing held at nueve horas on doce de noviembre de dos mil nueve.
53. 241At folio 5421, Jennifer Zúñiga Alvarado enters an appearance and states her support for the petitioner’s position.
54. 242By written submission dated veinticuatro de noviembre de dos mil nueve, [Nombre 001] enters an appearance and submits a compact disc containing the presentation made at the hearing; a document prepared by geologist Allan Astorga Gattjens entitled “Regarding the Procedure Followed by SETENA for the Environmental Review of the Expansion of the Crucitas Project and the Participation of a Geologist in the Process”; a study entitled “Destruction of the Forest and Floristic Biodiversity by the Crucitas Mining Project”; a printed summary of biologist Javier Baltodano’s presentation at the hearing; a document entitled “Environmental Assessment of the Proposed Change to the Project Submitted by Infinito S.A. in 2007”; the curriculum vitae of M.Sc. [Nombre 052]; and a transcript of the presentation made before the Chamber at the hearing.
55. 243By an order issued at once horas veintinueve minutos on veinticinco de noviembre de dos mil nueve, additional evidence to aid adjudication was requested from the Secretaría General de SETENA and the Ministerio de Ambiente, Energía y Telecomunicaciones.
56. 244By written submission included at folio 5501 of the case file (original visible at folio 5535), Juan Segura Torres enters an appearance in his capacity as Director of OVSICORI-UNA and addresses the request made by the Chamber on dieciocho de noviembre de dos mil nueve. He states that, within the two days following notification of the Chamber’s request, he is able to report only on the seismic activity recorded in the region by the institution’s own seismic network since the founding of the Institute (1984) to the present, seismic information available since the beginnings of the global seismic network (1990), and faults in the area under study that have been described in specialized publications. He explains that, in the case of Crucitas, two principal faults have been identified in the region: the San Carlos fault, located to the east of the map, which has been inferred through remote sensing and is presumed to be an active fault or one that exhibited activity during the Quaternary period; however, none of the earthquakes recorded by OVSICORI is associated with that fault.He explains that the other fault is located to the west of the map and is called the Falla Recreo; this fault was active during the Tertiary period, but no activity during the Quaternary period has been established, and no seismic activity has been recorded on that fault since 1984. He notes that the global seismic network’s earthquake catalog reports no significant earthquake in the area covered by the map; that is, no earthquakes with a magnitude greater than 7 occurred between 1900 and 0954, no earthquakes with a magnitude greater than 6.5 occurred between 1954 and 1964, and no earthquakes with a magnitude greater than or equal to 4.5 occurred from 1964 to 1984. He adds that the earthquakes located by OVSICORI-UNA between 1984 and the present (60 in total) in that area have magnitudes ranging from 2.5 to 4.1; therefore, the seismic activity recorded by OVSICORI-UNA and the global seismic network indicates that seismic activity in the area under study is very low compared with other regions of the country and may be considered insignificant.
57. 245By written submission dated veintisiete de noviembre de dos mil nueve (folio 5505), Jorge Rodríguez enters an appearance in his capacity as Ministro de Ambiente, Energía y Telecomunicaciones and submits as evidence the Appendix and Annexes to the Environmental Impact Study, the printed document concerning the Assessment of Proposed Changes to the Project and related documents, and all documents concerning the use of explosives authorized for the Proyecto Minero Crucitas.
58. 246By written submission dated veintisiete de noviembre de dos mil nueve (folio 5532), Sonia Espinoza Valverde enters an appearance in her capacity as Secretaria General de la Secretaría Técnica Nacional Ambiental and states that the information requested in the order issued at once horas veintinueve minutos on veinticinco de noviembre de dos mil nueve was forwarded through official letter SG-AJ-1090-2009-SETENA to the Ministro del Ministerio de Ambiente, Energía y Telecomunicaciones, who will deliver that documentation.
59. 247By written submission dated veintisiete de noviembre de dos mil nueve (folio 5538), Sandra Arredondo enters an appearance in her capacity as environmental compliance officer (Regente Ambiental) for the Proyecto Minero Crucitas and states that she is submitting technical information and clarifications to aid adjudication.
60. 248By written submission dated veintisiete de noviembre de dos mil nueve (folio 5575), Juan Carlos Hernández enters an appearance in his capacity as judicial attorney-in-fact (Apoderado Judicial) for Industrias Infinito Sociedad Anónima and submits a document entitled “Questions and Answers,” setting out the answers to the principal questions raised at the hearing.
61. 249At folio 5576 (see original at folio 5583), Sandra Arredondo enters an appearance in her capacity as environmental compliance officer for the Proyecto Minero Crucitas and requests a copy of the video recording of the hearing.
62. 250By written submission dated veintiocho de noviembre de dos mil nueve (folio 5577), Eduardo Vargas Rivera enters an appearance in his capacity as representative of the Instituto Latinoamericano de Derechos y Paz Social and states that he supports the Crucitas project because he believes it benefits the country.
63. 251By written submission dated dos de diciembre de dos mil nueve, Sandra Arredondo enters an appearance in her capacity as environmental compliance officer for the Proyecto Minero Crucitas (folio 5579), and states that she is submitting technical information and clarifications to aid adjudication.
64. 252In written submissions visible at folios 5587 and 5589, Gustavo Ulate Vargas expresses his opposition to the mining project and his support for the amparo petition filed.
65. 253By written submission received on ocho de diciembre de dos mil nueve (folio 5595), Juan Carlos Hernández, in his capacity as general attorney-in-fact with full powers (Apoderado Generalísimo) for the respondent company, requests a copy of the video recording of the Hearing held on doce, trece y diecisiete de noviembre de dos mil nueve.
66. 254By written submission received on primero de enero de dos mil diez (folio 5596), Francella Amador Rodríguez enters an appearance and states her support for the petitioner’s claim.
67. 255By written submissions received on trece de enero de dos mil diez (folios 5600 and 5602), Luis Diego Cárdenas Pereira and Günther Hauser enter appearances and request recognition as supporting intervenors (coadyuvantes activos).
68. 256In a written submission filed on 14 de enero de 2010, Daniela González C. and the other signatories (folio 5604) request recognition as respondent-side intervenors (coadyuvantes pasivos) in this proceeding and request that the petition be granted.
69. 257At folio 5610, Mr. Carlos Alberto Alfaro Mata asks this Court to annul mining concession (concesión minera) R-217-2008-MINAE, Decreto Ejecutivo No. 34801-MINAET, and resolution No. 244-2008-SCH.
70. 258On 19 de enero de 2010, Juan Carlos Alvarado Molina requests that this constitutional rights protection proceeding (recurso de amparo) be granted and that an expert assessment by an interdisciplinary group, another inspection, and an oral hearing be ordered.
71. 259At folio 5637 appears the recusal request (solicitud de inhibitoria) submitted by Justice Salazar Cambronero, which was granted by the Presidency of the Chamber (see folio 5649).
72. 260On 9 de marzo de 2010, the Secretariat of the Concejo Municipal de San Carlos filed a brief requesting that the Chamber issue a final decision in this constitutional rights protection proceeding (folio 5638).
73. 261On 19 de marzo de 2010, the representative of the respondent company asks the Chamber to issue judgment in this proceeding.
74. 262The statutory requirements have been observed in the proceedings.

Drafted by Justice Mora Mora; and,

Considering

I.Preliminary matter. Regarding political responsibility for open-pit metal mining (minería metálica a cielo abierto), its authorization and prohibition by the branches of government, and the possible termination of the concessions granted by the Executive Branch.- In a social and democratic state governed by the rule of law (Estado Social y Democrático de Derecho), it is clear that environmental policy falls within the authority of the Legislative and Executive Branches, not the Judiciary, and therefore not this Constitutional Court, Chamber, or Court. The foregoing means that determining in general whether open-pit metal mining should be permitted in the country falls outside the jurisdiction of constitutional review (jurisdicción constitucional), since, as stated, this is the authority and responsibility of the Legislative and Executive Branches, which have deemed this method of exploiting the nation’s natural resources viable.

Thus, the case under review is the result of decisions and policies adopted by those branches of government. From this perspective, open-pit mining is permissible in our country because those branches have so decided in the exercise of their constitutional and statutory authority (Código de Minería, Ley Orgánica del Ambiente and their regulations). Now, irrespective of the considerations concerning the merits of the mining project addressed by this constitutional rights protection proceeding, it has been established that authorizing or prohibiting this type of mining operation is a matter of public policy grounded in the powers and authority of the Legislative and Executive Branches. The majority of this Constitutional Court considers that open-pit metal mining may indeed be prohibited prospectively through legislative action, whether initiated by that branch of the Republic or by the Executive Branch itself.

Such a decision falls within the scope of political discretion and legislative freedom enjoyed by the ordinary legislature. Moreover, the Executive Branch may ultimately exercise its full powers and authority to terminate, for reasons of expediency, suitability, merit, or public interest, concessions and permits previously granted to any company, subject to any resulting liabilities. It must be borne in mind that artículo 6°, párrafo in fine, of the Código de Minería, Ley No. 6797 de 4 de octubre de 1982 y sus reformas, provides that, in the event permits or concessions are terminated, “the national interest shall be declared by the Asamblea Legislativa.” Under this interpretation, the Legislative and Executive Branches must respectively have the final say regarding the prospective prohibition of open-pit metal mining and any eventual termination of the concessions and permits granted to date, should they deem this expedient, suitable, or necessary in the public interest, while assuming the corresponding liabilities.

In other words, the considerations set forth below relate to the specific case submitted to the Chamber and must be understood specifically in relation to the subject matter of this proceeding for the protection of constitutional rights (acción de garantía) and to this particular mining project, without the Court’s opinion being or being capable of being construed as a general validation of the development of open-pit metal mining in the country, since, as stated, authorizing and prohibiting that activity falls within the authority and responsibility of the Legislative and Executive Branches. Accordingly, this judgment will analyze the constitutional issues raised by the petitioners, without the conclusions reached herein preventing the legislative and executive authorities from modifying public policy on open-pit metal mining.

II.Regarding constitutional rights protection proceedings against private-law entities (sujetos de derecho privado). Because of their exceptional nature, the ordinary processing of constitutional rights protection proceedings against private-law entities requires first examining whether the case falls within any of the circumstances that make such a proceeding admissible and, if so, subsequently determining whether it should be granted. This is necessary in the case under review because one of the respondent parties is Industrias Infinito Sociedad Anónima, which is plainly a private-law entity. Article fifty-seven of the Ley de la Jurisdicción Constitucional establishes that a constitutional rights protection proceeding may be brought against the acts or omissions of private-law entities when they exercise or are required to exercise public functions or powers, or when they are, as a matter of law or fact, in a position of power against which ordinary judicial remedies are clearly insufficient or untimely to guarantee the fundamental rights or freedoms referred to in article two, subsection a), of that same Law.

In this specific case, those requirements are clearly satisfied because, as the developer of an open-pit mining project, the respondent company is carrying out sensitive activities that may place the environment in a position of vulnerability or precariousness for which ordinary judicial remedies would be insufficient or untimely, thereby requiring an assessment of compliance with the constitutional dimension of environmental protection.

III.Procedural matter. The supporting interventions (coadyuvancias) submitted. Patricia Romero B., Marvin Rojas R., Sergio Alfaro Salas, José Joaquín Salazar A., Leda Zamora Chaves, Alberto Salom E., Orlando Hernández Murillo, Patricia Quirós Quirós, Lesvia Villalobos Salas, Olivier Pérez González, Rafael Elías Madrigal Brenes, Francisco Molina G. Óscar López A., José Joaquín Salazar Rojas, Rafael Ángel Rojas Jiménez, Luis Diego Cárdenas Pereira, and Günther Hauser have appeared and requested recognition as supporting intervenors for the petitioners (coadyuvantes activos), asserting a direct interest in the resolution of this matter as it concerns environmental protection. José Eduardo Vargas Rivera, meanwhile, requests recognition as a supporting intervenor for the respondent (coadyuvante pasivo), as he considers the continuation of the Crucitas mining project advisable and believes it would benefit the region, the country, and his own particular circumstances. Regarding the legal nature of intervention as a supporting party, the Chamber, in judgment number 3235-92 de las nueve horas veinte minutos del treinta de octubre de mil novecientos noventa y dos—reiterated, among others, in judgment number 2007-3185 de las diez horas cuarenta y siete minutos del nueve de marzo del dos mil siete—held that:

“Intervention as a supporting party is a form of ancillary intervention that occurs when a person participates in a proceeding by joining the claims of one of the principal parties. Accordingly, a person with a direct interest in the outcome of the proceeding has standing to participate as a supporting intervenor; however, because the supporting intervenor is not a principal party, that person will not be directly affected by the judgment. In other words, the judgment’s effect cannot extend to that person directly and immediately, nor is that person affected by the res judicata (cosa juzgada) effect of the decision, although in constitutional rights protection matters that person may benefit from the effect of the ruling because of the ‘erga omnes’ nature of the case law and precedents of constitutional review (article 13 of the Ley de la Jurisdicción Constitucional).” Based on the foregoing and pursuant to article thirty-four of the Ley de la Jurisdicción Constitucional, the applications are accepted and the applicants are admitted as supporting intervenors for the petitioners and the respondent solely and specifically with respect to the particular subject matter of this constitutional rights protection proceeding, with the warning that they will not directly benefit from the judgment and that its effect therefore cannot extend to them directly and immediately.

IV.Procedural matter. The request for an expert assessment (peritaje). In numerous briefs submitted to the case file, the Chamber has been asked to order an expert assessment to support the petitioners’ assertions. In this regard, the applicants must be advised that the record contains a variety of technical studies prepared by professionals from different fields of knowledge, including Geology, Biology, Engineering, Architecture, Chemistry, Economics, and Sociology, as well as specialties related to Hydrology, Volcanology, Seismology, and Chemical Engineering, among others. It would therefore be redundant to seek additional expert opinions in an attempt to support claims that the proposing parties bear the responsibility of proving. In any event, during the adjudication of this proceeding for the protection of constitutional rights, the Chamber has, on various occasions, requested additional evidence to assist its decision-making (pruebas para mejor resolver), either to expand upon specific subjects or to resolve doubts regarding particular issues, thereby seeking to clarify the validity or lack of merit of the allegations raised and to resolve each of them as set forth in this judgment.

Likewise, a Judicial Inspection (Inspección Judicial) was conducted on doce de setiembre de dos mil nueve, and a public oral hearing (Vista oral y pública) was held on doce, trece y diecisiete de noviembre del mismo año, at which all parties involved were given an opportunity to speak, explain their claims, and present their defenses. They were also afforded the opportunity to submit—both during and after the hearing, as indeed occurred—new evidence in support of their statements. Accordingly, the Chamber concludes that the evidence entered into the record is sufficient to decide this constitutional rights protection proceeding; consequently, the applicants’ request on this point is denied.

V. Proven facts. The following facts are deemed duly established and relevant to the decision in this matter

<![if !supportLists]>1. <![endif]>In the locality of Crucitas de Cutris, cantón de San Carlos, Industrias Infinito Sociedad Anónima intends to develop the project known as Proyecto Minero Crucitas (document number 7 of volume I of the administrative case file submitted by the respondent company).

<![if !supportLists]>2. <![endif]>Administrative case file number 2594 was processed before the Dirección de Geología y Minas for the grant of a mining exploitation concession (concesión de explotación minera) to Industrias Infinito Sociedad Anónima. That file contains the mining project’s Feasibility Study (Estudio de Factibilidad) and appendix 5, entitled “Manejo de Explosivos y Voladuras, proyecto minero Crucitas, San Carlos, Alajuela,” prepared by mining engineer Tomás Goic (folios 5507 and 5517).

3. Whereas on veinticuatro de enero de dos mil, mining file (expediente minero) number 2594, forwarded by the Dirección de Geología y Minas, was received by the Secretaría Técnica Nacional Ambiental (folio 1318 of the administrative record (expediente administrativo)).

4. Whereas, by resolution number 486-2000-SETENA, dated trece de junio de dos mil, the Secretaría Técnica Nacional Ambiental informed the Dirección de Geología y Minas that determining the environmental feasibility (viabilidad ambiental) of the proposed activity required the submission of an environmental impact study (Estudio de Impacto Ambiental), prepared in accordance with the attached terms of reference (Anexo 2 to the documentation submitted by the project’s Regencia Ambiental on veintisiete de noviembre de dos mil nueve, and folio 1318 of the administrative record).

5. Whereas, on seis de abril de dos mil uno, the “Report on Economic Aspects concerning the review of annexes to the Feasibility Study (Estudio de Factibilidad) for the Proyecto Crucitas (expediente 2594 de explotación) of Industrias Infinito S.A.” was issued (Anexo 5 to the documentation submitted by the Regencia Ambiental on veintisiete de noviembre de dos mil nueve).

6. Whereas, in official letter number DGM-DC-320-2001, the Dirección de Geología y Minas described, among other matters, the procedure followed with respect to the Economic Feasibility Study submitted within expediente number 2594 (document number 7 of Volume I of the administrative record submitted by the respondent company).

7. Whereas, on doce de marzo de dos mil dos, the respondent company submitted the Environmental Impact Study for the Proyecto Minero Crucitas to the Secretaría Técnica Nacional Ambiental (folio 1 of the Environmental Impact Study).

8. Whereas, by resolution of the Ministerio del Ambiente y Energía, number R-578-2001 MINAE, issued at nueve horas on diecisiete de diciembre de dos mil uno, within expediente 2594 of the Dirección de Geología y Minas, a mining exploitation concession (concesión de explotación minera) was granted to Industrias Infinito S.A. over properties located in Crucitas, Cutris de San Carlos (document number 7 of Volume I of the administrative record submitted by the respondent company).

9. Whereas, by resolution number 272-2003-SETENA, dated once de marzo de dos mil tres, the Secretaría Técnica Nacional Ambiental informed the respondent company that environmental feasibility had not been granted to the mining project because it failed to meet its objectives (document number 9 of Volume I of the administrative record submitted by the respondent company).

10. Whereas, on catorce de marzo de dos mil tres, the respondent company filed a motion for nullity (incidente de nulidad) and a motion for reconsideration with a subsidiary appeal (recurso de revocatoria con apelación en subsidio) against resolution number 272-2003-SETENA (Anexo 2 to the documentation submitted by the project’s Regencia Ambiental on veintisiete de noviembre de dos mil nueve).

11. Whereas, by resolution number 811-2003-SETENA, issued at catorce horas veinte minutos on siete de julio de dos mil tres, the motion for nullity and the motion for reconsideration filed against resolution number 272-2003-SETENA were denied, and the appeal to the hierarchical superior (recurso de apelación ante el superior jerárquico) was admitted (Anexo 2 to the documentation submitted by the Regencia Ambiental on veintisiete de noviembre de dos mil nueve).

12. Whereas, by resolution number R-569-2003-MINAE, issued at nueve horas treinta minutos on veinte de octubre de dos mil tres, the Ministro del Ambiente y Energía granted the motion for nullity and the appeal filed against resolution number 272-2003-SETENA, ordering that the administrative record be returned to the stage at which the Environmental Impact Study was submitted (Anexo 2 to the documentation submitted by the Regencia Ambiental on veintisiete de noviembre de dos mil nueve).

13. Whereas, by resolution number 831-2004-SETENA, issued at diez horas cincuenta y cinco minutos on dos de junio de dos mil cuatro, it was agreed that the public-hearing process (proceso de audiencia pública) would be conducted for the Proyecto Minero Crucitas, and the hearing was scheduled for treinta y uno de dos mil cuatro (Anexo 2 to the documentation submitted by the Regencia Ambiental on veintisiete de noviembre de dos mil nueve).

14. Whereas, on treinta y uno de julio de dos mil cuatro, the Public Hearing convened for the Proyecto Minero Crucitas was held at the Salón Comunal de Coopevega de Cutris (document number one of the copy of Anexo 1 to administrative record DAJ-077-08, Boletín Informativo Crucitas Informa, year III, number 10, dated agosto de dos mil cuatro).

15. Whereas, by resolution number 119-2005-SETENA, issued at ocho horas on diecisiete de enero de dos mil cinco, the respondent company was ordered to submit, within a maximum period of six months, an annex to the Environmental Impact Study that complied with the elements specified in the resolution (folio 1318 of the administrative record and Anexo 2 to the documentation submitted by the Regencia Ambiental on veintisiete de noviembre de dos mil nueve).

16. Whereas, on veintiséis de abril de dos mil cinco, the respondent company submitted to the Secretaría Técnica Nacional Ambiental the annex required by resolution number 119-2005-SETENA (folio 1318 of the administrative record).

17. Whereas, by resolution number 2237-2005-SETENA, dated treinta de agosto de dos mil cinco, the documentation submitted by the respondent company was approved, and the company was ordered to post the environmental bond (garantía ambiental), appoint an environmental officer (responsable ambiental), submit a minute book to serve as a logbook (Bitácora), and submit the Sworn Declaration of Environmental Commitments (Declaración Jurada de Compromisos Ambientales) (Anexo 2 to the documentation submitted by the project’s Regencia Ambiental on veintisiete de noviembre de dos mil nueve).

18. Whereas, on treinta de setiembre de dos mil cinco, the respondent company submitted to the Secretaría Técnica Nacional Ambiental the documentation required by resolution number 2237-2005-SETENA (document 11 of Volume I of the administrative record submitted by the respondent company).

19. Whereas, by resolution number 3638-2005-SETENA, issued at nueve horas veinticinco minutos on doce de diciembre de dos mil cinco, the Secretaría Técnica Nacional Ambiental granted environmental feasibility to the Proyecto Minero Crucitas (folio 1318 of the administrative record).

20. Whereas development of the Proyecto Minero Crucitas requires the clearing (corta) of one hundred ninety-two hectares.

21. Whereas open-pit mining (minería a cielo abierto) is traditionally considered an environmentally hazardous activity if it is not carried out within the parameters established for environmental protection (as stated at the Hearing held on doce, trece y diecisiete de noviembre de dos mil nueve).

22. Whereas the logging (tala) observed in the administrative area of the Proyecto Minero Crucitas appears to have resulted from timber-extraction activities in the area predating the establishment of the respondent company, while the logging on the Botija and Fortuna hills appears to have resulted from more recent clearing activities (see Judicial Inspection Record (Acta de Inspección Judicial) at folio 4621 of the record).

23. Whereas the presence of the almendro amarillo and the possibility that it may be felled to implement the mining project are matters of concern because it is a protected species whose fruit provides food for the lapa verde and whose trunks are used by that bird during nesting season.

24. Whereas tables numbers 8, 11, 14, and 17 of the Consultancy Report on the Population Study of Commercial-Sized Tree Species (Especies Fustales) with diameters of 10-29.9 cm in the Proyecto Industrias Infinito, prepared by the Departamento Forestal del Instituto Tecnológico de Costa Rica, report that the almendro is scarce in the Botija and Fortuna extraction areas and in the tailings area (área de relaves), and that it is classified as an endangered species (folios 39, 50, 51, 61, 63, 72, and 74 of the administrative record).

25. Whereas the Forest Management Plan (Plan de Manejo Forestal) for ensuring the rational use of natural resources in the areas administered by the Proyecto Minero Crucitas states that all areas to be reforested are lands located primarily in non-forest areas (folio 276 of the administrative record).

26. Whereas the Forest Management Plan for ensuring the rational use of natural resources in the areas administered by the Proyecto Minero Crucitas states that the forest plots in the Botija and Fortuna extraction areas, the tailings areas, the roads to be built, and part of the fixed pipeline section are characterized as heavily exploited areas that fall below the general averages for the area’s primary forests (folio 1139 of the administrative record).

27. Whereas the Forest Management Plan for ensuring the rational use of natural resources in the areas administered by the Proyecto Minero Crucitas states that a forest nursery of native species using certified seeds will be established within the project, giving priority to the almendro and the titor for the lapa, and to the spondias bombín for the tepezcuintle and others (folio 270 of the administrative record).

28. Whereas the Forest Management Plan for ensuring the rational use of natural resources in the areas administered by the Proyecto Minero Crucitas states that, during the project’s closure phase (fase de cierre), the impacted areas will be rehabilitated to return them to a condition similar to that of nearby forested areas, including restoration of the entire area affected by the land-use change (cambio de uso de suelo) (folios 235 and 237 of the administrative record).

29. Whereas the Forest Management Plan for ensuring the rational use of natural resources in the areas administered by the Proyecto Minero Crucitas states that most trees in the inventoried plots have diameters of less than fifty centimeters (folio 1139 of the administrative record).

30. Whereas nine almendro trees were recorded in the Botija extraction area of the Proyecto Minero Crucitas (folio 1460 of the administrative record).

31. Whereas sixteen almendro trees were recorded in the Fortuna extraction area of the Proyecto Minero Crucitas (folio 1454 of the administrative record).

32. Whereas forty-four almendro trees were recorded in tailings area A of the Proyecto Minero Crucitas (folio 1447 of the administrative record).

33. Whereas sixty-seven almendro trees were recorded in tailings area B of the Proyecto Minero Crucitas (folio 1440 of the administrative record).

34. Whereas thirty-two almendro trees were recorded in the road areas of the Proyecto Minero Crucitas (folio 1433 of the administrative record).

35. Whereas one hundred sixty-eight almendro trees were recorded in the forest-cover areas (áreas de cobertura boscosa) of the Proyecto Minero Crucitas (folio 1427 of the administrative record).

<![if !supportLists]>36. <![endif]>That twenty-nine almendro trees were inventoried in the pasture area of the Crucitas mining project (folio 1418 of the administrative record).

<![if !supportLists]>37. <![endif]>That one hundred ninety-seven almendro trees were inventoried throughout the area of the Crucitas mining project for which authorization for land-use change (cambio de uso de suelo) was requested (folio 1405 of the administrative record).

<![if !supportLists]>38. <![endif]>That, by resolution number R-053-2005-AGUAS-MINAE, issued at nueve horas veinticinco minutos del doce de enero de dos mil cinco, the Departamento de Aguas del Ministerio del Ambiente y Energía granted Industrias Infinito S.A. a concession for the use of water from an unnamed spring (nacimiento), for domestic use, for a term of ten years (document 21 of volume I of the administrative record submitted by the company).

<![if !supportLists]>39. <![endif]>That, by official letter number DST-773-2006, dated cuatro de octubre de dos mil seis, the Instituto Nacional de Innovación y Transferencia en Tecnología Agropecuaria –INTA- informed the Dirección General de Geología y Minas that, according to the Environmental Impact Study (Estudio de Impacto Ambiental) and the sworn statements submitted by Industrias Infinito Sociedad Anónima to INTA and SETENA, the productive capacity of the soils would not be lost, provided that the technical management activities detailed in the statements were carried out (folio 1338 of the administrative record).

<![if !supportLists]>40. <![endif]>That, by resolution number 2351-2006-SETENA, issued at diez horas cinco minutos del catorce de diciembre de dos mil seis, the Secretaría Técnica Nacional Ambiental denied motions for reconsideration (recursos de revocatoria) filed against resolution number 3638-2005-SETENA and allowed the appeal before the Ministerio del Ambiente y Energía (document 117 of volume II of the administrative record submitted by the respondent company).

<![if !supportLists]>41. <![endif]>That the Inventory of Watercourses (Inventario de Corrientes) in the mining area of the Crucitas mining project, dated noviembre de dos mil siete, concluded that there was no stream or watercourse of significant size in the mining area that could be affected by mining operations (document 119 of volume II of the administrative record submitted by the respondent company).

<![if !supportLists]>42. <![endif]>That the Inventory of Watercourses in the mining area of the Crucitas mining project, dated noviembre de dos mil siete, concluded that four gullies (yurros) and the Mina stream would be affected in the reservoir area, as they would be inundated by the tailings reservoir (embalse de relaves) (document 119 of volume II of the administrative record submitted by the respondent company).

<![if !supportLists]>43. <![endif]>That the Mina stream flows toward the Infiernillo River, which continues toward the San Juan River (folio 4521).

<![if !supportLists]>44. <![endif]>That the Inventory of Watercourses in the mining area of the Crucitas mining project, dated noviembre de dos mil siete, concluded that no type of watercourse would be affected in the processing-plant area (document 119 of volume II of the administrative record submitted by the respondent company).

<![if !supportLists]>45. <![endif]>That the water from the mining project’s cyanide treatment plant that would be deposited in the tailings pond (laguna de relaves) was expected to be free of cyanide and other contaminants (folio 3661).

<![if !supportLists]>46. <![endif]>That the dam intended to be built in the area where the tailings pond would be located has seismic resistance (sismoresistencia) to seismic events measuring 8.2 on the Richter scale (see Judicial Inspection Record (Acta de Inspección Judicial) appearing at folio 4621).

<![if !supportLists]>47. <![endif]>That the Inventory of Watercourses in the mining area of the Crucitas mining project, dated noviembre de dos mil siete, concluded that the effect of mining operations would be reflected in increased runoff (escorrentía), which would have a negligible effect on the flow of the receiving rivers (document 119 of volume II of the administrative record submitted by the respondent company).

<![if !supportLists]>48. <![endif]>That, on seis de diciembre de dos mil siete, Industrias Infinito Sociedad Anónima submitted to the Secretaría Técnica Nacional Ambiental the proposed modification to the Crucitas mining project, attaching the Sworn Declaration of Environmental Commitments (Declaración Jurada de Compromisos Ambientales) and the updated Environmental Management Plan (Plan de Gestión Ambiental) for each stage of the project (folio 1292 of the administrative record).

<![if !supportLists]>49. <![endif]>That, by resolution of the Secretaría Técnica Nacional Ambiental number 170-2008-SETENA, issued at doce horas cincuenta minutos del cuatro de febrero de dos mil ocho, the Environmental Management Plan submitted by Industrias Infinito S.A. for the modification of the Crucitas mining project was approved (folio 1293 of the administrative record).

<![if !supportLists]>50. <![endif]>That, by resolution of the Ministerio del Ambiente y Energía number R-217-2008-MINAE, issued at quince horas del veintiuno de abril de dos mil ocho, in expediente 2594 of the Dirección de Geología y Minas, a mining concession (concesión minera) was granted to Industrias Infinito S.A. for a term of ten years (folio 1339 of the administrative record).

<![if !supportLists]>51. <![endif]>That, by official letter number IMN-DA-1358-2008, dated diecinueve de mayo de dos mil ocho, the Departamento de Aguas del Instituto Meteorológico Nacional certified that the mining area on cerro Fortuna contains ten unnamed streams with intermittent flow that are in the public domain; that the mining area on cerro Botija contains two unnamed streams with intermittent flow that are in the public domain; and that the tailings-reservoir area contains five streams with permanent flow that are in the public domain, including the Minas and Campamento streams (document 83 of volume II of the administrative record submitted by the respondent company).

<![if !supportLists]>52. <![endif]>That, by a written submission received by the Ministerio del Ambiente y Energía on veintiuno de mayo de dos mil ocho, Industrias Infinito S.A. requested authorization for forest land-use change (cambio de uso forestal) (folio 1348 of the administrative record).

<![if !supportLists]>53. <![endif]>That, by official letter number 456-2008 SCH, dated tres de junio de dos mil ocho, the Área de Conservación Arenal Huetar Norte of the Sistema Nacional de Áreas de Conservación del Ministerio del Ambiente y Energía informed Industrias Infinito S.A. that obtaining the decree of national benefit (decreto de conveniencia nacional) was of utmost importance for processing the land-use change requested by the company (document 108 of volume II of the administrative record submitted by the respondent company).

<![if !supportLists]>54. <![endif]>That, by official letter number 137-AJ-ACAHN-08, dated diecinueve de junio de dos mil ocho, the legal advisory office of the Dirección Regional del Área de Conservación Arenal Huetar Norte of the Sistema Nacional de Áreas de Conservación del Ministerio del Ambiente y Energía informed the Head of the Sub región San Carlos-Los Chiles that, in view of the land-use change application submitted by Industrias Infinito S.A., a declaration of national benefit (declaratoria de conveniencia nacional) was required in each case, setting forth the grounds on which the removal of natural forest would benefit the community (document 109 of volume II of the administrative record submitted by the respondent company).

<![if !supportLists]>55. <![endif]>That, by official letter number 540-2008-SC, dated tres de julio de dos mil ocho, the Sub región San Carlos-Los Chiles of the Área de Conservación Arenal Huetar Norte of the Sistema Nacional de Áreas de Conservación del Ministerio del Ambiente y Energía requested that the forestry manager (regente forestal) of Industrias Infinito clarify a series of questions concerning the land-use change application (folio 1364 of the administrative record).

<![if !supportLists]>56. <![endif]>That, by note dated ocho de julio de dos mil ocho, the Forestry Manager of Industrias Infinito S.A. submitted documentation to comply with the request made in official letter number 540-2008-SC of the Sub región San Carlos-Los Chiles of the Área de Conservación Arenal Huetar Norte of the Sistema Nacional de Áreas de Conservación del Ministerio del Ambiente y Energía (folio 1605 of the administrative record).

<![if !supportLists]>57. <![endif]>That, by official letter number ASUB-279-2008, dated catorce de julio de dos mil ocho, the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento informed the Sección de Hidrocarburos del MINAET that, upon review of the hydrogeological study (estudio hidrogeológico) submitted by geologist Sandra Arredondo, which classified the Mina Crucitas project site as having medium specific hydrogeological vulnerability, the installation of a fueling station for internal consumption could be permitted (document 23 of volume I of the administrative record submitted by the respondent company).

<![if !supportLists]>58. <![endif]>That, by official letter number 559-2008 SC, dated dieciséis de julio de dos mil ocho, the Área de Conservación Arenal Huetar Norte of the Sistema Nacional de Áreas de Conservación del Ministerio del Ambiente, Energía y Minas informed Industrias Infinito S.A. that, before issuing the final decision on the requested Forest Management Plan (Plan de Manejo Forestal), the decree declaring the Crucitas mining project to be of national benefit and public interest (conveniencia nacional e interés público) had to be added to the administrative record (folio 1608 of the administrative record).

<![if !supportLists]>59. <![endif]>That, by official letter number SINAC-AL-428-2008, dated veinte de agosto de dos mil ocho, the Asesoría Legal del Sistema Nacional de Áreas de Conservación del Ministerio del Ambiente, Energía y Telecomunicaciones informed the Head of the Sub región San Carlos-Los Chiles that requesting a decree containing a declaration of national benefit would be redundant and would delay the public interest (document 113 of volume II of the administrative record submitted by the respondent company).

<![if !supportLists]>60. <![endif]>That, by official letter number ACAHN-DR-0165, dated primero de setiembre de dos mil ocho, the Dirección Regional del Área de Conservación Arenal Huetar Norte of the Sistema Nacional de Conservación del Ministerio del Ambiente, Energía y Telecomunicaciones requested that the Executive Director of SINAC consult the Procuraduría General de la República as to whether a Declaration of National Benefit (Declaratoria de Conveniencia Nacional) was required to carry out activities involving works or projects requiring land-use change in the project of Industrias Infinito Sociedad Anónima (folio 1657 of the administrative record).

<![if !supportLists]>61. <![endif]>That, by official letter number ACAHN-DR-0166, dated primero de setiembre de dos mil ocho, the Dirección Regional del Área de Conservación Arenal Huetar Norte of the Sistema Nacional de Conservación del Ministerio del Ambiente, Energía y Telecomunicaciones informed the Vice Minister of Ambiente, Energía y Telecomunicaciones that the Executive Directorate of SINAC had been asked to consult the Procuraduría General de la República as to whether a Declaration of National Benefit was required to carry out activities involving works or projects requiring land-use change (folio 1673 of the administrative record).

62. That, by official letter number 695-2008 SC, dated veinticuatro de setiembre de dos mil ocho, from the Subregión San Carlos-Los Chiles of the Área de Conservación Arenal Huetar Norte of the Sistema Nacional de Áreas de Conservación del Ministerio del Ambiente, Energía y Telecomunicaciones, Industrias Infinito was informed that the decree declaring national benefit and public interest was required before a final decision could be issued on the application for a land-use change permit (permiso de cambio de uso de suelo) (folio 1660 of the administrative record).

63. That, through a forestry report dated octubre de dos mil ocho, it was established that, as of that date, six thousand ninety-three almendro trees had been replanted in the Crucitas mining project area (document 98 of volume II of the administrative record submitted by the respondent company).

64. That, through a forestry report dated octubre de dos mil ocho, it was established that the areas of forest cover (cobertura boscosa) within the Crucitas mining project subject to land-use change are defined as successional woody vegetation growing on land originally cleared by human activities (document 98 of volume II of the administrative record submitted by the respondent company).

65. That, through a forestry report dated octubre de dos mil ocho, it was established that, according to the diameter classification for each of the plots surveyed in the Crucitas mining project, most trees fall within diameter classes below fifty centimeters DBH (diámetro a la altura del pecho, DAP) (document 98 of volume II of the administrative record submitted by the respondent company).

66. That, through a forestry report dated octubre de dos mil ocho, it was stated that the forests to be disturbed in Botija and Fortuna as part of the Crucitas mining project cannot be considered primary forest, but rather natural forests disturbed more than thirty years ago, whose trees generally do not reach twenty-five meters in height, including crown height, and which therefore tend to be secondary forests (document 98 of volume II of the administrative record submitted by the respondent company).

67. That, by official letter number SINAC-SE-1692-2008, dated seis de octubre de dos mil ocho, the Sistema Nacional de Áreas de Conservación del Ministerio de Ambiente, Energía y Telecomunicaciones informed the Viceministro de Ambiente, Energía y Telecomunicaciones that the Procuraduría General de la República would reject out of hand a request for an opinion as to whether changing land use in forest areas for mining purposes constituted a matter of national benefit (folio 1714 of the administrative record).

68. That, by official letter SG-ASA-259-2008, dated diez de octubre de dos mil ocho, the Secretaría Técnica Nacional Ambiental informed the Departamento de Auditoría y Seguimiento Ambiental that the assessment conducted to determine the balance between the environmental cost and the socio-environmental benefits of the Crucitas project was carried out before SETENA over a three-year period, and it was determined that the latter outweighed the environmental cost (folio 1682 of the administrative record).

69. That, by decision number R-0289-2008-AGUAS-MINAET, issued at eight twenty-one a.m. on dieciséis de octubre de dos mil ocho, the Departamento de Aguas del Ministerio del Ambiente, Energía y Telecomunicaciones granted Industrias Infinito S.A. a concession to use water from the Mina and Descubrimiento streams for a term of ten years (document 22 of volume I of the administrative record submitted by the respondent company).

70. That Decreto Ejecutivo número 34801-MINAET, Declaratoria de Interés Público y Conveniencia Nacional del Proyecto Minero Crucitas, was published in La Gaceta number 201 on diecisiete de octubre de dos mil ocho (folio 1683 of the administrative record).

71. That, by decision number 244-2008-SCH, issued at nine oh-five a.m. on diecisiete de octubre de dos mil ocho, the Área de Conservación Arenal Huetar Norte, Sub-región San Carlos-Los Chiles, of the Sistema Nacional de Áreas de Conservación del Ministerio del Ambiente, Energía y Telecomunicaciones approved and authorized the land-use change application submitted by Industrias Infinito Sociedad Anónima (folio 1706 of the administrative record).

72. That decision number 244-2008-SCH of the Área de Conservación Arenal Huetar Norte, Sub-región San Carlos-Los Chiles, of the Sistema Nacional de Áreas de Conservación del Ministerio del Ambiente, Energía y Telecomunicaciones, issued at nine oh-five a.m. on diecisiete de octubre de dos mil ocho, authorized the cutting of one hundred ninety-seven almendro trees (folios 1690 and 1694 of the administrative record).

73. That, by decision number 247-2008-SCH of the Área de Conservación Arenal Huetar Norte, Sub-región San Carlos-Los Chiles, of the Sistema Nacional de Áreas de Conservación del Ministerio del Ambiente, Energía y Telecomunicaciones, issued at ten a.m. on veintiuno de octubre de dos mil ocho, the effects of decision number 244-2008-SCH, issued by the same office at nine oh-five a.m. on diecisiete de octubre de dos mil ocho, were suspended (folio1708 of the administrative record).

74. That the report “Cyanide and Its Application at Crucitas,” dated enero de dos mil nueve and prepared by Natalia Pleshcheeva and Miguel Arriaza, concluded that the required levels of cyanide destruction are achieved when effluents are treated using the Combinox process (folios 1544 and 1557).

75. That the report “Acid Rock Drainage Potential at the Crucitas Project and Existing Mitigation Plans,” dated febrero de dos mil nueve and prepared by Alejandro Arauz, concluded that the technique of submerging material suspected of having acid rock drainage potential (potencial de drenaje ácido de rocas) beneath a layer of still water has proven to be the most effective means of preventing the generation of acidic water because eliminating contact with oxygen prevents the chemical reaction that generates acidic water (folios 1509 and 1516).

76. That the report “Review and Assessment of Technical Information on the Application, Control, and Destruction of Cyanide in the Crucitas Mining Project Process,” dated febrero de dos mil nueve and prepared by Sherman Thomas Jackson, concluded that the project would have effective controls for the transportation, use, and destruction of cyanide, in compliance with current national and international regulations, and that the cyanide-destruction process would allow effluent discharges to be safely managed and controlled (folios 1537 and 1541).

77. That the report “Management of Rock and Process Tailings with Acid Drainage Potential at the Crucitas Mining Project,” dated enero de dos mil nueve and prepared by Gregory Pleshcheev, concluded that the underwater placement of tailings (colas) and waste rock is the most efficient method for managing and mitigating the potential occurrence of acid rock drainage, and that the pH of the water in the lagoon would remain within the range characteristic of local surface waters (folios 1519 and 1531).

78. That the “Audit of the Forestry Component of the Crucitas Mining Project,” dated enero-febrero de dos mil nueve and prepared by Igor Zúñiga Garita, concluded that the project’s mitigation and compensation plan proposed planting 611,392 trees across 382 hectares of pastureland, as compared with cutting 11,427 trees across 262 hectares, thereby planting approximately sixty-one trees for every tree cut and producing an increase of 277.41 hectares in forest cover relative to the existing forest; that no primary forests were detected, but rather the forest was classified as heavily disturbed or secondary; that the great green macaw would not be affected by the cutting of 197 yellow almendro trees; that another thirty-five tree species provide food for the great green macaw; and that the project ensures the continued existence of the yellow almendro because 103 trees are currently being planted for every tree cut (folios 1673, 1703 and 1704).

79. That, through report DIGH-0034-2009 dated once de febrero de dos mil nueve, the Dirección de Investigación y Gestión Hídrica del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento analyzed the Hydrogeological Study submitted by the Crucitas mining project and concluded that the excavation would neither affect public water-supply sources nor reach the tailings-lagoon area; that the lower aquifer does not meet drinking-water standards; that surface waters could become contaminated if the tailings lagoon does not receive enough water to maintain the depth of its water layer; that the dam’s operational condition must be ensured; and that, as a mitigation measure, a treatment system must be implemented to improve the quality of the lagoon water discharged into the river system (anexo 8 de memorial de veintiséis de febrero de 2009).

80. That the report of the Escuela de Ingeniería Forestal del Instituto Tecnológico de Costa Rica, dated trece de febrero de dos mil nueve and entitled “Scientific Considerations Regarding the Forest Management and Rehabilitation Proposal as Part of the Mitigation Measures Arising from Mining Operations at the Las Crucitas Concession,” concluded that the forests owned by Industrias Infinito in the Las Crucitas area are secondary forest; that the removal of 192 hectares of secondary forest does not entail a significant loss of biodiversity or ecosystem representativeness; that the forestry management and mitigation plan would increase forest cover by twenty percent; that the removal of one hundred ninety-six almendro trees from a population of more than seven hundred trees does not significantly diminish the great green macaw’s food supply or cause loss of its habitat; that the remaining standing almendro trees ensure genetic variability and rule out any degree of threat; and that the bird is not dependent on the almendro as a food source (anexo 3 de memorial de veintiséis de febrero de 2009).

81. That, through report DIGH-039-2009 dated trece de febrero de dos mil nueve, the Dirección de Investigación y Gestión Hídrica del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento established that there is no hydraulic connection between the project’s activities and drinking-water sources; that the lower aquifer does not discharge toward the río San Juan but rather toward Costa Rica; and that neither aquifer contains potable water (anexo 8 de memorial de veintiséis de febrero de 2009).

82. That, by official letter GE-097-2009 dated trece de febrero de dos mil nueve, the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento informed the Ministerio del Ambiente, Energía y Telecomunicaciones that, based on an assessment conducted by that agency’s Dirección de Investigación y Gestión Hídrica, the hydrogeological study prepared by ECOAMBIENTES S.A. for the Crucitas mining project was validated (anexo 8 de memorial de veintiséis de febrero de 2009).

83. That, through report CCT-PI-023-09, dated veinte de febrero de dos mil nueve, the Centro Científico Tropical concludes that the great green macaw does not depend exclusively on the Las Crucitas area for food; that the bird nests in mature almendro trees with an average diameter at breast height (diámetro a la altura del pecho, DAP) of 129 cm; that it does not nest in Las Crucitas; that the Las Crucitas area is not an exclusive transit area; that the project will not interrupt the bird’s reproductive process or feeding cycle; and that the bird will not be deprived of food by the land-use change (cambio de uso del suelo) affecting the project’s 192 ha. (anexo 1 to the brief dated veintiséis de febrero de 2009).

84. That the “Report on the Biological Conservation Aspects of the Great Green Macaw and the Almendro Amarillo,” prepared by biologist Jorge Hernández Benavides, concludes that the almendro is not the great green macaw’s sole food source; that the bird feeds on at least thirty-seven different tree species; that nests have been observed in other species; that the Crucitas project site is outside the bird’s nesting area; that the macaw nests in trees with a DAP greater than 120 cm.; that the trees felled for the project have an average DAP of 64 cm, and only four trees had a DAP greater than 120 cm; that La Crucitas is merely a transit area for the great green macaw; and that the optimal habitat of the great green macaw is the Refugio Maquenque. (anexo 2 to the brief dated veintiséis de febrero de 2009).

85. That the “Summary of Hydrogeological Conditions and Expected Effects of the Crucitas Mining Project” concludes that the upper aquifer (acuífero superior) discharges into rivers and streams; that it complies with drinking-water standards except with respect to pH; that the design of the mining project poses no limitations on its development; that it will not be contaminated by the mineral-extraction process, provided that the prevention and mitigation measures are implemented; that the project will not affect other water sources in the area; that the lower aquifer (acuífero inferior) has no outcrops; that its recharge areas are outside the project area; that it does not flow toward the río San Juan; that its water quality is poor and falls outside national water-quality standards for human consumption; that it will not be affected by the project’s activities; and that, in the extraction area, this aquifer will begin to surface at 73 metros, and the water will therefore be pumped to the tailings pond (laguna de relaves) during the operational phase (anexo 7 to the brief dated veintiséis de febrero de 2009).

86. That the “Report on the Management and Control of Cyanide-Containing Substances and the Generation of Acid Drainage at the Crucitas Mining Project,” prepared by geologists Jorge Laguna Morales and Franz Ulloa Chaverri, concludes that all processes comply with all applicable international management and control standards; that the infrastructure was designed with safety controls that exceed international standards by as much as fifteen percent; and that the most effective process for destroying cyanide-containing substances will be used (folio 9 of the brief dated veintiséis de febrero de 2009).

87. That the economic valuation of the environmental effects and social benefits of the Crucitas open-pit mining project, dated febrero de dos mil nueve and prepared by Juan Muñoz Giró, concludes that the project’s opportunity cost is US$3.74 millones, while the benefits generated through employment and income would amount to US$158.11 millones (anexo 10 to the brief dated veintiséis de febrero de 2009).

88. That the Crucitas mining project has carried out a series of activities that include social investment, donations for the reconstruction and improvement of infrastructure and basic community services, support for the population’s physical and mental health, and training in trades and tools, as well as forms of community organization that will enable these populations to achieve greater social and economic vitality (folio 1751).

89. That the environmental commitments agreed upon with the respondent company included: a) establishing an INA training center to offer courses in sewing and dressmaking, aquaculture, organic agriculture, cheese production, fabric painting, and food handling, thereby generating new small businesses and benefits; b) direct employment during the construction phase: 300, indirect employment: 1.265, and employment during the operational phase: 250; c) improving the quality of life in 7 communities through support for the communities’ producers’ cooperative, quality-of-life improvement programs, and improvements to the aqueduct; d) before construction of the project, the company initiated a series of programs—including training for microentrepreneurs, job training, creation of an Oficina de Atención al Ciudadano, construction of 4 bridges, and road maintenance, among others—; e) employment for 11 años; f) an investment of US $65.000.000, to be used to purchase materials, professional services, machinery, and contractor services; g) an annual payroll valued at US$4.132.859; h) collection over 8 años of a local tax amounting to US$11.529.263 and payments to the central government totaling US$70.322.309; and i) a trust fund to develop social projects and undertake actions through the monitoring commission, which would receive US$364.063 per year (folio 95).

90. That sociologist Sonia Cervantes’s report concludes that the area is classified as poor or extremely poor because of the difficult conditions in which families lived in the communities of Crucitas, Chamorro, Moravia, El Roble, and Coopevega in the district of Cutris, and Jocote and Llano Verde in the district of Pocosol, all within the canton of San Carlos, which at the end of 2007 lacked roads, basic services, communications, employment, and food (folio 1785).

91. That there is currently a Comision Mixta de Monitoreo y Control Ambiental composed of fourteen members representing each of the seven communities, the Dirección de Geología y Minas, the Municipalidad, the respondent company, the Ministerio de Salud, the Área de Conservación Arenal Huetar Norte, the Secretaría Técnica Nacional Ambiental, and the Asociación Ambientalista involved, as well as a Comisión de Monitoreo Ambiental. (undisputed fact) 92. That, with respect to possible contamination resulting from an emergency, the environmental impact study (estudio de impacto ambiental) contains a chapter entitled Contingency Plan (Plan de Contingencia), which addresses every type of event that could occur: in the event of earthquakes, the tailings pond will have an overflow structure or spillway that was designed and approved in the environmental impact study and its Annex, in order to provide permanent stability to the dike and independently manage excess water during periods of maximum rainfall.

In addition to maintaining permanent monitoring of the overflow water’s quality, a lime-dosing plant will be installed, as at the outlets from the pits, so that the pH can be neutralized if necessary. The location of this plant is an additional measure and an extra safety factor, through which the discharged water would attain acceptable quality in compliance with international standards (folio 917).

93. That the general conclusion of the study conducted in 2006 by the Escuela de Ciencias Forestales of FUNDATEC, an entity belonging to the Instituto Tecnológico de Costa Rica, was that the project area contains floristic diversity among pole-sized trees (fustales) that can be properly developed in the areas to be reforested as part of the measures to mitigate and offset the project’s vegetation-cover impacts, especially because those measures will not be undertaken merely as a reforestation activity; rather, the aim is to develop suitable habitats to form a biological corridor that allows small and medium-sized wildlife species to pass through, thereby enabling the movement of seeds and wildlife between the eastern and western sectors of the project area, which offer better habitat conditions than the highly fragmented disturbed forests also found within the project area. (folios 929 y 930) 94. That the report by scientists Jorge Laguna Morales, Doctor of Geology, and Franz Ulloa Chaverri, M.Sc, concludes that there is no risk of a cyanide accident caused by spills or improper handling and that, given the treatment planned for the project in question, the risks of cyanide poisoning to humans and other living beings are technically nonexistent (folio 1784).

95. That in mayo de dos mil nueve, the Consejo Universitario de la Universidad de Costa Rica approved the document entitled “Special Report on Open-Pit Chemical Mining: The Las Crucitas Case” (document submitted by the petitioners at the hearing held on doce de noviembre de dos mil nueve).

96. That on once de setiembre de dos mil nueve, a judicial inspection (inspección judicial) of the Crucitas mining project was conducted, during which the following locations were visited: the area designated for the tailings pond, the sector where the upper aquifer surfaces, cerros Botija y Fortuna, the nursery, the lower-aquifer outcrop, the proposed site of the cyanide warehouse and treatment plant, the lookout point, Centro Educativo Las Crucitas, the property of Alfredo Arias Elizondo, the respondent company’s administrative facilities, an alleged bridge over the project access road, and the fork in the road leading to the tailings area (folio 4621).

97. That through official letter number OVSICORI-D-544-2009, dated veintiséis de noviembre de dos mil nueve, the Observatorio Vulcanológico y Sismológico de Costa Rica of the Universidad Nacional provided information concerning local faults and seismic activity in the Crucitas de Cutris, San Carlos area (folio 5501).

98. That from the tailings-pond area of the Crucitas mining project, Quebrada Minas runs for one kilometer before emptying into río Infiernito, which in turn runs twenty kilometers from that point before emptying into río San Juan (folio 4580).

VI.The right to a healthy and ecologically balanced environment (derecho a un ambiente sano y ecológicamente equilibrado). Article fifty of the Constitución Política establishes as fundamental the right of every person to a healthy and ecologically balanced environment. Before Article fifty was amended to expressly address environmental matters, the Sala, through its case law, had already derived this right from the constitutional provisions of Articles twenty-one—the right to life and health—sixty-nine—the rational use of land—and eighty-nine—the protection of natural beauty. The Sala has adopted an expansive, or macro-level, view of the concept of the environment and the protection afforded to it, going beyond the basic or primary protection of soil, air, water, marine and coastal resources, minerals, forests, the diversity of flora and fauna, and the landscape, to also consider matters relating to the economy, the generation of foreign currency through tourism, agricultural production, and others. Thus, in judgment number 5893-095, at nueva hours forty-eight minutes on the twenty-seventh of October of nineteen ninety-three, the Sala held that:

“Environmental Law (Derecho Ambiental) should not be associated solely with nature, since nature is only part of the environment. The policy for the protection of nature also extends to other matters, such as the protection of hunting, forests, natural parks, and natural resources. It is therefore a macro-environmental concept, intended to avoid leaving out important concepts and thereby to unify the body of law that we call Environmental Law.”

VII.The State’s duty to safeguard the environment (tutela del ambiente). Following the amendment of Article fifty of the Constitution, which expressly enshrined environmental rights (derecho ambiental) as a fundamental right, the State’s obligation to guarantee, defend, and safeguard that right was also established in unequivocal terms, thereby making the State the guarantor of the protection and safeguarding of the environment and natural resources. It was pursuant to this provision, in conjunction with Articles twenty, sixty-nine, and eighty-nine of the Constitución Política, that the State’s responsibility to exercise a protective and governing function (función tutelar y rectora) in this area was derived, as provided by the constitutional provision under discussion, a function further developed by environmental legislation. Thus, the constitutional mandate establishes the State’s duty to guarantee, defend, and preserve that right.

In this regard, it must be considered that the legislation designates the Ministerio del Ambiente y Energía as the governing body for the natural resources, energy, and mining sector, as provided in Article two of the Ley Orgánica of that ministry, number seven thousand one hundred fifty-two, of four of June of nineteen ninety. In the opinion of the Sala, this governing function (función de rectoría) in environmental matters encompasses not only the establishment of appropriate regulations for the use of forest resources and natural resources, as also provided in Article fifty-six of the Ley Orgánica del Ambiente, but also confers upon it the important function of exercising leadership in environmental matters, which entails maintaining a predominant role in this field. In this respect, the control and oversight (control y fiscalización) of environmental matters and activities constitute an essential function of the State under Article 50 of the Constitution, insofar as the relevant portion of its third paragraph provides: “The State shall guarantee, defend, and preserve that right”; this is consistent with the constitutional principle established in the second paragraph of Article nine of the Constitución Política, which expressly prohibits the Branches of Government from delegating the exercise of their own functions, particularly when those functions are essential.

Accordingly, with respect to environmental protection, the governing, control, and oversight functions in environmental matters belong to the State and are entrusted to its various administrative agencies.

VIII.Prevention of environmental risk (prevención del riesgo ambiental). Because this obligation of the State is established at the constitutional level, it is important to consider how specific obligations that must be respected are also established in international human-rights protection instruments. In environmental matters, the duty of prevention (deber de prevención) applicable in this field has been defined; the Declaración de Río, adopted at the Conferencia de las Naciones Unidas sobre el Medio Ambiente y el Desarrollo, provides that:

“Principle 15.- In order to protect the environment, States shall widely apply the precautionary approach (criterio de precaución) according to their capabilities. Where there is a threat of serious and irreversible harm, the lack of absolute scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” Prevention seeks to anticipate negative effects and to ensure the protection, conservation, and proper management of resources. Consequently, the governing principle of prevention (principio rector de prevención) is based on the need to take and implement all precautionary measures (medidas precautorias) necessary to prevent or contain possible harm to the environment or human health. Accordingly, whenever there is a risk of serious or irreversible harm—or any doubt in that regard—a precautionary measure (medida de precaución) must be adopted, and the activity in question may even be postponed.

This is because, in environmental matters, after-the-fact enforcement (coacción a posteriori) is ineffective, since once the harm has occurred, its biologically and socially harmful consequences may be irreparable; punishment may have moral significance, but it will scarcely compensate for the harm caused to the environment. As indicated both by the cited international instrument and by Article fifty of the Constitution itself, the State is responsible for carrying out this preventive work, as this Sala recognized in judgment number 2001-6503, of six of July of two thousand one, stating that:

“The third paragraph of Article 50 of the Constitution states with complete clarity that the State must guarantee, defend, and preserve every person’s right to a healthy and ecologically balanced environment; this means that public entities are not only required to enforce environmental legislation against private parties and other public entities, but, above all, must ensure that their own actions conform to the dictates of those protective bodies of law. State institutions are the first entities required to comply with protective environmental legislation, and there is no justification whatsoever for exempting them from compliance with environmental requirements such as, by way of example, the environmental impact study (estudio de impacto ambiental) required by the Ley Orgánica del Ambiente for activities undertaken by public entities that, by their nature, may alter or destroy the environment.” (emphasis added)

IX.Coordination among public institutions for comprehensive environmental protection (protección integral al ambiente). The State—as a whole—is obligated to take the measures necessary to protect the environment in order to prevent levels of pollution, deforestation, extinction of flora and fauna, and excessive or improper use of natural resources that endanger the health of the governed population (administrados). For purposes of this undertaking, a public institution (institución pública) means both the Central Administration—ministries such as the Ministerio del Ambiente y Energía and the Ministerio de Salud, which, by reason of their subject matter, have broad participation and responsibility regarding the conservation and preservation of the environment and which act, in most cases, through their specialized agencies in the field, such as the Dirección General de Vida Silvestre, the Dirección Forestal, and the Secretaría Técnica Nacional Ambiental (SETENA)—and decentralized institutions (instituciones descentralizadas), such as the Instituto Nacional de Vivienda y Urbanismo, SENARA, Instituto Costarricense de Turismo, and Instituto Costarricense de Acueductos y Alcantarillados.

Municipalities likewise bear substantial responsibility for this undertaking within their territorial jurisdictions. Given the diversity of actors that may be involved, it might be thought that this shared responsibility would create chaos in administrative management. Therefore, to prevent the simultaneous coexistence of spheres of authority having different origins and natures, the duplication of national and local efforts, and confusion regarding the rights and obligations of the various parties involved, it is necessary to establish a series of coordination arrangements among the various agencies of the Executive Branch and decentralized institutions, and between those entities and the municipalities, so that they may perform the functions entrusted to them. This Sala has previously addressed the principle of coordination (principio de coordinación) between public agencies and municipalities in pursuing common purposes, stating in judgment number 5445-99, at fourteen hours thirty minutes on the fourteenth of July of nineteen ninety-nine, that:

“Coordination is the ordering of the relationships among these various independent activities, taking account of their convergence upon the same object or entity so as to make that convergence useful to an overall public plan, without eliminating the mutual independence of the participating entities. Because there is no hierarchical relationship among decentralized institutions, or between the State itself and the municipalities, particular courses of conduct cannot be imposed upon the latter. This gives rise to the indispensable interinstitutional ‘concerted action’ (concierto), in the strict sense, whereby autonomous and independent centers of action agree upon that preventive and comprehensive framework, within which each performs its role with a view to a mission entrusted to the others. Thus, relations between municipalities and other public entities may be conducted only on an equal footing, resulting in mutually agreed forms of coordination and excluding any mandatory arrangement detrimental to municipal autonomy that would subject corporate entities to a coordination framework without or against their consent; nevertheless, this permits the necessary subordination of those entities to the State and in the State’s interest (through the State’s ‘administrative oversight’ (tutela administrativa), specifically through the function of legality review incumbent upon it, with powers of general supervision over the entire sector).” On the other hand, failures to fulfill the duty to protect the environment and comply with environmental regulations are constitutionally significant, since the Administration’s inaction in this area may result in damage to the environment and natural resources, sometimes with consequences similar to or greater than those arising from actions of the Administration; examples include the authorization of regulatory plans or construction projects without approval of the environmental impact study (estudio de impacto ambiental) by the Secretaría Técnica Nacional Ambiental; the failure of the Dirección General de Vida Silvestre del Ministerio del Ambiente y Energía to monitor and oversee the implementation of management plans (planes de manejo) for protected areas; allowing businesses to operate without health permits concerning wastewater treatment—Acueductos y Alcantarillados and Ministerio de Salud—or failing to verify noise controls in bars, restaurants, or party venues—municipalities and Ministerio de Salud.

X.The protection afforded to the yellow almond tree and the great green macaw. The Chamber has had the opportunity to assess the issues raised concerning the close relationship between the great green macaw—Ara ambigua—and the yellow almond tree—Dipteryx panamensis—based on their status as protected and threatened species. This assessment has led this jurisdiction to rule on the specific protection that must be afforded to each of these species in particular situations and to recognize the relationship between them. Thus, in judgment number 2002-2486, issued at ten fifty-four a.m. on the eighth of March of two thousand two, the Chamber held:

“Concerning the Great Green Macaw. This Chamber has deemed it proven that the great green macaw (Ara ambigua) is considered an endangered species (especie en vías de extinción), based not only on the documentation submitted but also on the express acknowledgment made in the challenged decrees. Furthermore, in the report it submitted, the Administration acknowledged the perilous situation of the great green macaw and its relationship with the almond tree. According to the studies submitted, the population of great green macaws has been steadily declining; the reasons for this decline are, on the one hand, illegal hunting because it is an exotic species and, on the other, the progressive elimination of its sources of food and shelter, primarily the almond tree (Dipteryx panamensis). The record shows that there is a close relationship between the great green macaw and the almond tree. Recognition of this essential link arises not only from scientific research; the State itself has also affirmed it through Decretos Ejecutivos 25167-MINAE y 25663-MINAE. In this regard, the recitals (considerandos) of Decreto 25167-MINAE state as follows:

“6º.- That the Great Green Macaw (Ara ambigua) is one of Costa Rica’s most impressive birds and is endangered should deforestation continue in the northern region of the country (…)

8º.- That, according to scientific studies, the great green macaw nests in natural cavities, primarily in large almond trees (Dipteryx panamensis) located in the Atlantic region of the country.

9º.- That in Costa Rica, the optimal habitat for its survival has been substantially reduced to the habitat located between the río de San Carlos and the río Sarapiquí.

1. 10That, according to the relevant scientific studies, during the breeding season the macaws feed almost exclusively on the fruit of the almond tree.
2. 11That it is estimated that only between 25 and 35 breeding pairs of great green macaws exist in Costa Rica. Their reproductive cycles are also frequently affected, either by the irrational use of nesting trees or by hunters who remove chicks from their nests to sell them as pets.
3. 12That if the irrational harvesting of the almond tree continues, the species’ habitat will be lost and, consequently, the species will become extinct…”

IV.Now, based on the factual and legal framework set forth above, in this specific case the Administration, through Decretos Ejecutivos 25167-MINAE y 25663-MINAE, established a series of restrictions on the felling (tala) of almond trees in consideration of the conservation arguments presented. Nevertheless, as the petitioner contends, these measures contravene the spirit of the conventions ratified by the Administration because they allow the felling of almond trees to continue, thereby destroying the green parrot’s habitat. Although, as the Administration states in its report, the measures promoted by both decrees, particularly 25167-MINAE, demonstrate the State’s interest in conservation—here, the conservation of the great green macaw and its habitat—in this Chamber’s view and based on the documentation submitted, the measures adopted, despite seeking to regulate the process of deforestation, are not appropriate legal measures because they allow the process of habitat reduction to continue, not only by authorizing felling but also by restricting protection to a single area of the country.

In addition, the petitioners allege that the Administration’s authorities have not merely failed to close the “loophole” permitting the commercial use of the almond tree, but have widened it by granting more permits for its exploitation while also neglecting their oversight responsibilities. In the report submitted, the Acting Ministro de Ambiente y Energía failed to address these matters; therefore, pursuant to article 45 of the Ley de la Jurisdicción Constitucional, such actions are deemed true. In addition, this Court observes that the respondent has not demonstrated that the petitioners’ allegations are unfounded; instead, it has merely invoked the lack of funding as an excuse for failing to perform its duties diligently, even though the central issue is the strict enforcement of both international conventions and domestic legislation. For example, Ley Forestal number 7575 provides in article 6:

“Art. 6.- The powers of the Administración Forestal del Estado are as follows:

• e)To establish bans (vedas) on forest species that are becoming endangered or are endangered, or that place other species of plants, animals, or other organisms at risk of extinction, in accordance with the relevant technical studies and other provisions of the legal system currently in force.” The record in the case under review does not show that the promulgation of the challenged Decrees resulted from an analysis or the corresponding research aimed at protecting the species. Nor does it show that they took into account the Conventions and legislation intended to protect this species and many others that are endangered. This ultimately also demonstrates a violation of articles 7 and 89 of the Constitución Política because the protection established in the International Conventions has not been fulfilled, thereby leaving the right to a healthy and ecologically balanced environment unprotected.

V.Accordingly, although the State has an obligation to ensure the survival of endangered species—and, in this case, the great green macaw—the fact remains that, as of this time, the public authorities responsible for giving effect and substance to the protection of these species have not presented evidence that would lead this Court to conclude that the relevant measures have been adopted to prevent the species’ extinction. The Chamber therefore finds that the provisions of article 25 of the Ley de Conservación de la Vida Silvestre and article 60 of the Reglamento a esta Ley have thereby been disregarded. There can thus be no doubt that the respondent Administration has allowed the right to a healthy and ecologically balanced environment, protected under constitutional article 50, to be violated. Because the great green macaw has been declared an endangered species—LEY DE CONSERVACION DE LA VIDA SILVESTRE, No. 7317—the State is obligated to implement all measures necessary to protect this species, which entails the obligation to prevent trade in it and, given its relationship with the almond tree, also to prohibit the tree’s felling throughout the country.

Clearly, this prohibition must be observed primarily in the areas containing the optimal habitat for the species’ survival, which, according to Decreto N. 25167-MINAE, has been substantially reduced. In light of the foregoing, the Ministra de Ambiente y Energía is advised to verify whether the measures adopted are both economically and legally effective in promoting the preservation and development of areas designated for almond trees. To fulfill the obligations imposed on her by law, she must implement the legal and punitive measures necessary to ensure effective protection of the species “Ara ambigua”; this must necessarily be accompanied by a nationwide monitoring plan for the great green macaw and the felling of almond trees. In view of the considerations set forth, the only appropriate course is to grant this petition, as is hereby ordered.”

More recently, elaborating on the fragile situation of the great green macaw and clarifying its relationship with the yellow almond tree, in judgment number 2008-13426, issued at nine thirty-three a.m. on the second of September of two thousand eight, the Chamber held:

“On the situation of the great green macaw. The great green macaw, or Ara ambigua, is a larger bird than the scarlet macaw, as it can reach a wingspan of up to 84 centimeters and a mass of approximately 1.3 kilograms. It has a fairly robust build and a slightly shorter tail than the scarlet macaw, or Ara macao. Its color—as its name indicates—is yellowish green, with blue wing coverts; its tail feathers, known as central rectrices, are red, while the remaining rectrices are blue. This animal’s face is featherless, revealing bare, bone-white skin. It has a strong, hooked beak that is slightly larger than that of the scarlet macaw; its keratinous structure enables it to open the hard seeds on which it feeds. It customarily nests in hollow tree trunks. The great green macaw (Ara ambigua) has a limited distribution in humid lowlands, primarily on the Atlantic side, in forests between eastern Honduras and northern Colombia, with an isolated Pacific population in Guayaquil, Ecuador.

In Costa Rica, its nesting range is currently limited to the Zona Huetar Norte, more specifically between the San Carlos, San Juan, and Sarapiquí rivers and the northern foothills of the Cordillera Volcánica Central. It is highly dependent on the mountain almond tree (Dipteryx panamensis) for both food and nesting. This species is listed in Appendix I of CITES, meaning that it is endangered. As indicated, the species was once abundant in the country, primarily in the Zona Atlántica and the Zona Norte, where it was common to see specimens flying in flocks only a few years ago. Today, however, only a few nesting pairs remain in the Zona Norte, between Boca Tapada and the plains of the Colorado. There are some reports of flocks of between 6 and 12 individuals in the foothills of the Cordillera Volcánica Central, particularly near the lower Atlantic sector of Parque Nacional Braulio Carrillo, around the highway leading to Guápiles, as well as sporadic reports on the northern slope of the Cordillera Volcánica de Guanacaste.

The sharp decline in the great green macaw population is due primarily to habitat destruction through unsustainable logging at nesting sites. In Costa Rica, the species’ range has contracted by 90% since the last century, and the threat it faces stems from its dependence on the mountain almond tree (Dipteryx panamensis), which disappears as a result of poor management and illegal logging of forests. Thus, two dangers pose a serious threat to this species: habitat loss caused by the felling of trees that constitute its primary food source and nesting sites, especially the mountain almond tree (Dipteryx panamensis), since the great green macaw depends on that tree for 80% of its food and 90% of its nesting; and the illegal trade in the bird for use as a pet (information obtained in part from the websites http://www.minae.go.cr, http://www.sinaccr.net, http://www.lapaverde.or.cr, http://www.inbio.ac.cr, http://www.una.ac.cr, http://www.cct.or.cr and http://www.guiascostarica.com). [emphasis added] In the same vein, the Sistema Nacional de Áreas de Conservación states on its website:

“[…] The harpy eagle probably became extinct in the country; meanwhile, other species such as the scarlet macaw, the great green macaw, the white-faced whistling duck, and the giant anteater are severely threatened with extinction. Our system of protected areas appears to be insufficient for species that, like the jaguar, require large expanses of virgin forest to survive. […]” (Emphasis added, downloaded from http://www.sinaccr.net/vidasilvestre.php at 14:50 on 8 de agosto de 2008).

The same website adds:

“[…] Wild flora and fauna are the heritage of all Costa Ricans […]. For this reason, the Dirección General de Vida Silvestre, through the Sistema Nacional de Areas (sic) de Conservación, has undertaken various actions aimed at increasing the prospects for wildlife conservation, among which the following should be highlighted: […] 2.—the preparation of a decree intended to protect populations of the mountain almond tree, on which the great green macaw feeds. […]” (Emphasis added, downloaded from http://www.sinaccr.net/vidasilvestre.php at 14:50 on 8 de agosto de 2008).

Consideration must likewise be given to the determination of the Sistema Nacional de Áreas de Conservación, which includes the great green macaw on the official list of endangered species published on its website (http://www.sinaccr.net/vidasilvestre5.php, accessed at 14:58 on 8 de agosto de 2008). Additionally, Executive Decree “Crear el Refugio Nacional de Vida Silvestre Mixto Maquenque,” number 34205-MINAE of 23 de mayo de 2005, published in La Gaceta 113 of 13 de junio de 2005, states:

“[…] 7.—That one of the Ministerio del Ambiente y Energía’s most immediate projects is the declaration establishing the Refugio Nacional de Vida Silvestre Mixto Maquenque, located in the northern border region between the mouths of the San Carlos and Sarapiquí rivers. Because of its scientific interest, this area is considered important for conservation, as it has special characteristics conducive to the conservation of significant flora and fauna species, including the Great Green Macaw (Ara Ambigua), Jaguar (Pantera onca), Mountain Almond Tree (Dypteryx panamensis), Manatee (Trichechus manatus), Tropical Gar (Atractosteus tropicus), and Pinillo (Podocarpus guatemalensis). The geographical location of this zone is of great importance because this protected wildlife area would be situated in the Corredor Biológico Binacional El Castillo-San Juan-La Selva, which is a continuation of the Corredor Biológico Mesoamericano between Nicaragua and Costa Rica and constitutes the last significant block of natural forest cover (cobertura forestal natural) capable of maintaining biological connectivity between the two countries. This area would therefore connect key habitats and wildlife corridors, thereby preventing the isolation of species and native ecosystems.

1. 8That the El Jardín, Cureña, and Chaparrón areas constitute highly important core areas for biodiversity conservation, including several threatened species, such as:

[…]

Threatened bird species Species Common name Status […]

37 Ara ambigua great green macaw endangered […]

Threatened tree species Species Common name Status […]

12 Dipteryx panamensis mountain almond tree threatened […]” (Emphasis added).

It is thus clear that both the great green macaw (Ara ambigua) and the yellow almond tree (Dipteryx panamensis) are species that are endangered—in the case of the former—and threatened—in the case of the latter—and that the former is directly dependent on the latter.” In this regard, it is clear that the governmental authorities have recognized the threats faced by both the great green macaw and the yellow almond tree. The bird is threatened because it needs the tree for reproduction and food, and the tree is threatened by unsustainable logging; together, these factors—unsustainable logging at nesting sites—create an additional risk to the bird’s preservation. For this reason, judgment 2008-13426 likewise established:

“[T]he initiation of any proceeding aimed at harvesting the timber (aprovechamiento de la madera) of the yellow almond tree (Dipteryx panamensis) must be prohibited while it and the great green macaw (Ara ambigua) remain on the list of endangered or threatened species. (…) It is ordered (…) that any action or proceeding intended for the harvesting, exploitation, or extraction (aprovechamiento, explotación o extracción) of the yellow almond tree (Dipteryx panamensis) be closed and filed. That official is prohibited from initiating or continuing any proceeding aimed at the harvesting, exploitation, or extraction of the yellow almond tree (Dipteryx panamensis) while that tree and the great green macaw (Ara ambigua) remain on the list of threatened or endangered species; this prohibition does not relieve the specified public servant of the duty to rule upon and provide notice as appropriate to those who may have submitted an application to that effect…” Accordingly, the Sala held that the proper protection that must be afforded to these species means that the yellow almond tree may not be exploited or harvested while the tree and the bird remain on the list of protected species.

This seemingly absolute prohibition or restriction must be understood in the context of the judgment under discussion, from which it follows that the prohibition against exploitation and harvesting applies fully when such activity is intended to take place at the bird’s nesting sites. In other words, the exploitation, extraction, and harvesting of the yellow almond tree are absolutely prohibited by order of this Sala insofar as the trees intended to be cut are located in an area where it has been conclusively established that the great green macaw nests. This determination, however, cannot be understood as unrestricted permission to fell yellow almond trees in places where the bird does not nest, because in such cases, given that this is a threatened species, all permits issued by the forestry administration must always be obtained in advance, with the requisite scientific rigor to ensure that the activity is harmless to the environment and that this species, as well as others closely associated with it, is duly preserved.

XI.On the protection of water and the situation of groundwater. The Sala’s case law clearly recognizes the right to water as a fundamental right. Accordingly, alongside serious efforts to provide water to the population, public institutions have a duty to make responsible and appropriate use of available water resources. This entails the need to ascertain with certainty the amount of water available for exploitation—availability—thereby ensuring both its present provision and the future sustainability of the service, and preventing current use of the resource from creating an environmental risk that could jeopardize the future existence and supply of water. The Sala has had occasion to rule emphatically and in detail on the protection that must be afforded to the nation’s water resources, clarifying both the regulatory framework for their protection and the institutions comprising the water sector, while recognizing and defining the scope of those bodies’ powers and the importance of their actions regarding the granting, use, and protection of water.

It is therefore particularly important to cite the relevant judicial precedents, which are directly applicable to the case now before the Sala. Accordingly, in judgment number 2004-1923 of this Sala, issued at fourteen hours fifty-five minutes on veinticinco de febrero de dos mil cuatro—reiterated in judgments numbers 2008-14092, issued at nine hours twenty-eight minutes on veintitrés de setiembre de dos mil ocho, and 2008-15657, issued at eleven hours forty-five minutes on diecisiete de octubre de dos mil ocho—the Sala held that:

“V.- GROUNDWATER. In contrast to waters known as surface waters (aguas superficiales), insofar as they flow over the Earth’s crust and may be subject to common or special uses, there is groundwater (aguas subterráneas). Groundwater is water found beneath the Earth’s surface, occupying empty spaces in soil or rocks; its most important source is rainfall that infiltrates the soil. The soil, in turn, consists of the following two levels: a) an upper level, or aeration zone (zona de aireación), in which the empty spaces are occupied by air and infiltrated water that descends by gravity; and b) another level beneath it, known as the saturation zone (zona de saturación), in which the empty spaces are filled with water that moves slowly and whose upper level is known as the water table (tabla de agua), hydrostatic level (nivel hidrostático), or phreatic level (nivel freático). Waters contained in the porous spaces of the saturation zone, within geological formations, are known as aquifers (mantos acuíferos) or groundwater reservoirs.

The hydraulic gradient (gradiente hidráulico) is the difference in elevation between two points on the same water table—phreatic level—in relation to the horizontal distance between them; the velocity of groundwater movement depends essentially on the hydraulic gradient. Groundwater is an essential part of the hydrological cycle (ciclo hidrológico); of all the water in the hydrosphere, 2,4% is fresh water, of which 78,1% is frozen, 21,5% is groundwater, and 0,4% is surface water found in rivers and lakes. In the Central American region, groundwater is the principal source of public water supply, in contrast to surface water, which is notably exposed to contamination and degradation from harmful land-use practices and uncontrolled urban expansion. In the particular case of our country, the potential annual groundwater recharge has been estimated at approximately 47 000 million cubic meters per year, equivalent to 20% of precipitation; it has likewise been calculated that, of the 750 000 cubic meters of water used daily for human consumption, 70% ( 500 000 cubic meters per day) comes from groundwater catchments (captaciones de aguas subterráneas).

The consumption and use of groundwater, as compared with surface water, presents evident and clear qualitative and quantitative advantages, including the following: a) Investment in the extraction and exploitation of potable groundwater is made gradually, depending on the increase in demand for the service, and catchment areas may be located near the place where demand arises, all of which reduces conveyance, treatment, and storage costs; b) the natural physicochemical quality of groundwater is more consistent than that of surface water, and it is potable with little or no treatment; c) because soil or rocks lie above groundwater, it is better protected from contamination of natural or human origin; d) variations in quantity and availability during dry or rainy periods are minimal compared with those of surface water; e) it constitutes a strategic reserve for addressing states of emergency caused by public calamity, internal disturbance (e.g., earthquakes, hurricanes, volcanic eruptions, etc.), or war.

VI. GROUNDWATER AND FUNDAMENTAL RIGHTS

The issue of groundwater is closely linked to several fundamental rights enshrined in the constitutional text and international human-rights instruments. Our Political Constitution, in Article 50, establishes the right to a healthy and ecologically balanced environment, which is achieved, among other factors, through the protection and conservation of the quality and quantity of water for human consumption and use and for maintaining ecological balance in flora and fauna habitats (e.g., wetlands) and, generally, in the biosphere as the common heritage of humankind. Likewise, access to potable water safeguards the rights to life—“without water, life is impossible,” states the Water Charter adopted by the Council of Europe in Strasbourg on 6 de mayo de 1968—and to personal health, as water is indispensable for food, drink, and hygiene (Article 21 of the Political Constitution); and, of course, it is associated with the socioeconomic development and growth of peoples, so as to ensure every individual a dignified level of well-being and quality of life (Article 33 of the Political Constitution and Article 11 of the Additional Protocol to the American Convention on Human Rights).

The scarcity, lack of access to or availability of, and contamination of this precious liquid impoverishes peoples and severely limits social development. Consequently, the protection and exploitation of groundwater reservoirs is a strategic obligation for preserving human life and health and, of course, for the proper development of any people. In 1995, it was estimated that 1000 million inhabitants lacked access to potable water, and it is estimated that by 2025 nearly 5.500 million people will face water scarcity, while between 5 and 10 million people die annually from using untreated water. In another vein, the duty to preserve for future generations conditions of existence at least equal to those inherited has now been recognized (sustainable development (desarrollo sostenible)); therefore, present needs must be met without compromising the ability of future generations to meet their own needs (Principle 2 of the Declaration of the United Nations Conference on the Human Environment, Stockholm, 1972).

In essence, from an economic and ecological standpoint, water is a precious good because it is indispensable for every human activity (industrial, agricultural, domestic, commercial, services, etc.), as a source of energy, raw material, transportation route, support for recreational activities, and a constituent element in maintaining natural ecosystems—non-polluting or environmentally compatible use of water.”

VII. LEGAL NATURE AND REGIME OF GROUNDWATER, AQUIFERS, AND RECHARGE AREAS

PUBLIC-DOMAIN PROPERTY. Our legal system has no single systematic and coherent body of law that comprehensively regulates the protection, extraction, use, management, and efficient administration of water resources. In addition, the limited existing legislation focuses predominantly on surface water, while disregarding groundwater. As is characteristic and inherent to Administrative Law, this field is marked by a dispersion of legislation and a fragmented, chaotic, and ambiguous set of sector-specific rules governing particular matters, leaving serious gaps and conflicts of laws, all of which also severely hinder environmental management by the public entities responsible for this area. Obviously, the scant regulation of groundwater is no exception to the foregoing rule. Various theories have been advanced in Water Law concerning its legal nature—the variations among them depending on historical developments.

Thus, groundwater has been regarded as (a) private property, meaning that it is an appropriable ownerless thing (res nullius) belonging to the person who brings it to the surface (alumbrador), namely, the owner of the land on which it emerges, in accordance with the maxim of Roman Law that ownership extends from the heavens to the depths below. Nineteenth-century regulations governing water resources (e.g., the Spanish Ley de Aguas of 1879, which inspired many Latin American statutes, including our Ley de Aguas of 1942) characterized groundwater as (b) mixed property: water brought to the surface by the owner of private land was private, whereas water arising on public-domain land was public, as was the former after its owner had used it. Finally, beginning in the twentieth century, many legal systems began to classify all groundwater as (c) public-domain property, based on the indisputable unity of the hydrological cycle, thereby making it part of what has been called the “public water domain” (dominio público hidráulico), as part of the natural rather than artificial domain.

This position views water as a unitary resource subordinate to the general interest, such that no distinction should be drawn between surface water and groundwater, since they are intimately connected in maintaining their quality and quantity. Under this latter theory, groundwater cannot be appropriated by any private party, and its classification as public-domain property provides sufficient legal grounds to subject it to a particularly strong and intensive administrative-intervention regime in order to safeguard its integrity and quality and remove it from the methods of acquisition and enjoyment applicable under Private Law. In our legal system, the legal nature of groundwater can be determined from a series of scattered provisions, with evident variations over the course of legislative history. Ley de Aguas No. 276 of August 27, 1942, as amended, classifies in Article 1, subsections IV, VIII, and IX, respectively, as public-domain waters “Those of (...) springs (manantiales) (...)”; “Those of springs that emerge on beaches, maritime zones, channels, basins, or banks owned by the Nation and, in general, all waters arising on public-domain land”; and “Groundwater not brought to the surface by means of wells,” because Article 4, subsection III, of that statute regards as privately owned—and therefore belonging to the owner of the property—“Groundwater obtained by the owner from the owner’s own land through wells,” while any surplus water—from wells granted under concession to obtain water for non-domestic purposes and ordinary needs—that leaves the property becomes public-domain water.

Evidently, Ley de Aguas of 1942 follows a mixed theory regarding the legal nature of groundwater, since it combines the characterization of groundwater as res nullius—and therefore subject to appropriation when brought to the surface on private land—with its public-domain character when it emerges on land owned by a public entity. Two subsequent statutes, enacted during the final quarter of the last century, tacitly reformed or modified the provisions of Article 1, subsections IV, VIII, and IX, and Article 4, subsection III, of Ley de Aguas. In fact, these two new legislative instruments reflect the contemporary approach of treating groundwater as public-domain property by virtue of the unity of the hydrological cycle and therefore provide sufficient legal authority for a strong administrative-intervention regime to preserve the quantity and quality of water resources and ensure their rational and sustainable exploitation.

Accordingly, Código de Minería, Ley No. 6797 of October 4, 1982, as amended, provided in Article 4 as follows: “(...) mineral springs and waters, and groundwater and surface water, are reserved to the State and may be exploited only by the State, by private parties in accordance with the law, or under a special concession granted for a limited period and subject to the conditions and provisions established by the Legislative Assembly (...).” This resulted in the transfer to the public domain and nationalization of all groundwater in the country, including water brought to the surface through a well located on private property for domestic uses or ordinary needs. Subsequently, Ley Orgánica del Ambiente, No. 7554 of October 13, 1995, as amended, reinforced that declaration of public-domain status in Article 50—whose heading is “Public domain of water”—and prescribed that “Water is in the public domain; its conservation and sustainable use are matters of social interest.” This legislative instrument expressly assigns inland waters (surface water and groundwater—since it draws no distinction between them—) to the State’s public domain and classifies their protection, preservation or conservation, and sustainable or rational use as matters of social interest, thereby clearing the way for potential expropriations or restrictions on grounds of social interest (Article 45 of the Constitución Política).

VIII. AQUIFERS AND RECHARGE AND DISCHARGE AREAS

An aquifer (acuífero) is a geological stratum or formation (unconsolidated deposits of loose materials such as sand, gravel, mixtures of both, sedimentary rocks such as limestone, volcanic rocks, etc.) that allows water to circulate through its pores or fissures, thereby enabling human beings to use it in economically significant quantities to meet their needs. In a very broad sense, aquifers (mantos acuíferos) are geological formations that contain water, have contained it, and through which water flows or circulates. Two of the hydrogeological parameters used to define the functioning of an aquifer—the relationship between water recharge and extraction or discharge—are porosity or permeability—hydraulic conductivity (conductividad hidráulica)—and the storage coefficient (coeficiente de almacenamiento). A number of geological formations must not be confused with aquifers. Thus, (a) aquicludes (acuícludos) are geological formations that contain water but do not transmit it, thereby preventing its exploitation.

With respect to the nonrenewable, fossil, dead, stagnant, or nonflowing groundwater contained in them, there can be no doubt that it is also in the public domain, since Article 4 of Código de Minería and Article 50 of Ley Orgánica del Ambiente do not distinguish between groundwater and surface water, much less between renewable and nonrenewable groundwater; it therefore cannot be viewed as a res nullius capable of appropriation by a private person who brings it to the surface. An (b) aquitard (acuitardo), in turn, comprises a group of geological formations that contain appreciable quantities of water but transmit it very slowly. Finally, an (c) aquifuge (acuífugo) is a geological formation that neither contains nor can transmit water. Regarding aquifer types, hydrogeology classifies them according to the hydrostatic pressure of the water enclosed within them as follows: (a) unconfined, non-confined, or water-table aquifers (acuíferos libres, no confinados o freáticos), in which the enclosed water has a free surface in direct contact with the air, the water table is at atmospheric pressure, and the aquifer is not bounded by an impermeable layer; and (b) captive, confined, or pressurized aquifers (acuíferos cautivos, confinados o a presión), in which the water is subject to pressure exceeding atmospheric pressure.

There is also a subcategory of perched aquifers (acuíferos colgados), which are unconfined aquifers with limited spatial distribution and a temporary existence. Natural aquifer recharge (recarga natural de los mantos acuíferos) consists of the volume of water entering them during a given period as a result of the infiltration of rainfall or water from a watercourse (e.g., losing streams). Recharge areas (áreas de recarga), therefore, are all areas of the ground surface where rainfall infiltrates the soil until it reaches the saturated zone and enters the aquifer. Ley Forestal No. 7575 of February 13, 1996, in Article 3, subsection l), defines aquifer recharge areas (áreas de recarga acuífera) as “The surfaces on which infiltration occurs that supplies aquifers and river channels (...).” Natural discharge (descarga natural) is the volume of water that, during a given period, naturally leaves the aquifer through surface, subfluvial, or submarine springs, through evapotranspiration, or through vertical percolation into lower aquifers.

Artificial discharge (descarga artificial) occurs through the extraction of water by means of wells, ditches, trenches, or tunnels. Groundwater discharge areas (áreas de descarga de las aguas subterráneas) comprise all points at which the water table (tabla de agua) or phreatic level (nivel freático) intersects the ground surface—springs, water sources (nacientes), seepage—or the course of a river or marine or lake beds.

IX. TYPOLOGY OF AQUIFERS (MANTOS ACUÍFEROS) IN COSTA RICA

Two families of aquifers (acuíferos) are recognized in our country: a) volcanic or fractured aquifers, formed in igneous rocks (volcanic and intrusive), which are the largest and have the best quality; and b) sedimentary or granular aquifers in surficial formations. Regarding the first type, it should be noted that igneous rocks are not naturally permeable; they possess secondary porosity resulting from fractures or fissures caused by cooling or tectonic events (areas associated with geological faults), thereby acquiring hydrogeological suitability. This type of aquifer occurs in highland areas where precipitation is heavy and, in particular, volcanic rocks are present; well-known and studied examples include the aquifers of the Valle Central (e.g., Colima Superior e Inferior and Barva). From a hydrogeological perspective, our country has ideal and exceptional conditions for the rational and measured extraction of groundwater (aguas subterráneas), since the Cordillera Volcánica Central consists of volcanic soils with a high natural infiltration capacity, provided they have not been compacted or eroded by human activities, and they therefore perform an essential function by regulating surface-water runoff and aquifer recharge (recarga de los acuíferos).

The high permeability of fractured and brecciated lava formations and the conditions of heavy rainfall favor the formation of high-potential aquifers. The existing tuffs, in turn, behave as low-permeability rocks that allow the formation of aquitards (acuitardos), which form the base of the aquifers and permit the vertical transfer of water between them. The location and geomorphology of the Cordillera Volcánica Central, with all its aquifers, constitute a primary source of water for meeting the needs of at least half of the country’s population, including the Gran Área Metropolitana and surrounding communities. Groundwater in this area is used through wells or the capture of springs (manantiales) for domestic, industrial, and agricultural and livestock uses. In the Cordillera Volcánica Central, as of 1996, SENARA had registered 3.460 wells for various uses and 353 springs for public supply used by ICAA, municipal corporations, rural water-supply system administrative associations, and other entities.

This type of aquifer has also been identified in the Liberia and Bagaces formations (Provincia de Guanacaste). It has been fully established that, because of their petrophysical characteristics, these aquifers are more vulnerable to pollution in their recharge areas when they are not located in protected or reserved zones and are exposed to human activities such as deforestation, uncontrolled urbanization, and intensive and extensive agricultural and livestock activities involving the use of pesticides and agrochemicals; consequently, they are exposed to dangerous and gradual degradation of their environmental quality. Surficial aquifers consist of layers of unconsolidated rock of recent and varied origin; they are alluvial deposits in certain valleys that may range in thickness from a few meters to one hundred meters, and they are separated from the surface by a thin, permeable layer of soil, making them highly vulnerable to pollution, particularly when they lie beneath areas of human occupation (urban or industrial development, or agricultural cultivation). This type of aquifer is exploited in the Pacífico Central region, such as the alluvial deposits of the Valle del Río Barranca, which contain two coastal aquifers: Barranca and El Roble.

X. GROUNDWATER POLLUTION

Unlike surface-water pollution, which is usually apparent and visible, thereby allowing environmental measures to be taken to mitigate or eradicate it, groundwater pollution, by its very nature, usually goes unnoticed and becomes evident only when it has reached substantial proportions. Because of the slow movement of water, the absorptive capacity of the ground, and other factors, aquifers may take a long time to show signs of pollution. Additionally, the large volume of water they contain means that widespread pollution may take a prolonged period to become apparent, while localized pollution may be detected only when it reaches an extraction site. Such waters do have a degree of resistance to pollution; however, once pollution occurs, their regeneration may be extraordinarily slow and, at times, irreversible because of the high cost of the means required to accomplish it. It has been shown that attempts to repair the damage caused by aquifer pollution and restore drinking-water quality (potabilidad del agua) have been unsuccessful; remediation technologies have done little to reduce the damage, and the methods are extremely costly.

To the foregoing must be added the lack of organizational infrastructure and of material, financial, and human resources—the latter being properly trained—to assess, measure, and generally monitor the quality of this water and the precise extent of its pollution. The degradation and pollution of aquifers impose upon the legislature and public administrations the urgent and imperative task of protecting them. Groundwater pollution may be direct or indirect: it is direct when pollutants are introduced directly into the aquifer, as in the case of cesspits (pozos negros) or injection wells (pozos de inyección), and indirect when it occurs, through dilution, as a result of pollution of natural recharge. Pollutants may be of many different kinds, namely mineral, degradable organic (excreta and liquid manure), slightly degradable or nondegradable organic (pesticides, detergents, and hydrocarbons), biological (bacteria, viruses, and algae), radioactive, and gaseous.

Aquifer pollution depends on the geological, hydraulic, and chemical conditions of each location or site and is therefore a function of local factors, which is why knowledge of each area and the study of similar cases are required. Aquifer pollution may originate from many different sources, including the following: a) pollution from domestic activities, which is organic and biological and originates from septic tanks, sewer-system leaks, and the discharge of sewage, compounded by the increasing use of household chemicals such as detergents; b) pollution from agricultural activities, including the use of artificial fertilizers based on nitrates, phosphates, and potash, or natural fertilizers based on manure; irrigation with wastewater and highly saline water; and the use of pesticides (insecticides, herbicides, and pest-control chemicals); c) pollution from livestock farming, which is essentially organic and biological and resembles domestic pollution but is more intense in the case of intensive farms; d) pollution from surface waters, when those waters recharge the aquifers and are themselves polluted; e) pollution from saltwater intrusion (intrusión salina), which occurs when seawater and saline water enter coastal regions because coastal aquifers are overexploited through wells; f) pollution from mining activities—mineral pollution—which is associated with mine-water discharges and ore-washing facilities; g) pollution from industrial activities, which varies as widely as the type of industry causing it, with pollution caused by heavy metals from the metallurgical industry being especially harmful, as is pollution from the chemical, petrochemical, food (organic substances), and beverage (detergents) industries; h) pollution from nuclear activities, which, although exceptional in our country, may originate from facilities that process irradiated fuels and radioactive minerals, as well as from medical activity; i) pollution through improperly constructed wells, because wells may interconnect several aquifers and may cause pollution when their casings are broken or corroded at levels containing poor-quality water, or when they allow surface water to enter; j) pollution through the discharge of wastewater by means of cesspits, septic tanks, sewer-network leaks, or indiscriminate dumping into watersheds (cuencas hidrográficas); k) pollution from the disposal of solid waste, which occurs when a landfill is built on permeable or non-waterproofed land and leachate (lixiviados) seeps through it; l) pollution from improperly designed, constructed, or operated injection wells—a means of using the subsoil to store waste.

(…)

XII. PROTECTION OF GROUNDWATER

Given the characteristics of contamination of aquifers (mantos acuíferos) intended for public water supply and the difficulty of restoring them, measures to prevent contamination must be preventive and protective, through the prohibition of certain human activities in specified areas or by requiring safety measures for certain potentially contaminating activities. Unfortunately, our legal and administrative framework (legislation, regulations, and decrees) lacks precise, clear, and comprehensive rules for the protection of aquifers, recharge zones (zonas de recarga), and groundwater catchment areas (áreas de captación de aguas subterráneas). Foreign legislation (e.g., Spain’s Ley de Aguas 29/1985 of August 2) provides for certain extraordinary powers of administrative intervention in the water economy that directly concern the protection of aquifers, with a view to achieving sustainable use of water resources, that is, to ensuring the availability of water in sufficient quantity and of the quality required to meet present and future human and ecological needs.

These extraordinary administrative powers, which must be recognized in our legal system—despite the lack of regulation—as implicit in the express and general authority for the protection and conservation of groundwater vested in the State and decentralized entities in the water sector, are grounded in the need to achieve rational and balanced use of water. The scarcity and degradation of the natural conditions of water resources warrant the administrative power to adopt such measures to prevent their depletion or irreversible deterioration and to temporarily overcome the harmful effects that a water crisis (crisis hídrica) may cause. These types of administrative measures entail various restrictions and stringent controls on the multiple uses or exploitation of water (aprovechamientos de agua)—particularly general or special uses of a private nature—and on preexisting activities that may affect the resource; because they are justified by a public interest, they do not infringe the right to property or the integrity of assets.

In essence, such measures must be regarded as limitations in the social interest (limitaciones de interés social) that neither deprive the right to property of its substance nor expand the public domain (dominio público) over groundwater without prior compensation, but instead shape its essential content; they must therefore be borne by all users as a general sacrifice or burden, since the users are ultimately their beneficiaries, insofar as the measures are intended to remedy a temporary situation of scarcity or imminent contamination affecting the water economy in a specified area. Such administrative intervention measures, implicitly contained in Article 32 of the Ley de Aguas of 1942 and Article 10 of the Reglamento de Perforación y Explotación de Aguas Subterráneas (Decreto Ejecutivo No. 30387 of April 29, 2002), may include the following:

• a)Aquifer protection perimeters (perímetros de protección de los mantos acuíferos): One of the most innovative instruments for protecting water resources is the establishment of protection perimeters to conserve the resource and its surroundings. This administrative intervention measure seeks to preserve the quality and quantity not only of the water contained therein, but also of the formation containing it, namely, the geological formation known as an aquifer. This activity consists of projecting and delineating on the surface a boundary over an aquifer or part thereof, within which a specific regime is established for the use of the public water domain (dominio hidráulico)—regulation and restriction of preexisting water concessions (concesiones de agua), and a prohibition on granting new ones—and for controlling activities and facilities that may affect it—through permits (autorizaciones)—(e.g., mines and quarries; urban activities involving septic tanks, cemeteries, and sanitary landfills—storage, transportation, and treatment of solid and liquid waste; agricultural and livestock activities involving the storage and distribution of fertilizers and pesticides, irrigation with wastewater, and farms; industrial activities involving the storage, transportation, and treatment of liquid or gaseous hydrocarbons and chemical, pharmaceutical, and radioactive products, as well as food-processing industries and slaughterhouses, etc.).

Clearly, the establishment of perimeters by the national authorities—MINAE and ICAA—must be respected by local governments (Municipalidades) and INVU (given its residual jurisdiction over urban planning in the absence of local regulatory plans (planes reguladores)) so as to harmonize, develop, and effectively reflect the conditions established by the protection perimeters in the rules contained in the respective Planes Reguladores concerning land uses (usos de suelo) or land-use planning (ordenación del territorio) (e.g., zoning and construction regulations, etc.). Obviously, the foregoing must be supplemented by protection around catchment areas (wells—PPP: well protection perimeters (perímetros de protección de los pozos)—springs (manantiales), springs (nacientes), etc.), through the establishment of a surrounding zone in which specified human activities are prohibited or limited and land use is regulated or controlled.

The determination of the perimeter depends on the well capture or recharge zone (ZOC), and its extent depends on the characteristics and properties of the catchment area and recharge terrain, because the rules cannot be the same for permeable or fractured land as for land with impermeable formations. The establishment of perimeters must be coordinated with the mapping of the natural vulnerability or susceptibility of supply aquifers to anthropogenic contaminant loads, based on their hydrogeological and geochemical characteristics in relation to anthropogenic contamination problems, which is accomplished by preparing maps. Both measures—protection perimeters and vulnerability mapping—are suitable for enabling the timely relocation of a particular type of activity or the supply source or, ultimately, the introduction of technical methods and instruments for treating and disposing of contaminants.

The measures to be adopted on the basis of protection perimeters and vulnerability mapping vary according to whether the area is: (a) an area without territorial occupation, in which case they are useful for determining which activities may or may not be established there in the future; (b) an already occupied area, in which case the natural vulnerability and the areas most susceptible to contamination are mapped, and, where there is a threat of a high contamination rate, activities and supply sources may be relocated and technology introduced for the treatment and disposal of contaminants; (c) an already contaminated area, in which case alternative sources may be sought, the spread of contaminant plumes prevented, and, where feasible given the high cost, the aquifer water treated after extraction; or (d) an area for new water withdrawals (captaciones), in which case potentially contaminating activities and the impact area of each must be inventoried.

• b)Declaration of an overexploited aquifer (declaración de acuífero sobreexplotado): Overexploitation of an aquifer occurs when withdrawals or uses are so intensive—discharge—and extensive that they exceed recharge volumes, causing the aquifer’s water reserves to diminish progressively and deteriorate. Overexploitation causes disastrous economic and natural effects. Among the former, users may experience increased extraction costs—more energy to obtain the same quantities of water or expenditures to deepen a well further in order to reach the water level—as well as the depletion of wells located in the peripheral areas of the aquifer and in areas with the highest concentration of drilling. Natural effects include reduced water flows in springs, rivers, streams, creeks, lagoons, lakes, and wetlands, thereby jeopardizing their existence; impairment of the capacity of geological formations—aquifers—to store water as the interstitial space in the rocks decreases because of the loss of internal pressure supplied by the water; land subsidence caused by compaction, resulting in alteration of the aquifer; the appearance of cracks; and slope movement.

In the event of aquifer overexploitation, the competent administrative authority may declare that condition in order to reverse the situation through the regulation, restriction, and allocation of preexisting withdrawals or uses so as to achieve rational exploitation, together with the immediate suspension of new applications or applications then pending to modify concessions. Measures for conserving and properly using resources may, of course, also be implemented, such as treating and purifying wastewater so that it may be reused to irrigate certain crops, drip-irrigation or nighttime-irrigation systems to mitigate the effects of evapotranspiration, artificial recharge, etc.

• c)Declaration of an aquifer undergoing saltwater intrusion (declaración de acuífero en proceso de intrusiones salinas): An aquifer is considered to be undergoing salinization when, as a direct consequence of withdrawals, widespread and progressive increases are recorded in the salt concentration of the water collected, creating a risk that it will become unusable. Salinization entails a reduction in the thickness of the freshwater layer beneath which seawater rises, such that well water ceases to be potable and may even become unusable for domestic purposes or irrigation, while recovery of the aquifer is very difficult or almost impossible. This problem may arise in our country, particularly gradually or extensively in overexploited coastal aquifers—intrusion of marine origin—although intrusion of continental origin cannot be ruled out elsewhere. Saltwater intrusion is caused by irrational exploitation or overexploitation; measures similar to those prescribed when that problem occurs must therefore be implemented, such as the regulation, restriction, and allocation of preexisting uses, and the suspension of new applications or applications to modify concessions.
• d)States of necessity and water crisis (estados de necesidad y crisis hídrica): Under anomalous, exceptional, and temporary circumstances that cause a public calamity or internal disturbance (e.g., extraordinary droughts, severe overexploitation of aquifers, or widespread saltwater intrusion into them), the State—through the Executive Branch—and on the basis of the principle of necessity (principio de necesidad), may adopt the necessary and appropriate measures concerning use of the public water domain to overcome that situation or prevent it from worsening. Once the state of necessity ends and normal conditions are restored, other types of measures may be adopted, such as those described above (protection perimeters and declarations that aquifers are overexploited or undergoing salinization).

XIII. LEGAL PROTECTION OF GROUNDWATER IN COSTA RICA

Article 31 of Ley de Aguas No. 246 of August 27, 1942, declares the following to be “reserved ownership in favor of the Nation” (reserva de dominio a favor de la Nación): “a) The lands surrounding potable-water collection sites or supply intakes, within a perimeter having a radius of no less than two hundred meters; b) The forest zone that protects or must protect the entirety of the lands where potable-water infiltration occurs (...)”. This declaration is extremely important because it gives rise to the State’s obligation, through its competent bodies, to establish and demarcate the perimeter protection areas (áreas de protección perimetral) of wells or water collection areas (áreas de captación)—200 meters—and, of course, the recharge areas (áreas de recarga) of aquifers (mantos acuíferos)—the zone where “potable-water infiltration occurs”—that have or must have forest cover (capa forestal) for their protection and that are highly sensitive in terms of their conservation and protection.

Likewise, by virtue of that express designation, the State may bring actions to recover ownership and possession (acciones reivindicatorias y posesorias) to safeguard the integrity of those zones and shield them from all forms of contamination by subjecting them to a strict land-use control regime (régimen de control del uso del suelo), an authority that it has very likely failed to exercise in a timely and precise manner. Section 32 of Ley de Aguas of 1942 establishes that “When, in an area larger than that indicated above, there is a risk of contamination of surface water or groundwater, the Executive Branch, through the Sección de Aguas Potables—currently ICAA—(...) shall order such measures in that area as it deems appropriate to prevent the risk of contamination”; this provision imposes an unavoidable duty of collaboration and cooperation upon the Executive Branch and ICAA to adopt all timely and appropriate administrative acts and measures necessary to avert the risk of contamination in an area extending beyond the protection perimeters of aquifer recharge areas and water collection zones.

The substance of this provision is extremely significant and comprehensive, since it empowers the State to adopt any appropriate measure to prevent the irreversible harm and losses that could be caused by a state of emergency resulting from a water crisis. Clearly, this is also a power that has not been exercised responsibly or has been underused. Ley General de Agua Potable, No. 1634 of September 18, 1953, establishes in Article 2 that “All lands that both the Ministerio de Obras Públicas and the Ministerio de Salubridad Pública—Executive Branch bodies that were replaced by the Instituto Costarricense de Acueductos y Alcantarillados pursuant to its Ley de Creación No. 2726 of April 14, 1961, as amended, and, more specifically, Article 2, subsection h), which entrusted it with enforcing Ley General de Agua Potable—consider indispensable for constructing or locating any part or parts of potable-water supply systems, as well as for ensuring their sanitary and physical protection and the necessary flow rate (caudal), are public-domain property (dominio público) (...)”; clearly, this provision is of enormous significance because it declares the collection areas, which may include springs (manantiales or nacientes)—a form of natural groundwater discharge—to be public-domain property and, more importantly, grants public-domain status (condición de bien demanial) to all lands necessary to ensure sanitary and physical protection and water flow, which necessarily includes aquifer recharge areas clearly demarcated through the aforementioned perimeter-demarcation activity (actividad perimetradora), since failure to protect these zones necessarily affects the quality—through contamination—and flow—through impermeabilization or overexploitation—of water for human use and consumption that emerges from a spring.

Ley Forestal No. 7575 of February 13, 1996, in Article 33, subsections a) and d), respectively, provides that protection areas (áreas de protección) include those “(...) bordering permanent springs, defined within a radius of one hundred meters measured horizontally” and “The recharge areas and aquifers of springs, whose boundaries shall be determined by the competent bodies established in the Reglamento of this Law”; clearly, these provisions support administrative action or intervention to define the protection perimeters of aquifers and collection zones. Ley Orgánica del Ambiente No. 7554 of October 13, 1995, in Article 51, states that the following criteria, among others, must be applied to the conservation and sustainable use of water: “a) Protect, conserve and, insofar as possible, restore aquatic ecosystems and the elements involved in the hydrological cycle”; “b) Protect the ecosystems that regulate the water regime”; and “c) Maintain the balance of the water system by protecting each component of the watersheds (cuencas hidrográficas).” It thus establishes the need to protect and conserve the integrity and unity of the hydrological cycle without distinction, especially including groundwater.

Finally, Article 5, subsection e), final paragraph, of Ley de Creación del ICAA (No. 2726 of April 14, 1961, as amended) and Article 15 of Ley de Creación del SENARA (No. 6877 of July 18, 1983, as amended) complete the regulatory framework for the institutional protection of groundwater by stating, respectively: “The lands necessary for the conservation and protection of water resources, as well as for any structures required for water collection (...), are hereby declared to be of public utility and social interest and may be expropriated”; and “Actions promoted by the State for the purpose of ensuring the protection and rational use of water (...) are hereby declared to be in the public interest.” Within the legal and administrative framework governing water, there is also a series of obligations and burdens imposed on private persons and public-law entities—public bodies and agencies—for the proper protection of the underground and surface public water domain (dominio público hidráulico).

Thus, Ley de Aguas of 1942 and other legislation establish a series of prohibitions and obligations for the owners and users of springs—which are a component of an aquifer’s discharge area (área de descarga)—including the following: a) Users or concession holders (concesionarios) must comply with policing and public-health regulations concerning excess water returned to a spring in order to prevent contamination or foul odors—failure to do so may result in loss of the special water-use entitlement (aprovechamiento especial) and a fine—(Articles 57 and 166, subsection III, ibidem); consistently with this, Ley de Conservación de la Vida Silvestre No. 7317 of October 21, 1992, in Article 132, paragraph 1, prohibits “(...) discharging wastewater, sewage, waste, or any contaminating substance into springs, rivers, ravines, permanent or non-permanent streams (...) lakes (...)” and imposes upon anyone who violates the provision a fine of 50.000 to 100.000 colones, convertible into a term of imprisonment of one to two years. b) The construction of fish-breeding ponds in springs intended to supply communities is prohibited (Article 63 ibidem). c) Owners of lands containing springs whose surrounding forests, which provided them shelter, have been destroyed are required to plant trees along the banks at a distance of no more than 5 meters (Article 148 ibidem). d) It is prohibited, in both national and privately owned forests, to destroy trees located within 60 meters of springs originating in hills or within 50 meters of those emerging on flat land (Article 149 ibidem); Ley Forestal, No. 7575 of February 13, 1996, likewise provides in Article 34 that “The cutting or removal of trees in the protection areas bordering permanent springs and in recharge areas and spring aquifers is prohibited.” e) Every application for the use (aprovechamiento) of flowing waters, watercourses, and springs must be submitted to the Ministerio de Ambiente y Energía together with a series of required documents (Article 178 ibidem).

With respect to the public entities and bodies having authority and responsibilities for groundwater protection, a series of obligations and prohibitions is established, including the following: a) Municipalities are prohibited from transferring, mortgaging or otherwise encumbering, leasing, sharecropping, lending, or exploiting on their own account—particularly where this entails deforestation—lands that they own or acquire along the banks of rivers, streams, or springs, or in watersheds or drainage basins where springs emerge or where watercourses originate (Articles 154 and 155 ibidem). b) Municipalities are required to reforest such lands (Article 156 ibidem). c) Every Municipality, Junta de Educación, Junta de Protección Social and, in general, every “public body” is required to consult the Ministerio de Agricultura and obtain the corresponding permit before transferring, mortgaging, leasing, sharecropping, or exploiting on its own account any lands that it owns or acquires and on which usable public-domain waters exist (Article 157 ibidem).

Ley General de Salud, No. 5395 of October 30, 1973, as amended, for its part, contains specific provisions for the effective protection and conservation of groundwater. Thus, Article 275 stipulates that “Every natural or legal person is prohibited from contaminating surface water or groundwater (...) directly or indirectly, through drainage or the voluntary or negligent discharge or storage of liquid, solid, or gaseous waste or residues, whether radioactive or non-radioactive, sewage, or substances of any kind that, by altering the physical, chemical, and biological characteristics of the water, make it hazardous to human health or to terrestrial or aquatic fauna, or unfit for domestic, agricultural, industrial, or recreational uses.” Section 276, for its part, establishes that drainage works or the discharge of solid or liquid residues or waste, or other materials that may contaminate surface water, groundwater, or seawater, may be carried out only with the Ministry’s permission, “(...) in compliance with regulatory safety standards and conditions and with any special procedures imposed by the Ministry in the particular case to render them harmless.” Articles 285 and 291 of that body of law, respectively, require every person to dispose of excreta and sewage properly and hygienically so as to prevent “contamination of the soil and natural water sources intended for human use and consumption,” and prohibit the discharge of waste from industrial or healthcare establishments into sewers in order to “prevent contamination of water sources or watercourses.” Finally, Article 309 of that law establishes that the Ministerio de Salud shall approve a developer’s project, among other reasons, if it “(...) provides adequate sanitary systems (...) for the disposal of excreta, sewage, and wastewater.”

XIV. ADMINISTRATIVE ENTITIES AND BODIES RESPONSIBLE FOR THE PROTECTION OF GROUNDWATER AND, IN PARTICULAR, AQUIFERS

DELIMITATION OF POWERS. The management of groundwater resources (recursos hídricos subterráneos) encompasses various aspects, such as researching their potential, identification, categorization, planning their uses, protection, rational use, prevention and punishment of ecological damage or pollution, environmental monitoring and oversight of their use, etc. Consequently, it would be appropriate for an administrative entity to exist as the regulatory and governing authority in this field; however, powers for the integrated management of groundwater resources are dispersed and fragmented. Thus, they are occasionally exclusive to a single entity and, more often, concurrent, shared, or parallel, which requires a particular administrative coordination effort to ensure their sustainable use. Within the heterogeneous and dispersed group of administrative entities and bodies that comprise the Costa Rican public administration, one can identify a sector whose members have been assigned, by statute or regulation, a series of non-waivable, non-transferable, and indefeasible powers concerning the conservation and protection of groundwater.

They may not decline those powers and must exercise them effectively in furtherance of the right of all inhabitants of the country to a healthy and ecologically balanced environment. Within that sector of the public apparatus, or service organizations intended to meet the needs of the community as a whole, one group belongs to the central administration or principal public entity—the State—consisting primarily of certain Ministries or their bodies, while another consists of entities decentralized by function or service—of a technical nature—and territorially—Municipalidades.

1. 1Central Administration.

• a)Ministerio de Ambiente y Energía and its bodies, the Departamento de Aguas and the Órgano Asesor de Aguas.

Article 3°, subsection l), of the Ley Forestal, No 7575 of 13 de febrero de 1996, imposes on the Ministerio de Ambiente y Energía the non-delegable power to delimit aquifer recharge areas (áreas de recarga acuífera)—on its own initiative or at the request of interested organizations, and after consulting the ICAA, SENARA, or any other entity technically competent in water matters.

Article 17, paragraph 1°, of the Ley de Conservación de la Vida Silvestre empowers and authorizes the Ministerio de Ambiente y Energía to “(...) coordinate actions with centralized (sic.) or decentralized entities that carry out agricultural programs for the conservation of soil, water, and forests, in order to achieve the ‘sustainable’ use of wildlife.” This Ministry plays a fundamentally important role in one aspect of water-resource administration: controlling or overseeing the development and use of groundwater to ensure its rational exploitation. The Reglamento de Perforación y Explotación de Aguas Subterráneas (Decreto Ejecutivo No. 30387 of 29 de abril de 2002) provides in section 1° that “Every drilling company must register (...) with the Departamento de Aguas so that it may be issued the license authorizing it to conduct groundwater drilling and exploration activities.” These functions are shared with SENARA and ICAA, since the Departamento de Aguas of MINAE must refer the matter to them so that, respectively, they may issue a technical opinion, assign the well number, enter it in the Registro Nacional de Pozos—SENARA—and determine whether the water-supply sources intended for human consumption would be adversely affected—ICAA—(Article 7°).

This regulation establishes that a drilling permit shall be denied in areas that do not permit rational exploitation of the water resource, such as those declared by the State or another competent institution to be aquifer protection and reserve areas (áreas de protección y reserva acuífera); areas suffering from overexploitation; areas where the aquifer’s maximum exploitation capacity is vulnerable; areas susceptible to saline intrusion, pollution, and other conditions that, in the judgment of MINAE and SENARA, affect the aquifer and prevent its exploitation; and areas where there would be interference with other wells or water springs (nacientes de agua) (Article 10°).

Special mention should be made of the Departamento de Aguas, attached to the Instituto Metereológico Nacional—a body of MINAE—whose relevant functions include the following, pursuant to Article 3° of Decreto Ejecutivo No. 26635-MINAE of 18 de diciembre de 1997:

“a) Define national policies concerning water resources.

• b)Exercise ownership, oversight, control, and administration of national waters.
• c)Process applications for concessions to develop hydraulic power for electricity generation.
• d)Process and authorize permits for drilling wells to extract water. (...)
• J)Register well-drilling companies and water-user associations, as well as changes made to their bylaws and representatives. (...)
• n)Apply the penalties established in the Ley de Aguas, following compliance with due process (...).” The Head of this Department, in turn, has important powers in this area (Article 4°), including the following: a) issuing recommendation reports regarding concessions, transfers, increases in flow, expansions of use, or any other proceeding concerning the use of water resources; b) approving well-drilling permits, etc. Section 5° of the aforementioned decree creates the “Órgano Asesor de Aguas,” composed of representatives from various entities involved in the water sector (ICAA, SENARA, ICE, Universidades Públicas, UNGL, etc.), whose functions include the following (Article 7° ibidem): a) Advising on and recommending policy guidelines concerning water resources, taking into account national and sectoral development plans, water availability, and existing legal provisions; b) Reviewing and issuing an opinion on the water balance (balance hídrico) proposed by the Departamento de Aguas and its administration for each region of the country; and c) Advising the Departamento de Aguas in establishing water allocations for each productive activity and the region in which it is conducted.
• b)Ministerio de Salud.

The powers of this Ministry are limited to enforcing the prohibitions established in sections 275, 276, 285, and 291 of the Ley General de Salud—direct and indirect pollution of surface water and groundwater, and the discharge of industrial or healthcare waste into the sewer system—and punishing violations thereof. It is also responsible for approving urban-development projects (proyectos urbanísticos) when they have adequate sanitary systems for the disposal of excreta, sewage, and wastewater (Article 309 ibidem).

• c)Ministerio de Agricultura y Ganadería.

The MAG actually has a secondary or residual role in this area, since Article 21 of the Ley sobre el Uso, Manejo y Conservación de Suelos No. 7779 of 30 de abril de 1998 imposes upon it, in water matters, the duty to coordinate with SENARA and any other competent institution “(...) the promotion of hydrological, hydrogeological, and agrological research in the country’s watersheds (cuencas hidrográficas), as well as soil-improvement, conservation, and protection practices in those watersheds (...).”

1. 2Decentralized Administration.

• a)ICAA (Instituto Costarricense de Acueductos y Alcantarillados) The Ley Constitutiva del ICAA (No. 2726 of 14 de abril de 1961 and its amendments) assigns it, insofar as relevant, the following powers (Article 2°): a) Direct and oversee everything necessary to provide the inhabitants of the Republic with potable-water service and with the collection and disposal of sewage, liquid industrial waste, and stormwater in urban areas (...) c) Promote watershed conservation and ecological protection, as well as the control of water pollution (...) d) Advise the other State bodies and coordinate public and private activities in all matters relating to (...) control of water-resource pollution (...), consultation with it being mandatory in all cases and compliance with its recommendations being compulsory (...) f) Develop, use, govern, or oversee, as applicable, all public-domain waters essential for proper compliance with the provisions of this law, in the exercise of the State’s rights over them pursuant to law number 276 of 27 de agosto de 1942, for which purpose the Institute shall be deemed the body substituted for the powers assigned by that law to the State, ministries, and municipal governments.” Article 5° of that law, for its part, authorizes ICAA to “c) Acquire ownership of movable and immovable property” and “e) Process the expropriations necessary to fulfill its purposes”; paragraph 2° of that same subsection declares to be of public utility and social interest, and subject to expropriation, “(...) the land necessary for the conservation and protection of water resources, as well as for any structures needed for water capture (captación) (...).” Section 21 of the establishing law grants ICAA the power to approve or reject any project for the construction, expansion, or modification of public or private wastewater and stormwater disposal systems; such approval is mandatory, on pain of nullity, in the case of the construction of subdivisions (fraccionamientos), urban developments (urbanizaciones), or lot divisions (lotificaciones).

Finally, Article 22 of its establishing law provides that “The Instituto Costarricense de Acueductos y Alcantarillado is obligated to defray the expenses required for the conservation, expansion, and security of the forests that serve to maintain water sources on the properties of those Municipalidades where it assumes responsibility for water and sewer services.” Under Article 2°, subsection h), of the Ley de Creación of this decentralized entity (No. 2726 of 14 de abril de 1961 and its amendments), its powers include enforcing the Ley de Agua Potable, No. 1634 of 18 de septiembre de 1953. Article 16 of the latter body of law prohibits installations, buildings, or activities within “areas near supply sources (...) that in any way adversely affect (...) the physical, chemical, or bacteriological conditions of the water; these areas shall be established by the Ministerio de Obras Públicas y Salubridad Pública”—bodies which, as already indicated, were replaced for all legal purposes by ICAA.

Consequently, ICAA is also responsible for defining protection areas for supply sources, such as natural water outlets or springs (manantiales o nacientes), which are a natural form of groundwater discharge. Article 34, final paragraph, of the Ley Forestal assigns responsibility for establishing the boundary lines (alineamientos) of protection areas to INVU. This is, in fact, a power that is not exclusive to either ICAA or INVU, but concurrent or shared, and therefore both public entities have a duty to exercise it.

Article 3 of the General Drinking Water Law, No. 1634 of September 18, 1953, imposes upon ICAA the obligation to “(...) select and locate waters intended for water-supply service (...),” whereby that entity is responsible for preparing a detailed inventory of springs (nacientes) that may be used to provide drinking water (agua de consumo humano) to communities, regardless of whether supply and distribution are handled by a Municipality in a particular canton.

• b)SENARA (Sistema Nacional de Aguas Subterráneas, Riego y Avenamiento).

Although its jurisdiction appears to be limited to irrigation, drainage, and flood-control districts (distritos de riego, avenamiento y control de inundaciones)—physical technical-administrative agricultural units established to achieve their socioeconomic development and defined by Decreto Ejecutivo at the request of this entity (Articles 17 and 18 of its Founding Law No. 6877 of July 18, 1983, as amended)—the fact remains that its enabling law grants it important powers concerning groundwater (aguas subterráneas), which clearly have a nationwide scope and therefore are not confined merely to irrigation districts. This is corroborated by the history of this public entity, since Law No. 5438 of December 17, 1973—which ratified and superseded Decreto Ejecutivo No. 1878-P of July 22, 1972—and which has now been repealed, created the Servicio Nacional de Aguas Subterráneas (SENAS) with a clearly nationwide mandate for planning, research, and advice on all matters related thereto.

Thus, among other objectives, SENARA is charged with seeking the optimal and equitable use of (...) water resources (recursos de aguas)—both surface water (aguas superficiales) and groundwater—in agricultural activities (...) within irrigation districts” (Article 2). Its functions include “Investigating, protecting, and promoting the use of the country’s water resources, both surface water and groundwater,” and “Conducting, coordinating, promoting, and keeping current hydrological and hydrogeological research (investigaciones hidrológicas, hidrogeológicas) (...)” (Article 3, subsections d and e). Article 4 provides that SENARA is responsible for promoting and directing coordination and collaboration with other competent institutions and entities in such matters as the “Prevention, correction, and elimination of all types of water contamination (contaminación de las aguas) in irrigation districts,” the “Preparation and updating of an inventory of national waters, as well as the assessment of their potential use for purposes of utilization in irrigation districts,” and the “Construction and maintenance of the works necessary for the conservation and renewal of aquifers (mantos acuíferos) suitable for agricultural activities in irrigation districts” (subsections c, ch, and f).

The powers of the Board of Directors include issuing resolutions requesting the recovery, expropriation, or purchase of “(...) lands on or beneath which water resources are situated (...)” (Articles 6 and 7).

• c)INVU (Instituto Nacional de Vivienda y Urbanismo).

Article 34, paragraph 2, of the Ley Forestal provides that INVU shall establish the boundary alignments (alineamientos) of the protection areas (áreas de protección) specified in Article 33 thereof, including those surrounding permanent springs, recharge areas (áreas de recarga), and spring aquifers (acuíferos de los manantiales). Additionally, Decreto Ejecutivo No. 25902-MIVAH-MP-MINAE of February 12, 1997, assigns that entity oversight of the “Área de Control Urbanístico,” which encompasses certain districts in the Provinces of San José, Alajuela, Heredia, and Cartago, provided that the Municipal Government has not enacted a Zoning Regulation (Reglamento de Zonificación). Within the “zona de especial protección,” every building must be constructed under strict controls, an Environmental Impact Study (Estudio de Impacto Ambiental) must be approved by MINAE, and a wastewater treatment plant (planta de tratamiento para aguas residuales) authorized by ICAA and the Ministerio de Salud must be constructed to prevent “(...) contamination of the aquifers and the watercourses into which they (sic) discharge.” d) MUNICIPALITIES.

Municipal corporations play a leading role in protecting and conserving groundwater through a series of indirect instruments. Thus, more than 35 years ago, the Urban Planning Law (Ley de Planificación Urbana) (No. 4240 of November 15, 1968), pursuant to Article 169 of the Constitución Política—insofar as they are responsible for “The administration of local interests and services in each Canton”—imposed upon them the duty to enact a regulatory plan (plan regulador) to plan and control urban development, together with the related urban-development regulations (reglamentos de desarrollo urbano) (Articles 15 et seq.). Within that regulatory plan and the zoning regulation, Municipalities must identify reserved areas or zones containing an aquifer or its recharge or discharge area (área de descarga), so that human activities—industrial, urban-development, agricultural, and others—may be regulated, controlled, and restricted therein.

Under the fundamental rights to a healthy and ecologically balanced environment (Article 50 of the Constitución Política) and to human life and health (Article 21 ibidem), and in pursuit of sustainable development (desarrollo sostenible), cantons whose geomorphological characteristics include, within their jurisdiction, lands containing aquifers, their recharge and discharge areas, springs (manantiales), and other springs are particularly called upon and obligated to regulate and govern such matters responsibly, efficiently, and effectively, since groundwater sometimes supplies not only the consumption and use needs of communities within the canton but also those of several cantons, demonstrating a clear supra-local or national interest. The residents of those localities, for their part, must bear the general burden or the limitations and restrictions on the use and utilization of land and water resulting from the designation and establishment of such protected areas, since this benefits them, the residents of the other cantons supplied by waters that flow through the aquifer and emerge or discharge in other cantons, and, of course, future generations.”

XII.The precautionary principle in environmental matters (principio precautorio en materia ambiental) and its application to groundwater. Based on recognition of the right to a healthy and ecologically balanced environment, enshrined in Article fifty of the Constitución Política and Principle fifteen of the Rio Declaration—United Nations Conference on Environment and Development—the so-called “environmental precautionary principle” or “in dubio pro natura principle (principio in dubio pro natura)” has likewise been recognized. Compliance with it requires that all actions by the public administration concerning environmentally sensitive matters be undertaken with the appropriate diligence to avoid serious and irreversible risks and harm. In other words, if there is no certainty that an activity will not cause serious and irreparable harm, the administration must refrain from undertaking that type of activity. It is clear that this principle likewise applies to groundwater extraction (explotación de aguas subterráneas). Thus, in the aforementioned Judgment No. 2004-1923, the Chamber held:

“XV.- PRECAUTIONARY PRINCIPLE OF ENVIRONMENTAL LAW AND PROTECTION OF GROUNDWATER. One of the guiding principles of Environmental Law (Derecho Ambiental) is the precautionary principle, also known as the principle of prudent avoidance (principio de evitación prudente). This principle is embodied in the United Nations Conference on Environment and Development, or Rio Declaration, which states literally: “Principle 15.- In order to protect the environment, States shall broadly apply the precautionary approach according to their capabilities. Where there is a threat of serious and irreversible harm, lack of absolute scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” Within the domestic legal system, the Biodiversity Law (Ley de Biodiversidad) (No. 7788 of April 30, 1998), in Article 11, establishes the following principles as rules of interpretation (parámetros hermenéuticos): “1.- Preventive approach (Criterio preventivo): It is recognized that anticipating, preventing, and addressing the causes of biodiversity loss or threats thereto is of vital importance. 2.- Precautionary or in dubio pro natura approach (Criterio precautorio o indubio pro natura): Where there is a danger or threat of serious or imminent harm to elements of biodiversity and the knowledge associated with them, the absence of scientific certainty shall not be used as a reason for postponing the adoption of effective protective measures.” In this Chamber’s Decision No. 1250-99 at 11:24 a.m. on February 19, 1999 (reaffirmed in Decisions Nos. 9773-00 at 9:44 a.m. on November 3, 2000; 1711-01 at 4:32 p.m. on February 27, 2001; and 6322-03 at 2:14 p.m. on July 3, 2003), this Court held as follows: “(...) Prevention seeks to anticipate adverse effects and ensure the protection, conservation, and proper management of resources.

Consequently, the guiding principle of prevention is based on the need to take and implement every precautionary measure necessary to prevent or contain possible harm to the environment or human health. Accordingly, where there is a risk of serious or irreversible harm—or doubt in that regard—a precautionary measure must be adopted, including postponement of the activity in question. This is because ex post facto enforcement in environmental matters is ineffective, since once socially harmful biological consequences have already occurred, punishment may have moral significance but will scarcely compensate for the harm caused to the environment.” Subsequently, in Decision No. 3480-03 at 2:02 p.m. on May 2, 2003, this Court stated that, “Properly understood, the precautionary principle concerns the adoption of measures not when the facts giving rise to a risk are unknown, but when there is no certainty as to whether such facts will actually have harmful effects on the environment.” In the case of groundwater contained in aquifers and recharge and discharge areas, the precautionary or in dubio pro natura principle means that, when there are no studies or reports prepared in accordance with the unequivocal and precisely applicable rules of science and technology that make it possible to reach a state of absolute certainty regarding the harmlessness of the activity intended to be carried out in relation to the environment, or when such studies or reports contradict one another, the entities and bodies of the central and decentralized administration must refrain from authorizing, approving, or permitting any new application or application for modification; suspend those currently being processed until the uncertainty has been resolved; and, in parallel, adopt all measures aimed at protecting and preserving those waters in order to guarantee the right to a healthy and ecologically balanced environment.

In essence, environmentally sound management of groundwater requires protecting the resource before it becomes contaminated or degraded.” Accordingly, the precautionary principle (principio precautorio) applies insofar as there is uncertainty regarding the harm that may be caused and the mitigation or remediation measures (medidas de mitigación o reparación) that must be implemented, because when there is certainty as to the type or magnitude of the environmental harm that may occur and the measures that must be adopted at each stage, all doubt is eliminated and, consequently, it would be inappropriate to apply the precautionary principle. In other words, the precautionary principle must be applied in situations of reasonable doubt or uncertainty, but not when there is certainty regarding the type of harm and the measures that must be adopted, since the very nature of the principle makes its application unfeasible in such circumstances.

In the case under review, as will be shown in the reasoning of this judgment, the environmental impacts (impactos ambientales) that will arise from the development of the mining project have been established, while the mitigation and compensation measures (medidas de mitigación y compensación) intended to prevent serious and irreparable harm have also been anticipated and approved; therefore, in accordance with the foregoing, application of the precautionary principle is unfeasible. Consequently, given that the Rio Declaration itself recognizes the existence and interrelationship of the precautionary principle and the principle of sustainable human development (desarrollo humano sostenible), it must always be ensured that an appropriate balancing analysis (juicio de ponderación) is conducted so as to allow both principles to be duly respected and applied, and activities to be assessed on the basis of both their environmental impact and their contribution to sustainable human development.

XIII.Protection afforded to so-called transboundary aquifers or watercourses (acuíferos o cursos de agua transfronterizos). Based on the recognition of the right to water as a human right and the protection that must therefore be afforded to water resources (recursos hídricos), the international community has undertaken to define legal instruments that enable the preservation of aquifers located between different countries or flowing from one national territory into another, thereby establishing obligations assumed by States to prevent their actions from adversely affecting another State’s water resources. Thus, the “Convention on the Law of the Non-navigational Uses of International Watercourses,” of veintiuno de mayo de mil novecientos noventa y siete, provides that States undertake to adopt all necessary protection and cooperation measures to prevent such harm to the water resources of other countries that are tributaries to or beneficiaries of the aquifer or watercourse in question. In pertinent part, Articles 5, 6, and 7 of the Convention state:

“Article 5 Equitable and reasonable utilization and participation (…)

2. Watercourse States shall participate in the use, development, and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the duty to cooperate in its protection and development, as provided in the present Convention.

Article 6 Factors relevant to equitable and reasonable utilization 1. Utilization of an international watercourse in an equitable and reasonable manner within the meaning of Article 5 requires taking into account all relevant factors and circumstances, including:

(a) Geographic, hydrographic, hydrological, climatic, ecological, and other factors of a natural character; (…)

(d) The effects of the use or uses of the watercourses in one watercourse State on other watercourse States; (…)

Article 7 Obligation not to cause significant harm 1. Watercourse States shall, in utilizing an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States. (…)” More recently, and specifically with respect to transboundary aquifers rather than merely waters used internationally, the United Nations General Assembly, at its sixty-third session, adopted resolution number 63/124, of once de diciembre de dos mil ocho, entitled “The Law of Transboundary Aquifers,” which incorporates various principles already established in the aforementioned Convention and applies them to this other type of aquifer. For purposes of the case under review, Article 6 of the resolution is particularly instructive; this provision restates a formula similar to that already established in Article 7 of the Convention, providing that:

“Article 6 Obligation not to cause significant harm 1. Aquifer States shall, in utilizing a transboundary aquifer or aquifer system (acuífero o sistema acuífero transfronterizo) in their territories, take all appropriate measures to prevent the causing of significant harm to other aquifer States or other States in whose territory a discharge zone (zona de descarga) is located.” Accordingly, it is clear that these international instruments—which are, as a matter of principle, applicable within Costa Rica by virtue of Article 48 of the Constitution and the scope accorded to the so-called Constitutional Corpus (Derecho de la Constitución)—establish the obligation of States to prevent significant harm that may adversely affect or impact the water resources of another State with which they share border regions, or aquifers that flow from one State into another. In the case under review, this applies to Río San Juan—on the border between Nicaragua and Costa Rica—and the so-called lower aquifer identified in the area of the Crucitas mining project—which flows northwest to southeast from Nicaragua toward Costa Rica.

The provisions of the aforementioned legal instruments must therefore be taken into account when assessing the technical evidence (prueba técnica) submitted to the case record (expediente), in order to determine whether the country has complied with those provisions or whether it could potentially be held responsible for an alleged breach of its international obligations.

XIV.Environmental protection and its relationship to sustainable development (desarrollo sostenible). Rational use of resources. A balance between the country’s development and the right to the environment. Based on Article 69 of the Constitution, insofar as it provides for the “rational use of natural resources,” the Sala has identified the constitutional parameters governing their proper use. Under these parameters, environmental protection must be directed toward the appropriate and intelligent use of environmental elements and their natural, sociocultural, technological, and political relationships—sustainable development—in order to safeguard the heritage to which present and future generations are entitled. Therefore, the primary objective of the use and protection of the environment is that production and the use of technology should yield not only economic gains—freedom of enterprise—but also development and favorable evolution of the environment and natural resources in harmony with human beings, that is, without causing harm or injury. Thus, the Sala has held that:

“[B]oth the right to health and the right to an environment free from pollution, without which the former could not be made effective, are fundamental rights; accordingly, the State is obligated to provide for their protection, whether through general policies aimed at achieving that purpose or through specific acts by the Administration. Sustainable development is one such general policy adopted by the State to expand the opportunities for all persons to fulfill their aspirations for a better life, by increasing productive capacity or by expanding the possibilities of achieving equitable progress between population growth and natural systems. Sustainable development is the process of transformation in the use of resources, the direction of investments, the channeling of technological development, institutional changes, and everything that contributes to meeting present and future human needs” (judgment number 1763-94, issued at dieciséis horas cuarenta y cinco minutos del trece de abril de mil novecientos noventa y cuatro).

The Chamber has stated that the environment must be understood as a development potential to be used appropriately, and that action must be taken in an integrated manner with respect to its natural, sociocultural, technological, and political relationships; otherwise, its productivity will be degraded for the present and the future, and the heritage of generations to come could be placed at risk. The origins of environmental problems are complex and arise from an interrelationship of natural and social processes within the framework of the socioeconomic development model adopted by the country. For example, environmental problems arise when methods of exploiting natural resources cause degradation of ecosystems beyond their capacity for regeneration, thereby harming broad sectors of the population and generating high environmental and social costs that result in a deterioration of quality of life, since the primary objective of using and protecting the environment is precisely to achieve development and progress favorable to human beings.

Environmental quality is a fundamental parameter of that quality of life. Other parameters of no less importance include health, food, work, housing, and education; more important, however, is understanding that although human beings have the right to use the environment for their own development, they also have the duty to protect and preserve it for present and future generations. This is not particularly novel, because it is merely the application to this field of the principle of “injury” (“lesión”), already well established in ordinary law, under which the legitimate exercise of a right has two essential limits: on the one hand, the equal rights of others and, on the other, the rational exercise and beneficial enjoyment of the right itself. Like any other nation, our country has depended and will continue to depend on its natural resources and environment to meet the basic needs of its inhabitants and keep operating the productive apparatus that sustains the national economy, whose principal source is agriculture and, in recent years, technology and tourism, particularly ecotourism.

Soil, water, air, marine and coastal resources, forests, biological diversity, mineral resources, and the landscape constitute the environmental framework without which basic needs—such as living space, food, energy, housing, sanitation, and recreation—could not be met. Likewise, the economy is also closely linked to the condition of the environment and natural resources. Moreover, the goals of sustainable development (desarrollo sostenible) concern human survival and well-being and the maintenance of essential ecological processes—that is, environmental quality and the survival of other species. To speak of sustainable development in terms of meeting present and future human needs and improving quality of life is to speak of individual demand for natural resources and of the direct or supporting means necessary for the economy to function by generating employment and creating capital goods, which in turn make it possible to transform resources into consumer, production, and export goods.

The declaration issued at the 1992 Earth Summit proclaimed and recognized the integral and interdependent nature of the planet; this entails acceptance of certain principles governing the transition from current development models to sustainability. The signatory States, including Costa Rica, undertook, within the framework of preserving sustainable development, to protect human beings above all, based on the principle that every person has the right to a healthy and productive life in harmony with nature; this included the right of present and future generations to have development carried out in a manner that satisfies their environmental and developmental needs; the sovereign authority of States to exploit their resources was retained, while emphasizing their responsibility to ensure that activities conducted within their jurisdiction and control do not cause environmental harm to other States or to areas beyond the limits of their national jurisdiction.

They established the duty of States to cooperate in conserving, protecting, and restoring the environment, as well as their common responsibilities in that regard. Thus, international cooperation to promote and support economic growth and sustainable development will make it possible to address environmental degradation more effectively. A special duty was also imposed on developed countries, based on their responsibility in the pursuit of sustainable development, given the evident pressure that the technologies they develop and the financial resources they possess exert on the global environment—see, to similar effect, judgment of this Chamber number 2004-9927, de las once horas un minuto del tres de setiembre de dos mil cuatro—.

XV.Regarding the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento. As explained in the X recital (considerando) of this judgment, SENARA’s powers extend beyond matters concerning irrigation districts, as they have a national scope arising from its own institutional history. Likewise, article three of the Ley de Creación del SENARA, law number 6877, provides, insofar as relevant:

“ARTICLE 3.- The functions of SENARA are: (…)

ch) To investigate, protect, and promote the use of the country’s water resources (recursos hídricos), both surface water and groundwater. (…)

• h)To oversee compliance with the legal provisions governing matters within its jurisdiction. Decisions made by the Service for that purpose regarding the drilling of wells and the exploitation, maintenance, and protection of waters—whether undertaken by public institutions or private parties—shall be final and mandatorily binding. Nevertheless, such decisions may be appealed within the tenth day on grounds of illegality before the Tribunal Superior Contencioso Administrativo. The Tribunal shall issue a decision within no more than ninety days.” (emphasis added) Thus, by express provision of its enabling law, SENARA has the authority to protect the country’s water resources, and consequently its decisions concerning their exploitation, maintenance, and protection shall be final and mandatorily binding. Article one hundred fifty-seven of the Ley de Aguas—still in force—provides, in turn:

“Article 157.- Municipalities have a duty to consult the Departamento de Agricultura and obtain the corresponding permit from it before conveying, mortgaging, leasing, granting under a crop-sharing arrangement, or independently exploiting any land that they own or acquire when such land contains usable public-domain waters (aguas de dominio público). The Departamento de Agricultura shall determine whether such land falls within the foregoing category and whether its intended use could affect the conservation of waters used by populated communities. The same obligation shall apply to the Juntas de Educación, Juntas de Protección Social and, in general, every public body.” (emphasis not in the original) This statutory provision must be interpreted and applied in accordance with article twenty-one of the Ley sobre el Uso, Manejo y Conservación de Suelos—which establishes that the Ministerio de Agricultura y Ganadería (or Departamento de Agricultura, in the terminology used by the Ley de Aguas) retains secondary or residual jurisdiction over this matter—a provision that clearly states:

“ARTICLE 21.- In water-related matters, the Ministerio de Agricultura y Ganadería shall coordinate with the Servicio Nacional de Riego y Avenamiento and any other competent institution in promoting hydrological, hydrogeological, and agrological research in the country’s watersheds, as well as practices for improving, conserving, and protecting soils within watersheds, in accordance with the powers of the aforementioned Service…” Accordingly, the integrated reading of the provisions cited above establishes that, for the use of public-domain waters, every public entity—without distinction—must obtain the corresponding permit from SENARA, to the extent that duly reasoned decisions adopted by SENARA in this regard shall be final and mandatorily binding. This determination is far from being a rhetorical pronouncement by the Chamber; on the contrary, it derives from a responsible integration of the broad regulatory framework governing the matter, which, as stated, requires the progressive advancement and recognition inherent in the field of human rights, given that the right to water and the right to a healthy and ecologically balanced environment are fundamental human rights.

The Chamber notes that this clarification places SENARA in a particularly significant position regarding the management of the nation’s water resources, which is important in view of the eminently technical nature of this administrative agency. This position must be strengthened and exercised through the necessary and proper interinstitutional coordination among the various entities involved—Ministerio de Agricultura y Ganadería, Instituto Costarricense de Acueductos y Alcantarillados, Secretaría Técnica Nacional Ambiental, Municipalidades, among others. In this regard, attempting to carry out projects for the extraction and exploitation of water resources without the proper authorization and binding involvement of SENARA violates the regulatory provisions protecting the environment, because the necessary technical information for determining the availability and feasibility of using public-domain waters would be lacking.

XVI.Regarding the importance of environmental feasibility (viabilidad ambiental), environmental impact studies (estudios de impacto ambiental), and the procedure to be followed. Recognition of the right to a healthy and ecologically balanced environment, application of the aforementioned precautionary principle (principio precautorio), and the resulting development of environmental protection regulations require compliance with various requirements and procedures that enable the administration to determine the actual impact that the performance of activities and works—whether public or private—may have on the environment and, once the corresponding certainty has been obtained, to authorize or reject their implementation. Thus, the domestic legal system establishes the Secretaría Técnica Nacional Ambiental—SETENA—an administrative agency responsible for granting environmental feasibility for projects once the prescribed procedure has been completed—see article seventeen of the Ley Orgánica del Ambiente—through reasoned decisions containing a detailed analysis of the matter presented.

This Chamber has likewise recognized the conduct of environmental assessments (evaluaciones ambientales) as a guiding principle in environmental matters, meaning that strict observance and application thereof are required to ensure proper protection of the environment. Accordingly, in judgment number 2003-6322, de las catorce horas catorce minutos del tres de julio de dos mil tres, the Chamber held that:

“5.- completion of the environmental impact study (estudio de impacto ambiental) before work begins: This is based on the principle that environmental rules must have a technical foundation, since their application must be based on limits that establish the conditions governing the use and exploitation of natural resources. This is so because, given that environmental damage and pollution can be assessed—such as the presence of toxic substances or external elements that produce adverse environmental conditions, both for biological diversity—including flora and fauna—and, above all, for human life, as reflected in human health or well-being—soil, habitat, air, water, etc.—the impact of these elements requires scientific assessment and treatment. Accordingly, this principle (prior completion of the environmental impact study) constitutes a corollary of the preceding principle, and its completion is especially important for all “[...] human activities that alter or destroy elements of the environment or generate toxic or hazardous material waste shall require an environmental impact assessment (evaluación de impacto ambiental) by the Secretaría Técnica Nacional Ambiental created by this Law.

Prior approval by that body shall be an indispensable requirement for commencing the activities, works, or projects.” (Artículo 17 de la Ley Orgánica del Ambiente, número 7554, de dieciocho de septiembre de mil novecientos noventa y cinco).

Thus, protection of the right to a healthy and ecologically balanced environment requires the State to adopt preventive measures to avoid harm to it; among the principal measures established by the legislature for this purpose are Environmental Impact Studies, which are grounded in the provisions of the aforementioned artículo 17 de la Ley Orgánica del Ambiente. In this regard, it is important to emphasize that, by constitutional mandate—artículo 50—and by Law—artículo 17 de la Ley Orgánica del Ambiente—the general principle is established that every human activity modifying the surroundings shall require an environmental impact study. Accordingly, the characteristics of the project or work shall determine in each case whether the aforementioned technical study is required, rather than the imposition of arbitrary conditions, whether administrative or regulatory (as stated by this Court in sentencia número 1220-2002, de las catorce horas cuarenta y ocho minutos del seis de febrero del dos mil dos).” Constitutional case law requires a prior assessment of the risk that a particular economic activity may cause, which must be conducted using the appropriate technical instrument in each case. In this regard, the Chamber has held:

“d-The environmental impact study as a protective instrument. Rules intended to protect the environment must have a technical foundation, since their application must be based on the conditions governing the use and exploitation of natural resources. This is so because, given that environmental damage and pollution can be assessed, the impact of these elements requires scientific analysis and treatment. Hence the need for an environmental impact evaluation (valoración del impacto en el ambiente), which, as established by the Reglamento General sobre los Procedimientos de Evaluación de Impacto Ambiental, consists of a scientific and technical administrative procedure that makes it possible to identify and predict the effects that an activity, work, or project will have on the environment, quantifying and weighing them to guide decision-making. Under the aforementioned Reglamento, which is decreto No. 31849-MINAE-S-MOPT-MAG-MEIC publicado el 28 de junio del 2004, and which amended decreto ejecutivo No. 25705-MINAE, the environmental impact assessment encompasses three phases: a) an initial environmental assessment (evaluación ambiental inicial), consisting of a procedure for analyzing the environmental characteristics of the activity, work, or project in relation to its location in order to determine the significance of the impact; this preliminary analysis may even result in the granting of potential environmental viability (viabilidad ambiental potencial) (which is temporary), or make such viability conditional upon the submission of other instruments for assessing that impact; b) preparation of the environmental impact study or other assessment instruments, as appropriate.

The environmental impact study is an interdisciplinary document of a technical nature or order that constitutes an instrument for environmental analysis; it must be submitted by the developer of an activity, work, or project before it is carried out and is intended to predict, identify, assess, and correct the environmental impacts that particular actions may cause to the environment, and to determine the environmental viability (license) (viabilidad [licencia] ambiental) of the project, work, or activity under study; and c) monitoring and follow-up of the activity, work, or project through the environmental commitments (compromisos ambientales) established. Environmental viability, in turn, represents a condition of harmonization or acceptable balance, from the standpoint of environmental carrying capacity (carga ambiental), between the development and execution of an activity, work, or project and its potential environmental impacts, on the one hand, and the environment of the geographic area where it is to be implemented, on the other.

From an administrative and legal standpoint, environmental viability corresponds to the act approving the environmental impact assessment process, whether at the Initial Environmental Assessment phase or at the phase approving the Environmental Impact Study or Environmental Management Plan (Plan de Gestión Ambiental), depending on the activity concerned and what it warrants. Pursuant to artículo 17 de la Ley Orgánica del Ambiente, número 7554, de dieciocho de septiembre de mil novecientos noventa y cinco, the activities requiring an environmental impact study approved by SETENA are those human activities that alter or destroy elements of the environment or generate toxic or hazardous material waste. Prior approval by that body shall be an indispensable requirement for commencing the activities, works, or projects. Thus, protection of the right to a healthy and ecologically balanced environment requires the State to adopt preventive measures to avoid harm to it; among the principal measures established by the legislature for this purpose are several technical instruments, foremost among them the Environmental Impact Study, as provided in the aforementioned article, with the characteristics of the project or work determining its necessity in each case…The legislature entrusted the ‘Secretaría Técnica Nacional Ambiental’ with assessments to be conducted by ‘an interdisciplinary team of professionals registered with and authorized by the Secretaría… in accordance with the guidelines prepared by it…’” (sentencia No. 2004-9927)

XVII.Regarding the environmental assessment procedure and the necessary communication, information, and dialogue with the public. Conducting the environmental assessment in the terms described entails compliance with the steps established by law for the actions of the public authorities involved, particularly the Secretaría Técnica Nacional Ambiental. Within this procedure, it is especially important to publicly inform the population that may be positively or negatively affected by the execution of works having an environmental impact, going beyond the mere transmission of information in order to foster a dialogue that provides input before environmental viability is granted. Thus, in the aforementioned sentencia 2003-6322, the Chamber held that:

“11.- citizen participation in environmental matters: Citizen participation in environmental matters encompasses two essential points: the right to information concerning environmental projects, or projects that may harm natural resources and the environment, and the guarantee of effective participation in decision-making on these matters. Accordingly, the Costa Rican State must not only invite citizen participation, but must also promote and respect it when it occurs (Sentencias número 2001-10466, supra cited). It is therefore extremely important to make available to interested parties the relevant information held in public offices, such as information concerning environmental impact studies handled by the Secretaría Técnica Nacional Ambiental, or information required for approval of the regulatory plans (planes reguladores) of the respective municipalities, for example. It was the Convención de Río that, in principio 10, elevated such participation to the status of a principle in environmental matters, stating:

‘Environmental issues are best handled with the participation of all interested citizens, at the appropriate level. At the national level, every person must have adequate information concerning the environment held by public authorities, including information on hazardous materials and activities in their communities, as well as the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access shall be provided to judicial and administrative proceedings, including compensation for damage and the relevant remedies.’ This principle clearly demonstrates the importance accorded internationally to environmental matters and, more generally and above all, to civil society’s participation in decisions of great significance to the community. As Costa Rica is a signatory State, this instrument certainly binds and constrains it, since that is the consequence of its signature, as this Court held in sentencia número 8319-2000, de las diez horas dieciocho minutos del ocho de setiembre del dos mil:

‘Thus, its purpose is to ensure that governmental decisions are the result of a discussion not confined to small official circles or groups with partial interests, but one in which other opinions are considered, with the openness necessary to create a broader debate, while still complying, of course, with the requirements established by the applicable legislation. This does not entail a deconstitutionalization (desconstitucionalización) of the principle of legality governing the Public Administration, although it certainly constitutes a more democratic form of government, one that expands the forums for debate on matters such as environmental protection and thereby opens them to citizen intervention and opinion. We are therefore dealing with an option that is already widely accepted in the evolution of the concept of democracy, and this amparo proceeding (amparo) offers an excellent opportunity to give it clear and effective force so that it does not remain mere rhetoric.

For that very reason, the Chamber has already recognized environmental matters as among those that confer special standing (legitimación especial) upon individuals, recognized as a “right of action” (derecho reaccional) (vid. sentencia 2233-93 y 3705-93 de esta Sala).’ “In environmental law, the procedural prerequisite of standing (legitimación) tends to be extended and broadened to such a degree that the traditional concept must necessarily be abandoned. It must be understood that, in general terms, any person may be a party and that such person’s right does not arise from property titles, rights, or specific causes of action that might be exercised under the rules of conventional law; rather, that person’s participation in the proceedings is based on what modern scholars call diffuse interest (interés difuso), whereby the original standing of the legitimate interested party, or even of a person with a mere interest, is spread among all members of a given category of persons, who are thereby equally affected by the unlawful acts that infringe their rights.

In matters concerning environmental protection, the typically diffuse interest that gives a person standing to bring an action is transformed, by virtue of its inclusion among human rights, into a true ‘right of response’ (derecho reaccional), which, as its name indicates, empowers its holder to ‘respond’ to a violation arising from unlawful acts or omissions.” (see judgment 3705-93) For that reason, through Ley 7412 of 03 de junio de 1994, the Legislative Assembly amended Article 50 of the Political Constitution, guaranteeing every person the right to a healthy and ecologically balanced environment. In this area, therefore, there is standing to report acts that infringe that right and to seek compensation for the harm caused, through effective access to judicial and administrative proceedings. Thus, when the Political Constitution states that the Government of the Republic is popular, representative, alternative, and responsible, it must be clear that citizen participation is not limited merely to exercising the right to vote or aspiring to hold an elected public office; rather, under this new vision, it also requires that people be afforded a genuine opportunity to contribute to the State’s political decision-making, particularly when such decisions are of national significance or might ultimately affect the fundamental rights of certain sectors of the population.

Articles 1 and 50 of the Constitution thus reflect the consideration that citizens deserve in a democratic state, in which they may at least have access to environmental information held by public authorities, as the petitioners indicate. The provision under discussion therefore embodies the cited principle through access to available information and its disclosure, so that decision-making is not confined to a limited group of interests. Indeed, in the matter now under review, our legal system already provides that private parties may request that SETENA hold public hearings (audiencias públicas), so that the positions expressed by communities interested in decisions affecting the environment may be taken into account; this is recognized in the Ley Orgánica del Ambiente and its Regulations, as reported by the respondent authority.” Specifically, the Ley Orgánica del Ambiente recognizes this principle in Articles 6 and 23, which, insofar as relevant, state verbatim:

“Article 6. Participation of inhabitants The State and the municipalities shall promote the active and organized participation of the inhabitants of the Republic in decisions and actions aimed at protecting and improving the environment.” “Article 23. Public availability of information The information contained in the environmental impact assessment (evaluación de impacto ambiental) case file shall be public and available for consultation by any person or organization.” Likewise, the Reglamento sobre procedimientos de la Secretaría Técnica Nacional Ambiental also recognizes this principle in Chapter IV, which governs the public hearing provided for within the environmental impact study (estudio de impacto ambiental) procedure (Articles 35 through 40) and provides for the active participation of both civil society and the municipalities—in their capacity as an entity “[...] composed of all residents of the same canton, who promote and administer their own interests through the municipal government” (Article 1 of the Código Municipal).

A similar provision appears in the Ley de Planificación Urbana with respect to municipal approval of regulatory plans (planes reguladores), requiring the municipality to “1) Convene a public hearing through the Official Gazette and such additional publicity as may be necessary, indicating the venue, date, and time for reviewing the proposed plan and the oral or written comments that residents or interested parties may wish to submit. Notice shall be given no fewer than fifteen business days in advance” (Article 17 of the Ley de Planificación Urbana).

This principle of citizen participation in environmental matters arises from, and is justified precisely by, the codification of the democratic principle enshrined in Article 1 of the Political Constitution. It is important to emphasize that such participation may be achieved individually, through private associations, and also through local governments, which, by virtue of the authority assigned to them under Article 169 of the Constitution, are recognized as having full authority to promote it in matters that may in some way affect the community within their jurisdiction. Indeed, if they fail to do so, they would be neglecting one of the duties assigned to them by the constituent authority and developed in ordinary legislation:

“Municipalities shall promote the active, informed, and democratic participation of the people in local-government decision-making. Public institutions shall be required to cooperate to ensure that these decisions are duly implemented” (Article 5 of the Código Municipal).

It is clear that participation by citizens and municipalities is of paramount importance in raising awareness of environmental problems and assisting the decision-making of institutions responsible for the preservation, oversight, and protection of the environment and natural resources. This principle had already been recognized in the dissenting opinion of Justices Piza, Solano, and Arguedas in judgment number 4423-93, cited above, not only as a right to participate but also as a duty of the community and the municipality in decisions and discussions concerning the location of a sanitary landfill (relleno sanitario) in Esparza. Along the same lines, in judgment number 10466-2000, at diez horas diecisiete minutos del veinticuatro de noviembre del dos mil, the Chamber stated that under no circumstances “[...] may the human being who will experience the effects of governmental decisions on environmental matters be excluded from participating in decisions concerning such matters.” Previously, this Court recognized the importance of local-government participation in this type of proceeding—environmental impact studies—based on the following considerations:

“[...] it is clear to the Chamber that, in environmental impact study and environmental feasibility determination (declaratoria de viabilidad ambiental) proceedings for projects intended to exploit natural resources, municipalities must participate actively; under no circumstances, however, may the municipalities seek to replace the body directing those proceedings—in this case, the Secretaría Técnica Nacional Ambiental. In this specific case, that participation means the involvement of local governments throughout the proceeding; accordingly, their submissions are fully admissible in such proceedings, but only as those of one additional party, which is why they are notified of every action taken within the proceeding. In any event, the procedure established in Articles 35 through 40 of the Reglamento sobre Procedimientos de la Secretaría Técnica Nacional Ambiental, Decreto Ejecutivo número 25.705-MINAE, provides for the participation not only of civil society but, above all, of the municipalities, with which it shall coordinate the holding of the public hearing (Article 36); the municipality, however, acts as a collaborator with the Secretaría Técnica Nacional Ambiental and may under no circumstances seek to make the decisions.

Furthermore, municipal authority regarding the preservation and protection of the environment cannot be limited to organizing the public hearing—which, by law, is the responsibility of the Secretaría Técnica Nacional Ambiental—but extends much further, including raising awareness among municipal residents regarding citizen participation; filing reports, supported by technical evidence, before administrative entities and courts of justice; properly managing garbage and industrial waste; monitoring and conducting inspections to ensure compliance with environmental laws; and pursuing the appropriate legal remedies, such as requesting the suspension of administrative acts deemed harmful to the environment, though not through constitutional proceedings but before the contentious-administrative and civil jurisdiction for Treasury matters (jurisdicción contenciosa-administrativa y civil de Hacienda), among other duties” (judgment number 2001-5737, at catorce horas cuarenta y un minutos del veintisiete de junio del dos mil uno).

In this regard, it is essential that the hearing be held in a place where residents can attend, preferably at the location of the events; otherwise, the hearing ordered by the Administration would fail to accomplish its purpose. Obviously, a lack of resources cannot constitute an obstacle to placing in the case file all the evidence required by the Administration to make a decision on matters of such fundamental importance, since the decision will necessarily have implications for the environment and the community. Likewise, the importance of municipal participation in preparing environmental impact studies has been recognized in the Ley Orgánica Ambiental itself, in the second paragraph of Article 22, which provides:

“Within five business days following receipt of an environmental impact assessment, the Secretaría Técnica Nacional Ambiental shall forward an excerpt thereof to the municipalities within whose jurisdiction the work, activity, or project will be carried out. It shall also broadly publicize, through mass media, the list of studies submitted for its consideration” This highlights that community participation (participación comunal) in environmental decision-making is part of the procedure with which the State must comply and, at the same time, is an integral component of every person’s fundamental right, under the terms established in Article 50 of the Constitución Política. Accordingly, constitutional case law has repeatedly held that the right to be heard (derecho de audiencia) forms part of substantive due process (debido proceso sustantivo) and is a form of expression of participatory democracy (democracia participativa) (in this regard, see, among others, the dissenting opinion of Magistrados Piza, Solano y Arguedas in judgment number 4423-93, de las doce horas del siete de setiembre de mil novecientos noventa y tres; 2331-96, de las catorce horas treinta y tres minutos del catorce de mayo de mil novecientos noventa y seis; 3521-95, de las diecisiete horas tres minutos del diez de julio de mil novecientos noventa y seis; 6640-00, de las nueve horas dieciséis minutos del veintiocho de julio del dos mil; and 10466-2000, de las diez horas dieciséis minutos del veinticuatro de noviembre del dos mil). Regarding environmental information, it has been stated:

“In environmental matters, we must apply this concept of the right to information (derecho de información) from a new perspective: that every individual or community has the right to request information and to be informed by any State entity—information that State institutions may not obstruct—regarding any project that could affect the enjoyment of their right to a healthy and ecologically balanced environment. This, then, is the guarantee that will allow any individual or community, by exercising diffuse interests (intereses difusos) in access to participation, to take part in decision-making processes affecting that right; otherwise, the right would be illusory and the constitutional provision would be superfluous [...]” (judgment number 2331-96, cited supra).

In this particular field, every person must have adequate information about materials and activities or projects that may pose a danger or threat to communities (right to health), and to the conservation and preservation of the environment (right to a healthy and ecologically balanced environment), as well as an effective opportunity to participate in the processes through which such decisions are adopted; because, where the right to the environment is concerned, standing (legitimación) belongs to every human being as such, since harm to this fundamental right is suffered both by the community—as a whole—and by the individual in particular. Accordingly, the Administration must facilitate and foster public awareness and participation by making information available to everyone, not only members of the community but also the general public, since environmental matters have been deemed to involve a genuine diffuse interest (as noted previously in this judgment).” Proper observance of this mandate to adequately inform the public has been clarified and effectively applied in the case law of the Sala, which held in judgment number 2004-13414, de las nueve horas veintinueve minutos del veintiséis de noviembre de dos mil cuatro, that:

“On previous occasions, this Tribunal has addressed consultation with communities (consulta a las comunidades) as part of the administrative procedure for obtaining the environmental impact study (estudio de impacto ambiental), which is a prerequisite for commencing exploitation activities, as follows:

“IV.- ‘...Before analyzing the parties’ arguments, it should be noted that the Environmental Assessment of Projects (Evaluación Ambiental de Proyectos) process is intended to identify, predict, interpret, and communicate to interested parties, in advance, the effect of a project on the environment. It is an administrative procedure for project oversight which, supported by a technical study of the environmental effects of a particular activity, known as an Environmental Impact Study (Estudio de Impacto Ambiental) (a technical document that must be submitted by the project developer or owner), and by a public participation process (trámite de participación pública), allows the competent environmental authority to issue an environmental impact declaration (declaración de impacto ambiental), rejecting, approving, or modifying the project. Article 17 of the Ley Orgánica del Ambiente requires the Secretaría Técnica Nacional Ambiental to assess, before they begin, the environmental impact of human activities that alter or destroy elements of the environment or generate waste or toxic or hazardous materials.

Environmental Assessment (Evaluación Ambiental) involves a series of phases in which the project developer, the competent oversight body (SETENA in the case of Costa Rica), and civil society participate. It begins with the submission of the Preliminary Environmental Assessment Form (Formulario de Evaluación Ambiental Preliminar), a document that must be evaluated by the Grupo de Evaluación Preliminar of the Secretaría Técnica Nacional Ambiental. The environmental assessment instrument required for the activity is then determined, and the developer submits the document that must be examined to determine whether additional information is required. The project developer must provide a bond (garantía), appoint an Environmental Manager (Regente Ambiental), and submit a declaration of environmental commitments (declaración de compromisos ambientales). The project does not obtain an environmental feasibility determination (declaración de viabilidad ambiental) from SETENA until all these stages have been completed; thus, the requirement of Article 17 of the Ley Orgánica del Ambiente may be deemed satisfied only after the entire process has been carried out.

(judgment number 2003-04818 de las diez horas con cincuenta y un minutos del treinta de mayo del dos mil tres).- Accordingly, in this case the appellant is correct in alleging that the communities that could be affected by the granting of the disputed exploitation concession (concesión de explotación) have not been consulted. It is clear that the omitted hearing must, in any event, take place before that Ministerio del Ambiente y Energía approves the environmental impact study. For this purpose, the Administration must provide the communities that will be affected by mineral exploration and exploitation in their area with comprehensive, complete, and truthful information.’” This need to ensure due participation by the public that may in some way be affected by the implementation of projects of this kind has a special basis where the use of water resources (recurso hídrico) is concerned. Based on recognition of the right to water as a fundamental right, the Sala has held that any measure which, because of financial or other interests, prevents a particular community from accessing water to meet its needs must be declared unconstitutional—see judgment number 2001-5217, de las diez horas trece minutos del quince de junio de dos mil uno—such that any action or provision preventing a community from accessing drinking water when the conditions for doing so are met must be declared a violation of constitutionally recognized rights.

XVIII.In conclusion, it is clear that the right to a healthy and ecologically balanced environment affords special protection to biodiversity and groundwater, and therefore, pursuant to the precautionary principle (principio precautorio) in environmental matters, economic activities with an environmental impact must be authorized only when there is scientific certainty that such impact does not pose a risk or threat to the environment. For this reason, the Administration must always conduct the necessary environmental assessment, which must be publicly shared with the affected population, so that, following a rigorous and detailed analysis, the Administration may issue a reasoned environmental feasibility determination. Failure to address and observe these requirements, as defined by legislation and case law, results in a violation of the aforementioned right to a healthy environment; consequently, administrative actions adopted in this manner likewise violate this fundamental right.

XIX.The specific case. Brief description of the Crucitas mining project. The Crucitas mining project complex is divided into three parts: an extraction or open-pit area (área de extracción o tajo), a tailings area (área de relaves), and an industrial administrative area. The gold deposit is located in the extraction area, which is divided between cerro Botija, covering 20 hectares, and cerro Fortuna, covering 30 hectares. The administrative area covers 33.8 hectares and contains the processing plant and a tailings or processed-material disposal area covering 143.8 hectares. The description of the gold extraction process states that ore extracted from the mine will be transported in articulated trucks to the crusher. From the crusher, the ore is carried by conveyor belts to the grinding stage, where it will be crushed and graded by size. In this area, the ore is ground and mixed with water and lime, after which it proceeds to the gold-leaching circuit (circuito de lixiviación de oro), where the gold is dissolved in five steel tanks containing the ore-bearing material together with a cyanide and hydrated-lime solution under strict safety standards; this slurry will be mechanically agitated and will flow by gravity from one tank to another.

The slurry then reaches seven tanks containing activated coconut-shell carbon capable of adsorbing the gold. The gold-bearing carbon is removed from the circuit and pumped to another processing area. All plant areas are enclosed within a type of water-retaining containment structure resembling a large swimming pool, which serves as a secondary containment system whose concrete floors would contain any accidental spill. The following process is provided for cyanide destruction and water recirculation: the residual cyanide slurry will be sent to a cyanide-destruction plant called Cyplus Combinox, whose technology ensures that processed materials sent to the tailings area are free of cyanide or that cyanide is reduced to the minimum levels permitted by law. After the solids settle, water from the tailings area will be pumped back to the processing plant to begin a new production cycle.

XX.Regarding the Crucitas mining project and its comparison with other mining projects previously developed in the country. During the processing of the application for amparo (recurso de amparo) now under consideration, and specifically during the hearing held on doce de noviembre de dos mil nueve, the petitioning parties expressed their concern regarding the mining activities conducted in the country in prior years, which, in their view, have been negative, harmful, and counterproductive from an environmental standpoint. They therefore question what safeguards currently exist or are being offered to prevent the circumstances that occurred in the past from recurring in this new mining operation; their argument may be summarized as follows: if alleged disasters have already occurred, nothing precludes the same circumstances from arising in the new project. In this regard, the Chamber notes that the document entitled “Special Report on Open-Pit Chemical Mining: the Las Crucitas Case,” approved by the University Council of the Universidad de Costa Rica in mayo de dos mil nueve, identifies those mining projects and their adverse impacts.

Thus, with respect to the so-called Macacona mine, it states that this was the first open-pit mine (mina a cielo abierto) to operate in the country, during the 1980s, and that nine years after beginning operations it abruptly abandoned the country without providing adequate compensation for the damage caused. In this case, the Chamber finds that this situation arose at a historical time when the country lacked the environmental regulatory framework—both legal and institutional—that is now in place, a circumstance that in itself makes it impossible to compare mining projects undertaken thirty years apart.

XXI.Similarly, that report also mentions the so-called Beta Vargas mine in Chomes de Puntarenas, which, according to the document itself, operated illegally during mil novecientos noventa y siete and mil novecientos noventa y ocho and, after operating for little more than a year, also ceased its activities; to date, the project remains abandoned. Accordingly, this mine is likewise not comparable to the current Crucitas mining project, since the former was implemented outside any regulatory oversight, whereas the project now under consideration is seeking to proceed within a legal and institutional framework that makes it possible to verify proper compliance with the established environmental requirements.

XXII.The study also mentions the so-called Bellavista mine, identified by the petitioning parties as the most recent and evident example of the adverse impacts of open-pit mining. However, the argument comparing this mine with the current Crucitas mining project is likewise without merit because, as the document itself states, the Bellavista mine was governed from the outset by the Free Trade Zone regime (régimen de Zona Franca), which exempted it from paying national and local taxes. That is not the case with the project of the respondent company because, as will be discussed in the corresponding section, payment of the applicable tax obligations is specifically identified as one of the economic benefits of this new mining activity. The document also refers to alleged adverse impacts—“heavy metals and cyanide-contaminated waters that could be causing pollution,” “possible blockage”—that have not yet been fully established.

This, together with the technical differences between the two projects—the leaching processes (procesos de lixiviación) and cyanide-destruction processes differ, and the disposal of waste rock (material estéril) is different (see the comparative description appearing at folio 4541)—means that one situation cannot be equated with the other in this instance either. The Chamber does not overlook the fact that economic activities conducted without proper regulation and oversight may indeed have adverse consequences for the environment, but it also recognizes that it is untenable to rule out a particular activity based on comparisons with other activities that are plainly not valid benchmarks. What is therefore required is precisely to determine whether, in the specific case of the mining project now under consideration, the requirements established by Constitutional Law (Derecho de la Constitución) for the proper protection of the environment have been met.

XXIII.Legal and factual background (antecedentes jurídico-materiales) of the Crucitas mining project. The respondent company began its exploration phase in the Las Crucitas area in 1993, the year in which it was granted the exploration concession (concesión de exploración). In 1999, it submitted the economic feasibility study, and by resolution of the Secretaría Técnica Nacional Ambiental, numbers 3638-2005-SETENA, at nueve horas veinticinco minutos del doce de diciembre de dos mil cinco, the Environmental Impact Study (Estudio de Impacto Ambiental) was approved and environmental approval (Viabilidad Ambiental) was granted to the Crucitas Mining Project; on seis de diciembre de dos mil siete, the company submitted to SETENA a proposal to modify the mining project, together with the Sworn Declaration of Environmental Commitments (Declaración Jurada de Compromisos Ambientales) and the updated Environmental Management Plan (Plan de Gestión Ambiental) for each phase of the project.

Accordingly, by resolution number 170-2008-SETENA, at doce horas cincuenta minutos del cuatro de febrero de dos mil ocho, the Modification of the Crucitas Mining Project was approved. Subsequently, on veintiuno de abril de dos mil ocho, the Ministerio del Ambiente y Energía, by resolution number 217, at quince horas del día veintiuno de de abril de dos mil ocho, granted Industrias Infinito S.A. the mining concession (concesión de explotación minera)—the matters relating to this concession, processed under expediente 2594 of the Dirección de Geología y Minas, will be examined in greater detail below. Because the Las Crucitas mining project is intended to be developed on land classified as forest, a prior declaration of national benefit (conveniencia nacional) by the Executive Branch authorizing the land-use change (cambio de uso de suelo) was required. Thus, on veintiuno de mayo de dos mil ocho, the respondent company applied to the Sistema Nacional de Áreas de Conservación for a land-use change permit.

The application was processed under expediente AH-O1-PM-003 2008, in which the company was asked to submit the corresponding requirements, particularly the declaration of national benefit by the Executive Branch. The national-benefit decree (decreto de conveniencia nacional) is an exceptional procedure provided for in the Ley Forestal and adopted by the Executive Branch with full knowledge of the impacts and the validity of the proposed compensation measures (medidas de compensación). In this specific case, through Decreto Ejecutivo número 34801-MINAET, at trece horas del trece de octubre de dos mil ocho, issued by the Presidente de la República de Costa Rica and the Ministro del Ambiente, Energía y Telecomunicaciones, the Crucitas Mining Project developed by Industrias Infinito S.A. was declared to be in the public interest (interés público) and of national benefit. Under Article 2 of that Decree, the developer, subject to prior authorization from the appropriate office of the Sistema Nacional de Áreas de Conservación, may proceed with the cutting of trees—even species subject to a cutting ban—and the development of infrastructure works in protected areas (áreas de protección), as indicated in the project.

Article 3, however, provides that the developer must comply with each of the compensation measures set forth in Considerando IX. In addition, for purposes of monitoring and oversight, it must submit a report to the appropriate office of the Sistema Nacional de Áreas de Conservación, which shall in turn certify compliance. The foregoing is legally grounded in Articles 11, 140, subsections 3) and 18), and 146 of the Constitución Política; section 27 of the Ley General de la Administración Pública; Articles 3, subsection m), 19, subsection b), 33, and 34 of the Ley Forestal; and Article 2 of Decreto Ejecutivo 25721-MINAE, dated diecisiete de octubre de mil novecientos noventa y seis. The Decree also bases its declaration on the fact that, according to the Registro Nacional Minero of the Dirección de Geología y Minas, the respondent company has been granted the mining concession by the Ministerio del Ambiente y Energía through the aforementioned resolution number 217; that the Secretaría Técnica Nacional Ambiental—SETENA—granted environmental approval to the Crucitas Mining Project through resolution number 3638-2005-SETENA, at nueve horas veinticinco minutos del doce de diciembre de dos mil cinco; that SETENA subsequently approved modifications to the Project through resolution number 170-2008-SETENA, at doce horas cincuenta minutos del cuatro de febrero de dos mil ocho; and that the Crucitas mining project will bring various economic benefits to the community of San Carlos and the central government.

XXIV.Regarding the preparation of the Environmental Impact Study for the Crucitas mining project. On veinticuatro de enero de dos mil, the Secretaría Técnica Nacional Ambiental received mining expediente number 2594 from the Dirección de Geología y Minas, with instructions that the corresponding Environmental Impact Study be conducted. In response, SETENA, through resolution number 486-2000-SETENA, dated trece de junio del mismo año, informed the Dirección de Geología y Minas that processing the request required the submission of an Environmental Impact Study. It is therefore apparent that the process of preparing that study began at that time. Thus, through resolution number 119-2005-SETENA, dated diecisiete de enero de dos mil cinco, SETENA required the respondent company to submit an annex to the Environmental Impact Study under consideration. This requirement was fulfilled on veintiséis de abril de dos mil cinco and, consequently, the company was required to satisfy an additional series of requirements, including the posting of the environmental bond (garantía ambiental), the appointment of an environmental officer (regente ambiental), and the Sworn Declaration of Environmental Commitments.

The company informed SETENA on treinta de setiembre de dos mil cinco that it had complied with those requirements. Accordingly, through resolution number 3638-2005-SETENA, dated doce de diciembre de dos mil cinco, the Environmental Impact Study and the Annex submitted by the respondent company were approved, and an environmental bond of seiscientos mil dólares estadounidenses was established, to be updated annually based on the number of hectares to be affected during each period—for example, this initial amount of seiscientos mil dólares estadounidenses was established on that date with validity through dieciocho de junio de dos mil ocho. It is therefore clear that an Environmental Impact Study approved by the competent administrative authority does exist and that it established an environmental bond to be updated annually according to the area affected each year. Thus, having established the existence of this study, the next issue is to determine the scope of its coverage in light of the violations alleged by the petitioners.

XXV.Chronological details of the preparation and approval of the Environmental Impact Study (Estudio de Impacto Ambiental) for the Crucitas mining project. Pursuant to Articles 3, 24 subsection ch), 101, and 102 of the Mining Code (Código de Minería), as well as the First Annex to Decreto Ejecutivo No.31849-MINAE-S-MOPT-MAG-MEIC, every exploration permit (permiso de exploración) or mining concession (concesión de explotación minera) requires the prior preparation of an environmental impact study. As reflected in the record—see folio 1318 of volume IV of administrative expediente No. AH01-PM-03-08—and as stated in the preceding recital (considerando), on January twenty-four, two thousand, the General Directorate of Geology and Mines submitted to SETENA a request for review of the required contents of the environmental impact study for the Crucitas Mining Project. In response to that request, SETENA issued resolution No. 486-2000-SETENA of June thirteen, two thousand, stating that its submission had to comply with the terms of reference (términos de referencia) set forth therein; the developer was also notified thereof on June twenty-one, two thousand.

The respondent company submitted that study to SETENA on March twelve, two thousand two—see the first folio of the Environmental Impact Study. Based on the date on which the Study was prepared, it was conducted in accordance with resolution No. 486-2000-SETENA of June thirteen, two thousand, and the 1997 Manual of Technical Environmental Impact Assessment Instruments (Manual de Instrumentos Técnicos de Evaluación Impacto Ambiental), which was subsequently repealed by Article 12 of Decreto Ejecutivo No. 32712 of July nineteen, two thousand five. According to Article 8.3, the guidelines then established for the Environmental Impact Study were:

“i. Identification of impacts and risks: preparation of a preliminary assessment of the environmental conditions in the selected area and initial identification of potential environmental impacts and risks and their causal relationship with the activities inherent to the project, works, or activity to be carried out. An initial identification of possible costs and benefits shall be made.

ii. Selection of study priorities: based on the characteristics of the project, works, or activity (size, location, processes, etc.) and the environmental conditions of the area, the fundamental aspects requiring more detailed study shall be determined.

iii. Description or assessment of the site’s baseline conditions: a more detailed assessment (biophysical, social, and economic) shall be conducted of the area of influence (área de influencia) of the project, works, or activity.

iv. Selection of variables: the variables (biological, chemical, physical, social, and economic) to be used to systematize information concerning the project, works, or activity to be carried out and its potential environmental impacts shall be selected. In addition, the environmental costs and benefits to be used in conducting the economic evaluation of the project, works, or activity shall be estimated.

v. Prediction of potential impacts: the intensity of environmental impacts and risks shall be determined by predicting the future values of the reference variables.

vi. Classification of environmental impacts and risks: the characteristics of potential impacts shall be defined according to, among other factors, the duration, frequency, extent, proximity to the source, reversibility, and probability of occurrence of the impact.

vii. Preparation of an Environmental Management Plan or System (Plan o Sistema de Gestión Ambiental): alternatives shall be identified that make it possible to transform negative impacts into impacts of lesser magnitude or that are more favorable. The investments necessary to implement measures to prevent, mitigate, or compensate for environmental impacts and risks, as well as the economic and social benefits they generate, shall be calculated. This shall include an Environmental Oversight Subplan (subplan de Regencia Ambiental), setting out the actions for incorporating preventive, mitigation, or compensatory measures into the implementation and operation of the project, works, or activity, and assigning the corresponding responsibilities for executing and evaluating the plan.” A format created by SETENA known as OCE—Conceptual Guide for the Preparation of an EsIA (Orientador Conceptual para la Elaboración de EsIA)—was used, and, pursuant to Article 10.2, impacts had to be assessed using the environmental-impact significance matrix (matriz de importancia de impactos ambientales, MIIA).

The study submitted at that time included an executive summary; an introduction addressing primarily the scope of the physical-biological study, the socioeconomic study, and the archaeological assessment, as well as the objectives, methodology, duration, and instrumentation; a general-information chapter—concerning the legal entity, the professional team that prepared it, and the terms of reference for the EsIA conducted—and a project-description chapter covering geographic location, political-administrative location, project summary, applicable legislation, estimated project area and area of influence, development phases, activities to be conducted during each phase, implementation timeline, and activity flowchart—processes—including transportation; size reduction and gravity concentration; leaching and adsorption in a CIP circuit; desorption of gold from carbon; acid washing and carbon recovery; electrodeposition and smelting; cyanide destruction; tailings management and water recycling; infrastructure to be developed; equipment to be used during each phase; resource requirements during operations; waste disposal during each phase; environmental-management system; health and safety—Environmental Protection Plan, Emergency Response Plan, Occupational Health and Safety Plan, Community Impacts and Benefits Plan, Water Management Plan, Tailings Management Plan, and Closure and Reclamation Plan—; contingencies—accidents, malfunctions, and unplanned events such as a tailings-dam breach, pipeline rupture, fires, hazardous-material spills, accidents involving members of the public, occupational accidents, and the discovery of archaeological resources—; consistency with the land-use plan; preliminary financial analysis and economic adjustment—Financial Study—; description of the physical environment—regional geological formations, local geological units, structural analysis and evaluation, geotechnical characterization, geological map of the project area and the indirect area of influence, assessment of potential acid drainage in saprolite, geomorphology, soil characterization, climate, hydrography, air quality (noise), and natural hazards (seismic hazards: sources, history, recurrence periods, seismicity model, maximum probable duration of seismic shaking, maximum acceleration; mass movements, erosion, flooding, and susceptibility map)—; description of the biological environment—flora, vegetation units, pasture with scattered trees, scrubland, secondary growth, disturbed forest, forest plantation, threatened, endemic, or endangered species, indicator species, fauna, and fragile ecosystems—; description of the socioeconomic environment—land use, population characteristics, employment, land tenure, road safety, available basic and emergency services, local perceptions of the project, community infrastructure, historical and cultural sites, archaeological sites, and landscape—; environmental assessment (physical, biological, and socioeconomic environments); impact assessment (methodological aspects, project activities, and contingencies); identification of valued environmental components (componentes ambientales valorados, CAVs); interaction matrix; impact-assessment criteria (quantitative and qualitative); Environmental Impacts During the Project’s Development Phases on the Physical and Biological Environment (air, water, soil, aquatic and terrestrial ecosystems, and Species with special conservation status); Environmental Impacts During the Project’s Development Phases on the Socioeconomic Environment (land use, community infrastructure, community services, quality of life, employment, and the local economy); Environmental Impacts of Contingencies on the Physical and Biological Environment and on the Socioeconomic Environment; Mitigation and/or Compensation Measures; Environmental Management Plan (including costs); Professional Team that Prepared the EsIA; References; and Appendices.

XXVI.By resolution Nº 272-2003-SETENA of March eleven, two thousand three, SETENA informed the respondent company that, at ordinary session Nº 008-2003 of February twenty-five, two thousand three, it had been resolved under Article 38 not to grant the project environmental approval (viabilidad ambiental), because the Environmental Impact Study did not fulfill its objectives, and to close the expediente. On March fourteen, two thousand three, the respondent company filed a Motion for Nullity (Incidente de Nulidad), a motion for reconsideration (recurso de revocatoria), and, in the alternative, an appeal (apelación), against resolution Nº 272-2003-SETENA; by resolution Nº 811-2003-SETENA, issued at fourteen hours twenty minutes on July seven, two thousand three, the Secretariat’s Plenary Commission denied the motion for reconsideration and the Motion for Nullity. Subsequently, in resolution Nº R-569-2003-MINAE, issued at nine hours thirty minutes on October twenty, two thousand three, the Minister granted the Motion for Nullity and the alternative appeal filed by Industrias Infinito S.A., ordering the National Environmental Technical Secretariat (Secretaría Técnica Nacional Ambiental) to return the administrative expediente to the procedural stage at which the Environmental Impact Study had been submitted to SETENA.

XXVII.Thus, on diecinueve de febrero de dos mil cuatro, a list of Environmental Impact Studies (Estudios de Impacto Ambiental) under review by that Secretariat was published in the newspaper Al Día, including Proyecto Minero Crucitas, Expediente 129-2000-SETENA, and granting a period of diez días for any interested party to submit written technical comments; the study was also made available at the relevant Área de Conservación and Municipalidad. On veintinueve y treinta de abril de dos mil cuatro, the members of the Comisión Plenaria toured the Project in question, and on dieciséis de junio del mismo año, an objection submitted by Elí Roque Salas Herrera and Blanca Lidia Vargas Monzón was received within the prescribed period. By resolution Nº 831-2004-SETENA, issued at diez horas cincuenta y cinco minutos del dos de junio de dos mil cuatro, the Comisión Plenaria of that Secretariat, at Sesión Ordinaria Nº 018-2004, held on veinticuatro de mayo de dos mil cuatro, agreed in article 68 to conduct a public hearing (Audiencia Pública) process for Proyecto Minero Crucitas, which was scheduled for treinta y uno de julio de ese mismo año at the Salón Comunal de COOPEVEGA.

On veinticuatro de junio del año dos mil cuatro, SETENA received a letter from Sara Obando Cantón and Elí Roque Salas requesting that the hearing be rescheduled because they believed that the Frente de oposición a la Minería had insufficient time to read and review the environmental impact study; this request was denied through official letter SG-2271-2004-SETENA, dated primero de julio de dos mil cuatro, which clarified that the scheduled date could not be changed because planning work and a series of outreach activities had already been undertaken, making such a change difficult. It was also stated that the record corresponded to the one filed approximately dos años earlier and that the study was therefore already publicly known. On cinco de julio de dos mil cuatro, the resolution calling the public hearing was published in the official gazette La Gaceta, and on nueve de julio del mismo año it was published in the newspapers El Norte, Al Día, Diario Extra, and La República.

Radio and television broadcasts were also made in the Zona Norte to broaden public participation. As part of the information and outreach process undertaken by the developer, on diecinueve de julio de dos mil cuatro an event was held at the Universidad Latina concerning cyanide management in gold extraction, the INCO SO/2 process, and the use and transportation of cyanide. Finally, on treinta y uno de julio de ese año, the public hearing was held, as will be discussed in greater detail below.

XXVIII.Regarding civil-society participation in connection with the Environmental Impact Study for Proyecto Minero Crucitas. In accordance with the preceding recitals (considerandos), before an Environmental Impact Study is approved, community participation must be allowed and secured; such participation must go beyond merely providing information about the activity and the study’s findings and must foster an effective dialogue with society so that its input is received, its inquiries are addressed, and it is afforded effective and equal participation. As stated, in the case of Proyecto Minero Crucitas, the public was informed through a publication in a newspaper with nationwide circulation on diecinueve de febrero that the corresponding Environmental Impact Study for Proyecto Minero Crucitas had been filed with the Secretaría Técnica Nacional Ambiental; on veintiséis de mayo de dos mil cuatro, all parties who had entered an appearance in expediente 129-2002-SETENA were informed that the Environmental Impact Study was available to the public; and through resolution número 831-2004-SETENA, dated dos de junio de dos mil cuatro, a public hearing was convened to review the Study, with notice of the hearing disseminated through various national and regional media outlets.

Thus, on treinta y uno de julio de dos mil cuatro, the public hearing was held at the Salón Comunal de Coopevega de Cutris. The hearing lasted once horas and was attended by the members of the Comisión Plenaria of SETENA—comprising one representative from the state universities, one from the Instituto Costarricense de Electricidad, one from the Ministerio de Agricultura y Ganadería, and one from SETENA itself. It is stated that mil ciento treinta y cinco personas participated in the event, to the extent that más de un centenar de personas had to follow the hearing from outside the hall through an audio and video system, and it is asserted that at least unas ciento cincuenta personas participantes expressed their opposition to the mining project. It is reported that the Environmental Impact Study was presented during a cuarenta y cinco minutos period; the Municipalidad de San Carlos was given quince minutos to participate, and those opposing the project were granted treinta minutos.

Subsequently, ciento nueve preguntas were asked and answered by the respondent company. Thereafter, approximately cien personas were invited to offer comments—not questions—and, finally, the company was given another treinta minutos to address the views presented. On veinte de agosto siguiente, the developer provided SETENA with printed and digital transcripts of the public hearing, as well as a video. Accordingly, it is clear that during the processing of the Environmental Impact Study for Proyecto Minero Crucitas, the Study was duly shared and discussed with the community, thereby satisfying the requirement to provide information and maintain a dialogue concerning the content and scope of the proposed activity and, consequently, complying with the regulations requiring such participation.

XXIX.Regarding the continuation of the processing and approval of the Environmental Impact Study for Proyecto Minero Crucitas. Thus, through resolution 119-2005-SETENA, issued at ocho horas del diecisiete de enero de dos mil cinco, the company was directed, as a condition for continuing the environmental impact assessment (evaluación de impacto ambiental) process, to submit an annex within a maximum period of 6 months containing the following:

“TECHNICAL AND LEGAL ANALYSIS 1. LEGAL COMMENTS:

1.1 Provide an updated certificate of the developer’s legal representation (personería jurídica).

1.2 Provide the cadastral plans (planos catastrados) for the properties on which the project will be developed, duly certified by the Registro de la Propiedad or a Notario Público.

1.3 Provide title certificates (certificaciones de la Propiedad) for the property on which the project will be carried out. If the properties are not registered in the developer’s name, the corresponding authorizations bearing duly authenticated signatures must be provided in order to carry out the project.

1.4 Analyze and interpret the project’s legal status with respect to the International Conventions ratified with Costa Rica.

2-TECHNICAL COMMENTS:

2.1 GEOLOGICAL ASPECTS:

2.1.1 Comments concerning the preparation of the EIS (EsIA) for Proyecto Minero Crucitas · At the preparation stage, the mitigation, prevention, and emergency plans, and generally all implementation plans for the construction and operational phases, are defined only in generic terms. Given the scale of the work and its phased execution, this Secretariat must be provided with specific and detailed plans addressing the initial years of the project’s construction and operation.

2.1.2 The following issues arise from the wording and content of the EIS:

· The detailed design study submitted as an annex was provided in English and therefore has neither been analyzed nor may it be used as information for decision-making.

· The material presented in the EIS for analyzing the stability of the tailings dam (presa de relaves) concerns its design performance under static and dynamic conditions. The effects of erosive agents such as water on the dam’s stability are not analyzed. Because the area experiences heavy rainfall, other potential causes of instability resulting from severe weather and other associated risks must be identified and analyzed.

· The material-borrow sites (sitios de préstamos de material) for the tailings dam and their environmental assessment are likewise not described in detail. Therefore, this must be duly detailed in Anexo.

· Although pages 153-154 identify mitigation measures in the event of a possible failure of the tailings dam, such as containing or reducing the extent of downstream solids migration, they do not specify how this would be achieved without developing additional downstream dams, nor do they address their location, design, construction stage, borrow sites, or, in general, any assessment of their efficiency and effectiveness or their environmental assessment. Therefore, this must be duly explained in Anexo.

· The location of the project’s own landfill (relleno sanitario) is not identified, nor are the modifications it will undergo when the construction phase and mine operations begin specified.

· Although the possibility of a rupture of the slurry pipelines (tuberías de lodos) leading to the tailings dam is satisfactorily addressed, the pipeline transporting slurry from the extraction plots (parcelas de explotación) is neither identified, described, nor analyzed, nor is its possible rupture addressed through contingency or emergency plans. Therefore, this must be duly explained in Anexo.

· The data concerning the generation of acid mine drainage (drenaje ácido de minas) are contradictory; it is therefore unclear whether acid mine drainage will be generated and, if so, what mitigation, prevention, or compensation measures will be taken.

· The rainfall data provided in the EIS for design purposes indicate 450 mm/mes, but data from the Crucitas station, while it was operational, show much higher values, creating the impression that a critical factor used to establish the project’s designs and safety factors has been underestimated. Therefore, the data used in the design must be clearly identified and, if necessary, revised to incorporate the extreme conditions recorded by the Crucitas station.

· The final topography of the open pit (tajo) or the slimes storage area (patio de lamas) has not been defined. Therefore, this must be duly explained in Anexo.

<![if !supportLists]>· <![endif]>The seismic analysis conducted and submitted as part of the environmental impact study (Estudio de Impacto Ambiental, EsIA) defines a 50-year return period for peak acceleration. The Seismic Code (2002) defines a 500-year return period for peak acceleration and specifies that more complex structures, such as bridges or dams, require supplementary or specific studies; therefore, a new seismic hazard analysis must be conducted using a parameter appropriate to the type of project in question. In addition, a soil response study must be prepared to determine the predominant periods and amplification factors (response spectra), thereby establishing the soil’s resonance during seismic events and providing a seismic hazard analysis suited to the scale of the project to be undertaken.

<![if !supportLists]>· <![endif]>Although the power-generation plant is included as a component of the project, it is not environmentally assessed or included in the mitigation, prevention, or emergency plans, or in the proposed monitoring controls. This issue must be adequately remedied.

The following deficiencies may be identified in the preexisting reports:

<![if !supportLists]>· <![endif]>With respect to the direct and indirect areas of influence, the criteria used to define those areas must be explained, since it is the responsibility of the consulting team to determine, based on the nature of the project, whether the direct area of influence (Área de Influencia Directa, AID) is 500 m, larger, or even smaller. It must be considered that a project of this nature entails activities such as the transportation of hazardous substances, construction of tailings ponds, and transportation of products into and out of the area, among others. Furthermore, Sheet 5.4, corresponding to the Map of Areas of Influence, must include the features mentioned in the table on page 60, namely: Quebrada Tamagá (mine), up to its confluence with Quebrada Chamorro; the Microcuenca de la Quebrada Descubrimiento up to its confluence with Caño Crucitas; and the communities of Crucitas, Chamorro, Moravia, El Roble, and Coopevega in the district of Cutris, as well as the communities of Jocote and Llano Verde, because these features mark the boundaries of the defined areas of influence.

<![if !supportLists]>· <![endif]>From page 384 to page 388, the mitigation and compensation measures are summarized in a table; however, it is not practical for conducting the analysis and causes confusion for the analyst. Accordingly, a joint analysis must be conducted of the environmental factors and their interrelationships, the impact caused, and the proposed mitigation measures.

2.2 BIOLOGICAL ASPECT:

The analysis of the biological environment is based on exhaustive lists drawn from bibliographic references dating from 1966. The analysis lacks a consistent field study. It is proposed that the anticipated impacts be mitigated through highly generic proposals.

Likewise, certain compensatory measures are presented, and the recovery of the affected land through natural regeneration and/or forest plantations is proposed. Matters such as the territories of existing species—particularly endangered species such as felines, monkeys, and birds such as macaws, etc.—were not considered, nor were non-woody species included in the lists presented, making it impossible to conduct a genuinely comprehensive analysis of the ecosystem.

Given the type of project and the different biological communities present in the project area, a systemic biological study must be conducted that satisfactorily addresses the foregoing and ensures, with a reasonable degree of certainty, that species—particularly those afforded some degree of special protection, such as endemic or endangered species, etc.—will not be adversely affected, and that the biological communities that will necessarily be affected will be effectively restored. In view of the foregoing, the existing information must be supplemented by specific field studies conducted in accordance with the following guidelines:

<![if !supportLists]>· <![endif]>Conduct a comprehensive inventory of the fauna and flora present in the area to be affected by the project. (The flora inventory must include non-woody plants.)

<![if !supportLists]>· <![endif]>Conduct representative sampling of the areas adjacent to the project area. For this purpose, an indirect area of influence of the project must be delimited based on the fauna species and their habitat requirements, including territorial extent, that are present in or use the Project Area (Área del Proyecto, AP).

<![if !supportLists]>· <![endif]>Conduct a representative study of the status of the populations, both flora and fauna, of species afforded some degree of protection—endangered, threatened, endemic, etc.—within the AP.

<![if !supportLists]>· <![endif]>Given that the Project Area is used by one or more feline species, as stated by the Biologist Manuel Mora at the Public Hearing held; that feline species have considerably large territories; that those species are afforded some degree of protection because they are endangered; and that those species will be affected, directly or indirectly, by the project: Conduct a comprehensive study of those species within the Project Area; conduct a study showing, with a reasonable degree of certainty, how the existing feline populations within the indirect area of influence will be affected, since the felines using the AP will have to move to adjacent sites and establish new territories, which could affect other individuals of the same or other species through new competition. Conduct a study of alternative habitats based on the duration of the project and the effective restoration of the existing habitat. (It must be taken into account that many species will not use the restored habitat until noise, human presence, etc., have reached suitable levels or ceased.)

<![if !supportLists]>· <![endif]>Conduct the same studies stipulated in the preceding paragraph for all species identified within the AP whose territories are sufficiently large—monkeys, macaws, etc.—that they could affect existing populations within the indirect area of influence; include matters related to mitigation measures in connection with feeding and reproductive habits.

<![if !supportLists]>· <![endif]>Propose measures, in the form of a specific commitment, to restore the area that will be affected by metal extraction or other project activities, so that the habitat currently present is restored or improved. In this regard, the commitment and the measures to be implemented must be highly specific and must RESTORE THE HABITAT, NOT REPLACE IT WITH FOREST OR OTHER ECOSYSTEMS.

<![if !supportLists]>· <![endif]>Likewise, conduct a study of the aquatic organisms that could potentially be affected directly or indirectly by the project. Include the concept of “Potential Adverse Effects” in this item; consequently, merely stating that those watercourses will not be affected will not be sufficient.

<![if !supportLists]>· <![endif]>Provide a detailed scientific justification as to why this area may or may not be deforested and subsequently restored effectively. (Do not refer to socioeconomic or legal considerations in this item.)

2.3- FORESTRY ASPECT:

<![if !supportLists]>1. <![endif]>Areas to be disturbed According to the following table, forested areas covering approximately 225.27 hectares must be partially or entirely disturbed. The sites subject to the greatest disturbance will be those known as Cerro Fortuna (60 hectares), Cerro Botija (45 hectares), the tailings area (113.4 hectares), and the reservoir area (7.48 hectares).

Sector Area to be disturbed in hectares Observations Tailings 113.4 Natural and disturbed forest Reservoir 7.48 Undisturbed natural forest Extraction 103.81 Including Cerros Botija and Fortuna, consisting of disturbed forests Clarification ponds 1.03 Plant 0.00 Buildings 0.23 Temporary organic matter and soil stockpile 0.35 TOTAL 225.27 <![if !supportLists]>2. <![endif]>Cerros Botija and Fortuna contain a type of forest showing clear indications that it was subjected to intensive logging approximately 15 or 20 years ago. This is evidenced by the scarcity of commercial trees with a diameter at breast height (diámetro a la altura del pecho, DAP) greater than 60 cm and by the presence of several cut tree stumps, particularly of species such as caobilla, pilón, and others.

<![if !supportLists]>3. <![endif]>The Environmental Impact Study omits precise data concerning the structure, timber volume, and floristic composition of the forests that will be disturbed or removed. Furthermore, the study states that these are secondary-growth forests and disturbed forests but provides no scientific data enabling proper stratification of the areas in which forest cover (cobertura forestal) will be temporarily removed and those in which an actual land-use change (cambio de uso) will occur. This requires expanded field studies involving the standard stratification of undisturbed and disturbed areas within the forests of the AP.

<![if !supportLists]>4. <![endif]>The company must be required to conduct more in-depth studies of the area’s forest cover, following a sequence such as that set out below:

<![if !supportLists]>a. <![endif]>Prepare a zoning map of the areas to be disturbed in order to clearly identify pasturelands, wooded pasturelands, reforestation areas, scrublands, and forests. In the case of forests, they must be stratified to distinguish among primary, secondary, and disturbed forests.

<![if !supportLists]>b. <![endif]>For wooded pasturelands and scrublands to be disturbed, a complete tree-by-tree inventory must be conducted to determine the number of trees of each species to be cut and the volume, in m3, of roundwood to be removed from this type of cover.

<![if !supportLists]>c. <![endif]>For duly stratified forest areas, preliminary sampling must first be conducted at a sampling intensity of no less than 5%. This sampling will provide clear information on the number of trees/ha, volume/ha, basal area of the stratum under study, diameter distribution by species, and floristic composition of the forest stand.

<![if !supportLists]>d. <![endif]>Using the data obtained, forestry professionals will be able to classify the types of forest to be disturbed or removed, because the State Forestry Administration already has parameters enabling this differentiation.

Furthermore, the floristic composition obtained will make it possible to determine whether threatened or endangered flora species are present within the cutting area, in which case specific recommendations must be proposed for their protection and propagation.

<![if !supportLists]>e. <![endif]>The different types of forest identified—primary, secondary, or disturbed—duly located on a map at an appropriate scale and whose removal is strictly necessary, must undergo a complete forest inventory, tree by tree, beginning at 30 cm DAP or at the Minimum Cutting Diameter established by the corresponding MINAE Conservation Area. This is because any eventual cutting authorizations or official permits are based on species, number of trees, and total volume in cubic meters of roundwood.

f. The volumetric data obtained for the floristic composition will provide the basis for the restoration programs that must be implemented in terms of areas and species. At the various forums held concerning the project, it has been stated that 336 hectares will be reforested as a compensatory measure; however, this figure may be sufficient or insufficient until clear data are available on the volume of the affected forest stand.

g. The forest inventory must be conducted in such a way as to provide exact data on the number of trees to be cut, by species, and their volume in m3, for each annual operating block (21 hectares), because the official logging permits might be issued annually.

5. It must be borne in mind that the removal of certain forest areas by the project would constitute land-use change (cambio de uso del suelo). In other areas, however, it is planned that, when extraction begins in the next 21-hectare block, progress would be made on the technically controlled and approved restoration of the preceding block. Accordingly, using the data obtained from the sampling, forest inventories, and floristic composition, the company must submit a forest management plan (plan de manejo forestal) that guarantees adequate restoration of the areas to be affected, in terms of the volume and representation of the forest species present in the project area (AP), as well as compensatory measures for those areas involving permanent land-use change.

2.4—SOCIAL ASPECT:

With regard to the mitigation measures proposed on page 380, they are generally presented as a descriptive list and not necessarily as specific corrective actions to mitigate the impacts:

2.4.1 Item 34 states that forums for participation by company and community representatives will be promoted; however, it must specifically indicate the actions through which such participation will be promoted.

2.4.2 On the same page, measure 37 must indicate what the business training program for residents of neighboring communities consists of or how it would be implemented, since it is stated as an intention and must instead be a specific measure. Likewise, the specific concrete actions needed to achieve the objective set forth in measure 38 must be indicated.

2.4.3 In addition, a detailed analysis of the following aspects must be conducted:

· Evaluate population dynamics before, during, and after the project.

· Estimate the post-project social conditions.

· Propose post-project social measures.

· Diagnose and estimate the population’s quality of life before, during, and after the project.

· Evaluate and propose measures relating to public safety.

· Evaluate social conflicts and propose solutions.

· Quantify the direct employment generated for residents of the area.

· Propose specific socioeconomic measures to mitigate post-project conditions in accordance with the results obtained from the analysis of the items requested above in this Resolution.” On veintiséis de abril de dos mil cinco, the respondent company submitted to SETENA the requested annex, which was approved; by Resolution 2237-2005-SETENA, dated treinta de agosto de ese mismo año, it was ordered to post the environmental bond (garantía ambiental), appoint an environmental officer (responsable ambiental), submit a minute book to be authorized as a logbook (bitácora), and attach the Sworn Declaration of Environmental Commitments (Declaración Jurada de Compromisos Ambientales), all of which was submitted by the developer on treinta de setiembre de dos mil cinco. Finally, by Resolution No. 3638-2005-SETENA, issued at nueve horas veinticinco minutos del doce de diciembre del dos mil cinco, environmental approval (viabilidad ambiental) was granted to the mining project under review for a period of dos años within which extraction was to begin—see pages 1313 and 1318 of volume IV of administrative expediente No. AH01-PM-03-08-.

XXX.Having stated the foregoing, it must be noted that SETENA, as the technical body competent to determine the environmental approval of Proyecto Minero Crucitas, required, in accordance with the parameters in force at that time—namely, doce de marzo de dos mil dos, when the Environmental Impact Study (Estudio de Impacto Ambiental) was submitted—compliance with its technical and legal requirements, as evidenced by and apparent from all the proceedings described above. In this regard, this Court has unanimously and emphatically held in repeated decisions that it is not a technical body with jurisdiction to determine whether or not an environmental impact study meets professional requirements; the Chamber has stated:

“...Accordingly, it must be made clear that this Court is not a technical body with jurisdiction to verify whether an environmental impact study was properly prepared, particularly when the professionals who challenge it themselves state that it must be reviewed more thoroughly (page 371), while the respondents dispute the assertion that the challenged study was only partially reviewed (pages 469 and 470). SETENA, the entity responsible for such verification, determined that it does contain the information necessary to assess and predict the impact that construction of the tunnel would have on the area and therefore approved it. In any event, if the appellants believe that the study did not include all appropriate measurements or consider every relevant aspect, that matter must be resolved before [SETENA], the body possessing technical expertise in this field.” (Judgment No. 2004-9927) “...It was precisely these entities—particularly SETENA—which are responsible for reviewing such studies, that determined that they contain the information necessary to assess and predict the impact of the mining project on the area, and the project was therefore approved, with environmental approval and the other permits cited in the preceding recitals being granted.

In any event, if the petitioners believe that the studies were not properly conducted or consider that they did not address all necessary aspects—because they were prepared by private companies hired by the concessionaire—that is a matter that must be resolved by the bodies possessing expertise in the technical aspects of this field, and not before the constitutional jurisdiction, because it is an issue beyond the scope of its authority.” (Judgment No. 2005-5790) Consequently, in view of the foregoing and finding no reason to depart from this position, it must be noted that what is relevant for purposes of this jurisdiction is that the studies required by our legislation have been conducted and that, after their review by the appropriate official technical professionals, a determination is made as to whether the project is environmentally viable, taking into account in advance the potential environmental impacts and their assessment, mitigation, and compensation.

XXXI.Regarding the technical aspects considered in the Environmental Impact Study for the Crucitas mining project. The Environmental Impact Study approved by the Secretaría Técnica Nacional Ambiental for the Crucitas mining project—prepared in accordance with Decreto 25705-MINAE, entitled “Procedimientos de SETENA”—is a 437-page document that includes, among other matters and as already indicated in the preceding recitals, the following technical aspects: the project’s situation with respect to earthquakes; average annual precipitation; the project’s area of influence; the project’s total area and impact zones; the tailings (relaves) that will be produced; the condition of the tailings-pond dike; contingencies and risks associated with a potential failure of the tailings pond and dam; the water to be used in the process; how the extracted materials will be disposed of; closure plans for each phase; the region’s climatic conditions; the area’s hydrography; air quality; natural hazards to the project; the biological environment in the project’s impact areas, with particular emphasis on and details concerning the flora and fauna species found in the area—expressly stating that there are no endemic plant species in danger of extinction and that there are areas of disturbed forest (bosque intervenido); a description of the socioeconomic environment; the environmental assessment of the physical and biotic environments; and mitigation and compensation measures.

It likewise considers the assessment of impacts relating to contingencies; water quality; failure of the tailings dam; pipeline ruptures; hazardous-material spills; and land-use capability (capacidad de uso de suelo). In this regard, it is clear that the Environmental Impact Study evaluated and approved by SETENA is a comprehensive document that considers and assesses various elements that could be affected by the proposed activity. The approval of this study by the corresponding administrative authority establishes that the Administration had the opportunity to assess the various aspects considered therein and concluded that, under the proposed terms, the activity under review may be carried out.

XXXII.Regarding the Proposed Modification to the Crucitas Mining Project. Environmental viability (viabilidad ambiental) having already been granted to the project, and taking into consideration a series of external factors for which modification of the initial project was deemed advisable—the domestic legislation of the developer company’s country of origin, the international price of an ounce of gold, and the company’s economic feasibility—on December 6, 2007, the respondent company submitted to SETENA what it called the “Proposed Modification to the Crucitas Mining Project,” attaching thereto the Sworn Declaration of Environmental Commitments (Declaración Jurada de Compromisos Ambientales), which includes the updated Environmental Management Plan (Plan de Gestión Ambiental) for each stage of the project and the Monitoring Plans (Planes de Monitoreo)—folio 1292 of volume IV of expediente No. AH01-PM-03-08—.

The Proposed Modification was prepared by professionals in Architecture, Forestry Engineering, Biology—specialists in Mammalogy, terrestrial ecosystems, herpetology, entomology, botany, and restoration of aquatic habitats—Geology, Hydrology, Sociology, and Geography. The document consists of a Rationale, Introduction, Geographic location, Political-administrative location, Proposed changes to the project, Comparative table of the project in relation to the proposed changes, Description of the environment—Physical environment, Biological environment, Socioeconomic environment—Impact identification—Project activities, Identification of assessed environmental components, Interaction matrix—Assessment of environmental impacts during the construction, operation, and closure phases; Mitigation and/or compensation measures during those same three phases; and Summary table of the environmental management plan.

Drawings were also submitted showing the Project location, Project components, Tailings management, and Water-intake location, together with an appendices chapter that includes the EXPLOTEC Blasting Procedures Manual, a Study of local knowledge and perceptions of the hard-rock mining method, and Recommendations for an Ecological Restoration Plan for the Artificial Lake and Tailings Pond of the Crucitas Mining Project. Its preparation included updates to the following studies conducted in 2007:

<![if !supportLists]>§ <![endif]>Fernando Nietzen Rovira, 2007: Update of geological conditions and natural hazards in the Crucitas Mining Project area.

<![if !supportLists]>§ <![endif]>Hugo Rodríguez Estrada, 2007: Update of hydrogeological conditions in the Crucitas Mining Project area.

<![if !supportLists]>§ <![endif]>Luis Carlos Paniagua Carvajal, 2007: Update of hydrographic and climatic conditions in the Crucitas Mining Project area.

<![if !supportLists]>§ <![endif]>Rolando Barrientos Saborío, 2007: Forest Inventory and Management Plan for the Crucitas Mining Project.

<![if !supportLists]>§ <![endif]>Tania Bermúdez Rojas, 2007: Non-woody plants in the Crucitas Mining Project area.

<![if !supportLists]>§ <![endif]>Mónika Springer and Danny Vásquez Acosta, 2007: Update of the biological study of the Crucitas Mining Project area, with emphasis on aquatic macroinvertebrates.

<![if !supportLists]>§ <![endif]>Mario Espinoza Mendiola, 2007: Description and ecological assessment of the fish fauna. Baseline report for the environmental impact assessment (evaluación de impacto ambiental) of the Crucitas Mining Project. (see chapter 3) According to the data provided in chapter 3.3 of the Proposal—concerning the socioeconomic environment—the change in the mining method proposed by the company has not generated negative attitudes among the population; on the contrary, the communities believe that, in addition to having less environmental impact because it significantly reduces the mining area—and therefore reduces the area from which forest cover (cobertura boscosa) must be removed—this method will create more jobs, thereby improving the quality of life of populations near the site. The hard-rock mining method was widely publicized among the local population, as the company promoted a process for disseminating and analyzing the characteristics and effects of that mining method; this information has been available to all sectors of the seven communities comprising the project’s area of influence—details of this community outreach appear below in the analysis of some of the proposed changes—.

XXXIII.General considerations regarding the project modification and related changes. The proposed modification to the mining project may be summarized as follows. The extraction area is reduced from 126.4 hectares to 50 hectares, which represents a 60% reduction in the area for which environmental viability has been granted, while also reducing the number of trees to be cut from 7,409 to 2,942 trees—that is, 60% of the trees originally planned will not be cut. With respect to soil restoration or forestry matters, the proposal calls for reforesting 382 hectares, compared with 336 hectares under the initial project, using native species grown in the project nursery—commercial species such as Melina or Teca were previously to be planted—; thus, as compensation for the areas that will remain as ponds—the tailings pond and Lago Fortuna—this reforestation of 382 hectares of pastureland will constitute compensation equivalent to 57% of the total water-surface area that will remain in the zone.

As a result of the proposed change, the project’s useful life will increase by two years, producing an economic benefit for the communities and the Cantón de San Carlos, which will be reflected in tax revenues and in the company’s continued support for the socioeconomic commitments it began undertaking even before the construction phase. Regarding employment, the construction phase will generate a 144% increase, since under the previous model one hundred twenty-three people were expected to be hired, whereas three hundred people will now be hired; during the operating phase, direct employment will increase by 67%, since two hundred fifty people will be hired instead of one hundred fifty. A positive change in economic matters is also reported, since during mine production approximately ¢2,369 million colones per year will be paid in Income Tax; ¢515 million colones per year in payments to the Caja Costarricense de Seguro Social; and ¢474.8 million colones per year in the mining tax—established in the Código de Minería—which corresponds to 2% of gross sales and must be divided into equal shares, namely 1%, corresponding to ¢237.4 million colones per year, for the Municipalidad de San Carlos, and the other 1% for the Asociaciones de Desarrollo in the area. All of this is in addition to payments of fees and license taxes, among other items—see chapter 2, Introduction—.

XXXIV.Assessment of the environmental impacts of the proposed modification. Chapter five of the Proposed Modification to the Crucitas Mining Project contains the assessment of environmental impacts on air, water, soil, aquatic and terrestrial ecosystems, quality of life, employment, and income. It specifies that air shows a moderate positive impact of +50 with respect to the reduced need to transport supplies and workers, and a severe positive impact of +57 resulting from the reduction of the extraction area. Regarding water resources, it identifies a moderate negative impact of -37 due to the number of workers during the construction phase, but also a severe positive impact of +60 resulting from the reduction of the extraction area. Regarding soil, it reports a moderate positive impact of +45 because the camp will be located within a smaller area currently consisting of pastureland, as well as a severe positive impact of +69 resulting from the reduction of the extraction area.

Aquatic systems also show a severe positive impact of +51 due to reduced sediment transport, while terrestrial ecosystems show a moderate positive impact of +43, likewise resulting from relocation of the camp and use of the original site for natural and assisted-regeneration plans, and a severe positive impact of +67 from reducing the area affected by tree cutting. With respect to quality of life, a moderate positive impact of +50 is identified due to worker safety and their access to the services to be provided; a moderate positive impact of +50 because an area with forest cover will remain undisturbed; and a severe positive impact of +68 because a solution to unemployment in the area will be provided. A severe positive impact of +68 is also established with respect to employment and income because of the creation of direct and indirect jobs, as well as the training programs provided by the Instituto Nacional de Aprendizaje under an agreement signed with the company and the programs promoting small and medium-sized enterprises in the area.

XXXV.A similar exercise is repeated for the assessment of impacts during the operating phase. In this case, a moderate negative impact of +29 on air is identified due to the limited impact of possible gas and particulate emissions resulting from the use of explosives, but a critical positive impact of +76 is identified because the project will not require the operation of a fuel-powered electricity-generation plant. Regarding water, a moderate negative impact of -49 is reported due to the possible intersection of the lower aquifer during excavation; a moderate negative impact of -43 due to the existence of the tailings pond; a moderate negative impact of -39 due to the increased number of employees; and a moderate positive increase of +49 due to the elimination of the electricity-generation plant. Aquatic ecosystems would show a moderate negative impact of -45 due to the disposal of waste rock in the tailings pond; a moderate negative impact of -44 due to the increase in the workforce; and a moderate positive impact of +47 due to the elimination of the generation plant.

Terrestrial ecosystems, in turn, show a moderate negative impact of -38 due to the controlled use of blasting; a moderate negative impact of -45 due to waste-rock management; a moderate negative impact of -37 due to the increased demand for labor; and a moderate positive impact of +40 due to the availability of a larger area for regeneration, which also generates a moderate positive impact of +40 on land use. A critical positive impact of +77 is identified with respect to community infrastructure and services, including the installation of an electricity-distribution network. Quality of life shows a moderate negative impact of -48 due to worker safety and occupational-health matters, but there is a severe positive impact of +66 due to the elimination of the possibility of generating acid drainage; a severe positive impact of +68 is also identified due to job creation, as well as a moderate positive impact of +40 resulting from the increase in the mine’s useful life—which entails increased payments of taxes and employer-employee social-security contributions, among other items—; there is a critical positive impact of +78, again due to the elimination of the electricity-generation plant, and a moderate positive impact of +40 due to the existence of a larger reforestation area. Regarding employment and income, a severe positive impact of +68 is identified due to the increase in direct employment.

XXXVI.The technical closure phase (fase de cierre técnico) of the project was also assessed in socio-environmental terms. Thus, with respect to water, a moderate positive impact of +49 was found due to the elimination of the possibility of impacts on water resources; meanwhile, the soil shows a moderate negative impact of -42 due to the formation of Fortuna Lake, but a severe positive impact of +58 due to regeneration with native species. Aquatic ecosystems also show a severe positive impact of +67 due to the potential of Fortuna Lake and the tailings pond (laguna de relaves), as well as a severe positive impact of +64 due to regeneration with native vegetation around these bodies of water. Terrestrial ecosystems, for their part, show a moderate negative impact of -41, precisely because of the formation of a lake that did not previously exist, but a severe positive impact of +61 from the creation of ideal conditions for vegetation regeneration. Land use (uso de suelo) also shows a moderate negative impact of -42 due to the formation of the lake, but a critical positive impact of +80 due to reforestation with native species.

XXXVII.It is therefore evident that the Proposed Modification (Propuesta de Modificación) of the Crucitas mining project does include an accounting of socio-environmental impacts, costs, and benefits, assigning each item specific scores that are taken into account by the Administration when adopting the corresponding technical decisions.

XXXVIII.Regarding the mitigation measures (medidas de mitigación) proposed in the Proposed Modification. Chapter 6 of the Proposal addresses which mitigation or compensation measures will be implemented as a result of the project modification. During the construction phase, the document states that the overflow spillway of the tailings pond will be built in an area distant from the discharge point of the pipes carrying the tailings from the cyanide destruction plant, in order to establish a water-clarification area that will help reduce the level of total suspended solids in the effluent; this spillway will be built as an overflow tower like those implemented in hydroelectric projects such as Arenal, from which the water will be conveyed through pipes to a lime-addition plant for constant monitoring and, if necessary, pH stabilization. However, this impact is not expected to be significant because the final forecast for the quality of the overflow water is considered appropriate and within national discharge standards.

It further states that the facilities for the emergency power-generation plant and related components will have adequate ventilation through the installation of windows and fans that promote horizontal air circulation; that compensation activities for the affected forest areas and secondary growth will include induced regeneration over the largest possible area using native species, giving priority to threatened forest species or species with reduced populations, in order to compensate for the ecological value of the affected land. To that end, by that time the company had already begun establishing a temporary nursery containing native species—currently in operation, as was verified during the Inspection conducted on twelve September two thousand nine—which are extracted from the understory of the future open-pit areas, with the aim of developing forest areas with the same native species and the same distribution of biodiversity as exists in the future extraction areas.

The nursery has a population of approximately 45,000 native trees, and more than 11 hectares have already been reforested to date, even though the construction phase has not yet begun, because the intention is to begin restoring pasture areas and strengthening the portion of the biological corridor that was proposed and approved in the environmental impact study (Estudio de Impacto Ambiental, EsIA) and its Annex. It is also contemplated that land-preparation activities involving the cutting of vegetation must follow measures requiring biomass to be transported in dump trucks covered with tarpaulins to the designated site or authorized spoil-disposal area (escombrera), as well as the prompt transfer of timber and biomass to the temporary storage site. The Proposal also calls for the continuation of projects and programs to improve the population’s quality of life, including programs promoting sports and other wholesome recreational activities, such as those already established with the Escuela de Fútbol Crucitas, sponsorship of the Asociación Deportiva San Carlos, the Vuelta Ciclística a San Carlos, and the Cabalgatas, while continuing to assist in dealings with the relevant authorities concerning the expansion and improvement of the aqueduct supplying the communities of Coopevega, Moravia, Chamorro, El Roble, Llano Verde, Jocote, and Crucitas.

Likewise, it calls for the continued promotion of feasible productive activities in the area that involve members of the communities within the project’s area of influence, as well as the continued development of a business, technical, service-sector, or other training program for residents of communities within the project’s area of influence. It likewise refers to the development of training programs called Community Development Projects (Proyectos de Desarrollo Comunal, PCDC), intended for members of the development associations of communities within the project’s area of influence, members of the District Councils, and members of the Municipalidad de San Carlos; the continued development of effective communication channels and strategies with the communities to keep them informed of project activities; the creation of a citizen-service office to serve as a center for receiving comments, opinions, and problems associated with project implementation and to provide a formal information and communication mechanism; and compliance with all other social commitments established and approved in the Environmental Impact Study and its Annex.

XXXIX.Moreover, the Proposed Modification itself provides an account of the social benefits obtained through November two thousand seven, among which the most notable are training activities for small and medium-sized enterprises, as well as training in various trades through courses offered pursuant to agreements entered into between the company and the Instituto Nacional de Aprendizaje. It states that, by that time, two hundred thirty-two certifications had been awarded in aquaculture, computer courses, organic agriculture, cheese-making in two different locations, fabric painting, garment manufacturing, and textile-machine operation, among others. It also describes the installation of the computer laboratory at the Liceo de Coopevega—which gives students access to computer courses—the establishment of a textile business, and other productive initiatives, such as organic agriculture and the creation of a cooperative for residents of Coopevega.

XL.- Likewise, the Proposal also sets forth the mitigation or compensation measures to be implemented during the mining project’s operational phase. It states that all topsoil (suelo vegetal) removed from the extraction areas must be properly transported to the soil-deposit site, where all necessary measures will be applied to ensure its proper storage so that its original condition is preserved to the greatest extent possible and it can be used without major difficulty in the subsequent restoration of areas affected by the project’s various components. It also states that, when forming slopes in hard rock, the vertical separation between benches is estimated at twenty meters and that, when the rock quality is favorable, the wall angle may be 70º; these dimensions were derived from the slope-stability study conducted. In addition, the condition of the rock and saprolite will be continuously monitored as extraction progresses to verify the dimensions or modify them if necessary; the objective is to ensure adequate stability.

It likewise states that appropriate explosives controls will be implemented by applying and monitoring the protocol governing the transportation, storage, and use of explosives and by hiring a company with expertise in the field that holds all current permits and protocols; it notes that vibrations, noise, and emissions will be monitored in the open-pit areas. It states that the reforestation work already begun with native species in pasture areas and areas not used by project components will continue. To eliminate the potential for acid drainage generation, the tailings and waste rock (roca estéril) must be deposited in the pond so that they remain submerged beneath a water column with an average depth of two meters, thereby preventing their exposure to air and eventual oxidation. Management will be carried out using a mobile floating pipe that distributes the material evenly in the western portion of the pond; the waste rock will be deposited mechanically and immediately, without storage, in the eastern portion, with controls to ensure that it remains submerged.

In addition, excess saprolite will be used to reinforce the covering of the tailings dam and to cover the waste rock in the storage area and on the slopes of the extraction pits, thereby inhibiting oxidation. If possible, a layer of inert tailings derived from barren material will be deposited at the end of the operational phase to form a sealing layer over the remaining tailings and material with the potential to generate acid drainage. Waste rock must be deposited in the pond in the same manner as the tailings. A Waste Rock Management Plan (Plan de Manejo de Roca Estéril) must be designed to minimize the time spent handling, hauling, and exposing this material. The tailings-pond spillway, for its part, will be located as far as possible from the tailings discharge site in order to establish a water-clarification area within the pond that will reduce the level of total suspended solids in the effluent.

The tailings-pond spillway will be constructed as an overflow tower located in the water-clarification area. This tower must be designed to maintain an optimal water level that ensures the proper operation of the tailings pond throughout its useful life. Water will be conveyed from this tower through pipes to a lime-addition plant in the highly unlikely event that the effluent requires pH stabilization before discharge, for example through the addition of diluted lime. Water from the mining pits will be treated on site through the addition of lime for pH stabilization. This treated water, which will have high pH levels, must be pumped to the waste-rock deposition area in the tailings pond, where it will help stabilize any low pH levels resulting from the oxidation of unsubmerged rock.

XLI.- Likewise, the Modification Proposal refers to the mitigation and compensation measures to be implemented during the closure phase of the mining project. Thus, it states that the final shaping of the slopes (taludes) in the backfilled area of the Botija open pit must not only seek the most suitable stability conditions, but must also approximate the site’s original configuration as closely as possible. To that end, once the slope-shaping and topsoil application activities have been completed, the Botija extraction area will be reforested with native pioneer species; the reforestation plan will then continue with native species. During mine closure, continuous monitoring of water quality in the treatment plant effluent must be implemented until it can be ensured that the system will remain stable indefinitely. Once the expected conditions of water stability and other related variables have been achieved in the tailings pond (laguna de relaves) and the lake in the Fortuna extraction area, all recommendations established in the Aquatic Environment Ecological Restoration Plan prepared for the project by the company Hábitat Crítico will be implemented.

These measures notably include the following: a) revegetating the littoral and riparian zones of Lake Fortuna and the tailings pond with plant species whose life habits are aquatic, amphibious, or associated with wet environments, so that they may become established in the project area according to their affinity with water; b) before introducing species, conducting survival trials of various species under the prevailing conditions in the tailings pond and Lake Fortuna; the selected species must be native to the region or have a geographic distribution that includes the northern slope; c) preparing a research plan and the experimental designs to be implemented both in the laboratory and in situ; d) modifying the bench (grada) located near the expected lake-elevation contour with a design that includes a gentle slope to create heterogeneous bathymetry, but with a basic pattern extending from zero meters at the shore to a maximum of between two and four meters at the end of the bench and toward the interior of the lake—depending on the width of the bench floor—seeking to give the floor a concavity that increases toward the end of the bench, so as to form or construct a barrier or retaining wall to trap sediment.

The placement of rock blocks is suggested to create shelters and microenvironments for biota. The rock blocks used must have no acid-generation potential; e) given that the Environmental Management Plan (Plan de Gestión Ambiental) incorporates forest-restoration measures, it is suggested that the established plan using native forest species begin on the slope three meters above the waterline, taking the final topography into account when selecting species suitable for growth in that area; f) covering the future riparian zone with a base layer of gravel and river sand and placing a thin layer of silt and detritus on top, in a strip of at least five meters around the tailings pond; g) placing a bottom layer of sand, gravel, and stone, as well as medium and large blocks of rock or stone—with no potential to generate acid drainage—in the shallow pools; this will help create greater heterogeneity on the floor of the littoral zone, producing a series of microenvironments for fish and other aquatic biota that may eventually colonize the lake.

In the deep-pool area along the outer edge of the littoral zone, it is recommended that large and medium-sized blocks be placed against the wall facing the littoral zone; this could help create habitats for larger fish, such as guapotes; h) the ecological restoration plan requires a monitoring plan to track the development of ecological succession. Finally, it states that the project closure period will extend for an additional six months after all closure activities have ended, in order to provide an additional monitoring period to ensure the proper functioning of all closure components.

XLII.- Approval of the Modification Proposal. Thus, after all these briefly described aspects had been assessed, by resolution number 170-2008-SETENA, of four February two thousand eight, the Plenary Commission approved the modification requested by the respondent company, expressly referring to the following changes:

<![if !supportLists]>a. <![endif]>The original project contemplated the extraction of saprolite to a depth of 15 meters because it entailed a lower extraction cost; however, in response to changes in the gold process and because the company did not comply with a standard required by Canada, the requested changes included the extraction of hard rock—where the probability of a greater quantity of gold increases—to depths of 67 meters, and the reduction of the extraction area from 126.4 hectares to 50 hectares. Furthermore, because hard-rock extraction entails the use of blasting to ensure the proper advancement of extraction blocks and the appropriate shaping of the open-pit walls, the company undertook to hire a company certified for this type of activity. The remaining areas contemplated by the project remain unchanged.

<![if !supportLists]>b. <![endif]>For cyanide degradation, the technology known as INCO was initially contemplated; however, the company undertakes to use a new technology that improves upon the former, namely the CYPLUS system, in order to improve environmental management while complying with both national and international regulations; it operates in the same manner as the former system, but continuously.

<![if !supportLists]>c. <![endif]>The final cyanide-treatment or waste-polishing process provides for its natural degradation in the tailings pond, thereby achieving the complete reduction of cyanide in the wastewater.

<![if !supportLists]>d. <![endif]>It was established that the “Baseline Studies” (Estudios de Línea Base) of overburden, hard rock, and tailings materials show a low potential for acid-drainage generation; nevertheless, the developer provides for appropriate management to control any eventual production thereof by submerging the waste-rock and tailings material underwater.

<![if !supportLists]>e. <![endif]>With respect to the use of electricity, it is clarified that the previously approved 5.4 W power-generation plant will no longer be used, which will eliminate atmospheric emissions of 3.3 ton/hour of CO2.

<![if !supportLists]>f. <![endif]>This, in turn, reduces fuel storage from 1500 m3 of diesel and 38 m3 of gasoline to 50 m3 of diesel and 3.7 m3 of gasoline.

<![if !supportLists]>g. <![endif]>With respect to forestry, the plan changes from reforesting 336 hectares—of which 227 hectares would have been commercial plantations—to reforesting 382 hectares of natural forest with native species—1600 trees per hectare, for approximately 611.200 trees.

<![if !supportLists]>h. <![endif]>With respect to social matters, the same commitments are maintained.

<![if !supportLists]>i. <![endif]>With respect to closure, the plan changes from creating a tailings pond and reforesting with native and commercial species to creating a tailings pond and Lake Fortuna and conducting complete reforestation with native species.

<![if !supportLists]>j. <![endif]>An updated assessment of the project’s environmental, social, and economic conditions, validated by professionals specializing in each component—the physical environment, biological environment, and socioeconomic environment—was attached, indicating that the factors considered in the environmental impact assessment (Estudio de Impacto Ambiental) approved by SETENA remain applicable.

<![if !supportLists]>k. <![endif]>An identification and assessment of impacts within the project was submitted, including the activities stipulated as modifications for the three phases involved in project implementation—construction, operation, and closure—together with the corresponding mitigation and compensation measures.

<![if !supportLists]>l. <![endif]>The monitoring plans proposed by the developer incorporated the tracking of baseline data concerning soils, surface waters, fish fauna, aquatic macroinvertebrates, amphibians and reptiles, birdlife, the floristic component, mammals, and the forestry and social components; the hazardous-substances management protocol was also incorporated.

<![if !supportLists]>m. <![endif]>The Commission for Oversight and Monitoring of the Crucitas Project remains part of the Environmental Management Plan.

XLIII.- In this regard, it is clear that the application to modify the mining project is far from being a mere administrative filing; rather, it constitutes a broad and specific petition accompanied by various technical studies relating to each of the proposed changes, as well as equally technical appendices or annexes supplementing the information on the matters considered therein. Accordingly, the modification proposal includes not only a description of the changes, but also an account of their environmental and social impacts and the mitigation measures to be implemented during each phase of the project. In addition to the technical studies, information was also provided regarding the proper public outreach concerning the proposed change; accordingly, only after this entire process had been completed—the preparation of studies; the identification of changes, impacts, and compensation measures; and public outreach concerning the proposal—did the interested company submit the modification application to SETENA, which was assessed and approved by the competent technical administrative authority after the environmental benefits were demonstrated in those proceedings.

In view of the foregoing, it is evident that this was not a mere application or solely the issuance of a unilateral Sworn Declaration of Environmental Commitments (Declaración Jurada de Compromisos Ambientales), but rather technical documents that both support the proposed modification and demonstrate the environmental benefits it entails. It is thus established that the application submitted by the respondent company provided the administrative authority with sufficient technical information concerning the specific changes, in a manner consistent with the purpose underlying the requirement for environmental impact studies; therefore, from a constitutional standpoint, it is inaccurate to assert that the modification proposal was submitted and approved without the administrative authority having access to technical information or an opportunity to assess the scope and impact of the proposed changes.

In any event, consideration must be given to the aforementioned judgments of this Chamber, numbers 2004-9927 and 2005-5790, insofar as it has repeatedly held that assessing whether the studies were properly conducted or contain the necessary information falls outside the jurisdiction of this court, since such matters must inherently be resolved by the appropriate technical bodies.

XLIV.- On the alleged impacts on flora and fauna. The situation of the yellow almond tree in the Crucitas mining project area. The petitioners state that the purpose of the land-use change (cambio de uso de suelo) in the Crucitas mining project is to raze 262 hectares, 192 of which are completely covered by forest, in order to excavate the open-pit mine there. They likewise allege that, to allow this undertaking, Decreto 34801 authorizes the felling (corta) of protected species subject to a logging ban (veda), such as the yellow almond tree, even though that species is threatened, the State had previously acknowledged that situation through Decreto 25700, and the case law of this Chamber expressly prohibited any type of permit for the felling or harvesting (aprovechamiento) of almond trees. From its review of the record and the reports rendered under oath, the Chamber observes that the technical reports issued at different times—one of them by the Instituto Tecnológico de Costa Rica—although acknowledging the endangered status of the almond tree, conclude that the yellow almond tree is not concentrated in the pit area, to the point that its presence is sparse in the extraction and tailings areas of the mining project, and that the forest plots located there are characterized as heavily exploited—possibly so that the land could be used for agriculture and livestock farming—with the existing trees falling below the general average required to be regarded as primary forests (bosques primarios), since their diameters are less than fifty centimeters and their height generally does not reach twenty-five meters, including the crowns; accordingly, these are secondary forests (bosques secundarios).

Similarly, it has been established that the forest-cover (cobertura boscosa) areas of the mining project subject to land-use change are defined as woody vegetation (vegetación leñosa) of a successional nature, planted on land initially destroyed by human activities, and therefore cannot be considered primary forests but rather natural forests disturbed (bosques naturales intervenidos) more than thirty years ago. The record also shows that, throughout the mining project area for which land-use change authorization was requested, 197 almond trees were inventoried as the individual trees to be felled, while by octubre de dos mil ocho a total of 6,093 almond trees had been planted in reforestation efforts, which guarantees the continued existence of the yellow almond tree because 103 trees are being planted for every tree felled, and a two-hectare nursery has been established with the capacity to produce 67,500 trees per year.

Likewise, the Escuela de Ingeniería Forestal del Instituto Tecnológico concludes that the removal of 192 hectares of secondary forest does not entail a significant loss of biodiversity or ecosystem representativeness; that the forest management and mitigation plan (plan de manejo y mitigación forestal) will increase forest cover by twenty percent; that the removal of 196 almond trees from a population of more than 700 trees does not significantly impair the food supply available to the great green macaw, nor does it constitute a loss of its habitat; and that the remaining standing trees guarantee genetic variability.

XLV.- Specifically, the report by scientists doctor Olman Murillo, M.S.c Braulio Vílchez and engineer Yorleny Badilla, all from the Escuela de Ingeniería Forestal del Instituto Tecnológico de Costa Rica, issued in febrero de dos mil nueve—appearing as annex number 3 attached to the case file—concludes, among other things, that the removal of 196 trees from a total of slightly more than 700 individual almond trees (Dipteryx panamensis), directly for the benefit of the extraction area on land owned by the company, does not significantly impair the food supply available to the great green macaw (Ara ambigua), nor can it be regarded as a significant loss of habitat, given that no great green macaw nesting has been recorded in that area during the past 14 years and given the degree of degradation already present in these forests since the last logging operation there, which occurred in the nineteen-eighties.

Since the diet of the great green macaw (Ara ambigua) is based on at least thirty-seven plant species, and the almond tree (Dipteryx panamensis) produces fruit for only two or three months of the year, it cannot be argued that these birds depend exclusively on a single forest species for food. They also conclude that the removal of part of the population of slightly more than 700 individuals within the property entails the continued presence of more than 500 trees, representing an effective population size sufficient to guarantee genetic variability and rule out any degree of threat in coming generations. The planting of more than 5000 almond trees during the past three years in non-forested areas within the property will considerably increase the species’ effective population size in the very short term. Conclusions 9 and 10 establish that the company’s presence in the area prevented the continued degradation of the forests, soils, and waters of the acquired property; and that the proposed compensation and mitigation plan (plan de compensación y mitigación) within the property exceeds, by an approximate ratio of three to one, the forest-cover area removed as a result of mining operations.

Likewise, it states that the proposed additional compensation measures involving reforestation and the allocation of funds to purchase land within protected areas in the northern region will significantly exceed the proportionality and reasonableness required by the regulations currently governing the matter—see pages 15 and 16 of that report.

XLVI.- On the basis of these technical considerations set forth in the second preceding recital (considerando), and subsequently reinforced by the assessments in the recently cited report, on veintiuno de mayo de dos mil ocho the respondent company requested from the Área de Conservación Arenal Huetar Norte, Sub-región San Carlos-Los Chiles, a change in the forest use of the land where the mining concession is located. In order to process and decide that application, the Área de Conservación informed the company that it was important to have a decree declaring the land-use change to be in the national interest (conveniencia nacional), a position later confirmed by the legal counsel of that same Área. At the same time, the administration asked the company’s forestry manager (regente forestal) to clarify a number of questions regarding the application; the company complied with that requirement on ocho de julio, and one week later—dieciséis de julio—it was confirmed to the company that, before the final decision could be issued, the decree declaring the Crucitas mining project to be in the national interest and of public interest (interés público) had to be added to the case file.

The record shows that there was some disagreement within the Ministerio del Ambiente, Energía y Telecomunicaciones regarding the need for such a decree, but the decision to require it was maintained throughout; accordingly, on veinticuatro de setiembre de dos mil ocho the company was informed that the decree containing the declaration of national interest did indeed have to be submitted. As established in the preceding recital, during the land-use change authorization proceeding, technical documentation was added to the record stating that by octubre de dos mil ocho the aforementioned total of 6,093 almond trees had already been planted; that the forest-cover areas subject to the change of use are defined as woody vegetation on land originally destroyed; that the diameter classification of the inventoried plots is below fifty centimeters DBH (diameter at breast height) (DAP, diámetro de altura al pecho); and that the forests to be disturbed are disturbed natural forests less than twenty-five meters in height.

Thus, the Executive Branch ultimately adopted Decreto Ejecutivo número 34801-MINAET, which was published in La Gaceta número 201 on diecisiete de octubre of that same year, and on that same day the Área de Conservación Arenal Huetar Norte approved and authorized the land-use change application submitted by the respondent company, expressly authorizing the felling of 197 trees of that species.

XLVII.- In this regard, the Chamber notes that the respondent administration authorized the land-use change and the felling of almond trees after completing the necessary administrative proceeding, which considered both the technical demonstration of the impact of the proposed felling and the declaration that the project to be undertaken was in the national interest. Once these requirements had been met, the administration approved the application submitted; consequently, that administrative decision cannot be regarded as arbitrary because, as stated above, the administration took the necessary precautions to ensure that the proposal would not adversely affect the environment. As explained in the preceding recitals, the Chamber does not disregard the fact that the yellow almond tree is a species that has been threatened, that the Executive Branch had previously acknowledged that danger, or that the Chamber had ordered a prohibition on the felling of almond trees.

Nevertheless, it must be noted that the technical findings made during the administrative proceeding indicate that felling 197 trees from a population of more than 700 individuals would cause little or no environmental harm, given that the almond trees to be felled are not part of a primary forest but rather of a young secondary forest, and that the plan established and already being implemented at that time entails planting 103 almond trees for every tree of that species felled. For these reasons, the almond-tree population will not decrease but will instead increase substantially, and overall forest cover will likewise increase by twenty percent.

XLVIII.- Consideration must also be given to the reasons why those almond trees would be felled, because the express prohibition established by the Chamber in judgment 2008-13426 concerns, on the one hand, the exploitation, extraction, and harvesting of almond trees and, on the other—as previously established—almond trees located at great green macaw nesting sites. Regarding the first situation, it is clear that, in the case under review, the reason for felling the almond trees was neither to exploit them nor to derive economic benefit from their timber. On the contrary, the administration states under oath that the felled trees would not be sold but donated for social projects in the project’s area of influence—this point is addressed again below. As for whether the restriction against removing almond trees from great green macaw nesting sites applies in this specific case, it is necessary to examine the bird’s situation in relation to the authorization to fell 197 almond trees.

XLIX.- The situation of the great green macaw in relation to the land-use change in the Crucitas mining project and the authorization to fell yellow almond trees. The petitioners state that the felling of almond trees authorized by the Área de Conservación Arenal Huetar Norte, pursuant to Decreto 34801-MINAET, will result in the irreversible extinction of the great green macaw, and that the State is therefore failing to comply with the environmental commitments it voluntarily undertook and is contributing to the extinction of this species. Several aspects warrant emphasis in this regard, concerning both the almond tree itself and the macaw, as well as the relationship between the two species.

L.- Regarding the existence of the almendro tree, and the bird’s feeding and reproduction. As noted, the felling of 197 almendro trees does not threaten the species’ existence in the area; indeed, the presence of the almendro tree is guaranteed by the reforestation being carried out throughout the overall project area, supported by the nursery that has been established. The project’s Forest Management Plan (Plan de Manejo Forestal) states that the nursery will give priority to native species using certified almendro and titor seeds, trees that provide a significant portion of the great green macaw’s (lapa verde) diet. This therefore tends to guarantee not only the existence of the almendro tree—and to reduce the threat of its decline in the absence of replacement plans—but also food sources for the bird. In any event, with regard to the macaw’s diet, Centro Científico Tropical confirms that the great green macaw does not depend exclusively on the Crucitas area for food, nor is that area the bird’s exclusive transit area—it is not the only area through which the bird travels.

On the contrary, the Center states that the mining project will not interrupt the bird’s reproductive process or feeding cycle. The Report on the Biological Conservation Aspects of the Great Green Macaw and the Yellow Almendro reaches the same conclusion and also establishes that the macaw obtains food from at least thirty-seven different tree species.

LI.- With respect to the reproduction of the great green macaw, the case record establishes that the macaw nests in mature almendro trees with an average diameter at breast height (diámetro de altura al pecho, DAP) of 129 centimeters—see the report of Centro Científico Tropical—although it is also stated that it nests in Guanacaste, Blanco, Botarrama, and Caobilla trees. Nevertheless, as early as octubre de dos mil ocho, the Report on Forestry Aspects concluded that the diameter classification of most trees in the project area reflected a DAP of less than 50 centimeters and, according to the Center, only four trees had a diameter greater than 120 centimeters. These assessments and the findings concerning the felled trees lead to the conclusion that the bird does not nest in the Crucitas area; rather, the great green macaw’s optimal habitat is Refugio Maquenque. This is consistent with the company’s statements that studies from the year dos mil tres show that the bird nests within an area of mil square kilometers located outside the project area, as well as with the administration’s own statement that no nests or traces thereof were found in the removed trees.

It has likewise been explained in the appeal that the bird’s breeding season runs from December through June, during which it lays its eggs in large cavities formed in almendro trunks and depends on almendro fruit for ninety percent of its diet. After the breeding season—from July through November—the birds disperse and obtain food from more than thirty different tree species, because the almendro tree does not bear fruit during that nonbreeding period. It is during this nonbreeding period that the bird enters or travels through the Crucitas area.

LII.- The conclusions reached by M.Sc Jorge Hernández Benavides in his report on the Biological Conservation Aspects of the Great Green Macaw and the Yellow Almendro—submitted as Anexo No. 2—are also relevant. The report confirms that the great green macaw does not depend exclusively on the Las Crucitas area for food, since it uses an extensive territory shared by Nicaragua and Costa Rica—parts of the cantons of San Carlos, Sarapiquí, and Pococí. It states that the macaw’s foraging range exceeds the mining project’s area of influence by approximately 1.500 hectares and concludes that the great green macaw does not nest in the Crucitas area. The nearest nest is located 8.7 kilometers away, probably because of the extensive habitat fragmentation (fragmentación del hábitat) in that area and the lack of mature yellow almendro trees. It also states that this area is not the great green macaw’s exclusive transit area, since the bird uses an extensive territory shared by Nicaragua—Reserva Biológica Indio-Maíz and its buffer zone (zona de amortiguamiento) in the municipalities of El Castillo and San Juan del Norte, as well as in the Región Autónoma del Atlántico Sur—and Costa Rica—parts of the cantons of San Carlos, Sarapiquí, and Pococí.

It notes that the reproductive process of the 25 or 35 pairs of great green macaws nesting in Maquenque will not be interrupted by the mining project because Las Crucitas lies outside the great green macaw’s breeding range. What may decrease is the great green macaw’s visitation to the mining project area because of the reduction in yellow almendro trees and the human activity present there. Nevertheless, the report states that the land-use change (cambio de uso de suelo) affecting 192 hectares of the project will not interrupt the feeding cycle of the great green macaw population nesting in Maquenque, which is located 8.1 kilometers away; it may instead cause the displacement already mentioned. It states that the project is located in the northwestern portion of Corredor Biológico San Juan-La Selva and forms part of one of the most important areas for bird conservation, Reserva de Biosfera Agua-Paz, and Corredor Binacional El Castillo-San Juan-La Selva.

This area has been designated an important conservation core within Corredor Biológico San Juan-La Selva and has been prioritized by Sistema Nacional de Áreas de Conservación. The report states that the mining project affects a unique ecosystem and that, for this reason, the measures to mitigate (medidas de mitigación) the felling of individual yellow almendro trees and its harmful impacts on the great green macaw population must be aimed at repairing the harm caused. Nevertheless, it states that, in the author’s view, planting even a very large number of yellow almendro trees to compensate for those felled does not help restore this ecosystem or enable the great green macaw to feed in the area in the short or medium term, since it does not usually visit short trees. It adds that purchasing land in the upper Río San Carlos watershed for the conservation of Parque Nacional Juan Castro Blanco does nothing to guarantee the viability of the yellow almendro and great green macaw populations.

It therefore recommends that the project’s compensation and mitigation projects pursue the following objectives: “1—consolidate RNVSM Maquenque through the implementation of its Management Plan (Plan de Manejo) (SINAC personnel, monitoring, infrastructure, land purchases, education, scientific monitoring and research, etc.) 2—Strengthen the connectivity of Corredor Biológico San Juan-La Selva through ecological restoration activities at the critical links along the identified connectivity routes. This should be accompanied by a greater governmental commitment to consolidate RNVSM Maquenque with the support of civil society.” LIII.- In summary, the great green macaw nests in mature almendro trees—or trees of other species—with a DAP greater than 120 centimeters, none of which exist in the Crucitas area; therefore, there are no great green macaw nests in that area. While reproducing—outside the project area—the bird does feed on almendro fruit.

Once the breeding season has ended, the birds fly through and pass over the Crucitas area, but by then the almendro tree is not bearing fruit, so they do not feed on it but instead on the more than thirty tree species from which they obtain food. Consequently, it is inaccurate to claim that the felling of 197 almendro trees in the Crucitas area will lead to the inevitable extinction of the great green macaw, since it jeopardizes neither its reproduction nor its food supply. On the contrary, promoting the reforestation of yellow almendro trees and conserving this species in neighboring areas will, in the future, provide the bird with additional nesting options and, consequently, additional food sources during the breeding season.

LIV.- Regarding the location of the Crucitas mining project within the Mesoamerican Biological Corridor. During the hearing held on the twelfth, thirteenth, and seventeenth of November two thousand nine, concern was raised and expressed that the Crucitas mining project is located in an area of the so-called Mesoamerican Biological Corridor, and that the project could therefore have a negative impact on biodiversity and interfere with the Corridor’s conservation objectives. In this regard, as indicated in the study Corredores Biológicos de Costa Rica, compiled by Luis Rojas and María Isabel Chavarría—see folio 4886—a biological corridor (corredor biológico) “is a defined area that provides connectivity among natural and modified landscapes, ecosystems, and habitats, ensuring the maintenance of biological diversity and ecological and evolutionary processes (…). Its fundamental objective is to comprehensively connect forests with forests, water with water, species with species, and human beings with human beings.” Specifically regarding the Mesoamerican Biological Corridor, this study states that it is oriented toward more sustainable social and productive development, food security in the region, recognition of the knowledge of local communities, improved public participation in decisions concerning their development, and reduced social fragmentation through the establishment of alliances among stakeholder groups and sectors.

In this respect, the Chamber understands that the existence of a biological corridor does not preclude economic or productive activities, provided that they are carried out within an environmental-protection framework that prevents adverse effects on biodiversity and promotes economic and social development. It follows that a particular economic activity may be permitted if it ensures the continued fulfillment of the biological corridor’s objectives and enables improved socioeconomic development. In the area where the mining project is located, as part of the Mesoamerican Biological Corridor, the respondent authorities state that the so-called Corredor San Juan-La Selva does indeed exist—according to the penultimate recital, the project is situated northwest of this corridor—and that it seeks to restore the country’s northern region from the deforestation that occurred during the 1970s. Accordingly, this Corridor aims to consolidate six protected areas into a single geographical unit totaling one million two hundred four thousand eight hundred twelve hectares, whose central conservation unit is the Refugio Nacional de Vida Silvestre Maquenque—covering sixty thousand hectares—located south of Nicaragua’s Reserva Indio Maíz and adjoining the western boundary of Barra del Colorado.

The authorities indicate that this Corridor is expected to make it possible to coordinate the necessary actions, investments, and interventions and to prioritize those already underway, both for socioeconomic development and for biodiversity conservation. In this regard, since the objectives of both the Mesoamerican Biological Corridor and the Corredor San Juan-La Selva specifically include promoting socioeconomic development while protecting biodiversity, it is clear that productive initiatives whose environmental impact is not adverse may be authorized in these areas. Furthermore, since the central unit of the Corredor San Juan-La Selva is the Refugio Nacional de Vida Silvestre Maquenque, it has been documented that the area where the mining project is intended to be developed is approximately twenty kilometers from that Refuge, forty-three kilometers and eight hundred meters from Refugio Caño Negro, and an even greater distance from Refugio Barra del Colorado.

These Refuges are, as such, areas subject to special protection regimes that, by their nature, differ from those applicable to biological corridors. In any event, consideration must be given to the reported fact that implementation of the mining project will require the removal of one hundred ninety-two hectares of previously disturbed forest (bosque intervenido), which reportedly does not represent a significant loss of biodiversity or ecosystem representativeness because that amount constitutes 0.38% of the forest cover (cobertura boscosa) in the district of Cutris. A density of 1.12 yellow almond trees per hectare has been identified there, and thus, even after the felling (corta), more than five hundred yellow almond trees would remain in the area. Accordingly, where activities within biological corridors are shown to be harmless, the competent authorities may authorize their implementation, for which purpose the relevant technical studies must be secured, including, for example, the determinations concerning impacts on biodiversity contained in an environmental impact study (estudio de impacto ambiental).

Thus, in the case under review and as determined in the preceding recitals, once the applicable procedure had been completed—including community outreach and participation—the Secretaría Técnica Nacional Ambiental granted environmental approval (viabilidad ambiental) to the Crucitas mining project. The technical studies submitted were therefore deemed validated, and the social perception of the activity was taken into account. Likewise, as stated above, the technical authorities report that there is no threat or risk to the survival of species such as the yellow almond tree and the great green macaw. Together with the socioeconomic benefits of the productive activity, this led the administration to approve its development subject to the approved commitments and oversight mechanisms. In any event, consideration must be given to the fact that, as proposed by the company when it requested modification of the mining project and as approved by the Secretaría Técnica Nacional Ambiental through resolution 170-2007-SETENA, this modification entails a reduction in the extraction area from 126.4 hectares to 50 hectares.

This circumstance in itself entails a reduction of nearly 60% in the area to be affected by tree felling; that is, the proposed and approved modification means that fewer trees will be felled, avoiding impacts on 75 hectares that were initially to be cleared. Likewise, the commitments undertaken by the company indicate—as stated in the cited resolution—that it will increase the area to be reforested: instead of reforesting 336 hectares—272 hectares of which would have been planted with commercial species—it will reforest 382 hectares using only species native to the area, rather than commercial species. This means that an additional 46 hectares will now be reforested. In this regard, the reforestation that the company must carry out as part of the project, at a rate of 1,600 trees per hectare, yields a grand total of 611,200 trees planted by the end of the project’s closure phase. Thus, far from adversely affecting the Mesoamerican Biological Corridor, the reduction of the area to be impacted and the increase in the area to be reforested will, over the medium term, improve the forest cover in the area by transforming a region of disturbed forests with clearly disconnected spaces into extensive native forest cover that should permit those spaces to be connected or interconnected.

This will promote the integration of the various biological components involved and thereby fulfill the definition and objectives of a biological corridor, as stated in the report under discussion. Accordingly, given the technical opinion described above and the commitments undertaken by the respondent company, it is improper to invoke before the constitutional jurisdiction the alleged adverse effect on the Mesoamerican Biological Corridor as a basis for preventing the development of this activity. Accordingly, given the technical opinion described above, it is improper to invoke before the constitutional jurisdiction the alleged adverse effect on the Mesoamerican Biological Corridor as a basis for preventing the development of this activity.

LV.- On the use of explosives and their alleged impact on the biological environment of the Crucitas mining project. An additional issue raised during the hearing was the potential impact on biodiversity resulting from the use of explosives in extracting the material, given the allegation that the noise and dust produced by the explosions would affect the project’s biological environment. In this regard, as stated in the chapter on Proven Facts, it should be noted that the Crucitas mining project was initially processed, reviewed, and studied by the Directorate of Geology and Mines of the Ministry of the Environment and Energy under expediente 2594. In assessing the Crucitas mining project, the Directorate of Geology and Mines requested that the developer submit a document as an annex to its application clarifying the use of explosives at the mining faces (frentes de explotación), including the blast designs (diseños de las voladuras) and comprehensive explosives-management procedures (manejo integral de los explosivos).

The company reportedly submitted that document, which also specified the typical charge to be used in both hard rock and saprolite—see folio 5379. Indeed, expediente 2594 contains the document entitled “Feasibility Study” (“Estudio de Factibilidad”), which, on pages 4-6 to 4-8 and 4-18 to 4-23, sets out how drilling is to be performed, how blasting and explosive charges are to be carried out and used, how the explosives are to be transported, and what maintenance must be performed on the roads. This study also specifies how the explosives service facility is to be arranged, the personnel involved in the process, and the blast designs. In addition to this study, the Directorate of Geology and Mines also has on file, within expediente 2594 and as an annex to the Feasibility Study, appendix 5, entitled “Explosives Management and Blasting, Crucitas Mining Project, San Carlos, Alajuela” (“Manejo de Explosivos y Voladuras, Proyecto Minero Crucitas, San Carlos, Alajuela”), dated octubre de dos mil, prepared by Mining Engineer Tomás Goic.

This appendix addresses the design of open-pit blasting (voladuras a cielo abierto), the drilling diameter, the spacing between boreholes, the distribution of the explosive charge, and the charges required for saprolite rock and hard rock, all accompanied by diagrams explaining these various aspects. Accordingly, resolution R-578-2001-MINAE, de las nueve horas del diecisiete de diciembre de dos mil uno, was issued in expediente 2594, granting the respondent company the mining concession (concesión de explotación minera). In that resolution, the Directorate of Geology and Mines acknowledges that the Crucitas mining project will use explosives in the gold-extraction process. Referring to the technical studies performed and official letter DGM-DC-320-2001—which was incorporated into the cited resolution for all purposes—the Ministry of the Environment provides that “[w]ith regard to the use of explosives, this Directorate shall ensure that the technology employed causes the least environmental impact and complies with the regulations in force on this subject,” and grants the mining concession under those conditions.

It is therefore clear that the use of explosives in the gold-extraction procedure had already been analyzed by the Directorate of Geology and Mines. However, that resolution was annulled by this same Constitutional Chamber through judgment 2004-13414, de veintiséis de noviembre de dos mil cuatro. The Chamber stated that the annulment was without prejudice to the findings of the environmental impact study (Estudio de Impacto Ambiental) for that mining project, because the Chamber determined at that time that the study had to be approved before the mining concession could be granted. Meanwhile, as has already been established, desde el doce de marzo de dos mil dos the respondent company had been pursuing before the National Environmental Technical Secretariat the procedure for approval of the environmental impact study for the Crucitas mining project. After complying with the requests for additional information (prevenciones) issued by SETENA and explained above, the company submitted the corresponding environmental impact study, which was ultimately approved through resolution 3638-2005-SETENA.

Nevertheless, despite the initial assessment conducted before the Directorate of Geology and Mines, when the environmental impact study was submitted—doce de marzo de dos mil dos—the project did not contemplate the need to use explosives because the proposed depth was less than the depth subsequently proposed. This was because the economic conditions surrounding gold mining and the company’s financial position so required at that time, as the operation was shallower and did not entail extracting hard rock; therefore, it involved no explosives, only earth removal (remoción de tierra) and excavation. After the environmental impact study was approved, el treinta de mayo de dos mil siete the company requested that the Directorate of Geology and Mines validate the aforementioned resolution 578-2001-MINAE. While that proceeding was underway, however, the company also submitted to SETENA a request to modify the mining project.

Because the initial conditions under which the environmental impact study had been submitted had changed—and because Canadian legislation required mining companies of Canadian nationality to issue definitive information concerning the available mineral resource—the developer considered it important to modify the project by reducing the mining area while increasing its depth. Increasing the depth would change the material to be extracted because hard rock is present at greater depths; it was therefore necessary to return to the original proposal to use explosives, the use of which had, in any event, already been assessed by the Directorate of Geology and Mines. Thus, as stated above, the company requested that SETENA approve a proposed modification to the project, accompanying its request with the document entitled “Environmental Assessment of Proposed Changes to the Crucitas Mining Project” (“Evaluación Ambiental de Cambios Propuestos al Proyecto Minero Crucitas”).

Appendix 1 to that assessment is the “Blasting Procedures Manual” (“Manual de Procedimientos de Voladura”), prepared by Explotec, which specifies how the explosives are to be stored, how the explosives-storage area (zona de los polvorines) is to be arranged, and the procedures for using these materials safely—including operational control, protection, preparation, the handling of unused material, loading, the safety of the blasting area, and personnel protection—as well as the manner in which the explosives are to be transported, including how their transportation is to be arranged, the types of vehicles to be used, and the maintenance and operation required for those vehicles. This modification was approved by the Technical Secretariat through resolution 107-2008-SETENA, de cuatro de febrero de dos mil ocho. Finally, through resolution R-217-2008, del veintiuno de abril de dos mil ocho, and acknowledging the entire procedure described herein, the Executive Branch granted Industrias Infinito Sociedad Anónima the mining concession.

This new resolution likewise deems it established that the developer will use explosives in the extraction process, and contains a statement in terms identical to those cited above, providing that the Directorate of Geology and Mines shall ensure that the company uses technology causing the least environmental impact. It is therefore clear that the use of explosives in the Crucitas mining project is an issue that has been raised and favorably resolved by both the Directorate of Geology and Mines and the National Environmental Technical Secretariat, both of which are technical bodies of the administration with specific jurisdiction to rule on the matter. In any event, given the challenge raised before the Chamber, and although it has been demonstrated that the issue of explosives was indeed considered in the administrative proceedings, it is important to offer the following observations.

LVI.- On the type of explosions and their effects. It is important to note that the respondent company states that it will use a “controlled blasting” (“voladura controlada”) system for explosives and explosions, defined as “blasting intended to prevent rock from breaking beyond previously established limits. The explosive charges are low-energy and are placed close together, thereby controlling rock dispersal and the resulting noise.” In this regard, when this controlled-blasting system is used, the vibration, noise, dust, and gases generated are of low intensity and occur infrequently, with a maximum of two explosions per week. By way of example, the company explains that blasting at a distance of doscientos a quinientos metros produces maximum noise levels of 103.8 and 95.3 decibeles, respectively, whereas technical findings establish that thunder produces a noise level of 120 decibeles—see página 50 de documento aportado por la empresa del veintisiete de noviembre de dos mil nueve.

On this basis, the respondent authorities conclude that the type of explosives to be used will not affect wildlife (fauna)—see folio 5379—because their effects will be highly specific and localized in time and space. No impact on local wildlife—including the macaws—is anticipated, because the effects will be short-lived and will merely cause species to move away temporarily during the following days, after which they will resume their normal activities within a very short period.

LVII.- This conclusion by the competent authorities is consistent with the explanation regarding this type of explosion provided during the explosives training course given in junio de dos mil siete to the Secretaría Técnica Nacional Ambiental by Engineer Orlando Reyes, Technical Manager of ORICA Mining Services Centroamérica Sociedad Anónima—a copy of the materials used in this course was submitted to the case file by the Environmental Manager (Regente Ambiental) of the Crucitas mining project. This training explained that the term “blasting” (voladura) refers to a mechanism for breaking rock through the action of explosives, but clarified that these explosives—known as blasting powder (pólvora de minas)—are mixtures of sulfur, charcoal, and potassium nitrate and differ from conventional explosives in that they deflagrate rather than detonate; they are therefore particularly suitable for extracting ornamental stone such as granite, marble, and slate.

Both detonation and deflagration are oxidation-reduction phenomena, but deflagration is subsonic, whereas detonation is supersonic because, in the latter case, compression waves propagate faster than the speed of sound. Thus, a detonation is a high-speed chemical reaction that creates a shock wave, whereas deflagration is a thermal reaction that does not produce shock waves. Regarding technical aspects, the course stated that the explosive’s energy must be confined along the borehole (perforación) to fracture and displace the rock, and that blasting results depend more on the properties and structures of the rock than on the properties of the explosives. It further stated that the effects of blasting may potentially affect the environment in three main ways: acoustically—the noise produced—through vibrations—ground vibration—and through the gases produced. The presentation stated that noise pollution (contaminación acústica) caused by blasting can be fully controlled through the appropriate use of well-known modern control techniques, including sequential detonation (detonación secuenciada), whereby the quantity of explosives for each event is properly designed and established so that the resulting vibrations remain within the parameters accepted under local or international regulations.

It indicated that, most importantly, control of the potential effects caused by vibrations during blasting depends solely and exclusively on distributing the explosive charges over time and determining their dosage; this is entirely controllable and is designed for each specific case. The course discussed noise pollution in greater depth, explaining that the sound caused by blasting can be minimized and controlled through the proper use of delay elements and by eliminating the use of detonating cord (cordón detonante) on the surface of the blast site. Accordingly, the sound perceived will primarily be that of the charges at the surface, which in any event does not exceed 50 decibels at the exact detonation site. It also noted that, for safety reasons, people must remain at least three hundred meters away during any blasting operation and that, at this distance, the sound is sometimes barely perceptible.

The explosion of charges within the boreholes does not contribute substantial sound if they are properly confined, as they must be to achieve the desired effect—namely, using the released energy to fracture the rock—and what humans and wildlife primarily perceive is the vibration produced by these detonations, within an approximate maximum range of three hundred meters; this vibration can be predicted and controlled down to minimum levels. With respect to gases, the course explained that this term refers to the combination of products resulting from blasting, including harmless gases such as water vapor, nitrogen, and carbon dioxide, certain solid and liquid products, and gases such as carbon monoxide and nitrogen oxides. The gases produced during the detonation of explosives in an open pit (tajo abierto) are what cause the rock to break because of their high pressures and temperatures; however, these gases dissipate upon contact with the air, ultimately reaching concentrations that are not considered hazardous to humans, flora, or fauna, because proper blasting control and design reduce the possibility that gases will be released into the atmosphere.

Thus, the information presented in this course given to the Secretaría Técnica Nacional Ambiental is consistent with the determinations made by the respondent authorities that the type of explosions to be used in the mining project will have no adverse effects on the biological environment, provided that the applicable implementation and safety protocols are properly observed.

LVIII.- In the same vein, the project’s Environmental Manager cited as an example the blasting performed in urban settings for basement construction, referring to a specific case in an office-building district where explosions were carried out next to buildings that remained fully occupied—that is, without evacuating anyone—and where the explosion’s perceptible range did not extend beyond sixty meters. These data were verified using geophones (geófonos), which are instruments that measure seismic waves. She also explained that the same type of blasting that will be carried out at the mining project is routinely used in quarries (tajos) located in the Valle Central, around which residential or developed urban areas are situated only two hundred meters away. In her opinion, and in accordance with the foregoing, all of this demonstrates that controlled blasting (voladuras controladas) poses no significant risk to the flora and fauna inhabiting areas adjacent to the Crucitas mining project.

LIX.- Public awareness regarding the use of explosives. Because the proposed project modification included the use of explosives, the aforementioned Environmental Assessment of Proposed Changes to the Crucitas Mining Project (Evaluación Ambiental de Cambios Propuestos al Proyecto Minero Crucitas) included, as Appendix 2, the “Study of Local Awareness and Perception of the Hard-Rock Mining Method” (“Estudio del conocimiento y la percepción local de la modalidad de explotación de roca dura”), prepared in octubre de dos mil siete. This study established before the Secretaría Técnica Nacional Ambiental that, in view of the proposed modifications, the analysis of local perceptions of the project was repeated to determine the population’s degree of awareness of the proposed changes relating to the reduction of the extraction area and the processing of saprolite and hard rock, as well as their effects on the social and economic conditions of communities within the project’s area of influence.

It reported that focus groups and open discussions were conducted with representatives of organizations and with individuals, resulting in ten separate meetings held in Ciudad Quesada, Coopevega, Moravia de Cutris, Chamorro, el Roble, Crucitas, Llano Verde, and Jocote, as well as additional individual visits to persons or families in smaller, more remote communities. Invitations were issued verbally and through written notices posted in the communities and at neighborhood meeting places. The discussions expressly addressed the background, the technical and financial reasons for changing the mining model, the feasibility of the saprolite model, the main changes to the project area under the hard-rock model, the social and environmental impacts associated with the new mining model, and the generation of tax revenue under the new model. The study concluded that the interviewees primarily highlighted the positive effects of the change because the area to be affected would be considerably reduced and the proposed method would generate more employment.

This social-perception study was also accompanied by its own appendices, including the interview guide, the questionnaire for individual consultation, the list of interviewees and focus-group participants, and summaries of the group-interview results.

LX.- Approval of the proposed modification as it relates to the use of explosives. Accordingly, after the application to modify the project was submitted together with the studies concerning the use of explosives and public perception of this method, the Comisión Plenaria, through Resolution No. 170-2008-SETENA of cuatro de febrero de dos mil ocho, approved the modification requested by the company. It specifically noted that the original project contemplated extracting saprolite to a depth of 15 m. because this entailed lower extraction costs. However, in view of changes in the gold-processing operation and because the company did not comply with a standard required in its country of origin—Canadá—the proposed changes also included extracting hard rock—where the likelihood of finding a greater quantity of gold increases—to depths of 67 m and reducing the extraction area from 126.4 hectares to 50 hectares.

Furthermore, because hard-rock extraction requires blasting to properly advance the extraction blocks and appropriately shape the slopes (taludes) of the quarry walls, the company undertook to hire a contractor certified to perform this type of work. In this regard, the Sala notes that the technical body with jurisdiction over this matter was indeed aware of the substance of the proposed modification, the methods for deploying and using explosives, and the public outreach conducted regarding these modifications—including the use of explosives. All of this led the administration to conclude that the use of explosives would not adversely affect the biological environment, and it therefore approved the application submitted by the respondent company. It bears repeating that technical consideration of applications and claims such as those described here falls within the purview of the administration’s technical bodies.

Therefore, where the relevant bodies have issued their scientific opinion on the matter, it is beyond the jurisdiction of the constitutional courts to determine whether that opinion is consistent with the equally technical nature of the factors considered by the administration in issuing its decision. Consequently, if the interested parties believe there are grounds for disagreement in this regard, they must bring the appropriate actions before the competent bodies.

LXI.- The Chamber is aware of the alarming assertions made by both the petitioners and the respondents, to the effect that the existence of only twenty-five pairs of great green macaws has been established; however, this troubling fact and the dire scenario that looms if current conditions persist cannot in any way be attributed to the authorization for land-use change (cambio de uso de suelo), but rather to the previous lack of monitoring and controls over this situation, which led to the indiscriminate exploitation of forest cover (cobertura boscosa) without technical parameters such as those now being implemented and that must be improved, and to the removal of the bird from its natural habitat for commercial purposes and domestic entertainment. In this regard, and taking into account the technical recommendations issued, the Chamber urges the administration to strengthen appropriate controls and relevant monitoring in order to track the status of the great green macaw and reduce the risks of extinction that are now becoming apparent. Consequently, the Área de Conservación Arenal Huetar Norte and the Ministerio del Ambiente, Energía y Telecomunicaciones are ordered to implement interdisciplinary monitoring programs for the preservation and conservation of the great green macaw in the northern and Atlantic regions of the country.

LXII.- Furthermore, with respect to the use of timber from the trees that must be cut to enable implementation of the mining project, such use may be authorized solely and exclusively under the commitment undertaken by Industrias Infinito Sociedad Anónima itself, appearing and reiterated at folios 500, 534 and 557 of the case file (expediente), where it expressly states that “[t]he anticipated proceeds from the sale of the timber, amounting to approximately $1.000.000 (one million United States dollars), will be deposited into APANAJUCA’s existing trust (fideicomiso), APANAJUCA being the Asociación del Parque Nacional Juan Castro Blanco, whose sole purpose is to purchase privately owned land for the conservation of the Parque Nacional, also known in San Carlos as the parque del Agua, and which currently has more than 90% of its area under private ownership,” because it is not in its “interest to remove the timber and derive an economic benefit from it [but rather] the financial proceeds obtained from the sale of the timber will be donated to a recognized institution in Ciudad Quesada for the purchase of land devoted to conservation.” Accordingly, if, after the authorized mitigation measures (medidas de mitigación) have been implemented, the company decides to dispose of the timber from the felled trees and the removed plant waste, such disposition must be solely for the purpose of increasing, as applicable, the trust of the Asociación del Parque Nacional Juan Castro Blanco, and exclusively for the acquisition of the privately owned lands comprising the Parque Nacional; to that end, the Ministerio del Ambiente, Energía y Telecomunicaciones must rigorously carry out control and monitoring measures to verify compliance with this mandate.

LXIII.- Ultimately, the authorization for land-use change and the permit granted to cut 197 yellow almond trees in the area of the Crucitas mining project do not violate environmental protection requirements or place the yellow almond tree at risk or under threat. Likewise, the authorized cutting and the approved modification to the mining project do not jeopardize the existence of the great green macaw, because they have no adverse impact on its nesting sites and food sources; the appeal must therefore be denied with respect to these claims.

LXIV.- Concerning the existence of water resources (recurso hídrico) in the Crucitas area and the risk of contamination. The petitioners allege that, in order to carry out the Project in Crucitas, the mining company will raze a protection zone (zona de protección) surrounding streams and springs (nacientes) in the excavation areas and tailings areas (zonas de relaves), where ponds will be built to store cyanide-bearing material. In addition, it will have to divert streams and affect aquifer recharge areas (zonas de recarga acuífera), thereby affecting important shallow aquifers (acuíferos superficiales), such as the “La Plata” and “La Mina” streams, as well as aquifer recharge areas, even affecting the río San Juan because of its proximity. From its review of the record and the reports submitted under oath, the Chamber finds that the situation raised has been assessed both by the company and by the relevant administrative authorities.

First, it should be clarified that the Inventory of Watercourses (Inventario de Corrientes) in the project’s extraction area, prepared in noviembre de dos mil siete, concluded that: a) there is no stream or watercourse of significant size in the extraction area that could be affected by mining operations; b) four small watercourses (yurros) and the Mina stream would be affected in the reservoir area, as they would be flooded by the tailings reservoir; c) no type of watercourse would be affected in the processing plant area; and d) mining operations would cause an increase in runoff (escorrentía), which would be negligible in relation to the flow of the receiving rivers. For its part, the Water Department of the Ministerio del Ambiente, Energía y Telecomunicaciones certified in mayo de dos mil ocho that: a) within the mining area at cerro Fortuna there are ten unnamed streams with intermittent flow and in the public domain; b) within the extraction area at cerro Botija there are two unnamed streams with intermittent flow and in the public domain; and c) within the tailings reservoir area there are five streams with permanent flow and in the public domain, including the Minas and Campamento streams.

According to the studies conducted by the respondent company during the exploration stage, the following bodies of water were analyzed: Quebrada Descubrimiento, Caño Crucitas, Quebrada Chamorro, Quebrada la Mina, Río Infiernito, Quebrada Llano Verde, Río San Juan and Laguna—located near the camp; see page 194 of the Environmental Impact Study (Estudio de Impacto Ambiental, “EsIA”). None of them, however, contains potable water because coliform contamination levels exceed the maximum allowable values in every instance—see page 196 of the EsIA. In addition, 3 domestic-supply wells were identified in the town of Crucitas, 3 kilómetros north of the mining excavation, which penetrate the upper aquifer—see page 196 of the EsIA. There are two springs (manantiales) used for domestic supply, one for the project camp and the other located 50 metros east of the school—page 197 of the EsIA—and both draw water from the upper aquifer.

The existence of two aquifers in the Crucitas mining project area was also demonstrated: 1- An upper, unconfined aquifer (acuífero freático) at 4 metros or more below the surface, whose recharge is presumed to occur locally through rainfall infiltration. It has several flow directions that follow the topography—page 198 of the EsIA. To make this determination, approximately 24 test wells were drilled during the exploration stage to establish the permeability of the saprolite and bedrock—page 205 of the EsIA. 2- A lower aquifer confined within fractured volcanic rocks at depths greater than 80 metros—page 23 of the EsIA. There is no evidence of natural outcrops of this water anywhere in the study area, and it was determined that this aquifer does have a regional direction of groundwater flow—page 207 of the EsIA. It was duly demonstrated that this aquifer has low-quality water, since the ammonium, iron, potassium, sulfate, color and turbidity values exceed the drinking-water standard; and that wells drilled in those areas that penetrate the lower aquifer will behave as flowing artesian wells (pozos surgentes)—see page 208 of the EsIA, based on samples taken in the year 2000.

According to the studies conducted, the water quality of both aquifers is poor and fails to meet national standards for human consumption because of the pH level, which is low, as the reported data record a pH between 5.76 and 4.92, below the minimum national standard (6.5 pH). In this regard, the Summary of Hydrogeological Conditions and Expected Effects (Resumen de Condiciones Hidrogeológicas y Efectos Esperados) for the Crucitas mining project concludes that the upper aquifer will not be contaminated by the mineral-extraction process provided that the preventive measures are followed. With respect to the lower aquifer, this Summary states that it has no outcrops, that its recharge areas lie outside the project, and that it does not flow toward the río San Juan. The lower aquifer is confined and, in some sectors, exhibits flowing artesian behavior, with the potentiometric level (nivel piezométrico) indicating an approximately northeast-southwest flow direction; the elevation of that level in the sector where the open pits (tajos) will be located is approximately 73 m.s.n.m., and the lower aquifer will therefore be intersected at that point.

In that event, as extraction proceeds below elevation 73, the emerging water will be pumped into the tailings pond until extraction is completed; thereafter, in the Botija pit, which will be backfilled, the water level may return approximately to its position within the material placed inside the pit, after which vegetation will be restored on the ground surface. In the case of the Fortuna pit, the water level will return to its former position but will fill the pit, forming a lake. To assess the effects of excavating the pits on the lower aquifer, an evaluation was performed by modeling the drawdown (abatimiento) of the water level within the excavation itself and in the surrounding area. For this purpose, a radial-flow model—Rushton y Redshaw, 1979—was used, and the flow rate that would have to be extracted from the excavation to maintain the water level at the floor of the pit while extraction work was being completed was calculated, as was the radius of influence (radio de influencia).

For this purpose, the shape of the pits was geometrically simplified, with emphasis placed on the Fortuna pit because the Botija excavation will be backfilled. In general terms, the area of the base of the Fortuna pit was taken to be 19103.8 m2. The area of the water surface after recovery is calculated at 88096.6 m2. This drawdown effect on the water level in the lower aquifer is temporary, because once material extraction work ceases and water is no longer being removed from the excavation, the groundwater level will begin to recover until it reaches its current elevation of 73 m.s.n.m.

LXV.- In this regard, the report submitted under oath by SETENA at folio 3781 of the case file acknowledges that the performance of land-clearing and cutting activities (remoción y corte del terreno), together with the occurrence of heavy rainfall, may trigger erosion processes (procesos erosivos) and the transport of materials into the water bodies draining the project area during project operations; however, the Environmental Management Plan (Plan de Gestión Ambiental) provides for the measures necessary to control and mitigate them. Regarding the possibility of contamination of rivers and streams, including the San Juan River, the report states that the cyanide-reduction system (sistema para la reducción del cianuro) is called CYPLUS, which constitutes an indispensable tool for the project’s environmental management. Because it is a state-of-the-art system that has been tested in other countries, such as the United States, where it has been endorsed by that country’s Environmental Protection Agency (EPA), it makes it possible to ensure compliance with the levels established by the regulations currently in force in the country (less than 1 ppm). ppm=parts per million.

The plant is designed so that the discharge into the tailings pond (laguna de relaves) will have a concentration between 30-90 ppb (parts per billion), thereby enabling the project to comply with the international standard of 100 ppb (0.1 ppm); additionally, the process successfully removes all base metals, including copper. Similarly, the final waste-polishing process (proceso final de pulimento de desechos), through the natural degradation of cyanide, takes place in the tailings pond. This process is understood as the complete reduction of cyanide in wastewater without human intervention, and therefore neither surface water nor groundwater in the project area and its area of influence will be contaminated. With respect to hard-rock extraction (extracción de roca dura), its effect, as compared with the saprolite extraction system (sistema de extracción de saprolita), consists of an impact on the quantity of groundwater caused by the exposure of the lower aquifer (acuífero inferior) during excavation of the open pits (tajos).

The groundwater level is expected to be drawn down to the base of this aquifer; however, as presented in the environmental impact assessment (estudio de impacto ambiental), given its distribution and flow characteristics, this situation would produce a maximum expected radius of influence of 267 meters. This clearly would not affect properties located outside that radius and, in any event, would occur entirely within the property of Industrias Infinito, meaning that water intakes or wells on neighboring properties would not be affected. The drawdown (abatimiento) would occur in the immediate vicinity of the excavation, but the magnitude of the decline in the water level could be virtually imperceptible beyond that radius of 267 meters. It was concluded that this impact is not significant in terms of aquifer use. Thus, both aquifers were assessed in the environmental impact assessment and the proposed amendment thereto, but no adverse impact was found, nor was any found with respect to the alleged contamination of rivers and streams by the system to be implemented, known as CYPLUS (see report at folio 1751).

LXVI.- Likewise, in the event of contamination caused by an emergency, the environmental impact assessment contains a chapter entitled Contingency Plan (Plan de Contingencia), which addresses every type of eventuality that could occur. In the event of earthquakes, the tailings pond will have an overflow structure or spillway (estructura de rebalse o vertedor de excedencias) that was designed and approved in the environmental impact assessment and its Annex, in order to provide permanent stability to the dam and to manage excess water independently during periods of maximum rainfall. In addition to maintaining continuous monitoring of the quality of the overflow water, a lime-dosing plant (planta dosificadora de cal) will be installed, as at the outlet of the open pits, so that the pH can be neutralized if necessary. The location of this plant is an additional measure and an extra safety factor, ensuring that the quality of the discharged water is acceptable because it complies with international standards—see report at folio 1751.

The foregoing is reinforced by the study of the previously cited scientist M.Sc. Hugo Virgilio Rodriguez Estrada, Hydrogeologist, who states that, according to the design of the Proyecto Minero Crucitas, the upper aquifer (acuífero superior) poses no limitations on its development because it will not be contaminated by the material-extraction process or by industrial processes, provided that the proposed prevention and mitigation measures are implemented. The lower aquifer is formed within igneous basement rocks, is confined in nature, and has no surface outcrops; this characteristic means that its recharge areas (áreas de recarga) are located outside the Área del Proyecto Crucitas. He reiterates that this aquifer exhibits a regional flow from northwest to southwest, with an average hydraulic gradient (gradiente hidráulica) of 3.2%, meaning that water from this aquifer does not flow toward the Río San Juan.

The confining layer (capa confinante) is not formed by saprolite but rather by certain low-permeability horizons located within the basement rocks themselves. There are currently no records indicating that this aquifer is tapped in the region, and the water quality of the lower aquifer shows a higher concentration across all chemical parameters. This is understandable because it is a deeper aquifer in which the water has a longer residence time and is more likely to be affected by hydrothermal alterations related to the mineral deposit. For this reason, the water in this aquifer is of poor quality, and the levels of ammonium, iron, potassium, sulfates, color, and turbidity fall outside the national water-quality standards for human consumption. The analyses performed on the existing data reach the general conclusion that, from a hydrogeological standpoint, the Crucitas project is viable and no adverse impact on groundwater is expected if all established control, prevention, and mitigation measures are implemented.

For its part, the hydrogeological assessment (evaluación hidrogeológica) conducted by SENARA and communicated by the General Manager through official letter GE-097-2009 of 13 de febrero de 2009 also validated the project within the framework of the commitments undertaken by the company to mitigate the potential impact on groundwater resources of interest. Report DIGH-0034-2009 of 11 de febrero de 2009, addressed to the general manager of SENARA and serving as the basis for the official letter just cited, states: “...Based on the radii of influence of the drawdown resulting from excavation intersecting the water levels of the upper and lower aquifers, public water-supply sources, such as wells or springs (nacientes), would not be affected, nor would the area of the tailings pond be reached...”; however, it emphasizes the control and prevention mechanisms that must be implemented.

LXVII.- In this regard, the Chamber finds it established that water resources do exist in the Crucitas project area, but none of the existing aquifers contain potable water, even though the upper aquifer does discharge into nearby rivers and streams. It has likewise been demonstrated that there is no risk of contamination arising from the conduct of the mining activity, provided that the prevention and mitigation measures established in the management plans are observed. This gives rise to the company’s and the administration’s inescapable duty to monitor the situation with particular vigilance so as to prevent any lapse in the aforementioned prevention and mitigation plans.

LXVIII.- Similarly, the technical evidence entered into the case file concerning the geography of the land and the direction in which the lower aquifer flows rules out the risk of contamination of this transboundary watercourse (curso de agua de carácter transfronterizo) on the terms alleged by the petitioners. On the contrary, given the obligations established in the “Convention on the Law of the Non-navigational Uses of International Watercourses” and the provisions of United Nations General Assembly Resolution number 63/124, it is clear that the Costa Rican State benefits from the protection that must be provided by the State of the watercourse from which the aquifer originates, while Costa Rica is responsible for providing full protection within its own territory because, as has been established, there is no risk of any adverse impact upon the State of the watercourse from which the regional aquifer—the lower aquifer—originates. The situation would be different if the aquifer flowed from Costa Rica toward another country, in which case Costa Rica would be required to adopt all necessary protective measures to prevent significant harm (daños sensibles) in the other watercourse State; because that is not the case, Costa Rica’s obligations in this respect are confined to the protection it must provide within its own territory.

LXIX.- Notwithstanding the foregoing, upon consulting the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento, this Court was able to ascertain that this agency had not conducted any hydrogeological study (estudio hidrogeológico) in the area and that no Environmental Impact Study (Estudio de Impacto Ambiental) for the Crucitas mining project had been submitted to SENARA; rather, only an assessment for the installation of a fuel tank had been processed through a study specifically prepared for the tank area, without reflecting the general hydrogeological conditions. Consequently, there was no information available to identify recharge and discharge zones (zonas de recarga y descarga) or the impact of the mining activity on the aquifers (mantos acuíferos). In view of SENARA’s technical authority regarding the protection of water resources (recurso hídrico), the foregoing warrants a finding of irregularity on the part of the respondent authorities concerning the assessment of environmental risk (riesgo ambiental), because, since this was an activity subject to environmental assessment (valoración ambiental), the authority responsible for granting environmental feasibility (viabilidad ambiental) was required to have all necessary technical information.

This included determining, to the greatest extent possible, whether the water resources might be affected, not merely within a specific area of the mining project but throughout the entire area to be impacted by it. Such a comprehensive assessment was not submitted to either SENARA or SETENA before the Environmental Impact Study was approved. It was only after that study had been approved that the respondent company submitted a Hydrogeological Study to SENARA for review. This resulted in report number DIGH-0034-2009, dated eleven February two thousand nine, in which the Dirección de Investigación y Gestión Hídrica of SENARA concluded that the excavation would not affect public water-supply sources, although surface waters could be contaminated if the tailings pond (laguna de relaves) lacked sufficient flow to maintain the depth of the water surface. The operating condition of the dam must therefore be guaranteed, and a treatment system must be implemented to improve the quality of the pond water discharged into the river system.

Similarly, through report number DGIH-0039-2009, dated thirteen February of that year, SENARA concluded that there was no hydraulic connection (comunicación hidráulica) between the project activities and the drinking-water sources; that neither of the two aquifers—the upper and lower aquifers—contained potable water; and that the lower aquifer discharged not toward the río San Juan but into national territory. SENARA therefore ultimately validated the Hydrogeological Study submitted, and MINAET was so informed on thirteen February two thousand nine. In accordance with the foregoing, the action must be granted on this issue, because the respondent authorities acted negligently by failing to obtain SENARA’s opinion before granting the project environmental feasibility, in accordance with the principles repeatedly established by this Court. Notwithstanding the foregoing, this ruling must be understood solely as requiring the respondent authorities to pay damages caused by the administration’s failure to require and validate a complete hydrogeological study of the project area before granting environmental feasibility, and not as annulling either the Environmental Impact Study or the environmental feasibility granted, because the competent authority—SENARA—confirmed the project’s feasibility based on the studies submitted.

This does not mean that the Chamber validates the granting of environmental permits without compliance with legal requirements whenever those requirements are subsequently satisfied. On the contrary, it reiterates that environmental permits may not validly be granted when the studies required by the legal system are incomplete. Nevertheless, in this specific case, where the potentially impactful activities remain suspended and technical information is now available concluding that the area’s water resources will not be affected, as confirmed by the competent authority, the rules of logic and science indicate that the project may proceed under the proposed terms without delays beyond those strictly necessary. In this particular case, it would be pointless to revert the validation of the Environmental Impact Study so that the administration could assess studies that have already been approved, when those studies establish the protection of the area’s water resources and no project activities that might affect those resources have been carried out.

Accordingly, the effect of the established violation is an award of damages against the State, together with an admonition to refrain from omissions or circumstances such as those that led to the granting of the action on this issue.

LXX.- Regarding the risk of aquifer contamination (contaminación acuífera) by cyanide or cyanide-bearing material. An additional issue raised by the applicants regarding the risk of aquifer contamination is the use of cyanide in the gold-leaching process (proceso de lixiviación del oro), because it is highly contaminating if not handled properly. It should be noted that, to extract the gold, the excavated earth must undergo a washing process in which cyanide is introduced to separate and extract the mineral, after which the remaining material, known as waste material (material estéril), is discarded. This washing process is conducted within a closed system that prevents cyanide from coming into contact with the environment and removes cyanide from the water used and from the processed material. Consequently, the water and materials leaving the system, which will subsequently be deposited in the tailings pond, contain no significant concentrations of cyanide and therefore pose no risk to the project’s water resources or biological environment.

This closed system will be installed on a concrete slab that prevents seepage into the soil, rock, and water resources, and it has been designed in accordance with appropriate seismic standards to withstand events measuring up to 8.4 degrees on the Richter scale—as reported during the Judicial Inspection conducted on twelve September two thousand nine. Thus, the risk of aquifer contamination by cyanide is stated to be virtually nonexistent. Another issue involving cyanide concerns its transportation, storage, and application. In compliance with resolution number 2237-2005-SETENA, dated thirty August two thousand five—that is, before the Environmental Impact Study was approved—the respondent company submitted to the Secretaría Técnica the “Protocol for the Transportation, Handling, and Storage of Hazardous Substances” («Protocolo para el Transporte, Manejo y Almacenamiento de Sustancias Peligrosas»), which necessarily includes cyanide.

Indeed, the appendices to the Environmental Impact Study include appendix 2.b, entitled “Management Protocol for the Transportation, Handling, and Storage of Hazardous Substances at the Crucitas Mining Project” («Protocolo de Gestión para el transporte, manejo y almacenamiento de sustancias peligrosas en el proyecto minero Crucitas»), which contains separate protocols for transportation, handling, and storage. This protocol addresses matters such as the hazard classification of various substances—cyanide is listed under class 6.1—and establishes how transportation must be conducted, how the cargo must be labeled and packaged, the applicable prohibitions, the specifications required for the transporting vehicle, how the transportation route must be prepared, the coordination required with the Dirección General de Ingeniería de Tránsito del Ministerio de Obras Públicas y Transportes, the conditions governing the loading, preparation, and unloading of the substances, the personnel involved in those operations, the documentation that the vehicles must carry, and the procedures applicable in cases of emergency, accident, or breakdown.

It also addresses various matters related to handling and storage, including warehouse safety and design, receipt of the substances, separation from other products, the protective equipment to be used, the inspections to be conducted, and emergency plans. In addition, appendix 2.b includes, as annex 3, the document entitled “Cyanide Management in Mining Projects” («Manejo del Cianuro en proyectos mineros»), which addresses other matters directly related to cyanide production and storage: how the product must be supplied by the provider; where and how it must be stored; risk management and assessment; how those risks are managed at the plant and at the gold mine itself; how cyanide must be transported; and the necessary information concerning the risks. It is therefore clear that all these materials were submitted by the company, assessed and approved by the Secretaría Técnica Nacional Ambiental when it validated the Environmental Impact Study and its annexes, and granted environmental feasibility to the Crucitas mining project.

LXXI.- On the risk of acid rock drainage (drenaje ácido de rocas). Once cyanide treatment (tratamiento con cianuro) has been completed and the cyanide has been removed from the water and the material, both the water and the treated material will be transferred to the tailings pond (laguna de relaves). The petitioners contend that the extraction of material from the Botija and Fortuna hills, and its disposal in the tailings pond, could lead to acid drainage and widespread contamination extending beyond the aquifers (mantos acuíferos). Acid rock drainage means a chemical reaction that occurs when rock containing iron sulfide minerals is exposed to atmospheric oxidation through the combination of water, oxygen, and carbon dioxide. Acid drainage may occur naturally or as a result of human activity, but if any of the three factors—sulfides, air, and water—do not react or are not present, acid drainage does not occur; another important factor is that not all sulfide minerals have the same reactivity or produce acidity under the same conditions, nor are all sulfide-bearing rocks or materials potentially acid-generating.

On this matter, the Chamber has been informed that the system implemented for treating the material includes an overflow containment area (área de excedencias) to prevent contamination in the event of earthquakes—the issue of seismicity is addressed in detail below—which is capable of containing the entire volume of the cyanide application system plus an additional twenty percent as a safety margin; the Chamber has been informed that the entire structure—both the tailings-pond dam and the gold-leaching and gold-recovery plants (plantas de lixiviación y obtención del oro)—meets the earthquake-resistance requirements established in the Código Sísmico de Costa Rica, to the extent that it can withstand seismic events exceeding eight degrees on the Richter scale—see the record of the judicial inspection conducted on once de setiembre de dos mil nueve-. Additionally, the pond area also has a lime-dosing plant (planta dosificadora de cal) to neutralize the pH and is confined both by natural geographic formations and by concrete structures which, together with the terrain conditions, prevent aquifer contamination through gravity flow or seepage.

Both the Ministerio del Ambiente, Energía y Telecomunicaciones and the respondent company state that the Cyplus method will be used in the cyanide-destruction process, allowing cyanide to be reduced to levels below those sought, thus exceeding the required destruction levels. Indeed, the Secretaría Técnica Nacional Ambiental reports that the Cyplus system performs above the standard established by national regulations, and that the natural degradation of cyanide takes place in the aforementioned tailings pond; consequently, the surface water and groundwater within the project and its area of influence will not be contaminated.

LXXII.- Specifically regarding the aforementioned acid drainage, the Amendment Proposal (Propuesta de modificación) clearly states that the analyses performed support the following conclusions:

a. The material covered with saprolite has very low sulfide levels. The low-pH leachate (lixiviado) from this material, which currently occurs naturally in the upper aquifer and river drainage systems, is caused by residual acidity in the draining pore water (agua intersticial); however, it has no current acid-generation potential and is therefore classified as virtually inert.

b. The rock deposit and tailings (relaves) are characterized by moderate sulfide levels and a low pH; however, they contain little carbonate, which is the compound capable of providing natural neutralization of the system. Consequently, most of the waste rock and tailings (roca inerte y colas) to be placed in the tailings area have acid-generation potential.

c. The volcanic bedrock is classified as potentially capable of generating acid drainage. These materials have some neutralizing capacity; however, materials exhibiting this condition occur in a very small proportion of the deposit and could therefore be classified as having slight acid-generation potential, with some rock materials categorized as inert.

d. Despite the potential for sulfide oxidation in the waste rock and tailings, proper management that completely prevents any possibility of a reaction among air, water, and sulfides—such as permanently keeping these materials (waste rock and tailings) submerged under water—entirely eliminates the acid-generation potential.

At the oral hearing held before this Court, the project’s Environmental Management Office (Regencia Ambiental) explained that, in the case of Crucitas, more than three hundred fifty analyses of rock samples were conducted in mil novecientos noventa y seis, the results of which were submitted to SETENA together with the Environmental Impact Study (Estudio de Impacto Ambiental) in dos mil dos—in English—and also in the Annex requested by SETENA to the Study in dos mil cinco—by then translated into Spanish. Those same results were subsequently updated in dos mil siete, reaching the conclusion stated in the amendment proposal that the rocks in the area have a low potential to generate acid. By way of example, it noted that the sulfide percentage is 1.5%, which is low because mines with severe acid drainage have sulfide percentages close to 10%, while sulfide mines may reach 50% or more. It is therefore evident that the issue of acid rock drainage was indeed considered both in the Environmental Impact Study and in the proposed amendment to the project, and both documents were ultimately duly validated by the competent administrative authority.

LXXIII.- Regarding these last two issues—cyanide management and the risk of acid drainage—the case file contains other technical reports addressing the suitability of this cyanide-destruction system and the mechanisms established by the company for this procedure. Thus, the Report on the Management and Control of Cyanide-Bearing Substances and the Generation of Acid Drainage at the Mining Project, prepared by geologists Jorge Laguna Morales and Franz Ulloa Chaverri, concludes that all processes comply with international management and control standards and that the infrastructure was designed with safety controls exceeding international standards by as much as fifteen percent; regarding the Cyplus system, it explains that it is the most effective system for destroying cyanide-bearing substances. For its part, the Report on the Management of Rock and Process Tailings with Acid-Drainage Potential, dated enero de dos mil nueve and prepared by Gregory Pleshcheev, concludes that underwater placement (reposición subacuática) of tailings and waste material is the most efficient method for managing and mitigating potential acid rock drainage, and that the pH of the tailings pond will remain within the range characteristic of local surface waters.

Likewise, the report Cyanide and Its Application at Crucitas, also dated enero de ese año, explains that the required cyanide-destruction levels are achieved when effluents are treated using the Combinox process, which includes the Cyplus system. In addition to these studies, the report Acid Rock Drainage Potential at the Crucitas Project and Existing Mitigation Plans, dated febrero de dos mil nueve and prepared by Alejandro Arauz, reiterates that the technique of submerging material suspected of causing acid drainage beneath a layer of still water has proven to be the most effective means of preventing the generation of acidic water, because eliminating contact with oxygen prevents the chemical reaction that produces acidic water. Finally, the report Review and Evaluation of Technical Information on the Application, Control, and Destruction of Cyanide in the Crucitas Mining Project Process, also dated febrero de ese año and prepared by Sherman Thomas Jackson, states that the project will have effective controls for the transportation, use, and destruction of cyanide, in compliance with current national and international regulations, and that the cyanide-destruction process will allow effluent discharges to be safely managed and controlled.

LXXIV.- On seismic activity (actividad sísmica) and its possible impact on the Crucitas mining project. During the hearing held on doce, trece y diecisiete de noviembre de dos mil nueve, a question was raised concerning the seismography of the area where the mining project is located and the possible effects or impacts of earthquakes on the tailings pond (laguna de relaves) and its dike, because the petitioners, citing information from the Atlas Tectónico de Costa Rica, assert that the area of the tailings pond and other areas of the project are intersected by a tectonic fault (falla tectónica)—see documents appearing at folios 5271 to 5277 of volume XIX of this amparo proceeding (recurso de amparo)—and therefore, in their view, a neotectonic study (estudio neotectónico) analyzing the risk of seismic activity is required—a study they believe should have been conducted for the project’s initial approval.

In this regard, the Chamber finds that the Environmental Impact Study (Estudio de Impacto Ambiental) approved by the Secretaría Técnica Nacional Ambiental does consider the region’s seismic conditions, and that the record before SETENA contains the document entitled «Estudio de Amenaza Sísmica para el Proyecto Minero Crucitas, San Carlos», prepared by the Sección de Sismología y Vulcanología de la Universidad de Costa Rica in octubre de mil novecientos noventa y seis. The Study states that the project area may be affected by interplate or intraplate earthquakes, but that such events would only be possible with a magnitude of 7.7M, acceleration 4, and ground acceleration of 2.19 m/s2, with return periods of 50 and 3.97 m/s2 for quinientos años, and that there is no evidence of mass movement or scars from past events—see page 24 of the Study. The seismic-hazard study (estudio sobre amenaza sísmica) is contained on pages 214 to 221 of the document, where it states that, because of the depth of the events originating from this seismic source, the degree of hazard to the project area is moderate and would be unlikely to exceed intensity level VII.

It adds that the active zonal faults that could pose some degree of hazard to the project are those located on the Placa Caribe at depths of less than 20 km. It states that the study covered the period from mil quinientos to mil novecientos noventa y cinco, and that the epicentral distribution of shallow earthquakes shows that seismicity is very low and that the main concentration of earthquakes is located southwest of San Jorge de Los Chiles and near the caldera structures located south of the project area. The investigations report that the faults in the area are characterized by sporadic earthquakes. The parameters of the most relevant seismic sources that could have some influence on the project area were also assessed, and consideration was given to the maximum possible duration of seismic shaking and maximum ground acceleration. It is therefore clear that the Environmental Impact Study did consider the area’s seismicity, which was not assessed as a factor preventing the project from proceeding, since that Study was approved at the time by the Secretaría Técnica Nacional Ambiental.

Similarly, the respondent authorities state in their reports that the very documentation submitted by the petitioners—obtained from the Atlas Tectónico de Costa Rica—clearly warns that the maps showing geological faults are instruments whose scale makes them unsuitable as a basis for locating civil works, for which purpose specific studies must be conducted. They therefore emphasize the seismic study on file with SETENA—one of whose authors is also an author of the Atlas Tectónico de Costa Rica—which states that the area where the mining project will be located has low seismicity. They likewise assert that the maps contained in the document submitted by the petitioners show that the fault cited by them is the so-called falla Recreo, which falls within the category of “inferred or probable” faults—Figure 19 of the Atlas—and therefore its existence has not been established. They further state that the Atlas Tectónico reports that there are no records of significant earthquakes during the siglos XIX y XX—Figure 8 of the Atlas—and that, under the Código Sísmico, this area is located in seismic-intensity zone II, meaning the lowest-intensity zone in the country.

Thus, the respondent authorities reach the same conclusion already established in the Environmental Impact Study and its approval by SETENA: that seismic events in the area would not affect the tailings pond or its dike.

LXXV.- Finally, in response to a specific request from the Chamber, the Observatorio Vulcanológico y Sismológico de Costa Rica—a research institute affiliated with the Universidad Nacional—states that ruling out entirely the existence of faults in the area would require a field study lasting several months. Nevertheless, it does confirm that the two principal faults detected in the region are the falla San Carlos, which is presumed to be an active fault or to have been active during the período Cuaternario, although none of the recorded earthquakes is associated with it; and the falla Recreo—as asserted by the respondent public authorities—which was active during the período Terciario, but for which no seismic activity has been established during the Cuaternario and no activity whatsoever has been recorded since mil novecientos ochenta y cuatro. Accordingly, based on its own studies and those of the global seismological network, OVSICORI concludes that seismic activity in the area is very low compared with other regions of the country and may be considered negligible.

The Chamber therefore observes that OVSICORI’s conclusion is consistent with the findings of the Environmental Impact Study; thus, the statements in the Study, the assessments conducted by the respondent authorities, and OVSICORI’s technical information all reach the same conclusion that there is minimal seismic risk in the area where the Crucitas mining project is located.

LXXVI.- On the structural strength of the tailings-pond dike and the risk of failure. The respondent authorities thus establish that the possibility of failure of the tailings-pond dike remains practically nonexistent because, although the developer insisted that the safety factor would prevent the dike from giving way, SETENA requested proper modeling of the possible consequences of a failure. That modeling included construction and hydrological considerations, intensity-duration-frequency curves, spillway design, the morphology of surface-water bodies, channel-forming discharge, sediment transport, and channel width, and noted that developments in construction processes and design methodologies have contributed to increased dam safety. In any event, the possibility of a tailings-pond failure had already been contemplated in the Environmental Impact Study, which defined the measures to be implemented in the event of such a risk.

The Study states that measures must be used to mitigate the effects by reducing the downstream migration of solids, including additional downstream dams, water diversions, and the removal and containment of displaced solids; however, even in the event of a failure, the impact would be temporary and reversible, would occur in an already moderately degraded setting, and would not involve cyanide-bearing solutions from the processing plant—see page 361 of the Study. The document does state that the principal impact of the highly unlikely event of a failure would be on soil cover with potential for use, because of the deposition of tailings from the tailings area; however, as stated above, those tailings would not contain cyanide-bearing solutions. In that event, the soil covered by the tailings would lose its usefulness as cultivable land and as an area for the conservation and protection of vegetation cover (cobertura vegetal).

In this regard, the estimated impacts of a dam failure would be adverse, of high magnitude, and capable of causing local effects, but would likewise be temporary and reversible—see page 363 of the Study. The same would apply to Quebrada Mina, which would receive an amount of sediment that could temporarily alter its aquatic environment and that of río Infiernito, but whose effects would likewise be reversible—pages 365 and 366. The Study does express concern if the failure were to generate an avalanche, because in that event a greater amount of material would be deposited on the ground; nevertheless, depending on its magnitude, it states that cleanup and restoration techniques could be applied—pages 367 and 368. This is consistent with the information that the Instituto Nacional de Innovación y Transferencia en Tecnología Agropecuaria sent to the Dirección General de Geología y Minas in official letter número DST-773-2006, dated cuatro de octubre de dos mil seis—within expediente 2594—stating that the productive capacity of the soils will not be lost provided that the technical management activities detailed in the declarations are carried out.

LXXVII.- On the risk of failure of the pond bottom and the possible threat to the lower aquifer. In connection with seismicity, the hearing also raised the question of whether the soil, floor, or bottom of the pond could rupture or crack in the event of an earthquake, and what effect such a rupture would have on the lower aquifer (acuífero inferior). In this regard, it has been reported that the geological conditions of the project area prevent failure of the pond bottom and eliminate the risk of aquifer contamination. It has been established that the lower aquifer is confined and that naturally occurring clay layers between nueve a dieciocho metros thick—and even up to veinticinco metros thick—already lie above it, covering the entire tailings-pond area and keeping the lower aquifer under pressure, which prevents water from the pond from seeping into the aquifer. Moreover, these clay layers cannot rupture because, by their very nature, they behave plastically—that is, they are moldable—so that if subjected to seismic forces, the clay would merely tend to deform rather than rupture or burst—see the explanation submitted by the respondent company on veintisiete de noviembre de dos mil nueve.

LXXVIII.- It is therefore clear that the seismic risk in the area of the Crucitas mining project was considered in the Environmental Impact Study and validated by the technical administrative authority responsible for approving it. Accordingly, all related parties shall abide by the provisions of the scientific documents supporting the project’s implementation under the terms agreed upon with respect to this issue.

LXXIX.- On climate change (cambio climático), the risk of drought, and the effect on the water level of the tailings pond (laguna de relaves). Furthermore, taking into consideration the situation concerning acid drainage (drenaje ácido) due to the mineral composition of the material to be deposited in the tailings pond, during the Hearing concern arose regarding the impact of climate change in the area and the potential effect on the pond of a decline in the water level or drought processes that could threaten the water resource (recurso hídrico) needed to supply it. In this regard, the Environmental Impact Study (Estudio de Impacto Ambiental) expressly addresses the climate-change situation—see pages 184 et seq. of the Study. It states that average annual precipitation exceeds three thousand mm, distributed over seven rainy months and five dry months, with relative humidity of 85%. The climate-change study used information from five weather stations located in the communities of Upala, Los Chiles, San Jorge, Pital and Coopevega, and reports that none of them appears to exhibit a defined annual pattern of extreme drought events—an extreme drought event is deemed to occur when annual rainfall decreases by 21%—because extreme droughts in the Northern Zone have been seasonal, that is, confined to a defined period of the year—the dry or rainy season—and have not lasted more than two months.

It explains that December is the month with the greatest variability in precipitation, because rainfall may cease entirely or may reach levels sufficient to cause flooding. It states that if a drought occurs during the rainy season, the perception of drought is greater because heavy precipitation is customary. It adds that the return period (período de retorno) for drought events is likewise unclear, but, taking into consideration three previous occurrences of drought during a twenty-three-year period—from nineteen eighty-two to two thousand five—an extreme dry event could occur every six to eight years. Regarding rainfall, the studies state that nearly 80% of annual precipitation falls between May and December of each year. The climate-change study establishes that the community of Las Crucitas is located in a transitional area, situated between regions with rainier conditions—such as the Caribbean coast—and less rainy areas—such as the mountainous region of the Zona Norte—and that precipitation in the Las Crucitas region should begin to decrease gradually, imperceptibly at the beginning of the century and more markedly during the second half of the century—figure 6 of the study, folio 5374—such that, by the end of the year 2100, a reduction of approximately 650 mm is projected, although drier and rainier years will continue to alternate.

Temperature variation is likewise considered, since by the year 2100 the increase will be from one to six degrees Celsius above the reference temperature of 27.5°C. Furthermore, the respondent company reports that for the tailings pond to dry out, a drought lasting approximately two years would be required, since the climatological studies conducted report that the mean evaporation rate of water from the tailings dam (represa de relaves) is 1000 mm per year; applying that rate to the volume of water contained in the pond yields the two-year estimate. It also states that, with mean annual precipitation of 3000 mm per year, a complete two-year drought would be impossible, as indicated in appendix 3 to the Environmental Impact Study. In this regard, it is evident that the climate-change situation was considered in the environmental studies for the mining project, which concluded that this process would have a minimal impact during the project’s years of operation. It is therefore inaccurate to allege that such studies do not exist and that this factor was not considered by the technical administrative authority.

LXXX.- An important point regarding the potential effect on the level of the tailings pond caused by rising temperatures and possible drought events—which, as stated, would have a minimal impact during the first half of this century—is the technical design contemplated for implementation of the mining project—an aspect validated by the competent bodies—which provides that when the upper aquifer (acuífero superior)—which, as already noted, is not potable—reaches the surface, the emerging water will be pumped into the tailings pond. Consequently, the pond’s water level does not depend exclusively on the surface water resource (recurso hídrico superficial)—quebrada Minas—but also on other sources that, by their nature, are affected differently by climate change. Accordingly, this technical consideration, as well as the limited impact that climate change would have in the project area during the implementation and closure phases, means that the concern raised about this issue during the hearing must be significantly allayed because, as stated, the technical studies establish that the risk to the mining project is minimal, thereby eliminating the alleged risk of acid drainage resulting from climate change.

LXXXI.- On the risk of the tailings pond overflowing. In contrast to the alleged risk arising from drought and the effects of climate change, the issue of the tailings pond’s capacity was raised in two respects: first, whether it could hold the extracted material—taking into account that mining will be conducted at a greater depth—and, second, whether its design prevents the water from overflowing and affecting the biological and geographical surroundings of the pond. Regarding the first aspect, page 10 of the Proposed Modification to the Crucitas Mining Project states that the tailings pond was designed to hold all rock extracted from the open pits (tajos), both saprolite (saprolita) and hard rock, to the extent that it has an excess volume or capacity of two and a half million cubic meters. Regarding the second aspect—the risk of overflow—the environmental safeguards adopted operate in two ways.

First, pages 20 to 23 of volume I of the annex to the Environmental Impact Study state that the pond’s water level will be regulated through three siphon pipes capable of draining the liquid into Quebrada Mina—the potential effect on the stream is analyzed below; that a temporary spillway (vertedor provisional) will be built with sufficient capacity to ensure that overflow is prevented in the event of heavy rains during the construction phase; and that, when construction of the dike is completed, the permanent spillway (vertedor definitivo) will likewise be built to discharge excess water, such as rainfall produced by atmospheric phenomena. The proposed modification to the project states that this overflow spillway (vertedor de excedencias) will be built in the form of an overflow tower, or “Morning Glory,” as used under the discharge regulations governing hydroelectric projects such as Arenal.

From there, the water will be conveyed through pipes to a lime-addition plant for continuous monitoring and stabilization of the pH if necessary. However, this impact is not expected to be significant because the final forecast for the quality of the overflow water is considered appropriate and compliant with national discharge standards. In any event—and this is the second aspect of the overflow risk—pages 15 to 18 of the annex to the Environmental Impact Study establish that the design of the pond and dike allows them to withstand ten to twenty times the amount of rain that falls in one day under normal conditions. Thus, if average annual rainfall in the Northern Zone is three thousand three hundred seventy-one millimeters, the pond and dike have been designed to withstand one thousand sixty-nine millimeters in a single day. Accordingly, it is clear that the possibility of an overflow was considered in the Environmental Impact Study approved by SETENA and that the competent authority in this field did consider and validate the related technical aspects.

LXXXII.- On the potential impact on quebrada Minas. The tailings pond—which, for purposes of this assessment, must be clarified is not a cyanide leaching pond (laguna de lixiviación de cianuro)—is supplied by rainwater, water used in the project, and part of the flow (caudal) of quebrada Minas. Thus, taking into consideration that the tailings pond uses water resources from the stream, that the stream itself is connected to other watercourses (cursos de agua), and that there will be spillways allowing the potential discharge of excess water into the stream, the question was raised as to the impact in the event of an overflow, dike failure, or drainage of the pond. This concern arises from the potential impact in the area immediately surrounding the project—a situation already analyzed—and, particularly, from the risk of contamination of transboundary aquifer resources (recursos acuíferos transfronterizos). This is because it has been documented that, from the tailings pond, quebrada Minas runs for approximately one kilometer before flowing into río Infiernito, which in turn continues from there for twenty kilometers before flowing into río San Juan.

Regarding the breach of the dam, reference must be made to what was already stated in the preceding recitals, where seismic risk and its minimal negative impact were considered; however, it must be clarified what would happen to the water resources (recurso hídrico) of the stream and the rivers cited. In this regard, it has been repeatedly documented that the water in the tailings pond (laguna de relaves) is free of cyanide and cyanide compounds, since the pond will receive water and rocks that have been treated in the cyanide destruction plant (planta de destrucción de cianuro); thus, the pond is a storage area for ground rock and water that contain no toxic substances. Furthermore, the monitoring plans proposed for the Processing Plant are intended to ensure that no materials will be sent there if they contain cyanide levels. In any event, plans are in place to monitor the water sources both upstream and downstream—see pages 148 to 150 of the environmental impact study (Estudio de Impacto Ambiental).

The Study does foresee that an eventual breach would discharge sediment into the Stream, potentially affecting its aquatic habitat (hábitat acuático) and that of the río Infiernito. This impact is deemed negative because it would degrade conditions in the aquatic environment; however, the Study states that its extent would be limited to that area and that it would be temporary and reversible, in a setting already moderately degraded by prior human activities, where fish losses could potentially occur but the effects would be only local—see pages 365 and 366 of the Study. Thus, it is stated that, in the event of an extreme occurrence of this kind, the affected stretch would be located near the mouth of the Stream at the río Infiernito, a flat area that would retain a volume of water and sediment, significantly reducing the peak flow (caudal pico) and maximum downstream level. In that regard, dilution in the río San Juan would reduce sediment concentrations by a proportion that, according to the respondent authorities, would fall from treinta to nueve percent, such that the expected water level affecting the río San Juan would be cuarenta y un centímetros above the average annual flow level.

It is therefore evident that potential harm to the surrounding environment resulting from a breach or overflow of water from the tailings pond was taken into account in the environmental assessments conducted and subsequently validated by the respondent authorities.

LXXXIII.- Another matter related to this issue is the possibility of an overflow from the tailings pond. First, reference must be made to what has already been stated concerning the quality of the pond water and its associated impact on the terrestrial and aquatic environments. It must also be clarified that, according to the information provided, the assessments were conducted taking into account the maximum rainfall in the area, including the precipitation levels associated with atmospheric phenomena such as hurricanes. It was thereby determined that a dam with a safety margin of un metro veinticinco centímetros is capable of retaining the liquid contents of the tailings pond. In any event, it should be recalled that the pond water is said to be free of contaminants—free of cyanide and other heavy metals—which also entails minimal risk to the surrounding environment in the event of an overflow.

LXXXIV.- Accordingly, taking into account the assessments contained in the Study, as well as those set forth in the other technical documents submitted, it is evident that the risks of a breach of the tailings-pond dam or an overflow of the pond itself are minimal, with limited effects on the terrestrial and aquatic environments that would, in any event, be temporary and reversible. In this regard, no constitutional violation is apparent in connection with the assessment conducted.

LXXXV.- Regarding the preliminary assessment of environmental impacts. In fulfillment of its oversight and inspection duties, through official letter DAJ-1757-08 dated doce de noviembre del dos mil ocho, the Ministerio del Ambiente, Energía y Telecomunicaciones ordered the Comisión Institucional de Seguimiento, Control y Fiscalización del Proyecto Minero Crucitas to conduct an inspection in the project area to determine whether any unforeseen environmental impacts existed. This Commission, composed of the Secretaría Técnica Nacional Ambiental, the Sistema Nacional de Áreas de Conservación, and the Dirección de Geología y Minas, conducted the inspection in the project area on trece de noviembre de dos mil ocho. The results of that inspection are recorded in report DAP-1379-2008-SETENA, which concludes that the activities carried out by the respondent company in the project area and authorized by the Ministerio de Ambiente, Energía y Telecomunicaciones have not caused any environmental impacts that were not foreseen in the environmental assessment (evaluación ambiental). It is therefore established that the respondent authorities have been exercising their powers to verify that the company’s activities comply with the environmental commitments (compromisos ambientales) undertaken by the company in the Study approved by the competent administrative authority.

LXXXVI.- In this regard, the technical evidence entered into the case record (expediente) strongly supports the use of the system reported by the respondent company for treating and eliminating cyanide, as well as the management and safety plans to be implemented to prevent acid rock drainage (drenaje ácido de rocas) of the kind feared by the petitioners as a result of accidents or seismic events. The consistency and complementary nature of the reports cited allow the Chamber to conclude that, if cyanide is handled as planned, the risk of cyanide contamination—both of aquifers and more generally—will indeed be substantially reduced, since it has been technically demonstrated that the cyanide will be destroyed and properly removed from the waste rock (material estéril). Nevertheless, the Ministerio del Ambiente, Energía y Telecomunicaciones and the respondent company must take note that the reported degree of certainty again depends to a large extent on full compliance with the prevention, control, monitoring, and mitigation measures.

It is therefore ordered that the utmost attention be exercised at all times to prevent noncompliance with the established protocols and to ensure continuous and uninterrupted supervision. To that end, the company must exercise the greatest care in handling, applying, and destroying cyanide, and the administration must rigorously and consistently monitor the company’s work in this field.

LXXXVII.- Regarding the construction of bridges and the potential closure of a public road by the respondent company. During the Judicial Inspection conducted on doce de setiembre de dos mil nueve, petitioner [Nombre 001] requested that the Chamber take note of two bridges built by the respondent company, as well as the alleged closure planned for a public road that has traditionally provided access to the community of Crucitas. He contended that both matters show that the company exceeded its authority in seeking easier access to the project area, even at the cost of forcing local residents to travel a longer route, and that certain works were constructed for that purpose which, in his view, entailed the cutting of trees and deterioration of the surrounding biological environment. In this regard, the Chamber notes that the petitioner’s assertions concern specific complaints which, given their character and nature, must initially be brought before and examined by the appropriate administrative bodies.

The petitioner must also take into consideration that both the alleged closure of a public road—which remains an imprecise and uncertain event because the road is open—and the claim that an access road was improved or built outside the parameters established by ordinary legislation are matters that plainly exceed the scope of this amparo proceeding (recurso de amparo), since those circumstances, even though they arise in the vicinity of the mining project, have no direct relationship to the substantive issues raised in this amparo proceeding. Consequently, if the petitioner remains dissatisfied with these situations, he must bring whatever actions he deems appropriate before the competent administrative bodies.

LXXXVIII.- Regarding the declaration that the mining project is in the national interest (declaratoria de conveniencia nacional). The dispute now under consideration originated directly in the declaration that the mining project is in the national interest, an issue that is developed in conjunction with, and is inherent in, the authorization of the land-use change (cambio de uso de suelo) on the property where the respondent company is developing the project, since those lands are classified as having forest cover (cobertura boscosa). In judgment Nº 2009-17155, this Court ruled as follows with respect to the articles challenged here by the petitioners:

“VI. Regarding Article 19(b) of the challenged Ley Forestal. The Office of the Ombudsperson, in its capacity as petitioner, states that the application of Article 19.2 of the Ley Forestal is unconstitutional because it establishes “national interest” (conveniencia nacional) as an exception to forest protection. It acknowledges that, for such an exception to apply, the social benefits must outweigh the socio-environmental costs; however, referring to the particular case of the Proyecto Minero Crucitas, it argues that the interpretation and application being given to the provision are unconstitutional because the socio-environmental costs exceed the social costs. The challenged article appears in Title III, “Private Forest Property,” Chapter I, “Forest Management,” of the Ley Forestal, which provides that, on forest-covered land, neither land-use change (cambio de uso del suelo) nor the establishment of forest plantations shall be permitted.

However, the State Forestry Administration (Administración Forestal del Estado) may grant permits in those areas for certain specified purposes, including that set forth in subsection (b), which authorizes it to carry out public or private infrastructure projects of national interest. This particular provision was addressed by this Court in Judgment No. 2006-17126, in which, after analyzing the governing principles of environmental law, the Chamber concluded that neither Article 19(b), challenged herein, nor Article 34 of the Ley Forestal is contrary to the right to a healthy and ecologically balanced environment, provided that it does not constitute authorization for public institutions to “legitimately” harm the environment or establish an exceptional regime. On that occasion, it was clearly established that the possibility of the land-use change at issue is reserved solely for private forest estate (patrimonio forestal privado); consequently, the State’s natural heritage (patrimonio natural del Estado) is not “affected” (Articles 1, second paragraph, and 18 of the Ley Forestal).

Likewise, the binding force (vinculatoriedad) of environmental regulations may be excepted—like the remainder of the legal system—only in an emergency or exceptional situation under the terms established in Article 180 of the Constitution (“to meet urgent or unforeseen needs in cases of war, civil unrest, or public calamity”), as this Court held in the aforementioned Judgment No. 1992-2340. Accordingly, environmental regulations, including their principles and rules, apply incontrovertibly to public institutions in the performance of their entrusted duties (public administration), pursuant to Article 50 of the Constitution. It is true that the challenged provisions contemplate circumstances in which the designated use of privately owned real property subject to a restriction in favor of the State forest estate (patrimonio forestal del Estado) may be modified to permit the construction of infrastructure works serving a social interest; however, as duly established, this does not constitute an exceptional regime authorizing public institutions to pollute the environment, because any case to which it is intended to apply must likewise comply with the environmental regulations in force.

This provision concerns real property upon which a restriction of evident social interest has been imposed, based on the purpose of preserving and protecting the environment; hence, the general rule is that its land use may not be changed (the first paragraph of Article 19 and the first phrase of the first paragraph of Article 34 of the Ley Forestal). Nevertheless, in view of the general interest of the national community, both rights must be weighed and their exercise balanced in accordance with the principle of sustainable human development (desarrollo humano sostenible), which recognizes the need for a balanced interrelationship among the critical elements of economic development—tourism, investment, employment, infrastructure, sound public finances, and the tax system—social policy—education, health, and security—and environmental protection. The United Nations has defined this development as expanding the choices available to all persons in a society; it is a comprehensive concept because it places men and women at the center of development and encompasses the protection of opportunities in the lives of future generations and of the natural systems upon which all life depends.

Its fundamental purpose is to create an enabling environment in which everyone may enjoy long, healthy, and creative lives, since economic growth is also a means of achieving human development. What matters, therefore, is to allow the industrial and technological development of peoples in a manner that is sustainable in its use of the physical and social environment, so as to achieve economic and social progress. The responsibility lies in balancing environmental protection, economic development, and private activities in a manner that justifies State intervention. Precisely because of the binding force of the environmental legal framework, however, the decision may not be arbitrary; the Administration’s discretion is therefore conditioned upon compliance with the body of applicable law (bloque de legalidad) governing the nature of the forest and of the project or works classified as being of “national interest,” which is defined in Article 2 of the Reglamento de la Ley Forestal, number 25.721-MINAE, as follows:

“Activities of national interest are those related to the study and implementation of projects or activities of public interest carried out by centralized government agencies, autonomous institutions, or private enterprises that provide benefits to all or a large portion of society, such as: water collection, conveyance, and supply; oil pipelines; road construction; electricity generation, transmission, and distribution; transportation associated with mining activities; irrigation and drainage canals; restoration of land suitable for forestry; forest conservation and sustainable management; and other activities of a similar nature determined by MINAE in accordance with the country’s needs.” Compliance is likewise required with environmental principles and regulations, under which technical studies (estudios técnicos) must be conducted (Article 17 of the Ley Orgánica del Ambiente) to establish the suitability of the project at the designated location and the environmental impact of such works, in order to determine the compensatory measures (medidas compensatorias) necessary to mitigate adverse effects; the project must also be subject to prior, ongoing, and subsequent technical oversight during construction by the appropriate public authorities, particularly MINAE and SETENA.

Implementation requires a forestry regent (regente forestal) and a management plan (plan de manejo) (Articles 20 and 21 of the Ley Forestal), and the permit may, of course, be revoked if the requirements upon which authorization was based are not met—that is, if the environment is harmed. The measure must also, of course, be reasonable and proportionate, as the cited provisions expressly require, such that “forest cutting shall be limited, proportionate, and reasonable for the purposes stated above.” The possibility of changing the land use of privately owned real property previously subjected to restrictions for the preservation of forest resources was based precisely on the concept of sustainable development (desarrollo sostenible), which must form part of the substantive content of proper environmental protection. Thus, as already indicated, promoting the economic and social development of the population is not only possible but necessary—in fulfillment of the provision contained in the first paragraph of Article 50 of the Constitution, under which the State must seek the greatest well-being of all the country’s inhabitants by organizing and encouraging production and the most appropriate distribution of wealth—subject, of course, to compliance with environmental regulations.

Otherwise, our country’s development would be severely paralyzed, an outcome neither desired nor intended by the framers of the Constitution or by the legislators responsible for enacting the Ley in question. Accordingly, this Court adheres to its previously stated position and holds that the challenged provision does not infringe the right to a healthy and balanced environment, because before a project may be formally designated as being of national interest, its environmental impacts must be assessed and compared with the social benefits it entails. This cannot be determined through an abstract review of the provision, but only through analysis of each specific case by means of an amparo proceeding (recurso de amparo), rather than an action of unconstitutionality (acción de inconstitucionalidad) (…)

VII.Regarding Article 6 of the Código de Minería. The petitioner, Defensoría, seeks a declaration that the first paragraph of this article is unconstitutional, arguing that the word “all” recognizes all mining activity as being of public utility (utilidad pública), disregarding the fact that some types of mining are more polluting than others and directly violate the provisions of Article 50 of the Constitution. It likewise alleges that “the environmental alterations caused by underground mining are less severe, less radical, less extensive, and less widespread than those caused by surface mining.” This Court considers that it cannot be generally asserted that all mining activity harms the environment, without considering the mitigation of its impacts and without assessing, in each specific case, the social and economic effects generated around this industry. As the Procuraduría General de la República rightly states, when this activity is conducted sustainably, both nationally and worldwide, it is of great importance for obtaining materials (sand, gravel, aggregates, brick clay, limestone and shale for cement manufacturing, as well as certain fuels and other minerals) and raw materials essential to the final manufacture of products or the construction of infrastructure works.

Nor is it accurate to assert that all open-pit mining is more harmful than underground mining, since this will depend on the processes applied to each. If the Executive Branch determines that a mining project may or should be declared to be in the national interest (conveniencia nacional), it must establish that the benefits outweigh the socio-environmental costs through the application of the appropriate procedures or instruments. Thus, whether to encourage a particular activity is a matter of expediency and advisability, as has been done in other economic sectors of the country. Currently, for example, Article 1 of Ley No. 6990 “Ley de Incentivos de desarrollo Turístico” declares the tourism industry to be of public utility, while Article 2 of the “Ley sobre el régimen de productores, beneficiadores y exportadores de café”, Ley No. 2762, declares matters relating to the production, processing, marketing, quality, and reputation of Costa Rican coffee to be in the public interest (interés público), for all purposes set forth in that law.” Furthermore, Article 6 at issue must be read as a whole.

Although it begins by declaring all mining activity to be of public utility, both exploration and extraction work, and grants the same status to the concentration, beneficiation, processing, and transportation of mineral substances and to privately or State-owned land required for those purposes, the provision continues as follows: “Except with the express authorization of the Legislative Assembly, permits or concessions may be denied or made subject to conditions, based on an analysis of the social and environmental impact studies conducted, with the participation of the affected communities, when such studies concern the health and safety of residents of communities located near transportation routes, aqueducts, oil pipelines, fuel or explosives storage facilities, civil defense works, population centers, cemeteries, airports, hydroelectric plants, or works of public importance. Social and environmental impact studies shall include an analysis of alternative land use for various economic activities.

The environmental impact analysis shall include the distances and other conditions applicable to each specific permit referred to in this article. Permits or concessions may be denied or made subject to conditions on grounds of national interest. In the event of termination, the national interest shall be declared by the Legislative Assembly.” Thus, this is not an unrestricted authorization, because these provisions must be applied in accordance with the environmental protection guaranteed by Article 50 of the Political Constitution. Under this Chamber’s interpretation of that provision and of the international environmental agreements signed by our country, the environment must be understood as a development resource to be used appropriately, and action must be taken in an integrated manner with regard to its natural, sociocultural, technological, and political interrelationships; otherwise, its productivity is degraded for both the present and the future, and the heritage of future generations could be placed at risk.

The causes of environmental problems are complex and involve an interaction between natural and social processes within the framework of the socioeconomic development model adopted by the country. Environmental problems arise, for example, when methods of exploiting natural resources cause degradation of ecosystems beyond their capacity for regeneration, thereby harming broad sectors of the population and generating high environmental and social costs that result in a deterioration in quality of life, since the fundamental purpose of using and protecting the environment is precisely to achieve development and progress favorable to human beings. Environmental quality is a fundamental parameter of that quality of life; other equally important parameters are health, food, employment, housing, education, and so forth. More important, however, is understanding that although human beings have the right to use the environment for their own development, they also have a duty to protect and preserve it for present and future generations.

This is not particularly novel, since it is merely the application to this field of the principle of “injury” (lesión), already established in ordinary law, under which the legitimate exercise of a right has two essential limits: on the one hand, the equal rights of others and, on the other, the rational exercise and beneficial enjoyment of the right itself. Like any other nation, our country has depended and will continue to depend on its natural resources and environment to meet the basic needs of its inhabitants and to keep operating the productive apparatus that sustains the national economy. Soil, water, air, marine and coastal resources, forests, biological diversity, mineral resources, and the landscape constitute the environmental framework without which basic needs—such as living space, food, energy, housing, sanitation, and recreation—could not be met. Likewise, our economy is also closely linked to the condition of the environment and natural resources.

Moreover, the goals of sustainable development concern human survival and well-being and the maintenance of essential ecological processes—that is, environmental quality and the survival of other species. To speak of sustainable development in terms of meeting present and future human needs and improving quality of life is to speak of individual demand for natural resources and of the direct or supporting means needed for the economy to function, generate employment, and create capital goods that, in turn, make it possible to transform resources into consumer, production, and export goods. The declaration made at the 1992 Earth Summit proclaimed and recognized the planet’s integral and interdependent nature; this entails acceptance of certain principles that guide the transition from current development models to sustainability. The signatory States, including Costa Rica, undertook, as part of the preservation of sustainable development, to protect human beings above all.

They proceeded from the principle that every person has the right to a healthy and productive life in harmony with nature; they included the right of present and future generations to have development carried out in a manner that meets their environmental and developmental needs; and they preserved the sovereign authority of States to exploit their resources, while emphasizing their responsibility to ensure that activities conducted within their jurisdiction and control do not cause environmental harm to other States or to areas beyond the limits of their national jurisdiction. They established the duty of States to cooperate in conserving, protecting, and restoring the environment, as well as their shared responsibilities in that regard; thus, international cooperation in promoting and supporting economic growth and sustainable development will make it possible to address the problems of environmental degradation more effectively.

A special duty was also imposed on developed countries, based on their responsibility in the pursuit of sustainable development, given the evident pressure exerted on the global environment by the technologies they develop and the financial resources they possess. Consequently, rules intended to protect the environment must have a technical basis, since their application must proceed from the conditions governing the use and exploitation of natural resources. This is so because, since environmental damage and pollution can be assessed, the impact of these factors requires scientific analysis and treatment. Social, economic, and environmental factors were considered by legislators when they amended the Código de Minería through Ley No. 6797 de 4 de octubre de 1982. The records of the corresponding legislative expediente show that their intention was to enact a new Código de Minería, which was essential to modernize the legislation then in force and provide a legal framework suited to the needs of the new stage of development of the mining sector, since the legislation existing at that time was seriously deficient and there was no national policy for promoting and developing mining, as there was in other sectors of the economy.

During their deliberations, they had before them an assessment of Costa Rica’s mining sector issued by the OEA in diciembre de 1978 (folio 598 del tomo III), intended to identify the problems affecting mining activity in the country. A study was also requested from the Universidad Nacional Facultad de Ciencias, Tierra y Mar, Escuela de Ciencias Ambientales, and was issued by Ingeniero Carlos Torres Acosta in enero de 1980. They also obtained advice through the participation of various specialists in geology, environmentalists, and others, as well as foreign assistance from the government of Venezuela, where an inspection was even conducted. The legislative text was ultimately amended to include a chapter on environmental protection. Accordingly, it was clear to the legislature that although its intention was to encourage an economic activity that had been neglected in our country because of deficient legislation, it did not disregard the importance of preventing any environmental damage, and therefore required a study before any mining exploration or extraction.

As stated above, the Chamber recognizes the need for a balanced interrelationship among the critical elements of economic development (tourism, investment, employment, infrastructure, sound public finances, and the tax system), social policy (education, health, and security), and environmental protection.

However, the responsibility lies in balancing environmental protection, economic development, and the activities of private parties in a manner that justifies State intervention. This is because excessive environmental protection that precludes all economic activity may impose disproportionate and unnecessary costs on private parties, rendering certain productive activities financially ruinous and generating poverty and unemployment, which would negatively affect the population. Likewise, however, uncontrolled and irresponsible economic activity may cause irreversible damage to the ecosystem; hence, the “in dubio pro natura” principle (principio “in dubio pro natura”) must be applied, meaning that if there is doubt as to whether an activity causes environmental harm, priority must be given to protecting the environment and, consequently, that activity must be restricted or prohibited. Nevertheless, the determination that such doubt exists cannot and must not be left to the discretion of any group whatsoever, but must instead be based on technical studies, since this principle applies where there is a risk of serious or irreversible environmental harm.

Specifically, Article 3 of the Mining Code provides that every exploration permit (permiso de exploración) or mining concession (concesión de explotación) requires prior analysis and approval of an environmental impact study or assessment (estudio o evaluación de impacto ambiental). This is because the effects of a mining project undoubtedly require an environmental impact assessment due to the consequences that commonly arise from the development of the mining industry, and this prior assessment will determine whether the project is environmentally viable. Consequently, in light of the foregoing, the declaration that an activity such as mining is in the public interest (declaratoria de utilidad pública) is not unconstitutional per se, provided that it is interpreted in light of Article 50 of our Political Constitution, under the terms set forth above. Magistrates Armijo, Cruz, and Molina dissent and declare the aforementioned Article 6 unconstitutional, with all resulting consequences.

VIII.Regarding the alleged unconstitutionality of Article 3, subsection m), of the Ley Forestal. The petitioner alleges that the concept of an “activity of national benefit” (actividad de conveniencia nacional) that affects the environment in the manner in which open-pit mining is conducted is not an activity of national benefit and that, therefore, the interpretation and application given to it in Decreto 34801-MINAET is unconstitutional because it contravenes Article 50 of the Political Constitution. Regarding this issue, it should first be noted that the challenged Article 3 is merely a reference provision within the Ley Forestal, since it sets forth the definitions of certain important concepts for the purpose of applying forestry legislation. Note that subsection m) merely defines what must be understood as a matter of national benefit:

“...m) Activities of national benefit: Activities carried out by centralized State agencies, autonomous institutions, or private enterprise, whose social benefits exceed their socio-environmental costs. The balance shall be determined using the appropriate instruments.” The foregoing does not render the provision unconstitutional because, as indicated, it merely provides a reference as to what must be understood as a matter of national benefit in those provisions in which the legislation so stipulates. Any unconstitutionality related to Article 50 of the Political Constitution would have to be assessed in each particular case in which that definition has been applied and has affected the right to a healthy and ecologically balanced environment. The petitioner’s own argument shows that her disagreement is not actually with the provision itself, but with the Executive Branch’s assessment and application thereof in Decreto Ejecutivo No. 35801-MINAET, which is not a matter to be decided through an action of unconstitutionality, but rather through an amparo proceeding. Accordingly, for purposes of this review, the action must be dismissed insofar as it concerns this provision.

IX.Regarding Decreto No. 34801-MINAET. As held by the majority of the Chamber in judgments No. 2008-17292 and 2008-17293, Decreto Ejecutivo No. 34801-MINAET del 13 de octubre del 2008, which declares the Proyecto Minero Crucitas to be of public interest and national benefit, is a specific and individualized provision, without general scope or normative character, limited to classifying the public interest and national benefit of a project clearly individualized as to its subject and content. Therefore, if the challenged provision infringes the fundamental right enshrined in Article 50 of the Political Constitution, this must be examined through an amparo proceeding and not through the (residual) action proceeding (to the same effect, Nº 1993-4422 de las 10:30 horas del 7 de setiembre de 1993).”

Thus, to examine the scope and legitimacy of the declaration of national benefit, the authorization for the land-use change (cambio de uso de suelo) must be assessed concurrently. Accordingly, subsection b) of Article 19 and Article 34 of the Ley Forestal prohibit land-use change and tree cutting (corta de árboles) on forest-covered land (terrenos cubiertos de bosque), except for private or State projects declared by the Executive Branch to be of national benefit. The cited articles provide, in relevant part:

“ARTICLE 19.- Authorized activities.

On forest-covered land, changing the land use or establishing forest plantations shall not be permitted. However, the State Forestry Administration may grant permits in those areas for the following purposes:

• a)Building residences, offices, stables, livestock pens, nurseries, roads, bridges, and facilities intended for recreation, ecotourism, and other similar improvements on privately owned land and properties where forests are located.
• b)Carrying out State or private infrastructure projects of national benefit.

(...)

ARTICLE 34.- Prohibition on felling in protected areas. The cutting or removal of trees in the protection areas described in the preceding article is prohibited, except for projects declared by the Executive Branch to be of national benefit.

The boundary alignments (alineamientos) that must be processed in connection with these areas shall be prepared by the Instituto Nacional de Vivienda y Urbanismo.” The petitioners have challenged the declaration of national benefit on the ground that the recently cited Article 19 provides that such a declaration may concern infrastructure projects, whereas, in their view, a mining project does not qualify as infrastructure. In this regard, it should be stated that defining which types of works or projects must be understood as “infrastructure” and which must not falls outside the scope of the Chamber’s jurisdiction. What the Chamber must assess in these cases is limited to determining whether the declaration of national benefit required by the legal system to authorize the land-use change has been issued, without dwelling on the etymological scope of concepts that, by their very nature, fall within the technical jurisdiction of other bodies. Thus, legislation establishes the Administration’s authority to authorize land-use change and tree cutting in protected areas when the activities to be undertaken have been declared to be of national benefit. In light of the foregoing, it is necessary to clarify what is meant by national benefit, for which purpose the Ley Forestal itself explains this concept, specifying in subsection m) of Article 3 that:

“ARTICLE 3.- Definitions For purposes of this law, the following shall be considered: (,,,) m) Activities of national benefit: Activities carried out by centralized State agencies, autonomous institutions, or private enterprise, whose social benefits exceed their socio-environmental costs.

The balance shall be determined using the appropriate instruments.”

(As amended by Article 114 of Ley N° 7788 del 30 de abril de 1998)

This definition is supplemented by Article 2 of the Regulations to the Ley Forestal, issued by Decreto número 25721, publicado en La Gaceta número 16 del veintitrés de enero de mil novecientos noventa y siete, which provides that:

“Article 2°—For purposes of applying the Ley Forestal and these Regulations, the terms mentioned shall have the following meanings: (...)

- National Benefit: Activities of national benefit are those related to the study and execution of projects or activities of public interest carried out by centralized State agencies, autonomous institutions, or private enterprise that provide benefits to all or a large part of society, such as: water collection, conveyance, and supply; oil pipelines; road construction; electricity generation, transmission, and distribution; transportation; mining activities; irrigation and drainage canals; restoration of land suitable for forestry; forest conservation and sustainable management; and other activities of a similar nature determined by MINAE according to the country’s needs.” This regulatory provision defines mining activity as being of national benefit because it is an activity of public interest, a definition derived both from the cited statutory provisions and, particularly, from the first paragraph of Article 6 of the Mining Code, which states that “[a]ll mining activity is hereby declared to be of public utility, both exploration and extraction work.” Read together, the provisions under discussion establish that mining activity has been recognized by the Legislative Branch as being of national benefit in general terms—Article 6 of the Mining Code—but that status must be recognized in individual cases through a declaration of national benefit issued by the Executive Branch, which may be adopted when, in the specific case, the social benefits to be obtained exceed the project’s socio-environmental costs—Article 3.m of the Ley Forestal.

In other words, it is valid to state that there is a rebuttable legal presumption (presunción legislativa iuris tantum) that mining activity is of public utility and interest and, therefore, of national benefit; however, that presumption must be verified by the Executive Branch before it can become an undisputed fact, based on a comparison between the social benefits and the socio-environmental cost. Put differently, the general declaration of national benefit does not per se cover all mining activity or every mining exploration and extraction project, but only those in which it has been demonstrated that the benefits exceed the costs. Ultimately, if the Executive Branch considers that a mining project may or should be declared to be of national benefit, it must regard the superiority of the benefits over the costs as established through the application of the appropriate procedures or instruments.

It is by carrying out this procedure and obtaining such results that a mining activity may be declared to be of national benefit, and it is on the basis of this declaration that, in cases such as the one now before the Chamber, action may be taken pursuant to Article 19.b of the Ley Forestal.

LXXXIX.- For the foregoing reasons, it is inaccurate to assert that Article 2 of the Regulations to the Ley Forestal is unconstitutional, because, in accordance with what has been established, the provisions of that article must be read together with and applied according to Articles 19 and 34 of the Ley Forestal itself. That is, even though Article 2 of the Regulations identifies mining activity as an activity of national benefit, it is clear that such status, classification, or recognition—national benefit—is contingent upon compliance with the statutory provisions—proof that the benefits exceed the cost. It is therefore evident that the Regulations neither supplant the legislative will, deprive the statutory provisions underlying them of their substance, nor in any way contradict the environmental protection that must be afforded pursuant to Article 50 of the Constitution. Nor can it be argued that this regulatory provision exceeds the bounds of reasonableness when, on the contrary, it requires the performance of specific acts established by law.

Thus, authorization for a land-use change cannot be granted merely because the Regulations state that mining activity is of national benefit; rather, such authorization is appropriate when that benefit has been duly demonstrated and publicly declared by the Executive Branch through a subsequent act—an administrative act (acto administrativo) issued after the relevant procedures and instruments have been applied. The application of these instruments and the determination that the benefits outweigh the costs are precisely what prevent the Administration from adopting arbitrary acts, since the results obtained will provide the criteria and objective technical basis for the Executive Branch to issue a declaration that a particular mining project is of national benefit and the corresponding authorization for the land-use change.

XC.- The issue of the necessary objectivity and avoidance of arbitrariness has already been defined by this Chamber, precisely in affirming the constitutional validity (conformidad constitucional) of Articles 19.b and 34 of the Ley Forestal with respect to authorization for land-use change (cambio de uso de suelo). By Judgment number 2006-17126, issued at fifteen hours and five minutes on veintiocho de noviembre de dos mil seis, the Chamber held that:

“Third: It is precisely because environmental law is binding that the decision cannot be arbitrary; accordingly, the Administration’s discretion (discrecionalidad de la Administración) is conditioned upon compliance with the body of applicable law (bloque de legalidad), with reference to the nature of the project or works classified as being of ‘national interest’ (conveniencia nacional), which is defined in Article 2 of the Reglamento de la Ley Forestal, number 25.721-MINAE, as follows:

‘Activities of national interest are those related to the study and execution of projects or activities in the public interest undertaken by centralized government agencies, autonomous institutions, or private enterprises, which provide benefits to all or a large part of society, such as: water collection, conveyance, and supply; oil pipelines; road construction; electricity generation, transmission, and distribution; transportation for mining activities; irrigation and drainage canals; restoration of lands suited for forestry; forest conservation and sustainable management; and other activities of a similar nature as determined by MINAE according to the country’s needs.’ Compliance with environmental principles and regulations is also required. Under those principles and regulations, technical studies must be conducted (Article 17 of the Ley Orgánica del Ambiente) to establish the suitability of the project at the proposed location and the impact that such works will have on the environment, in order to determine the compensatory measures (medidas compensatorias) necessary to mitigate adverse effects; the project must be subject to technical oversight before, during, and after construction by the appropriate public authorities (particularly MINAE and SETENA); a forestry officer (regente forestal) and a management plan (plan de manejo) are required (Articles 20 and 21 of the Ley Forestal) for its implementation; and, of course, the permit may be revoked if the requirements that justified its authorization are not met—that is, if environmental harm occurs.

The measure must also be reasonable and proportionate, as the provisions cited properly require, so that ‘forest cutting shall be limited, proportionate, and reasonable in relation to the purposes set forth above.’ Fourth: Lastly, it must be considered that the possibility of changing the land use of privately owned properties previously subjected to restrictions for the preservation of forest resources is based on the fact that, as noted above (Considerando V.- of this judgment), the concept of sustainable development (desarrollo sostenible) forms part of the content of proper environmental protection (debida tutela ambiental). Thus, promoting the population’s economic and social development is not only possible but necessary—in fulfillment of the provision contained in the first paragraph of Article 50 of the Constitution (which states, ‘The State shall seek the greatest welfare of all inhabitants of the country by organizing and encouraging production and the most appropriate distribution of wealth’)—provided, of course, that environmental rules are respected; otherwise, our country’s development would be seriously paralyzed, an outcome neither desired nor intended by the constitutional reformers or by the legislators responsible for enacting the Ley in question (…)”.

It is therefore abundantly clear that, if the legal framework requires the Administration to conduct a prior procedure before issuing a declaration that a particular activity is of national interest, this constitutes precisely a safeguard against administrative arbitrariness and, instead, requires the Administration to adopt and issue administrative acts (actos administrativos) duly supported by objective technical reasons. Furthermore, this ensures that the administrative act issued may subsequently be reviewed by the appropriate administrative and judicial bodies.

XCI.- Once national interest has thus been recognized, it is clear that authorization may be granted on land with forest cover (cobertura boscosa) for a land-use change and the corresponding cutting of trees, if the activity to be carried out is declared to be of national interest by the Executive Branch. Such a declaration may be issued only if the social benefits to be obtained outweigh the project’s socio-environmental costs—an objective, non-arbitrary determination. Therefore, any analysis of whether the Crucitas mining project should be declared to be of national interest necessarily entails assessing whether, in this particular case, it was considered and concluded that the social benefits outweigh the socio-environmental costs.

XCII.- It follows from the preceding recitals (considerandos)—namely, that a declaration of national interest applies only to projects for which a positive balance between environmental costs and socioeconomic benefits has been demonstrated, and not generally to all mining activity; and that such a declaration in specific cases requires compliance with applicable provisions and adherence to the prescribed procedure, implying a technical and objective basis—that determining whether a specific project should be declared to be of national interest falls within the Executive Branch’s own jurisdiction and authority, as provided by the legislation enacted by the Legislative Branch. Compliance with that legislation requires observance of administrative procedures establishing the existence of those objective grounds, which, as a matter within the Administration’s technical jurisdiction, must be validated and approved by the Executive Branch’s specialized bodies.

At the same time, it must be recognized that the exercise of this authority falls within the scope of identifying and establishing public policy, a matter unquestionably entrusted to the Executive Branch’s initiative, consideration, and implementation, since deciding which actions benefit the population—whether generally or specifically—and whether their implementation is appropriate at a particular time or in a particular context is, by definition, a power belonging to that Branch. For this purpose, proper coordination within the Administration must be promoted at all times—regarding such coordination, see Judgment of this Chamber number 2007-13583, issued at fifteen hours and ten minutes on 19 de setiembre de 2007. In this regard, because the establishment of public policy falls within the Executive Branch’s jurisdiction based on technical and objective reasons in a given context, questions as to whether such policies are appropriate or viable fall outside the jurisdiction of constitutional review (jurisdicción constitucional)—Judgment of this Chamber number 2009-5270, issued at twelve hours and twenty-eight minutes on 27 de marzo de 2009.

In situations such as those now under consideration, the foregoing means that declaring a mining project to be of national interest is a determination resulting from the exercise of the powers granted by the legislature itself to the Executive Branch, so that the Executive Branch may define the public policies it considers appropriate for a particular place and time. Because such a public-policy determination is inherently political rather than legal, it cannot be challenged before this jurisdiction. Accordingly, if a specific mining project is classified as being of national interest, it must be understood that this designation is granted by the Executive Branch in the exercise of its authority to define public policy, as conferred and recognized by the Legislative Branch. The other Branches of the Republic cannot be understood to have any degree of participation in that determination and must confine themselves to exercising the powers assigned to them by the Constitution and the law.

XCIII.- Balancing economic and social benefits for authorization of the land-use change. Based on the foregoing and in compliance with the legislation cited in the preceding recitals, in response to the company’s application for a land-use change, the Administration required, beginning on tres de junio de dos mil ocho—see official letter number 456-2008 SCH of the Área de Conservación Arenal Huetar Norte—that, before the application could be considered and assessed, the case file contain the corresponding declaration that the mining activity conducted by the company in the Crucitas area was of national interest. There was even some internal discussion within the agency regarding the need to require such a declaration. Consequently, it was not until veinticuatro de setiembre de dos mil ocho, through official letter number 695-2008 SC, that the Subregión San Carlos-Los Chiles of SINAC’s Área de Conservación Arenal Huetar Norte informed the company that a decree of national interest was indeed required before the application for a land-use change could be decided. Thus, Decreto Ejecutivo number 34801-MINAET, published in La Gaceta number 201 on diecisiete de octubre de dos mil ocho, expressly provides, insofar as relevant, that:

“VII.—The Crucitas project will bring several economic benefits to the community of San Carlos and the central government. These benefits include the following: i) The mine will operate for approximately 11 years (including construction, operation, and technical closure). This means that, during that time, the communities near Crucitas will experience development and there will be a demand for labor; ii) The initial investment required to construct the Crucitas Mine is approximately US$ 65,000,000. It is estimated that a large portion of that amount will be used to purchase professional services, pay contractors, and purchase materials and machinery, much of which will be acquired in the San Carlos area; iii) It is estimated that 253 people will be directly employed. In mining, it is calculated that each direct employee generates work for 5 indirect employees; therefore, there will be 1,265 indirect employees; iv) As part of its social commitments, efforts will be made to ensure that at least 75% of the employees come from the area near Crucitas; v) Payroll: The annual payroll for employees is estimated at US $ 4,132,859; vi) Local tax.

The Mining Code establishes that mining companies must pay 2% of their gross profits to the community; therefore, the Municipality of San Carlos and the community within the Crucitas area of influence would receive approximately US $ 1,441,158 annually for eight years (for a total of US $ 11,529,263); vii) A trust fund (fideicomiso) is maintained to finance social works and the activities of the Crucitas Project monitoring commission, which would receive US $ 364,063 annually; and viii) The Crucitas project will pay taxes to the central government; the estimated annual income-tax payment is US$8,790,289, for a total of US $ 70,322,309 over the life of the mine.

VIII.The construction and development of the Proyecto Crucitas requires the felling of trees on 191 Ha 7 782,66 m2 of forest, representing 19.93 % of the forest existing across all the properties; the felling of trees on 66 Ha 9474,53 m2 of agricultural-use areas without forest, representing 14.00 % of the agricultural-use areas without forest existing across all the properties; and the felling of trees on 4 Ha 1 751,38 m2 containing forest plantations (plantaciones forestales), representing 12.33 % of the forest plantations existing across all the properties. Among the forest species in the area are certain protected species (especies vedadas), in accordance with the judgment of the Sala Constitucional Nº 2486, issued at 10 horas 54 minutos del 8 de marzo de 2002, and Decreto Ejecutivo Nº 25700 del 15 de noviembre de 1996.

IX.As compensation for the land-use change (cambio de uso), Industrias Infinito, S. A. proposed the following compensation measures: i) Support for the purchase of land for conservation in the amount of two hundred fifty thousand dollars; ii) The planting of 49.8 trees for every tree that must be felled; and iii) The creation and conservation of a biological corridor (corredor biológico) within its properties. Por tanto,

Decree:

DECLARATION OF PUBLIC INTEREST AND NATIONAL BENEFIT OF THE PROYECTO MINERO CRUCITAS Article 1—The Proyecto Minero Crucitas, developed by Industrias Infinito, S. A., is hereby declared to be of public interest and national benefit.

Article 2—By virtue of this declaration, the development company, with prior authorization from the corresponding office of the Sistema Nacional de Áreas de Conservación, may proceed with the felling of trees (including protected species) and the development of infrastructure works in protected areas (áreas de protección), as indicated in the project. (…)”.

XCIV.— Nevertheless, the petitioners contend that the cited decree fails to assess the socio-environmental cost entailed by the destruction of 196 hectares of forest; that there is no objective scientific and technical basis for establishing the social benefit; that the benefits mentioned are speculative; and that, in any event, they are no different from the benefits that any other economic activity might generate. In this regard, the Court notes that, through official letter number SG-ASA-259-2008, dated diez de octubre de dos mil ocho, the Secretaría Técnica Nacional Ambiental informed the Departamento de Auditoría y Seguimiento Ambiental that the assessment to determine the balance between the environmental cost and the project’s socioeconomic benefits was conducted before SETENA over a three-year period, during which it was determined that the social benefits outweighed the environmental cost.

Indeed, recital VII (considerando VII) of the cited decree lists the project’s economic, social, and fiscal benefits, while recital VIII specifies the environmental cost of conducting the mining activity under the proposed terms, acknowledging that this would require felling the equivalent of 19.93% of the forest existing across all forested properties, 14% of the trees existing in agricultural-use areas without forest, and 12.33% of the forest plantations, including certain protected species. However, recital IX of the same decree establishes the compensation measures, most notably the planting of almost fifty trees for every tree felled and the creation and conservation of a biological corridor within the company’s properties. It is therefore demonstrated that the Administration did take into account both the environmental costs that would be incurred and the socioeconomic benefits that would result from the activity.

The assessment of these various elements and the results of the evaluation conducted at the administrative level—first before the Dirección de Geología y Minas for the mineral exploration and mining concessions (concesiones de exploración y explotación mineras), and subsequently before the Secretaría Técnica Nacional Ambiental to obtain the corresponding environmental feasibility (viabilidad ambiental)—led the Administration to conclude that the social benefits did in fact outweigh the project’s environmental cost, because any potential environmental harm would be remedied through the compensation measures, ultimately producing economic benefits not previously available in the area without causing certain harm to the environment. This does not mean that the Court endorses the proposition that a harmful activity may be permitted if the resulting harm is subsequently remedied—that is, that reparation nullifies a violation.

On the contrary, if it is acknowledged that an activity has a certain impact on the environment, but it is also established that such impact does not result in environmental harm (daño ambiental), the activity may be permitted when it is demonstrated that the benefits outweigh the costs. The cited decree identifies and explains the benefits, costs, and compensation activities; accordingly, the Court concludes that the decree is duly substantiated in accordance with Articles 19.b and 34 of the Ley Forestal, since the decree is indeed the result of the benefits-and-costs analysis defined in those provisions.

XCV.— In this regard, the Court clarifies that an executive decree declaring an activity to be of national benefit under the terms described above must clearly state the relationship between benefits and costs. It is not necessary for the decree itself to expressly set forth the entire assessment conducted, the instruments applied, the methodology used, or the scores obtained and assigned to each item. All of those requirements must be satisfied at the administrative level, but the entire assessment need not be transcribed into the body of the decree. For purposes of substantiating the regulatory instrument, it is sufficient to refer to the performance of the assessment or balancing procedure and explain the costs and the benefits to be obtained; in other words, the decree must demonstrate through specific and exact data that the assessment was in fact conducted. It should be noted that, in the case under review, before the Administration could issue Decreto 34801, it necessarily had to establish the anticipated economic benefits and calculate the environmental impact resulting from the mining activity carried out by the respondent company. That analysis subsequently enabled it to provide the enumeration contained in recitals VII, VIII, and IX of that Decree.

XCVI.— As stated above, these technical studies were considered first in mining concession file number 2594 of the Dirección de Geología y Minas and subsequently in the Secretaría Técnica Nacional Ambiental file beginning in marzo de dos mil dos. Indeed, the company submitted the corresponding Feasibility Study (Estudio de Factibilidad) to the Dirección de Geología y Minas, including a specific section on “Economic Benefits for Costa Rica,” which addressed the benefits expected during the exploration, construction, and operation phases; projected gross revenues; interest expenses; capital expenditures; and other cash benefits related to fuel taxes, mineral extraction, payment of social-security contributions, and other related matters. Thus, through official letter number DGM-DC-320-2001, dated catorce de marzo de dos mil uno, the Dirección de Geología stated that the study had been reviewed by the institution’s geologists, while making approval of the program contingent upon the outcome of the feasibility-study analysis.

Accordingly, the study was reviewed by economist Edwin Vega Araya, an official of the Ministerio de Planificación, who provided this service pursuant to an agreement entered into between that Ministry and the Ministerio del Ambiente y Energía. In response to the first report submitted by Mr. Vega in octubre de dos mil, within the same expediente 2594, the company submitted Appendix 9 to the Annex of the Feasibility Study, as a result of which economist Vega issued the “Report on Economic Aspects of the Review of the Annexes to the Feasibility Study for the Proyecto Crucitas (expediente 2594 de explotación) of Industrias Infinito S.A.” This report identifies and quantifies both the project’s economic costs and the amount that would be obtained as a social benefit, explaining the benefit represented by the activity through tax collection—calculated on the basis of the price of an ounce of gold at that time, then valued at half its current value.

In this regard, the report states that “[t]ax collection would constitute compensation for negative socioeconomic and environmental impacts (effects on family values, such as substance abuse and crime; impacts on roads and bridges from increased traffic; disturbances caused by noise, dust, etc.; increased demand for public services; etc.). Furthermore, the environmental component would be internalized into the project through the Environmental Impact Study (Estudio de Impacto Ambiental), the environmental guarantees (garantías ambientales) that the company must provide, and the Environmental Management Plan (Plan de Manejo Ambiental) that it must follow in coordination with SETENA.” The report expressly adds that “[t]he application of the social parameters contained in the Project Socioeconomic Assessment Guide [Guía para la Evaluación Socioeconómica de Proyectos del Ministerio del Ambiente y Energía, de mil novecientos noventa y siete] would enhance the project’s social profitability relative to its private profitability,” because the social conversion factor is greater than the social costs—see page 6 of this report.

It is therefore clear that, beginning with the proceeding conducted before the Dirección de Geología y Minas—even before the remaining proceedings before the Secretaría Técnica Nacional Ambiental—the Administration began to obtain technical elements relevant to assessing the socio-environmental costs and benefits. It is therefore inaccurate to claim that such elements were entirely absent and that the Administration’s subsequent decisions were adopted without the corresponding technical criteria.

XCVII.- In addition to the provisions of the Código de Minería and the proceedings conducted before the Dirección de Geología y Minas in the procedure for granting the mining exploitation concession (concesión de explotación minera), the Ley Orgánica del Ambiente establishes the following criteria for approval of a productive project, which must be observed before a mining concession is granted: a) the proper relationship between the potential use and the economic capacity of the soil and subsoil; b) the control of practices that promote erosion and other forms of degradation; c) soil and water conservation practices or works that prevent soil deterioration—Articles 53 and 54. As stated, the regulations establish that, for a particular project to be declared in the national interest (conveniencia nacional), there must be a positive balance resulting from an analysis of the socio-environmental costs in relation to the socioeconomic benefits, an analysis that must be conducted using the appropriate instruments.

The case file for the national-interest declaration, number DAJ-077-08, contains official letter SG-ASA-259-2008, dated ten October two thousand eight, which states that the environmental assessment (evaluación ambiental) did in fact include an analysis of the benefit in relation to the project’s environmental cost, concluding that there was a positive result with respect to the Environmental and Social Cost Balance. To conduct that assessment, in accordance with Decree number 32966-MINAE, corresponding to the Technical Instruments Manual for the Environmental Impact Assessment Process—Environmental Impact Study Manual—(Manual de Instrumentos Técnicos para el Proceso de Evaluación de Impacto Ambiental—Manual de estudio de impacto ambiental—), a minimum methodology is established for assessing the environmental impacts generated by a project, work, or activity. The methodology for assessing impacts, as in the present case, stipulates the use of an Environmental Impact Significance Matrix (Matriz de Importancia de Impactos Ambientales—MIIA—), which makes it possible to determine the effects of the project and their significance and, consequently, to propose the corresponding prevention, mitigation, and compensation measures.

It was reported that although the Decree was issued after the Environmental Impact Study (Estudio de Impacto Ambiental) for the Proyecto Minero Crucitas had been submitted, that Study did include an interaction matrix that allowed the environmental impacts to be assessed. The Environmental Impact Significance Matrix is a globally accepted tool for the qualitative assessment of projects that submit environmental assessment instruments, including Environmental Impact Studies; it helps determine the effect of each impacting action on each affected environmental factor and aspect, including the social and economic component, thereby determining the significance of the impact. The significance of the impact is a function both of the degree of incidence or intensity of the resulting alteration and of the characterization of the effect, which in turn reflects a series of qualitative attributes, such as intensity, extent, type of effect, manifestation period, persistence, reversibility, recovery capacity, synergy, accumulation, periodicity, and significance.

This impact significance is represented by a mathematical model whose values range between 13 and 100; impacts with significance values below 25 are immaterial, that is, compatible, or the environmental measures were incorporated into the project design; moderate impacts have a significance between 25 and 50, while impacts are severe when their significance is between 50 and 75, or critical when the value exceeds 75. The matrix allows socioeconomic factors to interact with the other environmental components that must necessarily be analyzed, which in turn makes it possible to propose the respective prevention, mitigation, and compensation measures incorporated into the Environmental Management Forecast Plan (Pronóstico Plan de Gestión Ambiental). Once this forecast is approved with the corresponding measures, its implementation becomes an environmental commitment (compromiso ambiental) that must be assumed by the developer.

The Environmental Impact Significance Matrix is a highly relevant element in the analysis of Environmental Impact Studies and assists the multidisciplinary technical assessment team in recommending whether or not to grant environmental viability—license—(Viabilidad—Licencia—Ambiental) to projects, works, or activities submitted to SETENA. Assessment under this methodology required by SETENA entails obtaining a final impact, which is the difference between the state of the environment with and without the project, taking into account not only the effect of the impacting actions but also their continuing effects. In the specific case of the Proyecto Minero Crucitas, the matrix incorporated into its analysis of the socioeconomic sphere such elements as land use, population characteristics, the needs of communities in areas of direct and indirect influence, and employment, among others; the resulting values indicate a positive outcome for the project’s development, and therefore, in general terms, an increase in quality of life and a positive impact on the local economy are anticipated—see pages 45 and 46 of the Environmental Assessment of Proposed Changes for the Proyecto Minero Crucitas (Evaluación Ambiental de Cambios Propuestos para el Proyecto Minero Crucitas).

For example, as already indicated, the impacts considered severe include the effect on quality of life, with a score of +68, and the generation of employment and income, also with a score of +68; in both cases the impact is positive, so no mitigation measures are proposed in addition to all those already included in the corresponding instrument. Quality of life comprehensively assesses the interaction among the components of the natural environment—physical, biological, and other components of the socioeconomic environment—such as air, water, soil, aquatic ecosystems, and terrestrial ecosystems, for which the necessary measures were taken in the Proyecto Minero Crucitas to ensure that the project would be developed in a controlled environment. It is reported that the necessary environmental measures were provided for with respect to all significant adverse impacts, so that there has been no shortfall in addressing environmental elements, and this precisely explains the positive balance of the quality-of-life component.

The document Environmental Assessment of Proposed Changes to the Project (Evaluación Ambiental de Cambios Propuestos al Proyecto), approved by resolution number 170-2008-SETENA, dated four February two thousand eight, determines that all impacts identified as severe and critical in the socioeconomic sphere were positive for the development of the project and its surrounding environment. The Environmental Management Forecast Plan incorporated into the environmental impact study approved by SETENA—including the update made in the document Assessment of Proposed Changes to the Project (Evaluación de Cambios Propuestos al Proyecto)—is the basis of the document entitled “Socioeconomic Balance of the Proyecto Minero Crucitas” (“Balance Socioeconómico del Proyecto Minero Crucitas”). Accordingly, it is clear that, before the Secretaría Técnica Nacional Ambiental as well, the reports incorporated into the Environmental Impact Study and the Proposed Modification of the mining project, and especially the results obtained through application of the Environmental Impact Significance Matrix, provided the administration with reliable information concerning the relationship between socio-environmental costs and benefits.

It must therefore be reiterated, as previously stated, that it is inaccurate to allege a complete lack of information or technical criteria that would have enabled the administration to conduct the corresponding assessment. On the contrary, the various studies, reports, and analyses described herein provide conclusive evidence that the administration was aware both of the economic costs in the strict sense and of the social and environmental benefits proposed for the mining project; therefore, based on the record and background materials contained in the case file, the administration conducted the assessment necessary to issue its final technical opinion on the matter. To insist that the administration did not conduct this assessment, or that the assessment does not appear in the case files, is to disregard—or at least to attempt to discredit—the various studies and resolutions concerning the project’s costs and benefits that were submitted to, assessed, and approved by the Dirección de Geología y Minas and the Secretaría Técnica Nacional Ambiental because, as noted, those studies do exist and appear in the various administrative case files submitted.

The Chamber does not overlook the fact that, during the Hearing held in November two thousand nine, SETENA stated that no specific quantitative study existed on the matter, but that statement must be understood in the context in which it was made; that context was the question raised by certain petitioners as to whether there was a single document that, in a particular format, reflected the relationship between socio-environmental costs and benefits. SETENA responded at that time that no such single document existed, but the Chamber finds that this did not prevent the administration from conducting the analysis on the basis of all the available information described herein. In other words, the absence of a particular document cannot entail devaluing or disregarding the variety of technical studies on economic, social, and environmental costs and benefits conducted at different times before two distinct technical bodies of the administration, since those studies do indeed contain the data ultimately validated by the administrative bodies for the issuance of the resolutions challenged in this amparo proceeding (recurso de amparo).

XCVIII.- Additionally, this entire assessment endorsed by the Dirección de Geología y Minas and the Secretaría Técnica Nacional Ambiental was subsequently reinforced when, in his report, economist Juan E. Muñoz Giró—attached as appendix No. 10 submitted by MINAET—stated that, using the appropriate methodology, the available information, and reasonable assumptions for the calculation, it was concluded that the biophysical impact (impacto biofísico) of the Proyecto Crucitas amounted to US$1,48 million and the social impact to US$2,26 million, for a total of US$3,74 million; whereas the social benefits derived from the Project exceeded US$158,11 million in terms of jobs, taxes, and investment in the communities within its area of influence. In a memorandum addressed to the Ministro del Ambiente, Energía y Telecomunicaciones on doce de febrero de dos mil nueve, the consultant stated that the opportunity cost (costo de oportunidad) of enabling the Proyecto Crucitas was $7,5 million, whereas the opportunity cost of halting it amounted to approximately US$144,9 million, including the creation of 262 direct jobs, US$32 million in wage payments, US$10,5 million in social-security contributions, US$83,8 million in revenue for the country from income taxes, US$14 million from the mining royalty (canon minero), and US$4,6 million from the trust fund (fideicomiso) established to support social-development associations in communities within the project’s area of influence.

In conclusion number 6 of this report, the economist indicated that the contributions of the Proyecto Crucitas far exceeded the value of the potential damage it might cause, while also taking into account the commitment to restore the project area, including by providing elements that would improve not only the environment but also residents’ living conditions. In conclusion number seven, he stated that it was conclusive that the project would generate social benefits far exceeding its socio-environmental costs. The record likewise contains the advisory opinion on the legal and economic viability of the Proyecto Crucitas issued by economist Jorge Guardia Quirós on trece de febrero de dos mil nueve—attached as appendix number 12—who stated that, if the environmental costs—US$3.74 million—were subtracted from the valuation of the environmental benefits of US$17.81 million, the result was a net benefit of US$14.06 million, which, in his view, was sufficient to legally justify the project. He indicated that, when the other anticipated economic and social benefits were added, the project would generate total benefits of US$158.11 million.

XCIX.- Moreover, the evidence submitted shows that the Crucitas mining project has already carried out various activities, including social investment, donations for the reconstruction and improvement of infrastructure and basic community services, initiatives concerning the population’s physical and mental health, and training in trades and tools, as well as forms of community organization enabling the populations within the area of influence to achieve greater social and economic dynamism. Its social commitments include: a) establishing a training center for the Instituto Nacional de Aprendizaje to provide courses in sewing and dressmaking, aquaculture, organic agriculture, cheese production, fabric painting, and food handling, which would create new small businesses and tangible benefits; b) three hundred direct jobs during the construction phase, one thousand two hundred indirect jobs, and two hundred fifty jobs during the operational phase; c) improving the quality of life in seven communities by supporting the communities’ producers’ cooperative, quality-of-life improvement programs, and improvements to the water-supply system; d) before construction of the project, the company began a series of programs—including training for microentrepreneurs, vocational training, creation of the Oficina de Atención al Ciudadano, construction of four bridges, and road maintenance, among others; e) employment for eleven years; f) an investment of US$65.000.000, to be used to purchase materials, professional services, machinery, contractors, among other items; g) an annual payroll valued at US$4.132.859; h) collection of a local tax totaling US$11.529.263 over eight years and payments totaling US$70.322.309 to the central government; i) a trust fund is available to carry out social works and activities within the monitoring commission and would receive US$364.063 per year—see the sworn report at folio 95 of volume I of the case file (expediente)—.

To date, the respondent company has already financed the Coopeagrovega R.L. agricultural cooperative, provided an ambulance, converted impassable tracks into roads, thereby improving the exchange of goods and services in the area, built three bridges, widened roads, and installed culverts. The schools in Cutris and Llano Verde were expanded and rebuilt; training for small and medium-sized enterprises began in the year dos mil seis; and a cooperation agreement was signed with the Instituto Nacional de Aprendizaje, under which fifty courses have already been offered in aquaculture and textiles—two microenterprises have already been established—as well as organic agriculture, computing, food handling, cheese-making, among others—see the electronic support in DVD format concerning the Judicial Inspection conducted on doce de setiembre de dos mil nueve—; accordingly, it is inaccurate to claim that these are merely anticipated benefits—as some of the petitioners maintain—because some have already materialized.

The compensation measures (medidas de compensación) proposed and established as environmental commitments for the cutting plan (plan de corta) include: a) reforestation of 382 hectares of pastureland with natural forest; 16 hectares of pastureland have already been reforested with trees from the project’s forest nursery (vivero forestal); b) maintenance of a forest nursery containing native species, which currently has more than 67 500 native trees extracted as saplings (brinzales) from the areas covered by the cutting plan. Additionally, there are zotacaballo trees for the revegetation (revegetación) of slopes and watercourse protection areas (áreas de protección de cauces); c) the existing natural forest will be maintained across more than 800 hectares of forest cover (cobertura boscosa) that will not be used for the project and that form part of the 1474 hectares of property owned by Industrias Infinito; d) 50 trees will be planted for every tree cut down, and 100 trees will be planted for each almendro in the 382 hectares designated for reforestation, which will support the development of natural forest through the planting of more than 600.000 native trees; e) biological and forestry monitoring (monitoreo biológico y forestal) will be maintained to verify the regeneration of the areas to be reforested, allowing the development of effective habitats that continuously connect forested areas and mitigate the fragmentation of existing habitats; f) a biological corridor (corredor biológico) will be established to permit the movement of species and the genetic transfer of flora and fauna; g) an amount of US$250.000 will be deposited into a trust fund of the Ministerio de Ambiente, Energía y Telecomunicaciones exclusively for the purchase of land in a protected area within the San Carlos region; h) communities will be supported with a portion of the timber collected during the cutting operation to meet the population’s needs; i) the anticipated proceeds from the sale of the timber, amounting to approximately US$1.000.000, will be deposited into APANAJUCA’s existing trust fund.

APANAJUCA is the Asociación del Parque Nacional Juan Castro Blanco, whose sole purpose is to purchase privately owned land for the conservation of the Parque Nacional, also known as Parque del Agua, more than ninety percent of whose area is currently privately owned—see the sworn report at folio 95 of volume I of the case file—.

C.- Taking into account the technical studies submitted in the proceedings before the Dirección de Geología y Minas and the Secretaría Técnica Nacional Ambiental, as well as the application of the reference matrix, the identification, and even the materialization of several of the matters described herein, the administration reports that the values obtained by applying the Environmental Impact Study (Estudio de Impacto Ambiental) matrix are positive for the project; therefore, an improvement in quality of life and a positive economic impact are anticipated, to the extent that the effect on quality of life is—as already indicated—+68, and job and income generation is likewise +68. The administration also reports that, in addition to the benefits expressly set forth in the decree, the benefits already being provided by the company’s operations include: the establishment of a business and vocational training center; the creation of small businesses; expansion of the water-supply system serving the communities of Coopevega, Moravia, Chamorro and El Roble; construction of four bridges in partnership with the Municipalidad de San Carlos; maintenance of the Buenos Aires-Coopevega-Crucitas roads; a trust fund for community works that will receive three hundred fifty-four thousand dollars annually; and payments of more than ten million dollars to the social-security system.

For its part, the company asserts that the agreed social benefits include the donation of an electrical transmission line valued at six million dollars; community programs for training and promoting small and medium-sized enterprises; improvement of school infrastructure; and contributions to the Comisión Mixta de Monitoreo y Control Ambiental. All these matters necessarily had to be considered by the administration in concluding that the social benefits were indeed greater than the environmental cost, because, as has been established, mining activity under the proposed terms entails an environmental cost but not environmental damage (daño ambiental). In the same vein, the Chamber notes that the aforementioned economic valuation of the project’s environmental effects and social benefits, conducted by expert Juan Muñoz Giró and submitted in febrero de dos mil nueve, concluded that the project’s opportunity cost was US$3.74 million, whereas the benefits generated through employment and income would amount to US$158.11 million; consequently, that report validates the administration’s conclusions regarding the benefits to be obtained.

CI.- Moreover, if those benefits are similar to those that some other economic activity in the area might provide, as the petitioners assert, that is irrelevant to determining that, in this particular case, the benefits do exceed the costs. The possible existence of other activities capable of generating similar benefits does not preclude the examination of a particular case; in other words, it is inappropriate to challenge an assessment performed by the administration on the basis of technical data by relying on the possible existence of other, as yet unknown activities that might eventually generate similar results or socioeconomic benefits but in which, to date, no interest has been expressed and which have neither been carried out nor implemented in the area.

CII.- In any event, account must be taken of the express statement made in the Environmental Impact Study (Estudio de Impacto Ambiental) for the Crucitas mining project—see page 187 of the Study—which indicates that the correlation of climatic variables or elements—heavy rainfall, high humidity levels, and temperatures—with other physical, natural, and infrastructure factors prevailing at the regional level—soil type, roads, and services—causes the so-called northern zone to be regarded as a region with difficult conditions for the development of certain productive activities. This statement reflects the inconsistency of alleging the purported unsuitability of one specific activity because other—unspecified and undefined—activities could be carried out.

CIII.- Based on these considerations, the Chamber notes that the decree in question does demonstrate that preliminary work was conducted, enabling the administration to determine that the socioeconomic benefits outweighed the potential environmental costs. In making that determination, the administration used the technical instruments established and available for that purpose, which were required, submitted, and assessed by the relevant bodies within their respective areas of technical competence—Dirección de Geología y Minas and SETENA. Therefore, because this is a technical determination, it is a matter of ordinary legality that has already been decided by the competent entities in each case.

CIV.- Accordingly, the Chamber concludes that decreto 34801 is duly supported and demonstrates that the cost-benefit balancing procedure (procedimiento de balance entre costos y beneficios) was indeed carried out at the administrative level, the outcome of which is embodied in the decree under discussion. Thus, contrary to the appellants’ claims, there is an objective scientific and technical basis for establishing the specific benefits that implementation of the project will yield.

CV.- By way of conclusion. In the case under review, the Chamber finds it established that the continued survival of the almendro amarillo is assured, since the authorized cutting does not have a decisive adverse impact on the population of this species; nor is such tree cutting prohibited, given its lack of connection with the nesting and breeding sites of the lapa verde.

CVI.- It has likewise been demonstrated that the cutting of the almendro does not constitute a definite threat to the existence and survival of the lapa verde, because it has been established that the bird does not nest in trees like those authorized for cutting, but only visited the Crucitas area outside the breeding season and when the almendro was not bearing fruit. During that season, therefore, its diet is based on the fruit of more than thirty varieties of trees in the area.

CVII.- The alleged environmental risk to the Corredor Biológico Mesoamericano and the Corredor Biológico San Juan-La Selva is also rejected, since the existence of these areas does not preclude economic activities conducted under rigorous control standards that make socioeconomic development compatible with environmental protection.

CVIII.- Likewise, the risk of aquifer contamination has been ruled out because the limited permeability of the rock covering the upper and lower aquifers has been demonstrated; the aquifer recharge zone (zona de recarga acuífera) lies outside the project area; and the seismic risk in the area is negligible. Furthermore, the alleged international implications of a risk of aquifer contamination must also be dismissed, because it has been demonstrated that both aquifers discharge within national territory and do not drain toward the río San Juan, and that, in the case of Quebrada Minas and río Infiernito, the effect on the border river would be minimal, provided that all approved and committed containment measures are duly implemented.

CIX.- Similarly, the use of a safe cyanide-destruction method has been established, preventing this material from coming into contact with the environment both during its application and destruction and in the disposal of treated water and material in the tailings pond (laguna de relaves).

CX. At the same time, the adoption of the technical measures recommended to prevent acid rock drainage (drenaje ácido de rocas) has also been established, both because the material to be extracted has a limited capacity to generate it and because of the systems that will be implemented to prevent it from occurring.

CXI.- Moreover, it has been demonstrated that the relevant seismic studies were conducted to assess seismic risk conditions in the area, and those reports concluded that the proposed project and the construction of the necessary works were feasible. Likewise, it has been established that the related structures meet the requirements imposed by national legislation for seismic resistance sufficient to withstand events measuring up to 8.4 on the Richter scale.

CXII.- It has also been demonstrated that the use of explosives was duly assessed by the Dirección de Geología y Minas and the Secretaría Técnica Nacional Ambiental through consideration of technical studies establishing that the blasting to be used will have a very limited impact on the area surrounding the project.

CXIII.- It has been determined that the declaration that the mining project is in the national interest (conveniencia nacional) complies with the law, because, far from being the result of the automatic application of Articles 60 of the Código de Minería, 19.b and 34 of the Ley Forestal, and 2 of the Reglamento de la Ley Forestal, it results from verification that the socioeconomic benefits outweigh the environmental cost, which has the particular characteristic of not causing environmental damage in the terms stated.

CXIV.- In the same vein, it has been demonstrated that the finding that the socioeconomic benefits outweigh the environmental cost is the product of a multiyear assessment conducted before the Dirección de Geología y Minas and the Secretaría Técnica Nacional Ambiental, the result of which is embodied in decreto 34801-MINAET, a regulatory instrument that clearly identifies the benefits to be obtained, the environmental cost to be borne, and the compensation measures to be implemented. It has also been resolved that a decree declaring an economic activity to be in the national interest under the terms stated must set out the final results of the cost-benefit analysis, but need not specify precisely and concretely the methodology implemented, the instruments used, each matter assessed, or the score assigned. All of these must appear in the administrative record, but need not be embodied in the final regulatory instrument.

CXV.- Accordingly, decreto 34801-MINAET is duly supported and identifies the objective technical basis on which the decision to declare the mining project to be in the national interest was made. It therefore complies with the law, and no constitutional inconsistency is apparent.

CXVI.- Consequently, resolution number 244-2008-SCH of the Área de Conservación Arenal Huetar Norte, Subregión San Carlos-Los Chiles, of the Sistema Nacional de Áreas de Conservación del Ministerio del Ambiente, Energía y Telecomunicaciones, issued at nine hours and five minutes on diecisiete de octubre de dos mil ocho, authorizing the land-use change (cambio de uso de suelo), is far from arbitrary, since it was issued only after both the decree declaring the project to be in the national interest and the identification of the types of trees that would be affected by the land-use change.

CXVII.- Measures to be implemented. The Chamber is aware of the significance of mining activity and of certain prior negative experiences—which, in any event, are not appropriate benchmarks for comparison with the mining project now under review—and therefore does not overlook the possibility that human errors or extreme natural events could threaten the project’s environmental safety. For this reason, although the case under review involves no constitutional violation other than the processing of environmental feasibility (viabilidad ambiental) without the prior approval of the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento, this Court orders the Ministro del Ambiente, Energía y Telecomunicaciones; the Secretaria de la Secretaría Técnica Nacional Ambiental; the Gerente del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento; John Thomas, in his capacity as Apoderado Generalísimo of Industrias Infinito Sociedad Anónima; and the project’s environmental oversight office (Regencia Ambiental), jointly and within their respective spheres of authority, to coordinate with the existing Comisión Mixta de Monitoreo y Control Ambiental in monitoring and supervising every phase of the project, so that the Comisión may promptly adopt the control, mitigation, and compensation measures necessary in each phase, in accordance with the findings of this judgment.

This means that, should any contingency arise, the Comisión or the environmental oversight office, jointly or separately, must immediately apply to the Secretaría Técnica Nacional Ambiental for suspension of the project until the contingency has been remedied or it has been guaranteed that the environment will not be adversely affected, and the corresponding liabilities have been established. It should be recalled that this Court has stated, since judgment No. 2004-9927, that the environmental manager (regente ambiental) also performs an essential role in this supervision, and that decreto ejecutivo No. 31849-MINAE-S-MOPT-MAG-MEIC defines such manager as the natural or legal person hired by the developer to ensure compliance with the environmental commitments undertaken by the activity, works, or project, the Código de Buenas Prácticas Ambientales, and the regulations in force. To that end, the manager must officially report to SETENA and the environmental authority the results of monitoring and oversight in accordance with the regulations, and must issue the necessary environmental recommendations as circumstances require (Articles 3, subsection 60, 79, and 80); furthermore, the manager shall bear civil and criminal liability for the truthfulness of the information contained in the documents signed, as well as for the methods and procedures recommended, and shall be jointly and severally liable with the project developer (Article 81).

The foregoing demonstrates that, although the environmental manager is not a public official, the manager does perform a public function in this regard. Accordingly, the respondent authorities and the Comisión Mixta de Monitoreo y Control Ambiental are ordered not to authorize the commencement of any phase of the project unless the corresponding protocols have first been established.

CXVIII.- Likewise, the Ministerio del Ambiente, Energía y Telecomunicaciones and the Secretaría Técnica Nacional Ambiental are ordered to implement interdisciplinary monitoring programs for the preservation and conservation of the lapa verde in the northern and Atlantic regions of the country, so that reliable information is maintained regarding the number of lapa verde pairs and the preservation of their nesting and feeding sites, thereby enabling the immediate adoption of measures that provide better prospects for survival and strengthen the bird’s habitat.

CXIX.- Industrias Infinito Sociedad Anónima is likewise ordered to exercise the utmost care in the handling of cyanide and cyanide-bearing material, its application and destruction, and the Ministerio del Ambiente, Energía y Telecomunicaciones and the Secretaría Técnica Nacional Ambiental are ordered to monitor the company’s activities in this area rigorously and continuously.

CXX.- The orders issued are based on this Court’s emphasis on the duty of all respondent institutions to coordinate and cooperate with SETENA within the scope of their authority. The constitutional duty of all government agencies to protect the environment arises not only from artículo 50 of the Constitución Política, but also from the Stockholm Declaration on the Human Environment, principle No. 13 of which provides:

“In order to achieve more rational management of resources and thus to improve the environment, States should adopt an integrated and coordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve the human environment for the benefit of their population.” Thus, it is clear that technical public institutions such as SENARA, the specialized divisions of the Ministerio de Ambiente, Energía, Minas y Tecnología, SETENA, and, within the latter, the Environmental Manager (Regente Ambiental), in the public function performed by that office, must provide their technical input in their respective areas and, as needed, request assistance from the Municipalidades and others, such as the company developing the project and the Commission established for that purpose. SETENA certainly has specific functions concerning environmental protection and oversight of the implementation of projects such as the one under review, since artículo 84 of the Ley Orgánica del Ambiente provides that the Secretaría must, among other things:

“...b) Recommend the actions necessary to minimize environmental impact, as well as those technically appropriate for restoring the environment.

Address and investigate complaints submitted to it concerning environmental degradation or damage...

...i) Conduct monitoring activities and ensure enforcement of its decisions...” Notwithstanding the foregoing, this does not exempt the other public institutions from cooperating by exercising an environmental stewardship function as constituent parts of the State. It must be borne in mind, as the Sala has stated on many occasions, that the environment must be understood as a development resource to be used appropriately, without degrading its productivity or jeopardizing the heritage of future generations. The Sala understands and accepts, without this in itself constituting environmental harm, that every production process requires resources to be transformed and processed, all of which entails an environmental cost. It also recognizes that a production process not only requires natural resources in order to continue operating, but also generates waste, pollution, and impacts of many different kinds. Nevertheless, it is clear that development must be controlled so that both environmental needs and the need for progress are met; this is where each State institution must fulfill its responsibility to prevent, protect against, and monitor all processes or projects that affect the environment in which they are carried out (see, to similar effect, judgment No. 2004-9927).

CXXI.- Ultimately, the Sala concludes that, in the case under review, a constitutional violation occurred because environmental feasibility approval (viabilidad ambiental) was granted without the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento having first reviewed and approved the hydrogeological studies for the entire area of the Crucitas mining project. As explained in this judgment, this declaration does not have the effect of nullifying the Environmental Impact Study (Estudio de Impacto Ambiental) or returning the proceedings to the time when that Study was submitted, precisely because that agency subsequently endorsed the studies, albeit belatedly. Likewise, in accordance with the considerations set forth in this judgment, the remaining alleged violations of the right to a healthy and ecologically balanced environment, as recognized by artículo 50 of the Constitución Política and constitutional case law, are rejected.

Accordingly, the amparo proceeding (recurso de amparo) must be partially granted, as is hereby ordered, subject to the warnings and provisions contained in the preceding considerandos. Justices Jinesta and Castillo dissent, would deny the proceeding in all respects, and Justice Castillo files a separate note. Justice Cruz dissents and would grant the proceeding solely on the following grounds: because he considers that the environmental impact study does not satisfy the requirements established by environmental regulations, because of the alleged harm to the almendro amarillo, and because, prior to its approval, the mining project lacked an adequate environmental-cost-to-economic-benefit analysis. In all other respects, he concurs with the majority opinion and files a separate note. Justice Armijo dissents, would grant the proceeding, and would annul: a) resolution #170-2008-SETENA of 4 de febrero de 2008 issued by the Comisión Plenaria de la Secretaría Técnica Nacional Ambiental; b) resolution #R-217-2008-MINAE of the Ministerio del Ambiente y Energía, issued at 15:00 hours on 21 de abril de 2008, which granted a mining concession to Industrias Infinito S.A.; and c) Decreto Ejecutivo No. 34801-MINAET of 13 de octubre del 2008. The State is ordered to pay the costs, damages, and losses caused by the facts taken into account in granting this amparo.

Por tanto

By majority vote, the proceeding is granted solely because the Environmental Impact Study was approved without the prior opinion of the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento. In all other respects, the proceeding is denied by majority vote. Pursuant to the precautionary principle (principio precautorio) in environmental matters, Jorge Rodríguez Quirós, in his capacity as Ministro del Ambiente, Energía y Telecomunicaciones; Sonia Espinoza Valverde, in her capacity as Secretaria de la Secretaría Técnica Nacional Ambiental; Bernal Soto Zúñiga, in his capacity as Gerente del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento; John Thomas, in his capacity as Apoderado Generalísimo of Industrias Infinito Sociedad Anónima; and the Regencia Ambiental of the mining project, or whoever may hold their respective offices, are ordered, jointly and within their respective spheres of authority, to coordinate with the Comisión Mixta de Monitoreo y Control Ambiental in monitoring and overseeing every phase of the project, so that the Commission may promptly adopt the necessary control, mitigation, and compensation measures during each of those phases, as set forth in this judgment.

The foregoing means that, should any contingency arise, the Commission or the Regencia Ambiental, jointly or separately, must immediately apply to the Secretaría Técnica Nacional Ambiental for suspension of the project until the contingency has been remedied or it has been ensured that the environment will not be affected, and the corresponding liabilities have been established. The respondent authorities and the Commission are likewise ordered not to authorize the commencement of any phase of the project unless the respective protocols are already in place. The State is ordered to pay the damages and losses caused by the facts taken into account in granting this amparo. Jorge Rodríguez Quirós, Sonia Espinoza Valverde, Bernal Soto Zúñiga, and John Thomas, or whoever may hold their respective offices, as well as the members of the Commission and the Regencia Ambiental, are hereby warned that, pursuant to artículo 71 of the Ley de esta jurisdicción, any person who receives an order issued in an amparo proceeding that the person must comply with or enforce, and who fails to comply with or enforce it, shall be punished by imprisonment for three months to two years or by a fine of twenty to sixty day-fines, provided that the offense is not subject to a more severe penalty.

This decision shall be served personally upon Jorge Rodríguez Quirós, Sonia Espinoza Valverde, Bernal Soto Zúñiga, and John Thomas, or whoever may hold their respective offices. Sonia Espinoza Valverde, in her capacity as Secretaria de la Secretaría Técnica Nacional Ambiental, or whoever may hold that office, shall serve this decision upon the members of the Commission and the Regencia Ambiental. Let notice be given.- Justices Jinesta and Castillo dissent, would deny the proceeding in all respects, and Justice Castillo files a separate note.

Justice Cruz dissents and would grant the proceeding solely on the following grounds: because he considers that the environmental impact study does not satisfy the requirements established by environmental regulations, because of the alleged harm to the almendro amarillo, and because, prior to its approval, the mining project lacked an adequate environmental-cost-to-economic-benefit analysis. In all other respects, he concurs with the majority opinion and files a separate note.

Justice Armijo dissents, would grant the proceeding, and would annul: a) resolution #170-2008-SETENA of 4 de febrero de 2008 issued by the Comisión Plenaria de la Secretaría Técnica Nacional Ambiental; b) resolution #R-217-2008-MINAE of the Ministerio del Ambiente y Energía, issued at 15:00 hours on 21 de abril de 2008, which granted a mining concession to Industrias Infinito S.A.; and c) Decreto Ejecutivo No. 34801-MINAET of 13 de octubre del 2008. The State is ordered to pay the costs, damages, and losses caused by the facts taken into account in granting this amparo. Let notice be given.- Ana Virginia Calzada M.

President Luis Paulino Mora M. Gilbert Armijo S.

Ernesto Jinesta L. Fernando Cruz C.

Fernando Castillo V. Teresita Rodríguez A.

DISSENTING OPINION OF JUSTICES JINESTA AND CASTILLO Justices Jinesta and Castillo, in an opinion authored by the former, dissent and would deny the proceeding for the following reasons:

I.REGARDING THE “PRIOR HYDROGEOLOGICAL STUDY OF THE ENTIRE PROJECT AREA VALIDATED BY SENARA.” A REQUIREMENT NOT IMPOSED BY THE LEGAL SYSTEM IN FORCE. For reasons of the legal security and certainty of citizens, business owners, investors, and, in general, regulated parties—constitutional values of the highest order, Article 34 of the Constitution—environmental law precisely and clearly defines the requirements that must be observed in order to carry out an activity that could harm the environment. Thus, in this particular case, neither Decreto Ejecutivo No. 25705 de 8 de octubre de 1996—in force until mayo de 2004—entitled “Reglamento sobre procedimientos de la Secretaría Técnica Nacional Ambiental,” nor No. 31849 de 24 de mayo de 2004, entitled “Reglamento general sobre los procedimientos de evaluación de impacto ambiental,” refers directly to hydrogeological studies (estudios hidrogeológicos).

During the period in which Decreto Ejecutivo N. 25705 was in force, the provisions referring to hydrogeological studies were the Código de Minería and the Regulations implementing that legislative instrument. Thus, Article 26, item 1.4, of the Reglamento al Código de Minería provides that a mining operation plan (programa de explotación minera) must contain information on “1.4. Hydrogeology. 1.4.1 Existing aquifer models. 1.4.2 Water intakes and springs (nacientes).” Pursuant to Article 77 of the Código de Minería, the technical documentation must be endorsed “(…) by a geologist or mining engineer duly admitted to the respective professional association.” When Decreto Ejecutivo No. 31849 de 24 de mayo de 2004 was issued, section 27 of that body of regulations referred to the “Manual de EIA”—Manual de Instrumentos Técnicos para el proceso de evaluación de impacto ambiental—which was approved by Decreto Ejecutivo No. 32712 de 19 de julio de 2005.

Section III of this manual does refer to the “Protocolo para la Hidrogeología ambiental de la finca,” which must be followed by “mining quarries or underground mines” (item 1.6), while item 2, entitled “Persons Responsible for Conducting the Environmental Hydrogeology Study,” clearly provides that “Environmental hydrogeology studies must be conducted by geology professionals duly authorized under the legislation in force in the country to conduct this type of study.” Under this interpretation, it is sufficiently clear that the regulations in force do not require, as part of the environmental impact study (estudio de impacto ambiental), that hydrogeological studies be conducted by SENARA or subsequently validated by that entity. In prior decisions, this Constitutional Court has not established this additional requirement; any interpretation to that effect is erroneous. What this Court has permitted, through the mechanism of supplementing the proceedings or reports (ampliación del curso o los informes), is for hydrogeological studies that have already been conducted to be reviewed by that public entity, or for that entity to submit a report on the location and extent of a particular aquifer—where it has identified or located it—because its expressly assigned powers include “Conducting, coordinating, promoting, and keeping hydrological and hydrogeological research up to date (…)” and “Preparing and updating an inventory of national waters (…).” This has occurred in prior cases involving aquifers that may be exploited for human consumption, but not where it has been sufficiently established that they are unsuitable for that purpose because they are confined aquifers (aquitards) or contain high levels of acidity and other metals and are therefore suitable for human consumption, as was deemed proven in the case at hand.

No new requirement not imposed by the legal system may be derived or inferred from such discretionary action by this Court. In this specific case, in 2002, hydrogeologist Virgilio Rodríguez Estrada submitted, as an annex to the Environmental Impact Study, the hydrogeological study supporting the description of the hydrography in the project area (folios 196-208 of the Environmental Impact Study). In addition, in 2007, the same professional updated those studies for the proposed amendment to the Environmental Impact Study (chapter 3, pages 19-21). It should be added that those studies were themselves based on the preceding 10 years of hydrogeological research and on the drilling of more than 190 “core-sampling” wells, which made it possible to ascertain the geological and hydrogeological structure of the project site in detail, including studies by Geotest de 1996, Marcelino Losilla de 1996, Pitteau Associates de 1998, Golders de 1998 y 2006, and Hugo Rodríguez 2001 y 2007.

As can be seen, through those studies the project developer fully complied with the requirements imposed by the legal system. In our view, requiring conditions not predetermined by environmental law creates considerable insecurity and uncertainty among persons seeking to undertake a potentially polluting activity. It also flagrantly violates the principles of regulated parties’ legitimate expectations (confianza legítima) and good faith regarding the prior actions of public administrative authorities, since they essentially do not know what to expect and lose any degree of predictability in administrative proceedings, because—under the majority’s position—a judicial review body, whether reviewing legality or constitutionality, may at any time create or devise new requirements that are not expressly established.

II. REGARDING THE ORDERS TO TAKE ACTION ISSUED IN THE OPERATIVE PART OF THE DECISION

A judgment granting relief and imposing obligations in an amparo proceeding may, for the purpose of restoring the effective enjoyment of fundamental rights, contain orders to act, refrain from acting, or provide something when it is established, respectively, that obligations have not been fulfilled—through omission—or that some improper action has occurred and must cease immediately. This follows from the plain language and underlying doctrine of Article 49 of the Ley de la Jurisdicción Constitucional. In the present matter, however, the majority issued a series of orders to take action to MINAET, SETENA, SENARA, the company responsible for the mining operation itself, and the environmental manager (regente ambiental), all in furtherance of the precautionary principle (principio precautorio). The imposition of those orders, however, was not preceded by verification or proof of a failure to comply with preexisting obligations or duties.

In other words, a series of obligations to act is imposed for the purpose of preventing any future environmental damage or harm. Such obligations should be based on a prior failure to comply and, above all, on the preventive principle (principio preventivo), rather than on the precautionary principle, which requires abstention from carrying out an activity when scientific uncertainty exists. We understand that, within the obligations of the Joint Environmental Monitoring and Oversight Commission (Comisión Mixta de Monitoreo y Control Ambiental), the bodies and entities involved in authorizing and supervising the project must, as a matter of course, comply with all the orders now being issued. In our view, because no omissions or failures to comply with preexisting obligations that violated fundamental rights were established on the part of the bodies, entities, and legal persons ordered to act, the proper course was to set out those precautions in the reasoning section of the judgment and direct the parties involved to “take note” of them, as has been this Court’s customary practice under such circumstances.

III. COROLLARY

In light of the foregoing considerations, it is our view that the petitions should be denied in all respects.

Ernesto Jinesta L. Fernando Castillo V.

SEPARATE OPINION OF JUSTICE CASTILLO VÍQUEZ The undersigned considers that the amparo petition (recurso de amparo) should be denied not only for the reasons outlined above, but also for the additional reasons explained below.

As is well known, the jurisdiction of the Constitutional Court is limited to safeguarding the fundamental rights and freedoms enshrined in the Constitución Política and in the international human-rights instruments in force in Costa Rica (Article 1 of the Ley de la Jurisdicción Constitucional). In the matter before us, this concerns the right of all inhabitants of the Republic and even of the Costa Rican Nation—those now living and those not yet born—to a healthy and ecologically balanced environment (Article 50 of the Código Político). For that purpose, as with other fundamental rights and freedoms, constitutional jurisdiction—understood here as the authority or power of the State to resolve definitively and coercively disputes arising from threats to or violations of those rights and freedoms—has devised a constitutional proceeding, in this instance one for the protection of rights, which has a series of characteristics that distinguish it from other proceedings, such as habeas corpus—also a proceeding for the protection of rights—and constitutional proceedings for the defense of the Constitution, and that define its subject matter.

In our legal system, the constitutional amparo proceeding (proceso constitucional de amparo) is direct, ordinary, and summary. It is a simple, informal, and readily accessible proceeding in which the parties involved are afforded the appropriate guarantees. Unlike full-merits proceedings (procesos de cognición plena), the amparo proceeding is highly summary in nature. When a violation or threat to the environment is at issue, its purpose is to adjudicate serious harm or threats to the environment, which excludes at the outset the discussion and resolution of technical matters belonging to another jurisdiction, as explained below. This requires us to address the nature of this proceeding in relation to environmental matters.

I. The Inherent Nature of the Amparo Petition and Environmental Matters

In Judgment number 2001-13294 at 12:05 on 21 de diciembre de 2001, when adjudicating an amparo petition, this Chamber defined the limits of constitutional jurisdiction in this type of matter as follows:

“…The initial filing shows that the petitioner is categorically opposed to hydrocarbon exploitation as such, regardless of how that activity is managed. It should be clarified at the outset that this exploitation is permitted by the Ley de Hidrocarburos, provided that environmental-protection requirements are observed. Whether the activity is itself harmful to the environment, irrespective of the technical and legal regulations governing it, is not an issue to be decided in this amparo proceeding; such a dispute might be the subject of a future constitutional challenge (acción de inconstitucionalidad), but not of an amparo petition. It should also be clarified that this Chamber rules on the petitioner’s allegations insofar as the alleged violations infringe a fundamental right. Conversely, if the errors do not violate any fundamental right in the specific case, they constitute a defect of mere legality (vicio de mera legalidad) that must be challenged through the appropriate proceeding….” (Underlining and emphasis not in the original).

Furthermore, of particular relevance to the issue now before us in this amparo proceeding, the Chamber stated in the aforementioned judgment: “It is not for this Court to conduct a technical assessment of the environmental impact of hydrocarbon extraction: an amparo petition is not a full-merits proceeding in which the evidentiary means necessary for that purpose are available.” (Emphasis not in the original).

The foregoing delimitation leads to a proper understanding of constitutional jurisdiction (jurisdicción constitucional), under which the summary nature of the application for amparo (recurso de amparo)—indeed, one might say its highly summary nature—must serve as the starting point. This characteristic derives from the urgent need to rule on the subject matter of the application, as provided in Article One of the Ley de la Jurisdicción Constitucional, and is essentially confined to restoring the fundamental right (derecho fundamental) as a guarantee of respect for the minimum protection afforded to persons under constitutional law (derecho de la constitución). Accordingly, only claims involving an evident violation of the body of fundamental rights should be heard in this special forum. Otherwise, when a pleading concerns the legality of administrative action, even if vaguely linked to a fundamental right, amparo is not appropriate, because admitting this type of claim distorts the nature of the amparo proceeding.

The issue is not entirely free of difficulty, since determining what is or is not constitutional is a case-by-case matter; that is, during the admissibility process, the Chamber must analyze each case, taking into account the existence of a very fine line between the constitutionality and legality of the matters at issue. Although every legal matter has constitutional roots, this does not invariably or necessarily mean that it must be analyzed and resolved within constitutional jurisdiction. It is precisely the failure to delimit this situation clearly that has led to misuse of the jurisdiction and guarantees established in Article 48 of the Constitución Política, often with the support of the Constitutional Chamber itself, when matters have been resolved in this forum despite being ordinary in nature, thereby intruding into areas outside its purview and even replacing the activity of the Administration entrusted by the Constitution to the Executive Branch, to the detriment of the principle of separation of powers or functions (principio de división de los poderes o funciones).

Given the connection between constitutional and administrative-litigation matters, the ordinary administrative-litigation proceeding (proceso ordinario contencioso administrativo) has recently been strengthened through the enactment by the Asamblea Legislativa of Law No. 8508 of 28 April 2006, which further developed the concept set forth in Article 49 of the Constitución Política by providing an expeditious avenue for resolving matters against the Administration and establishing both objective and subjective review: objective review of the legality of the administrative function, and subjective review for the protection of legal situations (situaciones jurídicas), individual rights (derechos subjetivos), and legitimate interests (intereses legítimos). On the basis of this Article 49, as well as the principles of effective judicial protection (tutela judicial efectiva) and legality (legalidad), any dispute arising against the Administration may be heard, in the first instance, in the administrative forum—today, exhaustion of administrative remedies (agotamiento de la vía administrativa) is optional, subject to the exceptions indicated below—through the procedure established for that purpose, applying Book Two of the Ley General de la Administración Pública or special legislation.

This empowers the Administration to resolve disputes submitted by the parties by issuing an act or provision of the Public Administration that settles the dispute and is consistent with the application of the legislation in force. Even without exhausting administrative remedies, there is now a judicial system for protecting individualized subjective legal situations, with expanded judicial powers intended to provide greater protection for the individual rights and legitimate interests of persons subject to the Administration (administrados). This stands in contrast to what was publicly and widely known under the previous system (Ley Reguladora de la Jurisdicción Contenciosa Administrativa), which was characterized by delays in rendering decisions, the use of a writing-based model, and a focus on reviewing administrative acts (objective review). The modern administrative-litigation procedural rules are now based on a broad range of principles, including orality (oralidad) as their starting point, with the legislature seeking to expedite proceedings, as well as the fundamental principles of due process (debido proceso) and the procedural equality of the parties (igualdad procesal de las partes).

They also include several other principles: procedural semiformalism (semi formalismo procesal); broad judicial powers; flexibility in seeking review (flexibilidad impugnatoria); expanded standing for claimants and respondents (legitimación activa y pasiva), as well as expanded procedural capacity (capacidad procesal); the broad scope of interim measures (medidas cautelares); the immediacy, adversarial presentation, and concentration of evidence; the strengthening of alternative dispute-resolution mechanisms; specialized conciliation; the adaptation of justice to social realities and needs; enhanced comprehensive review of the administrative function; and, finally, the optional nature of exhaustion of administrative remedies, except in matters involving administrative procurement (contratación administrativa), the Registro Civil—Article 102, subsection 4), of the Constitución Política—and municipal matters (provided that remedies are exhausted before the Contraloría General de la República, the Tribunal Supremo de Elecciones, or the Tribunal Contencioso Administrativo, respectively).

This option was first afforded to persons subject to the Administration by a judgment of the Constitutional Chamber, namely No. 2006-03669 at 15 hours on 15 March 2006, which stated, among other reasons, that such persons could not be subjected to the via crucis of being required to exhaust the corresponding administrative remedies before initiating judicial proceedings, since in practice exhaustion did not always cause the Administration to revoke its own action, even where, for example, the invalidity of the proceedings had been established. After that judgment, the Código Procesal Contencioso incorporated this aspect as a basic principle of its proceedings.

All of this has resulted in a more expeditious and effective administrative-litigation proceeding, as practice has confirmed since the beginning of 2008, with a system designed to allow persons subject to the Administration to litigate their legality-related disputes and obtain a timely resolution. In addition to the more expeditious processing now inherent in administrative-litigation proceedings generally, another option is available: the so-called preferential procedure (trámite preferente), established in Article 60 of the administrative-litigation procedural rules, which permits cases to be heard summarily because of their urgency, necessity, or importance to the public interest. Another decisive factor must also be distinguished: the assessment of evidence (valoración de la prueba) in the two types of proceedings. Because amparo is summary, constitutional jurisdiction does not permit evidence to be received and analyzed as broadly; administrative-litigation proceedings, by contrast, provide greater safeguards.

Indeed, in ordinary proceedings, evidence is offered and screened at the preliminary hearing, where the parties have the opportunity to identify specifically the evidence to be examined at the final hearing. Thus, by the time the oral trial is held, the matter has already been procedurally clarified, facilitating a broad and technically informed examination during the hearing and thereby providing greater protection to persons subject to the Administration. The parties may also file an extraordinary appeal in cassation (recurso extraordinario de casación), whether for violation of procedural rules or breach of substantive rules of the legal system. This appeal in cassation is free of formalities, confirming effective access to justice in the new administrative-litigation jurisdiction. Accordingly, matters requiring a more technical examination of the evidence must be referred to the administrative-litigation jurisdiction because of its specialization and its design of expeditious proceedings that provide full safeguards and plenary review (cognición plena).

In short, the administrative-litigation jurisdiction must hear not only questions of legality but also all matters involving technical environmental issues, because the proceedings available in that jurisdiction are appropriate for resolving such disputes in accordance with law and justice, whereas the constitutional amparo proceeding, by its nature, cannot address them. Because of its nature, the amparo proceeding is not the appropriate means for litigating the complex technical and ecological issues inherent in environmental disputes. Such proceedings do not permit technical and scientific elements to be addressed adequately.

II. Jurisdiction of the Constitutional Chamber in environmental matters in constitutional amparo proceedings

At this point in our discussion, a question arises: what, then, is the jurisdiction of the Constitutional Court in environmental matters in amparo proceedings? First, it must be said that the Court is responsible for verifying that the competent authorities have not acted or decided in a manifestly unreasonable manner. In such cases, the Court’s standard for reviewing the Administration’s decisions and actions is limited to verifying that they are supported by technical studies that specifically guarantee the fundamental right. The Court’s jurisdiction extends no further. This means that an amparo proceeding is not a forum for debating whether a technical study is correct or incorrect, whether it is deficient, much less for challenging the technical studies that served as the basis for the Administration’s actions and decisions, whether an executive decree is adequately or inadequately reasoned, whether an executive decree violates statutory provisions, and so forth, since these matters fall within another jurisdiction, as stated supra.

Furthermore, the Constitutional Court also has jurisdiction, both in constitutional amparo proceedings and in constitutional proceedings for the defense of the Constitution, to safeguard the constitutional principles governing or informing the right to a healthy and ecologically balanced environment. Accordingly, the Court must ensure that the State fulfills its protective and governing role in environmental matters. “Prima facie, to guarantee means to secure and protect the right against any risk or need; to defend means to bar, prohibit, and prevent any activity that threatens the right; and to preserve means to take advance action to shield the right from potential dangers so that it may endure for future generations. The State must adopt the dual course of acting and refraining from acting: on the one hand, it must itself refrain from violating the right to a healthy and ecologically balanced environment, and, on the other, it must undertake the task of adopting measures that ensure compliance with constitutional requirements” (2000-9193).

In addition, it must guarantee the principle of rational resource use (principio del uso racional de los recursos), so as to maintain the necessary balance between the country’s development and the right to the environment. It must also protect the principle of environmental quality (principio de la calidad del ambiente), which is a fundamental measure of quality of life. It has therefore held that the right to a healthy and ecologically balanced environment entails the corresponding duty to protect and preserve the environment through its rational use and beneficial enjoyment (2003-6322).

The same is true of the precautionary principle (principio precautorio), also known as the principle of prudent avoidance (principio de la evitación prudente), which gained force with the 1992 Rio Declaration (Earth Summit). On the basis of this principle, it has held that an environmental impact study (estudio de impacto ambiental) must be conducted before any work begins. Additionally, compliance with environmental regulations may be excepted only when a state of necessity (estado de necesidad) has been declared. Along the same lines, the Constitutional Court cannot accept the argument that public institutions’ lack of financial resources justifies omissions in environmental matters. Indeed, “(…) the lack of budgetary resources (financial or material resources and/or qualified personnel) cannot constitute a dividing line between respect for and violation of fundamental rights; that is, it cannot be a reason for the Administration to fail to act and take concrete measures so that, through its administration, it may find solutions to the environmental problems brought before it by private parties...” (2003-6322).

Furthermore, it cannot accept either that deemed approval (silencio positivo) applies in this area or that public participation may be disregarded, since such participation is a consequence of the democratic principle and encompasses the right to information concerning environmental projects, or projects that may harm natural resources and the environment, as well as the guarantee of effective participation in decision-making.

III.Review of administrative discretion falls within the jurisdiction of the administrative courts, not constitutional jurisdiction

As is well known, administrative discretion (discrecionalidad administrativa) is the authority granted to the Administration by the legal system to choose, from among several alternatives, the one that best serves the public interest. From this perspective, discretion entails acting within the legal system, unlike arbitrariness, which entails acting outside or contrary to it. When exercising discretion, the Administration must assess the circumstances, determine the most viable alternative, and balance the interests involved in an endeavor aimed at realizing the public interest. Unlike the exercise of regulated powers (potestades regladas), where there is no margin for assessment and the Administration’s activity is limited to verifying the factual predicate established by the rule for their exercise, under this form of administrative function the Administration has greater latitude to act.

Nevertheless, by constitutional mandate (Article 49), judicial review of legality (control de legalidad), and thus of the Administration’s exercise of discretionary powers, falls within the exclusive jurisdiction of the administrative courts. Consistent with the foregoing, Article 16 of the Ley General de la Administración Pública states with utmost clarity that the judge—meaning the administrative-law judge—shall review whether the discretionary elements of the Administration’s acts conform to the unequivocal rules of science or technical knowledge or to the basic principles of justice, logic, or expediency, as though exercising judicial review of legality. Moreover, legal scholarship has developed a series of techniques for reviewing administrative discretion, including determining facts, general principles of law, and indeterminate legal concepts. Accordingly, all matters relating to discretion concerning the technical aspects supporting an administrative decision or action must be heard under administrative jurisdiction, not constitutional jurisdiction.

Therefore, if the dispute concerns different technically or scientifically sustainable alternatives that are better than the one adopted or approved by the Administration, it is a matter of administrative discretion that must be adjudicated before the administrative courts. As previously stated, in such cases the Constitutional Court’s jurisdiction is limited to determining whether the Administration’s decision or action has a technical basis and respects the principles or rules governing the right to a healthy and ecologically balanced environment; therefore, it is not for that Court to determine whether the technical study contains errors or whether other alternatives would better safeguard that fundamental right.

IV. The specific case

As has been demonstrated—the proven facts—the actions of the Public Administration are supported by technical studies; therefore, the actions and decisions before us are not manifestly irrational in a manner affecting the fundamental right of the inhabitants of the Costa Rican nation to a healthy and ecologically balanced environment. By way of example: there are feasibility studies for the mining project; there are environmental impact studies for the project; a public hearing was held regarding the project; there is a population study of commercial-sized tree species (especies fustales); there is a forest management plan (plan de manejo forestal) to ensure the rational use of natural resources in the areas administered by the mining project; there is an environmental management plan (plan de gestión ambiental); there is a hydrogeological study; there is a report entitled “Cianuro y su Aplicación en Crucitas,” which concludes that the required levels of cyanide destruction are achieved when the effluents are treated using the Combinox process; there is a report on potential acid rock drainage (drenaje de ácido de roca); and so forth.

Accordingly, the application for amparo relief (recurso de amparo) must be denied because, after analyzing the Administration’s actions and decisions, the necessary conclusion is that they are supported by technical studies, thereby satisfying the constitutional requirement to guarantee the inhabitants of the Republic the right to a healthy and ecologically balanced environment. Nevertheless, in every case where a claim seeks to challenge the rigor or soundness of those studies, the appropriate forum is the administrative courts, not constitutional jurisdiction. Moreover, the administrative courts are hearing the ordinary proceeding (proceso de conocimiento) filed by the Asociación Preservacionista de Flora y Fauna Silvestre against the State and Empresa Industrias Infinito Sociedad Anónima, under court expediente n.° 08-001282-1027-CA, seeking a judgment declaring the following inconsistent with the legal system: a) resolution number 3638-2005-SETENA of December 12, 2005, which granted environmental approval (viabilidad ambiental) to the Proyecto Minero Crucitas (folio 37 of that expediente); b) resolution number 170-2008 SETENA of February 4, 2008, which approved amendments to the environmental impact study for the Proyecto Minero Crucitas (folio 38 of that expediente); c) resolution number 217, issued by the Dirección de Geología y Minas on April 21, 2008, which granted an open-pit mining concession (concesión de explotación minera a cielo abierto) to Industrias Infinito Sociedad Anónima (folio 38 of that expediente); and d) Decreto Ejecutivo número 34801-MINAET, in which the Poder Ejecutivo declared the Proyecto Minero Crucitas, developed by Industrias Infinito Sociedad Anónima, to be in the public interest and nationally beneficial (folios 40 and 41 of that expediente).

Fernando Castillo V.

FCV/pmc.- DISSENTING OPINION OF JUSTICE ARMIJO: I respectfully depart from the decision adopted by the majority of the Court, based on the following arguments:

A. The impact of the Crucitas mining project on biodiversity. I believe that allowing the project challenged in this application to continue entails a manifest violation of the fundamental right to a healthy and ecologically balanced environment, as evidenced by the following aspects and based on the statements, documents, and questions extensively analyzed at the hearings held before the Court on November 12, 13, 16, and 17, 2009:

A.1. Open-pit gold mining using cyanide leaching (lixiviación con cianuro) causes, in itself, serious environmental harm.

• a)General considerations regarding that mining method and its consequences: Gold mining by various companies has continued to gain ground due to substantial increases in the price of the mineral (which surged in 2008 and exceeded $1,100 per ounce in April 2010, according to information on the website www.kitco.com), as well as the use of more profitable extraction methods in terms of production costs for low-grade deposits (yacimientos pobres), such as cyanide-leaching extraction technology.

This technology has replaced gold recovery through mercury amalgamation (amalgamación con mercurio), a less efficient recovery process because it permits recovery of only 60% of the mineral, compared with more than 97% in the case of cyanide extraction.

As explained at the November 2009 hearing and, primarily, in the special report on open-pit chemical mining, prepared by a commission created by the University Council of the Universidad de Costa Rica and involving specialists in Biology, Chemistry, Geography, and Geology, extraction by cyanide leaching (lixiviación con cianuro), combined with open-pit mining (minería a cielo abierto), is capable of affecting vast tracts of land. It entails removing metals from rocks and soil through the use of chemical compounds with a high affinity for these materials. When implemented on a large scale, this technology permits the exploitation of large volumes of rock and soil in which metals are found in low concentrations. The process requires the removal, crushing, and chemical processing of surface and deep layers across extensive areas, where all forms of life are destroyed or removed. The process is inherently harmful to the environment because the need to extract large volumes of soil and rock for processing has serious impacts of three kinds, as it requires the elimination of surface and soil biodiversity: a) in the extraction area, b) in the ore-processing area, and c) in the processing-waste disposal area.

The result is a large-scale transformation of the landscape and the opening of vast craters. Because deposits may be located beneath forested areas, aquifer-recharge zones (zonas de recarga acuífera), or generally in environmentally fragile areas, the development of open-pit mining projects often requires the destruction of ecosystems important for the conservation and protection of environmental services (servicios ambientales). Previously extracted waste material is used in the operations. The ores (rocks containing the mineral) are crushed and piled into a heap placed on a leach pad (plataforma de lixiviación). Once the crushed ore has been stacked on the leach pad, it is sprayed uniformly with a cyanide solution, which leaches—that is, washes and amalgamates—the microscopic gold particles from the ore as it filters through the heap. The gold-bearing cyanide solution—known as the “pregnant” solution (solución “encinta”)—flows by gravity into a storage reservoir.

Pumps or lined trenches are used to carry the solution from the storage reservoir to the metal-recovery plant. The precipitate is then smelted to recover the gold. The final products of this process are gold bars and a “barren” cyanide solution (solución de cianuro “estéril”) (containing no gold), which is pumped into a storage reservoir. Waste material consisting of impurities, including heavy metals, is also generated. This slag is normally discharged into a waste-material heap.

Cyanide’s high toxicity and natural reactivity are well known. Its harmful effects on fish, wildlife, and humans have been documented. Cyanide is extremely toxic to plants and animals. Cyanide spills can kill vegetation and affect plants’ photosynthesis and reproductive capacities. In animals, cyanide may be absorbed through the skin, ingested, or inhaled. Airborne concentrations of 200 parts per million (ppm) of hydrogen cyanide are lethal to animals, while concentrations as low as 0.1 milligrams per liter (mg/l) are lethal to sensitive aquatic species. Lethal doses for humans are 1 to 3 mg/Kg. of body weight if ingested, 100-300 mg/Kg. if absorbed, and 100-300 ppm if inhaled. This means that an amount of cyanide smaller than a grain of rice would be sufficient to kill an adult. Long-term exposure to a sublethal dose could cause headaches, loss of appetite, weakness, nausea, dizziness, and irritation of the eyes and respiratory system. However, there are no recorded cases of human fatalities at mines using cyanide-leaching techniques.

Mine workers commonly come into contact with cyanide, particularly while preparing the cyanide solution and recovering gold from the solution. The risks to mine workers include cyanide dust, airborne cyanide fumes (HCN) from the cyanide solution, and skin contact with the cyanide solution.

Mines that use extraction by cyanide leaching are environmental time bombs, as stated in the extensive 1992 study by the National Wildlife Federation of the United States: wildlife habitats and watersheds are disrupted, with problems such as cyanide ponds attracting wildlife. The deaths of wild animals, particularly birds drawn by the reflective water surfaces of these ponds, have frequently been recorded; after leaching, the heap of processed ore still contains traces of the highly toxic cyanide solution, as well as concentrated heavy metals precipitated from the ore (arsenic, antimony, cadmium, chromium, lead, nickel, selenium, thallium) and other toxic substances found in the heap and the leachate (lixiviados) (sulfides); if the spent ore and waste rock are not thoroughly rinsed, or if they are left untreated, cyanide may continue seeping into the environment, threatening streams, rivers or lakes, groundwater sources, wildlife, and plants.

Although the respondents insist that the activity is supposedly harmless because of the safety measures that would be followed, the fact remains that accidents have occurred in which cyanide has come into contact with the environment (Reece), for example because liners (geomembranes placed beneath the heaps and ponds) allow leakage as a result of inadequate design, manufacturing defects, improper installation, or damage (holes) caused during operations. Another cause of accidents is the overflow of solutions from storage reservoirs. These releases harm plants and animals that come into contact with lethal concentrations of cyanide solution and pose a long-term threat to groundwater (aguas subterráneas [freáticas]). Although storage reservoirs are designed to withstand major storms and floods—and, in this particular case, it is claimed that they can also withstand seismic events—they do not always prevent overflows. Heavy metals and cyanide-contaminated water escaping from a storage reservoir cause greater harm when they flow directly into natural watercourses. The escaping solution may be sufficient to kill fish and other forms of aquatic life or to contaminate drinking-water resources.

Another relevant issue is the disposal of residual cyanide. In all cases, procedures for degrading the cyanide ion must be carried out strictly to prevent the wastewater being discharged from containing nonlethal quantities of cyanide. Moreover, all known methods involve handling large quantities of chemicals, which would likewise produce a considerable environmental impact.

• b)Previous negative experiences with open-pit mining by cyanide leaching in other countries: Several examples of cyanide spills demonstrate that these concerns are not merely theoretical or hypothetical: in January 2000, the so-called Baia Mare disaster occurred in Romania as a result of a cyanide spill that affected Hungary, Romania, and Yugoslavia, disrupting the drinking-water supply of two and a half million people and the economic activities of more than one and a half million people who depend on tourism, agriculture, and fishing along the Tisza River (http://www.presseurop.eu), to such an extent that, in recent years, the European Parliament has debated a proposed resolution to prohibit the use of cyanide in European Union member countries. In December 1992, a spill of cyanide and heavy metals occurred in Summitville, Colorado (United States of America); the remediation of environmental damage was estimated at 150 million dollars, and the spill eliminated aquatic life along 27 kilometers of the Alamosa River (www.epa.gov).

Also in 1992, in South Carolina (United States of America), more than 11.000 fish died along 80 kilometers as a result of another cyanide spill (www.epa.gov). In South Africa, in 1994, ten miners died when they were engulfed by a mixture of cyanide-contaminated mud after the barrier of a tailings dam (dique de cola) failed (www.dme.gov.za). In 1995, in Guyana, more than 3,2 million liters of cyanide solution spilled into the Essequibo River. The Pan American Health Organization demonstrated that aquatic life died along 4 kilometers of the river (www.rfi.fr). In 1998, in South Dakota (United States of America), seven tons of cyanide solution were spilled, resulting in the death of fish and other aquatic life (www.epa.gov).

• c)Previous negative experiences with open-pit mining by cyanide leaching in Costa Rica: Although the majority of the Chamber considers previous mining experiences in Costa Rica that harmed the environment not to be comparable to this case, I can concede only that the technical details of the process have indeed changed; its broad outlines, however, remain the same in two troubling respects: the destruction of vast tracts of land and the use of cyanide. The Macacona mine was operated using open-pit techniques. Jorge Alvarez Von Maack documents that it operated in our country around the 1980s, in the community of Macacona, Esparza, province of Puntarenas. After nine years of operation, the company operating it left the country without paying compensation commensurate with the damage caused during its operations. The resulting impacts included: contamination of the Turbina stream through the disposal of barren materials, tailings, and cyanide-contaminated water; reduction and alteration of the channel of the Turbina stream; deforestation of the gold-extraction area and the area designated for infrastructure construction; the opening of craters; and damage to aquifers in the project area.

The illegal operation of the Beta Vargas mine, located in the Lagarto River basin in la Pita, Chomes de Puntarenas, and operated by the Canadian company Lyon Lake Mines, also caused environmental damage. The mine operated illegally in 1997 and 1998 because it never obtained a municipal business operating license. After operating for slightly more than one year, it suddenly ceased operations. The project’s identified negative environmental repercussions included damage to the forest where the industrial plant was erected, the area of the open pits or crater, and the area designated for waste-rock dumps and leaching heaps; contamination of the Lagarto River through the disposal of barren materials, tailings, and cyanide-contaminated water; the opening of craters and damage to aquifers in the project area; and the reduction and loss of biodiversity.

With regard to Mina Bellavista, located in the upper part of the Central district of Miramar de Puntarenas and owned by the Canadian company Glencair Gold Corporation, after two years of operation, in mid-2007 it abruptly suspended its activities following a landslide involving more than one hundred tons of materials. In 2006 alone, the company reported profits of nearly three billion colones, yet the benefits to the country were limited to the payment of wages to Costa Ricans because, from the outset of its operations, the company availed itself of the Free Trade Zone regime (régimen de Zona Franca), which exempted it from paying both municipal and national taxes. This project affected the forest in the middle of an aquifer recharge zone (zona de recarga acuífera) with high seismic risk; the membrane retaining the heavy metals contained in approximately 100 million tons of mine waste ruptured, thereby releasing heavy metals and cyanide-bearing waters (aguas cianuradas) that could be contaminating groundwater and surface water; it caused sedimentation in rivers and streams, particularly the possible blockage of the Ciruelas River canyon; and it caused dust pollution throughout the project’s area of influence, including the urban center of Miramar.

I insist that the temporal and technological gap separating those cases from the one under consideration today does not preclude comparing them. The activity is the same, and the only distinction invoked to defend its present implementation is that this is merely a project, replete with promises to avert the dangers inherent in this type of mining, rather than an actual documented undertaking that has proceeded without any harmful outcome. In fact, no evidence has been submitted in these proceedings of any extraction operation such as the one Industrias Infinito seeks to implement that has not caused any environmental damage. And it should be noted that I deliberately use the term “damage,” in the sense of serious adverse repercussions for the environment, because virtually every industry, of course, has an impact. In this respect, the majority’s position in the Chamber runs counter to the logic and spirit of the environmental precautionary principle (principio precautorio en materia ambiental).

On the one hand, there is technical and factual evidence—which has not been rebutted—of the serious environmental repercussions of open-pit mining (minería a cielo abierto), and, on the other, mere promises that they will not occur in Crucitas. Indeed, in its list of proven facts, the majority of the Chamber considers it established under fact 21 “That open-pit mining activity is traditionally regarded as an activity posing risks to the environment if it is not carried out within the parameters established for environmental protection (as stated at the Hearing held on November 12, 13 and 17, 2009),” a statement that, besides not constituting a fact in the strict sense, grossly oversimplifies what was discussed during those sessions and includes an almost magical condition: the activity is harmful unless it is carried out within certain parameters. The judgment assumes, without further scrutiny, that those essential parameters will be met.

This is particularly significant given that the majority’s own decision identifies weak public oversight of environmental matters as one of the causes of the area’s alleged forest degradation, while issuing a toothless exhortation that such oversight be strengthened (recital LXI).

A.2. Environmental damage to Corredor Biológico San Juan-La Selva and Corredor Biológico Mesoamericano: The Crucitas area is a forest remnant (remanente de bosque) within the deforested landscape of the country’s northern region and forms an important part of Corredor Biológico San Juan-La Selva and Corredor Biológico Mesoamericano. It contains certain tree species requiring delicate conservation measures, and the deforestation entailed by open-pit mining may readily have irreversible consequences and place pressure on species, causing population decline that could lead them to extinction. Endemic species require particular care, including the tostado (Sclerolobium costaricense), almendro de montaña (Dipteryx panamensis), and others whose habitat is confined to that region. A biological corridor (corredor biológico) is a delimited area providing connectivity among landscapes, ecosystems, and habitats, thereby ensuring the preservation of biological diversity and ecological and evolutionary processes.

It makes it possible to connect severely fragmented habitats that leave populations isolated. Such corridors help maintain gene flow and species dispersal and facilitate migration. According to the study of this particular Corridor prepared by Guiselle Monge Arias and Olivier Chassot, although it is still a project, it contains the last viable connecting habitat capable of preserving the continuity of Corredor Biológico Mesoamericano between Nicaragua and Costa Rica. Its role is to connect Reserva Biológica Indio-Maíz in Nicaragua with Área de Conservación de la Cordillera Volcánica Central and Estación Biológica La Selva in Costa Rica. Maintaining connectivity is essential to the long-term viability of resident and migratory species. It is the only site in Central America where a large protected area in the Atlantic lowlands has the potential to maintain its ecological connection with habitats at middle and high elevations.

In the area, the process of ecosystem fragmentation had already been halted, and the recovery of natural areas and populations of endangered species is evident. The initiative to protect the Corridor began in 2001 with support from Centro Científico Tropical. Its Executive Committee comprises officials from Ministerio del Ambiente, Energía y Telecomunicaciones; Municipalidades de San Carlos y Sarapiquí; Sociedad para la Conservación de la Vida Silvestre; Organización para Estudios Tropicales; Proyecto para la consolidación del Corredor Biológico Mesoamericano; Asociación para el Bienestar Ambiental de Sarapiquí; Asociación Preservacionista de Flora y Fauna Silvestre; Asociación para el Manejo de las Áreas Forestales de San Carlos; Amigos de la Lapa Verde; Asociación VIDA; Centro de Derecho Ambiental y de los Recursos Naturales; Reserva Biológica la Tirimbina; and Comisión de Desarrollo Forestal de San Carlos.

The respondents and officials of the Ministerio del Ambiente, Energía y Telecomunicaciones argue that processes will be undertaken to restore the original forest by stockpiling soil and planting trees in plantations, as well as by conserving the properties so that they may recover after mining operations have ended. For example, it was stated at the hearing that 521 yellow almond trees (árboles de almendro) remained in the area and 197 had been felled; that 7.300 new trees had already been planted and that, in total, 27.000 trees were expected to be planted (Jorge Hernández, MINAET). However, the general fragmentation of Costa Rica’s forests, particularly those in regions targeted by mining projects, makes it difficult for plant species from the original ecosystem to recolonize the area. In the case of the Crucitas project, it is important to note that the forested landscape of the border region could become even more fragmented through the development of new exploration activities and open-pit mines (minas a cielo abierto).

Allowing the current concession to be exploited will merely pave the way for future concessions in the area, with the resulting increase in deforestation. Consideration must also be given to the fact that the area abandoned by the mines will contain soil very different from the original soil and will have less organic matter, thereby reducing its fertility. The topsoil layer will supposedly be stockpiled for use in restoring the mine; nevertheless, after its removal, processing, and years of storage, that soil will be biologically dead and profoundly altered. It will take decades for its nutrients and original organic richness to recover. Likewise, the absence of experience or technical protocols for planting many of the plant and tree species that will be eliminated makes me doubt the success of the proposed replacement, particularly in the case of many tree species about whose germination and ecology very little is known.

The project’s environmental impact study (estudio de impacto ambiental) does not contain genuine scientific planning for the restoration process. Consideration must likewise be given to the lengthy growth periods of many tree species in the forest ecosystems that will disappear as a result of the project. Although many of these species may grow rapidly during their juvenile stages, their growth slows over time, and many canopy and emergent species reach ages of hundreds of years. The scale of these processes far exceeds economic cycles and the lifespan of mining companies, meaning that their commitment to “restore” cannot be accompanied by the company’s presence throughout the entire process. On this subject, I wish to recall the dissenting opinion (voto salvado) that I signed with Justice Sosto in expediente 06-015904-0007-CO, on which occasion we stated that we were “…in disagreement with endorsing the argument that the proposed felling will be remedied through the subsequent replacement of the trees with new ones.

In environmental matters, it is well known that most of the harm caused is irreversible; consequently, in our opinion, the mitigating measures described in the report are insufficient, as are the explanations concerning the need to resort to felling in order to solve the road problem in the sector.” That case concerned the vicinity of Parque Metropolitano La Sabana. A fortiori, those reasons must not be disregarded when we are faced with greater destruction in an area that is more fragile from the standpoint of biodiversity. Plantations with little diversity are often planted as a way of presenting the public with a forest undergoing restoration. Such plantations are very different from the vegetation structure of a natural forest, which is characterized by a high diversity of plant species and a diversity of ages and sizes within each species. Even the proposed remediation measure (reparación), under which the 197 felled yellow almond trees would be replaced with 6.093 new trees of that species, does not have equivalent effects.

Thus, it is insufficient for the Forest Management Plan (Plan de Manejo Forestal) for the areas administered by the Crucitas mining project to state that, during the project’s closure phase, the impacted areas will be rehabilitated and returned to a condition similar to that of nearby forested areas, including the restoration of the entire area affected by the land-use change (cambio de uso de suelo) (folios 235 y 237 del expediente administrativo). In fact, all these assertions are firmly supported by the contents of oficio CCT-PI 023-09 del 20 de febrero del 2009 issued by the Centro Científico Tropical, appearing at folio 3591, a document explaining that the mining project affects a unique ecosystem and that, for this reason, the measures intended to mitigate the felling of individual yellow almond trees and its harmful impacts on the great green macaw population (lapa verde) do not contribute to restoring that ecosystem or enable the macaw to feed in the short or medium term, because, as explained, this bird does not ordinarily frequent short trees.

Purchasing land in the upper basin of the río San Carlos for the conservation of Parque Nacional Juan Castro Blanco does nothing to ensure the viability of the yellow almond tree and great green macaw populations; in short, the impact on the San Juan-La Selva biological corridor (corredor biológico), as has been established, will be practically irreparable.

A.3. Concerning the impact on the great green macaw and the yellow almond tree.

• a)Protection of endangered species (especies en vías de extinción) as a constitutional duty: As partially transcribed in the majority opinion, the Chamber has heard several previous matters related to the issue raised in this amparo proceeding (amparo), principally in judgments #2002-02486 de 10:54 horas del 8 de marzo de 2002 and #2008-13426. With regard to endangered species, the Costa Rican State undertook to protect flora and fauna, especially species in that particular situation, an obligation it assumed through various instruments of international law (Derecho Internacional) and reinforced by adopting legislation designed to ensure their preservation. Those commitments are binding upon all public authorities because the bodies competent for such purposes decided to approve them and incorporate them into our legal system. Consequently, this situation imposes a multitude of requirements upon our Government, ranging from the planning and implementation of public policies, the provision of resources, and the promotion of a culture—all aimed at environmental conservation—to the need to refrain from engaging in conduct or adopting measures, issuing any decision, or approving any legal or sub-legal provision (disposición normativa de rango legal o infralegal) that might harm or threaten the preservation of any endangered species.

In that regard, under nearly all the rules incorporated into the legal system, the State not only undertook to safeguard flora and fauna at risk but also assumed the obligation to protect the habitat and ecosystem in which they interact and develop. That commitment is more than reasonable, because any species will find it extremely difficult to survive on its own unless its environment is protected: if its habitat and ecosystem are threatened or even destroyed, it will be left without a place in which to live, feed, grow, or reproduce; in other words, it will be destined to disappear.

From that perspective, we may affirm that the Costa Rican State has been a pioneer in promoting and implementing public policies intended to protect the various species of flora and fauna at risk of disappearing from the planet. This has led us to devote approximately 25% of the national territory today to environmental preservation and protection through the various models of conservation systems and areas.

In this regard, and as complementary measures, Costa Rica, as a free, independent, and sovereign Republic, chose, as we have stated, to enter into various instruments of international law in the exercise of its powers as an international legal person. These instruments contain various provisions, among which we may note the contents of the Convention on Biological Diversity and Annexes (Convenio sobre Diversidad Biológica y Anexos), approved by Ley número 7416 de 30 de junio de 1994, published in La Gaceta número 143 de 28 de julio de 1994, which provides:

“Preamble The Contracting Parties, Conscious of the intrinsic value of biological diversity and of the ecological, genetic, social, economic, scientific, educational, cultural, recreational, and aesthetic values of biological diversity and its components.

Conscious also of the importance of biological diversity for evolution and for maintaining the life-sustaining systems of the biosphere.

Affirming that the conservation of biological diversity is a common concern of all humankind.

[…]

Reaffirming also that States are responsible for conserving their biological diversity and sustainably using their biological resources.

Concerned by the substantial reduction in biological diversity resulting from certain human activities.

[…]

Noting that it is vital to anticipate, prevent, and address at their source the causes of the reduction or loss of biological diversity.

Noting also that where there is a threat of a substantial reduction or loss of biological diversity, the lack of unequivocal scientific evidence must not be invoked as a reason for postponing measures intended to avoid or minimize that threat.

Noting further that the fundamental requirement for the conservation of biological diversity is the in-situ conservation (conservación in situ) of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings.

Noting that, ultimately, the conservation and sustainable use of biological diversity will strengthen friendly relations among States and contribute to the peace of humankind.

[…]

Determined to conserve and sustainably use biological diversity for the benefit of present and future generations.

Have agreed as follows:

[…]

ARTICLE 1. Objectives The objectives of this Convention, to be pursued in accordance with its relevant provisions, are the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising from the use of genetic resources, including through appropriate access to such resources and the appropriate transfer of relevant technologies, taking into account all rights over those resources and technologies, as well as through appropriate funding.

ARTICLE 2. Terms Used For the purposes of this Convention:

“Protected area” (área protegida) means a geographically defined area that has been designated or regulated and managed to achieve specific conservation objectives.

[…]

“In-situ conditions” (condiciones in situ) means the conditions in which genetic resources exist within ecosystems and natural habitats and, in the case of domesticated or cultivated species, in the surroundings in which they have developed their distinctive properties.

“Ex situ conservation (conservación ex situ)” means the conservation of components of biological diversity outside their natural habitats. “In situ conservation (conservación in situ)” means the conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings and, in the case of domesticated and cultivated species, in the surroundings where they have developed their distinctive properties.

“Biological diversity (diversidad biológica)” means the variability among living organisms from all sources, including, among other things, terrestrial, marine, and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species, and of ecosystems.

“Ecosystem (ecosistema)” means a dynamic complex of plant, animal, and microorganism communities and their non-living environment interacting as a functional unit.

[…]

“Habitat (hábitat)” means the place or type of environment in which an organism or population naturally occurs.

[…]

ARTICLE 6. General measures for conservation and sustainable use Each Contracting Party shall, in accordance with its particular conditions and capabilities:

• a)Develop national strategies, plans, or programs for the conservation and sustainable use of biological diversity, or adapt existing strategies, plans, or programs for this purpose, which shall reflect, among other things, the measures established in this Convention that are relevant to the Contracting Party concerned. And b) Integrate, insofar as possible and as appropriate, the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programs, and policies.

[…]

ARTICLE 8. In situ conservation Each Contracting Party shall, insofar as possible and as appropriate:

• a)Establish a system of protected areas (áreas protegidas) or areas where special measures must be taken to conserve biological diversity.
• b)Where necessary, develop guidelines for the selection, establishment, and management of protected areas or areas where special measures must be taken to conserve biological diversity.
• c)Regulate or manage biological resources important for the conservation of biological diversity, whether within or outside protected areas, to ensure their conservation and sustainable use.
• d)Promote the protection of ecosystems and natural habitats and the maintenance of viable populations of species in natural surroundings.
• e)Promote environmentally sound and sustainable development in areas adjacent to protected areas, with a view to enhancing the protection of those areas.
• f)Rehabilitate and restore degraded ecosystems and promote the recovery of threatened species, including through the development and implementation of management plans or other management strategies.

[…]

ARTICLE 9. Ex situ conservation Each Contracting Party shall, insofar as possible and as appropriate, and primarily for the purpose of complementing in situ measures:

• a)Adopt measures for the ex situ conservation of components of biological diversity, preferably in the country of origin of those components.
• b)Establish and maintain facilities for the ex situ conservation of and research on plants, animals, and microorganisms, preferably in the country of origin of genetic resources (recursos genéticos).
• c)Adopt measures for the recovery and rehabilitation of threatened species and for their reintroduction into their natural habitats under appropriate conditions.

[…]” In the same vein, the Convenio para la Conservación de la Biodiversidad y Protección de Áreas Silvestres, Ley número 7433 of 14 de septiembre de 1994, published in La Gaceta 193 of 11 de octubre de 1994, provides:

“ARTICLE 1.- Objective. The objective of this Convention is to conserve, to the greatest extent possible, the terrestrial and coastal-marine biological diversity of the Central American region for the benefit of present and future generations.

ARTICLE 2.- The States signatory to this Convention reaffirm their sovereign right to conserve and use their own biological resources in accordance with their own policies and regulations, for the purpose of:

• a)Conserving and sustainably using their biological resources in fulfillment of a social function; and b) Ensuring that activities within their jurisdiction or control do not cause harm to the biological diversity of other States or of areas beyond their national jurisdiction.

[…]

ARTICLE 10.- Each State that is a member of this regional framework undertakes, in accordance with its capabilities, national programs, and priorities, to take every possible measure to ensure the conservation of biodiversity and its sustainable use, as well as the development of its components within its national jurisdiction, and to cooperate to the extent possible in cross-border and regional actions.

ARTICLE 11.- The Member States shall take the appropriate actions to incorporate into their respective development policies and plans the guidelines for, and the socioeconomic value of, the conservation of biological resources.

ARTICLE 12.- Institutions in the countries of the Central American region shall cooperate, as appropriate, with regional and international institutions to provide mutual support in fulfilling the obligations undertaken under this Convention, including those related to biotechnology, health, and food security.

ARTICLE 13.- For the purpose of fully complying with this Convention, the following shall be required:

[…]

• b)Implement economic and legal measures to promote the sustainable use and development of the components of biological diversity.
• c)Ensure the establishment of measures that contribute to conserving natural habitats and their populations of native species.

[…]

• f)Promote public awareness in each Nation of the need to conserve, sustainably use, and develop the biological wealth of the region.

[…]

ARTICLE 14.- Each country in the region shall develop its own conservation and development strategies, among which the conservation of biodiversity and the creation and management of protected areas shall be a priority.” Moreover, our Domestic Law contains various laws intended to safeguard the protection and conservation of flora, fauna, and the environment in general, including the Ley Orgánica del Ambiente, número 7554; the Ley de Conservación de la Vida Silvestre, número 7317; and the Ley de Biodiversidad, número 7788. All these rules are clearly progressive in their approach to environmental protection, seeking the country’s socioeconomic development, but without sacrificing the environment. Rather, these provisions seek to harmonize progress with the proper conservation and protection of the environment.

We therefore observe that the State has assumed responsibility for safeguarding the survival of threatened species and, to that end, has undertaken commitments at the international level and enacted legislation at the national level that is, of course, binding upon all governmental bodies.

• b)Regarding the status of the great green macaw: The great green macaw, or ara ambigua, is a larger bird than the scarlet macaw, as it can reach a wingspan of up to 84 centimeters and a mass of approximately 1.3 kilograms. It has a fairly robust build and a tail slightly shorter than that of the scarlet macaw, or ara macao. Its color—as its name suggests—is yellowish green, with blue wing-covering feathers; its tail feathers, known as central rectrices, are red, while the remaining rectrices are blue. This animal’s face is featherless, exposing bone-white skin. It has a powerful, hooked beak that is slightly larger than that of the scarlet macaw; this keratinous structure enables it to open the hard seeds on which it feeds. It customarily nests in hollow tree trunks. The great green macaw (ara ambigua) has a limited distribution in humid lowlands, primarily on the Atlantic side, in forests between eastern Honduras and northern Colombia, with an isolated Pacific population in Guayaquil, Ecuador.

In Costa Rica, its nesting range is currently limited to the Zona Huetar Norte, more specifically between the San Carlos, San Juan, and Sarapiquí rivers and the northern slopes of the Cordillera Volcánica Central. It is highly dependent on the mountain almond tree (almendro) (dipteryx panamensis) both for food and for nesting. This species appears on the CITES Appendix I list (see http://www.cites.org/esp/app/appendices.shtml and http://www.cites.org/esp/app/S-Jul01.pdf, both consulted on 23 de marzo de 2010), which means that it is endangered. As noted, the species was once abundant in the country, primarily in the Zona Atlántica and the Zona Norte, where it was common to see specimens flying in flocks only a few years ago. Today, however, only a few pairs remain nesting in the Zona Norte, between Boca Tapada and the llanuras del Colorado. There are some reports of flocks of between 6 and 12 individuals in the foothills of the Cordillera Volcánica Central, particularly near the lower Atlantic sector of Parque Nacional Braulio Carrillo, around the highway leading to Guápiles, as well as occasional reports on the northern slope of the Cordillera Volcánica de Guanacaste.

The abrupt decline in the great green macaw population is due primarily to the destruction of its habitat through unsustainable logging at nesting sites. In Costa Rica, the species’ range has decreased by 90% since the last century, and the threat it faces lies in the fact that it depends on the mountain almond tree (almendro de montaña) (dipteryx panamensis), which disappears as a result of poor management and illegal forest logging. There are therefore two dangers that pose a serious threat to this species: habitat loss due to the felling of trees that constitute its primary source of food and nesting sites, especially the mountain almond tree (dipteryx panamensis), since the great green macaw depends on that tree for 80% of its food and 90% of its nesting; and the illegal trade in the bird for use as a pet (information obtained in part from the websites http://www.minae.go.cr, http://www.sinac.go.cr, http://www.lapaverde.or.cr, http://www.inbio.ac.cr, http://www.una.ac.cr, http://www.cct.or.cr and http://www.guiascostarica.com). In the same vein, the Sistema Nacional de Áreas de Conservación states on its website:

“[…] The harpy eagle (sic) has probably become extinct in the country, while other species such as the scarlet macaw, the great green macaw, the black-bellied whistling duck, and the giant anteater are severely threatened with extinction. Our system of protected areas appears insufficient for species that, like the jaguar, require large expanses (sic) of virgin forest to survive. […]” (Emphasis added, downloaded from http://www.sinac.go.cr/vidasilvestre.php at 11:00 on 23 de marzo de 2010).

The same website further states:

“[…] Wildlife (vida silvestre) is the heritage of all Costa Ricans […]. For this reason, the Dirección General de Vida Silvestre, through the Sistema Nacional de Areas (sic) de Conservación, has undertaken various actions aimed at increasing the possibilities for wildlife conservation, among which the following should be highlighted: […] 2.-the drafting of a decree intended to protect populations of the mountain almond tree, on which the great green macaw feeds. […]” (Emphasis supplied, downloaded from http://www.sinac.go.cr/vidasilvestre.php on 23 de marzo de 2010).

The provisions of the Sistema Nacional de Áreas de Conservación must likewise be taken into account; on its website, it includes the great green macaw in the official list of endangered species (website http://www.sinac.go.cr/vidasilvestre5.php consulted on 23 de marzo de 2010). Additionally, Executive Decree “Creation of the Refugio Nacional de Vida Silvestre Mixto Maquenque,” number 32405-MINAE of 23 de mayo de 2005, published in La Gaceta 113 of 13 de junio de 2005, states:

“[…] 7º—That the Ministerio del Ambiente y Energía has among its upcoming projects the declaration creating the Refugio Nacional de Vida Silvestre Mixto Maquenque, located in the northern border area between the mouths of the San Carlos and Sarapiquí rivers. Because of its scientific interest, this area is considered important for conservation, as it has special characteristics for the conservation of significant species of flora and fauna, including: the great green macaw (Ara Ambigua), jaguar (Pantera onca), almond tree (Dypteryx panamensis), manatee (Trichechus manatus), tropical gar (Atractosteus tropicus), and Pinillo (Podocarpus guatemalensis). The geographical location of this area is highly significant because this protected wildlife area would be situated within the Corredor Biológico Binacional El Castillo-San Juan-La Selva, which is a continuation of the Corredor Biológico Mesoamericano between Nicaragua and Costa Rica and constitutes the last significant block of natural forest cover (cobertura forestal natural) capable of maintaining biological connectivity between the two countries. This area would therefore connect key habitats and wildlife corridors, preventing the isolation of native species and ecosystems.

8º—That the El Jardín, Cureña, and Chaparrón areas constitute highly important cores for biodiversity conservation, including several threatened species such as:

[…]

Threatened bird species Species Common name Status […]

37 Ara ambigua great green macaw endangered […]

Threatened tree species Species Common name Status […]

12 Dipteryx panamensis almond tree threatened […]” (Emphasis supplied).

Thus, it is clear that both the great green macaw (ara ambigua) and the yellow almond tree (dipteryx panamensis) are species that are endangered—in the case of the former—and threatened—in the case of the latter—and that the former is directly dependent on the latter.

In this case, it is clear that the mining project at issue, as stated above, will completely remove the vegetation layer in an area vital to the interconnectivity of the Corredor Biológico El Castillo-San Juan-La Selva, felling several yellow almond trees included in Appendix III to CITES (see http://www.cites.org/esp/app/appendices.shtml and http://www.cites.org/esp/app/S-Jul01.pdf, both consulted at 10:00 hours on 23 de marzo de 2010). This will further reduce the habitat and transit territory of the great green macaws, which will be placed under even greater threat despite already facing an extremely serious risk of extinction, as recorded in Appendix I to CITES (see http://www.cites.org/esp/app/appendices.shtml and http://www.cites.org/esp/app/S-Jul01.pdf, both consulted on 23 de marzo de 2010). This species is currently in a condition of extreme vulnerability that will be aggravated, bringing this bird to the brink of extinction.

Until now, the Tribunal Constitucional had defended it because of its precarious status and its importance within the ecosystem for purposes of guaranteeing the right to a healthy and ecologically balanced environment. At folio 4800, the Acting Director of the Área de Conservación Arenal Huetar Norte sets out the remaining felling to be carried out in the project area: on cerro Fortuna, 6 has 5598.15m would remain to be cleared (342 trees); at Relaves A and B, 115 has 2165.56m would remain (5520 trees); in dikes, roads, sections, and lines, 7 has 8085.05m would remain (1396 trees); and in non-forested areas, 8 has 8259.88 m would remain (563 trees). In total, 7821 trees still have to be felled, excluding the information concerning cerro Botija, where all the trees had already been felled. All trees of the yellow almond species were felled (197 almond trees were recorded in the census, folio 1405 of the administrative record).

In this regard, it must be noted that the majority of the Chamber reverses the burden of proof, to the detriment of environmental protection and, specifically, of the great green macaw, by asserting that the yellow almond tree should be protected only when it has been indisputably demonstrated that this type of bird nests in the area (“…the harvesting, extraction, and use of the yellow almond tree is absolutely prohibited by order of this Chamber insofar as the trees intended to be cut are located in an area where it has been fully established that the great green macaw nests,” Whereas X, emphasis added). This is so even though, in judgment 2008-13426 of 09:33 hours on 2 de septiembre de 2008, the Chamber itself established an absolute prohibition against felling this plant species, since it ordered that “[…] any action or proceeding intended for the use, harvesting, or extraction of the yellow almond tree (dipteryx panamensis) be closed.” It further prohibited “[…] initiating or continuing any proceeding aimed at the use, harvesting, or extraction of the yellow almond tree (dipteryx panamensis) while this tree and the great green macaw (ara ambigua) [remained] on the list of threatened or endangered species […].” This was precisely because of the extremely close relationship between the bird and the yellow almond tree; nevertheless, the Chamber has reinterpreted that ruling, which will have a highly detrimental effect on the environment and, above all, on the great green macaw. From that perspective, the mining project under review constitutes a direct assault on this species, and the petition for constitutional relief (amparo) must therefore be granted on this issue.

A.4. Effects of open-pit mining (minería a cielo abierto) on the area’s water resources. On this point, the first thing that must be noted is that the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento lacks sufficient information concerning the aquifers (mantos acuíferos) in the area of the Las Crucitas mining project. This is fully demonstrated by the fact that, at folio 1143 of the record, the general manager of SENARA states that the institution has never conducted a hydrogeological study in that area that would enable it to determine the existence, influence, carrying capacity, and recharge of the aquifers at the site where the mine is to be built. Still less are there regional studies enabling the institution to establish with certainty the impact that the aquifers located near the project have on those adjacent to it. From that perspective, it is appropriate to reiterate what was stated in Chamber judgment #2004-01923 of 14:55 hours on 25 de febrero de 2004, extensively cited in the majority opinion. Accordingly, only the points essentially related to this dissenting opinion are transcribed:

“X.- GROUNDWATER CONTAMINATION. Unlike surface-water contamination, which is generally evident and visible and thus allows environmental measures to be taken to mitigate or eradicate it, groundwater contamination, by its very nature, generally goes unnoticed and becomes evident only after it has reached major proportions. Because of the slow circulation of water, the absorptive capacity of the ground, and other factors, aquifers may take a long time to exhibit contamination. Additionally, the large volume of water they contain means that widespread contamination takes a prolonged period to manifest itself or, in cases of localized contamination, is detected when it flows into a site where water is being extracted. Groundwater does indeed possess some resistance to contamination; however, once contamination occurs, its regeneration may be extraordinarily slow and is sometimes irreversible because of the high cost of the methods required.

It has been shown that attempts to repair the damage caused by contamination of an aquifer and restore the water to potable levels have been unsuccessful; cleanup technologies have done little to reduce the damage, and the methods are exceedingly costly. To this must be added the lack of organizational infrastructure and material, financial, and human resources—the latter properly trained—to assess, measure, and generally monitor the quality of this water and the exact extent of its contamination. The degradation and contamination of aquifers impose upon the legislature and public administrations the urgent and non-deferrable task of protecting them. (…)

Aquifer contamination may have many different sources, including the following: (…) f) contamination from mining activities—mineral-related—associated with discharges of mine water and ore-washing facilities; g) contamination from industrial activities, which is as varied as the type of industry that produces it, with contamination caused by heavy metals from the metallurgical industry, as well as from the chemical, petrochemical, food (organic substances), and beverage (detergents) industries, being especially harmful; h) contamination from nuclear activities, although exceptional in our country, which may originate from facilities processing irradiated fuels and radioactive minerals and from medical activity;.

[…]

XII. PROTECTION OF GROUNDWATER

Because of the characteristics of contamination affecting aquifers intended for public water supply and the difficulty of restoring them, measures to prevent contamination must be preventive and protective, through the prohibition of certain human activities in specified areas or the imposition of safety measures upon certain potentially contaminating activities. (…)” In this specific case, the issue is no longer whether there is uncertainty regarding harm or a potential threat to water resources; rather, as has been established, the aquifer will be directly affected, since the General Secretariat of the Secretaría Técnica Nacional Ambiental itself stated in its report that:

“With regard to hard-rock extraction, the effect, as compared with the saprolite extraction system, consists of an impact on the quantity of groundwater caused by the outcropping of the lower aquifer during excavation of the open pits (tajos). The groundwater level is expected to be drawn down to the base of this aquifer. As presented in the environmental impact study (estudio de impacto ambiental), given the aquifer’s distribution and flow characteristics, this situation would generate a maximum anticipated radius of influence of 267 meters, which would obviously not affect properties located outside that radius, since the entire radius is itself located within the properties of Industrias Infinito; consequently, water intakes or wells on neighboring properties would not be affected. The drawdown (abatimiento) would occur in the immediate vicinity of the excavation, but the magnitude of that decline in the water level may be practically imperceptible beyond that radius of 267 meters.

There are no groundwater withdrawals within that distance, and therefore this impact was deemed irrelevant in terms of aquifer use. This effect would be permanent at the Fortuna open pit, since the Fortuna open-pit area would remain even after operations cease. The lower aquifer is confined and, in some sectors, exhibits flowing artesian behavior; its piezometric level has an approximately northeast-southwest flow direction, and the elevation of the piezometric level in the sector where the open pits will be located is approximately 73 meters above sea level. The lower aquifer will therefore be intersected at that point. In that event, as extraction proceeds below elevation 73, the emerging water will be pumped to the tailings pond (laguna de relaves) until extraction is completed. Thereafter, in the Botija open pit, which will be backfilled, the water level may approximately return to its position within the material placed inside the open pit, after which vegetation will be restored on the land surface.

In the case of the Fortuna open pit, the water level will return to its former elevation but will fill the pit, forming a lake. To assess the effects of excavating the open pits on the lower aquifer, an evaluation was conducted by modeling the drawdown of the water level within the excavation itself and in the surrounding area. For this purpose, a radial-flow model (Rushton and Redshaw, 1979) was used, and the flow rate that would have to be removed from the excavation to keep the water level at the floor of the open pit while extraction work was being completed was calculated, together with the radius of influence. This involved a geometric simplification of the shape of the open pits, with emphasis placed on the Fortuna open pit because the Botija excavation will be backfilled. In general terms, the area of the base of the Fortuna open pit was taken to be 19103.8 m2. Once the water level has recovered, the surface area of the water is calculated at 88096.6 m2.

This drawdown effect on the water level in the lower aquifer is temporary, since once material-extraction work ceases and water is no longer withdrawn from the excavation, the groundwater level will begin to recover until it reaches its current elevation of 73 meters above sea level. (folio 3781, finding 143).” At this point, note the following statement by the Secretary-General of SETENA:

“The groundwater level is expected to be drawn down to the base of this aquifer. As presented in the environmental impact study, given the aquifer’s distribution and flow characteristics, this situation would generate a maximum anticipated radius of influence of 267 meters, which would obviously not affect properties located outside that radius, since the entire radius is itself located within the properties of Industrias Infinito; consequently, water intakes or wells on neighboring properties would not be affected.” And contrast those assertions with what this Court stated in judgment #2004-1923:

“Finally, beginning in the twentieth century, many legal systems came to classify all groundwater as (c) property in the public domain (bienes de dominio público), based on the unquestionable unity of the hydrological cycle, thereby making it part of what has been called the ‘public water domain’ (dominio público hidráulico), as part of the natural rather than artificial domain. This position conceives of water as a single resource subordinated to the general interest and therefore holds that no distinction should be drawn between surface water and groundwater, since they are intimately connected in maintaining their quality and quantity. Under this latter theory, groundwater cannot be appropriated by any private party, and its classification as property in the public domain constitutes sufficient grounds for subjecting it to a very strong and intensive system of administrative intervention in order to safeguard its integrity and quality and remove it from the methods of acquisition and enjoyment applicable under Private Law.

[…] as regards nonrenewable, fossil, dead, stagnant, or nonflowing groundwater contained therein, there can be no doubt whatsoever that it is also in the public domain, given that articles 4° of the Código de Minería and 50 of the Ley Orgánica del Ambiente do not distinguish between groundwater and surface water, much less between renewable and nonrenewable groundwater; consequently, such water cannot be conceived of as res nullis (sic) capable of appropriation by the private party who brings it to the surface.” In other words, this case permits the contamination of an aquifer in the area of the Las Crucitas mining project, and the Secretaría Técnica Nacional Ambiental misunderstands the legal nature and legal regime of groundwater and aquifers, because it effectively assumes that, merely because the aquifer lies within property owned by Industrias Infinito Sociedad Anónima, it may be directly and adversely contaminated and affected.

Water resources are property in the public domain and, at this time, as scientific panels worldwide have indicated, they are also scarce resources facing ever-greater risks. In this case, our country is not only increasing the risk that water resources will be contaminated, but is openly granting authorization for private parties to contaminate an entire aquifer. Furthermore, the general judicial attorney-in-fact (apoderado generalísimo judicial) of Industrias Infinito stated in the submission appearing at folio 4519 that excess water from the Tailings Pond is expected to be discharged into Quebrada La Mina, assuring that the discharge will comply with national and international discharge standards. The discharged water, together with water contributed by the natural flow, travels a distance of 1 km before emptying into Río Infiernito. The latter follows its natural channel for a distance of 20,3 kilometers before emptying into Río San Juan.

Once again, the analysis assumes a completely controlled and harmless operation and considers only the scenario in which the system functions as intended. It is evident that any system failure will result in contamination of the aforementioned stream and even of Río San Juan. The passive attitude of the Secretaría Técnica Nacional Ambiental and the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento toward protecting water resources in the case of the Las Crucitas mining project is inexplicable. They conducted no studies of their own despite the scale of the project; there are no data with which to determine the regional influence of the aquifer that will be contaminated with government authorization; and there is no remediation plan (plan remedial) establishing a response protocol for extreme weather conditions such as those we are witnessing today. Furthermore, as repeatedly noted throughout this dissenting opinion (voto salvado), there is no estimate of the cost to the country of deliberately and knowingly damaging an aquifer by contaminating it with heavy metals, much less any estimate of the cost and time that might be required to remedy the pollution that the aquifer will inexorably suffer.

Nor do I agree with the majority’s argument, based on the argument of the respondent company, that there is no harm because the aquifer’s water is unfit for human consumption due to its acidity. The fact that the water is not potable because of its chemical composition does not mean that unrestricted permission may be granted to contaminate it. Water that is nonpotable because of acidity and water contaminated by heavy-metal residues are two entirely different things. Using an aquifer as part of the mine’s remediation plan will simply cause more problems than it is intended to remedy and will result in the deterioration, with the State’s consent, of property in the public domain. Although the majority of the Chamber grants the constitutional protection proceeding (amparo) on the grounds that the respondent authorities acted negligently by failing to obtain SENARA’s opinion regarding the impact on the region’s water resources before granting the project environmental approval (viabilidad ambiental), the judgment merely orders the respondent authorities to pay compensation for the harm and losses caused, without annulling either the Environmental Impact Study or the environmental approval granted, because SENARA subsequently issued its approval.

This solution contradicts the most basic principles of environmental law: it minimizes the significance of authorizing an activity without the relevant prior technical investigations and addresses the problem through the mechanics of access to compensation mechanisms. Clearly, as explained thus far, this situation not only violates the fundamental right to a healthy and ecologically balanced environment but also infringes the fundamental right of access to water-resource sources; the constitutional protection proceeding should therefore have been granted on this issue.

B. The socio-environmental impact of the open-pit mining project. A recurring argument in the discussion of this case has been the social benefit that the project would purportedly provide, almost to the point of accusing anyone who raises objections to the activity of stinginess toward the local community—which belongs to an area of low economic development. The notion of social benefit, however, is highly indeterminate, partly because it has an axiological component: what is beneficial or harmful? It is also indeterminate because it refers to a collective body that it homogenizes (“society”), despite that body’s enormous diversity and its natural role as the locus of all kinds of interests, which are frequently opposed to one another. Thus, speaking of the social benefit caused by a particular activity is nothing more than an empty formula. Until it is given concrete content, necessarily anchored in the reality being assessed, it could mean everything and nothing.

The environmental impact study is defined in article 2° of the Código de Minería as: “the comparative, technical, economic, social, cultural, financial, legal, and multidisciplinary analysis of the effects of a project on the environment, as well as the proposal of measures and actions to prevent, correct, or minimize those effects.” In the study prepared by Muñoz Giró for the Ministerio del Ambiente, Energía y Telecomunicaciones in February 2009, approved through official letter SG-ASA-259-2008 of October 10, 2008, issued by the Secretaría Técnica Nacional Ambiental (folio 1682 of the administrative case file), concerning the environmental effects and social benefits of the Crucitas open-pit gold mining project (proyecto de minería de oro a cielo abierto), negative biophysical effects (efectos biofísicos) (effects on the natural environment that impact a natural resource, with emphasis on the forest) and social effects (efectos sociales) (effects on society) were considered.

The former included the commercial value of the forest, the opportunity cost of the forest’s annual growth, loss of biodiversity, loss due to carbon release, and loss due to impacts on watercourses, for a total of $1.479.824,46. The market value of the forest, loss due to impacts on scenic beauty, sources for study, research, and recreation, and the cost of the general restoration of the area were considered social effects, for a total of $2.264.530,47; the sum of the two categories amounts to $3.744.354,93. That amount is compared with the investment in proposed compensation, mitigation, and monitoring measures, which is approximately $7.500.000 (800 hectares of forest, 140 hectares of biological corridor, 15 reforested hectares, mitigation and monitoring, restoration); as well as with contributions to compensate for social effects totaling $5.619.842,87 (compensation for the scenic beauty of the 800 hectares of forest, 140 hectares of biological corridor, and the 15 reforested hectares, an environmental contribution through the donation of proceeds from tree sales, and a trust fund supporting community associations).

The benefits included: actual contributions made through 2008 for the benefit of the community (totaling $5.580.103,08), consisting of infrastructure maintenance and improvement works, construction of an electrical transmission line, community-organization and small- and medium-sized enterprise projects, support for health services and older adults, recreational and sports activities, educational materials, and various donations. The project’s contributions were also deemed to include wages from direct employment, social security contributions, and revenue from mining royalties, totaling $140.030.000. Based on the foregoing data, the study concludes that there is a favorable difference of $154.036.000.

With regard to methodology, it is explained that “a direct valuation method (método de valoración directa) was used, based on prices or rates available from observation of the current context or available market, estimating the cost of using natural resources,” together with the methodology for the economic assessment of environmental damage (evaluación económica de daños ambientales) in Costa Rica developed by Barrantes and Di Mare for the Instituto de Políticas de Sostenibilidad (p. 24 of the study), using official sources of information such as the Cámara Costarricense Forestal, Oficina Nacional Forestal, Ministerio de Agricultura y Ganadería, Banco Mundial, Banco Central, and other research. Assistance was provided by officials from SINAC, MINAET, and SETENA.

It is striking that the project’s negative effects do not include its medium- and long-term environmental consequences, even though it has been acknowledged that such consequences will arise.

The summary table of the environmental management plan (plan de gestión ambiental) stipulates that the environmental closure and recovery phase will extend for 18 months, which the hearing held before the Sala demonstrated to be entirely unrealistic. In the case of open-pit metal mining (minería metálica a cielo abierto), it should be noted that the recovery period is usually extraordinarily long and may even be indefinite.

An instrument such as the one used to make the foregoing comparison between benefits and costs is highly susceptible to manipulation. It combines variables that do not occur at the same time. For example, the logging will occur at the beginning of the project and is assigned a cost; mitigation of some of the effects will not begin until after the ten-year exploitation period has ended and is simply assigned its current value (at least, it is not specified that the amount is indexed). The valuations are made in dollars because that currency is clearly more stable than the colón, but over a period of ten years or more, this does not permit a reliable comparison. Likewise, items presented as benefits, such as wages from direct employment, are projected over a ten-year period. The very determination of which items should be considered benefits or harms is quite subjective. We would question, for example, whether social security contributions associated with direct employment constitute a benefit derived from the project. They are, instead, compliance with an unavoidable constitutional duty. The benefit should consist of an additional component of social gain from the activity, not mere compliance with social security regulations.

With regard to monitoring, an annual investment of $446.000 is stipulated during project operations, but not for the period following the cessation of activities.

The price of timber and the effects on scenic beauty and the landscape were considered social effects. Such impacts are compensated through forest protection, recovery, and reforestation; conservation of natural resources; and the establishment of a $4.600.000 trust fund to support communities within the area of influence, calculated at $0,20 for each ton of the 23 million tons of ore that would be extracted.

There is not a single category, whether biophysical or social, addressing the polluting effects of the exploitation. It assumes an entirely controlled and clean activity. There is no discussion of air, soil, or water pollution within the area of influence from acid drainage (drenaje ácido) or cyanide leaching (lixiviación con cianuro).

The estimated total cost of restoring the natural resource will depend on its characteristics and on the activities required for its restoration. The more complex the factor, the more elements there will be to recover.

In open-pit metal mining, the impact on natural resources is extremely severe and affects all resources, completely eliminating the social benefits they represent.

The principal impact occurs over a very short period, although the remaining elements, such as the geological substrate and groundwater, will continue to be affected for a longer period.

In this situation, social harm (daño social) would manifest itself in the loss of benefits provided by natural capital (capital natural) and used by society to improve its well-being. The social benefits affected by the alteration of the natural resource should therefore be precisely identified, which is not reflected in the study under review. Natural capital provides society with values that may involve current use (direct or indirect) or potential use (option or existence). Estimating the value of a particular natural resource is therefore complex and indirect. Compensation costs must be estimated for the period during which the natural resource is undergoing restoration—that is, from the time the damage begins until the natural resource has been satisfactorily restored.

An extractive activity as harmful as open-pit gold mining has such a high environmental and social cost that it cannot possibly be “profitable” for a country that has made environmental protection one of its most valued banners and that is measured and highly regarded internationally because of that banner.

From an environmental perspective, the value of life and of a concomitant quality, the diversity of life, constitute two environmental and social variables of inestimable economic value.

Life and its extraordinary diversity are a phenomenon unique to planet Earth, based on what is currently known about the Universe.

Because this entails severe environmental damage (daño ambiental), a high social cost, and an excessively long environmental-damage recovery period, the activity is practically unviable from this perspective.

C. Compliance with the legal and constitutional guidelines for environmental protection (pautas jurídico constitucionales de protección del ambiente). Faithful use of the legal tools for environmental oversight (herramientas jurídicas de fiscalización del ambiente) is unquestionably inseparable from the impacts on the area’s various environmental components; significant inconsistencies have also been found in the present case with respect to this issue.

C.1. Regarding the amount of the environmental guarantee (garantía ambiental). As established in the case file and at the oral and public hearing, the amount of the environmental guarantee for the Las Crucitas mining project is $600.000,00. However, as was demonstrated, that amount is plainly insufficient to remedy all the invaluable environmental damage that mineral extraction will cause in the area where mining will take place. This is demonstrated by taking into account that, according to the information submitted by the petitioners, regenerating one hectare of forest planted with a single plant species—that is, one hectare under monoculture—costs $500.000,00; in other words, one hectare of land under monoculture would absorb virtually the entire paltry environmental guarantee. That amount is, moreover, ridiculous when compared with the fact that Industrias Infinitos Sociedad Anónima intends to extract between 800.000,00 and 1.000.000,00 ounces of gold, which is valued at more than $1.100,00 per ounce, yielding total revenues ranging from $880.000.000 to $1.100.000.000,00.

Furthermore, those profits could increase substantially considering that gold has exhibited an upward trend during the last several years, rising over approximately 10 years from just over $255.00 to, as stated supra, more than $1.100,00 per ounce. From that perspective, the environmental guarantee is inexplicably low when compared with the incalculable environmental damage that the Las Crucitas mining project could cause in the northern region of our country. Evidently, the amount of the environmental guarantee will not even be sufficient to begin the process necessary to restore an area that could be left devastated once the extraction phase of this project has ended. It is extremely important to note that, at the oral and public hearing, when the authorities of the Secretaría Técnica Nacional Ambiental and the Ministerio de Ambiente, Energía y Telecomunicaciones were asked whether they had budgeted an amount to address a potential environmental disaster caused by the mining project under review, they merely stated that no such amount existed and that the only funds available were those from the grossly inadequate environmental guarantee.

Additionally, when asked whether they had estimated the monetary cost of environmental regeneration in the event of a catastrophe, they had no answer to offer because, plainly, no such studies had been conducted, and they had no idea how much it might cost to regenerate the environment or contain the harmful effects caused by the Las Crucitas mining project in the event of an environmental disaster. To all the foregoing must be added the fact that no reliable information was ever submitted concerning how much the mine’s technical closure (cierre técnico) process would cost or who would be responsible for it. That process is essential if mining is to be conducted without causing an even greater environmental impact after the company has completed the extraction phase. Consequently, there is no certainty as to how the Las Crucitas area will be managed after Industrias Infinito Sociedad Anónima has departed, nor is it clear who will be responsible for that process, although it would, of course, ultimately become the State’s responsibility; that is, the country would end up paying to restore an environment damaged by private parties after they had obtained their respective profits and posted an environmental guarantee of $600.000,00, compared with the more than $850.000.000,00 in gold that will be extracted.

The foregoing demonstrates that the environmental guarantee is simply negligible in relation to the damage that can and indeed will be caused to the environment, and that it will simply be insufficient to address the environmental deterioration that will occur. This confirms that the project was not evaluated or weighed with the seriousness, depth, and rigor required in view of the profound and incalculable impacts that it will cause to the environment. There is only one reality, and the facts leave no room for speculation: the amount of the environmental guarantee will be insufficient to remedy the environmental damage, develop a strategy for the Las Crucitas area following the mine’s closure, treat contaminated aquifers (acuíferos), and implement the technical closure process, to cite four of the most important tasks that must be addressed once extraction activities have ended. All of these obligations arise directly from the text of the Constitution, which requires the State to ensure a sustainable development strategy, an obligation disregarded in this case.

Everything stated thus far is not merely the product of speculation lacking a factual basis; on the contrary, the stark reality and facts show that open-pit mineral extraction (extracción de minerales a cielo abierto) is environmentally unsustainable and that its consequences throughout the world are immeasurable, as well as exceedingly costly. Experiences in tropical countries such as ours have been even more disastrous and are closely related to the inadequate and lax legal regulation of an activity with such a severe environmental impact. Indeed, in Latin America, there is not a single case of a country that embarked on the mining venture and emerged unscathed from a socio-environmental standpoint. In short, the $600.000,00 comprising the environmental guarantee for this project is insufficient and, beyond that, minuscule when compared with the injury that the environment will suffer as a result of this project.

C.2. The project lacks environmental feasibility (viabilidad ambiental) because no new environmental impact study (estudio de impacto ambiental) was conducted. As established in the case file and during the oral and public hearing, the Proyecto Minero Crucitas does not have an approved environmental impact study and, therefore, does not have environmental feasibility granted by the Secretaría Técnica Nacional Ambiental, because the modifications made to the project’s design were so significant that they increased the volume of material to be extracted by 39%. Although the area to be mined was reduced by 76 hectares, from 126,4 to 50 hectares, representing a 60,31% decrease in area, the depth increased considerably, from 15 to 67 meters of excavation in the open pit (tajo), representing a 446,67% increase in depth. Nevertheless, these modifications were not subjected to a new environmental assessment procedure (procedimiento de evaluación ambiental) to examine the impacts that the design change would have on the surroundings.

Those impacts have not yet undergone the rigorous scrutiny of an Environmental Impact Study, a situation for which there is no explanation and which the officials of the Secretaría Técnica Nacional Ambiental were unable to clarify satisfactorily at the oral and public hearing. The foregoing is relevant because, if the impact that the mining project will have on the environment is unknown, neither can the means of mitigating, preventing, or remedying it be determined with technical and scientific certainty. This is crucial, considering that Industrias Infinito Sociedad Anónima intends to implement a series of measures to alleviate the adverse effects that the mine’s operation will cause; however, if the adverse effects that will occur have not been methodically and systematically predicted, it will be extremely difficult to mitigate or prevent them. In this regard, the Sala Constitucional has held:

“VI.- The environmental impact study as an instrument of protection. Environmental rules must have a technical foundation, because their application must be based on the conditions governing the use and exploitation of natural resources. This is so because, since environmental damage and pollution can be assessed, their impact requires scientific assessment and treatment. Hence the need for an environmental impact assessment (evaluación de impacto ambiental), which, as established by the Reglamento General sobre los Procedimientos de Evaluación de Impacto Ambiental, consists of a scientific and technical administrative procedure that makes it possible to identify and predict the effects that an activity, work, or project will have on the environment, quantifying and weighing them to guide decision-making.” (Judgment 2005-05544 of 15:38 hours of 10 de mayo de 2005. Emphasis added.).

Likewise, when specifically addressing mining, and more precisely when annulling the mining concession (concesión minera) granted to Industrias Infinito Sociedad Anónima because it lacked an approved environmental impact study, the Sala, in judgment #2004-13414 of 09:29 hours of 26 de noviembre de 2004, held:

“V.- The alleged violation of the prevention principle (principio de prevención) in this particular case.- In this matter, although the concessionaire Industrias Infinito S.A. does not yet have approval of the environmental impact study (estudio de impacto ambiental), it has already been granted the mining exploitation concession (concesión de explotación minera) in the indicated area. On this point, it must be noted that granting a mining exploitation concession without having obtained approval of the environmental impact study—which constitutes a measure intended to ensure that the approved activity will not cause environmental damage—is therefore inconsistent with the Prevention Principle and the cited provisions of the Mining Code (Código de Minería) and Decreto Ejecutivo N°29300-MINAE, Article 9 of which establishes the requirements for an exploitation concession, including the aforementioned environmental study.

It expressly provides: “Article 9.- Requirements for an exploitation concession. ... The application must consist of an original and two copies, containing: a)... b) SETENA’s decision approving the Environmental Impact Study corresponding to the proposed exploitation, and a copy of the approved environmental impact study. c)...”. In this matter, the concessionaire submitted the referenced study to the appropriate authority for due approval, and it was rejected by decision N° 272-2003-SETENA, issued at eleven forty-five on once de marzo del dos mil tres by the Secretaría Técnica Nacional Ambiental; that decision was challenged by the interested party. The Ministro de Ambiente y Energía decided the appeal (recurso de apelación) by decision R-569-2003 MINAE, issued at nine thirty on veinte de octubre del dos mil tres, granting the appeal after finding procedural defects (folio 191) and ordering that the proceeding be remanded to the point at which Industrias Infinito S.A. submitted the environmental impact study.

Consequently, the Chamber finds that the decision to grant the exploitation concession without approval of the environmental impact study could cause irreversible environmental damage, after which nothing could be done but regret it and attempt to mitigate some of its effects, even though such a situation could have been prevented. This precaution, as stated, is established in the 1992 United Nations Conference on Environment and Development, at which Costa Rica, together with other nations, signed the Rio Declaration; in this regard, Principle 15 must be noted: “In order to protect the environment, the precautionary approach (criterio de precaución) shall be widely applied by States according to their capabilities. Where there is a threat of serious and irreversible damage, a lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” and Principle 17: “Environmental impact assessment (evaluación del impacto ambiental) shall be undertaken, as a national instrument, for any proposed activity that is likely to have a significant adverse impact upon the environment and is subject to a decision by a competent national authority.”

VI.Consistent with the foregoing analysis, and in observance of the principle of protecting natural resources, specifically the Prevention Principle set forth in the Rio Declaration on Environment and Development, the interested party must, in accordance with the procedure established by the Mining Code and its Regulations, obtain approval of the environmental impact study as a prerequisite for obtaining the mineral exploitation concession, in furtherance of the precautionary approach and the in dubio pro natura principle (principio in dubio pro natura). The Chamber further observes in this case that the Jefe del Departamento de Suelos y Evaluación de Tierras del Ministerio de Agricultura y Ganadería has been unable to issue his final opinion in the mining exploitation concession proceeding because he does not have the Environmental Impact Study addressing soil-restoration practices (prácticas de recuperación de suelos); this makes the study’s usefulness in assessing the feasibility of the concession from various perspectives undeniable.

Moreover, the act of the respondent authorities granting the mining concession while conditioning the development of the extractive activity upon compliance with the requirements set forth in the Mining Code is not effective in fulfilling the purpose of preserving natural resources and the integrity of the environment and is contrary to the Precautionary Principle (Principio Precautorio) in environmental matters.”

In this case, specifically, there is no analysis that has assessed, with the depth of an environmental impact study, the modifications made to the design of Proyecto Minero Las Crucitas, including the use, following the design change, of explosives to work the hard rock, which will be exploited together with the saprolite (saprolita). Under the Chamber’s case law, that reason is more than sufficient to grant the amparo proceeding (amparo), annul Decreto Ejecutivo #34.801-MINAE, and order the preparation of an environmental impact study analyzing the modifications made to the design of the mining project at issue.

C.3. The direct consequence of the deficient environmental impact analysis of the project (failure to prepare a new EsIA) is the nullity of the mining concession. The exploitation concession, understood as authorization to extract minerals not reserved to the State (121 inciso 14) b de la Constitución), transform and process them, and dispose of them for industrial and commercial purposes, was granted in this case by decision R-578-2001-MINAE of the Ministerio del Ambiente y Energía, issued at 9:00 on 17 de diciembre de 2001, in favor of Industrias Infinito S.A., for the exploitation of gold, silver, copper, and associated minerals. The commencement of operations was made contingent upon subsequent approval of the Environmental Impact Study.

In judgment #2004-13414, issued at 9:29 on 26 de noviembre de 2004, the Chamber held that the decision to grant the exploitation concession without prior approval of the environmental impact study could cause irreversible environmental damage and therefore annulled the administrative concession act (acto administrativo de concesión) on the following grounds:

“...the decision to grant the exploitation concession without approval of the environmental impact study could cause irreversible environmental damage, after which nothing could be done but regret it and attempt to mitigate some of its effects, even though such a situation could have been prevented. This precaution, as stated, is established in the 1992 United Nations Conference on Environment and Development, at which Costa Rica, together with other nations, signed the Rio Declaration; in this regard, Principle 15 must be noted: “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there is a threat of serious and irreversible damage, a lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” and Principle 17: “Environmental impact assessment shall be undertaken, as a national instrument, for any proposed activity that is likely to have a significant adverse impact upon the environment and is subject to a decision by a competent national authority.” By decision #3638-2005-SETENA, issued at 9:25 on 12 de diciembre de 2005, environmental viability (viabilidad ambiental) was granted to the Crucitas mining project, subject to an environmental bond (garantía ambiental) of $600.000, calculated at $3.000 per affected hectare per year, in accordance with the requirements established for mining projects.

By decision #170-2008-SETENA, issued at 12:50 on 4 de febrero de 2008, changes to the project were evaluated, principally concerning the extraction depth, which increased from an average of 15 metros to 67 metros, while the extraction area was reduced from 126,4 ha to 50 ha. This occurred because Canadá, the destination market, does not permit the inclusion of “inferred or estimated” mineral resources derived from the saprophyte (saprofita); rather, extraction must also occur from the hard rock, which increases the quality of the gold and requires the use of blasting (voladuras). The modification was approved, and the establishment of an oversight and monitoring commission (comisión de fiscalización y monitoreo) was ordered.

Subsequently, by decision R-217-2008-MINAE, issued at 15:00 on 21 de abril de 2008, a new mining exploitation concession was granted to the same company for ten years to exploit the same minerals. The license was likewise conditioned upon the project being found environmentally viable.

I consider that the current 2008 concession was granted under conditions contrary to the fundamental right to a healthy environment (derecho fundamental a un medio ambiente sano). First, it was granted without a new environmental impact study encompassing the modifications proposed by the company in diciembre de 2007, which, in my judgment, is indispensable. The project that is now intended to be implemented is completely different from the one originally submitted to SETENA and granted the corresponding environmental viability following approval of an environmental impact assessment that reviewed works diametrically different from those now being undertaken. Furthermore, the activity was authorized without a comprehensive study by SENARA regarding the impact on water resources (recurso hídrico) in the area. Although there are fairly specific local studies concerning the project area, no regional analyses were conducted to determine the interrelationship among the aquifers (mantos acuíferos), including the one that will be used for the tailings pond (laguna de relaves).

In granting the amparo, the Chamber’s majority relies precisely on that omission, but treating it as cured by a study proposed by the interested mining company, with only a simple endorsement by the Gerente del Servicio Nacional mentioned above, is inconsistent with environmental protection. The Chamber has insisted, including recently (e.g., in judgment #2008-15760, issued at 14:30 on 22 de octubre de 2008), that altering the sequence of acts authorizing an activity that adversely affects the environment is contrary to Constitutional Law (Derecho de la Constitución), particularly when it entails issuing an administrative act declaring rights (acto administrativo declarativo de derechos) in favor of a private party before determining with certainty that the activity is sustainable. Such temporal inconsistency among the authorization acts exists in the present matter, and, from an environmental perspective, the nullity of the concession is a necessary consequence of the analysis conducted.

In summary, the order of the environmental administrative authorizations was disrupted, and two critical studies are missing: a complete environmental impact study of the project following its significant modifications, and a thorough, comprehensive analysis by SENARA of the area’s water resources. The direct consequence is the annulment of the mining concession and the submission of the project to new environmental impact and hydrogeological assessments (evaluaciones de impacto ambiental e hidrogeológica) to obtain its viability; only after its environmental harmlessness has been established could the act authorizing mineral exploitation be issued.

C.4. The National Convenience Decree (Decreto de Conveniencia Nacional), #34801-MINAET, and the land-use change (cambio de uso de suelo) provided for in artículo 19 of Ley Forestal.

The issue of the national interest of the authorized activity has also been the subject of intense controversy before this Court. Such national interest was declared in Decreto Ejecutivo #34801-MINAET del 13 de octubre de 2008, based on the fact that Article 19(b) of the Ley Forestal permits land-use change (cambio de uso de suelo) and tree felling (corta de árboles) on forest-covered land and in protection areas (áreas de protección) for public or private projects that the Executive Branch declares to be in the National Interest, and that Article 6 of the Código de Minería classifies mining activity as being in the public interest. It states that the specific project of Industrias Infinito, S. A. will bring various economic benefits to the community of San Carlos and the central government. In contrast to those benefits, the Decree explains that the construction and development of the Proyecto Crucitas requires tree felling on 191 Ha (7 782,66 m2) of forested land, representing 19.93 % of the forest existing on all the properties; tree felling on 66 Ha (9474,53 m2) of non-forested agricultural land, representing 14.00 % of the non-forested agricultural land existing on all the properties; and tree felling on 4 Ha (1 751,38 m2) containing forest plantations (plantaciones forestales), representing 12.33 % of the forest plantations existing on all the properties.

Among the forest species in the area are some subject to a logging ban, pursuant to the Chamber’s judgment #2002-2486 of 10:54 hours on 8 de marzo de 2002 and Decreto Ejecutivo #25700 del 15 de noviembre de 1996. In judgments #2008-17292 of 14:45 hours on 19 de noviembre del 2008 and #2008-17293 of 14:46 hours on the same day, the Chamber held—with a dissenting opinion by me and Justice Cruz Castro—that the Decree could not be reviewed through constitutional challenge proceedings because it consisted of a specific declaration of national interest rather than a normative provision, leaving it to these proceedings to determine whether it conformed to the Constitution. Also issued in connection with this case was judgment #2009-17155 of 14:00 hours on 5 de noviembre del 2009, in which, among several matters discussed, the majority of the Chamber reiterated the precedent established in decision #2006-17126, to the effect that Articles 19 and 34 of the Ley Forestal are not contrary to the right to a healthy and ecologically balanced environment, provided that they do not constitute authorization for public institutions to “legitimately” harm the environment or entail the establishment of an exceptional regime.

On that occasion, it was clearly established that the possibility of the land-use change at issue is reserved solely for privately owned forest resources, and therefore does not “affect” the State’s natural heritage (Articles 1, second paragraph, and 18 of the Ley Forestal).

In my judgment, and for the reasons I have set forth above concerning the project’s serious environmental consequences, there is no reasoned balance between its benefits and the probable environmental harm that will result from it, and its justification is therefore weak and unconstitutional. The practical effect of issuing the Decree under discussion is to deprive the right to the environment of its substance, as the Chamber had expressed in its previously cited judgments #2002-2486 and #208-13426. In those judgments, it categorically protected the great green macaw, as an endangered species, by strictly prohibiting the felling of the mountain almond tree. The provision permits precisely the opposite and is therefore, I repeat, unconstitutional.

I also stated in my dissenting opinion in judgment #2009-17155 that the exceptions permitted by Article 19 of the Ley Forestal flagrantly violate the right to a healthy and ecologically balanced environment. There can be no double standards or hesitation in this matter: either conservation is supported or it is abandoned, in open conflict with the Constitution and the international instruments intended to protect the environment.

D. Failure to comply with the principle of citizen participation (principio de participación ciudadana). In this case, it has been demonstrated that there was a flagrant failure to comply with the principle of citizen participation. This is corroborated by the fact that, in this specific case, the public was given no opportunity whatsoever to be heard regarding the modifications made to the design of the mining project at issue. Thus, at no point were the neighboring residents or, more generally, the interested parties who had entered an appearance in the case file afforded the opportunity to express their views concerning the social, environmental, economic, and legal implications that the changes to the original design submitted to the Secretaría Técnica Nacional Ambiental—and approved by that body—might have. Accordingly, by failing to give the public an opportunity to be heard, that body violated this deeply rooted constitutional principle, concerning which the Chamber has stated:

“IX.- By virtue of the foregoing, the democratic principle has a threefold constitutional meaning: first, as an essential characteristic of our Social and Democratic State under the Rule of Law, entailing a particular method for electing our public officials, which is embodied in a system of representative, participatory, and pluralistic democracy, as the indirect exercise of power through the various elected offices; second, as a source or parameter of interpretation, insofar as it constitutes the source and guiding principle of the legal system, permeating the entire body of law and all legal forms, thereby establishing itself as a governing principle in the political organization of the State and in all forms of collective organization (as occurs with the composition of the collegial bodies of corporate entities, including municipalities, professional associations, and production corporations), with representativeness serving as its practical instrument of implementation; and third, as a true right and, in that capacity, one enforceable before administrative and judicial bodies, as occurs with the system of quotas for women (before the Tribunal Supremo de Elecciones), for the purpose of achieving forty percent representation both among candidates for electable positions and within the organization of political parties; or with respect to the participation of residents of the affected community in the oral and public hearing (audiencia oral y pública) provided for in environmental impact study procedures (procedimientos de estudio de impacto ambiental) (judgments number 2000-9060, of ten twenty-seven hours on thirteen of October of two thousand, and number 2001-05737, of fourteen forty-one hours on twenty-seven of June of two thousand one).

(…) public authorities must, always and insofar as possible, promote and encourage citizen participation in decision-making, since this is nothing more than recognition of the democratic nature of Costa Rican society.” (judgment 2003-03475 of 08:56 hours on 2 de mayo de 2003).

The State’s obligation to encourage people’s involvement in matters relating to the exploitation of the environment is not merely an aspiration or the product of an interpretation detached from constitutional provisions; rather, it is grounded in provisions of various ranks within our system of legal sources. In this regard, the Constitución Política states in Articles 1 and 9:

“Article 1.- Costa Rica is a democratic, free, and independent Republic.

Article 9.- The Government of the Republic is popular, representative, participatory, alternating, and responsible. It is exercised by the People and by three distinct and mutually independent Branches: the Legislative, Executive, and Judicial Branches.” (Emphasis added).

Furthermore, the Declaración de Río provides in Principle 10:

“Environmental issues are best handled with the participation of all interested citizens, at the relevant level. At the national level, every individual shall have adequate information concerning the environment held by public authorities, including information on hazardous materials and activities in their communities, as well as the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access shall be provided to judicial and administrative proceedings, including compensation for harm and the relevant remedies.” (Emphasis added by the reporting Justice).

Finally, the Ley Orgánica del Ambiente, number 7554, in Articles 22 and 23, makes clear the obligation to respect and promote public participation in environmental matters. In this regard, they provide:

“ARTICLE 22.- Assessment file (Expediente de la evaluación). Natural or legal persons, whether public or private, shall have the right to be heard by the Secretaría Técnica Nacional Ambiental at any stage of the assessment process and during the operational phase of the work or project. The observations of interested parties shall be included in the case file and considered for purposes of the final report.

Within five business days following receipt of an environmental impact assessment (evaluación de impacto ambiental), the Secretaría Técnica Nacional Ambiental shall forward an extract thereof to the municipalities within whose jurisdiction the work, activity, or project will be carried out. It shall also widely publicize, through the mass media, the list of studies submitted for its consideration.

ARTICLE 23.- Public availability of information (Publicidad de la información). The information contained in the environmental impact assessment file shall be public and available for consultation by any person or organization.

Nevertheless, interested parties may request that information included in the study be kept confidential if its publication would adversely affect industrial property rights.” In this case, a public hearing (audiencia pública) was held on 31 de julio de 2004 at the Salón Comunal de Coopevega (proven fact 14), an event that was temporally far removed from the modification of the project approved on 4 de febrero de 2008 by the Secretaría Técnica Nacional Ambiental. In other words, when the hearing was held, it was not possible to discuss the changes to the mining proposal. I reiterate that the significance and extent of the modifications required these steps, including the public hearing, to be repeated. To hold otherwise means that, when interested parties were able to ask questions, raise objections, and comment on the plan, it differed materially from what was ultimately approved. This violated the principle of participation, one of the pillars of the procedures for granting environmental approval (viabilidad ambiental). The human beings who will bear the consequences of governmental decisions on environmental matters cannot be excluded from participating in decision-making on matters related to the environment.

In sum, for the reasons stated, I dissent and would grant the amparo, setting aside the resolution of the Secretaría Técnica Nacional Ambiental granting environmental approval (viabilidad ambiental) to the project (#170-2008-SETENA del 4 de febrero de 2008), the resolution of the Ministerio del Ambiente, Energía y Telecomunicaciones authorizing the mining concession (R-217-2008-MINAE del 21 de abril de 2008), and Decreto Ejecutivo #34801-MINAET del 13 de octubre de 2008, which declared the project to be in the national interest (conveniencia nacional) so as to permit the felling of protected forest species, such as the yellow almond tree.

Gilbert Armijo S.

Separate opinion of Justice Cruz Castro.

I dissent from the majority opinion on several of the issues raised; I consider that, in a case as complex as the one presented through this amparo proceeding (recurso de amparo), several fundamental rights have been violated, as explained below.

A. Regarding the authorization and felling of the yellow almond tree. In this respect, there has been an infringement of the right to the environment, and it should also be emphasized that the case law of this Chamber, which had prohibited the felling of yellow almond trees throughout the national territory without exception, has been contravened.- The majority opinion draws a distinction that is inconsistent with this Chamber’s case law concerning the felling of yellow almond trees, because it prohibits their felling only in places where the great green macaw nests, implying that such felling is permitted—with prior authorization—in places where the great green macaw does not nest. However, this distinction is inadmissible for the following reasons: First, this Chamber’s earlier decision, number 2002-02486 de las 10:54 horas del 8 de marzo de 2002, expressly stated that “because of its relationship with the almond tree, its felling must also be prevented throughout the entire territory, although this must clearly be observed primarily in areas containing the optimal habitat for the survival of that species,” thereby making clear the mandate—which admits no exceptions—previously issued by this Chamber regarding the absolute prohibition on felling yellow almond trees throughout the national territory.

Likewise, the operative portion (parte dispositiva) of decision number 2008-13426, de las 09:33 horas del 02 de setiembre de 2008, ordered that the processing of permits for the use, exploitation, or extraction of yellow almond trees be prohibited for as long as that tree remains on the list of threatened species, stating literally: “That official is prohibited from initiating or continuing any procedure aimed at the use, exploitation, or extraction of the yellow almond tree (dipteryx panamensis) while that tree and the great green macaw (ara ambigua) remain on the list of threatened or endangered species.” In accordance with this criterion and its essential content, the argument authorizing the felling on the assumption that this action is constitutionally legitimate because the use, exploitation, or extraction of the timber is not intended is inadmissible. Clearly, it is not the ultimate purpose of the felling that grounds its prohibition, but the mere act of felling itself; the use made of the felled trees is a secondary matter that can never support the assertion that, if exploitation is not the purpose of the felling, then the action may be authorized.

It is not potential consequences, such as use of the timber, that determine the protection afforded to the yellow almond tree. On this point, I disagree with the argument presented in the majority opinion. Second, given the State’s clear obligation to safeguard the survival of endangered species, and bearing in mind that the yellow almond tree has been declared a species threatened with extinction, it follows inevitably from these premises that the State must safeguard the survival of the yellow almond tree throughout the national territory by preventing its felling, regardless of whether that action is undertaken for some further purpose. The majority judgment’s statement regarding “the minimal or nonexistent environmental impact of cutting 197 trees out of a population of more than 700 specimens, based on the fact that the almond trees to be cut are not primary forest but secondary and young growth, and that the established plan, which was already being implemented at that time, entails planting 103 almond trees for every tree of that species that is cut” does not alter the grave threat of extinction facing the almond tree; planting new trees in response to the earlier felling does not offset the effects of the act by which a species threatened with extinction was felled.

In environmental matters, the protected interests are not fungible. It should be noted that, in a matter as delicate, vulnerable, and sensitive as environmental damage, what purpose would replanting trees serve if, by the time they have grown to the stage of the felled trees, the species that depended on that habitat will already have been harmed? Third, the yellow almond tree warrants protection per se. Although that protection is strengthened by its relationship with the great green macaw, it cannot be overlooked that the tree is also a species in its own right, part of nature, declared to be threatened with extinction, and therefore deserving of protection in its own right. The felling of almond trees in “places where the bird does not nest” cannot be justified, even with permits, because that criterion would be inconsistent with the precedents established by this Chamber in decisions 2002-002486 and 2008-013426.

In conclusion, I consider that, under the line of precedent previously maintained by this Chamber, there is an absolute and comprehensive prohibition on felling yellow almond trees throughout the national territory. Therefore, because it has been established in this amparo proceeding that, on 17 de octubre del 2008, SETENA authorized the cutting of 197 almond trees and that the respondent company carried out that cutting, the violation of the right to the environment is evident, because this placed the yellow almond tree at risk or under threat and jeopardized the existence of the great green macaw; accordingly, the amparo proceeding must be GRANTED with respect to this claim.

B. Modification of the project without requiring an environmental impact study (estudio de impacto ambiental) or public consultation (consulta ciudadana). Regarding the approval of the modification to the original project without a new environmental impact study and without again convening a public-hearing process (proceso de audiencia pública), I consider it a violation of the right to the environment and the right to public participation (participación ciudadana).- Certainly, as the majority opinion states, “Recognition of the right to a healthy and ecologically balanced environment, application of the aforementioned precautionary principle (principio precautorio), and the resulting development of environmental-protection regulations require compliance with various requirements and procedures that enable the administration to ascertain the actual impact that the implementation of public or private activities and works may have on the environment so that, once the corresponding certainty has been obtained, it may authorize or reject their implementation.” It follows that, before authorizing or approving public or private works and activities, the State must know the impact their implementation will have on the environment.

In this regard, I also agree with the majority opinion’s assertion that “The performance of environmental assessments (evaluaciones ambientales) has likewise been recognized by this Chamber as a guiding principle in environmental matters, from which it follows that its observance and application are unrestricted in order to ensure proper protection of the environment.” It follows that the requirement of environmental assessments—as a scientific and technical administrative procedure that makes it possible to identify and predict the effects that an activity, work, or project will have on the environment, quantifying and weighing them to guide decision-making—comprises several stages, including the preparation of an Environmental Impact Study (Estudio de Impacto Ambiental, EsIA), in the case of activities, works, or projects classified as having high significance. In the case under review, after environmental approval had already been granted to the project and when the validity period of that approval was about to expire (granted on 12 de diciembre del 2005 for a validity period of two years, expiring on 12 de diciembre del 2007), the company submitted to SETENA, on 06 de diciembre de 2007, what it called a “Proposed Modification to the Crucitas Mining Project,” and this proposal was approved by decision of the Plenary Commission (Comisión Plenaria), pursuant to resolution number 170-2008-SETENA, de 04 de febrero de 2008.

However, that approval was granted without a new environmental impact study and without again convening a public-hearing process. In this matter, it is evident that a modification to a project of such magnitude required more than “a unilateral Sworn Declaration of Environmental Commitments (Declaración Jurada de Compromisos Ambientales)” or a series of “technical documents supporting the proposed modification.” These requirements are insufficient for a project of such significance. For this reason, I consider that the proper and necessary course, in order to better protect the right to the environment, was the submission of a new environmental impact study in which the public administration would play a more active role by assessing the scale and impact of the proposed changes. Given the project’s characteristics, involving open-pit metal mining (minería metálica a cielo abierto), approval of what the company submitted was not sufficient.

Moreover, it should be noted that convening another public hearing was mandatory, based on this Chamber’s consistent case law concerning the fundamental right of public participation in decisions on environmental matters, which this Constitutional Court has derived from the relationship between Articles 9 and 50 of the Political Constitution (constitución política). Regarding the aforementioned constitutional principles, judgment number 2008-015760 de las catorce horas treinta minutos del veintidós de octubre de dos mil ocho states:

“VIII.- REGARDING THE INFRINGEMENT OF THE RIGHT OF PUBLIC PARTICIPATION IN DECISIONS ON ENVIRONMENTAL MATTERS. RELATIONSHIP BETWEEN ARTICLES 9 AND 50 OF THE POLITICAL CONSTITUTION. (…) In this regard, and based on the foregoing discussion of the importance of the environmental impact assessment (evaluación de impacto ambiental, EIA), it bears reiterating that, according to the most authoritative scholarship, the assessment is a primarily participatory procedure for the advance weighing of the environmental consequences of a decision to approve or reject a particular project. According to the scholarship, the environmental impact study was associated from its inception with the Anglo-Saxon tradition of surveys and public hearings; accordingly, emphasis must be placed on the guarantee that, throughout the assessment and at its various stages, those affected by the final decision will be heard. These may include not only the communities or persons directly involved, but also groups defending diffuse interests (intereses difusos), such as the timely protection of the environment. Regarding the promotion of public participation in connection with environmental matters, the Rio Declaration provides as follows:

“PRINCIPLE 10 The best way to address environmental issues is through the participation of all interested citizens, at the appropriate level. At the national level, every person shall have adequate access to environmental information held by public authorities, including information on hazardous materials and activities in their communities, as well as the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access shall be provided to judicial and administrative proceedings, including redress and relevant remedies.” The World Charter for Nature (Carta Mundial de la Naturaleza), cited supra, provides as follows in Principle No. 23:

“23- Every person shall, in accordance with national legislation, have the opportunity to participate, individually or collectively, in the process of preparing decisions that directly concern that person’s environment and, when it has suffered damage or deterioration, may pursue the remedies necessary to obtain compensation.” At the domestic level, the Ley Orgánica del Ambiente provides as follows:

“Article 22.- Assessment record Natural or legal persons, whether public or private, shall have the right to be heard by the Secretaría Técnica Nacional Ambiental at any stage of the assessment process and during the operational phase of the work or project. The observations of interested parties shall be included in the record and considered for purposes of the final report.

Within five business days following receipt of an environmental impact assessment (evaluación de impacto ambiental), the Secretaría Técnica Nacional Ambiental shall send an extract thereof to the municipalities within whose jurisdiction the work, activity, or project will be carried out. It shall also widely publicize, through mass media, the list of studies submitted for its consideration.

Article 23.- Public availability of information The information contained in the environmental impact assessment record shall be public and available for consultation by any person or organization.

Nevertheless, interested parties may request that information included in the study remain confidential if its publication would affect industrial property rights.” For its part, the Ley de Biodiversidad provides, insofar as relevant, as follows:

“Article 95.- Public hearings (audiencias públicas) The Secretaría Técnica Nacional shall hold public information and analysis hearings concerning the specific project and its impact whenever it deems them necessary. The interested party shall bear the cost of publication.

Participation is any process that involves society in the adoption of proposals, resolution of problems, and decision-making concerning the approval of a particular activity or project.” In judgment No. 10693-2002 at 18:20 hrs. on 7 de noviembre de 2002, this Constitutional Court emphasized that the guarantee of citizen participation is an instrument that empowers citizens to enforce their right to a healthy environment and is therefore an intrinsic part of the guarantees enshrined in article 50 of the Constitución Política. That decision provided as follows:

“(...) this Chamber considers that, arising directly from the democratic framework that informs the entire legal system and is established by article primero of the Constitución Política, in conjunction with the right to a healthy environment established in article 50 of that Charter, as well as the international instruments and the respective legal provisions, it must be recognized that every person has a right to participate in decisions concerning matters of public interest, in this case environmental protection. This right to participate therefore constitutes an essential instrument through which inhabitants may assert their right to a healthy environment. It cannot, however, be understood as merely expressing an opinion because, contrary to what might initially be thought, this participation must be understood broadly and consequently entails three basic dimensions—as recognized by the Declaración de Río de 1992—: the right of access to information, the right to participation ‘per se,’ and the right of access to justice in environmental matters. These three dimensions, in turn, encompass a series of basic procedural rights—in both administrative and judicial proceedings—which, taken together, assure persons that their opinions will not become an empty and rhetorical exercise of freedom of expression but will instead be effectively taken into account by the public authority.

(...)

ii.– The right to public participation. This aspect entails the possibility for persons who may be affected by, or have an interest in, an environmental decision to express, from an early stage, their criteria, opinions, viewpoints, or objections concerning that decision, without being required to comply with specific formalities for those views to be taken into account. Consequently, the information provided to the governed party must include nontechnical summaries that enable persons to understand the scope of the discussion. It also entails providing adequate time limits so that, before participation occurs, citizens have an opportunity to become informed.

The right to participation in the environmental impact assessment procedure. In a recent precedent (see judgment número 2002-06466 at quince horas cincuenta minutos on dos de julio de dos mil dos), this Chamber established that the obligation to conduct a prior environmental impact assessment necessarily follows from article 50 of the Constitución Política and is established in article 17 of the Ley Orgánica del Ambiente (...)

The environmental impact assessment procedure is characterized as an administrative proceeding (procedimiento administrativo) with a distinguishing feature: it seeks to prevent or minimize the potential occurrence of environmental damage (daño ambiental) during the performance of activities known with certainty to have harmful effects on the environment if carried out without any safeguards. In other words, this instrument constitutes the implementation of the prevention principle (principio de prevención), because, when an activity is known in advance to be harmful to the environment, the interested party proposes a series of measures intended to prevent or mitigate ecological harm to the public body or entity—in this case SETENA—which is responsible for determining whether those measures are the most appropriate for that purpose. Therefore, because this procedure seeks at all times to anticipate any adverse consequence through a broad flow of information, it is natural to understand that one of its characteristics is that persons who may be affected by the project’s development may provide essential information or viewpoints that the competent authorities might, through omission or arbitrary conduct, ignore or disregard, thereby leaving the environment unprotected.

Thus, within the environmental impact assessment procedure, the principle or right of participation entails a high degree of public disclosure, to the extent that any act or application having a significant effect on its final outcome must be made generally available to all interested parties so that they may express their opinions at any time and not be confined to a particular procedural stage. The population’s role as defender of a healthy environment extends from ‘the cradle to the grave,’ that is, from the beginning of the productive activity as a project until the end of its useful life. It would therefore be inadmissible, in an operation intended to last for an indefinite period, even decades—as in the case of hydroelectric projects—and having irreversible consequences, to limit the participation of potentially affected sectors of society to a single procedural stage that, like a hearing, may last only a few hours.

Accordingly, given its preventive nature, a project subject to environmental impact assessment must, from the very moment it begins, be brought to the public’s attention in order to initiate an open process of participation. (...)” The highlighted text does not appear in the original.

“... In view of the foregoing, the consulting deputies are correct, since the regulation that the Asamblea Legislativa intends to approve postpones the right to citizen participation until after the concession (concesión) for the construction, operation, and administration of tourist marinas has been granted. Consequently, it severely limits interested parties’ rights to express their views regarding the advisability of the project in question. Although article 9 of the bill provides for a consultation procedure, public hearings, and objections before the authorities competent to grant the concession, the fact remains that, at that point, the appropriate technical information from professionals in the field is unavailable, thereby precluding informed participation by interested parties. As explained throughout this consultation, the Environmental Impact Assessment is characterized as a process involving a flow of information concerning the advisability of the project, its potential effects, and the harm sought to be minimized.

Consequently, conducting a consultation procedure without first having appropriate information from professionals in the field significantly limits the right of persons to participate actively in the procedure under review because, at that time, they lack the information needed to oppose or support the project concerned. Indeed, a consultation stage is conducted without the details of the project or its potential effects on the environment having been disclosed to the public by that time, even though, as examined in the judgment cited supra, access to information is a crucial element in promoting the right to participation. That purpose is likewise emphasized in the Reglamento General sobre los Procedimientos de Evaluación de Impacto Ambiental (EIA), which makes clear that the purpose of the hearing held within the framework of the EIA is precisely to inform civil society about the activity, work, or project intended to be developed and its impacts (see article 3, inciso 12).

In light of the foregoing, postponing the Environmental Impact Assessment until after the concession has been granted significantly limits the right of persons to participate in defending a diffuse interest (interés difuso), namely the effective and timely protection of the environment.” Taking into account the aforementioned precedent, it is evident that the modification of the Crucitas mining project required not only a new environmental impact study (estudio de Impacto Ambiental), but also the convening of a new public hearing (Audiencia Pública). As stated in the judgment transcribed above, the environmental impact assessment procedure (procedimiento de evaluación de impacto ambiental) is an instrument that embodies the prevention principle (principio de prevención), because, when an activity is known in advance to be harmful to the environment, the interested party proposes a series of measures intended to prevent or mitigate ecological harm to the public body or agency—in this case, SETENA—which is responsible for determining whether such measures are the most appropriate for that purpose.

Consequently, every person who may be affected by the development of the project must be able to contribute essential data or points of view. Accordingly, SETENA did not request a complete Environmental Impact Study (Estudio de Impacto Ambiental, EsIA) when the design of the Crucitas Project submitted by the company in December 2007 was changed (under which the total amount of rock and soil extracted was increased from 8.5 to 22 million tons, while the extraction depth was multiplied sixfold); instead, it approved the change on 04 de febrero del 2008, without first convening another public hearing, as it had initially done, thereby violating the right to the environment and the right to citizen participation (participación ciudadana). It should be borne in mind that, in the view of the author of this opinion, convening the public is the responsibility of SETENA, and meetings called by the interested company with certain community groups can never be deemed to satisfy that constitutional obligation.

It should also be noted that the modification submitted entailed, among other things, a drastic change in excavation depth, which would increase from 15 meters to 67 meters (see resolution no.170-2008-SETENA of 04 de febrero del 2008 approving the modification to the project), which again required an environmental impact study. The period within which the modification was approved—two months after its submission—was manifestly insufficient to conduct the assessments warranted by the modifications. There is no clear evidence demonstrating any essential similarity between the scope and content of the original project and those of the subsequent modification; for this reason, neither a technical safeguard as crucial as the environmental impact study nor a political safeguard as important as consultation with citizens could be disregarded.

C. The insufficiency and weakness of the calculation of the project’s environmental cost. The simplifications and omissions surrounding the declaration of the project as being of national interest reveal violations of the body of constitutional law (bloque de constitucionalidad).- The declaration that the mining project was of national benefit (conveniencia nacional) was one of the requirements necessary to authorize the land-use change (cambio de uso de suelo) on the property where the respondent company is developing the project, since those lands were classified as having forest cover (cobertura boscosa). In this regard, pursuant to subsection b) of Article 19 and Article 34 of the Ley Forestal, if the Executive Branch declares the project to be of national benefit, the prohibition on land-use change is lifted. However, under the applicable statutory and regulatory provisions (see subsection m of Article 3 of the Ley Forestal), for the Executive Branch to issue such a declaration, it must be established that the project’s social benefits exceed its socio-environmental costs.

Accordingly, the majority opinion is correct in stating that “Ultimately, if the Executive Branch considers that a mining project may or should be declared to be of national benefit, it must establish that the benefits outweigh the costs through the application of appropriate procedures or instruments.” Nevertheless, it is precisely on this point that I dissent, because the Executive Branch decree does not properly, sufficiently, and reliably establish that the mining project in question will produce more benefits than costs. And the arguments offered by the respondents to establish compliance with this requirement—which is of paramount importance to this Justice, given a matter as sensitive as the environment—are inadmissible, as explained below. First, although the economic assessment report on environmental effects and social benefits prepared by Juan Muñoz Giró concludes that the benefits exceed the costs, it was prepared in February 2009, whereas the decree is dated October 17, 2008.

In other words, this report cannot support the decree because not only was it issued after the decree entered into force, but it was also prepared after this Chamber’s November 25, 2008 request for additional evidence to assist its decision. Second, it cannot be assumed, merely because the mining project in question has environmental approval (viabilidad ambiental), that the superiority of the benefits over the costs has thereby been demonstrated, as the Secretary of SETENA did in official letter SG-ASA-259-2008 of October 10, 2008. In this regard, the basis that should have been established in the decree at issue is not supplied per se merely by the existence of environmental approval. This is particularly so because, as stated in the preceding paragraph, the original project was modified without a prior public hearing (audiencia pública) and without conducting a new environmental impact study (estudio de impacto ambiental).

Third, a careful examination of the decree at issue shows that the only recitals (considerandos) addressing this basis are VII, VIII, and IX, with VII and IX focusing on the benefits—primarily economic—and VIII only briefly addressing the costs. Thus, the decree discusses the benefits but provides virtually no explanation of the costs, an omission that makes it impossible to perform the balancing and weighing required for open-pit metal mining (minería metálica a cielo abierto). In this case, given the characteristics and impact of this type of mining activity, whose environmental effects are not harmless, the project’s environmental costs should have been assessed; this assessment includes the cost of water, biodiversity, and the movement and relocation of thousands of tons of earth and rock, among other factors. In a mining activity of this kind, as explained above, the assessment cannot focus on traditional economic parameters; it must also evaluate other inputs that usually go unnoticed, particularly those relating to the environment.

An assessment is required to determine the cost and impact on the biosphere, water resources (recurso hídrico), biological diversity, and so forth. It is unquestionably important to assess the cost of the irreversible impacts on hundreds of hectares of forest cover (flora and fauna), air, soil, surface water, groundwater, geomorphology, landscape, and communities. Ignoring the cost of these irreparable impacts, which are not traditionally accounted for, does not make them constitutionally irrelevant interests. The significance and complexity of environmental costs require a specific and careful assessment that avoids minimizing them, as occurred in the declaration of national benefit. The complete removal of vegetation cover and soil from an area of 227.6 has2., including approximately 192 hectares of forest (at varying degrees of disturbance and growth) and 67 hectares of pasture, must be considered, without disregarding the fact that the project also affects aquatic ecosystems such as rivers, streams, and channels.

The creation of two fifty-hectare pits, each fifty or sixty meters deep, constitutes alterations with a significant environmental cost whose effects and accounting cannot be ignored. The compensation plans (planes de compensación) proposed in good faith by the mining company may stem from a naïve view, with unpredictable consequences over the coming decades, since we well know that a tropical forest and its aquatic environments cannot be restored overnight; perhaps it is assumed that nature can be destroyed and later restored without serious harm. Little is known about many of the tree species that will be cut down for the project, particularly the rarest and endemic species. In this respect, the “crucitas” mining project contravenes Article fifty of the Constitution because there is no reliable basis demonstrating that the environmental cost and damage are less than the economic benefits that the project will produce.

The social value represented by the environment requires, in accordance with the Constitution, especially careful and preferential assessment. All these omissions and deficiencies affect the very basis of the declaration that the project is of national benefit. An open-pit activity with such a high environmental cost requires an assessment of that factor in order to attain the constitutional legitimacy demanded by a right as important as the right to a healthy and ecologically balanced environment. Fourth, there was no single document addressing socio-environmental costs, as was acknowledged at the hearing, nor was there a single methodology predetermined by law for weighing those costs. All of this allows an extremely broad margin of discretion, which is incompatible with the certainty required in environmental matters. I must emphasize that, during the oral hearing held in November two thousand nine, the SETENA representatives stated that there was no specific study of socio-environmental costs and benefits.

Although this lack of precision does not by itself demonstrate complete disregard for the aforementioned assessment, I believe it does show that this issue was not given primary and decisive consideration, thereby confirming the omission and lack of precision I have identified in the socio-environmental cost-benefit assessment (evaluación costo-beneficio socio-ambiental). Without purporting to provide a critical evaluation of specific specialized studies, it should be noted in this regard that the first cost assessment contained in the case file (expediente) for the “CRUCITAS” open-pit metal-mining project—a twenty-five-page document with an annex containing a feasibility study dated April six, two thousand one, submitted by Master Edwin Vega Araya—contains no specific reference to socio-environmental costs and benefits. A study assessing the project’s socio-environmental impacts and social benefits, signed by Professor Juan Muñoz Giró, was subsequently submitted; however, as explained supra, that study became known only after the decree declaring the project to be of national benefit had been issued.

In other words, the assessment of the socio-environmental benefits and costs was conducted after the Administration had deemed the project to be of national benefit. This late and untimely assessment of such a crucial factor demonstrates that environmental cost was not regarded as a significant or relevant parameter. It unquestionably should have been an indispensable focus of the new environmental impact study that should have been required following the substantial alteration of the open-pit mining project. Finally, the provisions permitting an open-pit metal-mining project to be declared of national benefit are also questionable and perhaps warranted constitutional review. Such a review required a constitutional analysis; however, the majority opinion rejected that possibility. The declaration that the project was of national benefit required a specific assessment of its socio-environmental cost, overcoming the traditional tendency to render that cost invisible or undervalue it.

The Executive Branch failed to establish, in a constitutionally acceptable manner, that the benefits of the project in question exceeded its costs, particularly its socio-environmental costs. For this reason, the declaration that the “crucitas” mining project was of national interest is unconstitutional, because it does not satisfy the requirements contained in Article fifty of the Constitution.

Conclusion: Based on the foregoing arguments, the author of this dissenting opinion concludes that sufficient grounds existed to grant the petition for relief, due to the violation of the right to enjoy a healthy and ecologically balanced environment and the right to public participation (participación ciudadana). The appropriate remedy was to vacate all actions taken before approval of the modification to the mining project, including the executive decree declaring the activity to be of national benefit, so that SETENA could convene a new public hearing before approving the modification and could conduct a new environmental impact study.

Fernando Cruz Castro Separate note by Justice Cruz Castro:

Institutional weaknesses in the assessment and oversight of environmental matters. In discussing and analyzing open-pit metal mining in the crucitas project, I have identified certain weaknesses that compromise the effective and timely oversight of activities affecting the environment. Among the possible weaknesses identified, I emphasize the following:

1- It is inadvisable for the cost of the environmental compliance officer (regente ambiental) to be financed by the corporation subject to environmental oversight. This relationship between the overseer and the regulated entity could seriously distort the duties that the environmental compliance officer must perform.

2- In projects of major environmental significance, the environmental impact study (estudio de impacto ambiental, EIA) must be subject to a monitoring and evaluation procedure that does not depend exclusively on the Executive Branch; in this regard, a legal framework could be strengthened to afford the country’s universities a greater role in analyzing and evaluating environmental impact studies. Strengthening the monitoring and evaluation body is advisable because it cannot be overlooked that the environmental impact study is financed by the company seeking to demonstrate that its activity does not violate the requirements of Article fifty of the Constitution.

3- The severe resource constraints affecting the state institutions responsible for the environment are evident in the case of the concession for open-pit mining (minería a cielo abierto) at Crucitas, since SENARA was unable to conduct a hydrogeological study (estudio hidrogeológico) and therefore had to validate the study submitted by ECOAMBIENTE S.A., which was funded by the very corporation seeking the concession.

4- The State’s weakness in monitoring and supervising the Crucitas mining concession is also evident in the obligations assumed by Industrias Infinito, as the concession agreement provides that the company must cooperate with the Government in training public officials from the agencies responsible for overseeing the mining activity. This training is intended to enable officials to acquire appropriate criteria. Once again, the regulated company has a clear influence on the definition and scope of the parameters to which it could be subject.

The aforementioned weaknesses demonstrate the serious limitations faced by the Administration in fulfilling a mandate as significant as that contained in Article fifty of the Constitution. Protecting a healthy and ecologically balanced environment requires better institutional definition and greater resources, particularly if mining activity is to be prevented from causing serious and irreparable harm to the environment.

Fernando Cruz C.

*080140680007CO* usuario1 ggarrof 3 21 2010-07-09T16:48:00Z 2015-08-27T16:02:00Z 1 150177 825975 Poder Judicial 6883 1948 974204 11.6505 Print Clean 21 false false false MicrosoftInternetExplorer4 false ES-CR X-NONE X-NONE Res. Nº 2010006922 SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, a las catorce horas y treinta y cinco minutos del dieciséis de abril del dos mil diez.

Recurso de amparo, interpuesto por [Nombre 001], mayor, soltero, Abogado, con cédula de identidad número [Valor 001], a favor de la Asociación Norte por la Vida, contra el Ministerio de la Presidencia; el Ministerio de Ambiente, Energía y Telecomunicaciones; la Secretaría Técnica Nacional Ambiental; e Industrias Infinito Sociedad Anónima.

Resultando

1. 1Por escrito recibido en la Secretaría de la Sala a las una hora y dieciocho minutos del diecinueve de octubre de dos mil ocho, el recurrente interpone recurso de amparo contra el Ministerio de Ambiente, Energía y Telecomunicaciones, Industrias Infinito S.A. y SETENA, en razón de que, según su criterio, la empresa minera para llevar a cabo el Proyecto en Crucitas va a arrasar una zona de protección de quebradas y nacientes en el área de las excavaciones y de las zonas de relaves donde se construirán lagunas para almacenar material cianurado. Además, deberá desviar quebradas y afectar zonas de recarga acuífera, con lo que se afectarán importantes acuíferos superficiales como las quebradas “La Plata” y “La Mina”, así como zonas de recarga acuífera. Señala que el 21 de mayo del 2008 la empresa solicitó ante el MINAE cambio de uso de suelo, para lo cual se aprobó un plan de manejo que va a arrasar con 262 hectáreas.Indica que el 17 de julio del 2008 se publicó en el Diario Oficial La Gaceta número 201 el Decreto Ejecutivo número 34801-MINAET, en el que la Presidencia de la República y el Ministerio de Ambiente, Energía y Telecomunicaciones decretaron de interés público y conveniencia nacional el proyecto minero las Crucitas. Asimismo, autorizaron a cortar los árboles que requiera el proyecto incluyendo especies en veda (almendro amarillo, hábitat de la lapa verde) omitiendo las hectáreas que se cortarán, asimismo refiere que los beneficios ahí establecidos son sólo meras expectativas. Refiere que este Decreto no tiene asidero técnico y que el considerando IV no fundamentó la declaratoria de corta, además de que es absolutamente omiso en cuanto a la valoración del costo socio-ambiental que implicaría la destrucción total de más de 196 hectáreas de bosque, de zonas de protección de ríos y quebradas que invadirá y destruirá la empresa minera, con su consecuente afectación del recurso hídrico. Todo lo anterior, en su criterio, lesiona el derecho a un ambiente sano, por lo que solicita que se declare con lugar el recurso y se anule por inconstitucional el decreto impugnado.
2. 2Por escrito presentado el 23 de octubre de 2008 a folio 45, José Merino del Río, mayor, casado, con cédula 8-046-249, politólogo y sociólogo, diputado, y Heidi Murillo Quesada, mayor, soltera, con cédula 2-522-758, contadora, vecina de Ciudad Quesada de San Carlos, en su condición de representante de la Federación Costarricense para la Conservación del Ambiente (FECON) presentan recurso de amparo contra el Presidente de la República, por cuanto acusan que la solicitud de cambio de uso de suelo de bosque a minería de oro a cielo abierto, con lixiviación de cianuro, que se pretende realizar en una zona de alta vulnerabilidad ambiental que se encuentra a menos de tres kilómetros en línea recta de la margen costarricense del río San Juan, área que es muy cercana a varias áreas silvestres protegidas destinadas a proteger especies en peligro de extinción, como es el caso de la lapa verde.Señalan que del total del área que resultaría afectada por el cambio del uso del suelo, al menos 191 hectáreas 7782.66 metros cuadrados son terrenos cubiertos de bosque. Acusan que el plan de cambio de uso del suelo pretende realizar la tala rasa, es decir, la eliminación total de árboles y de cobertura vegetal en un área total de 262 hectáreas. Además, podrían afectar las áreas de protección de quebradas y nacientes superficiales, como quebradas La Plata y La Mina, así como zonas de recarga acuífera. El 21 de mayo del 2008 la empresa solicitó ante el MINAE cambio de uso de suelo. Indican que el 17 de julio del 2008 se publicó en el Diario Oficial la Gaceta Número 201 el Decreto Ejecutivo Número 34801-MINAET de las trece horas del día trece de octubre del dos mil ocho, en el que la Presidencia de la República y el Ministerio de Ambiente, Energía y Telecomunicaciones decretaron de interés público y conveniencia nacional el proyecto minero Las Crucitas.Asimismo, autorizaron a cortar los árboles que requiera el proyecto incluyendo especies en veda. Refieren que este decreto no tiene asidero técnico y que permite la actividad minera y la declara de interés público, a pesar de cambiar el uso de suelo en terrenos de bosque y talar árboles en áreas de protección del recurso hídrico. El decreto es omiso en la necesaria valoración del costo socio-ambiental que implicaría la destrucción total de zonas de protección de ríos y quebradas, con su consiguiente afectación del recurso hídrico y de especies de flora y fauna silvestre en peligro de extinción. El decreto carece de una base científico-técnica que, en forma objetiva, permita valorar el costo socio-ambiental de la destrucción del bosque y de áreas de protección del recurso hídrico y que permita determinar con certeza que el beneficio social de esa destrucción es mayor que el costo socio-ambiental de la misma.El mismo 17 de octubre de 2008 la Subregión San Carlos-Los Chiles de MINAE autorizó el plan de cambio de uso del suelo de la empresa minera, por lo que al menos desde esa fecha y durante los días siguientes se realizaron actos de tala de árboles y destrucción de la cobertura vegetal en el área del proyecto minero “Las Crucitas” sin que hasta la fecha se hayan cuantificado los daños ambientales ocasionados al bosque, la biodiversidad, la vida silvestre en peligro de extinción y los cuerpos de agua. En su criterio, el término de conveniencia nacional utilizado en el artículo 2 del Decreto cuestionado está viciada de inconstitucionalidad, por lesionar el derecho a un ambiente sano y ecológicamente equilibrado. Indican que cualquier interpretación al respecto debe realizarse en forma restrictiva y a favor del principio pro homine. Solicitan que se les conceda plazo para interponer acción contra el artículo 2 del Decreto en cuestión y se acumule este recurso al 08-014068-0007-CO.

3- A folio 72 consta escrito presentado por Gladis Martínez de L. quien en representación de la Asociación Interamericana para la Defensa del Ambiente (AIDA), mediante el cual aporta escrito en que ofrece información ya que le pidió al Presidente de la República la suspensión de la autorización del proyecto Minero.

1. 4Informan bajo fe de juramento Roberto Dobles Mora, en su condición de Ministro del Ministerio de Ambiente, Energía y Telecomunicaciones y Sonia Espinoza Valverde en su calidad de Secretaria General de SETENA (folio 95 del expediente) que es cierto que la empresa solicitó al SINAC el permiso para el cambio de uso de suelo, solicitud que fue tramitada mediante el expediente AH-O1-PM-003 2008 para lo cual se le pidieron los requisitos correspondientes. Aclaran que no son 262 hectárea de bosque lo que autorizó talar, sino 191.77 en área de bosque, 66.94 en áreas de uso agropecuario sin bosque y 4.17 en plantaciones. Indican que el Decreto del Presidente se publicó efectivamente el 17 de octubre del 2008 y no reviste ilegalidad alguna. Refieren que la Ley Forestal permite el manejo forestal de los bosques en propiedad privada para obras o proyectos que fueron declarados de interés público y conveniencia nacional por la necesidad de hacer el cambio de uso de suelo con planes de manejo forestal, de conformidad con los artículos 33 y 34.Indican que el proyecto contó con una evaluación de impacto ambiental y se le otorgó la viabilidad ambiental número 3638-2005 SETENA. Por otro lado, indican que el recurrente citó parcialmente los artículos 19 y 34 de la Ley Forestal, y que el legislador mediante el numeral 19 estableció claramente la manera de manejo de los bosques, donde aún cuando se prohíbe el cambio de uso de suelo con fines maderables, esta prohibición no es irrestricta, por el contrario, previsoramente el legislador le dejó al Estado la herramienta para poder autorizar actividades en casos en los que la conveniencia nacional así lo justifiquen y siempre que la finalidad del cambio de uso sea distinta al puro aprovechamiento del recurso maderable, declaratoria que le corresponde al Poder Ejecutivo. Refieren que los estudios se han realizado durante diez años y que los impactos han sido debidamente evaluados, las medidas de mitigación y compensación para los impactos no mitigables.Señalan que para la declaratoria de interés público y conveniencia nacional medió un amplio estudio del caso en relación con el Plan Nacional de Desarrollo y los objetivos de Paz con la Naturaleza, ambos documentos regidos por el principio de desarrollo sostenible en tanto exigen la triple viabilidad del proyecto (ambiental, social y económico). Indican que existe suficiente certeza científica de que no va a hacer peligrar la población de la lapa verde ni su hábitat. Según el plan de gestión ambiental adscrito al Estudio de Impacto Ambiental, el área total del proyecto es sólo objeto de paso ocasional de la lapa verde, además se determinó que no es un área de anidamiento para esta especie, por lo que sólo debe garantizar la fuente de alimento de las aves, para lo que se prevé el mantenimiento y enriquecimiento de un corredor biológico internúmero. El proyecto cuenta con un área a reforestar de 382 hectáreas totales de las cuales se han reforestado 42 con la especie de almendro para un total de 2500 árboles de esa variedad, además se conformó un vivero de 2 hectáreas con capacidad de producir 67.500 árboles por año.Dentro de los compromisos ambientales se estableció: 1- Instalación de un centro de capacitación para el INA con el fin de dar cursos de corte y confección, acuicultura, agricultura orgánica, producción de queso, pintura sobre tela y manipulación de alimentos; lo cual genera nuevas pequeñas empresas y beneficios. 2- Empleos directos en fase de construcción: 300, indirectos: 1.265, en fase de operación: 250. 3- Mejoraría de la calidad de vida de 7 comunidades: apoyo a la cooperativa de productores de las comunidades, programas de mejoramiento de calidad de vida, mejoramiento del acueducto. 4- Previo a la construcción del proyecto la empresa dio inicio a una serie de programas (Capacitación para microempresarios, capacitación laboral, crear Oficina de Atención al Ciudadano, la construcción de 4 puentes, mantenimiento de caminos, entre otros) 5- Mano de obra durante 11 años. 6- la inversión será de US $65.000.000 lo cual se usará para comprar materiales, servicios profesionales, maquinaria, contratistas, etc. 7- Una planilla anual en US $4.132.859, 8- La obtención de un impuesto local en ocho años de -US $11.529.263 y al gobierno central por un total de $70.322.309. 9- Se maneja un fideicomiso para desarrollar obras sociales y acciones en la comisión de monitoreo que recibiría por año US $364.063.Indican que además que por acción se declaró constitucional la excepción contemplada en el artículo 19 y 34 de la Ley Forestal en sentencia número 2006-17126. Rechazan lo acusado en cuanto al Decreto, por cuanto indican que éste sí cuenta con fundamento técnico científico suficiente. Refieren que el Plan de Gestión Ambiental garantiza el balance hídrico, para ello se adjuntó un estudio hidrogeológico. Para ese balance es importante el lago, ya que así el material estéril quedará cubierto y no se producirá drenaje ácido y los ecosistemas acuáticos no van a ser objeto de daño ambiental. Solicitan que se declare sin lugar el recurso.
2. 5Por escrito presentado el 24 de octubre de 2008, Marcos Elizondo A. manifiesta su oposición al proyecto y solicita que se declare con lugar el recurso (folio 116).
3. 6Por resolución de las once horas y trece minutos del veintiocho de octubre de dos mil ocho la Magistrada Instructora ordenó desglosar el escrito presentado por FECON para que se tramitara como un asunto nuevo por acusar la inconstitucionalidad del artículo 2 del Decreto Ejecutivo 25721-MINAE. (folio 118).
4. 7En resolución de las catorce horas y nueve minutos del veintiocho de octubre de dos mil ocho, la Magistrada Instructora aclara la medida cautelar de suspensión y ordena suspender toda tala e incluso la aplicación del decreto ejecutivo 34801-MINAET (folio 119).
5. 8A folios 127 y 128 del expediente consta la solicitud que hizo la Fiscalía General de los expedientes administrativos en relación con el proyecto minero por la causa penal abierta contra el Presidente de la República por el delito de Prevaricato.

9- Por escrito presentado por Carlos Navarro Fumero pide que se revoque el permiso de destrucción del bosque (folio 129).

10-. Por escritos presentados a folios 130 a 139, Henry Arias, Sharling Arcia Arce, Adriana Garuolis, Estefanía Fresno Vega, Elena González, Adult Dentistry of Costa Rica, Daniel Sánchez, la Asociación para la Conservación y el Desarrollo Sostenible de los Cerros de Escazú, se manifiestan en contra del proyecto Crucitas y abogan por la protección del ambiente.

11- Por escrito presentado el 31 de octubre de 2008, José Merino del Río y FECON solicitan a la Sala que se le otorgue plazo para interponer acción (folio 141).

1. 12El 31 de octubre de 2008 se apersonaron a la Sala los diputados de la Fracción del Partido Acción Ciudadana: Patricia Romero B, Marvin Rojas, Sergio Alfaro Salas, José Joaquín Salazar, Leda Zamora Chaves, Alberto Salom, Orlando Hernández Murillo, Patricia Quirós Quirós, Lesvia Villalobos Salas, Olivier Pérez González, Rafael Elías Madrigal Brenes, Francisco Molina, así como José Merino del Río y Oscar López como coadyuvantes activos solicitando la inconstitucionalidad del Decreto Ejecutivo número 34801-MINAET (folio 143).
2. 13En escrito presentado el 3 de noviembre de 2008, V. Vargas Elizondo, Wyna Araya Salazar, Víctor Peña N., Rolando Solano, Eduardo Chinchilla Blanco, Cristian Villegas Araya, Mario Alfaro, Daniel Campos Rodríguez, César Stiven León Solís, Mainor Q. B., Marta Quirós, Jorge Miranda Porras, Vilmer Castro, Carlos Luis Rojas Porras, Adrián Ramírez, Luis A. Suárez, Jeffrey Morera Chacón, Walter Rojas Oviedo, Deylin Bolaños Araya, Franciny Alfaro piden que se les tenga como coadyuvantes aunque no indican si pasivo o activo (folio 148 a 152).

14- Por escritos adjuntos del folio 154 a 158 del expediente, Jonathan Rodríguez Berrocal, Franklin Araya Gamboa y Priscila Gamboa Calvo, piden que se les tenga como coadyuvantes aunque no indican si pasivo o activo.

15- Juan José Bolaños, [Nombre 021], Jeannina Barrientos Ching, Diego Grooscors Antillón, Leonor Isabel Antillón, Ronaldo Hirsch Keibel, Isaac Jiménez Morera, manifiestan su desaprobación respecto al proyecto y abogan por un ambiente sano (folios 160 a 167).

16- Por escritos adjuntos del folio 169 a 171 y 183 del expediente, [Nombre 003], [Nombre 004] y [Nombre 005] piden que se les tenga como coadyuvantes aunque no indican si pasivo o activo.

17- [Nombre 006], [Nombre 007], [Nombre 008], [Nombre 009], [Nombre 010], [Nombre 011], [Nombre 012], [Nombre 013], [Nombre 014], [Nombre 015], [Nombre 016], [Nombre 017], [Nombre 018], [Nombre 019], [Nombre 020], [Nombre 021], [Nombre 022], [Nombre 023], [Nombre 024], [Nombre 025], [Nombre 026], [Nombre 027], [Nombre 028], [Nombre 029], [Nombre 030], [Nombre 031], [Nombre 032], [Nombre 033], [Valor 002], [Nombre 034], [Nombre 035], [Nombre 036], [Nombre 037], [Nombre 038], [Nombre 039], [Nombre 040], [Nombre 041], [Nombre 042], [Nombre 043], [Nombre 044], [Nombre 045], [Nombre 046], [Nombre 047], [Nombre 048], [Nombre 049] y [Nombre 050], manifiestan su apoyo al amparo contra el proyecto minero (folios 173 a 181 y 185 a 197, 202, 204, 207, 217, 219, 223, 231, 233, 235, 237, 239 al 249, 255) 18- Por escrito presentado a folio 199, el recurrente solicita a la Sala que se realice un peritaje y una inspección al lugar, así como evacuación de prueba testimonial de dos vecinos.

19- El 3 de noviembre de 2008 Nicolás Boeglin remitió a la Sala las manifestaciones de la Universidad Nacional y la de Costa Rica rechazando la explotación de minería a cielo abierto (folio 209).

20- El 3 de noviembre de 2008 José Eduardo Vargas Rivera en su condición de Presidente del Instituto Latinoamericano de Derechos Humanos y La Paz Social se apersona a favor del gobierno, pues se refiere a una deforestación controlada que no produce impacto sino un programa de mayor reforestación. Indica que es necesario mejorar la educación y fuentes de trabajo para erradicar la pobreza y la delincuencia (folio 226).

21-Del folio 257 al 436 varias personas se apersonan al expediente en apoyo de este recurso de amparo.

22- Informa John Thomas y Arnoldo Rudín Arias, ambos en su condición de apoderados generalísimos de Industrias Infinito S.A. (folio 437) que el proyecto en cuestión, se trata de un proyecto cuya fase de exploración se inició desde 1993 a 1998. En el año 2001 se le otorgó la concesión minera, en el siguiente se presentó a SETENA el estudio de impacto ambiental. En el año 2004 se realizó la audiencia pública en la comunidad, en el siguiente SETENA otorgó la viabilidad ambiental para el modelo saprolita. En el 2008 SETENA otorgó viabilidad ambiental para hacerle modificaciones al proyecto entre las cuales: 1- se redujo el área de extracción en un 60%, de manera que sólo ocupará un 15% de la propiedad, 2-se aumentó el área a reforestar de 336 hectáreas a 382 y con especies nativas para conservación, se plantarán 611 mil árboles, de modo que se conectarán más de 800 hectáreas existentes de bosque fragmentado, lo que equivale a conservar aproximadamente un millón de árboles más. 3- No se utilizará 30 mil litros diarios de diesel para generar electricidad con una planta de generación aprobada por SETENA, por lo que no se emitirán 3.3 toneladas de CO2. 4- Para dotar de electricidad a Crucitas, la compañía donará a COOPELESCA una línea de transmisión de 69 KW de $6 millones de 74 km, por lo que otras empresas podrán conectarse. 5- En el proceso de minado: se obtendrán materiales arcillosos o saprofita y la roca dura que contiene el oro, los que serán procesados mediante un lixiviado en un circuito cerrado de cianuración en tanques completamente cerrados y controlados que se ubicarán en zona segura para contener en una emergencia todo el volumen existente, lo que garantiza más de un 20% adicional como factor de seguridad, que funcionará de manera independiente permitiendo la recirculación del agua del proceso, así como de insumos para su procesamiento, es decir un circuito hidráulicamente cerrado.

En forma permanente funciona además una planta de destrucción de cianuro a través del proceso Cyplus, con la cual se bajan los niveles incluso a niveles más bajos que los que exige la normativa vigente. El uso de explosivos será seguro y acorde a la legislación. Existe ya una Comisión Mixta de Monitoreo y Control Ambiental conformada por 14 miembros que representan a cada una de las siete comunidades de la zona, la DGM, la Municipalidad, la empresa, el Ministerio de Salud, ACAHN, SETENA, Asociación Ambientalista involucrada, y además una Comisión de Monitoreo Ambiental. Respecto al drenaje ácido, éste ocurre cuando la oxidación de los minerales sulfurosos contenidos en las rocas son expuestos al aire y al agua, si alguno de esos factores no interacciona con el resto, no se produce. En todo caso utilizan un factor de seguridad en el que mantienen todo sumergido a 2 metros bajo el nivel del agua en el área de relaves, al igual que en Canadá y en Europa, por eso se llama Laguna de Relaves.

La empresa lleva invertidos $57.553.519.00 en el proyecto. Con respecto al tema de aguas: mediante el oficio número IMN-DA-1358-2008 del diecinueve de mayo del año pasado, el Departamento de Aguas validó el inventario de Corrientes en la Zona de Explotación, el Embalse de Relaves y Aforos en los Sitios de Captación. Asimismo, SENARA mediante el oficio número ASUB-279-2008 del catorce de julio siguiente avaló el estudio denominado “Estudio Hidrogeológico” (pero este se refiere sólo al tanque de combustible), además se realizan constantes inspecciones al proyecto; existen más de 20 planes de monitoreo y protocolos ambientales y se cuenta con un plan de Cierre Técnico de la Mina. Hace tres años implementó la instalación y mantenimiento de un vivero forestal con especies nativas de la zona y a la fecha existen más de 67.500 árboles nativos de los que 15,000 son almendros amarillos y se han reforestado unas 15 hectáreas correspondientes a unos 24.000 árboles ya plantados, y desde hace diez años se han reforestado áreas de potrero.

Con el cambio de uso de suelo, las especies a cortar no son de bosque primario sino secundario. El cambio de uso de suelo se permitió por todas las compensaciones que se debieron hacer con relación a la reforestación, pues por cada árbol cortado se deben sembrar cincuenta y por cada almendro se sembrarán cien, en las áreas a reforestar que comprenden 382 hectáreas. Con la venta de madera se financian otras áreas de protección, se financiarán monitoreos, y un fideicomiso para inversiones en la comunidad. Refiere que en el área del proyecto no existe ningún área silvestre protegida. Indican que en el estudio de impacto ambiental y su anexo se estudiaron adecuadamente las condiciones de las quebradas y ríos de la zona de influencia del proyecto, así como de los cauces. Refiere que el acuífero regional no es explotado por la comunidad y no es potable (por los valores de ph o acidez).

Con relación al acuífero que es más superficial, es muy limitado por las variaciones topográficas y por la distancia a que se encuentran ni siquiera alcanzaría la distancia de los tajos. Refiere que en ese acuífero se albergan materiales arcillosos, o sea de baja a muy baja productividad y cubierto de una superficie muy impermeable, por lo que la posibilidad de que alguna contaminación pueda infiltrarse es muy baja a nula. La lapa verde tiene su área de anidación fuera del área del proyecto, sí es zona de paso y de busca de alimentos, lo cual se está previendo con las medidas a tomar. La zona tiene múltiples áreas de árboles de almendro, existen 3.200 árboles de almendro por cada pareja de lapas. Argumenta que el proyecto está bien sustentado técnicamente. Tanto SETENA como la Dirección de Geología y Minas valoraron su viabilidad social, ambiental y económica. Indican que el recurrente no aporta prueba técnica que desmienta los criterios técnicos que le dan sustento, ni que demuestre que se esté produciendo un daño ambiental.

El Decreto cuestionado se fundamenta en normas que autorizan la minería y la declaran de interés público. Asimismo, el proyecto se ajusta a las consideraciones que esta Sala ya ha emitido con relación al desarrollo sostenible (ver sentencia Número 2005-16376). Refieren que el proyecto ha cumplido con todas las disposiciones legales y que el recurrente lo que pretende es que la Sala se pronuncie sobre aspectos de índole totalmente técnicos, lo cual es improcedente. No se está poniendo en riesgo el ambiente, pues de todos los estudios se desprende que con la actividad en cuestión no se llegará a producir un daño grave o irreversible. La actividad minera no contradice tampoco los Convenios de índole internacional, así lo ha señalado la Sala en los amparos 98-1742-007-CO y 02-2714-007-CO. Indican que producto de la paralización ordenada por la Sala la empresa tuvo que suspender los contratos vigentes, lo que implicó que los contratistas despidieran cerca de 100 trabajadores y que no se les permite aplicar las medidas de mitigación ambiental correspondientes. Solicita que se declare sin lugar el recurso y se les permita aplicar las medidas de mitigación necesarias.

23- De los folios 567 al 876, 879 al 899, 966 al 971, 993 al 1007, 1087, 1089, 1091, 1095, 1096, 1098, 1133, 1134, 1316, 1318, 1345, 1348 al 1366, 1371, 1373, 1796, 1807 y 1808 varias personas se apersonan al expediente en apoyo del presente recurso de amparo.

24- El 22 de noviembre de 2008 el MINISTERIO DE AMBIENTE, ENERGÍA Y TELECOMUNICACIONES solicitó adición y aclaración de la medida cautelar dictada por este Tribunal, por cuanto la medida se amplió al desarrollo de las obras de infraestructura en áreas de protección (folio 877).

25- Por escrito presentado el 24 de octubre del 2008 [Nombre 002], presenta el recurso de amparo 08-014454-0007-CO, en el que acusa que no está conforme con el Proyecto Minero Las Crucitas, en Cutris de San Carlos. En virtud de ello, menciona que dicho proyecto fue señalado como de interés público -por medio de Decreto Ejecutivo-, sin considerar las especies arbóreas en peligro de extinción, así como la lista de especies arbóreas prohibidas para su "corta". Sostiene que se le otorgó el permiso de explotación a la Empresa Minera Industrias Infinito S.A, la cual procedió a la tala de árboles en la zona en que se pretendía desarrollar dicho proyecto, talando incluso árboles protegidos como el Almendro -según voto de la Sala Constitucional 13426-2008-. En razón de lo anterior, estima que las autoridades recurridas permitieron "la tala indiscriminada de especies nativas en peligro de extinción" (ver folio 1 el expediente).

Asimismo, indica que la Ley Forestal y su Reglamento, no permiten el cambio total de uso del suelo, por consiguiente considera que, "la remoción de toda la cobertura arbórea es un cambio en el uso del suelo". Aunado a ello, señala que los proyectos mineros a cielo abierto representan una amenaza para la salud pública, debido a la utilización de productos químicos muy tóxicos, lo cual podría perjudicar a los habitantes de la Zona de Cutris de San Carlos. En consecuencia, según su entender, el contenido de dicho Decreto es contrario a derecho y por ende resulta ilegal, motivo por el cual, solicita a la Sala se declare con lugar el recurso, declarándose nulo dicho Decreto (folio 901).

26- Por resolución Número 16489 de las veinte horas y veintiocho minutos del treinta de octubre del dos mil ocho se acumuló el amparo 08-14454 a este expediente (folio 911).

27- Con relación al amparo que se tramita en expediente número 08-14454-0007-CO informa bajo juramento Sonia Espinoza Valverde en su condición de Secretaria General de SETENA (folio 913), que a la respuesta dada se le deben agregar los informes remitidos en los amparos 08-008647-0007-CO, así como al 08-014068-0007-CO y 08-014464-0007-CO. Indica que el área boscosa que se afectará es de 191.78 hectáreas de los cuales se han cortado 66 o sea un 30% del total. El área neta del bosque será de 804 hectáreas dedicadas a la protección forestal, el área de potreros a reforestar será de 382, de los cuales ya se sembraron 16 con especies nativas. Al finalizar el proyecto será de 1.186 hectáreas de bosque de protección y se sembrarán 611.200 árboles. Indica que con las medidas tomadas en el estudio de impacto ambiental no se producirá contaminación por sustancias químicas, e indica que el proyecto cuenta con un balance hídrico adecuado, por lo que no se van a modificar sustancialmente los flujos naturales del agua por debajo del suelo, tanto en lo que respecta a las aguas superficiales como a las subterráneas. Solicita que se declare sin lugar el recurso.

28- En atención al amparo 08-14454-0007-CO informa bajo juramento Rodrigo Arias Sánchez en su condición de Ministro de la Presidencia (folio 917) que previo a la publicación del Decreto, se contaba con la viabilidad ambiental de SETENA en dos oportunidades con todas las modificaciones del caso que mejoraron sustancialmente el proyecto y los beneficios de la zona que actualmente depende de un monocultivo. Reitera los beneficios que ya fueron señalados en el informe de SETENA. Con respecto a la tala dispuesta, indica que la compensación por el cambio de uso de suelo propuesto se encuentra en el considerando IX del Decreto Ejecutivo número 34801-MINAET. Indica que se valoró la triple viabilidad que tiene este Proyecto (ambiental, social y económica), lo cual es acorde con el Plan Nacional de Desarrollo y los Objetivos de Paz con la Naturaleza. Refiere que no se ha escondido información, se trata de una decisión consciente en la que no se puede evitar la eliminación de dicha zona, pero sí tomar otras medidas compensatorias y de mitigación, responsablemente asesoradas y ajustadas a la Ley Forestal.

Indica que ambos acuíferos fueron valorados en el estudio de impacto ambiental pero que no hay afectación, al igual que con respecto a la acusada contaminación de los ríos y quebradas por el sistema a implementar denominado CYPLUS. Indica que con relación a una eventual contaminación por emergencia existe un Capítulo dentro del estudio de impacto ambiental denominado Plan de Contingencia que incorpora todo tipo de eventualidades que podrían ocurrir. En caso de sismos la laguna de relaves contará con una estructura de rebalse o vertedor de excedencias que ha sido diseñada y aprobada en el estudio de impacto ambiental y su Anexo, con el fin de darle una estabilidad permanente al dique y para manejar en forma independiente excedentes de agua en los períodos de máxima precipitación. Además, de mantener un control permanente de la calidad del agua de rebalse, se instalará una planta dosificadora de cal al igual que en la salida de los tajos, para en caso necesario poder neutralizar el ph.

La ubicación de esta planta es una medida adicional y un factor de seguridad extra, con la cual la calidad de agua del vertido es aceptable, pues cumple con la normativa internacional. El área del proyecto minero presenta las mismas características de degradación de la zona donde predominan las formaciones tipo mosaico, intercalándose áreas de grandes pastizales y algunos agroecosistemas, con parches boscosos aislados de tamaño variable. Lo que ha quedado durante el tiempo es un bosque natural empobrecido con el desarrollo de un bosque secundario. El almendro amarillo es una especie presente en toda la finca donde se desarrolla el proyecto (1474 hectáreas), no solamente en el área en que se implantará la infraestructura o el área de extracción. Con relación a la Lapa Verde precisa: 1- la finca es zona de paso para las áreas donde anidan, el remanente de árboles de almendro y treinta y siete más incorporados a su dieta que también le proporcionan frutos y forraje garantizan que no se coarta la posibilidad de alimento para estas aves. 2- el árbol de almendro amarillo en la zona, en condición de áreas abiertas tiene un promedio de crecimiento de 1.8 m de altura por año en los primeros seis años.

Esto aunado a que se tienen datos de fructificación entre siete y ocho años, lo que permite tener certeza de la recuperación de áreas degradadas en pocos años. 3- el área del proyecto no es zona de anidamiento, lo cual es confirmado con los árboles que fueron talados en los cuales no se encontró vestigio alguno de nidos. El compromiso de la empresa desarrolladora del proyecto Minero Crucitas es reforestar 382 hectáreas dentro de la finca con la siembra de 611.200 árboles de especies nativas; terrenos que incluyen los que ya habían sido degradados por acción de la ganadería extensiva. Durante el desarrollo del proyecto se estipula dentro del Plan de Gestión Ambiental 20 planes de monitoreo incluyendo el medio físico y biológico que permitan tener certeza de que las medidas propuestas para la mitigación de impactos han sido las idóneas. Además, es compromiso de la empresa desarrolladora también la disposición y reubicación adecuada de especies de flora y fauna que serán impactadas dentro del área de proyecto.

Sobre la inquietud de que las medidas de mitigación no son proporcionales con los impactos que genera la tala rasa, el muestreo realizado de especies herbáceas arrojó un total de 115 registros, de los cuales 56 son especies que no fueron determinadas con anterioridad. Se observa una dominancia de Araceaes, en su mayoría epífitas, así como de la familia Rubiaceae y Melatomataceae. Se reportan especies de aráceas en las zonas con algún grado de regeneración; mientras que en las zonas más degradadas, pastizales con árboles dispersos y charrales, se encontró un menor número de especies y con dominancia de pastos. Menciona que en el mes de diciembre del dos mil seis, se realizó un estudio poblacional de especies de fustales que se encuentran entre los diámetros 10-29,9 centímetros, por parte de FUNDATEC perteneciente al Instituto Tecnológico de Costa Rica, por parte de la Escuela de Ciencias Forestales.

Este análisis permitió entregar al Área de Conservación local información científica adecuada relacionada con un estrato de bosque secundario intervenido que se ubica en el AP. Como conclusión general del estudio se obtuvo que el AP, presenta una diversidad florística de fustales que puede ser desarrollada apropiadamente en las áreas a reforestar que forman parte de las medidas de mitigación y compensación del aspecto de cobertura vegetal del proyecto, sobre todo porque estas medidas se realizarán no solo como una actividad de reforestación, más bien se pretenden desarrollar los hábitats adecuados para conformar un corredor biológico que permita el tránsito de especies de fauna pequeñas y medianas que permitan un trasiego de semillas y fauna entre los sectores este y oeste del AP que presentan mejores condiciones de hábitats que los bosques intervenidos tan fragmentados que presenta el AP.

El inventario de especies forestales muestra datos en cuanto al número de árboles, volumen y área basal por hectárea, que los caracterizan como áreas muy explotadas. Aunque se observa y se muestran en algunas parcelas del estudio, datos más altos, los mismos no alcanzan a los promedios generalizados para los bosques primarios de la zona. Los bosques naturales explotados, se consideran bosques naturales “descremados” de los cuales fue extraído de forma sistemática, prácticamente todo el material que produjera ganancias. De acuerdo a la intensidad de las intervenciones, lo que queda y permanece por mucho tiempo es un bosque natural empobrecido, o bien se desarrolla un bosque de segundo crecimiento. Adicionalmente la empresa concesionaria presentó un censo elaborado por un regente forestal ante el Área de Conservación respectiva, el cual contempla diámetros mayores o iguales a 30 centímetros al igual de un estudio de regeneración natural con diámetros menores.

Mientras que a la SETENA se remitió la cantidad de árboles a remover con las correspondientes medidas de prevención, mitigación y compensación, información contenida dentro del Plan de Gestión Ambiental que fueron valoradas y aprobadas por esa instancia. Indica que con esos estudios se puede asegurar que se tiene pleno conocimiento de los recursos con que se cuenta y permitió valorar si las medidas contenidas de mitigación y compensación incorporadas en el Plan de Gestión Ambiental son las pertinentes, de esta forma se llegó al otorgamiento de la Viabilidad Ambiental. Sobre el corredor que une el Refugio Maquenque con lndio Maíz, dicho corredor se encuentra en el área de influencia indirecta (no directa) del proyecto, y su impacto fue objeto de análisis en la evaluación de impacto ambiental, determinándose su viabilidad. Refiere que el artículo 50 Constitucional no ha sido violentado por la Administración como tampoco el principio precautorio con la emisión del Decreto Ejecutivo y de la resolución de permiso forestal para el cambio de uso del suelo, por cuanto son actos ajustados al principio de legalidad y dentro del marco de las competencias constitucionales del Ejecutivo.

Tampoco desconoce los votos que esta Sala Constitucional ha dictado en la materia, las disposiciones de carácter general que disponen la veda del almendro y los emitidos sobre el tema están siendo respetados y no hay derogatoria ni disposición en contrario. El decreto de conveniencia nacional es un procedimiento de excepción previsto en la ley y adoptado por el Ejecutivo con plena certeza de los impactos y la validez de las medidas de compensación propuestas. Para la declaratoria de interés público y conveniencia nacional decretada por el Poder Ejecutivo ha mediado un amplio estudio del caso en relación con el Plan Nacional de Desarrollo y los objetivos de Paz con la Naturaleza que como ya se indicó se ajustan al Principio de Desarrollo Sostenible. Pero también se han considerado otros factores como son las manifestaciones de los otros ciudadanos costarricenses que están apoyando el proyecto y que han enviado cartas que constan en el expediente, ciudadanos que demandan al país la toma de decisiones que les permitan opciones de desarrollo y mejorar la calidad de vida de sus familias y comunidades.

La toma de decisiones ha estado motivada y fundamentada en el conocimiento de los diferentes temas y la evaluación científica que el Estado ha tenido a disposición y ha apreciado como idónea y suficiente para actuar con certeza científica. En todos los actos ha mediado el acceso a la información precisa y exacta de los impactos ambientales previstos para el proyecto, el área de cobertura forestal a eliminar y los estudios y acciones del Estado para contar con la certeza científica de que no se afectará la población de la Lapa Verde. El Estado no tiene en absoluto falta de certeza, al contrario la falta de certeza y conocimiento de los expedientes es del recurrente quien tiene dudas, mismas que pudieron ser evacuadas por la Administración si las hubiera consultado. No es cierto como indica el recurrente que el Decreto número 34801-MINAET, no ha considerado lo referente al bosque, las especies de flora y fauna, o el recurso hídrico, ya que como se ha venido explicando, el hecho de que el Decreto como tal no lo indique, existen todos los estudios que le dan el soporte técnico.

Respecto al hecho acusado de que el proyecto conlleva “destruir y arrasar toda zona de protección de quebradas” y “desviar una o más quebradas” con lo cual se afectarán cuerpos de agua superficial y las zonas de recarga acuífera, el Plan de Gestión garantiza el balance hídrico. El desarrollador adjuntó un estudio hidrogeológico detallado, donde se asegura que al final del proyecto tanto las aguas subterráneas como las superficiales van a contar con un balance hídrico adecuado. Para ese balance hídrico es muy importante el lago, dado que con su creación, el material estéril quedará cubierto, de modo que no se producirá drenaje ácido y los ecosistemas acuáticos no van a ser objeto de daño ambiental. Indica que la actuación del Poder Ejecutivo se ha ajustado a derecho y el decreto en cuestión fue dictado dentro del ámbito legal de sus competencias. Solicita que se declare sin lugar el recurso.

29- Roberto Dobles Mora en su condición de Ministro del Ministerio de Ambiente, Energía y Telecomunicaciones y Sonia Espinoza Valverde en su calidad de Secretaria General de SETENA rindieron el informe respecto al amparo 08-014454-0007-CO, en exactos términos que lo hizo el Ministro de la Presidencia. Solicitaron además que se tuvieron por contestados los amparos acumulados 08-014164-0007-CO, 08-014454-0007 CO, 08-014488-0007 y 08-014593. (folio 938) 30- Por escrito presentado el 24 de noviembre de 2008, Sandra Arredondo en su condición de regente ambiental del proyecto Mina Crucitas externa a la Sala su preocupación respecto a la suspensión del proyecto como medida cautelar por las consecuencias que se puedan producir al no poder aplicar medidas de mitigación (folio 973).

31- En escrito recibido el 25 de noviembre de 2008 (folio 1008), Roberto Dobles Mora en su condición de Ministro de Ambiente, Energía y Telecomunicaciones manifiesta en el amparo 08-0014592-0007-CO, que presenta solicitud de levantamiento parcial de la medida interpuesta por la Sala, lo anterior en virtud de que por inspección realizada por la Comisión Institucional de Seguimiento, Control y Fiscalización del Proyecto del 13 de ese mes de noviembre se determinó que las actividades llevadas a cabo no han generado impactos ambientales no previstos en los estudios, que la empresa ha cumplido con la paralización de obras del caso, sin embargo se solicita la autorización para realizar determinadas actividades pues la paralización del proyecto sí puede producir efectos ambientales adversos que no fueron contemplados. Lo solicitado es permiso para extraer la madera cortada, disponer y dar tratamiento adecuado a los desechos vegetales presentes en el área de los tajos y de la laguna de relaves, se liberen drenajes de agua superficial y sus respectivas zonas de protección y se mantenga un control fitosanitario adecuado dentro del proyecto. Adoptar medidas de protección forestal, que se permita implementar y concluir obras para el control del sedimento y conservación de suelos y desarrollar el proceso de monitoreo.

32- El 25 de noviembre de 2008, John Thomas y Arnoldo Rudín Arias en su condición de apoderados generalísimos de la empresa Industrias Infinito S.A. solicitan la celebración de una vista (folio 1021)- 33- Por escrito presentado el 23 de octubre de 2008, Jorge Rodríguez Fonseca, con cédula 3-234-169 presenta el amparo 08-0014375-0007-CO en el que manifiesta que no está conforme con el Proyecto Minero que se pretende desarrollar en la zona de Cutris de San Carlos. Indica que con la aprobación de dicho proyecto, hectáreas de bosque serán deforestadas. Manifiesta que se dedica únicamente al turismo; por ello, considera que con la aprobación del proyecto referido muchas personas perderán el empleo, principalmente las que se dedican al turismo. Estima lesionados sus derechos fundamentales. Solicita el recurrente que se declare con lugar el recurso, con las consecuencias de ley.

34- Por resolución número 2008-16545 se acumuló el expediente 08-14375 a este expediente (folio 1027).

35- Mario José Suazo Palma, con cédula 8-062-004 presenta el amparo 08-0014461-0007-CO y acusa que se ha otorgado permiso a una empresa privada para realizar labores de minería a cielo abierto en Las Crucitas, lo cual va a producir daño de la naturaleza y de las especies de aves y mamíferos que habitan en ese lugar. Manifiesta que se habla de conservar la naturaleza, y por el contrario se van a destruir las montañas y todos sus seres vivos que están en el bosque. Solicita que se declare con lugar el recurso (folio 1030).

36- Por resolución número 16549 de las catorce horas y treinta y cinco minutos del cinco de noviembre del dos mil ocho se acumuló el amparo 08-0014461-0007-CO a este expediente (folio 1035).

37- Rebeca Naranjo Unfried, mayor, soltera, con cédula 1-1297-553, vecina de Plaza González Víquez presenta el amparo 08-014533-0007-CO, en el que acusa que analizando los artículos utilizados por el Poder Ejecutivo en el Decreto Ejecutivo número 34801-MINAET, se evidencia que se utilizó una interpretación propia de la ley, incurriendo en atribuciones no propias a su naturaleza, por lo que solo utiliza partes de los artículos, no los contextualiza y no utiliza las definiciones que el artículo 33 establece para la aplicación del artículo 34 de la Ley Forestal. Manifiesta que las especies de árboles vedadas que se encuentran en esta zona no recaen bajo ninguno de los supuestos que establece el artículo 33 de la Ley citada, por lo tanto tampoco son sujetos de los supuestos del artículo 34, por lo que es evidente el quebrantamiento del artículo 11 de nuestra Constitución Política al atribuirse, los funcionarios públicos responsables de este decreto, facultades que no poseen al interpretar la ley, y además la ruptura del Principio de Legalidad, de contenido constitucional, por cuanto el fin que se pretende alcanzar con este decreto no se puede fundamentar con las leyes utilizadas para hacerlo.

Estima que el contenido de dicho Decreto es contrario a derecho y por ende resulta ilegal, motivo por el cual, solicita a la Sala se declare con lugar el recurso, declarándolo nulo, debiéndose dejar sin efecto todas las resoluciones otorgadas a la luz del mismo (folio 1037).

38- Por resolución Número 16547 de las catorce horas y treinta y tres minutos del cinco de noviembre del dos mil ocho se acumuló el amparo 08-0014533-0007-CO a este expediente (folio 1047).

39- En escrito presentado el 29 de octubre de 2008 por Adriana Naranjo Rojas, mayor, soltera, con cédula 1-1149-229, vecina de Guadalupe, presenta el amparo 08-014653-0007-CO (folio 1052), en el que indica que el Decreto Ejecutivo número 34801-MINAET, dado en la Presidencia de la República a las trece horas del trece de octubre del dos mil ocho, por el Presidente de la República de Costa Rica, y el Ministro del Ambiente, Energía y Telecomunicaciones, basa su autorización de tala de especies vedadas por sentencia de la Sala Constitucional número 2002-002486 de las diez horas y cincuenta y cuatro minutos del 08 de marzo del 2002, en este caso del almendro, en los artículos 19 y 34 de la Ley Forestal. Indica que de los artículos citados se desprende que se podrá cambiar el uso de suelo para proyectos que tengan conveniencia nacional, sin embargo, el régimen de protección de las especies de almendro que se encuentran en la zona del Proyecto Minero Las Crucitas no es por regulación de uso de suelo, por lo que la resolución citada tiene un carácter erga omnes, y solo puede ser modificada por voto de la misma Sala Constitucional y no por Decreto Ejecutivo.

Señala que analizando los artículos utilizados por el Poder Ejecutivo en el Decreto mencionado, se evidencia que se utilizó una interpretación propia de la ley, incurriendo en atribuciones no propias a su naturaleza, por lo que solo utiliza partes de los artículos, no los contextualiza y no utiliza las definiciones que el artículo 33 establece para la aplicación del artículo 34 de la Ley Forestal. Manifiesta que las especies de árboles vedadas que se encuentran en esta zona no recaen bajo ninguno de los supuestos que establece el artículo 33 de la Ley citada, por lo tanto tampoco son sujetos de los supuestos del artículo 34, por lo que es evidente el quebrantamiento del artículo 11 de nuestra Carta Magna al atribuirse, los funcionarios públicos responsables de este decreto, facultades que no poseen al interpretar la ley, y además la ruptura del principio constitucional que es el Principio de Legalidad, por cuanto el fin que se pretende alcanzar con este decreto no se puede fundamentar con las leyes utilizadas para hacerlo.

Estima que el contenido de dicho Decreto es contrario a derecho y por ende resulta ilegal, motivo por el cual, solicita a la Sala se declare con lugar el recurso, declarándolo nulo, debiéndose dejar sin efecto todas las resoluciones otorgadas a la luz del mismo. Considera que tales hechos lesionan los derechos fundamentales establecidos en los artículos 10, 11, 50, 56, 140, 148 y 149 de la Constitución Política. Solicita la recurrente que se declare con lugar el recurso, con las consecuencias de ley.

40- Por resolución número 16548 de las catorce horas y treinta y cuatro minutos del cinco de noviembre del dos mil ocho se acumuló el amparo 08-0014653-0007-CO a este expediente (folio 1057).

41- El 30 de octubre de 2008 Esteban Dato Morice, mayor, soltero, vecino de Cartago, con cédula 1-1206-450 presenta el amparo 08-0014715-0007-CO (folio 1065) en el que señala que el Decreto Ejecutivo número 34801-MINAET, dado en la Presidencia de la República a las trece horas del trece de octubre del dos mil ocho, por el Presidente de la República de Costa Rica, y el Ministro del Ambiente, Energía y Telecomunicaciones, basa su autorización de tala de especies vedadas en sentencia de Sala Constitucional número 2002-002486 de las 10:54 horas del 08 de marzo del 2002, en este caso del almendro, en los artículos 19 y 34 de la Ley Forestal. Indica que de los artículos citados se desprende que se podrá cambiar el uso de suelo para proyectos que tengan conveniencia nacional, sin embargo, el régimen de protección de las especies de almendro que se encuentran en la zona del Proyecto Minero Las Crucitas no es por regulación de uso de suelo, por lo que la resolución citada tiene un carácter erga omnes, y solo puede ser modificada por voto de la misma Sala Constitucional y no por Decreto Ejecutivo.

Señala que analizando los artículos utilizados por el Poder Ejecutivo en el Decreto mencionado, se evidencia que se utilizó una interpretación propia de la ley, incurriendo en atribuciones no propias a su naturaleza, por lo que solo utiliza partes de los artículos, no los contextualiza y no utiliza las definiciones que el artículo 33 establece para la aplicación del artículo 34 de la Ley Forestal. Manifiesta que las especies de árboles vedadas que se encuentran en esta zona no recaen bajo ninguno de los supuestos que establece el artículo 33 de la Ley citada, por lo tanto tampoco son sujetos de los supuestos del artículo 34, por lo que es evidente el quebrantamiento del artículo 11 de nuestra Carta Magna al atribuirse, los funcionarios públicos responsables de este decreto, facultades que no poseen al interpretar la ley, y además la ruptura del principio constitucional que es el Principio de Legalidad, por cuanto el fin que se pretende alcanzar con este decreto no se puede fundamentar con las leyes utilizadas para hacerlo.

Estima que el contenido de dicho Decreto es contrario a derecho y por ende resulta ilegal, motivo por el cual, solicita a la Sala se declare con lugar el recurso, declarándosele nulo, debiéndose dejar sin efecto todas las resoluciones otorgadas a la luz del mismo. Considera que tales hechos lesionan los derechos fundamentales establecidos en los artículos 10, 11, 50, 56, 140, 148 y 149 de la Constitución Política. Solicita el recurrente que se declare con lugar el recurso, con las consecuencias de ley.

42- Por resolución número 16546 de las catorce horas y treinta y dos minutos del cinco de noviembre del dos mil ocho se acumuló el amparo 08-0014715-0007-CO a este expediente (folio 1073).

43- En escrito presentado el 4 de noviembre de 2008, Manuel Antonio Brenes Corrales, con cédula 3-203-250 presenta el amparo 08-014905-0007-CO (folio 1078) y señala que el Presidente y el Ministro de Ambiente firmaron un Decreto en el que dieron permiso a la empresa Industrias Infinitas S.A. para explotar el proyecto Las Crucitas en Cutris de San Carlos, con el fin de sustraer oro. Afirma que con el Decreto se violenta toda ley ambiental, a sabiendas de que la zona está protegida. Además, se amenaza el terreno, la flora, la fauna y al Río San Juan. Estima violados los artículos 50 y 51 de la Constitución Política. Solicita se declare con lugar el recurso, con las consecuencias de ley.

44- Por resolución número 16544 de las catorce horas y treinta minutos del cinco de noviembre del dos mil ocho se acumuló el amparo 08-014905-0007-CO a este expediente (folio 1081).

45- La Magistrada Salazar solicitó mediante resolución de las once horas y trece minutos del veinticinco de noviembre del dos mil ocho, como prueba para mejor resolver (folio 1084), informe al SETENA a fin de que refiriera y certificara cuáles fueron los instrumentos autorizados y utilizados para determinar la relación costo-beneficio para determinar que la eliminación de ciento noventa y dos hectáreas de bosque autorizadas en el caso bajo estudio, producirá al Estado un beneficio socio-económico mayor al costo socio-ambiental, así como el resultado de dicha valoración, explicando detalladamente las razones técnicas para arribar a la conclusión correspondiente.

46- La Magistrada Salazar solicitó mediante resolución de las once horas y veintinueve minutos del veinticinco de noviembre del dos mil ocho (folio 1085) como prueba para mejor resolver, que el Director de la Escuela de Geología de la Universidad de Costa Rica aportara los análisis realizados por tres profesores de dicho centro al estudio de impacto ambiental del proyecto minero presentado por la Escuela a SETENA el 3 de julio del 2002, según oficio GD-371-02.

47- La Magistrada Salazar solicitó mediante resolución de las once horas y cuarenta y nueve minutos del veinticinco de noviembre del dos mil ocho (folio 1086), como prueba para mejor resolver, solicitar informe a SENARA a fin de que acreditara si existen acuíferos en la región donde se encuentra el poblado de Las Crucitas, distrito Cutris, cantón San Carlos de la provincia de Alajuela, en la zona norte del país, su utilización, tamaño, sitios de carga, recarga y descarga, y trascendencia de los mismos en relación con el recurso hídrico regional y nacional. Informar igualmente si existen estudios sobre el impacto que la actividad minera desarrollada en la zona puede tener sobre los acuíferos presentes y en los sitios donde los mismos pudiesen descargar.

48- Por escrito presentado el día 2 de diciembre de 2008, Arnoldo Rudín en su condición de Gerente General de Industrias Infinito S.A. reitera su solicitud a la Sala para la celebración de vista (folio 1100).

49- El 2 de diciembre de 2008, Luis Guillermo Obando Acuña en su condición de Director a.i. de la Escuela Centroamericana de Geología contestó la audiencia conferida por esta Sala (folio 1104), indicando que no tiene certeza de los documentos aportados en aquel momento, pero que en este acto aporta el oficio SG 1045-2002 del 2 de julio del 2002, el oficio GD-371-02 del 3 de julio del 2002 y otros documentos recibidos en dicha Escuela por parte de un geólogo minero el día 20 de junio de 2002, un profesor de geología ambiental el 10 de junio del 2002 y un Auditor Ambiental el 3 de junio del 2002.

50- Por escritos presentados el día 25 de noviembre y 2 de diciembre de 2008, Arnoldo Rudín en su condición de Gerente General de Industrias Infinito S.A. reitera su solicitud a la Sala para la celebración de vista (folios 1137 y 1138).

51- A folio 1139 consta remisión que hace la Presidencia de la Sala a este expediente de la nota de fecha 9 de diciembre de 2008 en que la empresa recurrida solicita vista en el presente asunto.

52- Por escrito presentado el 3 de diciembre de 2008, Sonia Espinoza Valverde en su condición de Secretaria General de SETENA (folio 1140) contesta resolución en que se le solicitó prueba para mejor resolver, sobre lo cual manifestó que es competencia del Presidente y del Ministro del ramo declarar un proyecto de conveniencia nacional, sobre la cual SETENA no tiene injerencia alguna. Por otro lado indica que SETENA no determina la corta de árboles sino que ello le corresponde al SINAC. Lo que respecta a su competencia SETENA lo que analiza son los impactos ambientales del proyecto. Reitera que el área a impactar no es 192 hectáreas sino de 191.77 y reitera los fundamentos que ha dado en los informes anteriores.

53- En escrito presentado el 4 de diciembre de 2008 a folio 1143, Bernal Soto Zúñiga en su condición de Gerente General con facultades de apoderado generalísimo sin límite de suma del Servicio Nacional de Aguas Subterráneas Riego y Avenamiento (SENARA) rinde informe e indica que para el análisis que le solicita la Sala comisionó al Área de Aguas Subterráneas del SENARA a fin de que acredite si en el poblado Las Crucitas, Distrito Cutris, existen acuíferos, su utilización, tamaño, sitios de carga y recarga y descarga y trascendencia de los mismos en relación con el recurso hídrico regional y nacional, así como si existen estudios sobre el impacto que la actividad minera desarrollada en la zona puede tener sobre los acuíferos presentes. De conformidad con el oficio número ASUB 543-08 de fecha 3 de diciembre del 2008 no se encuentran registrados pozos o nacientes en un radio de 10 kilómetros a partir de la coordenada 316000-501000 Lambert Norte.

Tampoco se registran nacientes o pozos ilegales, lo cual no quiere decir que no existan. El SENARA no ha realizado estudios hidrogeológicos en la zona. Indica que no se han presentado estudios de impacto ambiental del proyecto Crucitas que valore el impacto de la actividad minera en la zona sobre los acuíferos. Únicamente se ha tramitado la valoración de un caso para instalación de un tanque de combustible, la cual fue atendida por medio de nota ASUB 279-08. El estudio hidrogeológico presentado indica que en la zona se encuentran 2 acuíferos. Este estudio presentó datos geológicos de toda el área, así como isofreáticas del acuífero inferior, a partir de perforaciones exploratorias realizadas para evaluar la factibilidad de la explotación minera. Indica que el estudio presentado en aquella oportunidad define las condiciones puntuales del sitio donde se pretende instalar el tanque de combustible y no las condiciones hidrogeológicas regionales, dado que el estudio era una evaluación puntual.

54- Por escrito presentado el 8 de diciembre de 2008, Eliécer Rodríguez Carmona en su condición de Presidente de la Junta de Educación de Las Crucitas de Cutris se manifiesta en favor del proyecto Minero por todos los beneficios obtenidos (folios 1219 al 1221).

55- Por escritos recibidos el 8 y 14 de diciembre de 2008 que constan a folios 1222, 1227, 1258 al 1298, varios trabajadores de la empresa recurrida se apersonan al expediente y manifiestan su conformidad con la actuación de las autoridades y la empresa recurridas.

56- En escritos recibidos el 8 de diciembre de 2008, Lorena Castro Sandoval en su condición de Directora de la Escuela Llano Verde y Warner Rojas Quirós en su condición de Presidente del Comité de Caminos 2-110-104 trayecto Chamorro a Crucitas, manifiestan su conformidad con el proyecto y la actuación desplegada por la empresa recurrida (folios 1226 y 1228).

57- Por escrito presentado el 8 de diciembre de 2008 a folio 1229, los Fundadores de COOPEVEGA DE CUTRIS, MORAVIA DE CUTRIS, CHAMORRO DE CUTRIS, CRUCITAS DE CUTRIS, LLANO VERDE DE POCOSOL y JOCOTE DE POCOSOL presentan su coadyuvancia pasiva y avalan por un desarrollo sostenible de una comunidad que estaba en abandono y que la empresa ha logrado reactivar.

58- Por escritos presentados el 8 de diciembre de 2008 la Asociación de Desarrollo Integral de Boca Arenal de Cutris, el Almacén Coopevega y Estación de Servicio Coopevega, la Asociación Pro Mejoras Chamorro y El Roble de Cutris, la Asociación de Desarrollo Integral Llano Verde de Pocosol y Crucitas de Cutris y ASOCRUCITAS manifiestan su apoyo al proyecto (folio 1234, 1235, 1239, 1241, 1243).

59- El 9 de diciembre de 2008 vecinos de las comunidades de Ciudad Nelly, Corredores, Puntarenas, Palmar Sur, Osa presentan coadyuvancia activa en el presente asunto (folios 1245 al 1250).

60- En escrito recibido el 10 de diciembre de 2008, el Director Ejecutivo del Colegio de Geólogos de Costa Rica (folio 1252) adjunta el pronunciamiento del Colegio de Geólogos de Costa Rica respaldando el proyecto.

61- El 11 de diciembre de 2008 la Municipalidad de San Carlos presenta certificación en la que hace constar que el Concejo Municipal del mismo por mayoría apoya el proyecto Minero (folios 1292 al 1298).

62- En escrito recibido el 11 de diciembre de 2008, el Comité Cantonal de Deportes y Recreación de San Carlos manifiesta su apoyo al proyecto Minero Crucitas (folios 1299 a 1303).

63- De folio 1304 al 1315 del expediente constan escritos de vecinos de la zona, del Gerente General de la Asociación Deportiva San Carlos, del Director del Ebais de Coopevega de Cutris, del Presidente de la Asociación de Desarrollo Comunal de Coopevega de Cutris, del Presidente del Comité de Deportes de Coopevega, de la Asociación de Mujeres Unidas de Coopevega, del grupo pro-centro de despacho de la Cruz Roja de Coopevega y el Centro Turístico el Ranchón apoyando el proyecto Minero.

64- Con relación al amparo que se tramita en expediente número 08-14454-0007-CO, el 12 diciembre de 2008 Jorge Rodríguez Quirós en su condición de Ministro a.i. de Ambiente, Energía y Telecomunicaciones (folio 1320), manifestó que por oficio DAJ-1829-08 de fecha 24 de noviembre de 2008, se presentó solicitud de levantamiento parcial de la medida interpuesta por la Sala, lo anterior en virtud de que por inspección realizada por la Comisión Institucional de Seguimiento, Control y Fiscalización del Proyecto del 13 de noviembre del 2008, se determinó que las actividades llevadas a cabo no han generado impactos ambientales no previstos en los estudios, que la empresa ha cumplido con la paralización de obras del caso, sin embargo se solicita la autorización para realizar determinadas actividades pues la paralización del proyecto sí puede producir efectos ambientales adversos que no fueron contemplados.

Lo solicitado es permiso para extraer la madera cortada, disponer y dar tratamiento adecuado a los desechos vegetales presentes en el área de los tajos y de la laguna de relaves, se liberen drenajes de agua superficial y sus respectivas zonas de protección y se mantenga un control fitosanitario adecuado dentro del proyecto. Adoptar medidas de protección forestal, que se permita implementar y concluir obras para el control del sedimento y conservación de suelos y desarrollar el proceso de monitoreo. En inspección realizada el 27 de noviembre de 2008 se mantenían las mismas condiciones, razón por la cual le solicitan a la Sala pronunciarse al respecto. Adjuntan resultados de las inspecciones realizadas.

65- El 15 de diciembre de 2008 Luis Obando Acuña en su condición de Director a.i. de la Escuela Centroamericana de Geología de la Universidad de Costa Rica aportó pronunciamiento a favor de las actividades mineras responsables (folio 1341).

66- El 16 de diciembre de 2008 la recurrente Analive Arce solicita que se resuelva este amparo (folio 1344).

67- Por escrito del 19 de diciembre de 2008, Sonia Espinoza Valverde en su condición de Secretaria General de SETENA reitera los argumentos dados en los informes anteriores al cumplir la prevención de prueba para mejor resolver que se le había solicitado y que rindió mediante el oficio SG-AJ-1317-2008-SETENA (folio 1345).

68- El 12 de enero de 2009 Jorge Herrera Ocampo en su condición de Director Ejecutivo del Colegio de Geólogos de Costa Rica se apersona al expediente, por considerar que le corresponde dar su opinión al respecto (folio 1347).

69- Por escrito recibido el 20 de diciembre de 2008, Sonia Espinoza Valverde en su condición de Secretaria General de SETENA a folio 1367, contesta la prueba solicitada e indica que el Decreto número 32966-MINAE, correspondiente al Manual de Instrumentos Técnicos para el Proceso de Evaluación de Impacto Ambiental (Manual de EIA) — Parte IV publicado en La Gaceta 85 del jueves 04 de mayo del 2006, estipula en su Anexo 2, l metodología mínima que permite valorar los impactos ambientales generados por un proyecto, obra o actividad. El desarrollo metodológico para la valoración de impactos, estipula el uso de una Matriz de Importancia de Impactos Ambientales (MIIA), la cual permite determinar los efectos del proyecto y su significancia, y por consiguiente plantear las medidas de prevención, mitigación y compensación correspondientes. Aclara que aunque la emisión del Decreto se da con posterioridad a la presentación del Estudio de Impacto Ambiental del Proyecto Minero Crucitas, este instrumento sí incorpora una matriz de interacción que permitió la valoración de los impactos ambientales, tal como se puede constatar en las páginas 301-429 de su Volumen II.

A la vez el documento denominado Evaluación Ambiental de Cambios Propuestos al Proyecto, presentado el día 6 de diciembre del 2007, constituye una actualización de la MIIA en las páginas 32-53. La MIIA es una herramienta mundialmente aceptada para la valoración cualitativa de proyectos que presentan instrumentos de evaluación ambiental, incluidos los Estudios de Impacto Ambiental (EsIA); la misma ayuda a determinar el efecto de cada acción impactante sobre cada factor y aspecto ambiental impactado, incluido el componente social y económico, con lo cual se determina la importancia del impacto. La importancia del impacto está en función tanto del grado de incidencia o intensidad de la alteración producida, como de la caracterización del efecto, el cual responde a su vez a una serie de atributos de tipo cualitativo, tales como intensidad, extensión, tipo de efecto, plazo de manifestación, persistencia, reversibilidad, capacidad de recuperación, sinergia- acumulación, periodicidad, importancia.

Esta importancia del impacto, es representada mediante un modelo matemático, el cual toma valores entre 13 y 100; los impactos con valores de importancia inferiores a 25 son irrelevantes a sea, compatibles, o bien las medidas ambientales se contemplaron en el diseño del proyecto; los impactos moderados presentan una importancia entre 25 y 50. Serán severos cuando la importancia se encuentre entre 50 y 75 y críticos cuando el valor sea superior a 75. La matriz permite la interacción de los factores socioeconómicos con los demás componentes ambientales, que necesariamente deben ser analizados, lo cual permite a su vez plantear las medidas preventivas, de mitigación y compensación respectivas que son incorporadas al Pronóstico-Plan de Gestión Ambiental (P-PGA). Una vez aprobado el P-PGA con las medidas correspondientes, su ejecución se convierte en un compromiso ambiental que debe ser asumido por el desarrollador.

La MIIA es un elemento de gran relevancia en el análisis de los Estudios de Impacto Ambiental, la cual ayuda al equipo evaluador multidisciplinario de técnicos, a recomendar o no la Viabilidad (Licencia) Ambiental de los proyectos, obras o actividades presentados en la SETENA. La valoración bajo esta metodología exigida par la SETENA, implica la obtención de un impacto final, que es la diferencia entre la situación del medio ambiente con y sin el proyecto, tomando en cuenta no solo el efecto de las acciones impactantes, sino los efectos continuados. Para el caso específico del Proyecto Minero Crucitas, la MIIA incorporó en el análisis del ámbito socioeconómico elementos como uso de la tierra, características de la población, necesidades de poblados en áreas de influencia directa e indirecta y empleo entre otros, donde los valores obtenidos arrojan un resultado positivo para el desarrollo del proyecto, por lo que se prevé en términos generales un aumento en la calidad de vida y un impacto positivo en la economía local.

En este sentido, y a manera de ejemplo, se puede constatar en las páginas 45-46 de la Evaluación Ambiental de Cambios Propuestos para el Proyecto Minero Crucitas, que dentro de los impactos considerados como severos se encuentran la afectación de la calidad de vida con un puntaje de +68 y la generación de empleo e ingresa también con un puntaje de +68; en ambas casos el impacto es positivo, para lo que no se proponen medidas de mitigación adicionales a todas las ya contempladas en el instrumento correspondiente. La calidad de vida evalúa en forma exhaustiva la interacción de los componentes del medio natural (físico, biológico y otros componentes del medio socioeconómico), tales como aire, agua, suelo, ecosistemas acuáticos y ecosistemas terrestres, para los cuales en el proyecto Mina Crucitas se tomaron las medidas necesarias para asegurar que el proyecto se desarrollará en un ambiente controlado.

Para todos los impactos negativos significativos se han previsto las medidas ambientales necesarias, de modo que no se ha generado ningún déficit en la atención de los elementos del ambiente, y ello precisamente explica el saldo positivo del componente calidad de vida. El documento Evaluación Ambiental de Cambios Propuestos al Proyecto, aprobado mediante Resolución 170-2008-SETENA del día 04 de febrero del 2008, determina que, todos los impactos identificados como severos y críticos en el ámbito socioeconómico, fueron positivos para el desarrollo del proyecto y su ambiente circundante. El P-PGA incorporado al EIA aprobado por la SETENA (incluyendo la actualización del P-PGA realizada en el documento Evaluación de Cambios Propuestos al Proyecto) es la base del documento denominado “Balance Socioeconómico del Proyecto Minero Crucitas”, el cual fue presentado a la Sala. Indica que el instrumento idóneo según la ley ambiental vigente y la significancia del impacto ambiental para realizar la valoración del impacto ambiental del Proyecto Minero Crucitas es el Estudio de Impacto Ambiental, por medio del cual se pueda determinar que el proyecto es ambientalmente viable, donde los beneficios sociales son mayores que los costos socio-ambientales.

70- Por escrito presentado el 26 de octubre de 2008 Carlos Alberto Alfaro Mata, mayor, casado, abogado, vecino de Florencia de San Carlos, con cédula 3-207-739 presenta recurso de amparo 08-014464-0007-CO (folio 1376), e indica que el 17 de julio del año en curso, se publicó en el Diario Oficial La Gaceta número 201, página 5, el Decreto Ejecutivo Número 34801-MINAET, dado en la Presidencia de la República a las trece horas del 13 de octubre del 2008, por el Presidente de la República de Costa Rica, y el Ministro del Ambiente, Energía y Telecomunicaciones, decretándose en lo que interesa: "…Artículo 1°. Se declara de interés público y conveniencia nacional el Proyecto Minero Crucitas desarrollado por la empresa Industrias Infinito, S.A.; Artículo 2°- En virtud de la presente declaratoria, la empresa desarrolladora, previa autorización de la oficina correspondiente del Sistema Nacional de Áreas de Conservación, podrá proceder a la corta de árboles (inclusive de las especies que estén vedadas) y al desarrollo de las obras de infraestructura en áreas de protección, según se indica en el proyecto; Artículo 3°- La empresa desarrolladora deberá cumplir con cada una de las medidas de compensación previstas en el Considerando IX.

Para el seguimiento y control de lo anterior, la misma rendirá un informe a la oficina correspondiente del Sistema Nacional de Áreas de Conservación, la que por su parte certificará el cumplimiento; Artículo 4°- Rige a partir de su publicación…". Refiere que Industrias Infinito S.A. es titular de la Concesión de Explotación Minera inscrita en el Registro Nacional Minero de la Dirección de Geología y Minas, bajo expediente número 2594. El Ministerio del Ambiente y Energía por medio de la resolución número 217 de las quince horas del 21 de abril del año en curso, otorgó la concesión de explotación minera a dicha empresa. La Secretaría Técnica Nacional Ambiental otorgó la viabilidad ambiental al Proyecto Minero Crucitas el 12 de diciembre del 2005, por resolución 3638-2005-SETENA y por resolución número 170-2008-SETENA del 04 de febrero del 2008, procedió a aprobarle modificaciones.

El contenido de dicho Decreto es contrario a derecho y por ende resulta ilegal, motivo por el cual, solicita a la Sala se declare con lugar el recurso, declarándolo nulo, debiéndose dejar sin efecto todas las resoluciones otorgadas a la luz del mismo, amén de que debe suspenderse de inmediato todos los actos que son su consecuencia, ordenándose además la restauración del daño provocado al ecosistema con la emisión y aplicación del cuestionado Decreto.

71- Informa bajo juramento Sonia Espinoza Valverde, en su calidad de Secretaria General de la Secretaría Técnica Nacional Ambiental respecto al amparo 08-014464-0007-CO (folio 1398), que sobre el Decreto 34801-MINAET que declara de interés público y conveniencia nacional el Proyecto Minero Crucitas, habrá de informar el Ministerio de Ambiente, Energía y Telecomunicaciones, dado que es el ente que tramitó y aprobó dicho Decreto. Es cierto que esa Secretaría otorgó viabilidad ambiental al Proyecto Minero Crucitas (expediente número 129-2002-SETENA), mediante la resolución número 3638-2005-SETENA, del 12 de diciembre del 2005. Asimismo resulta verídico que, en virtud de resolución número 170-2008-SETENA del 4 de febrero del 2008, la SETENA aprobó la modificación del proyecto propuesta por el desarrollador. En cumplimiento de la orden girada por la Sala Constitucional a esa Secretaría (expediente 08-014068-0007-CO), la misma ordenó la paralización de la tala de árboles mediante oficio número SG-AJ-1150-2008-SETENA, del 21 de octubre del 2008.

Por oficio número SG-AJ-1196-2008-SETENA del 30 de octubre del 2008, se paralizó la construcción en las zonas de protección referentes al proyecto. Mediante oficio número SG-AJ-1039-2008-SETENA del 19 de setiembre del 2008, esa Secretaría declaró con lugar la solicitud del desarrollador de que se comunicase al Área de Conservación Huetar Norte: “que los beneficios sociales, ambientales y económicos evaluados en el estudio de impacto ambiental permitieron otorgarle la viabilidad ambiental que mantiene a la fecha”; “el proyecto, de desarrollarse de acuerdo con las medidas ambientales establecidas, será viable desde la perspectiva ambiental, social-ambiental y económico-ambiental”. Por oficio número SG-ASA-259-2008 del 10 de octubre del 2008, se emite un criterio adicional al Área de Conservación respectiva. Solicita se desestime el recurso planteado.

1. 72Informan bajo juramento Rodrigo Arias Sánchez, Roberto Dobles Mora y Sonia Espinoza Valverde, en su calidad de Ministro de la Presidencia, Ministro de Ambiente, Energía y Telecomunicaciones y Secretaria General de la Secretaría Técnica Nacional Ambiental respecto al amparo 08-014464-0007-CO (folio 1409), que desde el punto de vista social el proyecto no solo ofrece fuentes de trabajo para la zona y una serie de compromisos, sino que a la fecha ya ha iniciado la ejecución de algunos convenios firmados con la Municipalidad de San Carlos, tendientes a mejorar la situación de los caminos y a Coopelesca R.L. para poder suministrar electricidad a las poblaciones de influencia del proyecto. Como parte del programa de responsabilidad social, la empresa ha suscrito un convenio de cooperación con la Región Huetar Norte del Instituto de Desarrollo Agrario para desarrollar programas de capacitación y formación profesional a los pobladores de la zona, en aras de promocionar la pequeña y mediana empresa, como una alternativa de desarrollo comunal.No es conveniente que una o varias comunidades, por pequeñas que sean, dependan de un monocultivo, ello tiene la consecuencia de éxodo a otros centros de población, incluso a la capital, en busca de mejores oportunidades. Desde el punto de vista económico, el proyecto traerá beneficios fiscales al país, tómese en cuenta que la empresa deberá de cumplir con el pago de todos los tributos nacionales y municipales impuestos por ley, además deberá cancelar el 2% establecido en el artículo 55 del Código de Minería. Aunado a lo anterior, la empresa deberá obtener las patentes requeridas para toda industria. De acuerdo con la normativa atinente debe cancelar las cargas sociales. Con el fin de asegurarse el pago total de los impuestos, en la resolución 217-2008-MINAE del 21 de abril del 2008, mediante la que se otorga la concesión, se estableció la condicionante de que la empresa no podrá acogerse al régimen de zona franca.Es cierto que la compensación por el cambio de uso del suelo propuesto por Industrias Infinito S.A. se encuentra en el considerando IX del Decreto Ejecutivo número 34801, pero debe aclararse a la Sala y al recurrente que es solo un extracto por cuanto los estudios en ese proyecto son muy amplios y complejos y no es posible materialmente incluirlos en el Decreto aunque si constan en los expedientes. El amparado desconoce el procedimiento que la empresa ha cumplido paso a paso a lo largo de 17 años para llegar a obtener todas las licencias y permisos que la ley exige para poder iniciar la explotación minera. Es desde esa perspectiva que se debe relacionar el Decreto Ejecutivo número 34801-MINAET, en cuanto a todo el procedimiento, ya que la Declaratoria de Conveniencia Nacional es un paso o etapa previa con la que la actividad debe contar para poder llevar a cabo la corta o eliminación de los árboles y así poder dar inicio a las labores para acceder al material minero que desea explotar.En el caso de marras, el proyecto lleva en discusión muchos años, se cuenta con la viabilidad ambiental, requisito que echó de menos la Sala Constitucional en la sentencia número 2004-13414 de fecha 26 de noviembre del 2004. Indican que el acto está motivado y tiene fundamento técnico científico suficiente para la adopción responsable del mismo. El Estado no tiene en absoluto falta de certeza, al contrario la falta de certeza y conocimiento de los expedientes es del recurrente, quien tiene dudas, mismas que pudieron ser evacuadas por la Administración si las hubiera consultado, pero no fue su voluntad, en cambio acude a la sede Constitucional con el afán de que la Sala entre a suplantar las labores de la administración activa y juzgue y evalúe la herramienta de evaluación ambiental definida por la SETENA, órgano colegiado multidisciplinario con desconcentración máxima técnica del Ministerio de Ambiente, Energía y Telecomunicaciones,, así como que la Sala suplante la voluntad del Poder Ejecutivo en la decisión de declarar la conveniencia nacional de un proyecto específico.En resumen, pretende cuestionar un tema de legalidad en sede constitucional y más aún convertir a la Sala Constitucional en un tramitador de permisos competencia de la administración activa. Solicitan se desestime el recurso planteado.

73- Por resolución Número 16.572 de las trece horas y treinta y nueve minutos del veintisiete de octubre del dos mil ocho se le dio curso al amparo 08-14464-007-CO (folio 1432).

74- Por escrito presentado el 18 de noviembre de 2008 el diputado de la Fracción del Partido Acción Ciudadana José Joaquín Salazar Rojas, presenta coadyuvancia activa, e indica que la intención del legislador para tratar el tema de los bosques fue autorizar el manejo no la tala rasa de los árboles, lo cual es un instituto jurídico ausente en nuestra legislación (folio 1437).

75- A folios 1441 y 1458 del expediente consta la misma gestión de reconsideración de la medida cautelar dispuesta por este Tribunal, presentada por Roberto Dobles Mora en su condición de Ministro del Ministerio de Ambiente, Energía y Telecomunicaciones con relación al expediente 08-014464-0007-CO.

76- El 11 y 12 de febrero de 2009 el recurrente [Nombre 001] solicita que se le otorgue plazo para interponer acción (folios 1479 y 1504).

77- Por escrito presentado el 12 de febrero de 2009 el recurrente [Nombre 001] aporta prueba al expediente (comunicados periodísticos, de Semanarios Universitarios, del Comité Patriótico de Pérez Zeledón, de la Municipalidad de Grecia) (folio 1482).

78- El 13 de febrero del 2009, John Thomas y Arnoldo Rudín Arias, ambos en su condición de apoderados generalísimos de la empresa Industrias Infinito S.A. (folio 1505) manifiestan: El Drenaje Acido de Roca (DAR) es el producto formado por la oxidación atmosférica (a causa del agua, oxígeno y dióxido de carbono presentes) de minerales sulfurosos de hierro relativamente comunes y algunos otros productos generados como consecuencia de esas reacciones de oxidación. El resultado son soluciones fuertemente corrosivas, que lixivian e incorporan metales pesados desde la roca (los metales pesados se pueden encontrar en solución, solo cuando el pH presente condiciones ácidas; en medios básicos o neutros estos se fijan en los sedimentos o suelos y son inmóviles). El vertido de estas soluciones afecta la química de las aguas superficiales y subterráneas, planteando problemas ambientales de diversa índole.

Para el manejo de este problema se tienen dos líneas de acción enunciadas en orden de preferencia: Prevención del proceso de generación y el Tratamiento de las soluciones generadas. Desde el año de 1996 se iniciaron los estudios para determinar la presencia del Drenaje Acido en Las rocas del yacimiento de oro Crucitas. Para ello se realizaron pruebas en el material oxidado, roca fresca y los materiales de relaves o colas. Las pruebas incluyeron análisis Acido-Base estático (ABA), mineralogía/petrología y el análisis del tamaño de partículas y pruebas cinéticas, todas recomendadas por los mejores especialistas mundiales en la materia (el estudio inicial fue llevado adelante par Graham A. Johnson, P. Eng., y posteriormente los estudios fueron revisados por Richard Donald, PhD, P.Ag y Peter Pheeney, MSc.E,eng. de Jacques Whitford ltd. 2007). Se analizaron más de 380 muestras de roca, saprofita y colas que son representativos de todas las litologías presentes, además se analizaron materiales procesados o colas utilizando métodos de análisis de drenaje ácido estáticos, incluyendo el análisis ácido-base (ABA), análisis de celda húmeda y análisis mineralógicos y de metales totales.

Los resultados de los análisis de las muestras denotan que los minerales de sulfuros, tenderían a reaccionar bajo condiciones particulares y que existe presencia de minerales que neutralicen los procesos de acidificación en cantidades menores, además se encuentran presentes en niveles bajos los metales en yacimiento y en las colas. A pesar de la existencia de potencial de oxidación de sulfuros en la roca inerte y colas, un manejo apropiado debe ser implementado para aislar completamente la reacción con el aire, agua y sulfuros. La disposición de estos materiales (roca estéril y colas) bajo el agua anula por completo el potencial de generación de ácido. Manejo del Drenaje Acido propuesto: La roca estéril con potencial de drenaje ácido, proveniente de los tajos de Botijas y de Fortuna se depositará en el sector de laguna de relaves. Con el fin de prevenir la generación del drenaje ácido el material proveniente del proceso de obtención de oro, denominado “colas”, así como el material de roca fresca, será ubicado en forma sub-acuática, o sea totalmente sumergida bajo el agua, en el área de relaves, denominada “Laguna de Relaves”.

Durante la operación al agua de proceso se agregarán aguas de lluvia y escorrentía local, con lo cual se mantendrá un espejo de agua de aproximadamente 2 metros de espesor, cubriendo toda el área de relaves. Después del cierre del proyecto las colas de proceso van a permanecer bajo nivel de agua, con la profundidad de 1 metro, esta profundidad será controlada permanentemente por un vertedero ubicado en el dique principal de la represa de colas. Durante la operación de tajos se efectuará la evaluación de potencial de DAR de aguas filtradas por las paredes del tajo y se establecerá un monitoreo de DAR de filtraciones. Una explicación en detalle del sistema a utilizar se encuentra en el documento adjunto denominado “Manejo de Roca y de Colas Proceso con Potencial de Drenaje Acido”. Con base en la revisión detallada de diferentes escenarios de manejo de roca estéril y de las colas de proceso con potencial de drenaje ácido, se concluye que la reposición sub acuática de colas y de material estéril es el método más eficiente de manejo y de mitigación de potencial de evento de DAR.

Esta conclusión es concordante con las recomendaciones proporcionadas por William A. Price y John C. Errinqton, del Ministerio de Energía y minas de Canadá, quienes en 1998, publicaron “Guidelines for metal leaching and acid rock drainage at minesite in British Columbia”. La empresa le solicitó al Sr. Arauz una opinión sobre la forma en que se realizará el control de DAR en el desarrollo del proyecto, quien emitió una opinión profesional al respecto, indicando que el Proyecto Crucitas se ajusta a los requisitos técnicos y lineamientos recomendados por la US EPA y otros entes ambientales norteamericanos. La calidad de la información generada es de alto nivel y constituye una base sólida para la predicción del DAR y la elaboración de las medidas de mitigación. Las medidas de mitigación desarrolladas por los expertos y adoptadas por Industrias Infinito es la más adecuada.

La técnica de sumergir el material sospechoso de tener potencial de DAR debajo de una capa de agua quieta ha demostrado ser la más eficaz para evitar la generación de aguas ácidas. Esto se debe que a partir de esa profundidad, el intercambio de oxígeno entre la roca y el aire a través del agua es mínimo. Existen numerosos estudios y experiencias que así lo confirman (SRK Consulting, 1989). Concluye que la metodología propuesta por la empresa para manejar el potencial de drenaje ácido de la roca es la mejor, con lo cual se garantizará que no se producirá un daño al ambiente.

79- El 12 de febrero de 2009 el recurrente [Nombre 001] solicita que se le otorgue plazo para interponer acción (folio 1509).

80- El 13 de febrero del 2009, John Thomas y Arnoldo Rudín Arias, ambos en su condición de apoderados generalísimos de la empresa Industrias Infinito S.A. (folio 1533) manifiestan: El cianuro es la sustancia química elegida para recuperación de oro. Es uno de los pocos reactivos químicos que disuelven el oro en agua. Por razones técnicas y económicas, el cianuro es utilizado para la recuperación del oro del mineral. Las operaciones mineras utilizan soluciones muy diluidas de cianuro de sodio, típicamente entre 0.01% y 0.05% (100 a 500 partes por millón). La mayor parte del cianuro producido en el mundo se utiliza como compuesto de partida (básico) para la industria química. El cianuro se encuentra en muchas plantas y frutos que son de nuestro consumo diario. Así, entramos en contacto con el cianuro constantemente, pero este es eliminado por el hígado en la medida en que su concentración sea pequeña, y por tanto, no dañina.

No obstante, el cianuro es una sustancia “potencialmente” letal en la medida en que se use sin tomar las precauciones necesarias. El envenenamiento por cianuro dependerá de la cantidad a la que haya estado expuesta una persona, la forma de exposición y la duración de la misma. Dependiendo de ella se presentarán síntomas como respiración rápida, dolor de cabeza, náuseas, convulsiones, presión sanguínea baja, pérdida de la conciencia, entre otros. Sin embargo, es importante mencionar que estos síntomas no son únicos del envenenamiento con cianuro ni permiten identificar la presencia del mismo en nuestros organismos. Al igual que muchas de las otras sustancias químicas que se usan en nuestros procesos productivos, el conocimiento de los procedimientos adecuados, el uso de tecnologías modernas y eficientes, el respeto estricto a las normas de seguridad, así como una actitud responsable son fundamentales para el uso correcto del cianuro.

El cianuro no es persistente, ya que en la naturaleza se destruye por acción de la luz solar, descomponiéndose por oxidación en gases de carbono y nitrógeno. El nivel máximo de cianuro permitido en el agua potable es 0.2 partes de cianuro por millón de partes de agua (0.2 ppm). La Administración de Seguridad y Salud Ocupacional de EE. UU. (OSHA, por sus siglas en inglés) ha establecido un límite para el cianuro de hidrógeno y para la mayoría de las sales de cianuro de 10 partes de cianuro por un millón de partes de aire (10 ppm), en el aire del trabajo. Cianuro en el Proyecto Crucitas: El reactivo principal para lixiviar el metal de interés, el cianuro llegará a sus instalaciones en envases herméticamente sellados, de una tonelada cada uno, los cuales se dispondrán en una bodega especialmente habilitada y vigilada para ella. Los protocolos de control incluirán importantes medidas de seguridad que van desde el traslado, almacenamiento, manipulación del reactivo y controles en los procesos de lixiviación y de destrucción de cianuro (Cyplus, Combinox).

Tal como se señala en el anexo al estudio de impacto ambiental, en el apéndice 2-a, b Plan de Protección Ambiental, PM-PPA-100, se detalla el programa de manejo de desechos peligrosos, procedimiento PM­PPA-105 y en el anexo 3, manejo del cianuro en proyectos mineros. Sólo personal entrenado para la preparación de reactivos con todos los elementos de protección personal, llevará a cabo las labores de traslado y preparación dentro de las instalaciones. Destaca que se contratará un técnico con dedicación exclusiva para dar seguimiento al manejo y análisis del cianuro dentro del circuito. Las colas de lixiviación con cianuro (material resultante después de la extracción del oro), serán tratadas en un reactor de destrucción de cianuro de operación continua. El diseño del sistema de destrucción de cianuro se basó en especificaciones de operación y de sitio proporcionadas por Industrias Infinito S.A. a expertos internacionales, quienes con base en la información elaboraron el diseño de la planta.

Los procesos se realizarán en circuitos cerrados a fin de controlar todas las etapas del proceso, así la preparación de soluciones, aplicación, tratamiento y área de relaves, serán en espacios cerrados a fin de evitar cualquier contaminación al ambiente. Las condiciones de tratamiento y dosificación de reactivos han sido basadas en trabajos de laboratorio desarrolladas por personal de Cyplus sobre muestras proporcionadas por Industrias Infinito S.A. Se demostró que el proceso CombinOx® es el que produjo los mejores resultados, de tal forma que garantizan el cumplimiento de las normas ambientales nacionales e internacionales. Como conclusión sobre este tema, indica que la aplicación de la tecnología y procedimientos adoptados por su representada, garantizan que el cianuro no representa un riesgo para el ambiente.

81- El 13 de febrero del 2009, John Thomas y Arnoldo Rudín Arias, ambos en su condición de apoderados generalísimo de la empresa Industrias Infinito S.A. (folio 1563) manifiestan: Con base en los considerandos de la sentencia número 13246-08, se concluye que la restricción para la explotación, aprovechamiento o extracción del almendro se aplica en los siguientes presupuestos: I. Que el aprovechamiento afecte el hábitat (anidación) de la lapa, ii. Que el aprovechamiento afecte los sitios de alimentación de la lapa. iii. Que su sitio de anidación se localiza entre los ríos San Carlos y Sarapiquí. iv. Que cualquier aprovechamiento (maderero) del almendro debe efectuarse mediante resolución razonada técnica y jurídicamente. Refiere que las restricciones impuestas por la Sala Constitucional al aprovechamiento del almendro no tienen aplicación al caso del proyecto Crucitas, por lo que la corta de los árboles es legal.

Con base en estudios técnicos se define que el área donde se ubica esta especie (lapa verde), es básicamente el sector huetar norte entre la desembocadura del río Sarapiquí y el río San Carlos. Existen varias especies de árboles nativos que pueden albergar nidos de lapas, sin embargo, tanto por la coincidencia de la época de fructificación como por la existencia de cavidades que permiten su albergue, los árboles de almendro amarillo son los que preferiblemente son utilizados por la lapa verde. Hay varias consideraciones importantes para que estos árboles cuenten con condiciones apropiadas para ser puntos de anidación y estas son de que deben tener medidas diamétricas (DAP) mayores a 124 cm. En el área de cobertura forestal del proyecto Crucitas y a partir del estudio realizado por el Ing. forestal Rolando Barrientos, en promedio, las medidas diamétricas de los árboles de almendro que se encuentran dentro del área solicitada para corta son menores de 80 cm.

Las medidas diamétricas de algunos de los árboles talados no superan los 80 cm de DAP, validando la justificación de que no es un bosque primario y de que son individuos forestales remanentes de la extracción maderera de hace 30 o 40 años atrás. Adicionalmente estos estudios realizados de la lapa verde identifican claramente que los sitios de anidación se ubican fuera del área del proyecto Crucitas, por ello se adjuntan los mapas generados por Chassot, 2003 y se presenta un mapa resumen del mismo estudio (ver prueba documental número 123). Por otro lado, el estudio realizado por Bernardo Madriz, en el año 2004, verifica que las condiciones de anidación de la lapa verde en la zona huetar norte se mantienen similares, para ello se presenta un mapa (ver prueba documental N° 124). Por otro lado, si se evalúa la ubicación del proyecto en relación con las áreas protegidas de la zona, se verifica que el proyecto Crucitas no afectará ninguna de ellas ya que se encuentra a más de 15 km de distancia de estas zonas protegidas.

Indica que los estudios de línea base realizados para el Estudio de Impacto Ambiental del proyecto establecieron que las actividades a realizar por el proyecto no afectan la existencia de esta especie y además las medidas de mitigación y compensación generarán mejores condiciones para que puedan establecerse condiciones de hábitats apropiados para la fauna en general. b. Crucitas Sitio de Alimento de las Lapas: Dentro del área del proyecto el almendro de montaña (Dypterix panamensis) es una especie que existe, sin embargo, la época no reproductiva de la lapa, cuando se espera que los grupos de esta especie se dispersan hacia la zona, no coincide con la época de fructificación del almendro. c. Aprovechamiento maderero o comercial del almendro: La corta del almendro en el caso del Proyecto Crucitas se da como un fin accesorio, no con el fin de aprovechar comercialmente la madera.

La corta del almendro se da como consecuencia que para la construcción de las obras de infraestructura necesarias para el desarrollo del proyecto minero es necesario proceder a habilitar las zonas sin que cuenten las mismas con árboles, es decir, necesitan limpiar el área. Los árboles cortados que resultan del cambio de uso -debidamente identificados en la resolución que otorgó el permiso de corta- serán vendidos a aserraderos existentes en el área de influencia del proyecto con el fin de reactivar a zona. Los dineros recaudados por la venta de los árboles serán donados a la Asociación Pro Desarrollo del Parque Nacional Juan Castro Blanco, (APANAJUGA), asociación que vela por la protección y conservación del Parque Juan Castro Blanco. La importancia del Parque Juan Castro Blanco radica en que el 60% de la producción de la leche de Costa Rica se produce en San Carlos y el 80% de esa producción necesita agua del Parque Juan Castro Blanco.

Este parque cuenta con tres volcanes, Volcán Viejo, Volcán Platanar, Volcán Porvenir. Este parque abastece de agua potable a cantones como: San Carlos, Alfaro Ruiz, Valverde Vega y Naranjo. Refiere que estima que la suma de dinero que se donará a APANAJUCA es aproximadamente US $ 700,000.00. d. Permiso de Corta bajo la modalidad Cambio de Uso: La empresa incorporó el tema del cambio de uso en el Estudio de Impacto Ambiental y su Anexo presentado y aprobado por la SETENA. La SETENA en su resolución 2351-2006-SETENA, confirmó lo indicado en relación a la naturaleza del bosque existente en las propiedades de su representada. SETENA le solicitó a la empresa un inventario (Muestreo), de los bosques a intervenir, especialmente de los Cerros Botija y Fortuna. Los datos dasométricos aportados por la empresa en el anexo, cumplen con lo solicitado por la SETENA, confirmando la tesis preliminar que se trata de bosques naturales intervenidos a juzgar por los volúmenes, área basal, número de árboles por hectárea obtenidos, así como la composición florística involucrada.

Según el citado anexo, la composición florística de estas parcelas, muestra algunas especies amenazadas, tal es el caso del Tostado y Cola de Pavo, los cuales por lo general aparecen con muy poca frecuencia y abundancia relativa o representatividad. Se indica que para estos casos la empresa tomará las acciones que señale el Área de Conservación Huetar Norte como medidas de mitigación o compensación. En la resolución número 2351-2006-SETENA que responde los cuestionamientos técnicos presentados por los recurrentes del presente recurso de amparo, al otorgamiento a la viabilidad ambiental, la SETENA se refiere al tema forestal, al cambio de uso y los aspectos biológicos. Indica que ninguno de los presupuestos que utiliza la Sala Constitucional para prohibir la corta de los almendros se aplica al proyecto Crucitas. El proyecto cumplió con todos los presupuestos fácticos (exclusión como lugar de anidación y alimento de la lapa) y jurídicos (no aprovechamiento con fines comerciales y contando con las valoraciones técnicas de los órganos técnicos) para que se le permitiera la corta del almendro amarillo. 3.

Régimen de Cambio de Uso — Régimen de Excepción: Conforme lo establece la Ley Forestal número 7575, el principio que rige el aprovechamiento forestal de terrenos propiedad privada cubiertos de bosque es la prohibición de cambio de uso del suelo y las limitaciones de uso (incluido el aprovechamiento forestal) en el caso de las áreas de protección descritas en los artículos 33 y 34 de la Ley. Bajo esta regla general el manejo forestal de los bosques en propiedad privada del país permite su aprovechamiento sostenible y es común a la opinión pública en el país el trámite de permiso en terrenos de bosque con planes de manejo forestales (Ver el artículo 1 de la Ley 7575). La excepción a la regla está contenida en la misma Ley Forestal, dado que el legislador, consciente de las posibles situaciones que se presentarían, dejó previsto el instrumento jurídico para que el Poder Ejecutivo (a través de la Administración Forestal del Estado) pudiera otorgar los permisos de cambio de uso del suelo en terrenos propiedad privada para aquellas obras o proyectos que fueran declarados de interés público y conveniencia nacional, declaratoria que además permite la eliminación de árboles en áreas de protección definidas en el artículo 33 de la Ley Forestal, que es precisamente lo que hizo, en el caso de la concesión minera de Las Crucitas, el decreto cuestionado. 4.

Compensación por la corta de los árboles: Un aspecto fundamental de la solicitud de cambio de uso es la propuesta, evaluación y resultado de la compensación propuesta por la solicitud de corta de 191 hectáreas de bosque intervenido en el proyecto. Este análisis es el que define las condiciones de proporcionalidad y razonabilidad de la corta que deben superar en gran medida el impacto potencial de talar esas 191 hectáreas de bosques intervenidos y “descremados” en el proyecto Crucitas. Dentro de las medidas de compensación propuestas y establecidas como compromisos ambientales para el plan de corta están: i. Reforestación de 382 has de potrero a bosque natural, actualmente ya se han reforestado 16 hectáreas de potreros con los árboles provenientes del vivero forestal del proyecto. ii. Mantenimiento de un vivero forestal con especies nativas, en la actualidad se cuenta con más de 67 500 árboles nativos que fueron extraídos como brinzales de las áreas que se ubican dentro del plan de corta.

Adicionalmente existen árboles de zotacaballo para revegetación de taludes y áreas de protección de cauces. iii. Se mantendrán como bosque natural que ya existen, en las más de las 800 hectáreas de cobertura boscosa que no serán utilizadas para el proyecto y que forman parte de las 1474 hectáreas de propiedades con que cuenta la empresa Industrias Infinito. iv. Se sembrarán 50 árboles por cada árbol cortado, y por cada almendro se sembrarán 100 en las áreas a reforestar que comprenden 382 hectáreas y que albergarán un desarrollo de bosque natural con la siembra de más de 600.000 árboles nativos. v. Se mantendrá un monitoreo biológico y forestal tal que verifique la regeneración de las áreas a reforestar para un desarrollo de hábitats efectivos que permitan la conexión de sectores boscosos en forma continua y mitiguen la fragmentación de hábitats existentes. vi. Se conformará un corredor biológico que permitirá la movilidad de especies con transferencia genética de flora y fauna. vii.

Se depositará un monto por $250 000 (doscientos cincuenta mil dólares americanos) a un fideicomiso del MINISTERIO DE AMBIENTE, ENERGÍA Y TELECOMUNICACIONES, con el fin exclusivo de compra de terrenos en alguna zona protegida de la región de San Carlos. Se apoyará a las comunidades con parte de la madera recogida en la corta para necesidades de la población. ix. Las utilidades esperadas con la venta de la madera que asciende aproximadamente a $1.000.000 (un millón de dólares americanos) será depositada en el fideicomiso existente de APANAJUCA, que es la Asociación del Parque Nacional Juan Castro Blanco cuyo objetivo único es la compra de terrenos privados para conservación del Parque Nacional, también conocido en San Carlos como el parque del Agua, y que actualmente tiene más del 90 % de su área bajo propiedad privada. Con fundamento en todo lo anterior, concluye que la corta de los almendros, con fundamento en el permiso de corta de árboles bajo la modalidad del cambio de uso (artículo 19 de la Ley Forestal) es constitucional y legal, con base en nuestro ordenamiento jurídico.

82- El 13 de febrero del 2009, John Thomas y Arnoldo Rudín Arias, ambos en su condición de apoderados generalísimos de la empresa Industrias Infinito S.A. (folio 1577) se manifiestan respecto a los informes rendidos por diversos profesores de la Escuela de Geología de la Universidad de Costa Rica en relación con el proyecto. Indican que un inicio que SETENA solicitó informes a esta Universidad de los cuales no puso en conocimiento a la empresa de los mismos, razón por la cual interpusieron un recurso de amparo que fue declarado con lugar según sentencia número 2004-9220. Cuando tuvieron oportunidad de manifestarse, la Escuela de Geología señaló que lo enviado era el criterio de tres profesionales pero no la posición institucional. SETENA pidió un anexo al Estudio en el cual se dio respuesta a cada uno de los profesores. Con relación al profesor Rivera (2002), se trata de un informe desde la perspectiva de la Norma ISO 14001 lo cual es absurdo, ya que dicha norma es para proyectos en operación mientras que un estudio de impacto ambiental es un estudio predictivo por naturaleza, por lo que se deben considerar los impactos potenciales, pero nunca reales como él afirma.

La certeza de los impactos es desconocida, solamente se les puede considerar dentro del rango entre muy probables o poco probables. Refiere que en todo caso las observaciones expuestas tanto por el profesor Rivera como Astorga fueron subsanadas en el anexo presentado al estudio de impacto ambiental. El informe del profesor Gabriel Segura resultó positivo al proyecto determinando que éste era ambientalmente viable, sin embargo no fue tomado en consideración por SETENA en aquel momento.

83- El 13 de febrero del 2009, John Thomas y Arnoldo Rudín Arias, ambos en su condición de apoderados generalísimo de la empresa Industrias Infinito S.A. (folio 1602) manifiestan que los argumentos presentados por el recurrente constituyen vicios que no se dirigen en contra del decreto y permiso de corta, sino de la disposición que le da sustento (artículo 19 de la Ley Forestal), sobre lo cual la Sala se pronunció en el expediente número 05-16376. Indican que el proyecto Crucitas cumple con todos los permisos y los requerimientos que disponen un uso racional de los recursos y los beneficios económicos y sociales correspondientes, fundamentado en Estudios de Factibilidad revisados en la Dirección de Geología y Minas. La actividad minera es declarada de conveniencia nacional y de utilidad pública de conformidad con el artículo 3 del Reglamento a la Ley Forestal y 6 del Código de Minería.

84- El 17 de febrero del 2009, John Thomas y Arnoldo Rudín Arias, ambos en su condición de apoderados generalísimo de la empresa Industrias Infinito S.A. (folio 1615) manifiestan con relación a la lapa verde que la empresa realizó un inventario de las especies de aves presentes en el Proyecto, donde se recolectaron datos de campo para poder evaluar aspectos ecológicos como la diversidad, abundancia y hábitats presentes en el lugar. Además se hizo una revisión de bibliografía que se utilizó, siendo la más actualizada. Se concluyó que la avifauna de la zona, principalmente aquella asociada a hábitats boscosos, presenta una abundancia de especies y de individuos relativamente baja. Uno de los factores que mayor influencia puede tener en esto lo constituye la alteración que sufrió la zona en el pasado por una extracción selectiva de especies forestales con importancia maderable.

Asimismo, otros biólogos indicaron que la lapa verde no de depende exclusivamente del árbol de almendro amarillo para su alimentación, sino de 36 especies más de flora que incluyen plantas leñosas y no leñosas. La lapa verde no depende exclusivamente de la zona de las Crucitas para su alimentación. La mayor zona de alimentación de la lapa verde lo compone la zona del Refugio Nacional de Vida Silvestre Maquenque. Además de otras áreas como las que se localizan en las tierras bajas del Atlántico cerca del Puerto Viejo de Sarapiquí y Chilamate, a lo largo de la costa en Tortuguero, así como en las faldas de la cordillera Volcánica Central y Tilarán, donde llegan hasta alturas de 1.000 m y ocasionalmente cruzan la división continental hacia las faldas del Pacífico. Por otro lado, la lapa verde no anida exclusivamente en árboles de almendro amarillo, tampoco anida en la zona de Crucitas.

Tampoco esta zona es exclusiva como ruta de paso para la migración de lapas verdes. El proyecto minero no interrumpirá el proceso de reproducción de las 25 parejas o 35 parejas de lapas verdes que anidan en la reserva Maquenque, porque hay suficientes árboles de almendro y titor en el área donde anidan. Por ello es que la corta de los árboles autorizados tampoco interrumpirá el ciclo de alimentación de la lapa verde. Dentro de las propiedades del proyecto minero se realizó un censo de los árboles de almendro amarillo y hay 521 árboles adultos que no se cortarán. Además, como ya fue indicado la lapa verde no se alimenta sólo del almendro amarillo sino también de 36 especies de frutos más.

85- El 17 de febrero del 2009, John Thomas y Arnoldo Rudín Arias, ambos en su condición de apoderados generalísimo de la empresa Industrias Infinito S.A. (folio 1660), reiteran las manifestaciones que ya han realizado con relación al almendro amarillo, haciendo alusión además a otros aspectos del tema forestal. Indican que según estudios realizados por diversos ingenieros se llegó a determinar que en el área a desarrollar en el Proyecto Minero el bosque es secundario y primario intervenido. Los resultados de dichos estudios determinaron diferentes tipos de bosque: Bosque primario de ladera y de planicie que en total sumaron un porcentaje de 5,6%, el cual se encuentra localizado fuera del proyecto Minero Crucitas, Bosque primario intervenido tanto de ladera como de planicie que sumados presentan un porcentaje de 52%, bosque secundario con 6.9%, el resto del área en estudio corresponde a charrales, usos agrícolas y plantaciones forestales, lagunas e infraestructura (35.3%).

Según estos estudios el plan de mitigación y compensación del componente forestal propuesto para el proyecto cumple con los fundamentos de racionalidad y proporcionalidad, ya que de acuerdo al análisis realizado se plantea la siembra de 611.392 árboles en un área de 382 hectáreas de potrero versus la corta de 11.427 árboles en un área de 262 hectáreas (cobertura boscosa y potrero). Además de la recuperación de 55,3 hectáreas del Área de Desarrollo, que involucra la siembra de 88.480 árboles más. Esto quiere decir que se sembrarán aproximadamente sesenta y un árboles por cada uno que se corta. Se dará un aumento de cobertura boscosa en el área del proyecto de 277,41 hectáreas con respecto al área de bosque actual, o sea pasa del 65% a 84% del total del AP. En el área del proyecto no se detectaron bosques de tipo primario, por lo contrario la cobertura boscosa se clasifica como muy intervenida (bosques aprovechados por la actividad maderera) o secundaria (áreas que fueron potreros o charrales y que se regeneraron naturalmente).

En sitios aledaños al área del proyecto se observaron áreas boscosas de igual categoría. Fue muy importante que en el Plan de Compensación se establecieran áreas de Corredor Biológico, lo cual evita la fragmentación de la cobertura boscosa tanto en el área de proyecto como entre el AP y los sectores aledaños. Refieren que de la documentación revisada se concluyó que la especie de avifauna lapa verde no será afectada por la corta de los 197 árboles de almendro amarillo localizados en el área de Desarrollo, ya que no es un cantidad significativa en comparación con la existencia de esta especie tanto en el área del proyecto como en la Región Huetar Norte.

86- En escrito de fecha 17 de febrero de 2009, Roy Ramírez manifiesta que tiene derecho a un ambiente sano (folio 1721).

87- El 30 de octubre del año pasado Adriana Calvo Aguilar, mayor, soltera, con cédula 1-981-719, presentó el recurso de amparo que se tramita en expediente número 08-0014706-007-CO (folio 1722) en el que cuestiona la constitucionalidad del decreto Ejecutivo número 34801-MINAET por haberse excedido el Poder Ejecutivo en sus potestades, por haber autorizado la tala de árboles en peligro de extinción y por resultar arbitrario al autorizar la actividad minera en dicha zona. que no está conforme con el Proyecto Minero Las Crucitas, en Cutris de San Carlos. Refiere que dicho proyecto fue señalado como de interés público -por medio de Decreto Ejecutivo-, sin considerar las especies arbóreas en peligro de extinción como es el caso del Almendro. Sostiene que el cuestionado decreto basó su autorización de tala de especies vedadas en sentencia de la Sala Constitucional número 2002-002486 de las diez horas y cincuenta y cuatro minutos del 08 de marzo del 2002, en este caso del almendro, en los artículos 19 y 34 de la Ley Forestal.

Indica que de los artículos citados se desprende que se podrá cambiar el uso de suelo para proyectos que tengan conveniencia nacional, sin embargo, el régimen de protección de las especies de almendro que se encuentran en la zona del Proyecto Minero Las Crucitas no es por regulación de uso de suelo, por lo que la resolución citada tiene un carácter erga omnes, y sólo puede ser modificada por la misma Sala Constitucional y no por Decreto Ejecutivo. Señala que analizando los artículos utilizados por el Poder Ejecutivo en el Decreto mencionado, se evidencia que se utilizó una interpretación propia de la ley, incurriendo en atribuciones no propias a su naturaleza, por lo que sólo utiliza partes de los artículos, no los contextualiza y no utiliza las definiciones que el artículo 33 establece para la aplicación del artículo 34 de la Ley Forestal. Manifiesta que las especies de árboles vedadas que se encuentran en esta zona no recaen bajo ninguno de los supuestos que establece el artículo 33 de la Ley citada, por lo tanto tampoco son sujetos de los supuestos del artículo 34, por lo que es evidente el quebrantamiento del artículo 11 de nuestra Carta Magna al atribuirse, los funcionarios públicos responsables de este decreto, facultades que no poseen al interpretar la ley, y además la ruptura del principio constitucional que es el Principio de Legalidad, por cuanto el fin que se pretende alcanzar con este decreto no se puede fundamentar con las leyes utilizadas para hacerlo.

Refiere que el decreto basó su declaratoria de interés público y conveniencia nacional en datos expuestos en el punto VII del Considerando, que establece que la mina tendrá una vida útil de 11 años, la cual creará un desarrollo en las comunidades cercanas a las Crucitas y necesitará mano de obra, pero no contempla este criterio que al finalizar la vida útil de la mencionada mina de oro, la zona quedará completamente inutilizada para realizar otro tipo de actividades económicas, pues por la naturaleza de la minería a cielo abierto, implica la total destrucción del área utilizada, no cumpliendo así con la garantía que el Estado debe brindar al ciudadano de un ambiente sano y ecológicamente equilibrado al que se refiere el numeral 50 de la Carta Magna, también a largo plazo deniega el derecho al trabajo de los actuales y futuros residentes de la zona donde se localiza el Proyecto citado.

Aduce que las especies que se encuentran en esta zona están sometidas a un régimen de protección distinto al que mencionan los artículos base de ese decreto y que su contenido es contrario a derecho y por ende resulta ilegal, motivo por el cual, solicita a la Sala se declare con lugar el recurso, declarándosele nulo, debiéndose dejar sin efecto todas las resoluciones otorgadas a la luz del mismo. Solicita que se declare con lugar el recurso 88- Por resolución número 16790 de las doce horas y siete minutos del siete de noviembre del dos mil ocho se acumuló el amparo 08-014706-0007-CO a este expediente (folio 1733).

89- [Nombre 051], mayor, casado, con cédula [Valor 003], vecino de Paso Ancho presenta el recurso de amparo 08-015072-0007-CO (folio 1737), en el cual indica que no está conforme con el Proyecto Minero Las Crucitas, en Cutris de San Carlos. Refiere que dicho proyecto fue señalado como de interés público -por medio de Decreto Ejecutivo-, sin considerar las especies arbóreas en peligro de extinción como es el caso del almendro. Sostiene que el cuestionado decreto basó su autorización de tala de especies vedadas por sentencia de la Sala Constitucional, número 2002-002486 de las diez horas y cincuenta y cuatro minutos del 08 de marzo del 2002, en este caso del almendro, en los artículos 19 y 34 de la Ley Forestal. Indica que de los artículos citados se desprende que se podrá cambiar el uso de suelo para proyectos que tengan conveniencia nacional, sin embargo, el régimen de protección de las especies de almendro que se encuentran en la zona del Proyecto Minero Las Crucitas no es por regulación de uso de suelo, por lo que la resolución citada tiene un carácter erga omnes, y sólo puede ser modificada por voto de la misma Sala Constitucional y no por Decreto Ejecutivo.

Señala que analizando los artículos utilizados por el Poder Ejecutivo en el Decreto mencionado, se evidencia que se utilizó una interpretación propia de la ley, incurriendo en atribuciones no propias a su naturaleza, por lo que sólo utiliza partes de los artículos, no los contextualiza y no utiliza las definiciones que el artículo 33 establece para la aplicación del artículo 34 de la Ley Forestal. Manifiesta que las especies de árboles vedadas que se encuentran en esta zona no recaen bajo ninguno de los supuestos que establece el artículo 33 de la Ley citada, por lo tanto tampoco son sujetos de los supuestos del artículo 34, por lo que es evidente el quebrantamiento del artículo 11 de nuestra Carta Magna al atribuirse, los funcionarios públicos responsables de este decreto, facultades que no poseen al interpretar la ley, y además la ruptura del principio constitucional que es el Principio de Legalidad, por cuanto el fin que se pretende alcanzar con este decreto no se puede fundamentar con las leyes utilizadas para hacerlo.

Refiere que el decreto basó su declaratoria de interés público y conveniencia nacional en datos expuestos en el punto VII del Considerando, que establece que la mina tendrá una vida útil de 11 años, la cual creará un desarrollo en las comunidades cercanas a las Crucitas y necesitará mano de obra, pero no contempla este criterio que al finalizar la vida útil de la mencionada mina de oro, la zona quedará completamente inutilizada para realizar otro tipo de actividades económicas, pues por la naturaleza de la minería a cielo abierto, implica la total destrucción del área utilizada, no cumpliendo así con la garantía que el Estado debe brindar al ciudadano de un ambiente sano y ecológicamente equilibrado al que se refiere el numeral 50 de la Carta Magna, también a largo plazo deniega el derecho al trabajo de los actuales y futuros residentes de la zona donde se localiza el Proyecto citado.

Aduce que las especies que se encuentran en esta zona están sometidas a un régimen de protección distinto al que mencionan los artículos base de ese decreto. Estima que el contenido de dicho Decreto es contrario a derecho y por ende resulta ilegal, motivo por el cual, solicita a la Sala se declare con lugar el recurso, declare nulo dicho Decreto, y deje sin efecto las resoluciones otorgadas a la luz del mismo.

90- Por resolución 16933 de las ocho horas y cincuenta minutos del once de noviembre del dos mil ocho se acumuló el amparo 08-015072-0007-CO a este expediente (folio 1747).

91- El 26 de febrero del año en curso, Roberto Dobles Mora en su condición de Ministro del Ministerio de Ambiente, Energía y Telecomunicaciones se apersona a ampliar sus argumentos de descargo (folio 1751). Indica que el decreto cuestionado es legal y constitucional, pues respeta los límites de la ciencia y de la técnica, está respaldado por estudios técnicos realizados y aprobados por SETENA. Con relación al almendro amarillo como explotación comercial refiere que los recurrentes citan mal los antecedentes 2008-13426, 2002-2486, dado que se trataba de circunstancias muy diversas, no de cortar árboles, sino de explotar el almendro para fines comerciales. El antecedente más vinculado con el presente sería la sentencia 2005-5790 respecto a la Mina Bellavista. Refiere que para desarrollar una mina es necesario cortar los árboles, lo cual causa el cambio de uso del suelo y ésta es posible si se dicta una declaratoria de conveniencia nacional.

Para tomar esa decisión se requiere haber aprobado el estudio de impacto ambiental y haber obtenido la concesión minera, posteriormente es que se otorga el permiso forestal. Asimismo fueron valorados otros estudios adjuntos. A partir de ello se formó una Comisión Interdisciplinaria conformada por SETENA, la Dirección de Geología y Minas, el SINAC y la asesoría jurídica del Ministerio de Ambiente, Energía y Telecomunicaciones en coordinación con el Viceministro, comisión que valoró las medidas de compensación y mitigación que constan en el expediente y que dieron lugar a la viabilidad ambiental. Asimismo, indica que la Sala ya convalidó los artículos 19.b y 34 de la Ley Forestal y 2 del Reglamento a la Ley Forestal en la sentencia número 2006-17126. Refiere que el código de minería declara la actividad como de utilidad pública en el artículo 6. Señala que esta es la norma general aplicable, la declaratoria de conveniencia nacional para cada sitio en particular es el instrumento de materialización de esa norma para el caso concreto.

En la sentencia 2004-13414 la Sala anuló la resolución que le otorgó la concesión de explotación minera a la empresa recurrida porque no existía un estudio de impacto ambiental, lo cual fue saneado con posterioridad. Fueron tomados en cuenta aspectos relacionados con los beneficios económicos generados de proyecciones y estudios serios (no a meras especulaciones como indica el recurrente) aportados a los expedientes administrativos del proyecto. Se analizaron los que para efecto de esta administración están en dos sedes (SETENA y Dirección de Geología y Minas) sin dejar de indicar el tercer expediente de la AFE relacionado con el permiso forestal. En el expediente consta certificación de la SETENA oficio SG-ASA-259-2008 de fecha 10 de octubre de 2008 donde establece que la Evaluación Ambiental ha contemplado el análisis del beneficio en relación con el costo ambiental del proyecto y que cumple con el Balance del Costo Ambiental y Social.

Pero esa no es la única fundamentación del acto, todos los argumentos del recurrente son temas ampliamente estudiados, la valoración del costo socio ambiental del cambio de uso del suelo está considerada en la evaluación ambiental realizada por la SETENA, no es en el decreto como instrumento jurídico que se incluyen los estudios científicos que se realizaron para valorar el tema, para eso se hace la mención expresa de que el proyecto cuenta con la viabilidad ambiental, misma que está compuesta de amplísimos elementos y estudios, sin que ello invalide el acto. No es con el decreto que el Estado viene a darse cuenta del cambio de uso, ni de la corta de especies vedadas, este es un aspecto técnico conocido y estudiado. Estima que el Decreto Ejecutivo 34801-MINAET es constitucionalmente válido, porque fue precedido de un largo y prolijo estudio de impacto ambiental. La Ley Orgánica del Ambiente establece los siguientes criterios, para la aprobación de un proyecto productivo que deben observarse de previo al otorgamiento de una concesión minera: a) La relación adecuada entre el uso potencial y la capacidad económica del suelo y el subsuelo; b) El control de prácticas que favorezcan la erosión y otras formas de degradación; c) Las prácticas u obras de conservación de suelos y aguas que prevengan el deterioro del suelo (artículos 53 y 54).

La normativa establece que para poder declararse conveniencia nacional a un determinado proyecto debe existir un balance positivo que analice costos socio ambientales en relación con beneficios socioeconómicos. El balance deberá hacerse mediante los instrumentos apropiados. En el expediente de trámite de la declaratoria de conveniencia DAJ-077-08, consta el Oficio SG-ASA-259-2008, que establece que la evaluación ambiental ha contemplado el análisis del beneficio en relación con el costo ambiental del proyecto y que es positivo el Balance del Costo Ambiental y Social. Aunado a ello, el Decreto número 32966-MINAE, correspondiente al Manual de Instrumentos Técnicos para el Proceso de Evaluación de Impacto Ambiental (Manual de estudio de impacto ambiental)- Parte IV, estipula en su Anexo 2, la metodología mínima que permite valorar los impactos ambientales generados por un proyecto, obra o actividad.

El desarrollo metodológico para la valoración de impactos, estipula el uso de una Matriz de Importancia de Impactos Ambientales (MIIA), que permite determinar los efectos del proyecto y su significancia, y por consiguiente plantear las medidas de prevención, mitigación y compensación correspondientes. Aclara que la emisión del Decreto Ejecutivo número 34801-MINAET se hizo una vez presentado el Estudio de Impacto Ambiental del Proyecto Minero Crucitas. Este estudio incorpora una matriz de interacción que permitió la valoración de los impactos ambientales, tal como se puede constatar en las páginas 301-429 de su Volumen II. A la vez el documento denominado Evaluación Ambiental de Cambios Propuestos al Proyecto presentado el seis de diciembre del dos mil siete, constituyó una actualización de MIIA en las páginas 32-53. La MIIA es una herramienta mundialmente aceptada para la valoración cualitativa de proyectos que presentan instrumentos de evaluación ambiental, incluidos los Estudios de Impacto Ambiental (EsIA).

Ayuda a determinar el efecto de cada acción impactante sobre cada factor y aspecto ambiental impactado, incluido el componente social y económico, con lo cual se determina la importancia del impacto. La importancia del impacto está en función tanto del grado de incidencia o intensidad de la alteración producida, como de la caracterización del efecto, el cual responde a su vez a una serie de atributos de tipo cualitativo, tales como intensidad, extensión, tipo de efecto, plazo de manifestación, persistencia, reversibilidad, capacidad de recuperación, sinergia acumulación, periodicidad, importancia. Tal trascendencia, es representada mediante un modelo matemático, el cual toma valores entre 13 y 100; los impactos con valores de importancia inferiores a 25 son irrelevantes o sea, compatibles, o bien las medidas ambientales se contemplaron en el diseño del proyecto; los impactos moderados presentan una importancia entre 25 y 50.

Serán severos cuando la importancia se encuentre entre 50 y75 y críticos cuando el valor sea superior a 75. La matriz permite la interacción de los factores socioeconómicos con los demás componentes ambientales, que necesariamente deben ser analizados, lo cual permite a su vez plantear las medidas preventivas, de mitigación y compensación respectivas que son incorporadas al Pronóstico-Plan de Gestión Ambiental (P-PGA). Una vez aprobado el P-PGA con las medidas correspondientes, su ejecución se convierte en un compromiso ambiental que debe ser asumido por el desarrollador. Para el caso específico del Proyecto Minero Crucitas, la MIIA incorpora en el análisis del ámbito socioeconómico elementos como uso de la tierra, características de la población necesidades de poblados en áreas de influencia directa e indirecta y empleo entre otros, donde los valores obtenidos arrojan un resultado positivo para el desarrollo del proyecto, por lo que se prevé en términos generales un aumento en la calidad de vida y un impacto positivo en la economía local.

En este sentido, y a manera de ejemplo, se puede constatar en las páginas 45-46 de la Evaluación Ambiental de Cambios Propuestos para el Proyecto Minero Crucitas, que dentro de los impactos considerados como severos se encuentran la afectación de la calidad de vida con un puntaje de +68 y la generación de empleo e ingreso también con un puntaje de +68; en ambos casos el impacto es positivo, por lo que no se proponen medidas de mitigación adicionales a todas las ya contempladas en el instrumento correspondiente. El documento Evaluación Ambiental de Cambios Propuestos al Proyecto, aprobado mediante Resolución 170-2008-SETENA del cuatro de febrero del dos mil ocho, determina que todos los impactos identificados como severos y críticos en el ámbito socioeconómico, fueron positivos para el desarrollo del proyecto y su ambiente circundante. Por último, la Sala Constitucional ha declarado que no le compete revisar todos los informes y estudios científicos y técnicos necesarios para aprobar un Estudio de Impacto Ambiental.

Es por ello que solicitan que sea declarado que todos los permisos fueron otorgados conforme a la ley y que la Sala Constitucional no revisará de nuevo todo el Estudio de Impacto Ambiental. Reiteran que los científicos que intervinieron en el proyecto minero Las Crucitas durante el proceso de obtención de permisos y autorizaciones, todos concluyeron que el proyecto cumplía y cumple la ley y además se ajustaba a las normas unívocas de la ciencia y de la técnica aplicable. Indica que las investigaciones hechas por científicos para la aprobación del Estudio de Impacto Ambiental por SETENA, permitió estudiar todos los aspectos ambientales del proyecto y por ello la viabilidad ambiental y la declaración de conveniencia nacional fueron correctamente dictados. Sin embargo, ante los cuestionamientos hechos por los recurrentes y para los efectos de estos recursos de amparo, el caso fue sometido por el Ministerio de Ambiente, Energía y Telecomunicaciones a diferentes científicos con el objeto de hacer una auditoría o evaluación profesional y comprobar si era confiable la información que existía en el momento de dictarse el Decreto Ejecutivo N° 34801-MINAET.

El resultado es de nuevo positivo como se expone a continuación. El informe preparado por los biólogos 0livier Chassot y Giselle Monge Arias, los máximos expertos en biología de la lapa verde claramente concluye que el proyecto minero Las Crucitas no interrumpirá el proceso de reproducción de la lapa verde, ni interrumpirá el ciclo anual de alimentación de la lapa verde. El informe dice que durante el período más critico de reproducción (octubre-febrero), la lapa verde se alimenta en un 74.4% de los frutos del Almendro Amarillo. La Lapa Verde no se reproduce en áreas donde la abundancia de Almendro Amarillo es baja o inexistente. Durante el período post-reproductivo (marzo ­noviembre), en el cual hay menos, poca, muy poca o nula disponibilidad de frutos de Almendro Amarillo, la Lapa Verde se alimenta principalmente de Titor (Sacoglottis - trichogyna) y en algunos meses del año (septiembre) cuando hay poca disponibilidad del almendro Amarillo y Titor, hasta de treinta y cinco otras diferentes especies.

Concluyen que la lapa verde depende totalmente de una combinación de almendro amarillo y de titor para alimentarse durante todo un año culminar su ciclo reproductivo. La población de lapa verde hace uso de un extenso territorio compartido entre Nicaragua-Reserva Biológica lndio-Maíz y su zona de amortiguamiento en los municipios de El Castillo, San Juan de Norte, así como con la Región Autónoma del Atlántico Sur y Costa Rica (parte de los cantones de San Carlos, Sarapiquí y Pococí). Por lo tanto, la extensión geográfica en la cual la lapa verde conduce sus actividades de forrajeo, estimada en 1.275.621 hectáreas supera el área de influencia del proyecto minero Las Crucitas (aproximadamente 1.500 hectáreas). La información de anidamiento que han recopilado indica que la Lapa Verde anida en un 87% en árboles maduros de Almendro Amarillo (N=66) que presentan cavidades aptas para el tamaño corporal de la Lapa Verde (DAP promedio de 129 cm).

Por lo tanto, existe una fuerte relación de dependencia de la Lapa Verde con la disponibilidad de árboles de almendro Amarillo. EI nido más cercano de Las Crucitas se encuentra a 8,7 Km. Posiblemente las Crucitas no forman parte de la zona de anidamiento de la Lapa Verde, debido a la alta fragmentación del hábitat en esta zona y la falta de árboles maduros de Almendro Amarillo. Debido a que Las Crucitas se encuentra fuera del rango de reproducción de la Lapa Verde, el proceso de reproducción de la población de esa especie no será interrumpido. El ciclo de alimentación de los individuos de Lapa Verde que visitan la zona de influencia Las Crucitas será afectada, debido a la remoción de una­ cantidad significativa de árboles de Almendro Amarillo, por lo que es probable que la visitación de Lapa Verde en la zona del proyecto minero disminuya en los próximos años debido a la extracción de árboles de Almendro Amarillo y a los disturbios producidos por la actividad humana intensa en el área de extracción de oro.

El cambio de uso del suelo en 192 hectáreas del proyecto minero en Las Crucitas no interrumpirá el ciclo alimenticio de la población de Lapa Verde que anida en el RNVSM Maquenque, el cual se encuentra a 8,1 kilómetros. Sin embargo, el proyecto minero podría provocar un desplazamiento de la población de Lapa Verde que visita la zona de Las Crucitas, posiblemente hacia el RNVSM Maquenque donde tendrá que competir con otras especies para el acceso a fuentes de alimentación. Estima que las conclusiones de los científicos Chassot y Monge son incuestionables. El proyecto minero Las Crucitas no interrumpirá el ciclo de reproducción de la lapa verde ni interrumpirá el ciclo anual de alimentación de la lapa verde. Por ello, no existe peligro para esa especie. Esta tesis es corroborada por otro científico que objetivamente ha estudiado el tema para estos casos de amparo. Con relación a la protección del árbol de almendro amarillo, el informe de los científicos Dr. Olman Murillo, M.S.c Braulio Vilchez e Ing. Yorleny Badilla, de la Escuela de Ingeniería Forestal del Instituto Tecnológico de Costa Rica, de Febrero del año en curso, concluye que la eliminación de 196 árboles de un total de poco más de 700 individuos de almendro (Dipteryx panamensis) no significan un deterioro significativo de la posibilidad de alimentación de la lapa verde (Ara ambigua).

También concluyen que la eliminación de población de poco más de 700 individuos, implica la permanencia de más de 500 individuos, que significa un tamaño de población efectivo suficiente para garantizar su variabilidad genética y descartar cualquier grado de amenaza en las próximas generaciones. Existe una base científica sólida y de validación de la información sobre los bosques de la propiedad de Industrias Infinito SA., que sustenta la propuesta del plan de manejo y mitigación formulada por los técnicos de la empresa para el proyecto Minero Crucitas. Los bosques existentes en la propiedad de la empresa Industrias Infinito en la zona de Las Crucitas, con base en su estructura y composición, deben ser técnicamente considerados como bosques secundarios en su gran mayoría, y en una proporción menor, bosques primarios fuertemente intervenidos, causado por el proceso de madereo que sufrieron aproximadamente treinta años atrás.

Los bosques secundarios que hay se pueden apreciar en la propiedad en mención, fueron en realidad potreros para la producción ganadera hace treinta o treinta y cinco años atrás. La eliminación de las 92 hectáreas de bosques secundarios a favor de la concesión minera, no implica una pérdida relevante en la biodiversidad y representatividad de los ecosistemas de la zona norte del país. Se debe abordar el manejo sostenible de la empresa y la región, no solo desde el punto de vista de la gravedad de las amenazas a la biodiversidad, sino también de las oportunidades que ofrecen esos bosques para contribuir a la conservación. Un manejo deficiente es una amenaza, un correcto manejo puede hacer una contribución importante. El proyecto Minero Crucitas debe ser una oportunidad para demostrar que se puede lograr un equilibrio sano de los componentes a nivel de país, región y paisaje a partir de la unidad de manejo forestal de sus ecosistemas.

El resultado del plan de manejo y mitigación forestal propuesto para la empresa, aumentará de 968 hectáreas a 1182 la cobertura de bosques (aproximadamente un 20%), eliminará la fragmentación existente, y permitirá que ocurra, paulatinamente, un proceso de enriquecimiento en su biodiversidad. La eliminación de 196 árboles de un total de poco más de 700 individuos de almendro (Dipteryx panamensis) a favor de la zona de explotación minera directa, en terrenos propiedad de la empresa Industrias Infinito S.A., no significan un deterioro significativo de la posibilidad de alimentación de la lapa verde (Ara ambigua), ni se puede considerar tampoco como una pérdida de hábitat importantes, dado que ha sido una zona que no ha registrado la existencia de anidamiento de la lapa verde en los últimos catorce años y, al grado de deterioro en que ya estaban estos bosques desde su última intervención maderera ocurrida en los años ochenta.

Dado que la alimentación de la lapa verde (Ara ambigua) se basa en al menos treinta y siete especies vegetales, y que el árbol de almendro (Dipteryx panamensis) proporciona frutos únicamente durante 2 o 3 meses al año, no se puede argumentar la dependencia alimentaria exclusiva de estas aves en una sola especie forestal. La eliminación de ciento noventa y seis árboles de almendro de una población de poco más de setecientos individuos, implica la permanencia de más de 500, que significa un tamaño de población efectiva suficiente para garantizar su variabilidad genética y descartar cualquier grado de amenaza en las próximas generaciones. La siembra de más de 5000 árboles de almendro ocurrida en los últimos tres años en áreas sin bosque dentro de la propiedad, incrementarán considerablemente el tamaño de población efectivo de la especie en el muy corto plazo. La presencia de la empresa en la zona impidió que continuara el deterioro de los bosques, suelos y aguas de la propiedad adquirida.

El plan de manejo propuesto permitirá que ocurra un proceso de recuperación y enriquecimiento de los bosques, apoyado en la presencia de abundante semilla en los bosques residuales de las propiedades vecinas. Una población natural de especies de árboles se encuentra en un equilibrio relativo y libre de amenaza de extinción para varias generaciones, cuando su tamaño efectivo de población (individuos en reproducción) no sea inferior a cincuenta individuos, la población existente de almendro amarillo en la propiedad de Industrias Infinito S.A. es de más de esa cantidad con capacidad de reproducción. El programa del Ministerio de Ambiente, Energía y Telecomunicaciones, a que sembrás un árbol, logró sembrar en San Carlos, cantón en el que está la mina Las Crucitas, 1.437.974 árboles o sea el 20.5% del total sembrado en todo el país. El Programa Fonafifo invirtió en el Distrito de Cutris, cantón de San Carlos, en el periodo 1998-2007, 2.500 millones de colones en el pago de Servicios Ambientales, por un área de 17,064.72 hectáreas.

En el 2007 se plantaron 7,007.323 árboles en todo el país, lo que nos convierte en el primer país en plantar más árboles per capita y por kilómetro cuadrado. Es importante resaltar que del total plantado el 30% se plantó en Alajuela (2.081.023) y que San Carlos, cantón en donde se encuentra el proyecto minero Las Crucitas plantó 1.437.974 árboles o sea el 20.5% del total a nivel de todo el país. El informe del científico M.S.C Hugo Virgilio Rodriguez Estrada, Hidrogeólogo, Credencial Colegio de Geólogos de Costa Rica Número 45, Registro de Consultor SETENA Número 01-97, concluyó que el proyecto Crucitas es viable y no se espera ninguna afectación negativa a las aguas subterráneas. Dice el informe que según el diseño del Proyecto Minero Crucitas, el acuífero superior no representa limitaciones para su desarrollo debido a que no se contaminará por efecto del proceso de extracción del material, ni por los procesos industriales, siempre y cuando se cumplan con las medidas de prevención y mitigación propuestas.

El acuífero inferior está formado en rocas ígneas del basamento, es de carácter confinado y no presenta afloramientos en la superficie, esta característica implica que las áreas de recarga se ubican fuera del Área del Proyecto Crucitas, muestra un flujo regional de noroeste a suroeste, con una gradiente hidráulica promedio de 3.2%, lo que implica que el flujo de agua no drena hacia el Río San Juan. La capa confinante no la conforma la saprolita, sino que está formada por algunos horizontes de baja permeabilidad ubicados dentro de las propias rocas del basamento. Actualmente no se tienen registros de que este acuífero se capte en la región y en cuanto a la calidad del agua del acuífero inferior, presenta una concentración más alta en todos los parámetros químicos, la cual es comprensible debido a que es un acuífero más profundo, en el que el agua tiene un mayor tiempo de residencia y está más propenso a ser afectado por las alteraciones hidrotermales relacionadas con el yacimiento mineral.

Por esta razón este acuífero presenta condiciones de baja calidad en sus aguas, y los valores de amonio, hierro, potasio, sulfatos, color, turbidez están fuera de las normas nacionales de calidad de agua para abastecimiento humano. Debido a que este acuífero se ubica a profundidades mayores a 50 metros bajo el suelo en el área del proyecto, no se verá afectado por la actividad del proyecto en cuanto a posibilidad de infiltración desde la superficie. Los análisis realizados a los datos existentes indican como conclusión general que desde el punto de vista de la hidrogeología, el proyecto Crucitas es viable y no se espera ninguna afectación negativa a las aguas subterráneas si se aplican todas las medidas de control, prevención y mitigación establecidas. Por su parte, la evaluación hidrogeológica realizada por el SENARA se comunicó a través de un oficio, firmado por el Ing. Bernal Soto Zúñiga Gerente General, también validó el proyecto y consideró que no se causa peligro a los mantos acuíferos.

El estudio hidrogeológico realizado por la empresa ECOAMBIENTE, S.A. para el Proyecto Crucitas y evaluado por la Dirección de Investigación y Gestión Hídrica, define con claridad la situación de la zona del proyecto Crucitas e identifica el modelo hidrogeológico conceptual, tal que permite desarrollar el análisis del impacto potencial a las aguas subterráneas por el desarrollo del proyecto. Una vez evaluado el modelo hidrogeológico conceptual propuesto por la empresa desarrolladora del proyecto, procedió a validar el mismo en el marco de los compromisos asumidos por la empresa para mitigar el impacto potencial a las aguas subterráneas de la zona de interés. El informe de los científicos, doctor en geología Jorge Laguna Morales y del M.Sc Franz Ulloa Chaverri, concluyeron que es nulo el riesgo de un accidente con cianuro por derrames o malos manejos. También concluyeron que son técnicamente inexistentes los riesgos de intoxicación de seres humanos y otros seres vivientes por efecto del cianuro.

En cuanto al drenaje ácido, que ya fue estudiado en el caso de la Mina Bellavista, concluyeron que la generación de drenaje ácido no es posible bajo las condiciones de control y técnicas de manejo a ser implementadas para eliminar ese efecto. La tecnología; la infraestructura, los protocolos de transporte, manejo, almacenamiento, control, uso, recirculación y destrucción del cianuro y sustancias cianuradas expresados en los documentos oficiales de la empresa Industrias Infinito S.A. a ser utilizados e implementados en la explotación de oro en la mina Las Crucitas, indican que el riesgo de un accidente por derrames o malos manejos técnicos son nulos. Las medidas de seguridad y de vigilancia que se van a implementar en el manejo del cianuro y sustancias cianuradas son las más adecuadas y actualizadas a aplicar para ese tipo de actividad, por lo que los riesgos de intoxicación de seres humanos y otros seres vivientes son técnicamente inexistentes.

El riesgo de contaminación por derrames o mala disposición de residuos cianurados es considerado también como inexistente siempre y cuando se actúe baja la aplicación de las medidas técnicas (infraestructuras) y de manejo (protocolos) expresadas en los documentos analizados, con lo que se desestima la posibilidad de una eventual contaminación tanto de aguas superficiales como aguas subterráneas. También se concluye que la generación de drenaje ácido no es posible bajo las condiciones de control y técnicas de manejo a ser implementadas para eliminar ese efecto. Los análisis realizados a los datos existentes indican como conclusión general que desde el punto de vista de la hidrogeología el proyecto Crucitas es viable y no se espera ninguna afectación negativa a las aguas subterráneas si se aplican todas las medidas de control, prevención y mitigación establecidas. El informe de la socióloga Sonia Cervantes, concluye que la zona es clasificada como pobre o de extrema pobreza y que la gente vivía muy mal, por debajo de la línea de pobreza.

Que la inversión hecha por la mina es positiva, ha cambiado los caminos y ha capacitado a la gente para que puedan vivir mejor. El balance del proyecto es positivo, Costa Rica tuvo la visión, hace unas tres décadas, de implementar políticas para asegurar la protección absoluta de gran parte del territorio nacional, sin embargo el territorio nacional no crece, en tanto la población sí lo hace, no solo como producto del proceso natural de reproducción, sino por la inmigración proveniente de naciones vecinas. El éxito de las próximas políticas de protección del ambiente en Costa Rica y el mundo, se basará en encontrar el equilibrio entre el ser humano y el reto de los seres vivos y no colocarlos en situaciones de competencia por la sobrevivencia. En el área de influencia del proyecto Crucitas existen muchas familias esperando desesperadamente una oportunidad de vida, cuando visitó a finales del dos mil siete la zona, le pareció difícil aceptar que era parte de nuestro país, dado las difíciles condiciones en que vivían estas familias, sin caminos, sin servicios básicos, sin comunicación, sin empleo, sin comida y el proyecto Crucitas está ofreciendo cubrir muchas de estas necesidades.

Corresponde a las Autoridades Ambientales de nuestro país, en un estricto plan de gestión ambiental, con adecuada y responsable mecanismos de supervisión, garantizar que se brinde protección a la flora y fauna de la zona, la que a todo costarricense responsable le interesa, pero brindando además calidad de vida a la población de esta olvidada región del país. La población de las comunidades, Crucitas, Chamarra, Moravia, El Roble y Coopevega del distrito de Cutris y Jocote y Llano Verde, del distrito de Pocosol, todas del cantón de San Carlos tienen que ser integradas al desarrollo del país, se les debe otorgar las oportunidades para alcanzar los niveles de vida que tienen otras comunidades rurales del país. Si el Estado o el gobierno local no tienen la capacidad, para hacer la inversión que requiere la zona, debe dársele la oportunidad de que la empresa privada lo haga. Industrias Infinito ha demostrado que el compromiso social que asumieron con la población y con las autoridades ambientales nacionales se está convirtiendo en una realidad, aún antes de comenzar a operar y la explotación de la mina, se ha constituido para estas comunidades en una esperanza de cambio de las difíciles condiciones que actualmente enfrentan.

Las expectativas que tienen son muy altas y expresan una gran confianza en que IISA se apegue a los compromisos adquiridos con las comunidades. Esta confianza está fundamentada en la labor que por casi doce años, ha llevado a cabo la empresa, fomentando y brindando capacitación a grupos organizados, contribuyendo con la infraestructura de caminos, educativa y de salud y respondiendo a múltiples solicitudes de apoyo en muchos ámbitos del quehacer local. Muchos ambientalistas olvidan que el ser humano cuando tiene hambre puede convertirse en el principal depredador de la naturaleza, pero puede también llegar a ser el principal aliado en la protección del medio ambiente, cuando encuentra oportunidades para tener una vida digna, a través de procesos de concientización y capacitación ambiental. El Informe del economista Lic. Juan Muñoz, concluye que con la metodología apropiada, la información disponible y los supuestos razonables para el cálculo, se concluye que el impacto biofísico del Proyecto Crucitas asciende a US $ 1,48 millones y de US $ 2.26 millones el impacto social, para un total de US $ 3,74 millones.

Los beneficios sociales derivados del Proyecto superan los US $ 158,11 millones en el orden de empleos, impuestos o inversión en las comunidades de su área de influencia. Una diferencia a favor del Proyecto de $ 154,36 millones. El Proyecto Crucitas otorga al país, al Cantón de San Carlos y a las comunidades de su área de influencia, beneficios que superan en gran medida los posibles impactos negativos que ése pudiera generar. El proyecto Crucitas, ha realizado un buen número de actividades que incluyen inversión social, donación para la reconstrucción y mejoramiento de infraestructura, de servicios básicos para las comunidades, la salud física y mental de la población y la capacitación en oficios y herramientas, así como formas de organización comunal que permitan a estas poblaciones un mayor dinamismo social y economía. Hasta el 2008 el Proyecto había invertido un monto superior a $5.58 millones, cifra que se incrementará a lo largo de las operaciones del mismo.

EI Proyecto Crucitas es de interés público por su alto valor agregado en materia de beneficios sociales, con lo que se cumple el criterio de conveniencia nacional exigido por la Ley Forestal y su reglamento para la autorización del proyecto. El proyecto minero ha sido tramitado conforme a la legislación costarricense y la empresa ha cumplido paciente y diligentemente todos los trámites y peticiones del Gobierno de Costa Rica. Ninguna de las leyes, reglamentos, directrices o circulares ha dispuesto nunca que es prohibida la actividad minera en lugares en que hay bosques, ni en lugares en que hay árboles de almendro amarillo. Es la razón por la cual, la empresa ha continuado sus trámites de obtención de permisos y autorizaciones bajo las reglas actuales para el cambio de uso del suelo del bosque, de manera que para la empresa y para el Gobierno de Costa Rica, las reglas legales y técnicas actuales son claras en cuanto permiten la actividad minera del proyecto Las Crucitas.

La seguridad jurídica que ha brindado el gobierno de Costa Rica es fundamental para el desarrollo de las actividades privadas, sean hechas con capital local o internacional. Pero sobretodo, la seguridad jurídica es el elemento fundamental de atracción de inversiones vitales para el sostenimiento y crecimiento de la economía del país. De hecho, la Promotora de Comercio Exterior, Procomer, así lo describe en el informe. Las controversias que puedan surgir producto del irrespeto a la seguridad jurídica que debe imperar en nuestro país; genera un clima desfavorable para la inversión que inhibe la instalación de nuevas empresas y pone en riesgo el arraigo de las ya existentes. Solicita que se declare sin lugar en todos sus extremos los recursos de amparo acumulados.

92- Por escrito presentado el 2 de marzo de 2009 (folio 1798) Enid Gamboa Robles en su condición de Presidenta del Consejo Técnico Asesor en Minería del Poder Ejecutivo se apersona a manifestar que en nuestro país por razones de génesis geológica los depósitos de oro se encuentran en suelos generalmente no aptos para la agricultura y la ganadería, por ello es que las zonas con vocación aurífera albergan comunidades con bajo perfil de desarrollo social, como Las Juntas de Abangares, Desmontes y Crucitas entre otros. La minería puede ser a cielo abierto o subterráneo. El desarrollo de una mina de oro afecta áreas muy puntuales, contrario a otras actividades de orden extensivo como la ganadería, desarrollo humano (urbanismo) y agricultura. Los procesos de extracción de oro han sido prolongadamente probados y científicamente estudiados por lo que su impacto ambiental es muy conocido, medible y remediable.

La minería de oro es motor de otras actividades económicas, ya que, para su propio funcionamiento y operación debe construir carreteras, servicio de electricidad y teléfonos, infraestructura médica, suministro de agua potable e Internet, que se integran a las comunidades donde se asienta el proyecto. Un caso es el de Miramar, que se benefició considerablemente con el proyecto de la Mina Bellavista, la minería es además una actividad que no goza de ningún tipo de exoneración y además el oro es el único metal que no es afectado por recesiones financieras mundiales. El impacto de la explotación puede ser controlado y monitoreado con gran precisión y a un bajo costo, por ser esta una actividad muy localizada y ampliamente conocida a nivel mundial.

93- A folio 1803 del expediente se apersonan Luis Evelio Segura Morales, Dora Alicia Araya Saborío, Guisela Rodríguez Rodríguez, Margarita Durán Acuña, Norma Quirós Arce, Tito Antonio Guerrero Sánchez, José Antonio Acuña Salas, María Estelita Vásquez, Edgar Chacón Pérez, Efrén Zúñiga Pérez y Edgar Rodríguez Alvarado a presentar coadyuvancia a favor de la empresa recurrida por los beneficios que ha otorgado a la comunidad.

94- El 2 de diciembre de 2008 Arnoldo Rudín en su condición de Gerente General de Industrias Infinito S.A. (folio 1809) solicita llevar a cabo una vista.

95- Por escritos presentados el veinticinco de marzo del año en curso, Jorge Rodríguez en su condición de Ministro del Ministerio de Ambiente, Energía y Telecomunicaciones solicita que en los expedientes 08-14068-0007-CO, 08-14592-0007-CO, 08-14454-0007-CO, 08-14464-0007-CO, se tenga por presentado el oficio SG-196-2009-SETENA, donde amplió los argumentos de descargo, en el cual se indicó que SETENA sí contempló el análisis del componentes hidrológico en el estudio de impacto ambiental (ver tomo I Apartado 6.5 páginas 190-211). Una vez que el desarrollador solicitó una modificación al proyecto para extraer a mayor profundidad, los impactos de tal modificación fueron adecuadamente valorados en el documento denominado Evaluación de Cambios Propuestos al Proyecto. En éstos se logró demostrar que el acuífero circula en sentido contrario al río San Juan, por lo que no drena hacia éste; el acuífero inferior ya presenta una concentración muy alta de parámetros químicos, por ello sus aguas no son de alta calidad, no es potable, y el acuífero superior está confinado, no se comunica con otras áreas, está limitado por la topografía del terreno, porque los flujos de agua pluvial van de las partes superiores a las inferiores.

El tiempo del tránsito del agua es muy lento, de un centímetro por día, por ello no se contaminará por el efecto del proceso de extracción del material ni por los procesos industriales, siempre y cuando se cumplan las medidas de prevención y mitigación propuestas. Además como ya fue indicado, se descartó el drenaje ácido de roca (folios 1811 y 1820, 1829, 1838).

96- El 26 de marzo del 2009, John Thomas y Arnoldo Rudín Arias, ambos en su condición de apoderados generalísimos de la empresa Industrias Infinito S.A. (folio 1847) aportan un cuadro que expone los alegatos y respuestas de las partes en este amparo.

97- El veintiséis de marzo de este año la diputada de la Fracción del Partido Acción Ciudadana, Patricia Romero Barrientos aporta un video del proyecto Crucitas (folio 1879).

98- A folios 1881, 2958, 2960, 2963, 2970, 2973, 2976, 2983, 2984, 2987, 2989, 2991, 2993, 2995, 2999, 3002, 3004, 3007, 3009, 3014, 3016, 3018, 3020, 3022, 3023, 3025, 3029 a 3073, 3161 a 3183, 3188 a 3203, 3208 a 3311, 3314 a 3318 y 4371 varias personas se apersonan al expediente en apoyo de este recurso de amparo.

99- El 1 de abril de 2009 José Andrés Soto Rivera en su condición de Gerente de Responsabilidad Social del Proyecto de Crucitas aporta un dvd y una publicación que resume los principales aspectos técnicos relacionados con el proyecto (folios 1883 y 1884).

100- A folio 1890 del expediente consta adjunto un escrito desglosado y ordenado tramitar como amparo, presentado por Alvaro Sagot Rodríguez y Mario Peña Chacón en el que acusan la inconstitucionalidad del Decreto Ejecutivo número 34801-MINAET del 13 de octubre del 2008, que declara de interés público y conveniencia nacional el “Proyecto Minero Crucitas”, por considerarlo contrario a los artículos 21, 50 y 89 de la Constitución Política; los principios de proporcionalidad y razonabilidad; el artículo 4 de la Convención sobre la Protección del Patrimonio Mundial, Cultural y Natural (ley 5980); y el artículo 5 de la Convención para la Protección de la Flora, la Fauna y de las Bellezas Escénicas Naturales de los Países de América (ley 3763). Alegan que la norma cuestionada violenta la “lógica ambiental” y los criterios de proporcionalidad que deben estar presentes cuando se trata de conceptos indeterminados como la “conveniencia nacional” o el “interés público”.

Se debe efectuar una ponderación y posterior toma de decisión, donde se mida la conveniencia social, sobre lo socio-ambiental. Deben existir estudios científicos donde lo precautorio debe imperar, pero en ninguno de los considerandos del decreto se cita el estudio que eche luz sobre si lo social está por sobre lo socio-ambiental. El decreto cuestionado tiene un serio vicio de inconstitucionalidad por violación, entre otros, del principio precautorio o cautelar ampliamente desarrollado por la jurisprudencia de esta Sala y contenido en instrumentos internacionales tales como el Principio 15 de la “Declaración de Río sobre Medio Ambiente y Desarrollo”, el Principio 11 de la “Carta de la Naturaleza” y en el preámbulo de la “Convención sobre la Diversidad Biológica”. Dicho principio precautorio significa que, ante la incerteza absoluta, por falta de estudios, el criterio se debe inclinar por no otorgar una autorización, o como en este caso, una declaratoria de conveniencia nacional y de interés público.

Indica que no se deben confundir los estudios ambientales de viabilidad del proyecto en sí, con los estudios socio-ambientales necesarios para la declaratoria de conveniencia nacional e interés público, pues son cosas muy diferentes. Como se puede leer en el fundamento del decreto cuestionado, se ha hecho una enumeración de posibles ingresos en dinero, pero en ningún momento, se mencionan los efectos ambientales o costo ambiental de realizar la obra pretendida por una empresa minera. Ante ello se aprecia un vacío que genera una gran incerteza y es que la fundamentación en criterios como la conveniencia nacional o el interés público no pueden darse como han sido concebidos en el decreto relacionado, pues en ese caso, todo podría ser de conveniencia y de entrega de riqueza de la colectividad y de generaciones futuras, a una empresa transnacional, que al final, podría dejarnos con perdidas irreparables en la biodiversidad.

Es por ello que se insiste en que esa falta de fundamentación genera un vacío que deja al decreto sin contenido real de ponderación de bienes que son de todas y todos los costarricenses, por lo que es manifiesto un vicio de constitucionalidad y la violación de los principios de racionalidad ambiental, proporcionalidad y al precautorio. Se autoriza un cambio de uso del suelo por supuesta “conveniencia nacional” pero no se puede ir contra el ordenamiento jurídico y principios de rango constitucional como lo son el derecho a un ambiente sano y equilibrado, el principio de irreductibilidad del bosque, el principio precautorio y el derecho a gozar de un paisaje y el principio de equidad intrageneracional y solidaridad intergeneracional, aspectos que no solo están contemplados en normas de rango constitucional, sino que han sido desarrollados por la jurisprudencia de esta Sala. Debería haber una mesura, una ponderación y estudios ambientales que justifiquen una declaratoria como la ahora impugnada; pero -insisten- el decreto es totalmente omiso en datos que justifiquen dicha autorización y, contrario a ello, más bien se hace hasta cierto punto una apología de la degradación al señalar, en el artículo 2 del decreto, que se autoriza la tala inclusive de especies vedadas, como en este caso, el almendro amarillo.

Nuestro país, por medio del Ministerio de Ambiente, Energía y Telecomunicaciones, incluyó voluntariamente dicha especie en el apéndice 111 de la “Convención sobre el Comercio Internacional de Especies Amenazadas de Fauna y Flora Silvestres” (CITES), pues es vital su preservación a nivel nacional e internacional y por ello se restringe su comercio internacional y se comprometió a tomar todas las medidas necesarias para protegerla dentro de nuestras fronteras. La apología del “ecocidio” y el irrespeto de la jurisprudencia constitucional se aprecian al autorizar la tala de almendros amarillos, cuando se ha ordenado al Ministerio de Ambiente, Energía y Telecomunicaciones que preserve esa especie (voto 2008-13426). Pide que se declare inconstitucional el decreto en cuestión.

101- Por resolución Número 17570 de las once horas tres minutos del cinco de diciembre del dos mil ocho se acumuló a este expediente el amparo número 08-016115-0007-CO. (folio 1909) 102- A folio 1914 del expediente consta recurso de amparo número 08-016200-0007-CO presentado por [Nombre 052] y [Nombre 053], en el que acusan que el seis de agosto del dos mil siete, la empresa Industrias Infinito S.A. solicitó a la SETENA le fuera aprobada la viabilidad ambiental a una modificación al diseño original del proyecto Mina Crucitas al cual la SETENA le había otorgado la viabilidad ambiental por medio de la resolución número 3638-2005-SETENA del dos de diciembre del dos mil cinco. Señala que el seis de diciembre del presente año, la empresa desarrolladora presentó un documento denominado "Evaluación Ambiental de la Modificación Propuesta al Proyecto" Mina Crucitas, que contenía un Plan de Gestión Ambiental y una Declaración Jurada de Compromisos Ambientales, que explicaban en qué consistía la modificación y los impactos positivos y negativos que se generarían.

Indica que la modificación fue planteada y tramitada ante la SETENA como una reducción de área, y fue aprobada por esa Secretaría por medio de la resolución número 170-2008-SETENA de las doce horas con cincuenta minutos del cuatro de febrero del dos mil ocho, dictada por la Comisión Plenaria de la Secretaría Técnica Nacional Ambiental en sesión ordinaria Número 12-2008, artículo 5, cuyo por tanto indica: "PRIMERO: Aprobar la Modificación del proyecto denominado Proyecto Minero Crucitas (Minado y Procesamiento de Minerales de oro, incluyendo el Plan de Gestión Ambiental actualizado y los planes de monitoreo propuestos. SEGUNDO: Ordenar la conformación y funcionamiento de la Comisión de Fiscalización y Monitoreo del proyecto Crucitas; para lo cual se designa a la Secretaría General de SETENA para que proceda a solicitar los nombres de los representantes de las diferentes entidades que la conforman (…).".

Considera que la SETENA actuó contrario a los principios que esta Sala ha indicado deben cumplirse en los procesos de Evaluación de Impacto Ambiental para garantizar un ambiente sano y ecológicamente equilibrado, ya que si bien la modificación solicitada reduce el área horizontal a explotar, en realidad consiste, en un proyecto nuevo que debió ser sometido a Estudio de Impacto Ambiental y a una audiencia pública tal y como sucedió en el proyecto originalmente aprobado, todo lo cual no se dio. Afirma que la modificación aprobada es un proyecto nuevo por las siguientes razones: a.-Amplía la profundidad a ser explotada de 15 metros a 67 metros en promedio. b.-Amplía el volumen de material a explotar en más de un 100% c.-Amplía la producción de oro en casi un 70% d.- Amplía el tiempo de la extracción de 6 a 9 años. e.- Amplía el material a extraer, ya que originalmente era solo la saprolita (suelo o material blanco) y mediante la modificación se solicita la extracción de roca dura. f.- Implica la utilización de una nueva tecnología de extracción mediante explosivos, sin embargo no se analizó adecuadamente los impactos que esto puede causar, y las medidas de seguridad que deben seguirse para evitar accidentes que perjudiquen a personas o los recursos naturales, y que permitan cumplir la legislación vigente. g.- No se analizaron posibles impactos que la modificación puede causar.

Estima que la resolución supra citada es contraria al artículo 50 de la Constitución Política, así como a los principios precautorio, preventivo y el derecho de participación ciudadana en el proceso de Evaluación de Impacto Ambiental consagrados en varias resoluciones de la Sala Constitucional. Añade que la SETENA no comunicó a ninguna de las partes del procedimiento administrativo sobre las modificaciones presentadas por la empresa, ni el otorgamiento de la viabilidad ambiental a tales modificaciones, a pesar de que muchos de ellos, como el geólogo Allan Astorga, habían hecho observaciones técnicas al Estudio de impacto ambiental. Solicitan los recurrentes que se declare con lugar el recurso, con las consecuencias de ley.

103- Por resolución Número 17970 de las once horas tres minutos cuarenta y ocho minutos del doce de diciembre del dos mil ocho se acumuló a este expediente el amparo número 08-016200-0007-CO. (folio 2035) 104- Por escrito presentado el 17 de abril de 2009 la regente ambiental del proyecto Minero Las Crucitas aporta escrito en el que resume las condiciones actuales de las áreas que fueron cortadas y que se encontraban dentro de los permisos para el cambio de uso de suelo, así como el plan de corta. (folio 2039) 105- A folio 2050 Lorenzo Cambronero Méndez en representación del Frente de Oposición a la Minería de Oro de la Zona Norte de Costa Rica interpone recurso de amparo contra la Dirección de Geología y Minas del Ministerio del Ambiente y Energía, y manifiesta, que se acusa la violación de lo dispuesto en los artículos 50 de la Constitución Política, el Tratado Cañas-Jerez de mil ochocientos cincuenta y ocho, la Convención sobre el Derecho de Usos No Navegables de Cursos de Agua Internacionales de mil novecientos noventa y siete, El Convenio Regional para el Manejo y Conservación de los Ecosistemas Naturales Forestales y el Desarrollo de Plantaciones Forestales del Sistema de Integración Centroamericana (SICA) de mil novecientos noventa y seis, la Declaración de Río sobre ambiente y Desarrollo de mil novecientos noventa y dos, y la Declaración de Estocolmo sobre el Medio Humano de mil novecientos setenta y dos, todo lo anterior debido a que el cinco de junio del dos mil dos, se promulgó el Decreto Ejecutivo DE 30477-MINAE, el cual estableció la moratoria indefinida de la actividad de minería a cielo abierto en Costa Rica.

Indica que la Sala Constitucional anuló, mediante resolución número 2004-13414 de las nueve horas del veintiséis de noviembre del dos mil cuatro, la concesión de explotación minera otorgada a la empresa Industria Infinito, Sociedad Anónima, debido a que no se realizó la audiencia de ley y que el estudio de impacto ambiental no se presentó antes de la aprobación de la concesión, violentándose así el principio precautorio o in dubio pro natura reconocido por la Ley de Biodiversidad. No obstante lo anterior, el veinte de mayo del dos mil ocho, por resolución R-217-2008-MINAE de las quince horas del veintiuno de abril del dos mil ocho, fue otorgada nuevamente la concesión para explorar oro en la mina Crucitas, o sea, encontrándose vigente aún el Decreto que establecía la moratoria en el país de la actividad de minería a cielo abierto. Que el cuatro de junio del dos mil ocho, catorce días después del otorgamiento de la concesión que se impugna, se emitió el Decreto Ejecutivo N° 34492-MINAET, el cual derogó dicha moratoria.

Refiere que dicha concesión es contraria al derecho constitucional de un ambiente sano y ecológicamente equilibrado, pues en el presente caso, se afectan severamente los bosques con daños ambientales irreparables.

106- Por resolución Número 521 de las once horas cincuenta minutos del dieciséis de enero del dos mil nueve se acumuló a este expediente el amparo número 08-017475-0007-CO. (folio 2071) 107- Por escrito presentado por [Nombre 054] en su condición de apoderado generalísimo especial de la sociedad Industrias Infinito S.A. solicita a la Sala permiso para realizar las medidas de mitigación ambiental y forestal dentro del área cubierta por el permiso de corta, con el fin de evitar riesgos ambientales innecesarios. (folio 2075) 108- Por escrito presentado el 20 de abril de 2009 por [Nombre 054] en su condición de apoderado generalísimo especial de la sociedad Industrias Infinito S.A. aclara el sistema de extracción, de las reservas contenidas y de las partes que componen el yacimiento minero del Proyecto. La viabilidad ambiental del proyecto Crucitas se encuentra íntimamente ligada a la naturaleza del yacimiento: saprolita y roca dura.

Reitera que la reducción del área de extracción será de un 60% del que actualmente está aprobado, lo que incidirá en una mayor área de reforestación en los alrededores de los pits o tajos. La extracción se realizará utilizando maquinaria pesada (excavadoras), vagonetas y voladuras a partir del nivel de roca. El uso de voladuras en la actualidad es un proceso seguro si cuenta con todos los protocolos de manejo, almacenamiento y uso. Inclusive en la ciudad y en tajos de materiales no metálicos (para agregados de construcción), se utilizan voladuras controladas para ampliación o construcción de sótanos en el primer caso y para el avance de los bloques de extracción en el segundo caso. Para el caso del proyecto se contratará una empresa especializada que cuente con todos los permisos al día. El consumo eléctrico se espera suplir a través del servicio que brinda COOPELESCA en la zona, por lo que no se instalará la planta de generación eléctrica de unos 5.4 MW, incidiendo favorablemente en una eliminación de generación de gases en 3.3 toneladas de CO2 por hora a la atmósfera.

Lo anterior repercutirá en una disminución de almacenamiento de combustibles en el AP, por lo que se reducirá de 1500 de diesel a 50 m3 y de 38 a 3.7 m3 de gasolina. La planta de destrucción de cianuro contará con una tecnología más moderna por lo que en lugar de utilizar el proceso INCO, ahora se instalará el proceso CYPLUS que es más eficiente y logra los resultados esperados con una descarga a relaves que presentará menos de 1 ppm de cianuro. En el aspecto social, los compromisos se mantienen a través de todos los programas de capacitación, promoción de PYMES, colaboración en obras de infraestructura comunal, etc. En la actualidad se propone finalizar el cierre con dos lagunas, una que correspondería a la utilizada como relaves en la fase operativa y una en el tajo Fortuna, el resto de las propiedades serían reforestadas con especies nativas para regeneración de bosque natural.

Refiere que además se informó debidamente a las siete comunidades del área de influencia del proyecto y se cuenta con el estudio de una socióloga. Indica que nunca existió improvisación ni favoritismos en la aprobación de la modificación al proyecto Crucitas por parte de la SETENA. (folio 2091) 109- De folio 2115 a 2831 del expediente, varias personas presentan escritos en los que solicitan a la Sala avalar la continuación del proyecto Minero.

110- A folio 2834 del expediente consta escrito de acción de inconstitucionalidad presentada por Jorge Enrique Romero Pérez que fue desglosada y tramitada como el amparo Número 08-16125-0007-CO, en el que solicita que se declare la inconstitucionalidad del Decreto Ejecutivo número 34801-MINAET del 13 de octubre del 2008, que declaró de interés público y conveniencia nacional el denominado “Proyecto Minero Crucitas”. Alega que en el decreto indicado, el Presidente de la República y el Ministro del Ambiente, con la justificación de la declaratoria de interés público y conveniencia nacional, autorizan a una empresa minera a cortar todos los árboles que requieran, incluyendo las especies en veda, entre las que se encuentran gran cantidad de la especie almendro amarillo (dipteryx panamensis), especie que además de estar amenazada per se, constituye el hábitat fundamental y principal fuente de alimento en época reproductiva de la lapa verde (ara ambiguus), especie que se encuentra seriamente amenazada de extinción.

Todo esto a pesar de lo establecido por el propio Poder Ejecutivo en el decreto Nº 25700 del 15 de noviembre de 1996 con respecto a otras especies amenazadas y a jurisprudencia vinculante de esta Sala Constitucional, vertida en los votos 2486-2002 y 13426-2008, en los cuales se le prohíbe expresamente al Ministerio del Ambiente otorgar cualquier tipo de permiso de corta o aprovechamiento de la especie de árbol almendro amarillo. Con esta autorización, sin ningún tipo de justificación técnica y de forma arbitraria, se atenta directamente contra el equilibrio ambiental y la biodiversidad de toda la Región Huetar Norte de Costa Rica y el sur de Nicaragua, incluyendo el Refugio de Vida Silvestre Corredor Fronterizo Norte, el Refugio Nacional Mixto Maquenque y el Corredor Biológico San Juan-La Selva. La justificación para la declaratoria de interés público y conveniencia nacional del Proyecto Minero Crucitas únicamente se fundamenta en los posibles beneficios económicos que se especula que va a generar.

El decreto impugnado además es absolutamente omiso en cuanto a la valoración del costo socio-ambiental que implicaría la destrucción total de más de 196 ha. de bosque (incluyendo las especies con protección especial por su importancia en el ecosistema) y de zonas de protección de ríos y quebradas que invadirá y destruirá la empresa minera, con su consiguiente afectación del recurso hídrico. El decreto no tiene ninguna base científico-técnica que en forma objetiva permita valorar el costo socio-ambiental de tal destrucción y que permita con algún grado de certeza establecer que el beneficio social de esta destrucción es mayor que el costo socio-ambiental de la misma, como lo exige la legislación forestal vigente. Además de lo anterior, en toda el área del bosque que se pretende desaparecer, no se pretende construir ningún tipo de infraestructura, entendida como “Conjunto de servicios básicos para el funcionamiento de una economía moderna”, sino que lo que se va a llevar a cabo son grandes excavaciones en la tierra para procesar el material mediante lixiviación de cianuro, con el fin de extraer el oro que se encuentra diseminado en la tierra.

El procesamiento se hará en otra zona distinta de donde se harán las excavaciones, que incluyen la utilización de explosivos. También se contempla en esa zona de bosques construir las lagunas de relaves para almacenar el material cianurado. Es evidente entonces que lo decretado por el Presidente de la República y el Ministro del Ambiente va en contra de nuestro derecho constitucional a un ambiente sano y ecológicamente equilibrado, consagrado en el artículo 50 de la Constitución Política. Primeramente porque el decreto impugnado autoriza, en forma arbitraria y sin ninguna justificación, la corta de árboles de almendro amarillo, sobre los cuales existe prohibición expresa de tala, emanada directamente por esta Sala Constitucional, entre otros, mediante los votos 2486-2002 y 13426-2008, por estimar esta Sala que es una especie clave en la protección de la lapa verde, que -a su vez- es una especie amenazada de extinción.

En segundo lugar, porque la declaratoria de conveniencia nacional que hace el Poder Ejecutivo, mediante el decreto que se impugna, va más allá de lo establecido en la legislación ambiental-forestal, al declarar de conveniencia nacional una actividad económica que no podría ser considerada como un “proyecto de infraestructura”, a la luz de lo que tal término significa y en consonancia con la intención del legislador reflejada en la norma, de limitar al máximo la eliminación de los bosques, en aplicación del principio de irreductividad del bosque, vaciando entonces de contenido la norma de referencia. En tercer lugar, la declaratoria de conveniencia nacional cuestionada carece de la más mínima base científico-técnica que permita establecer, sin lugar a dudas y de manera objetiva, que los beneficios sociales que traería la operación de la mina de oro a cielo abierto con lixiviación de cianuro son mayores que el costo socio-ambiental que implicaría la devastación de las más de 196 ha. de bosque, incluyendo la desaparición de todos los árboles de almendro amarillo existentes en la zona que se destruirá, la irremediable extinción en la zona de la lapa verde, la destrucción de la biodiversidad existente y su repercusión en las áreas silvestres protegidas que se encuentran en el área de influencia de la destrucción autorizada, con el agravante de que la Administración no ha establecido los instrumentos apropiados para llevar a cabo la medición del beneficio social versus el costo socio-ambiental, como lo exige la ley.

Todo lo anterior va en contra de los principios constitucionales de razonabilidad y proporcionalidad que deben aplicarse en este caso, en el que está en juego el equilibrio ambiental y su protección, previsto en los artículos 50 y 89 de la Constitución Política. Solicita que se declare con lugar y se anule el decreto cuestionado.

111- Por resolución Número 50 de las nueve horas diecinueve minutos del seis de enero del dos mil nueve se acumuló a este expediente el amparo Número 08-016125-0007-CO. (folio 2845) 112- A folio 2850 consta recurso de amparo presentado por Alain Murillo Bolaños, en el que indica que recurre contra la autorización de la explotación denominada Proyecto minero Las Crucitas de la empresa Industrias Infinito S.A., mediante el Decreto Ejecutivo 34801-MINAET, proyecto minero respecto del cual considera que no hay información al público. Estima el recurrente que con este decreto se están violentando los Convenios Internacionales sobre la protección de la flora y fauna, especialmente las especies en vías de extinción, firmados por Costa Rica en la Organización de las Naciones Unidas, que se pretende violentar el Bolsón protector boscoso mesoamericano y los tratados fronterizos con Nicaragua.

Indica que este proyecto de infraestructura minera a cielo abierto destrozará los microclimas, la belleza escénica del lugar, el recurso hídrico, y en consecuencia se atenta contra la vida humana, y la de las especies de flora y fauna, incluyendo la marítima. Considera que no es admisible el argumento que esto se realiza por conveniencia nacional, ya que el Estado no tiene medios para frenar una contaminación por accidente o sabotaje internúmero Explica que aún hoy día se sufren las consecuencias del envenenamiento por cianuro en más de tres kilómetros en una red de ríos de agua dulce. Manifiesta que no hay quien controle la salida de la riqueza que eventualmente se extraiga, asegura que con el desarrollo de este proyecto se aumentará la sequía, se alterará el rumbo de los cursos de agua y se destruirá el hábitat existente. Considera que el Ministerio de Ambiente, Energía y Telecomunicaciones y la Secretaría Técnica Nacional Ambiental (S.E.T.E.N.A.), deben permitir un estudio histórico-geológico y satelital de la cuenca y subcuencas de aguas subterráneas afectadas, ríos, riachuelos y el impacto ambiental sobre los cerros y la llanura.

Considera que se debe solicitar ayuda de expertos internacionales para medir el impacto ambiental regional. Manifiesta que debe aclararse por qué la S.E.T.E.N.A. y otros órganos relacionados dieron permisos. Considera que se debe presentar al pueblo los estudios de impacto ambiental para legitimar el origen del Decreto Ejecutivo número 34801-MINAET, estima que éste constituye un precedente que luego permitirá la destrucción de otros hábitats de fauna y flora. Argumenta que el Ministerio de Ambiente, Energía y Telecomunicaciones debe presentar un inventario de las especies que están en peligro con la creación de esa fosa en un bosque primario. Alega que en el área existen muchas de las especies de árboles que hay en el país, en consecuencia, cree que debe realizarse toda una clasificación de las plantas del bosque tropical que tienen aplicaciones en la medicina, en productos farmacéuticos, industriales y comestibles, también hacer un inventario de lo que se va a impactar, además cree que debe presentarse un proyecto que justifique como se van a proteger las aguas superficiales y subterráneas, porque la eliminación total de la cobertura boscosa producirá graves efectos negativos sobre la calidad del agua, lo mismo con la producción de oxígeno, y el impacto ambiental que habrá sobre el hábitat y el microclima, la erosión, el aumento de la sedimentación, y la pérdida de fertilidad de los suelos.

Explica que el lugar tiene gran belleza escénica, es hogar de aves, reptiles, mamíferos y microorganismos. Señala que el estudio que se haga debe estudiar también el impacto sobre las zonas de amortiguamiento, que ese estudio debe contener lo relativo a la prevención de incendios, manifiesta que también deben quedar claros los controles sobre el manejo de tóxicos como el cianuro, y cómo van a ser protegidas las áreas aledañas del empleo de esos tóxicos, porque en un radio de diez kilómetros, hay ríos y riachuelos, cuencas y subcuencas hídricas. Considera que el sitio se verá drásticamente afectado y pasarán cientos de miles de años para recuperar lo destruido y por eso debe realizarse un estudio geofísico para conocer las características físicas del material subyacente y determinar cuáles deben ser los métodos utilizables para la exploración geofísica. Se pregunta el recurrente cuánta agua utilizará la mina a cielo abierto para poder operar, y manifiesta que las aguas subterráneas son actualmente el recurso mineral más importante del planeta, está acumulado debajo de la superficie de la tierra, por eso debe haber un estudio que detalle el nivel freático del suelo, que en los trópicos es más alto debido a la precipitación, por eso estima deben haber estudios serios y certificados por profesionales colegiados en la materia.

El recurrente argumenta que habrá que determinar el impacto de este proyecto sobre el turismo de Costa Rica, que desde hace años ha escrito a diversas instancias internacionales sobre la conveniencia de proteger el corredor biológico Bolsón y zonas de amortiguamiento de Mesoamérica, con énfasis en la frontera norte que es un paraíso natural que muchos países desearían tener. Señala que no es cierta la idea que venden el Viceministro y el Alcalde de San Carlos en el sentido que la zona no vale nada y que este proyecto generará trabajo como factor de desarrollo nacional y además dejará impuestos que recibirá el municipio, que los políticos no razonan sobre la necesidad de proteger y conservar para las generaciones venideras, a favor de las cuales está presentando este amparo, estima que el país debe tener espacio para las urbanizaciones, campos agrícolas, turismo, conservación, y no una normativa de muerte y destrucción que altere la paz con la naturaleza. Solicita que se declare con lugar el recurso.

113- A folio 2865 del expediente consta la resolución de curso del amparo 08-14488-0007-CO presentado por Alain Murillo Bolaños.

114- A folio 2871, Roberto Dobles Mora en su condición de Ministro del Ministerio de Ambiente, Energía y Telecomunicaciones rinde el informe del amparo 08-14488-0007-CO indicando bajo fe de juramento que analizados los alegatos del recurrente no existe fundamento técnico que los sustente, por lo que son meras interpretaciones subjetivas, ya que los temas aludidos han sido ampliamente valorados por el Ministerio en apoyo con sus dependencias durante todo el proceso administrativo. El recurrente desconoce el proceso de 17 años que ha llevado la empresa para poder iniciar la explotación minera. Todos los argumentos del recurrente son temas ampliamente estudiados, la valoración del costo socioambiental del cambio de uso del suelo está considerada en la evaluación ambiental realizada por la SETENA, no es en el decreto como instrumento jurídico que se incluyen los estudios científicos que se realizaron para valorar el tema, para eso se hace la mención expresa de que el proyecto cuenta con la viabilidad ambiental, misma que está compuesta de amplísimos elementos y estudios, sin que ello invalide el acto.

No es con el decreto que el Estado viene a darse cuenta del cambio de uso ni de la corta de especies vedadas, este es un aspecto técnico conocido y estudiado. Cuando el proyecto fue consultado en audiencia pública el tema forestal ya se había diagnosticado y fue expuesto públicamente. Refiere que el acto está motivado y tiene fundamento técnico científico suficiente para la adopción responsable del mismo. El Estado no tiene en absoluto falta de certeza, al contrario la falta de certeza y conocimiento de los expedientes es del recurrente, el cual si tenía dudas pudo haber evacuado las mismas consultando a la administración. Solicita que se rechace el amparo.

115- Por resolución Número 17403 de las diez horas seis minutos del veintiuno de noviembre del dos mil ocho se acumuló a este expediente el amparo número 08-014488-0007-CO. (folio 2910) 116- A folio 2913 Roberto Dobles Mora en su condición de Ministro del Ministerio de Ambiente, Energía y Telecomunicaciones presenta en el amparo 08-14592-0007-CO solicitud de levantamiento parcial de la medida interpuesta por la Sala, lo anterior en virtud de que por inspección realizada por la Comisión Institucional de Seguimiento, Control y Fiscalización del Proyecto del 13 de noviembre del 2008 se determinó que las actividades llevadas a cabo no han generado impactos ambientales no previstos en los estudios, que la empresa ha cumplido con la paralización de obras del caso, sin embargo se solicita la autorización para realizar determinadas actividades pues la paralización del proyecto sí puede producir efectos ambientales adversos que no fueron contemplados.

Lo solicitado es permiso para extraer la madera cortada, disponer y dar tratamiento adecuado a los desechos vegetales presentes en el área de los tajos y de la laguna de relaves, se liberen drenajes de agua superficial y sus respectivas zonas de protección y se mantenga un control fitosanitario adecuado dentro del proyecto. Adoptar medidas de protección forestal, que se permita implementar y concluir obras para el control del sedimento y conservación de suelos y desarrollar el proceso de monitoreo.

117- A folio 2926, Jorge Rodríguez Quirós en su condición de Ministro a.i. del Ministerio de Ambiente, Energía y Telecomunicaciones manifiesta en el amparo 08-14488-0007-CO que presenta solicitud de levantamiento parcial de la medida interpuesta por la Sala, lo anterior en virtud de que por inspección realizada por la Comisión Institucional de Seguimiento, Control y Fiscalización del Proyecto del 13 de noviembre del 2008 se determinó que las actividades llevadas a cabo no han generado impactos ambientales no previstos en los estudios, que la empresa ha cumplido con la paralización de obras del caso, sin embargo se solicita la autorización para realizar determinadas actividades pues la paralización del proyecto sí puede producir efectos ambientales adversos que no fueron contemplados. Lo solicitado es permiso para extraer la madera cortada, disponer y dar tratamiento adecuado a los desechos vegetales presentes en el área de los tajos y de la laguna de relaves, se liberen drenajes de agua superficial y sus respectivas zonas de protección y se mantenga un control fitosanitario adecuado dentro del proyecto. Adoptar medidas de protección forestal, que se permita implementar y concluir obras para el control del sedimento y conservación de suelos y desarrollar el proceso de monitoreo.

118- En escrito presentado el 25 de marzo de 2009, Jorge Rodríguez en su condición de Ministro del Ministerio de Ambiente, Energía y Telecomunicaciones adjunta la ampliación de argumentos de descargo realizado al amparo Número 08-014488-0007-CO. (folio 2947) 119- A folio 3076 del expediente consta escrito de recurso de amparo presentado el 28 de octubre de 2008 por Javier Berrocal Obando, mayor, soltero, vecino de Escazú, con cédula 1-1828-012 en el que acusa la violación de lo dispuesto en los artículos 10, 11, 50, 56, 140, 148 y 149 de la Constitución Política, ya que el Decreto Ejecutivo Número 34801-MINAET, dado en la Presidencia de la República a las trece horas del trece de octubre del dos mil ocho, por el Presidente de la República de Costa Rica, y el Ministro del Ambiente, Energía y Telecomunicaciones, basa su autorización de tala de especies vedadas por el voto de la Sala Constitucional número 2002-002486 de las 10:54 horas del 08 de marzo del 2002, en este caso del almendro, en los artículos 19 y 34 de la Ley Forestal.

Indica que de los artículos citados se desprende que se podrá cambiar el uso de suelo para proyectos que tengan conveniencia nacional, sin embargo, el régimen de protección de las especies de almendro que se encuentran en la zona del Proyecto Minero Las Crucitas no es por regulación de uso de suelo, por lo que la resolución citada tiene un carácter erga omnes, y solo puede ser modificada por voto de la misma Sala Constitucional y no por Decreto Ejecutivo. Señala que analizando los artículos utilizados por el Poder Ejecutivo en el Decreto mencionado, se evidencia que se utilizó una interpretación propia de la ley, incurriendo en atribuciones no propias a su naturaleza, por lo que solo utiliza partes de los artículos, no los contextualiza y no utiliza las definiciones que el artículo 33 establece para la aplicación del artículo 34 de la Ley Forestal. Manifiesta que las especies de árboles vedadas que se encuentran en esta zona no recaen bajo ninguno de los supuestos que establece el artículo 33 de la Ley citada, por lo tanto tampoco son sujetos de los supuestos del artículo 34, por lo que es evidente el quebrantamiento del artículo 11 de nuestra Carta Magna al atribuirse, los funcionarios públicos responsables de este decreto, facultades que no poseen al interpretar la ley, y además la ruptura del principio constitucional que es el Principio de Legalidad, por cuanto el fin que se pretende alcanzar con este decreto no se puede fundamentar con las leyes utilizadas para hacerlo.

Estima que el contenido de dicho Decreto es contrario a derecho y por ende resulta ilegal, motivo por el cual, solicita a la Sala se declare con lugar el recurso, declarándose nulo dicho Decreto, debiéndose dejar sin efecto todas las resoluciones otorgadas a la luz del mismo.

120- A folio 3089 del expediente el Ministro de la Presidencia, del Ministerio de Ambiente, Energía y Telecomunicaciones y la Secretaria General de SETENA rinden el informe del amparo 08-14593-0007 en los mismos términos de los informes rendidos anteriormente.

121- El 4 de noviembre de 2008 Sonia Espinoza Valverde en su condición de Secretaria General de SETENA presenta un escrito en el amparo 08-14593-0007-CO indicando que en el escrito del recurrente no se le tiene como parte recurrida, sin embargo hace algunas precisiones respecto de lo acusado por el recurrente. Indica que el área que se utilizará para el tajo es de 50 hectáreas. Se van a reforestar 382 hectáreas. De las 50 hectáreas de tajos, 25 hectáreas van a recuperarse totalmente y las otras 25 desempeñarán un papel ambiental importante. Se van a crear las condiciones propicias para los ecosistemas, por lo cual no se puede hablar de inutilización de la tierra. En lo que concierne al uso de cianuro, el mismo será neutralizado por el sistema CYPLUS, el cual ofrece un rendimiento superior al establecido por la normativa nacional y reúne estándares internacionales. Asimismo existe un capítulo dentro del Estudio de impacto ambiental denominado Plan de Contingencia que incorpora todo tipo de eventualidades que podrían ocurrir, por su parte en caso de sismos la laguna de relaves contará con una estructura de rebalse o vertedor de excedencias que ha sido apropiadamente diseñada y aprobada desde el Estudio de Impacto Ambiental y su Anexo, con el fin de darle una estabilidad permanente al dique y para manejar en forma independiente excedentes de agua en los períodos de máxima precipitación.

A la salida de este vertedor de excedencias, se mantendrá un control permanente de la calidad del agua de rebalse y además se instalará una planta dosificadora de cal al igual que en la salida de los tajos, para en caso necesario poder neutralizar el ph del mismo. La ubicación de esta planta dosificadora es una medida adicional y un factor de seguridad extra, debido a que a partir de los estudios detallados que realizaron los expertos canadienses de la empresa Jacques Withford, se ha pronosticado que la calidad de agua de vertido tendría una calidad aceptable que cumplirá con las normas internacionales e internacionales para ser liberadas al ambiente. Con relación a la tala de árboles remite a la documentación que ha sido aportada con anterioridad y reitera que al finalizar el proyecto habrá 1.186 hectáreas de bosque de protección. (folio 3107) 122- A folio 3113 del expediente consta escrito presentado por Roberto Dobles Mora en su condición de Ministro del Ministerio de Ambiente, Energía y Telecomunicaciones en el que manifiesta en el amparo 08-014592-0007-CO: que presenta solicitud de levantamiento parcial de la medida interpuesta por la Sala, lo anterior en virtud de que por inspección realizada por la Comisión Institucional de Seguimiento, Control y Fiscalización del Proyecto del 13 de noviembre del 2008 se determinó que las actividades llevadas a cabo no han generado impactos ambientales no previstos en los estudios, que la empresa ha cumplido con la paralización de obras del caso, sin embargo se solicita la autorización para realizar determinadas actividades pues la paralización del proyecto sí puede producir efectos ambientales adversos que no fueron contemplados.

Lo solicitado es permiso para extraer la madera cortada, disponer y dar tratamiento adecuado a los desechos vegetales presentes en el área de los tajos y de la laguna de relaves, se liberen drenajes de agua superficial y sus respectivas zonas de protección y se mantenga un control fitosanitario adecuado dentro del proyecto. Adoptar medidas de protección forestal, que se permita implementar y concluir obras para el control del sedimento y conservación de suelos y desarrollar el proceso de monitoreo.

123- La misma solicitud de levantamiento parcial de la medida interpuesta por la Sala, fue presentada por Jorge Rodríguez Quirós en su condición de Ministro a.i. del Ministerio de Ambiente, Energía y Telecomunicaciones en el amparo 08-014593-0007-CO (folio 3126).

124- Mediante escrito recibido el 25 de marzo del 2009, Jorge Rodríguez en su condición de Ministro del Ministerio de Ambiente, Energía y Telecomunicaciones (folio 3148) adjunta un escrito de ampliación de argumentos de descargo al amparo 08-014593-0007-CO.

125- Por resolución Número 8178 de las trece horas treinta minutos del diecinueve de marzo del dos mil nueve se acumuló a este expediente el amparo número 08-014593-0007-CO. (folio 3157) 126- El 9 de junio de 2009 Alberto Cortés Ramos en su condición de miembro del Consejo Universitario solicita a la Sala que se le otorgue una audiencia a fin de exponer y entregar la posición del Consejo respecto al proyecto en cuestión. (folio 3186) 127- A folio 3204 consta un documento del proyecto de Crucitas presentado ante SETENA en el que proponen una auditoría ambiental internacional, a fin de disipar cualquier duda respecto a diversos criterios técnicos.

128- Por resolución de las once horas y seis minutos del diecisiete de junio de dos mil nueve el Magistrado Instructor resolvió: “Mediante escritos visibles a folios 437, 1008, 1320, 1441, 1458, 2039, 2075, 2913 y 2926 del expediente, el Ministerio del Ambiente, Energía y Telecomunicaciones, la empresa recurrida y la Regente Ambiental del Proyecto Minero Crucitas, solicitan autorización para la realización de medidas de mitigación con respecto a la corta de árboles realizada en el proyecto minero de previo al dictado de la medida cautelar dispuesta en esta acción de garantía. Las medidas de mitigación propuestas están referidas en términos generales a la extracción de la madera cortada y su disposición en patios de acopio dentro del área del proyecto; a la disposición y tratamiento de los desechos vegetales para disminuir la posibilidad de incendios forestales y la liberación de drenajes de agua superficial; a la adopción de medidas de protección y conservación del recurso forestal en zonas límite de las áreas de protección; y a la implementación de obras para el control de sedimento y conservación de suelos.

Particularmente, la Regente Ambiental del proyecto minero indica que las medidas concretas deben enfocarse hacia cuatro puntos principales, cuales son: a) la prevención de incendios forestales; b) la mitigación del efecto en las áreas de protección de ríos y quebradas; c) la mitigación de la erosión en los suelos; y, d) el programa de vida silvestre; determinando acciones específicas en cada uno de estos aspectos. Sobre el particular, y de conformidad con el principio precautorio en materia ambiental; en atención al impacto que se está generando por la imposibilidad de retirar del sitio la madera cortada y los desechos vegetales que obstruyen caminos internos y drenajes de aguas superficiales; y para evitar mayores riesgos ambientales por la dificultad de regeneración de la cobertura vegetal e incluso la amenaza de incendios forestales que no puedan ser atendidos; la Sala autoriza la realización de las medidas de mitigación propuestas visibles a folios 2048 y 2078 del expediente, excepción hecha de la construcción de cunetas en los caminos de acceso y la construcción de plantas de sedimentación, toda vez que estas dos medidas concretas implican la ejecución de obras cuya realización involucra otro tipo de maquinaria, la colocación de materiales exógenos y la participación de un mayor número de operarios en la zona.

Se ordena al Ministerio del Ambiente, Energía y Telecomunicaciones, ejercer con rigurosidad todas las acciones de control y supervisión necesarias para que se ejecuten únicamente las medidas de mitigación aquí autorizadas, y que lo sean de forma tal que no implique un daño o riesgo ambiental diverso.” (folio 3313) 129- Por escrito presentado el 23 de junio de 2009 vecinos de las comunidades Coopevega, Chamorro, El Roble y Las Crucitas del distrito de Cutris, El Jocote y Llano Verde solicitan a la Sala que se realice una visita a fin de comprobar la pobreza y abandono en que se encuentra esa zona y piden que se autorice el proyecto en cuestión por los beneficios que han otorgado a las comunidades. (folios 3322 a 3351) 130- De folios 3352 a 3575 del expediente constan gestiones en que los vecinos de la localidad del proyecto solicitan que se resuelva el asunto con prontitud para poder trabajar y se le permita al proyecto continuar para poder levantar a esa comunidad (con caminos, escuelas, capacitación, empleo, luz e ingresos) de la pésima situación en que viven.

131- El 30 de junio de 2009 consta aportado un documento que remitió el Ministro del Ministerio de Ambiente, Energía y Telecomunicaciones a la Directora Ejecutiva del Sistema Nacional de Áreas de Conservación y al Director del Área de Conservación Arenal Huetar Norte, en el que emite las medidas de mitigación que fueron aprobadas por la Sala. (folio 3578) 132- A folio 3582 del expediente consta el amparo 08-018101-0007-CO presentado por ESTEBAN ZAMORA QUESADA, cédula de identidad número 1-1048-824, FANNY MARÍA GONZÁLEZ QUIRÓS, cédula de identidad número 1-750-192, LUIS FERNANDO UREÑA DELGADO, cédula de identidad número 1-1006-584, PABLO CHACÓN VARGAS, cédula de identidad número 4-196-833, PATRICIA DOMÍNGUEZ VILLALOBOS, cédula de identidad número 4-158-795, VERA AGUERO V, cédula de identidad número 1-613-661, JEANNETH CHAVARRÍA MUÑOZ, cédula de identidad 4-155-185, RODRIGO ALFARO CAMBRONERO cédula de identidad 04-0171-0903, YENDRY HERNÁNDEZ SOLÍS, cédula de identidad 01-1151-0778, JOSÉ ANTONIO MEJÍA C, cédula de identidad 04-0119-0995, HAZEL LÓPEZ ALPIZAR, cédula de identidad 01-1098-0446, WILLIAM GUADAMUZ CASTRO, cédula de identidad 01-1280-0224, JENNIFFER RAMÍREZ VINDAS, cédula de identidad 02-0578-0071, GILDO LÓPEZ CARBALLO, cédula de identidad 04-0195-0369, SONIA REYES BOLAÑOS, cédula de identidad 01-0690-0851, WILLIAM CHINCHILLA MORA, cédula de identidad 01-0609-0815, MARÍA ISABEL CHAVES LEÓN, cédula de identidad 04-0122-0054, ERICK ALFARO CAMACHO, cédula de identidad 04-0182-0554, LAURA GRANDA VARGAS, cédula de identidad 04-0169-0275, FRANK MORALES CONEJO, cédula de identidad01-0798-0586, LETICIA LORÍA PRENDAS, cédula de identidad 05-0212-0556, MARISOL ZAMORA SALAZAR, cédula de identidad 04-0179-0445, LAURA DELGADO ULATE, cédula de identidad 01-0739-0987, AXEL HERNÁNDEZ VARGAS, cédula de identidad 01-0968-0694, WATSON LAWRENCE 07-0127-0432, KAREN SIBAJA CASCANTE, cédula de identidad 04-0190-0354, LIDIA CHANTO CANTILLANO, cédula de identidad 01-0773-0296, RANDALL GERARDO GARRO QUESADA, cédula de identidad 01-0819-0983, MARÍA ISABEL QUIRÓS E, cédula de identidad 01-0339-0408, RONALD GONZÁLEZ Q, cédula de identidad 01-0914-0127, LUIS DIEGO GONZÁLEZ QUIRÓS, cédula de identidad 04-0192-0436, ROSA ELENA CHACÓN COTO, cédula de identidad 03-0310-0912, HASSELL GONZÁLEZ QUIRÓS, cédula de identidad 01-1013-0264, JOSÉ J. GONZÁLEZ CH, cédula de identidad 01-0969-0219 y BARRANTES B, cédula de identidad 01-0654-0016, en el que alegan que como todo costarricense tienen derecho a que se respete el ambiente, por lo que se oponen a la autorización de "la Mina de Oro a Cielo Abierto en la Zona de Crucitas".

133- Por resolución Número 86 de las nueve horas del nueve de enero del dos mil nueve se acumuló a este expediente el amparo número 08-018101-0007-CO. (folio 3585) 134- A folio 3588 del expediente se hace constar que la resolución 2009-86 no se pudo notificar a los recurrentes por no haber señalado lugar para recibir notificaciones.

135- El 3 de julio de 2008 [Nombre 055] en su condición de Directora del Sistema Nacional de Áreas de Conservación del Ministerio de Ambiente, Energía y Telecomunicaciones, aporta escrito en el que le comunica al señor Oldemar Corrales del Área de Conservación Huetar Norte, que será el responsable de supervisar el cumplimiento de las medidas de mitigación autorizadas por la Sala. (folio 3589) 136- El 7 de julio de 2009 [Nombre 054] en su condición de apoderado generalísimo especial de la sociedad Industrias Infinito S.A. (folio 3590), informa a la Sala las medidas de mitigación que fueron tomadas con el visto bueno de la Oficina Subregional de San Carlos de ACAHN.

137- Se adjunta al expediente el oficio CCT-PI 023-09 del 20 de febrero del 2009 emitido por el Centro Científico Tropical, en el que se le contestan varios interrogantes al Ministro del Ministerio de Ambiente, Energía y Telecomunicaciones. Entre algunos de ellos, se indica que la lapa verde no depende exclusivamente de la zona Las Crucitas para su alimentación, ya que ésta hace uso de un extenso territorio compartido entre Nicaragua y Costa Rica (parte de cantones de San Carlos, Sarapiquí y Pococí). El área de forrajeo de la lapa supera el área de influencia del proyecto minero aproximadamente en 1.500 has. La lapa verde no anida en la zona de las Crucitas. El nido más cercano se encuentra a 8.7 km. Indica que ello probablemente es así debido a la alta fragmentación del hábitat en esa zona y la falta de árboles maduros de almendro amarillo. Tampoco es zona exclusiva para el tránsito de la lapa verde, ésta hace uso de un extenso territorio compartido entre Nicaragua (Reserva Biológica indio-Maíz y su zona de amortiguamiento en los municipios de El Castillo, San Juan del Norte, así como en la Región Autónoma del Atlántico Sur) y Costa Rica (parte de cantones de San Carlos, Sarapiquí y Pococí).

El proceso de reproducción de las 25 o 35 parejas de lapas verdes que anidan en Maquenque no se verá interrumpido con el proyecto minero, por cuanto las Crucitas se encuentra fuera del rango de reproducción de la lapa verde. Lo que puede disminuir en la visita de la lapa verde al proyecto minero debido a la disminución de los árboles de almendro amarillo y a la actividad humana presente. Sin embargo, indica que el cambio de uso de suelo en 192 has del proyecto no interrumpirá el ciclo alimenticio de la población de la lapa verde que anida en el Maquenque, el cual se encuentra a 8.1 km, lo que puede producir es el desplazamiento ya referido. Indica que el proyecto se encuentra en el noroeste del Corredor Biológico San Juan-La Selva y forma parte de una de las áreas más importantes para la Conservación de Aves, de la Reserva de Biosfera Agua-Paz y del Corredor Binacional El Castillo-San Juan-La Selva.

Esta zona ha sido definida como un núcleo importante para la conservación dentro del Corredor Biológico San Juan-La Selva y ha sido priorizada por el SINAC. Indica que el proyecto minero afecta un ecosistema único y es por esa razón que las medidas de mitigación de la corta de individuos de almendro amarillo y sus impactos perjudiciales sobre la población de la lapa verde deben ser orientadas a reparar los daños causados. Sembrar una cantidad aún muy alta de almendro amarillo para compensar los cortados no contribuye a recuperar este ecosistema, ni permite que la lapa verde se pueda alimentar a corto o mediano plazo, ya que no suele frecuentar árboles bajos. Comprar tierras en la cuenca alta del río Sala Carlos para la conservación del parque nacional Juan Castro Blanco no contribuye de ninguna manera a garantizar la viabilidad de la población del almendro amarillo y la lapa verde.

Por lo tanto, los proyectos de compensación y mitigación del proyecto deben perseguir los siguientes objetivos: 1-consolidar el Refugio Nacional de Vida Silvestre Maquenque por medio de la implementación de su Plan de Manejo (funcionarios del SINAC, vigilancia, infraestructura, compra de tierra, educación, monitoreo y ciencia, etc.) 2-Fortalecer la conectividad del Corredor Biológico San Juan –La Selva por medio de actividades de restauración ecológica en los nexos críticos de las rutas de conectividad identificadas. Así como un mayor compromiso del gobierno para consolidar el RNVSM Maquenque con el apoyo de la sociedad civil. (folio 3591) 138- El 27 de julio de 2009 Juan Carlos Hernández Jiménez en su condición de apoderado generalísimo especial de la sociedad Industrias Infinito S.A. (folio 3645), adjunta el informe denominado “Los Recursos Hídricos y el Proyecto Minero Crucitas” elaborado por la Hidrogeóloga Sandra Arredondo Lee, el cual concluye que el proyecto desde el punto de vista de uso y protección de los recursos hídricos es viable y no generará afectación durante su operación y cierre.

139 Por escrito presentado el 27 de julio de 2009 el recurrente [Nombre 001] en su condición de representante de la Asociación Norte por la Vida manifiesta su preocupación respecto de las medidas de mitigación que le fueron autorizadas a la empresa recurrida. Le preocupa cómo se logrará acopiar la madera talada sin que se afecte la cobertura vegetal que aún queda en el lugar. Refiere que no sabe si las medidas autorizadas por esta Sala son de conocimiento del Ministerio Público, lo cual sería importante a fin de evitar fugas de madera en forma ilegítima (folio 3738).

140- Mediante resolución de las once horas y trece minutos del veintiocho de octubre del dos mil ocho, se desglosó el escrito en el que José Merino del Río, en su condición de ciudadano y diputado, y Heidi Murillo Quesada en su calidad de representante de la Federación Costarricense para la Conservación del Ambiente presentan recurso de amparo contra el Presidente de la República y el Ministerio de Ambiente, Energía y Telecomunicaciones e indican que se vulnera lo dispuesto en los artículos 21, 50 y 89 de la Constitución Política, toda vez que, en su criterio, las autoridades recurridas autorizaron el cambio de uso de suelo en los terrenos de bosque ubicado en Las Crucitas de Cutris de San Carlos, Alajuela, así como la eliminación de la cobertura vegetal en áreas de protección de las fuentes de agua, a efecto de construir un proyecto de minería a cielo abierto con lixiviación de cianuro sustentado en el Decreto Ejecutivo Número 34801-MINAET de 30 de octubre de 2008, el cual, a su vez, se encuentra fundamentado en la definición de conveniencia nacional señalada en el artículo 2° del Decreto Ejecutivo Número 25721-MINAE, denominado Reglamento a la Ley Forestal y que consideran de inconstitucional.

De este modo, argumentaron, de modo expreso, lo siguiente: “(…) Tal y como consta en los considerandos III y IV del citado Decreto Ejecutivo N° 34801-MINAET el Poder Ejecutivo fundamenta la autorización otorgada para la corta de árboles (incluyendo especies vedadas y a la realización de obras de infraestructura en áreas cubiertas de bosque y áreas de protección del recurso hídrico), en lo dispuesto en el artículo 2 del Decreto Ejecutivo N° 25721-MINAE (…) Esta norma reglamentaria define –en lo que interesa- el concepto de actividades de “conveniencia nacional” para efectos de lo dispuesto en los artículos 19 inciso b) y 34 de la Ley Forestal como actividades “relacionadas con el estudio y ejecución de proyectos o actividades de interés público efectuadas por las dependencias centralizadas del Estado, las instituciones autónomas y la empresa privada, que brinden beneficios a toda o gran parte de la sociedad tales como: “(…) actividades mineras”.

Entonces, según la motivación del acto realizada por el Poder Ejecutivo en la parte final del considerando IV, “con ocasión de esta declaratoria”, es decir, con base en lo establecido en la definición citada del artículo 2 del Reglamento a la Ley Forestal “la empresa puede proceder a solicitar la autorización para la corta de árboles y la realización de obras en el área de protección de quebradas y ríos”. Así las cosas, tenemos que el razonamiento seguido por el Poder Ejecutivo para justificar su decisión es el siguiente: el artículo 6 del Código de Minería declara de forma genérica todas las actividades mineras de “interés público” y el artículo 2 del Reglamento a la Ley Forestal declara de “conveniencia nacional” las “actividades de interés público” incluyendo “las actividades mineras”, entonces, automáticamente debe concluirse que el proyecto minero “Las Crucitas” es de conveniencia nacional y la empresa interesada queda autorizada para cambiar el uso del suelo en terrenos de bosque y talar árboles en áreas de protección del recurso hídrico (…)”.

En consecuencia, sostuvieron que la definición de conveniencia nacional contenida en el artículo 2° del Reglamento a la Ley Forestal se encuentra viciada de inconstitucionalidad por lesionar el derecho constitucional a un ambiente sano y ecológicamente equilibrado, lo cual, acarrearía como consecuencia directa la inconstitucionalidad del Decreto Ejecutivo Número 34801-MINAET. Para tales efectos, explicaron que la Ley Forestal establece, en principio, una prohibición general para el cambio de uso de suelo en terrenos privados cubiertos de bosque, así como para la eliminación de árboles en áreas de protección del recurso hídrico enlistadas en su artículo 33. Asimismo, indicaron que, inmediatamente, después, esa misma Ley Forestal, en sus artículos 19, inciso b) y 34 establece una serie de excepciones a esa prohibición, entre las que se encuentran, respectivamente, “los proyectos de infraestructura, estatales o privados, de conveniencia nacional” y los “proyectos declarados por el Poder Ejecutivo como de conveniencia nacional”.

Bajo dicha inteligencia, argumentaron que, en atención al principio “pro homine”, tales excepciones deben de interpretarse de forma limitada y restrictiva, por cuanto, se trata de prohibiciones que protegen el derecho de la persona humana a disfrutar de los bosques, el agua, la biodiversidad, etc. Por lo tanto, sostuvieron que el Poder Ejecutivo no se encuentra facultado para ampliar, vía reglamento, tales excepciones, más allá de lo, expresamente, dispuesto por la ley. Añadieron, que la inclusión de la frase “actividades mineras” en la norma impugnada, constituye, entonces, un exceso en el ejercicio de la potestad reglamentaria del Poder Ejecutivo que sobrepasa los límites establecidos en los artículos 19 y 34 de la Ley Forestal, desnaturalizando por completo los fines de protección del bosque y del agua frente al cambio del uso del suelo y la corta de árboles en general.

Manifestaron, que, en ninguna parte, la Ley Forestal establece una autorización para cambiar el uso de suelo en terrenos de bosque para fines de explotación minera. De otra parte, señalaron que la norma impugnada incluye dentro de las actividades que se consideran de conveniencia nacional los proyectos de minería, ignorando que existen muchos tipos de actividad minera con muy diversos impactos sociales y ambientales. En ese sentido, explicaron que existe la minería no metálica (explotación de tajos y canteras, extracción de materiales en cauces de ríos, etc.), así como la minería metálica a cielo abierto, incluyendo la explotación de metales pesados con técnicas altamente riesgosas como la lixiviación con cianuro u otros químicos tóxicos. Solicitaron, que, de conformidad con lo estipulado por el artículo 48 de la Ley de la Jurisdicción Constitucional, se les conceda plazo para interponer la acción de inconstitucionalidad en contra de la definición de conveniencia nacional contenida en el artículo 2°, del Decreto Ejecutivo Número 25721-MINAE de 17 de octubre de 1996 y sus reformas, denominado Reglamento a la Ley Forestal.

1. 141Por resolución de las quince horas y veinte minutos del once de noviembre de dos mil ocho se le dio curso al amparo 08-014992-0007-CO (folio 3772).
2. 142El 18 de noviembre de 2008 José Merino del Río solicita a la Sala que se adicione la resolución de las quince horas con veinte minutos del once de noviembre de dos mil ocho y se les conceda plazo para interponer acción (folio 3778).

143- Informó bajo juramento, Sonia Espinoza Valverde, en su condición de Secretaria General de la Secretaría Técnica Nacional Ambiental en relación con el amparo 08-014992-0007-CO (visible a folio 3781), que con un criterio errado los recurrentes contraponen el principio “pro homine” a la realización del proyecto, identificando éste último con el derecho a un ambiente sano y adecuado. Las características geomorfológicas predominantes en el área de influencia directa del Proyecto Crucitas, no se consideran como una limitante para su desarrollo; si es evidente que constituye uno de los componentes del medio físico que serán más afectados por la excavación que se requiere para la extracción del oro, lo cual provocará un impacto mayor sobre las áreas denominadas Formas de Origen Volcánico a las cuales pertenecen los cerros Botija y Fortuna. En cuanto a la red hídrica en términos del patrón de drenaje, se tiene que éste aún cuenta con las características típicas de la red hídrica de la zona, la cual hasta la fecha no se ha visto modificada por influencia antrópica, su distribución es conforme las condiciones topográficas, edáficas y litológicas ha permitido su paso, moldeando las características del relieve y la distribución de la red hídrica.

Con respecto a la calidad del agua se determinó la no potabilidad del agua que drena el área de influencia del Proyecto Minero Crucitas, asociado a las características del uso del suelo predominante en la zona, donde la ganadería es una de las principales actividades productivas. El desarrollo de las actividades de remoción y corte del terreno, en conjunto con la ocurrencia de fuertes lluvias, conforman la fórmula para que se desencadenen procesos erosivos y arrastre de materiales hacia los cuerpos de agua que drenan el área del proyecto, efectos que se estarán dando durante la operación del proyecto, por lo que en el Plan de Gestión Ambiental se han tomado medidas necesarias para su control y mitigación. Hidrogeológicamente, bajo el área del proyecto se encuentran 2 acuíferos; en el acuífero superficial se alberga en materiales superficiales meteorizados, con nivel freático aproximadamente a 4 m de profundidad, con características de afluencia en algunas quebradas y flujo gobernado por el relieve del terreno, por lo que no se puede establecer un flujo regional.

Análisis físico-químicos realizados en setiembre de 2000 y 2006, indican que el acuífero superior cumple con las normas de potabilidad excepto por el pH, el cual es bajo, los datos reportados registran el pH entre 5.76 y 4.92, por debajo de la norma mínima nacional (6.5 pH). Según el diseño del Proyecto Minero Crucitas, el acuífero superior no representa limitaciones para su desarrollo. En el acuífero inferior se alberga en rocas ígneas del basamento, de carácter confinado sin afloramientos en la superficie; este acuífero sí presenta un flujo regional este-oeste y este suroeste, con gradiente hidráulica de 3.2%. Aparentemente, la capa confinante no la conforma la saprolita, sino que está formada por algunos horizontes de baja permeabilidad ubicados dentro del propio basamento. El acuífero inferior presenta una concentración más alta en todos los parámetros químicos, lo cual es comprensible debido a que es un acuífero más profundo, en el que el agua tiene un mayor tiempo de residencia y está más propensa a ser afectada por las alteraciones hidrotermales relacionadas con el yacimiento mineral.

Por lo que este acuífero presenta condiciones de baja calidad de aguas, ya que los valores de amonio, hierro, potasio, sulfatos, color y turbidez superan la norma de potabilidad. En cuanto a la posibilidad de contaminación de ríos y quebradas incluido el río San Juan, se indica que el sistema para la reducción del cianuro se denomina CYPLUS, el mismo se constituye en una herramienta indispensable para la gestión ambiental del proyecto de tal forma que por ser un sistema de punta y probado en otros países como Estados Unidos donde ha sido avalado por la Agencia de Protección Ambiental de este país (EPA), permite garantizar los niveles que la normativa actual fija en el país (menor 1 ppm).ppm=partes por millón. La planta está diseñada para que la descarga a la laguna de relaves posea una concentración entre 30-90 ppb (partes por billón), lo cual permite que el desarrollo del proyecto cumpla con la norma internacional que es de 100 ppb (0.1 ppm), adicionalmente el proceso remueve exitosamente todos los materiales base incluido el cobre.

El proceso final de pulimiento de desechos mediante la degradación natural del cianuro se realiza en la laguna de relaves, entendiéndose este proceso como la reducción completa de cianuro de las aguas residuales en ausencia de la intervención humana, por lo que las aguas tanto superficiales como subterráneas en el área del proyecto y su área de influencia no serán contaminadas. En lo que respecta a la extracción de roca dura, el efecto en relación al sistema de extracción de saprolita, consiste en la afectación de la cantidad de agua subterránea por el afloramiento del acuífero inferior durante la excavación de los tajos. Se espera el abatimiento del nivel del agua subterránea hasta la base de este acuífero esta situación tal y como se presentó en el estudio de impacto ambiental por las características que presenta de distribución y flujo, generaría un radio de influencia máximo esperado de 267 metros, situación que obviamente no afectaría propiedades que se encuentren fuera de ese radio que de por sí se ubica en su totalidad dentro de las propiedades de Industrias Infinito, por lo que no se verían afectadas tomas de agua o pozos en propiedades aledañas.

El abatimiento se generaría en las inmediaciones de la excavación, pero la magnitud de ese descenso del nivel del agua puede ser prácticamente imperceptible fuera de ese radio de 267 metros. No hay extracciones de agua subterránea en esa distancia por lo que se consideró que ese impacto no tiene relevancia en términos de uso del acuífero. Este efecto sería permanente en el tajo Fortuna, pues el área del tajo Fortuna persistiría aún después del cese de las operaciones. El acuífero inferior presenta condiciones de confinamiento y en algunos sectores un comportamiento artesiano surgente, donde el nivel piezométrico presenta una dirección de flujo es aproximadamente noreste-suroeste, y donde la cota del nivel piezométrico en el sector donde se ubicarán los tajos es de aproximadamente 73 msnm, por lo que entonces el acuífero inferior será intersecado en ese punto, en ese caso, el afloramiento de agua conforme se avance la extracción por debajo de la cota 73, será bombeado hacia la laguna de relaves hasta que se finalice la extracción y entonces en el tajo Botija que se rellenará, el nivel de agua podrá recuperar aproximadamente su ubicación dentro del material que se ubicará dentro del tajo, para posteriormente recuperar con vegetación la superficie del terreno.

En el caso del tajo Fortuna, el nivel recuperará su ubicación pero rellenará el pit formando un lago. Para evaluar los efectos de la excavación de los tajos sobre el acuífero inferior, se hizo una evaluación mediante modelación del abatimiento del nivel del agua en la propia excavación y en sus alrededores. Para ello se utilizó un modelo de flujo radial (Rushton y Redshaw, 1979) y se calculó el caudal necesario a extraer de la excavación para mantener el nivel del agua en el piso del tajo mientras se terminan las labores de extracción y se calculó también el radio de influencia. Para esto se hizo una simplificación geométrica de la forma de los tajos y se le dio énfasis al tajo Fortuna, ya que el agujero del Botija será rellenado. En términos generales, el área de la base del tajo Fortuna se tomó como 19103.8 m2. El área del espejo de agua una vez recuperado se calcula en 88096.6 m2.

Este efecto de abatimiento del nivel en el acuífero inferior es temporal, ya que una vez que cesen los trabajos de explotación del material y ya no exista la extracción del agua desde la excavación, el nivel del agua subterránea empezará a recuperarse hasta alcanzar la cota de 73 msnm que presenta actualmente. Debe tenerse presente que, tal y como se especificó en el Estudio de Impacto Ambiental, el acuífero inferior no es utilizado en la zona del proyecto. Su agua no es potable por los altos valores de turbidez, color, sulfatos (parcialmente) amonio, hierro y potasio, entre otros. Asevera que el proyecto es ambientalmente viable, por lo que no cabe contraponer la realización de éste a la preservación del ambiente, dado que, se ha previsto un estado de equilibrio armonioso en la evaluación de impacto ambiental. Manifestó, que la identificación del principio, únicamente, con el derecho a un ambiente adecuado en su faceta de naturaleza no es exacta, por cuanto, en el concepto de ambiente se incluye un componente social que será beneficiado con el proyecto, así como un aspecto natural que es objeto de las medidas ambientales correspondientes.

Añadió, que se respetan los principios de razonabilidad y proporcionalidad. Afirmó, que lo relevante es el proceso de evaluación de impacto ambiental al que se ha sujetado la actividad, de modo que ha demostrado su viabilidad ambiental y el equilibrio debido entre la misma y el medio. Finalmente, indicó, de modo expreso, lo siguiente: “(…) La clasificación del proyecto, tanto por el Código de Minería, como por el Reglamento, como de un alto impacto ambiental potencial (A), ha implicado que la evaluación de impacto ambiental (EIA) se realizó exigiendo la elaboración del instrumento más fuerte y riguroso de evaluación, cual es el Estudio de Impacto Ambiental (EsIA), llegándose por parte del proceso de evaluación a la conclusión de que el proyecto es ambientalmente viable (…)”. Solicita que se declare sin lugar el recurso.

144- Informa bajo juramento, Roberto Dobles Mora, en su condición de Ministro del Ambiente, Energía y Telecomunicaciones en relación con el amparo 08-014992-0007-CO (visible a folio 3800), que el Decreto Ejecutivo Número 34801-MINAET, no sólo se encuentra fundamentado en el artículo 2° del Reglamento a la Ley Forestal, sino, también, en los artículos 3, inciso m), 19 y 34 de la Ley Forestal. Manifestó, que la norma impugnada ha sido conocida, de previo, por la Sala Constitucional (Voto Número 2006-17126), quien la ha considerado como uno de los límites a la discrecionalidad administrativa al momento de realizarse la declaratoria de conveniencia nacional. Adujo que la declaratoria de interés público y conveniencia nacional está dada por ley, siendo que la norma en cuestión, únicamente, se limita a realizar un listado numerus apertus de las posibles actividades para orientar al operador jurídico y a la misma administración pública. En consecuencia, afirmó que lo dispuesto por el artículo 2° del Reglamento a la Ley Forestal se encuentra acorde con lo dispuesto a nivel legal. Reitera los alegatos señalados en los demás amparos acumulados. Solicita que se declare sin lugar el recurso planteado.

1. 145En relación con el amparo 08-014992-0007-CO, Rodrigo Arias Sánchez en su condición de Ministro de la Presidencia informó bajo juramento, en similares términos a lo manifestado por el Ministro del Ambiente, Energía y Telecomunicaciones y a los informes rendidos anteriormente en los amparos acumulados a este expediente. (visible a folio 3905),
2. 146A folio 3930 consta la solicitud anterior de Jorge Rodríguez Quirós en su condición de Ministro del Ministerio de Ambiente, Energía y Telecomunicaciones, del levantamiento de la medida cautelar a fin de aplicar las medidas de mitigación correspondientes.

147- Por resolución Número 523 de las once horas cincuenta y dos minutos del dieciséis de enero de dos mil nueve, la Sala anuló la resolución de las quince horas y veinte minutos del once de noviembre de dos mil ocho y ordenó acumular a este expediente el amparo Número 08-014992-0007-CO. (folio 3951) 148- En escrito presentado el 25 de marzo de 2009, Jorge Rodríguez en su condición de Ministro del Ministerio de Ambiente, Energía y Telecomunicaciones adjunta la ampliación de argumentos de descargo realizado al amparo Número 08-014992-0007-CO. (folio 3962) 149- El 30 de julio de 2009 el recurrente [Nombre 001] en su condición de representante de la Asociación Norte por la Vida reitera su preocupación respecto de las medidas de mitigación que le fueron autorizadas a la empresa recurrida. Le preocupa cómo se logrará acopiar la madera talada sin que se afecte la cobertura vegetal que aún queda en el lugar. Refiere que no sabe si las medidas autorizadas por esta Sala son de conocimiento del Ministerio Público, lo cual sería importante a fin de evitar fugas de madera en forma ilegítima (folio 3971).

1. 150Por resolución de las doce horas y cuarenta y ocho minutos del tres de agosto de dos mil nueve, se ordenó como prueba para mejor resolver la inspección ocular en el proyecto Minero Las Crucitas, para lo cual se fijaron las once horas del once de setiembre de 2009 (folio 3973).

151- Por escrito presentado el 13 de agosto de 2009, Gustavo Oreamuno Vignet en su condición de Presidente de la Asociación de Iniciativas Populares DITSO, manifiesta apoyar el presente recurso y solicita que sea declarado con lugar el mismo (folio 4022).

152- El 13 de agosto de 2009 Juan Carlos Hernández Jiménez en su condición de apoderado generalísimo especial de la sociedad Industrias Infinito S.A. solicita al Tribunal que se aclare la dinámica de la inspección, las personas autorizadas a participar y los lugares a inspeccionar (folio 4025).

153- La Regente Ambiental del proyecto en cuestión, Sandra Arredondo, se refiere en el escrito presentado el 14 de agosto de 2009 a las condiciones físicas del lugar, a efecto de tomarlas en consideración para la inspección ocular.

154- Por resolución de las trece horas y cincuenta y cuatro minutos del dieciocho de agosto de dos mil nueve, la Sala aclaró que la diligencia a realizarse es una inspección ocular y no la celebración de una vista, razón por la cual, las partes sólo se manifestarán ante cualquier eventual pregunta que formule el Tribunal. Asimismo, que si bien es cierto en las áreas públicas cualquier persona que tenga interés puede acudir, en las zonas restringidas únicamente podrán ingresar aquellos que estén apersonados como recurrentes en el expediente y máximo dos representantes de cada una de las instituciones recurridas y de la empresa Industrias Infinito S.A., lo cual deberá ser previsto por esta última, a efecto de asegurar el ingreso de los mismos y de la delegación de esta Sala que asista. Los lugares que se visitarán serán: el área donde se produjo la corta de árboles y la extensión que cubre el área autorizada para ser talada, el vivero, el área de extracción de oro, las lagunas de relave y áreas de contingencia, afloramientos del acuífero superior, quebradas, yurros y ríos en el área del proyecto, área donde se almacenará el cianuro y cualquier contenedor, los proyectos implementados en la zona para beneficio social, así como cualquier otra área en que las partes manifiesten interés en el acto y que el Tribunal considere pertinente. Para dichos efectos el Ministerio de Seguridad Pública deberá tomar las medidas correspondientes, a fin de garantizar el debido acceso a los caminos y mantener el orden público.

155- Por escrito presentado el 19 de agosto de 2009, el recurrente Lorenzo Cambronero Méndez solicita que se aclare si todas las personas van a participar en la inspección, el lugar en que dará inicio la misma, el tiempo con que cuenta las partes para sus preguntas, quiénes los pueden acompañar y cuánto tiempo tienen para argumentar.

156- El 21 de agosto de 2009, Jorge Rodríguez Q. en su condición de Ministro del Ambiente, Energía y Telecomunicaciones, solicitó a la Sala que se convocara a la inspección al Departamento de Aguas, la Dirección de Geología y Minas y al Área de Conservación Huetar Norte.

157- El 27 de agosto de 2009, Juan Carlos Hernández Jiménez en su condición de apoderado generalísimo especial de la sociedad Industrias Infinito S.A. solicita al Tribunal que se indique expresamente cuáles personas están autorizadas a ingresar al proyecto y si los coadyuvantes podrán participar en la inspección a realizar (folio 4123).

158- A folio 4128 del expediente consta el amparo 08-014592-0007-CO presentado por Alexa Villavicencio Córdoba contra el MINAET, SETENA y el Ministerio de la Presidencia, en el que acusa que no está conforme con el Proyecto Minero Las Crucitas en Cutris de San Carlos. Indica que dicho proyecto fue señalado como de interés público -por medio de Decreto Ejecutivo número 34801-MINAET-, sin considerar las especies arbóreas en peligro de extinción como es el caso del Almendro. Sostiene que el cuestionado Decreto basó su autorización en los artículos 19 y 34 de la Ley Forestal para la tala de especies que fueron consideradas vedadas por sentencia de la Sala Constitucional número 2002-002486 de las diez horas cincuenta y cuatro minutos del ocho de marzo del dos mil dos; sin embargo, indica que de los artículos citados se desprende que se podrá cambiar el uso de suelo para proyectos que tengan conveniencia nacional, pero el régimen de protección de las especies de almendro que se encuentran en la zona del Proyecto Minero Las Crucitas, no está establecido por regulación de uso de suelo sino por la resolución citada que tiene un carácter erga omnes y por tanto solo puede ser modificada por votación de la misma Sala Constitucional y no por Decreto Ejecutivo.

Señala que analizando los artículos utilizados por el Poder Ejecutivo en el Decreto mencionado, se evidencia que se utilizó una interpretación propia de la ley, incurriendo en atribuciones no propias a su naturaleza, por lo que solo utiliza partes de los artículos, no los contextualiza y no utiliza las definiciones que el artículo 33 establece para la aplicación del artículo 34 de la Ley Forestal. Manifiesta que las especies de árboles vedadas que se encuentran en esta zona no recaen bajo ninguno de los supuestos que establece el artículo 33 de la Ley citada, por lo tanto tampoco son sujetos de los supuestos del artículo 34, por lo que es evidente el quebrantamiento del artículo 11 de la Constitución Política al atribuirse, los funcionarios públicos responsables de este Decreto, facultades que no poseen al interpretar la ley, y además la ruptura del principio constitucional que es el Principio de Legalidad, por cuanto el fin que se pretende alcanzar con el Decreto no se puede fundamentar con las leyes utilizadas para hacerlo, constituyéndose entonces ese acto en un abuso de poder y en una extralimitación en las actuaciones del Poder Ejecutivo.

Agrega que el artículo 6 del Código de Minería no faculta a las empresas a realizar actividades de minería en cualquier terreno público o privado, simplemente autoriza la actividad minera la cual se supedita a permisos para los cuales se deben hacer estudios y se deben fundamentar en criterios técnicos, sometidos a lo que estipulen leyes especiales en cuanto a protección ambiental, así como también a resoluciones de la Sala Constitucional que afecten esa materia. Estima que no es competencia del Poder Ejecutivo realizar interpretaciones de normas en aras de fundamentar sus actuaciones. Añade que el decreto que cuestiona establece en el punto VII del Considerando que la mina tendrá una vida útil de once años pero no contempla que al finalizar la vida útil de esa mina de oro, la zona quedará completamente inutilizada para realizar otro tipo de actividades ya que por la naturaleza de la minería a cielo abierto, ello implica la total destrucción del área utilizada así como el riesgo previo a su cierre por ejemplo en materia de aguas utilizadas para el proceso de separación del oro que quedan en pilas de lixiviación de cianuro.

Considera que esta situación no cumple con la garantía que el Estado debe brindar al ciudadano de un ambiente sano y ecológicamente equilibrado al que se refiere el artículo 50 constitucional, así como tampoco está garantizando el derecho al trabajo digno de los actuales y futuros residentes de la zona donde se localiza el proyecto minero Las Crucitas. Estima que el contenido de dicho Decreto es contrario a derecho y por ende resulta ilegal, motivo por el cual, solicita a la Sala se declare con lugar el recurso, declarándose nulo dicho Decreto, debiéndose dejar sin efecto todas las resoluciones otorgadas a la luz de éste.

1. 159Informa bajo juramento Sonia Espinoza Valverde en su calidad de Secretaria Técnica Nacional Ambiental en el expediente No. 08-14592-0007-CO (folio 4145), que sobre el Decreto número 34801-MINAET que declara de interés público y conveniencia nacional el Proyecto Minero Crucitas, habrá de informar el Ministerio de Ambiente, Energía y Telecomunicaciones dado que es el ente que tramitó y aprobó dicho decreto. Agrega que en cuanto al permiso para la corta de árboles, la autoridad para pronunciarse es el Sistema Nacional de Áreas de Conservación. Indica que sobre las actuaciones de su representada en el Proyecto Mina Crucitas, se remite a los informes que constan en los recursos de amparo 08-008647-0007-CO, 08-014068-0007-CO, 08-014464-0007-CO, 08-014454-0007-CO y 08-014593-0007-CO. Agrega que en cumplimiento de la orden girada por la Sala a su representada en el expediente 08-014068-0007-CO, se ordenó la paralización de la tala de árboles mediante oficio número SG-AJ-1150-2008-SETENA del veintiuno de octubre del dos mil ocho y por oficio número SG-AJ-1196-2008-SETENA del treinta de octubre siguiente, se paralizó la construcción en las zonas de protección referentes al proyecto.Indica que es imposible aportar el expediente administrativo porque éste se encuentra en el Poder Judicial al haber sido secuestrado por la Fiscalía General de la República el veintiuno de octubre del dos mil ocho. Finaliza solicitando que se declare sin lugar el recurso.
2. 160Informa bajo juramento Roberto Dobles Mora en su condición de Ministro de Ambiente, Energía y Telecomunicaciones en el expediente No. 08-14592-0007-CO (folio 4148) que la especie del Almendro no se encuentra en peligro de extinción. Señala que el artículo 6 inciso e) de la Ley Forestal 7575 dispuso como competencia de la Administración Forestal del Estado establecer vedas de las especies forestales en vías o en peligro de extinción o que pongan en peligro de extinción otras especies de plantas, animales u otros organismos, de acuerdo con los estudios técnicos respectivos y conforme a otras disposiciones del ordenamiento jurídico vigente, sin que se aplique dicha veda a las plantaciones forestales. Indica que con base en esa competencia, su representado establece la veda del Almendro Amarillo con el fin de proteger la Lapa Verde que está en peligro de extinción, lo que se hizo en decreto 25167-MINAE del doce de junio de mil novecientos noventa y seis.Agrega que bien conoce ese Ministerio la restricción de tala del Almendro Amarillo para aprovechamiento maderable y por tanto se protege esta especie para proteger en última instancia a la lapa verde; reconocimiento que no ha sido violentado por el Poder Ejecutivo al emitirse el Decreto impugnado 34801-MINAET que declara de conveniencia nacional y de interés público el Proyecto Minero Crucitas. Agrega que la resolución de la Sala Constitucional número 2002-02486 del ocho de marzo del dos mil dos expresamente indica que se debe respetar el impedimento de tala de esa especie principalmente donde se encuentra el hábitat óptimo para la sobrevivencia de la especie y según los estudios técnicos que constan en el expediente 129-2002 bajo el cual se tramitó la Evaluación de Impacto Ambiental y en el Plan de Gestión Ambiental presentado ante la Secretaría Técnica Nacional Ambiental, se tiene que de los diferentes estudios sobre la protección de la lapa verde así como en los mapas oficiales de hábitat de dicha especie se desprende que dentro del área del proyecto no existen en la actualidad nidos activos de lapa verde, razón por la que se descarta la afectación a sitios de anidación.Recalca que científicamente está comprobado que la especie del almendro amarillo es sólo una de las 36 especies de las que se alimenta la lapa verde y que la especie del almendro amarillo da fruto solamente entre los meses de noviembre a marzo. Argumenta que la viabilidad ambiental otorgada por la Secretaría Técnica Nacional Ambiental valoró todos los impactos ambientales previstos y se aprobaron las medidas de mitigación necesarias para la no afectación de la especie en peligro de extinción. Señala que debe tenerse en cuenta que las resoluciones 3638-2005 SETENA del doce de diciembre del dos mil cinco que aprobó la viabilidad ambiental del proyecto y 170-2008-SETENA del cuatro de febrero del dos mil ocho que aprobó modificaciones al proyecto, son actos firmes y fueron emitidos después de realizar un amplio análisis a través del instrumento previsto, sea el Estudio de Impacto Ambiental.Agrega que en el caso concreto, la veda que impide la corta del almendro ha sido analizada por la Sala Constitucional únicamente en el supuesto de aprovechamiento maderable, nunca en el de conveniencia nacional, de manera que se está frente a dos supuestos distintos donde concurren diferentes elementos en la configuración de la especie fáctica. Señala que la corta del almendro en función del instrumento denominado Conveniencia Nacional previsto por la Ley Forestal, amerita otras consideraciones al realizarse el análisis frente al numeral 50 de la Constitución Política, ello dada la connotación social de dicho instrumento y su relación con un ambiente sano y ecológicamente equilibrado, así como la no existencia en los artículos 19 y 34 de la Ley Forestal de excepciones frente a especies ni distinciones dentro del ecosistema del bosque sobre el que puede declararse la conveniencia nacional.Agrega que la propia Sala Constitucional ha señalado en las sentencias números 2006-17126 y 2008-13426 que los artículos 19 y 34 en cuanto establecen la conveniencia nacional son absolutamente conformes con la Constitución. Manifiesta que sobre el tema del desarrollo sostenible, la Declaración de Río sobre Medio Ambiente y Desarrollo preceptúa que los seres humanos constituyen el centro de las preocupaciones relacionadas con el desarrollo sostenible y tienen derecho a una vida saludable y productiva en armonía con la naturaleza; así como también que el derecho al desarrollo debe ejercerse en forma tal que responda equitativamente a las necesidades de desarrollo y ambientales de las generaciones presentes y futuras. Considera que en relación con tales principios la herramienta de conveniencia nacional resulta totalmente acorde. Añade que la declaración de la conveniencia nacional del Proyecto Minero Crucitas no implica en ningún momento un levantamiento de la veda ni un acto violatorio a ésta por cuanto la tala permitida se realiza al amparo de la normativa, en aplicación de un instrumento jurídicamente dado como excepción y respaldado en estudios técnicos.En su criterio la recurrente ha realizado una interpretación equívoca del fundamento jurídico del Decreto Ejecutivo 34801-MINAE y afirma que la Sala Constitucional en la sentencia número 2002-002486 analizó una conducta específica que es el aprovechamiento maderable del almendro frente a la protección de la lapa verde y consideró que era imperante para un verdadero auxilio a dicha especie, restringir de una manera más amplia la corta del almendro en los términos ya indicados. Indica que la corta de los árboles del almendro existentes en el área del proyecto se autoriza no con fundamento en el cambio de uso como aplicación específica para la veda porque como es de conocimiento general, dicho supuesto no existe; sino como consecuencia inmediata de la aplicación de la conveniencia nacional permitida normativamente como excepción para cambiar el uso de un bosque (sin excepción) y que no fue contravenida en la resolución 2002-002486 de la Sala Constitucional.Agrega que en el caso de Crucitas se está declarando la conveniencia para un proyecto privado de infraestructura en la categoría de minería y de interés nacional, lo cual es totalmente acorde con el numeral 2 del Decreto Ejecutivo número 25721-MINAE que es el Reglamento a la Ley Forestal. Indica que la tala de bosque responde a una actividad implícita del proyecto cuyo impacto fue valorado por la Secretaría Técnica Nacional Ambiental en la evaluación de impacto ambiental. Añade que la conveniencia nacional como instituto legal y como instrumento de desarrollo sostenible permite la tala de bosque en general y ello lleva necesariamente a estudiar el sustento de la conveniencia nacional a fin de que la recurrente pueda comprender su correcta aplicación. Argumenta que la conveniencia nacional es un instrumento legal que se rige por los artículos 19, 34 inciso m) de la Ley Forestal y por el artículo 2 de su Reglamento y esa declaratoria es necesaria para autorizar legalmente la corta de árboles en dos supuestos establecidos en esos artículos: a) cambio de uso de suelo establecido en el artículo 19 de la Ley Forestal y b) corta de árboles en áreas de protección descritas en el artículo 33 de la Ley Forestal.Indica que sobre dichas estipulaciones la Sala Constitucional mediante resolución número 2006-17126 ha considerado que no son contrarias a los preceptos constitucionales. Estima que dichos artículos son una materialización de la posibilidad que debe darse el país para un desarrollo sostenible real. Indica que el concepto de conveniencia nacional puede ser leído en los artículos 3 inciso m) de la Ley Forestal y en el artículo 2 de su Reglamento. Agrega que de lo dicho se desprende que la actividad minera puede ser declarada de conveniencia nacional y este instrumento parte del supuesto de la existencia de costos socio ambientales. Indica que precisamente el tipo de permiso forestal tramitado para la concesión minera es para el cambio de uso del suelo y eso implica una decisión técnica inevitable de eliminación total en el área autorizada de la cobertura vegetal; decisión técnica que no tiene otras opciones pues se requiere para lograr la explotación propuesta.Destaca que el permiso de cambio de uso del suelo tiene la característica de que su fin no es el aprovechamiento del recurso forestal propiamente, sino su eliminación para el desarrollo de una actividad con la que resulta incompatible mantener los árboles y el suelo durante la fase de explotación, unido al hecho que la Administración Forestal del Estado está facultada para otorgar este tipo de permisos regidos por el principio de legalidad. Manifiesta que la correcta aplicación de las normas indicadas implica que cumpliéndose los requisitos se declara la conveniencia nacional y ello involucra la corta del bosque independientemente de las especies que se encuentren en el área del proyecto. Añade que no implica lo anterior que no se hayan realizado los estudios necesarios para determinar la no afectación de la lapa verde pues en estricto apego al principio preventivo, en el momento procesal oportuno, sea la evaluación ambiental, la entidad competente que es la Secretaría Técnica Nacional Ambiental consideró que no se afectaba a dicha especie y aprobó las medidas de mitigación necesarias, por lo tanto considera que no se puede pensar que haya existido quebranto del principio de legalidad.Concluye que siendo que la declaratoria de conveniencia nacional es una competencia expresa del Poder Ejecutivo dada por Ley y siendo que el Proyecto Minero Crucitas cumplía con los requisitos legalmente establecidos para la declaratoria, hubiera incurrido la Administración en omisión contraria al principio de legalidad si no se hubiera emitido el Decreto 34801-MINAET que ahora se cuestiona, ello no solo por no realizar una conducta legalmente establecida sino porque el rechazo a la declaratoria de conveniencia nacional hubiera sido contrario a lo dispuesto en el artículo 16 de la Ley General de la Administración Pública. Considera que la actuación del despacho a su cargo ha estado en estricto apego a las disposiciones legales que rigen la materia y el principio de legalidad, sin que se haya violentado norma o principio constitucional por lo que pide que se declare sin lugar el recurso.
3. 161Informa bajo juramento Rodrigo Arias Sánchez en su condición de Ministro de la Presidencia en el expediente 08-14592-0007-CO (folio 182) en los mismos términos en que lo hizo el Ministro de Ambiente, Energía y Telecomunicaciones. Únicamente agrega que según el artículo 70 de la Ley General de la Administración Pública, la competencia será ejercida por el titular del órgano respectivo, y lo relaciona con lo dispuesto en el artículo 129 de ese mismo cuerpo legal. Añade que el Poder Ejecutivo lo ejerce el Presidente de la República junto con los Ministros de Gobierno y ambos tienen como deberes y atribuciones para la validez de los decretos, acuerdos, resoluciones, el suscribirlos conjuntamente. Señala que al Presidente de la República le compete firmar los decretos, acuerdos, órdenes o resoluciones junto con el Ministro correspondiente o rector de la materia y con base en un procedimiento administrativo interno institucional según el cual al Despacho del Presidente le presentan un proyecto de decreto, resolución o acuerdo pues ello es materia exclusiva de los distintos Ministerios, entes técnicos y conocedores de la materia específica.Se somete a aprobación del Presidente de la República para su rúbrica y posterior eficacia y validez del Decreto, Acuerdo o Resolución. Con fundamento en lo dicho considera que en el caso concreto el actuar del jerarca ministerial y del Presidente de la República, ha sido en estricto apego a las disposiciones legales que rigen la materia y al principio de legalidad, sin que se haya violentado norma o principio constitucional alguno, por lo que solicita que se declare sin lugar el recurso.
4. 162Mediante escrito de folio 4319 se apersona Roberto Dobles Mora en su condición de Ministro de Ambiente, Energía y Telecomunicaciones y manifiesta que mediante oficio DAJ-1757-08 del doce de noviembre del dos mil ocho, se ordenó a la Comisión Institucional de Seguimiento, Control y Fiscalización del Proyecto Minero Crucitas, realizar una inspección en el área del proyecto indicado a fin de determinar si existían impactos ambientales no previstos. Indica que en atención a la orden emitida y como parte del seguimiento para el control y fiscalización de ese proyecto, la Comisión Institucional integrada por la Secretaría Técnica Nacional Ambiental, el Sistema Nacional de Áreas de Conservación y la Dirección de Geología y Minas, realizaron inspección en el área del proyecto el trece de noviembre del dos mil ocho. Manifiesta que los resultados de esa inspección constan en el informe DAP-1379-2008-SETENA que ha sido remitido al Despacho Ministerial mediante oficio CP-274-2008-SETENA el diecinueve de noviembre del dos mil ocho.Indica que conforme consta en aquél informe, las actividades realizadas por la empresa Industrias Infinito Sociedad Anónima en el área del proyecto y autorizadas por el Ministerio de Ambiente, Energía y Telecomunicaciones, no han generado impactos ambientales no previstos en la evaluación ambiental. Agrega que conforme se constató, la empresa Infinito Sociedad Anónima ha cumplido con la paralización de obras ordenada por la Sala Constitucional en el área que denominó protección. Señala que mediante informe DAP-1379-2008-SETENA las instancias técnicas competentes han recomendado a ese Ministerio, solicitar a la Sala Constitucional permitir al desarrollador del proyecto minero realizar determinadas actividades en carácter de medida de mitigación, ello a fin de evitar que por la paralización de actividades se generen efectos ambientales adversos no previstos en el Estudio de Impacto Ambiental y en su correspondiente Plan de Gestión Ambiental.Agrega que en virtud de lo anterior y con fundamento en el principio de prevención que informa la materia ambiental, solicita se autorice al desarrollador del proyecto Industrias Infinito Sociedad Anónima, realizar las siguientes medidas de mitigación dentro del área denominada de “protección”:1) realizar labores de extracción de la madera cortada y su disposición adecuada en un patio de acopio dentro del área del proyecto;2) disponer y dar tratamiento adecuado a los desechos vegetales presentes en las áreas de tajos Fortuna y Botija y el área destinada a la conformación del dique de la Laguna de Relaves, de tal forma que se disminuya la posibilidad de que se produzcan los incendios forestales, se liberen de obstrucciones los drenajes de agua superficial y sus respectivas zonas de protección y se mantenga un control fitosanitario adecuado dentro del área del proyecto;3) adoptar las medidas de protección y conservación del recurso forestal de las áreas que son límite de esta área de “protección”;4) se permita implementar y concluir obras para el control de sedimento y conservación de suelos tales como: la conformación de disipadores de energía y zanjas para retener y canalizar el agua que pudiera contener sedimento, limpiar los accesos existentes y confeccionar canales perimetrales de manejo de escorrentía; y5) permitir que se desarrolle el proceso de monitoreo para el seguimiento de datos de línea base en cuanto a suelos, aguas superficiales, aguas subterráneas, ictiofauna, macroinvertebrados acuáticos, anfibios y reptiles, avifauna, componente florístico, mamíferos y componente forestal dentro de esta área.
5. 163En escrito de folio 4332 se apersona Jorge Rodríguez Quirós en su condición de Ministro a.í. de Ambiente, Energía y Telecomunicaciones e indica que conforme consta en autos, mediante oficio DAJ-1829-08 del veinticuatro de noviembre del dos mil ocho, se presentó solicitud de levantamiento parcial de la medida cautelar interpuesta por la Sala al Proyecto Minero Crucitas. Añade que la solicitud se hizo en virtud de que la Comisión Institucional de Seguimiento, Control y Fiscalización del Proyecto Minero Crucitas integrada por la Secretaría Técnica Nacional Ambiental, el Sistema Nacional de Áreas de Conservación y la Dirección de Geología y Minas, realizó inspección en el área del proyecto el trece de noviembre del dos mil ocho y mediante informe DAP-1379-2008-SETENA señalaron: a) que las actividades realizadas por la empresa Industrias Infinito Sociedad Anónima en el área del Proyecto Minero Crucitas y autorizadas por el Ministerio de Ambiente, Energía y Telecomunicaciones no han generado impactos ambientales no previstos en la evaluación ambiental; b) que conforme se constató la empresa Infinito Sociedad Anónima ha cumplido con la paralización de obras ordenada por la Sala Constitucional en el área que los Magistrados han denominado de protección; c) la recomendación al Ministro de Ambiente, Energía y Telecomunicaciones para que solicitara a la Sala Constitucional permitir al desarrollador del Proyecto Minero Crucitas realizar determinadas actividades en carácter de medida de mitigación, ello a fin de evitar que por la paralización de actividades se generen efectos ambientales adversos no previstos en el Estudio de Impacto Ambiental y en su correspondiente Plan de Gestión Ambiental.Manifiesta que la autorización solicitada pretendía que se le permitiera al desarrollador del proyecto Industrias Infinito Sociedad Anónima realizar las siguientes medidas de mitigación dentro del área denominada de “Protección”:1) Realizar labores de extracción de la madera cortada y su disposición adecuada en un patio de acopio dentro del área de proyecto;2) disponer y dar tratamiento adecuado a los desechos vegetales presentes en las áreas de tajos Fortuna y Botija y el área destinada a la conformación del dique de la Laguna de Relaves, de tal forma que se disminuya la posibilidad de que se produzcan incendios forestales, se liberen de obstrucciones los drenajes de agua superficial y sus respectivas zonas de protección y se mantenga un control fitosanitario adecuado dentro del área del proyecto;3) adoptar las medidas de protección y conservación del recurso forestal de las áreas que son límite de esta área de “protección”;4) se permita implementar y concluir obras para el control de sedimento y conservación de suelos tales como la conformación de disipadores de energía y zanjas para retener y canalizar el agua que pudiera contener sedimento, limpiar los accesos existentes y confeccionar canales perimetrales de manejo de escorrentía;5) permitir que se desarrolle el proceso de monitoreo para el seguimiento de datos de línea base en cuanto a suelos, aguas superficiales, aguas subterráneas, ictiofauna, macroinvertebrados acuáticos, anfibios y reptiles, avifauna, componente florístico, mamíferos y componente forestal dentro de esta área. Indica que el veintisiete de noviembre del dos mil ocho la Comisión Institucional de Seguimiento, Control y Fiscalización del Proyecto Minero Crucitas realizó nueva inspección en el área del proyecto y como resultado de ello la Secretaría Técnica Nacional Ambiental ha emitido el informe DAP-1448-2008-SETENA. Señala que en dicho informe consta que se mantienen las condiciones, conclusiones y recomendaciones indicadas en el informe DAP-1379-2008-SETENA y recomienda nuevamente al Ministro solicitar a la Sala permitir a la empresa Industrias Infinito Sociedad Anónima, realizar las actividades indicadas. Agrega que a la fecha el Ministerio no ha recibido respuesta a lo peticionado en el oficio DAJ-1829-08. Manifiesta que en razón de lo dicho, reitera la petición de permitir al desarrollador realizar las medidas de mitigación indicadas en los informes DAP-1379-2008-SETENA, DGM-CMRHN-120-2008 y DAP-1448-2008-SETENA.
6. 164Por resolución de las diecinueve horas y veintiocho minutos del veintiséis de mayo de dos mil nueve se acumuló el amparo 08-014592-0007-CO a este expediente (folio 4354).
7. 165El 1 de setiembre de 2009, Juan Carlos Hernández Jiménez en su calidad de apoderado generalísimo especial de Industrias Infinito S.A., solicitó que se notificara a la recurrente Alexa Villavicencio Córdoba (folio 4364).
8. 166El 1 de marzo de 2009 el Colegio de Geólogos de Costa Rica apersonó dos representantes suyos para la inspección ocular (folio 4365).

167- Por resolución de las nueve horas treinta y un minutos del tres de setiembre de dos mil nueve, se reiteró que la inspección ocular no constituye una audiencia, razón por la cual las partes no tienen derecho a formular preguntas. De tener interés en que se observe un lugar determinado, así lo pueden indicar al Tribunal y ahí se resolverá lo que se estime pertinente. Siendo Coopevega la primera comunidad en el trayecto a seguir hacia el Proyecto, la diligencia dará inicio oficialmente en dicho lugar. Como se indicó anteriormente, para mantener el orden de la diligencia, las partes son las únicas autorizadas a ingresar al terreno a inspeccionar, las cuales podrán, si así lo estiman pertinente, hacerse acompañar de un representante legal debidamente acreditado en el expediente. En recursos de amparo las coadyuvancias se admiten únicamente a efectos de valorar los hechos alegados por las partes, pero no son consideradas parte en el expediente, razón por la cual las personas apersonadas en esa condición, no están autorizadas a participar en la diligencia a realizar. Asimismo, se modificó la resolución de las doce horas y cuarenta y ocho minutos del tres de agosto de dos mil nueve, en el sentido de que la audiencia dará inicio a las diez horas y no a las once como anteriormente se había señalado (folio 4374).

1. 168El 6 de setiembre de 2009, el recurrente [Nombre 001] solicita que se acredite la participación de Alfredo Arias Elizondo (vecino del lugar a inspeccionar), Quírico Jiménez Madrigal (ingeniero forestal) y Oscar Villalobos Chavarría (camarógrafo profesional), a fin de resguardar el principio de igualdad y equidad procesal (folio 4375).
2. 169El 7 de setiembre de 2009, Alfredo Córdoba Soro en su condición de Alcalde Municipal de San Carlos solicitó a la Sala que se le permitiera su participación en la inspección a realizar el 11 de setiembre.
3. 170El 7 de setiembre de 2009, la recurrente [Nombre 052] apersonó como su representante legal a la licenciada Gabriela Cuadrado Quesada, así como solicitó que se autorizara a llevar como consultores técnicos a Allan Astorga Gatgens y a Rafael Arce Mesén (folios 4408 y 4409).
4. 171Por resolución de las nueve horas y trece minutos del ocho de septiembre del dos mil nueve, se dispuso: En cuanto a la solicitud presentada por el recurrente [Nombre 001] para permitir la participación del señor Quírico Jiménez Madrigal en su condición de Ingeniero Forestal en la respectiva diligencia, su autorización quedará sujeta a la cantidad de personas de las cuales pretendan todas las partes hacerse acompañar, en el momento de hacer el ingreso al Proyecto propiamente, por evidentes razones de orden. No se autoriza el ingreso del señor Alfredo Arias Elizondo solicitado por el recurrente por ser conocedor de la zona, por cuanto los lugares a inspeccionar están predeterminados por la Sala. De igual modo, se rechaza la solicitud de autorización del camarógrafo Oscar Villalobos Chavarría, toda vez que para efecto de respaldo técnico audiovisual la Sala se hará acompañar de los profesionales correspondientes, cuyas pruebas quedarán posteriormente a disposición de las partes.Con relación a la solicitud que plantea el señor Alfredo Córdoba Soro en su condición de Alcalde de la Municipalidad de San Carlos, se autoriza la participación de un representante de dicha corporación en la audiencia a realizar el próximo 11 de setiembre, tomando en consideración la representación constitucional que ostentan los gobiernos locales respecto a los intereses de la localidad.
5. 172El 8 de setiembre de 2009 Carlos Alberto Alfaro Mata solicitó a la Sala que se autorizara en la inspección el ingreso del vehículo placa provisional 00052670282 y del chofer respectivo (folio 4433).
6. 173El recurrente Lorenzo Cambronero Méndez solicitó el 8 de setiembre de 2009 que se tuviera como acreditado el Lic. Freddy Humberto Vargas Chavarría y al asesor Félix Díaz Rivera (folios 4434 y 4435).
7. 174El 8 y 10 de setiembre de 2009 el recurrente José Merino del Río solicitó a la Sala que se autorizara en la inspección a los señores biólogos Gabriel Rivas Ducca, Javier Baltodano Aragón y del abogado José María Villalta (folios 4438 y 4496).
8. 175A folios 4442 y 4443, se apersonan Cristina Werdlich Hidalgo y Tony Villalobos Ayros, y solicitan se declare con lugar el presente recurso de amparo, por cuanto estiman que no se puede permitir la destrucción de los bosques con especies protegidas.
9. 176La recurrente Heidy Murillo Quesada solicitó el 9 de setiembre de 2009 que se tuviera como acreditado al Lic. Jorge Antonio Mora Portugués y el recurrente Alain Murillo Bolaños al Lic. Ronald Joaquín Campos Arias (folios 4445 y 4447).
10. 177Por escrito presentado el 10 de setiembre de 2009, el Ministro de la Presidencia de la República acreditó al Ministro del Ministerio de Ambiente, Energía y Telecomunicaciones para asistir a la inspección ocular (folio 4446).
11. 178Por resolución de las catorce horas y nueve minutos del diez de setiembre de dos mil nueve, la Presidenta de la Sala acreditó al Luis Francisco Cervantes Gamboa, Letrado de la Sala Constitucional, como secretario ad hoc únicamente a efectos de la diligencia de inspección ocular (folio 4495).
12. 179A folio 4494 (con copia a folio 4447), se apersona Alain Murillo Bolaños y manifiesta que nombra a Ronald Joaquín Campos Arias como su abogado para las diligencias del día once de setiembre de dos mil nueve.
13. 180El once de setiembre de dos mil nueve, se realizó una Inspección Judicial en la zona del proyecto minero Crucitas (folio 4621).
14. 181Durante los días doce, trece y diecisiete de noviembre de dos mil nueve, se realizó una vista pública al efecto de que las partes informaran sobre sus pretensiones a la Sala. En la vista se aportaron pruebas, y fueron aceptadas señalándose en cada caso en el capítulo de Hechos Probado cuándo se toman en consideración.
15. 182Por escrito de fecha catorce de setiembre de dos mil nueve (folio 4497), se apersona Denise Echeverría Robert, en su condición de experta en materia de Manejo y Protección de los Recursos Naturales de la Universidad Estatal a Distancia y manifiesta que solicita la aplicación del Principio Precautorio Pro Natura ante la seria amenaza de abrir el país a la actividad de la Minería Metálica a Cielo Abierto.
16. 183Mediante resolución de las nueve horas cincuenta y nueve minutos del dieciocho de setiembre de dos mil ocho, suscrita por el Magistrado Instructor (folio 4514), se solicita prueba para mejor resolver al Gerente General de SENARA y al representante legal de la empresa Industrias Infinito S.A., para que informen cuál es la desembocadura a la cual discurren la o las quebradas que serán afectadas con la laguna de relaves.
17. 184Por documento aportado en fecha dieciséis de setiembre de dos mil ocho (folio 4515), se aporta copia del oficio No.4134-09-DGFP del once de setiembre de dos mil nueve, suscrito por el Director General de la Fuerza Pública, Erick Lacayo Rojas y dirigido a la Directora de la Dirección Regional de San Carlos, en el que le indica que se deben tomar las medidas necesarias para garantizar el orden público en la visita del once de setiembre.
18. 185Por escrito de fecha veinticuatro de setiembre de dos mil nueve (folio 4519), se apersona Juan Carlos Hernández Jiménez, en su condición de Apoderado Generalísimo Especial de la sociedad Industrias Infinito Sociedad Anónima, y da cumplimiento a lo prevenido en la resolución de las nueve horas cincuenta y nueve minutos del dieciocho de setiembre de dos mil nueve. Manifiesta que en el área del Proyecto Minero Crucitas existen dos quebradas, las cuales se denominan “Quebrada Descubrimiento” y “Quebrada la Mina”. Indica que la Quebrada Descubrimiento no será afectada por la Laguna de Relaves, esto por cuanto la cuenca de la quebrada se encuentra físicamente aislada de este componente del proyecto. Señala que la Quebrada La Mina se modificará parcialmente por la Laguna de Relaves, esta modificación consistirá en que una parte del área de drenaje será embalsada, esto no implica que el caudal de la quebrada desaparecerá, dicho caudal se mantendrá debajo de la represa de colas hasta su confluencia con el Río Infiernito.Explica que durante la construcción de la Laguna de Relaves el caudal y los sistemas ecológicos relacionados a la quebrada no se verán afectados. Expone que durante la etapa constructiva, operativa y de clausura del proyecto se mantendrán en ejecución los Planes de Monitoreo y Control de los aspectos de calidad y cantidad de aguas, fauna acuática, vegetación y fauna terrestre, entre otros, de forma periódica y permanente. Manifiesta que la Laguna de Relaves consiste en un área de almacenamiento de roca molida y agua, los cuales no contienen sustancias tóxicas, esta Maguana de relaves no es lo mismo que una laguna de lixiviación utilizada por otros proyectos mineros, son dos sistemas diferentes. Indica que la Laguna de Relaves recibirá las aguas y roca que han sido tratadas en la planta de destrucción de cianuro (CyPlus), la alta eficiencia del sistema, asegurará que ni el cianuro, ni los metales pesados estarán presentes en las aguas y roca enviadas a la Laguna de Relaves.Señala que como consecuencia de ello, la laguna de relaves será utilizada en la planta del proceso, esto se denomina un “sistema hidráulicamente cerrado”, lo que demuestra es que el agua no es “consumida” sino más bien reutilizada, vuelta a tratar y devuelta a la laguna de relaves. Destaca de que la Laguna de Relaves se efectuar un vertido del agua excedente a la Quebrada la Mina, la cual cumplirá con las normas de vertido nacional e internacional. Resalta que las aguas vertidas de la Laguna de Relaves a la Quebrada La Mina, junto con el agua que aporta el caudal natural discurre una distancia de 1 km antes de que desemboque en el Río Infiernito. Posteriormente, el Río Infiernito recorre una distancia de 20,3 kilómetros a lo largo de su cauce natural hasta su desembocadura al Río San Juan.
19. 186Por escrito de fecha veinticinco de setiembre de dos mil nueve (folio 4580), se apersona Bernal Soto Zúñiga, Gerente con facultades de Apoderado Generalísimo sin límite de suma del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento-SENARA-, quien señala que dentro de la laguna de relaves se encuentra la quebrada llamada La Mina, que tiene una serie de afluentes sin nombres, drena hacia el Río Infiernillo, la distancia que existe desde el dique de la laguna de relave que se construirá y el río Infiernillo es de un kilómetro. Indica que la distancia que recorre el río Infiernillo hasta desembocar en el río san Juan es de veinte kilómetros, más específicamente de la intersección con la quebrada La Mina hasta la desembocadura del río San Juan. Expone que en el sector de la laguna de relaves drena la Quebrada Caño Crucitas hacia el río San Juan; sin embargo, pertenece a otro sistema de drenaje superficial.
20. 187Por escrito de folio 4583, se apersona [Nombre 001] y solicita que se amplíe la prueba solicitada en la resolución de las nueve horas cincuenta y nueve minutos del dieciocho de setiembre de dos mil nueve, para que SENARA e Industrias Infinito S.A. informen cuál es el recorrido total de los cursos de agua que se verán afectados por las lagunas de relaves, hasta su desembocadura final en el mar Caribe.

188- Por escrito del treinta de setiembre de dos mil nueve (folio 4589), se apersona Warner Rojas Quirós, en su condición de Presidente de la Junta Directiva de ASOCRUCITAS y solicita a esta Sala resolver el presente amparo de manera pronta.

1. 189Por escrito de fecha primero de octubre de dos mil nueve (folio 4591), se apersonan Francisco Alfaro Bolaños, en su condición de Presidente de la Junta Directiva de la Asociación Desarrollo Coopevega, Oldemar Durán Cordero, en su condición de Presidente de la Junta Directiva de la Asociación Desarrollo Llano Verde, Rodrigo Blanco Solís, en su condición de Presidente Asociación Pro-mejoras Chamorro-El Roble y Eliécer Rodríguez Carmona, en su condición de Presidente Asociación Pro-Mejoras Crucitas y reiteran su apoyo a la empresa Industrias Infinito que desarrolla el proyecto minero Crucitas.
2. 190A folio 4594 (ver original a folio 4610), se apersona Vladimir Arroyo Rojas, en su condición de Presidente de Grupo Ocho Zona Norte S.A. y manifiesta su apoyo a la empresa Industrias Infinito.
3. 191A folio 4596 (ver original a folio 4611), se apersona Alfredo Córdoba Soro, en su condición de Alcalde de la Municipalidad de San Carlos y expresa su preocupación por el conflicto social que el proyecto minero Crucitas ha causado en la comunidad.
4. 192Por escrito de fecha veintidós de setiembre de dos mil nueve (folio 4600), se apersona Bernal Soto Zúñiga, en su condición de Gerente General del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento, y expone las razones por las cuales no pudo participar durante toda la visita del once de setiembre de dos mil nueve.
5. 193A folio 4603, 4605 y 4607 se apersonan Alexis Jiménez, Helvetia Jiménez Díaz y Beatriz Herrero Elizondo para reiterar su apoyo a la parte recurrente dentro del presente amparo.
6. 194A folio 4613, se apersona Jennifer Segura Ramírez, y manifiesta su apoyo a la posición de la parte recurrente.
7. 195Por escrito de fecha catorce de octubre de dos mil nueve, se apersonan Carlos Alberto Vega Rojas, Hannia Mena Molina, Petrona Serrano Ruiz, Freddy Rojas, Rebeca Mora Sandoval, Arturo Barrantes Alfaro, Marlene Varela Acuña, Lauren Barrantes Varela, Karen Barrantes Varela, Ademar Amador González, Natalia vega Amador, José Alberto Vega Amador, Carlos Vega Amador, Cecilia Amador González, Oldemar Durán Cordero, Ángela Alemán Cortés, Ricardo Miranda Jarquín y José Antonio Vega Corrales y manifiestan su agradecimiento por la visita realizada el once de setiembre de dos mil nueve.
8. 196A folios 4621 a 4640 corre agregada el Acta de Visitas Preliminares y el Acta de Inspección Judicial practicada el once de setiembre de dos mil nueve.
9. 197Por escrito visible a folio 4642 se apersona Rafael Ángel Rojas Jiménez y solicita ser coadyuvante activo a favor de los recurrentes.
10. 198Mediante resolución de las ocho horas seis minutos del veinte de octubre de dos mil ocho (folio 4644), se dispone desglosar las manifestaciones realizadas por el recurrente [Nombre 001] visibles a folio 4627 del expediente, donde interpone recurso de hábeas corpus contra el Ministerio de Seguridad Pública y el Organismo de Investigación Judicial, para que se tramite como un asunto nuevo.
11. 199Por resolución de las quince horas cincuenta y tres minutos del veintitrés de octubre de dos mil nueve, se señaló las nueve horas del doce de noviembre de dos mil nueve para realizar una Vista pública dentro de este recurso.
12. 200Por escrito del veintisiete de octubre de dos mil nueve, se apersona Juan Carlos Hernández Jiménez, en su condición de Apoderado Generalísimo de Industrias Infinito Sociedad Anónima y realiza manifestaciones sobre el tiempo del que dispondrán de palabra en la vista del doce de noviembre de dos mil nueve.
13. 201A folio 4704 se apersona Jorge Herrera Ocampo, en su condición de Director Ejecutivo del Colegio de Geólogos de Costa Rica y pregunta si a la vista del doce de noviembre de dos mil nueve, deben apersonarse los representantes del Colegio que representa.
14. 202Por escrito de fecha veintiocho de octubre de dos mil nueve (folio 4706), se apersona Rodolfo Alberto Leonardo Ulloa. Debido a que actualmente considera que el Proyecto Minero Crucitas puede generar bienestar social en las comunidades aledañas al mismo, a través del desarrollo del empleo y la riqueza, desiste tu intención para continuar con el presente recurso de amparo.
15. 203Por escrito de folio 4707 se apersona Lorenzo Cambronero Méndez y manifiesta que nombra como su representante legal a Freddy Humberto Vargas Chavarría.
16. 204Por escrito de fecha treinta de octubre de dos mil nueve, se apersona Heidi Murillo Quesada, en su condición de Apoderada Generalísima de Federación Costarricense para la Conservación del Ambiental –FECON-, y manifiesta que otorga Poder Especial Judicial a Marcos Alexander Piedra Rodríguez.
17. 205A folio 4709 y 4716, se apersonan Sergio Quirós Marín y Marlon Chaves Jiménez, y manifiestan su apoyo a la posición de la parte recurrente.
18. 206Por escrito de fecha cuatro de noviembre de dos mil nueve (folio 4719), se apersona José Eduardo Vargas Rivera, en su condición de Presidente del Instituto Latinoamericano de los derechos humanos y Paz Social, y manifiesta que asistirán a la vista del doce de noviembre de dos mil nueve. Reitera su apoyo a la parte accionada.
19. 207Por escrito del cuatro de noviembre de dos mil nueve (folio 4722), se apersona José Merino del Río y manifiesta que nombra como su representante para la vista del doce de noviembre de dos mil nueve al señor José María Villalta Flores-Estrada.
20. 208Por resolución de las nueve horas veintiocho minutos del cuatro de noviembre de dos mil nueve, se solicitó prueba para mejor resolver al Jefe del Área de Conservación Arenal Huetar Norte del Ministerio de Ambiente, Energía y Telecomunicaciones.
21. 209A folio 4725 del expediente se apersonan Yamileth Astorga y [Nombre 001] y formulan dudas con respecto a la resolución de las quince horas cincuenta y tres minutos del veintitrés de octubre de dos mil nueve. Asimismo, por escrito visible a folio 4725, Yamileth Astorga manifiesta que nombra como representante para el día de la vista al Ph.D. Allan Astorga Gatgens.
22. 210Por escrito de fecha cuatro de noviembre de dos mil nueve, se apersona Bernal Soto Zúñiga, en su condición de Apoderado Generalísimo del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento –SENARA-, y manifiesta que se hará acompañar el día de la audiencia del Geólogo Roberto Ramírez Chavarría y el M.Sc. Juan Alberto Corrales Ramírez.
23. 211Por escrito de folio 4729, se apersona Gladis Martínez, en su condición de Asesora Legal de la Asociación Interamericana para la Defensa del Ambiente, para confirmar su apersonamiento a la vista del doce de noviembre de dos mil nueve.
24. 212Mediante escrito de fecha seis de noviembre de dos mil nueve (folio 4730), se apersona Cristhian González Chacón, en su condición de apoderado de Sonia Espinoza Valverde, Secretaria General de la Secretaría Técnica Nacional Ambiental, y requiere equipo técnico para realizar presentación en power-point en la vista del doce de noviembre de dos mil nueve.
25. 213Por escrito del seis de noviembre de dos mil nueve (folio 4733), se apersona Jorge Rodríguez, en su condición de Ministro de Ambiente y Energía a efecto de indicar el equipo técnico que requerirán el día de la vista. Asimismo, por escrito viable a folio 4734, indica que acredita para la vista a Cynthia Cavallini Chinchilla, Jorge Hernández Benavides y Oldemar Corrales Jiménez.
26. 214Por medio de escrito de fecha seis de noviembre de dos mil nueve (folio 4735), se apersonan John Thomas y Arnoldo Rudín Arias, en su condición de Apoderados Generalísimos de Industrias Infinito Sociedad Anónima y manifiestan que los representantes de la empresa el día de la vista serán John Thomas, Juan Carlos Obando Umaña y Juan Carlos Hernández Jiménez.
27. 215Por escrito de fecha seis de noviembre de dos mil nueve (folio 4736), se apersona Rodrigo Arias Sánchez, en su condición de Ministro de la Presidencia y manifiesta que los representantes que designa para el día de la vista son el señor Jorge Rodríguez Quirós, el señor Fabián Volio y la señora Lorena Polanco Morales.
28. 216A folio 4737 (ver original a folio 4739) del expediente, se apersona [Nombre 001] e indica el equipo técnico que requerirá el día de la vista.
29. 217Por escrito del nueve de noviembre de dos mil nueve, se apersona Álvaro Sagot Rodríguez y manifiesta que para el día de la vista designa al doctor en geografía Rafael Arce Mesén.
30. 218Por escrito de fecha nueve de noviembre de dos mil nueve (folio 4741), se apersonan John Thomas y Arnoldo Rudín Arias, en su condición de Apoderados Generalísimos de Industrias Infinito Sociedad Anónima y manifiestan que de conformidad con lo solicitado en la resolución de las nueve horas veintiocho minutos del cuatro de noviembre de dos mil nueve, exponen que el oro que se encuentra contenido en la roca se extraerá de dos lugares: cerro Botija y cerro Fortuna. Indican que en los sitios de extracción se encuentran tres tipos de materiales: suelo o capa vegetal, roca con oro, roca sin oro. Señalan que de conformidad con el Plan de Explotación aprobado por la Dirección de Geología y Minas, se extraerá la roca del cerro Botija y del cerro Fortuna en forma simultánea, una vez sacado el material del cerro Botija, este sitio se rellenará con materiales del cerro Fortuna.
31. 219A folio 4772, se apersona Manuel Antonio Brenes Corrales y manifiesta que no podrá hacerse presente el día doce de noviembre de dos mil nueve, día de la vista.
32. 220Mediante resolución de las once horas cuarenta minutos del diez de noviembre de dos mil nueve, se dio respuesta a la gestión presentada por Yamileth Astorga visible a folio 4725.
33. 221Por escrito de fecha diez de noviembre de dos mil nueve (folio 4776), se apersona Álvaro Salas Orozco e indica que no podrá asistir a la vista del doce de noviembre de dos mil nueve.
34. 222A folio 4778 se apersona Uriel Juárez Baltodano, en su condición de Secretario General a.i. de la Secretaría Técnica Nacional Ambiental y manifiesta que cumple con lo solicitado en la resolución de las nueve horas veintiocho minutos del cuatro de noviembre de dos mil nueve. Indica que en relación con el destino que se le va a dar al material de desecho -rocas y tierra- que se va a extraer en el proyecto minero Crucitas, todo suelo vegetal que sea removido de las áreas de extracción deberá ser trasladado al sitio para depósito de suelos, donde se aplicarán todas las medidas necesarias para asegurar su adecuado almacenaje, manteniendo sus condiciones originales al máximo para ser utilizado sin problemas en labores posteriores de recuperación. Indica que como es conocido en todos los proyectos mineros metálicos, existe material que no contiene oro por lo que se les conoce como roca estéril o saprolita estéril; en caso del proyecto minero Crucitas estos materiales no serán enviados al proceso de producción de la planta, por lo que serán trasladados adecuadamente al área de relaves, parte de la saprolita que no contiene oro será utilizada para la construcción del dique de relaves.Señala que la roca estéril será trasladada y ubicada dentro del área de relaves, principalmente en el sector este. Acota que el material a manejar que se extraerá como roca estéril y el que se procesará en la planta de producción permite ubicar el volumen total en forma adecuada en el área de relaves y en el relleno y además permitirá recuperar el volumen extraído del tajo Botija a partir del año seis, o sea, el tajo Botija será rellenado por completo para el final de la fase operativa. Menciona que los estudios de ingeniería e hidráulica realizados para el proyecto Crucitas indican que sí es posible manejar los volúmenes de material en forma adecuada dentro de los componentes del proyecto destinados para tal fin. Menciona que con el fin de anular el potencial de generación de drenaje ácido, los relaves y la roca estéril deberán ser depositados en la laguna de manera para que queden sumergidos bajo una columna de agua de una profundidad promedio de 2 metros, evitando su exposición al aire y su eventual oxidación; el manejo será utilizando una tubería flotante móvil que distribuya homogéneamente el material en la laguna en el sector oeste, la roca estéril se depositará en forma inmediata sin almacenamiento, mecánicamente en el sector este controlando que en forma inmediata sin almacenamiento, mecánicamente en el sector este controlando que permanezca inundada.Adicionalmente, se utilizará el exceso de saprolita para respaldar la cobertura del dique de colas y cubrir la roca estéril en el área de almacenamiento y taludes de los pits de extracción para inhibir la oxidación. Informa que de ser posible, se depositará una capa de relaves inertes provenientes de material estéril al final de la fase de operación, con el fin de conformar una capa de sellado sobre el resto de relaves y material con potencial de generar drenaje ácido. Indica que la roca estéril de desecho deberá ser depositada de la misma manera que los relaves en la laguna.
35. 223A folios 4780 a 4791 corre agregada información aportada por el Ministerio de Ambiente, Energía y Telecomunicaciones.
36. 224A folio 4792 el señor Jorge Rodríguez Fonseca otorga Poder Especial Judicial al Lic. Edgar [Nombre 001] y nombra como asesor técnico al Ing. Allan Astorga Gatgens.
37. 225A folio 4793, Manuel Antonio Brenes Corrales otorga Poder Especial Judicial al Lic. Freddy Vargas Chavarría y nombra como asesor técnico al Ing. Allan Astorga Gattgens.
38. 226A folio 4795 Adriana Calvo Aguilar, otorga Poder Especial Judicial a Gabriela Cuadrado Quesada y nombra como asesor técnico al biólogo Javier Baltodano Aragón.
39. 227Por escrito de fecha doce de noviembre de dos mil nueve, se apersona Leda María Zamora Chaves, en su condición de Diputada del Partido Acción Ciudadana (folio 4795), y manifiesta que confiere Poder Especial Judicial al Lic. Diego Pacheco Alvarado.
40. 228A folio 4797 del expediente se apersona Gladis Martínez, en nombre de la Asociación Interamericana para la Defensa del Ambiente, para aclarar que la citada Asociación no ha solicitado constituirse como coadyuvante; solamente pretenden informar sobre sus análisis.
41. 229Por escrito de fecha trece de noviembre de dos mil nueve (folio 4800), se apersona Alberto Delgado Artavia, en su condición de Director a.i. del Área de Conservación Arenal Huetar Norte y manifiesta que en el cerro Fortuna faltan 6 has 5598.15m por cortar, es decir 342 árboles, en Relaves A y B faltan 115 has 2165.56m 5520 árboles, en diques, caminos, tramos y líneas 7 has 8085.05m, es decir 1396 árboles y en área no boscosas 8 has 8259.88 m 563 árboles para un total de 7821 árboles. Aclara que no se incluye la información del cerro Botija, ya que todos los árboles se habían cortado inicialmente. Sobre la pregunta de cuántos de esos árboles son almendros, informa que todos los árboles de la especie almendro amarillo, fueron cortados, tanto los ubicados en áreas de bosque, como en áreas no boscosas.
42. 230Por escritos del dieciséis de noviembre de dos mil nueve, se apersona José Eduardo Vargas Rivera, en su condición de representante y vocero del Instituto Latinoamericano de Derechos Humanos y Paz Social (folio 4807), y manifiesta que apoya el proyecto Crucitas porque estima beneficia al país, al generar trabajo en época de crisis.
43. 231A folios 4811 a 4826, se apersonan Armando Zúñiga Alvarado, Estefanny Zúñiga Alvarado, Miriam Alvarado Rodríguez, José Alberto Zúñiga Alvarado para reiterar su apoyo a la parte recurrente del amparo, ya que consideran que no se puede permitir la destrucción de más de 192 hectáreas de bosque con especies protegidas.
44. 232Por escrito de fecha dieciséis de noviembre de dos mil nueve (folio 4877), Rodrigo Arias Sánchez, en su condición de Ministro de la Presidencia, remite lista de personas autorizadas para acudir a la Vista.
45. 233Por escritos que corren agregados a folios 4878 y 4882, se apersonan Marcos Gómez Martínez y José Luis Cruz Borbón, para reiterar su apoyo a la parte recurrente del amparo, ya que consideran que no se puede permitir la destrucción de más de 192 hectáreas de bosque con especies protegidas.
46. 234Por escrito de fecha diecisiete de noviembre de dos mil nueve, (folio 4886), Javier Baltodano aporta informe denominado Corredores Biológicos de Costa Rica.
47. 235A folio 4929, Javier Baltodano aporta la Evaluación Florística de los Bosques de la Zona Norte de Costa Rica, realizada por Nelson Zamora del Instituto Nacional de Biodiversidad.
48. 236El diecisiete de noviembre de dos mil nueve, Ricardo Araya aporta por parte de la Unión Internacional para la Conservación de la Naturaleza Comité Nacional de Costa Rica, el comunicado de prensa “No a la minería a cielo abierto”. Aporta además artículos de su interés en idioma inglés y español, con los que apoya su conclusión de impacto negativo en el ambiente del proyecto minero Crucitas.
49. 237A folios 5244 del día diecisiete de noviembre de dos mil nueve, Yamileth Astorga Espalda adjunta un documento denominado “Sobre la valoración de costo-beneficio ambiental que debió haber hecho la SETENA”, el “Manual de Instrumentos Técnicos para el Proceso de Evaluación de Impacto Ambiental”, un documento titulado “Sobre la existencia de una posible falla geológica bajo el sito de presa del embalse de colas del Proyecto Crucitas” y el “Estudio de Impacto Ambiental” elaborado por Desarrollos en Ecología, Paisajismo, Planificación, Arquitectura y Turismo S.A.
50. 238Mediante resolución de las quince horas diecinueve minutos del dieciocho de noviembre de dos mil nueve, se solicitó prueba para mejor resolver al Director del Observatorio Vulcanológico y Sismológico de Costa Rica, para que informe si en la zona de Crucitas en San Carlos existe alguna falla sísmica.
51. 239A folio 5315, se apersona Jorge Rodríguez, en su condición de Ministro de Ambiente, Energía y Telecomunicaciones y aporta prueba para mejor resolver. Indica que los documentos que adjunta conforman un resumen sobre lo expuesto en la vista, titulado “Alegato de Bien Probado” en el que se destacan temas como el otorgamiento de concesión minera, la evaluación de impacto ambiental, el permiso de corta de árboles para al cambio de uso de suelo, el decreto de conveniencia nacional, el proceso de corta de árboles, el estudio de factibilidad técnico, matriz de SETENA, medidas compensatorias forestales entre otros.
52. 240A folio 5419 y 5420 corre agregada el Acta de la Vista celebrada a las nueve horas del doce de noviembre de dos mil nueve.
53. 241A folio 5421 se apersona Jennifer Zúñiga Alvarado y manifiesta su apoyo a la posición de la parte recurrente.
54. 242Por medio de escrito de fecha veinticuatro de noviembre de dos mil nueve, se apersona [Nombre 001], y aporta un disco compacto que contiene su exposición hecha en la vista, documento elaborado por el Geólogo Allan Astorga Gattjens denominado “Sobre el procedimiento seguido por la SETENA para la revisión ambiental de la Ampliación del Proyecto Crucitas y la participación de un geólogo en el proceso”, estudio denominado “Destrucción del Bosque y de la Biodiversidad Florística por el proyecto Minero Crucitas”, resumen impreso de la exposición del biólogo Javier Baltodano en la vista, documento denominado “Evaluación Ambiental del Cambio Propuesta al Proyecto presentado por Infinito S.A. en el 2007”, currículo vital de la M.Sc. [Nombre 052] y transcripción de la exposición hecha ante la Sala en la vista realizada.
55. 243Por resolución de las once horas veintinueve minutos del veinticinco de noviembre de dos mil nueve, se solicitó prueba para mejor resolver a la Secretaría General de SETENA y al Ministerio de Ambiente, Energía y Telecomunicaciones.

244- Por escrito que corre agregado a folio 5501 del expediente (original visible a folio 5535), se apersona Juan Segura Torres, en su condición de Director de OVSICORI-UNA, y manifiesta que referente a la solicitud realizada por la Sala el dieciocho de noviembre de dos mil nueve. Indica que dentro de los dos días siguientes a la notificación de la solicitud de la Sala, solo está en capacidad de informar sobre la actividad sísmica registrada en la región por la red sísmica propia, desde la fundación de este Instituto (1984) hasta el presente, información sísmica existente desde los inicios de la red sísmica mundial (1990) y sobre fallas existentes en la región de estudio que han sido descritas en publicaciones especializadas. Expone que en el caso de Crucitas las principales fallas detectadas en la región son dos, la falla San Carlos al Este del mapa, la cual ha sido interferida por medios remotos y se presume es una falla activa o que ha presentado actividad durante el período Cuaternario; sin embargo, ninguno de los sismos registrados por el OVSICORI se relaciona con dicha falla.

Explica que la otra falla se ubica al Oeste del mapa y se denomina Falla Recreo, esta falla estuvo activa durante el Terciario; sin embargo, no se ha comprobado actividad durante el Cuaternario, sobre esa falla no se registra actividad sísmica desde 1984. Señala que el catálogo sísmico de la red sísmica mundial no reporta ningún sismo importante en el área cubierta por el mapa, esto es, no han ocurrido sismos con magnitud mayor a 7 entre 1900 y 0954, sismos con magnitud mayor a 6.5 entre 1954 y 1964, ni sismos con magnitud mayor o igual a 4.5 desde 1964 a 1984. Acota que los sismos que logra localizar el OVSICORI-UNA entre 1984 y el presente (60 en total) en esa zona tiene magnitudes en un rango entre 2.5 y 4.1, por lo tanto la actividad sísmica registrada por el OVSICORI-UNA y la red sísmica mundial indican que la actividad sísmica en la zona estudiada es muy baja comparada con otras regiones del país y se puede considerar insignificante.

1. 245Por escrito de fecha veintisiete de noviembre de dos mil nueve (folio 5505), se apersona Jorge Rodríguez, en su condición de Ministro de Ambiente, Energía y Telecomunicaciones y aporta como prueba el Apéndice y Anexos del Estudio de Impacto Ambiental, documento impreso de la Evaluación de Cambios Propuestos al Proyecto y documentos relacionados, todos los documentos al uso de explosivos, autorizados para el Proyecto Minero Crucitas.
2. 246Por escrito de fecha veintisiete de noviembre de dos mil nueve (folio 5532), se apersona Sonia Espinoza Valverde, en su condición de Secretaria General de la Secretaría Técnica Nacional Ambiental y manifiesta que la información solicitada en la resolución de las once horas veintinueve minutos del veinticinco de noviembre de dos mil nueve, fue remitida mediante oficio SG-AJ-1090-2009-SETENA al Ministro del Ministerio de Ambiente, Energía y Telecomunicaciones, quien hará entrega de dicha documentación.
3. 247Por escrito de fecha veintisiete de noviembre de dos mil nueve (folio 5538), se apersona Sandra Arredondo, en su condición de Regente Ambiental del Proyecto Minero Crucitas y manifiesta que aporta información y aclaraciones técnicas para mejor resolver.
4. 248Por escrito del veintisiete de noviembre de dos mil nueve (folio 5575), se apersona Juan Carlos Hernández, en su condición de Apoderado Judicial de Industrias Infinito Sociedad Anónima y aporta un documento titulado “Preguntas y Respuestas”, en el que exponen las respuestas a las principales preguntas formuladas en la vista.
5. 249A folio 5576 (ver original a folio 5583), se apersona Sandra Arredondo, en su condición de Regente Ambiental del Proyecto Minero Crucitas y solicita una copia del video de la vista.
6. 250Por escrito de fecha veintiocho de noviembre de dos mil nueve (folio 5577), se apersona Eduardo Vargas Rivera, en su condición de representante del Instituto Latinoamericano de Derechos y Paz Social y manifiesta que apoya el proyecto Crucitas porque estima beneficia al país.
7. 251Por escrito del dos de diciembre de dos mil nueve, se apersona Sandra Arredondo, en su condición de Regente Ambiental del Proyecto Minero Crucitas (folio 5579), y manifiesta que aporta información y aclaraciones técnicas para mejor resolver.
8. 252Por escritos visibles a folios 5587 y 5589, Gustavo Ulate Vargas muestra su oposición al proyecto minero y su apoyo al recurso de amparo presentado.
9. 253Por escrito recibido el ocho de diciembre de dos mil nueve (folio 5595), el señor Juan Carlos Hernández, en su condición de Apoderado Generalísimo de la empresa recurrida, solicita copia del registro de video de la Vista celebrada los días doce, trece y diecisiete de noviembre de dos mil nueve.
10. 254Mediante escrito recibido el primero de enero de dos mil diez (folio 5596), se apersona Francella Amador Rodríguez y manifiesta su apoyo a la pretensión del recurrente.
11. 255Por escritos recibidos el trece de enero de dos mil diez (folios 5600 y 5602), se apersonan Luis Diego Cárdenas Pereira y Günther Hauser, quienes solicitan ser tenidos como coadyuvantes activos.
12. 256En escrito presentado el 14 de enero de 2010 la señora Daniela González C. y otros firmantes (folio 5604) solicitan ser tenidos como coadyuvantes pasivos en el presente recurso y solicitan que se declare con lugar el mismo.
13. 257A folio 5610, el señor Carlos Alberto Alfaro Mata, solicita a este Tribunal anular la concesión minera R-217-2008-MINAE, el Decreto Ejecutivo No. 34801-MINAET, así como la resolución No. 244-2008-SCH.
14. 258El 19 de enero de 2010 Juan Carlos Alvarado Molina solicita que se declare con lugar este recurso, que se ordene un peritaje de un grupo interdisciplinario, otra inspección y audiencia oral.
15. 259A folio 5637 consta la solicitud de inhibitoria presentada por la Magistrada Salazar Cambronero, la cual fue acogida por la Presidencia de la Sala (ver folio 5649).
16. 260El 9 de marzo de 2010 la Secretaría del Concejo Municipal de San Carlos presentó un escrito solicitando a la Sala la resolución final de este recurso de amparo (folio 5638).
17. 261El 19 de marzo de 2010, el representante de la empresa recurrida solicita a la Sala emitir sentencia en el presente recurso.
18. 262En los procedimientos se ha observado las prescripciones de ley.

Redacta el Magistrado Mora Mora; y,

Considerando

I.De previo. Sobre la responsabilidad política en la minería metálica a cielo abierto, su autorización y prohibición por los Poderes públicos, y la posible rescisión de las concesiones otorgadas por el Poder Ejecutivo.- En un Estado Social y Democrático de Derecho es claro que la política ambiental es una competencia de los Poderes Legislativo y Ejecutivo, no del Judicial, en consecuencia no del Tribunal, Sala o Corte Constitucional. Lo anterior implica que resulta ajeno al ámbito de competencias de la jurisdicción constitucional determinar en genérico si debe o no permitirse la minería metálica a cielo abierto en el país, pues como se indicó, ello es competencia y responsabilidad propia de los Poderes Legislativo y Ejecutivo, quienes han valorado como viable esta forma de explotación de las riquezas del territorio nacional. Así, el caso bajo estudio es el resultado de decisiones y políticas de esos Poderes del Estado.

Desde esta perspectiva, la minería a cielo abierto es posible en nuestro país, porque así lo han decidido esos Poderes en el ejercicio de sus competencias constitucionales y legales (Código de Minería, Ley Orgánica del Ambiente y sus reglamentos). Ahora bien, con independencia de las consideraciones dadas en cuanto al fondo del proyecto minero a que se refiere este amparo, y habiéndose determinado que la autorización o prohibición de este tipo de explotación minera es una cuestión de política pública fundamentada en las potestades y competencias de los Poderes Legislativo y Ejecutivo. La mayoría de este Tribunal Constitucional, estima que por una decisión legislativa, adoptada a iniciativa tanto de ese poder de la República como del propio Poder Ejecutivo, bien puede prohibirse, a futuro, la minería metálica a cielo abierto. Decisión que se enmarca dentro de los márgenes de discrecionalidad política y de libertad de conformación que tiene el legislador ordinario.

Incluso, eventualmente, el Poder Ejecutivo tiene plenas competencias y atribuciones para rescindir, por razones de oportunidad, conveniencia, mérito o de interés público las concesiones y permisos otorgados en el pasado a cualquier empresa, debiendo enfrentar las eventuales responsabilidades consecuentes. Debe tomarse en consideración que el artículo 6°, párrafo in fine, del Código de Minería, Ley No. 6797 de 4 de octubre de 1982 y sus reformas, dispone que en caso de rescisión de los permisos o concesiones “el interés nacional será declarado por la Asamblea Legislativa”. Bajo esta inteligencia, tanto el Poder Legislativo como el Ejecutivo deben ejercer, respectivamente, la última palabra en materia de prohibición de la minería metálica a cielo abierto a futuro, así como de una eventual rescisión de las concesiones y permisos hasta ahora otorgadas si estima que esto resulta oportuno, conveniente o necesario para el interés público, asumiendo las responsabilidades correlativas.

En otras palabras, las consideraciones que de seguido se hacen, se refieren al caso concreto sometido a conocimiento de la Sala, deben ser entendidas de manera particular en cuanto al objeto de esta acción de garantía y para este proyecto minero en especial, sin que el criterio vertido por el Tribunal deba o pueda apreciarse como una validación en genérico para el desarrollo en el país de la minería metálica a cielo abierto, pues según lo dicho, la autorización y prohibición de esa actividad, es competencia y responsabilidad de los Poderes Legislativo y Ejecutivo. De tal forma, en esta sentencia se hará un análisis de los aspectos de base constitucional planteados por los recurrentes, sin que lo que aquí se considere inhiba a las autoridades legislativas y ejecutivas de modificar la política pública sobre la minería metálica a cielo abierto.

II.Sobre los recursos de amparo contra sujetos de derecho privado. Por su excepcional naturaleza, el trámite ordinario de los recursos de amparo contra sujetos de derecho privado exige comenzar por examinar si, en la especie, se está ante alguno de los supuestos que lo hacen admisible, para -posteriormente y en caso afirmativo- dilucidar si es estimable o no; esto resulta necesario en el caso bajo estudio por cuanto una de las partes recurridas es la empresa Industrias Infinito Sociedad Anónima, la cual evidentemente es un sujeto de derecho de privado. El artículo cincuenta y siete de la Ley de la Jurisdicción Constitucional establece que procede el recurso de amparo contra las acciones u omisiones de sujetos de derecho privado cuando éstos actúen o deban actuar en ejercicio de funciones o potestades públicas, o se encuentren, de derecho o de hecho, en una posición de poder frente a la cual los remedios jurisdiccionales comunes resulten claramente insuficientes o tardíos para garantizar los derechos o libertades fundamentales a que se refiere el artículo dos, inciso a) de la misma Ley.

En el caso concreto, es claro el cumplimiento de esos presupuestos, pues en su condición de desarrolladora de un proyecto de minería a cielo abierto, la empresa recurrida se encuentra en ejecución de actividades sensibles que pueden situar al ambiente en una posición de fragilidad o precariedad ante la cual los remedios jurisdiccionales comunes no serían suficientes u oportunos, lo que impone la necesidad de valoración del cumplimiento a la dimensión constitucional de la protección ambiental.

III.Cuestión de trámite. Las coadyuvancias presentadas. Los señores Patricia Romero B., Marvin Rojas R., Sergio Alfaro Salas, José Joaquín Salazar A., Leda Zamora Chaves, Alberto Salom E., Orlando Hernández Murillo, Patricia Quirós Quirós, Lesvia Villalobos Salas, Olivier Pérez González, Rafael Elías Madrigal Brenes, Francisco Molina G. Óscar López A., José Joaquín Salazar Rojas, Rafael Ángel Rojas Jiménez, Luis Diego Cárdenas Pereira y Günther Hauser se apersonan solicitando se les tenga como coadyuvantes activos por tener interés directo en la resolución de este asunto en cuanto a la protección del ambiente. Por otra parte, el señor José Eduardo Vargas Rivera, solicita se le tenga como coadyuvante pasivo, en cuanto estima conveniente la continuidad del proyecto minero Crucitas, el cual considera favorable para la región, el país y su propia condición particular. Sobre la naturaleza jurídica de la coadyuvancia, la Sala, en sentencia número 3235-92 de las nueve horas veinte minutos del treinta de octubre de mil novecientos noventa y dos -reiterada, entre otras, por sentencia número 2007-3185 de las diez horas cuarenta y siete minutos del nueve de marzo del dos mil siete-, estableció que:

“La coadyuvancia es una forma de intervención adhesiva que se da cuando una persona actúa en un proceso adhiriéndose a las pretensiones de alguna de las partes principales, como consecuencia está legitimado para actuar como coadyuvante quien ostente un interés directo en el resultado del recurso, pero al no ser actor principal, el coadyuvante no resultará directamente afectado por la sentencia, es decir, la eficacia de ésta no podrá alcanzarle de manera directa e inmediata, ni le afecta la condición de cosa juzgada del pronunciamiento, aunque en materia de amparo pueda favorecerle la eficacia de lo resuelto, debido al carácter “erga omnes” que tiene la Jurisprudencia y precedentes de la jurisdicción constitucional (artículo 13 de la Ley de la Jurisdicción Constitucional)” A partir de lo anterior y de conformidad con lo dispuesto en el artículo treinta y cuatro de la Ley de la Jurisdicción Constitucional, se aceptan las gestiones formuladas y se les admite como coadyuvantes activos y pasivos en lo que respecta de manera particular y puntual al objeto concreto de este recurso de amparo, bajo la advertencia de que no resultarán directamente beneficiados por la sentencia, con lo cual la eficacia de ésta no podrá alcanzarles de manera directa e inmediata.

IV.Cuestión de trámite. La solicitud de un peritaje. En múltiples escritos aportados al expediente, se ha solicitado a la Sala que requiera la realización de un peritaje para con él respaldar las afirmaciones de las partes recurrentes. Sobre el particular, debe indicarse a los gestionantes, que en autos obra diversidad de estudios técnicos elaborados por profesionales en distintas áreas del conocimiento, tales como Geología, Biología, Ingeniería, Arquitectura, Química, Economía, Sociología, así como en especialidades relacionadas con Hidrología, Vulcanología, Sismología, Ingeniería Química, entre otras, de donde resultaría sobreabundante acudir a nuevas pericias para intentar respaldar pretensiones cuya demostración es responsabilidad de las partes proponentes. En todo caso, durante la substanciación de esta acción de garantía, la Sala ha solicitado en diferentes oportunidades pruebas para mejor resolver para la ampliación de temas concretos o la evacuación de dudas sobre aspectos puntuales, tendiendo así a clarificar la validez o improcedencia de las alegaciones planteadas y resolver cada una de ellas de la forma indicada en esta sentencia.

Del mismo modo, se realizó también una Inspección Judicial el doce de setiembre de dos mil nueve, así como también se celebró una Vista oral y pública durante los días doce, trece y diecisiete de noviembre del mismo año, oportunidad en la cual todas las partes involucradas hicieron uso de la palabra para explicar sus pretensiones y plantear su defensa, así como se les brindó la oportunidad de aportar en el acto y después de él –como en efecto aconteció- nuevo material probatorio en respaldo de sus manifestaciones. De tal forma, la Sala concluye que para la resolución de este amparo resulta suficiente la prueba que ha sido allegada a los autos; en consecuencia, se desestima la pretensión de los gestionantes en cuanto a este extremo.

V.Hechos probados. De importancia para la decisión de este asunto, se estiman como debidamente demostrados los siguientes hechos:

<![if !supportLists]>1. <![endif]>Que en la localidad de Crucitas de Cutris, cantón de San Carlos, la empresa Industrias Infinito Sociedad Anónima pretende desarrollar el denominado Proyecto Minero Crucitas (documento número 7 del tomo I del expediente administrativo aportado por la empresa recurrida).

<![if !supportLists]>2. <![endif]>Que ante la Dirección de Geología y Minas se tramitó el expediente administrativo número 2594, para la concesión de explotación minera a favor de Industrias Infinito Sociedad Anónima, en el cual consta Estudio de Factibilidad del proyecto minero y el apéndice 5, denominado “Manejo de Explosivos y Voladuras, proyecto minero Crucitas, San Carlos, Alajuela”, elaborado por el Ingeniero en Minas Tomás Goic (folios 5507 y 5517).

<![if !supportLists]>3. <![endif]>Que el veinticuatro de enero de dos mil, ingresa a la Secretaría Técnica Nacional Ambiental el expediente minero número 2594, procedente de la Dirección de Geología y Minas (folio 1318 del expediente administrativo).

<![if !supportLists]>4. <![endif]>Que mediante resolución número 486-2000-SETENA, de trece de junio de dos mil, la Secretaría Técnica Nacional Ambiental, se comunica a la Dirección de Geología y Minas que para determinar la viabilidad ambiental de la actividad propuesta se requiere la presentación de un Estudio de Impacto Ambiental, ajustado a los términos de referencia adjuntos (anexo 2 de documentación aportada por la Regencia Ambiental del proyecto el veintisiete de noviembre de dos mil nueve, y folio 1318 del expediente administrativo ).

<![if !supportLists]>5. <![endif]>Que el seis de abril de dos mil uno se emite el “Informe de Aspectos Económicos sobre la revisión de anexos al Estudio de Factibilidad del Proyecto Crucitas (expediente 2594 de explotación) de Industrias Infinito S.A.” (anexo 5 de documentación presentada por la Regencia Ambiental el veintisiete de noviembre de dos mil nueve).

<![if !supportLists]>6. <![endif]>Que mediante oficio número DGM-DC-320-2001, la Dirección de Geología y Minas refiere, entre otros aspectos, el procedimiento seguido con respecto al Estudio de Factibilidad Económica presentado dentro del expediente número 2594 (documento número 7 del tomo I del expediente administrativo aportado por la empresa recurrida).

<![if !supportLists]>7. <![endif]>Que el doce de marzo de dos mil dos, la empresa recurrida presenta ante la Secretaría Técnica Nacional Ambiental el Estudio de Impacto Ambiental del Proyecto Minero Crucitas (folio 1 del Estudio de Impacto Ambiental).

<![if !supportLists]>8. <![endif]>Que mediante resolución del Ministerio del Ambiente y Energía, número R-578-2001 MINAE, de las nueve horas del diecisiete de diciembre de dos mil uno, dentro del expediente 2594 de la Dirección de Geología y Minas, se otorga concesión de explotación minera a Industrias Infinito S.A., sobre inmuebles situados en Crucitas, Cutris de San Carlos (documento número 7 del tomo I del expediente administrativo aportado por la empresa recurrida).

<![if !supportLists]>9. <![endif]>Que mediante resolución número 272-2003-SETENA, de once de marzo de dos mil tres, la Secretaría Técnica Nacional Ambiental comunica a la empresa recurrida que no se otorgó la viabilidad ambiental al proyecto minero por no cumplir los objetivos del mismo (documento número 9 del Tomo I del expediente administrativo aportado por la empresa recurrida).

<![if !supportLists]>10. <![endif]>Que el catorce de marzo de dos mil tres, la empresa recurrida interpuso incidente de nulidad y recurso de revocatoria con apelación en subsidio contra la resolución número 272-2003-SETENA (anexo 2 de documentación presentada por la Regencia Ambiental del proyecto el veintisiete de noviembre de dos mil nueve).

<![if !supportLists]>11. <![endif]>Que mediante resolución número 811-2003-SETENA, de las catorce horas veinte minutos del siete de julio de dos mil tres, se rechaza el incidente de nulidad y el recurso de revocatoria interpuesto contra la resolución número 272-2003-SETENA, y admite el recurso de apelación ante el superior jerárquico (anexo 2 de documentación presentada por la Regencia Ambiental del proyecto el veintisiete de noviembre de dos mil nueve).

<![if !supportLists]>12. <![endif]>Que mediante resolución número R-569-2003-MINAE, de las nueve horas treinta minutos del veinte de octubre de dos mil tres, el Ministro del Ambiente y Energía declara con lugar el incidente de nulidad y el recurso de apelación interpuesto contra la resolución número 272-2003-SETENA, ordenando retrotraer el expediente administrativo al momento en que se presentó el Estudio de Impacto Ambiental (anexo 2 de la documentación presentada por la Regencia Ambiental del proyecto el veintisiete de noviembre de dos mil nueve).

<![if !supportLists]>13. <![endif]>Que mediante resolución número 831-2004-SETENA, de las diez horas cincuenta y cinco minutos del dos de junio de dos mil cuatro, se acuerda realizar el proceso de audiencia pública para el proyecto minero Crucitas, la cual se programó para el treinta y uno de dos mil cuatro (anexo 2 de documentación presentada por la Regencia Ambiental el veintisiete de noviembre de dos mil nueve).

<![if !supportLists]>14. <![endif]>Que el treinta y uno de julio de dos mil cuatro se celebró la Audiencia Pública convocada para el proyecto minero Crucitas, la cual se celebró en el Salón Comunal de Coopevega de Cutris (documento número uno de copia del anexo 1 del expediente administrativo DAJ-077-08, Boletín Informativo Crucitas Informa, año III, número 10, de agosto de dos mil cuatro).

<![if !supportLists]>15. <![endif]>Que mediante resolución número 119-2005-SETENA, de las ocho horas del diecisiete de enero de dos mil cinco, se previene a la empresa recurrida que en un plazo máximo de seis meses presente un anexo al Estudio de Impacto Ambiental que cumpla con los elementos señalados en la resolución (folio 1318 del expediente administrativo y anexo 2 de la documentación aportada por la Regencia Ambiental el veintisiete de noviembre de dos mil nueve).

<![if !supportLists]>16. <![endif]>Que el veintiséis de abril de dos mil cinco, la empresa recurrida presentó ante la Secretaría Técnica Nacional Ambiental el anexo requerido mediante resolución número 119-2005-SETENA (folio 1318 del expediente administrativo).

<![if !supportLists]>17. <![endif]>Que mediante resolución número 2237-2005-SETENA, del treinta de agosto de dos mil cinco, se aprueba la documentación presentada por la empresa recurrida y se le previene efectuar el depósito de la garantía ambiental, nombrar un responsable ambiental, presentar un libro de actas para Bitácora, y presentar la Declaración Jurada de Compromisos Ambientales (anexo 2 de documentación presentada por la Regencia Ambiental del proyecto el veintisiete de noviembre de dos mil nueve).

<![if !supportLists]>18. <![endif]>Que el treinta de setiembre de dos mil cinco, la empresa recurrida presenta ante la Secretaría Técnica Nacional Ambiental, la documentación requerida mediante resolución número 2237-2005-SETENA (documento 11 del Tomo I del expediente administrativo aportado por la empresa recurrida).

<![if !supportLists]>19. <![endif]>Que mediante resolución número 3638-2005-SETENA, de las nueve horas veinticinco minutos del doce de diciembre de dos mil cinco, la Secretaría Técnica Nacional Ambiental otorga viabilidad ambiental al proyecto minero Crucitas (folio 1318 del expediente administrativo).

<![if !supportLists]>20. <![endif]>Que para el desarrollo del Proyecto Minero Crucitas es necesaria la corta de ciento noventa y dos hectáreas.

<![if !supportLists]>21. <![endif]>Que la actividad minera a cielo abierto es tradicionalmente considerada como una actividad riesgosa para el ambiente en caso de no ejecutarse dentro de los parámetros establecidos para la protección ambiental (así planteado en la Vista celebrada los días doce, trece y diecisiete de noviembre de dos mil nueve).

<![if !supportLists]>22. <![endif]>Que la tala que se observa en el área administrativa del Proyecto Minero Crucitas se aprecia que obedece a antiguos procesos de extracción maderera en la zona de previo al establecimiento de la empresa recurrida, mientras la tala en los cerros Botija y Fortuna aparenta ser producto de procesos de corta más recientes (ver Acta de Inspección Judicial visible a folio 4621 del expediente).

<![if !supportLists]>23. <![endif]>Que la existencia del almendro amarillo y la posibilidad de su tala para la implementación del proyecto minero, es de preocupación por tratarse de una especie protegida cuyos frutos sirven de alimento a la lapa verde, y cuyos troncos son utilizados por el ave en época de anidación.

<![if !supportLists]>24. <![endif]>Que mediante cuadros números 8, 11, 14, 17 del Informe de Consultoría sobre Estudio Poblacional de las Especies Fustales que se encuentran entre los diámetros 10-29.9 cm en el Proyecto Industrias Infinito, elaborado por el Departamento Forestal del Instituto Tecnológico de Costa Rica, se informa que es escasa la presencia del almendro en las áreas de extracción Botija y Fortuna, y en el área de relaves, y se trata de una especie valorada como en peligro (folios 39, 50, 51, 61, 63, 72 y 74 del expediente administrativo).

<![if !supportLists]>25. <![endif]>Que el Plan de Manejo Forestal para garantizar el uso racional de los recursos naturales en las áreas bajo administración del proyecto minero Crucitas, indica que las áreas a reforestar en su totalidad son terrenos que se encuentran principalmente en áreas no forestales (folio 276 del expediente administrativo).

<![if !supportLists]>26. <![endif]>Que el Plan de Manejo Forestal para garantizar el uso racional de los recursos naturales en las áreas bajo administración del proyecto minero Crucitas, indica que las parcelas de los bosques del área de extracción Botija, Fortuna, relaves, caminos a construir y parte del tramo de tubería fijas, son áreas caracterizadas como muy explotadas que no alcanzan los promedios generalizados para los bosques primarios de la zona (folio 1139 del expediente administrativo).

<![if !supportLists]>27. <![endif]>Que el Plan de Manejo Forestal para garantizar el uso racional de los recursos naturales en las áreas bajo administración del proyecto minero Crucitas, indica que dentro del proyecto se establecerá un vivero forestal de especies nativas con semillas certificadas, dando prioridad al almendro y al titor para el caso de la lapa, y al spondias bombín para el tepezcuintle y otros (folio 270 del expediente administrativo).

<![if !supportLists]>28. <![endif]>Que el Plan de Manejo Forestal para garantizar el uso racional de los recursos naturales en las áreas bajo administración del proyecto minero Crucitas, indica que en la fase de cierre del proyecto se rehabilitarán las áreas impactadas para devolverlas a un estado similar a las zonas boscosas cercanas, incluyendo la recuperación de la totalidad del área del cambio de uso de suelo (folios 235 y 237 del expediente administrativo).

<![if !supportLists]>29. <![endif]>Que el Plan de Manejo Forestal para garantizar el uso racional de los recursos naturales en las áreas bajo administración del proyecto minero Crucitas, indica que la mayoría de árboles en las parcelas inventariadas tienen diámetros inferiores a cincuenta centímetros (folio 1139 del expediente administrativo).

<![if !supportLists]>30. <![endif]>Que en el área de extracción Botija del proyecto minero Crucitas se censaron nueve árboles de almendro (folio 1460 del expediente administrativo).

<![if !supportLists]>31. <![endif]>Que en el área de extracción Fortuna del proyecto minero Crucitas se censaron dieciséis árboles de almendro (folio 1454 del expediente administrativo).

<![if !supportLists]>32. <![endif]>Que en el área de relaves A del proyecto minero Crucitas, se censaron cuarenta y cuatro árboles de almendro (folio 1447 del expediente administrativo).

<![if !supportLists]>33. <![endif]>Que en el área de relaves B del proyecto minero Crucitas, se censaron sesenta y siete árboles de almendro (folio 1440 del expediente administrativo).

<![if !supportLists]>34. <![endif]>Que en las áreas de caminos del proyecto minero Crucitas, se censaron treinta y dos árboles de almendro (folio 1433 del expediente administrativo).

<![if !supportLists]>35. <![endif]>Que en las áreas de cobertura boscosa del proyecto minero Crucitas, se censaron ciento sesenta y ocho árboles de almendro (folio 1427 del expediente administrativo).

<![if !supportLists]>36. <![endif]>Que en el área de potreros del proyecto minero Crucitas, se censaron veintinueve árboles de almendro (folio 1418 del expediente administrativo).

<![if !supportLists]>37. <![endif]>Que en el área total del proyecto minero Crucitas sobre la que se solicitó autorización de cambio de uso de suelo, se censaron ciento noventa y siete árboles de almendro (folio 1405 del expediente administrativo).

<![if !supportLists]>38. <![endif]>Que mediante resolución número R-053-2005-AGUAS-MINAE, de las nueve horas veinticinco minutos del doce de enero de dos mil cinco, el Departamento de Aguas del Ministerio del Ambiente y Energía, otorga a Industrias Infinito S.A. concesión de aprovechamiento de aguas de nacimiento sin nombre, para uso doméstico por un plazo de diez años (documento 21 del tomo I del expediente administrativo aportado por la empresa) <![if !supportLists]>39. <![endif]>Que mediante oficio número DST-773-2006, de cuatro de octubre de dos mil seis, el Instituto Nacional de Innovación y Transferencia en Tecnología Agropecuaria –INTA- informa a la Dirección General de Geología y Minas que de acuerdo al Estudio de Impacto Ambiental y las declaraciones juradas presentadas por Industrias Infinito Sociedad Anónima ante INTA y SETENA, no se perderá la capacidad productiva de los suelos, siempre que se cumpla con las actividades técnicas de manejo detalladas en las declaraciones (folio 1338 del expediente administrativo).

<![if !supportLists]>40. <![endif]>Que mediante resolución número 2351-2006-SETENA, de las diez horas cinco minutos del catorce de diciembre de dos mil seis, la Secretaría Técnica Nacional Ambiental rechaza recursos de revocatoria interpuestos contra la resolución número 3638-2005-SETENA, y admite la apelación ante el Ministerio del Ambiente y Energía (documento 117 del tomo II del expediente administrativo aportado por la empresa recurrida).

<![if !supportLists]>41. <![endif]>Que mediante Inventario de Corrientes en la zona de explotación del proyecto minero Crucitas, de noviembre de dos mil siete, se concluye que en el área de explotación no existe ninguna quebrada o corriente de tamaño significativo que pudiera ser afectada por la explotación (documento 119 del tomo II del expediente administrativo aportado por la empresa recurrida).

<![if !supportLists]>42. <![endif]>Que mediante Inventario de Corrientes en la zona de explotación del proyecto minero Crucitas, de noviembre de dos mil siete, se concluye que en el área de embalse se afectarían cuatro yurros y la quebrada Mina, las cuales serían inundadas por el embalse de relaves (documento 119 del tomo II del expediente administrativo aportado por la empresa recurrida).

<![if !supportLists]>43. <![endif]>Que la quebrada Mina discurre hacia el río Infiernillo, el cual sigue su curso hacia el río San Juan (folio 4521).

<![if !supportLists]>44. <![endif]>Que mediante Inventario de Corrientes en la zona de explotación del proyecto minero Crucitas, de noviembre de dos mil siete, se concluye que en el área de la planta de proceso no se afectaría ningún tipo de corriente (documento 119 del tomo II del expediente administrativo aportado por la empresa recurrida).

<![if !supportLists]>45. <![endif]>Que el agua procedente de la planta de tratamiento de cianuro del proyecto minero que se depositará en la laguna de relaves, se prevé que esté libre de cianuro y otros contaminantes (folio 3661).

<![if !supportLists]>46. <![endif]>Que el dique que se pretende construir en la zona donde se ubicará la laguna de relaves tiene una sismoresistencia a efectos telúricos de 8.2 grados en la escala de Richter (ver Acta de Inspección Judicial visible a folio 4621).

<![if !supportLists]>47. <![endif]>Que mediante Inventario de Corrientes en la zona de explotación del proyecto minero Crucitas, de noviembre de dos mil siete, se concluye que el efecto de la explotación minera se manifestaría en un aumento de la escorrentía, el cual sería despreciable en el caudal de los ríos receptores (documento 119 del tomo II del expediente administrativo aportado por la empresa recurrida).

<![if !supportLists]>48. <![endif]>Que el seis de diciembre de dos mil siete, la empresa Industrias Infinito Sociedad Anónima, presenta a la Secretaría Técnica Nacional Ambiental la propuesta de modificación al proyecto minero Crucitas, adjuntando la Declaración Jurada de Compromisos Ambientales y el Plan de Gestión Ambiental actualizado para cada etapa del proyecto (folio 1292 del expediente administrativo).

<![if !supportLists]>49. <![endif]>Que mediante resolución de la Secretaría Técnica Nacional Ambiental, número 170-2008-SETENA, de las doce horas cincuenta minutos del cuatro de febrero de dos mil ocho, se aprueba el Plan de Gestión Ambiental aportado por Industrias Infinito S.A. para la modificación del proyecto minero Crucitas (folio 1293 del expediente administrativo).

<![if !supportLists]>50. <![endif]>Que mediante resolución del Ministerio del Ambiente y Energía, número R-217-2008-MINAE, de las quince horas del veintiuno de abril de dos mil ocho, dentro del expediente 2594 de la Dirección de Geología y Minas, se otorga concesión minera a la empresa Industrias Infinito S.A., por el plazo de diez años (folio 1339 del expediente administrativo).

<![if !supportLists]>51. <![endif]>Que mediante oficio número IMN-DA-1358-2008, de diecinueve de mayo de dos mil ocho, el Departamento de Aguas del Instituto Meteorológico Nacional, acredita que en el área de explotación minera del cerro Fortuna existen diez quebradas sin nombre de caudal intermitente y de dominio público; que en el área de explotación minera en el cerro Botija existen dos quebradas sin nombre de caudal intermitente y de dominio público; y en el área de embalse de relaves existen cinco quebradas de caudal permanente de dominio público, entre ellas las quebradas Minas y Campamento (documento 83 del tomo II del expediente administrativo aportado por la empresa recurrida).

<![if !supportLists]>52. <![endif]>Que mediante escrito recibido por el Ministerio del Ambiente y Energía el veintiuno de mayo de dos mil ocho, Industrias Infinito S.A. solicita autorización para cambio de uso forestal (folio 1348 del expediente administrativo).

<![if !supportLists]>53. <![endif]>Que mediante oficio número 456-2008 SCH, de tres de junio de dos mil ocho, el Área de Conservación Arenal Huetar Norte, del Sistema Nacional de Áreas de Conservación del Ministerio del Ambiente y Energía, informa a Industrias Infinito S.A. que resulta de suma importancia contar con el decreto de conveniencia nacional para el trámite de cambio de uso de suelo solicitado por la empresa (documento 108 del tomo II del expediente administrativo aportado por la empresa recurrida).

<![if !supportLists]>54. <![endif]>Que mediante oficio número 137-AJ-ACAHN-08, de diecinueve de junio de dos mil ocho, la asesoría legal de la Dirección Regional del Área de Conservación Arenal Huetar Norte, del Sistema Nacional de Áreas de Conservación del Ministerio del Ambiente y Energía, informa al Jefe de la Sub región San Carlos-Los Chiles que ante la solicitud de cambio de uso de suelo presentada por Industrias Infinito S.A., se requiere de una declaratoria de conveniencia nacional en cada caso, donde se fundamente que la eliminación de bosque natural redundará en un beneficio para la colectividad (documento 109 del tomo II del expediente administrativo aportado por la empresa recurrida).

<![if !supportLists]>55. <![endif]>Que mediante oficio número 540-2008-SC, de tres de julio de dos mil ocho, la Sub región San Carlos-Los Chiles del Área de Conservación Arenal Huetar Norte del Sistema Nacional de Áreas de Conservación del Ministerio del Ambiente y Energía, solicita al regente forestal de Industrias Infinito la aclaración de una serie de dudas con respecto a la solicitud de cambio de uso de suelo (folio 1364 del expediente administrativo).

<![if !supportLists]>56. <![endif]>Que mediante nota de ocho de julio de dos mil ocho, el Regente Forestal de Industrias Infinito S.A., presenta documentación para dar cumplimiento a la solicitud planteada en el oficio número 540-2008-SC de la Sub región San Carlos-Los Chiles del Área de Conservación Arenal Huetar Norte del Sistema Nacional de Áreas de Conservación del Ministerio del Ambiente y Energía (folio 1605 del expediente administrativo).

<![if !supportLists]>57. <![endif]>Que por oficio número ASUB-279-2008, de catorce de julio de dos mil ocho, el Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento, comunica a la Sección de Hidrocarburos del MINAET, que visto el estudio hidrogeológico presentado por la geóloga Sandra Arredondo, que califica el sitio del proyecto Mina Crucitas como de vulnerabilidad hidrogeológica específica media, se puede permitir la instalación de una estación de combustibles para autoconsumo (documento 23 del tomo I del expediente administrativo aportado por la empresa recurrida).

<![if !supportLists]>58. <![endif]>Que mediante oficio número 559-2008 SC, de dieciséis de julio de dos mil ocho del Área de Conservación Arenal Huetar Norte, del Sistema Nacional de Áreas de Conservación del Ministerio del Ambiente, Energía y Minas, se informa a Industrias Infinito S.A. que previo a emitir la resolución final en el Plan de Manejo Forestal solicitado, se requiere aportar al expediente administrativo el decreto de declaratoria de conveniencia nacional e interés público del proyecto minero Crucitas (folio 1608 del expediente administrativo).

<![if !supportLists]>59. <![endif]>Que mediante oficio número SINAC-AL-428-2008, de veinte de agosto de dos mil ocho, la Asesoría Legal del Sistema Nacional de Áreas de Conservación del Ministerio del Ambiente, Energía y Telecomunicaciones, informa al Jefe de la Sub región San Carlos-Los Chiles, que sería redundante y dilatorio para el interés público solicitar un decreto de declaratoria de conveniencia nacional (documento 113 del tomo II del expediente administrativo aportado por la empresa recurrida).

<![if !supportLists]>60. <![endif]>Que mediante oficio número ACAHN-DR-0165, de primero de setiembre de dos mil ocho de la Dirección Regional del Área de Conservación Arenal Huetar Norte, del Sistema Nacional de Conservación del Ministerio del Ambiente, Energía y Telecomunicaciones, se solicita al Director Ejecutivo del SINAC consultar a la Procuraduría General de la República si se requiere la Declaratoria de Conveniencia Nacional para realizar actividades en obras o proyectos que requieran cambio de uso de suelo en el proyecto de Industrias Infinito Sociedad Anónima (folio 1657 del expediente administrativo).

<![if !supportLists]>61. <![endif]>Que mediante oficio número ACAHN-DR-0166, de primero de setiembre de dos mil ocho, de la Dirección Regional del Área de Conservación Arenal Huetar Norte, del Sistema Nacional de Conservación del Ministerio del Ambiente, Energía y Telecomunicaciones, se informa al señor Viceministro del Ambiente, Energía y Telecomunicaciones que se ha solicitado a la Dirección Ejecutiva del SINAC consultar a la Procuraduría General de la República si se requiere la Declaratoria de Conveniencia Nacional para realizar actividades en obras o proyectos que requieran cambio de uso de suelo (folio 1673 del expediente administrativo).

<![if !supportLists]>62. <![endif]>Que mediante oficio número 695-2008 SC, de veinticuatro de setiembre de dos mil ocho de la Subregión San Carlos-Los Chiles, del Área de Conservación Arenal Huetar Norte, del Sistema Nacional de Áreas de Conservación del Ministerio del Ambiente, Energía y Telecomunicaciones, se comunica a Industrias Infinito que se requiere el decreto de conveniencia nacional e interés público para emitir la resolución final ante la petición de permiso de cambio de uso de suelo (folio 1660 del expediente administrativo).

<![if !supportLists]>63. <![endif]>Que mediante informe de aspectos forestales, de octubre de dos mil ocho, se acredita que en el área del proyecto minero Crucitas se ha reforestado a esa fecha la cantidad de seis mil noventa y tres árboles de almendro (documento 98 del tomo II del expediente administrativo aportado por la empresa recurrida).

<![if !supportLists]>64. <![endif]>Que mediante informe de aspectos forestales, de octubre de dos mil ocho, se acredita que las áreas de cobertura boscosa del proyecto minero Crucitas sometidas a cambio de uso de suelo, se definen como vegetación leñosa de carácter sucesional que se desarrolla sobre tierras originalmente destruidas por actividades humanas (documento 98 del tomo II del expediente administrativo aportado por la empresa recurrida).

<![if !supportLists]>65. <![endif]>Que mediante informe de aspectos forestales, de octubre de dos mil ocho, se acredita que la clasificación diamétrica para cada una de las parcelas inventariadas en el proyecto minero Crucitas, la mayoría de árboles se encuentran en las clases diamétricas inferiores a cincuenta centímetros DAP (documento 98 del tomo II del expediente administrativo aportado por la empresa recurrida).

<![if !supportLists]>66. <![endif]>Que mediante informe de aspectos forestales, de octubre de dos mil ocho, se indica que los bosques a intervenir en Botija y Fortuna del proyecto minero Crucitas, no se pueden considerar como bosque primario, sino como bosques naturales intervenidos hace más de treinta años, cuyos árboles no alcanzan en general los veinticinco metros de altura incluida la altura de las copas, por lo que tienden a ser bosques secundarios (documento 98 del tomo II del expediente administrativo aportado por la empresa recurrida).

<![if !supportLists]>67. <![endif]>Que mediante oficio número SINAC-SE-1692-2008, de seis de octubre de dos mil ocho del Sistema Nacional de Áreas de Conservación del Ministerio de Ambiente, Energía y Telecomunicaciones, se informa al señor Viceministro de Ambiente, Energía y Telecomunicaciones, que la Procuraduría General de la República rechazaría ad portas una consulta sobre si es de conveniencia nacional cambiar el uso de suelto en áreas de bosque en lo que respecta a la minería (folio 1714 del expediente administrativo).

<![if !supportLists]>68. <![endif]>Que mediante oficio SG-ASA-259-2008, de diez de octubre de dos mil ocho, la Secretaría Técnica Nacional Ambiental comunica al Departamento de Auditoría y Seguimiento Ambiental que la evaluación para determinar el balance del costo ambiental en relación con los beneficios socio-ambientales del proyecto Crucitas, se realizó ante la SETENA en un período de tres años, determinándose que los últimos son mayores al costo ambiental (folio 1682 del expediente administrativo).

<![if !supportLists]>69. <![endif]>Que mediante resolución R-0289-2008-AGUAS-MINAET, de las ocho horas veintiún minutos del dieciséis de octubre de dos mil ocho, el Departamento de Aguas del Ministerio del Ambiente, Energía y Telecomunicaciones otorga a Industrias Infinito S.A. concesión de aprovechamiento de aguas de las quebradas Mina y Descubrimiento, por el plazo de diez años (documento 22 del tomo I del expediente administrativo aportado por la empresa recurrida).

<![if !supportLists]>70. <![endif]>Que en La Gaceta número 201, del diecisiete de octubre de dos mil ocho, aparece publicado el Decreto Ejecutivo número 34801-MINAET, Declaratoria de Interés Público y Conveniencia Nacional del Proyecto Minero Crucitas (folio 1683 del expediente administrativo).

<![if !supportLists]>71. <![endif]>Que mediante resolución número 244-2008-SCH, de las nueve horas cinco minutos del diecisiete de octubre de dos mil ocho, el Área de Conservación Arenal Huetar Norte, Sub-región San Carlos-Los Chiles, del Sistema Nacional de Áreas de Conservación del Ministerio del Ambiente, Energía y Telecomunicaciones, aprueba y autoriza la solicitud de cambio de uso de suelo solicitada por Industrias Infinito Sociedad Anónima (folio 1706 del expediente administrativo) <![if !supportLists]>72. <![endif]>Que la resolución del Área de Conservación Arenal Huetar Norte, Sub-región San Carlos-Los Chiles, del Sistema Nacional de Áreas de Conservación del Ministerio del Ambiente, Energía y Telecomunicaciones, número 244-2008-SCH, de las nueve horas cinco minutos del diecisiete de octubre de dos mil ocho, autoriza la corta de ciento noventa y siete árboles de almendro (folios 1690 y 1694 del expediente administrativo).

<![if !supportLists]>73. <![endif]>Que mediante resolución del Área de Conservación Arenal Huetar Norte, Sub-región San Carlos-Los Chiles, del Sistema Nacional de Áreas de Conservación del Ministerio del Ambiente, Energía y Telecomunicaciones, número 247-2008-SCH, de las diez horas del veintiuno de octubre de dos mil ocho, se suspenden los efectos de la resolución del mismo despacho, número 244-2008-SCH, de las nueve horas cinco minutos del diecisiete de octubre de dos mil ocho (folio1708 del expediente administrativo).

<![if !supportLists]>74. <![endif]>Que mediante informe “Cianuro y su Aplicación en Crucitas”, de enero de dos mil nueve, elaborado por Natalia Pleshcheeva y Miguel Arriaza, se concluye que se logra los niveles exigidos de destrucción del cianuro cuando los efluentes son tratados con el proceso Combinox (folios 1544 y 1557).

<![if !supportLists]>75. <![endif]>Que mediante informe Potencial de Drenaje Ácido de Roca en el Proyecto Crucitas y los Planes de Mitigación Existentes, de febrero de dos mil nueve, elaborado por Alejandro Arauz, se concluye que la técnica de sumergir el material sospechoso de tener potencial de drenaje ácido de rocas debajo de una capa de agua quieta, ha demostrado ser la más eficaz para evitar la generación de aguas ácidas, porque al suprimir el contacto con el oxígeno se evita la reacción química que genera aguas ácidas (folios 1509 y 1516).

<![if !supportLists]>76. <![endif]>Que mediante informe Revisión y evaluación de la información técnica sobre la aplicación, control y destrucción del cianuro en el proceso del proyecto minero Crucitas, de febrero de dos mil nueve, elaborado por Sherman Thomas Jackson, se concluye que el proyecto contará con eficientes controles para el traslado, uso y destrucción del cianuro, cumpliendo con la normativa nacional e internacional vigente; y que el proceso de destrucción del cianuro permite que las descargas de efluentes puedan ser manejadas y controladas de manera segura (folios 1537 y 1541).

<![if !supportLists]>77. <![endif]>Que mediante informe de Manejo de Roca y de Colas de proceso con potencial drenaje ácido en el proyecto minero Crucitas, de enero de dos mil nueve, elaborado por Gregory Pleshcheev, se concluye que la reposición subacuática de colas y de material estéril es el método más eficiente de manejo y mitigación de potencial de evento de drenaje ácido de rocas, y que el pH del agua en la laguna se mantendrá dentro del rango de características de aguas superficiales locales (folios 1519 y 1531).

<![if !supportLists]>78. <![endif]>Que mediante Auditoría del Componente Forestal del Proyecto Minero Crucitas, de enero-febrero de dos mil nueve, elaborado por Igor Zúñiga Garita, se concluye que el plan de mitigación y compensación del proyecto plantea la siembra de 611,392 árboles en un área de 382 hectáreas de potrero, contra la corta de 11,427 árboles en un área de 262 hectáreas, sembrándose aproximadamente sesenta y un árboles por cada árbol cortado y generando un aumento de la cobertura boscosa de 277.41 hectáreas con respecto al bosque actual; que no se detectaron bosques de tipo primario, sino que se clasifica como muy intervenida o secundaria; que la lapa verde no será afectada por la corta de 197 árboles de almendro amarillo; que otras treinta y cinco especies de árboles sirven de alimento a la lapa verde; y que el proyecto asegura la existencia del almendro amarillo, porque al momento se están sembrando 103 árboles por cada árbol cortado (folios 1673, 1703 y 1704).

<![if !supportLists]>79. <![endif]>Que mediante informe DIGH-0034-2009, de once de febrero de dos mil nueve, la Dirección de Investigación y Gestión Hídrica del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento analiza el Estudio Hidrogeológico aportado por el proyecto minero Crucitas, y concluye que la excavación no afectará las fuentes de abastecimiento público ni alcanzará el área de la laguna de relaves; que el acuífero inferior no cumple con las normas de potabilidad; que se podría contaminar las aguas superficiales si la laguna de relaves no llega a tener suficiente aportación de agua para mantener el espesor del espejo de agua; que debe garantizarse la condición de funcionamiento de la presa; que como medida de mitigación debe implementarse un sistema de tratamiento para mejorar la calidad del agua de la laguna que descarga al sistema fluvial (anexo 8 de memorial de veintiséis de febrero de 2009).

<![if !supportLists]>80. <![endif]>Que mediante informe de la Escuela de Ingeniería Forestal del Instituto Tecnológico de Costa Rica, de trece de febrero de dos mil nueve, denominado “Consideraciones científicas sobre la propuesta de manejo y rehabilitación del bosque, como parte de las medidas de mitigación a originarse con la explotación minera en la concesión Las Crucitas”, se concluye que los bosques de la empresa Industrias Infinito en la zona de Las Crucitas son bosque secundario; que la eliminación de 192 hectáreas de bosque secundario no implica una pérdida relevante en la biodiversidad y representatividad de los ecosistemas; que el plan de manejo y mitigación forestal aumentará la cobertura boscosa en un veinte por ciento; que la eliminación de ciento noventa y seis árboles de almendro de una población de más de setecientos árboles, no es un deterioro significativo de la posibilidad de alimentación de la lapa verde ni pérdida de su hábitat; que el remanente de árboles de almendro en pie garantiza la variabilidad genética y descarta cualquier grado de amenaza; que el ave no tiene dependencia alimentaria del almendro (anexo 3 de memorial de veintiséis de febrero de 2009).

<![if !supportLists]>81. <![endif]>Que mediante informe DIGH-039-2009, de trece de febrero de dos mil nueve, la Dirección de Investigación y Gestión Hídrica del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento, establece que no existe comunicación hidráulica entre las actividades del proyecto y las fuentes de agua potable; que el acuífero inferior no descarga hacia el río San Juan sino hacia Costa Rica; y que ninguno de los acuíferos es potable (anexo 8 de memorial de veintiséis de febrero de 2009).

<![if !supportLists]>82. <![endif]>Que mediante oficio GE-097-2009, de trece de febrero de dos mil nueve, el Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento comunica al Ministerio del Ambiente, Energía y Telecomunicaciones que por evaluación realizada por la Dirección de Investigación y Gestión Hídrica de dicha dependencia, se valida el estudio hidrogeológico realizado por la empresa ECOAMBIENTES S.A. para el proyecto minero Crucitas (anexo 8 de memorial de veintiséis de febrero de 2009).

<![if !supportLists]>83. <![endif]>Que mediante informe CCT-PI-023-09, de veinte de febrero de dos mil nueve, el Centro Científico Tropical concluye que la lapa verde no depende para su alimentación exclusivamente de la zona de Las Crucitas; que el ave anida en árboles maduros de almendro con DAP promedio de 129 cm; que no anida en Las Crucitas; que el área de Las Crucitas no es zona exclusiva de tránsito; que el proyecto no interrumpirá el proceso de reproducción del ave ni su ciclo de alimentación; que el ave no quedará sin alimentación por el cambio de uso de suelo sobre las 192 ha. del proyecto (anexo 1 de memorial de veintiséis de febrero de 2009).

<![if !supportLists]>84. <![endif]>Que mediante “Informe sobre los Aspectos de Conservación Biológica de la Lapa Verde y el Almendro Amarillo”, del biólogo Jorge Hernández Benavides, concluye que el almendro no es exclusiva fuente de alimento para la lapa verde; que el ave se alimenta de al menos treinta y siete especies diferentes de árboles; que se ha observado nidos en otras especies; que el sitio del proyecto Crucitas se encuentra fuera del área de anidación del ave; que la lapa anida en árboles con DAP mayores a 120 cm.; que los árboles cortados en el proyecto presentan un DAP promedio de 64 cm, y sólo cuatro árboles tenían un DAP mayor a 120 cm; que La Crucitas es sólo zona de paso de la lapa verde; que el hábitat óptimo de la lapa verde es el Refugio Maquenque. (anexo 2 de memorial de veintiséis de febrero de 2009).

<![if !supportLists]>85. <![endif]>Que mediante “Resumen de condiciones hidrogeológicas y efectos esperados en el proyecto Minero Crucitas”, se concluye que el acuífero superior descarga en ríos y quebradas; cumple con las normas de potabilidad excepto por el pH; que el diseño del proyecto minero no representa limitaciones para su desarrollo; no se contaminará por el proceso de extracción del mineral, siempre que se cumpla las medidas de prevención y mitigación; que el proyecto no afectará otras fuentes de agua de la zona; que el acuífero inferior no presenta afloramientos; que sus áreas de recarga están fuera del área del proyecto; que no corre en dirección al río San Juan; que la calidad de sus aguas es baja y fuera de las normas nacionales de calidad de agua para abastecimiento humano; que no se verá afectado por la actividad del proyecto; que en el área de extracción, este acuífero comenzará a aflorar a los 73 metros, por lo que el agua será bombeada a la laguna de relaves durante la fase de operación (anexo 7 de memorial de veintiséis de febrero de 2009).

<![if !supportLists]>86. <![endif]>Que mediante “Informe sobre Manejo y Control de Sustancias Cianuradas y de Generación de Drenaje Ácido en el proyecto minero Crucitas”, elaborado por los geólogos Jorge Laguna Morales y Franz Ulloa Chaverri, se concluye que todos los procesos cubren todas las normativas internacionales de manejo y control dictadas; que la infraestructura ha sido diseñada con controles de seguridad que exceden hasta un quince por ciento las normas internacionales; que se utilizará el proceso de mayor efectividad para la destrucción de sustancias cianuradas (folio 9 de memorial de veintiséis de febrero de 2009).

<![if !supportLists]>87. <![endif]>Que mediante valoración económica de efectos ambientales y beneficios sociales del proyecto minería a cielo abierto Crucitas, de febrero de dos mil nueve, elaborado por Juan Muñoz Giró, se concluye que el costo de oportunidad del proyecto es de US$3.74 millones, mientras los beneficios generados por empleo e ingresos sería de US$158.11 millones (anexo 10 de memorial de veintiséis de febrero de 2009).

<![if !supportLists]>88. <![endif]>Que el proyecto minero Crucitas ha realizado una serie de actividades que incluyen inversión social, donación para la reconstrucción y mejoramiento de infraestructura, de servicios básicos para las comunidades, la salud física y mental de la población y la capacitación en oficios y herramientas, así como formas de organización comunal que permitan a estas poblaciones un mayor dinamismo social y economía (folio 1751).

<![if !supportLists]>89. <![endif]>Que dentro de los compromisos ambientales acordados con la empresa recurrida se estableció: a) instalación de un centro de capacitación para el INA con el fin de dar cursos de corte y confección, acuicultura, agricultura orgánica, producción de queso, pintura sobre tela y manipulación de alimentos; lo cual genera nuevas pequeñas empresas y beneficios; b) empleos directos en fase de construcción: 300, indirectos: 1.265, en fase de operación: 250; c) mejoraría la calidad de vida de 7 comunidades: apoyo a la cooperativa de productores de las comunidades, programas de mejoramiento de calidad de vida, mejoramiento del acueducto; d) de previo a la construcción del proyecto la empresa dio inicio a una serie de programas -capacitación para microempresarios, capacitación laboral, crear Oficina de Atención al Ciudadano, la construcción de 4 puentes, mantenimiento de caminos, entre otros-; e) mano de obra durante 11 años; f) la inversión será de US $65.000.000 lo cual se usará para comprar materiales, servicios profesionales, maquinaria, contratistas; g) una planilla anual valorada en US$4.132.859; h) obtención de un impuesto local en 8 años por US$11.529.263 y al gobierno central por un total de US$70.322.309; i) un fideicomiso para desarrollar obras sociales y acciones en la comisión de monitoreo que recibiría por año US$364.063 (folio 95).

<![if !supportLists]>90. <![endif]>Que el informe de la socióloga Sonia Cervantes concluye que la zona es clasificada como pobre o de extrema pobreza dado las difíciles condiciones en que vivían estas familias de las comunidades Crucitas, Chamorro, Moravia, El Roble y Coopevega del distrito de Cutris y Jocote y Llano Verde, del distrito de Pocosol, todas del cantón de San Carlos, las cuales a finales del 2007 estaban sin caminos, sin servicios básicos, sin comunicación, sin empleo, sin comida (folio 1785).

<![if !supportLists]>91. <![endif]>Que en la actualidad existe una Comisión Mixta de Monitoreo y Control Ambiental conformada por catorce miembros que representan a cada una de las siete comunidades, la Dirección de Geología y Minas, la Municipalidad, la empresa recurrida, el Ministerio de Salud, el Área de Conservación Arenal Huetar Norte, la Secretaría Técnica Nacional Ambiental, la Asociación Ambientalista involucrada, y además una Comisión de Monitoreo Ambiental. (hecho incontrovertido) <![if !supportLists]>92. <![endif]>Que en relación con una eventual contaminación por emergencia existe un Capítulo dentro del Estudio de Impacto Ambiental denominado Plan de Contingencia que incorpora todo tipo de eventualidades que podrían ocurrir: en caso de sismos la laguna de relaves contará con una estructura de rebalse o vertedor de excedencias que ha sido diseñada y aprobada en el estudio de impacto ambiental y su Anexo, con el fin de darle una estabilidad permanente al dique y para manejar en forma independiente excedentes de agua en los períodos de máxima precipitación.

Además, de mantener un control permanente de la calidad del agua de rebalse, se instalará una planta dosificadora de cal al igual que en la salida de los tajos, para en caso necesario poder neutralizar el ph. La ubicación de esta planta es una medida adicional y un factor de seguridad extra, con la cual la calidad de agua del vertido tendría una calidad aceptable que cumple con la normativa internacional (folio 917).

<![if !supportLists]>93. <![endif]>Que como conclusión general del estudio realizado por FUNDATEC, entidad perteneciente al Instituto Tecnológico de Costa Rica, por parte de la Escuela de Ciencias Forestales de 2006, se obtuvo que el área del proyecto presenta una diversidad florística de fustales que puede ser desarrollada apropiadamente en las áreas a reforestar que forman parte de las medidas de mitigación y compensación del aspecto de cobertura vegetal del proyecto, sobre todo porque estas medidas se realizarán no solo como una actividad de reforestación, más bien se pretenden desarrollar los hábitats adecuados para conformar un corredor biológico que permita el tránsito de especies de fauna pequeñas y medianas que permitan un trasiego de semillas y fauna entre los sectores este y oeste del área del proyecto que presentan mejores condiciones de hábitats que los bosques intervenidos tan fragmentados que presenta también el área del proyecto.

(folios 929 y 930) <![if !supportLists]>94. <![endif]>Que el informe de los científicos Jorge Laguna Morales, Doctor en Geología, y Franz Ulloa Chaverri, M.Sc, concluye que es nulo el riesgo de un accidente con cianuro por derrames o malos manejos y que son técnicamente inexistentes los riesgos de intoxicación de seres humanos y otros seres vivientes por efecto del cianuro según el tratamiento previsto para el proyecto en cuestión (folio 1784).

<![if !supportLists]>95. <![endif]>Que en mayo de dos mil nueve, el Consejo Universitario de la Universidad de Costa Rica aprueba el denominado «Informe Especial Minería Química a cielo abierto: el caso de Las Crucitas» (documento aportado por los recurrentes en la vista celebrada el doce de noviembre de dos mil nueve).

<![if !supportLists]>96. <![endif]>Que el once de setiembre de dos mil nueve se realizó una inspección judicial al proyecto minero Crucitas, ocasión en que se visitó la zona donde se tiene previsto ubicar la laguna de relaves, el sector donde aflora el acuífero superior, los cerros Botija y Fortuna, el vivero, el afloramiento del acuífero inferior, el lugar donde se pretende ubicar la bodega de cianuro y la planta de tratamiento, el mirador, el Centro Educativo Las Crucitas, la finca del señor Alfredo Arias Elizondo, las instalaciones administrativas de la empresa recurrida, un presunto puente sobre la vía de acceso al proyecto, y la bifurcación del camino que conduce a la zona de relaves (folio 4621).

<![if !supportLists]>97. <![endif]>Que mediante oficio número OVSICORI-D-544-2009, de veintiséis de noviembre de dos mil nueve, el Observatorio Vulcanológico y Sismológico de Costa Rica, de la Universidad Nacional, aporta información sobre fallamientos locales y actividad sísmica en la zona de Crucitas de Cutris, San Carlos (folio 5501).

<![if !supportLists]>98. <![endif]>Que desde el área de la laguna de relaves del proyecto minero Crucitas, la Quebrada Minas recorre una distancia de un kilómetro hasta desembocar en el río Infiernito, el cual a su vez, desde ese punto recorre veinte kilómetros hasta desembocar en el río San Juan (folio 4580).

VI.El derecho a un ambiente sano y ecológicamente equilibrado. El artículo cincuenta de la Constitución Política establece como fundamental el derecho de toda persona a un ambiente sano y ecológicamente equilibrado. De previo a la modificación de este artículo cincuenta para considerar de manera expresa lo relativo al ambiente, ya la Sala, a través de su labor jurisprudencial, había derivado este derecho a partir de las disposiciones constitucionales de los artículos veintiuno –derecho a la vida y a la salud-, sesenta y nueve –explotación racional de la tierra- y ochenta y nueve –protección de las bellezas naturales-. La Sala ha optado por una consideración abierta o macro del concepto ambiente y de la protección que se brinda al mismo, trascendiendo de la protección básica o primaria del suelo, el aire, el agua, los recursos marinos y costeros, minerales, bosques, diversidad de flora y fauna, y paisaje, para considerar también elementos referentes a la economía, a la generación de divisas a través del turismo, la explotación agrícola y otros. Así, mediante sentencia número 5893-095, de las nueva horas cuarenta y ocho minutos del veintisiete de octubre de mil novecientos noventa y tres, la Sala estableció que:

“[E]l Derecho Ambiental no debe asociarse sólo con la naturaleza, pues ésta es únicamente parte del ambiente. La política de protección a la naturaleza se vierte también sobre otros aspectos como la protección de la caza, de los bosques, de los parques naturales y de los recursos naturales. Se trata, entonces, de un concepto macro-ambiental, para no dejar conceptos importantes por fuera y así lograr unificar el conjunto jurídico que denominamos Derecho Ambiental"

VII.El deber del Estado en la tutela del ambiente. A partir de la reforma del artículo cincuenta constitucional, en la cual se consagró expresamente el derecho ambiental como un derecho fundamental, se estableció también -en forma terminante- la obligación del Estado de garantizar, defender y tutelar este derecho, con lo cual, el Estado se constituye en el garante en la protección y tutela del medio ambiente y los recursos naturales. Es a tenor de esta disposición, en relación con los artículos veinte, sesenta y nueve y ochenta y nueve de la Constitución Política, que se derivó la responsabilidad del Estado de ejercer una función tutelar y rectora en esta materia, según lo dispone la propia norma constitucional en comentario, función que desarrolla la legislación ambiental. Es así como el mandato constitucional establece el deber para el Estado de garantizar, defender y preservar ese derecho.

En este orden de ideas, debe considerarse que la normativa establece al Ministerio del Ambiente y Energía como el órgano rector del sector de los recursos naturales, energía y minas, según lo dispuesto en el artículo dos de la Ley Orgánica de este ministerio, número siete mil ciento cincuenta y dos, de cuatro de junio de mil novecientos noventa. Esta función de rectoría en la materia ambiental, a criterio de la Sala, comprende no solo el establecimiento de regulaciones adecuadas para el aprovechamiento del recurso forestal y los recursos naturales, según lo dispone también el artículo cincuenta seis de la Ley Orgánica del Ambiente, sino que le confiere la importante función de ejercer la rectoría en la materia ambiental, consistente en mantener un papel preponderante en esta materia. En este sentido, el control y fiscalización de la materia y actividad ambiental se constituye en una función esencial del Estado según el artículo 50 de la Constitución, en tanto dispone en lo que interesa en el párrafo tercero: "El Estado garantizará, defenderá y preservará ese derecho"; lo cual resulta concordante con el principio constitucional establecido en el párrafo segundo del artículo nueve de la Constitución Política, que expresamente prohíbe a los Poderes del Estado la delegación del ejercicio de funciones que le son propias, máxime cuando se constituyen en esenciales.

De esta manera, tratándose de la protección ambiental, las funciones de rectoría, control y fiscalización de la materia ambiental, corresponden al Estado, a cargo de las diversas dependencias administrativas.

VIII.La prevención del riesgo ambiental. Estableciéndose a nivel constitucional esta obligación del Estado, resulta importante apreciar cómo a nivel de los instrumentos internacionales de protección de los derechos humanos también se establecen obligaciones concretas que deben ser respetadas. En materia ambiental se ha definido el deber de prevención que debe existir en este ámbito; la Declaración de Río, adoptada en la Conferencia de las Naciones Unidas sobre el Medio Ambiente y el Desarrollo, dispone que:

"Principio 15.- Con el fin de proteger el medio ambiente, los Estados deberán aplicar ampliamente el criterio de precaución conforme a sus capacidades. Cuando haya peligro de daño grave e irreversible, la falta de certeza científica absoluta no deberá utilizarse como razón para postergar la adopción de medidas eficaces en función de los costos para impedir la degradación del medio ambiente".

La prevención pretende anticiparse a los efectos negativos, y asegurar la protección, conservación y adecuada gestión de los recursos. Consecuentemente, el principio rector de prevención se fundamenta en la necesidad de tomar y asumir todas las medidas precautorias para evitar o contener la posible afectación del ambiente o la salud de las personas. De esta forma, en caso de que exista un riesgo de daño grave o irreversible -o una duda al respecto-, se debe adoptar una medida de precaución e inclusive posponer la actividad de que se trate. Lo anterior debido a que en materia ambiental la coacción a posteriori resulta ineficaz, por cuanto de haberse producido el daño, las consecuencias biológicas y socialmente nocivas pueden ser irreparables; la represión podrá tener una trascendencia moral, pero difícilmente compensará los daños ocasionados al ambiente. Tal como lo señala el instrumento internacional de cita como el mismo artículo cincuenta constitucional, es el Estado el llamado a efectuar esta labor de prevención, y así lo ha reconocido esta Sala al afirmar, mediante sentencia número 2001-6503, de seis de julio de dos mil uno, que:

“El párrafo tercero del numeral 50 Constitucional señala con toda claridad que el Estado debe garantizar, defender y preservar el derecho de toda persona a un ambiente sano y ecológicamente equilibrado; lo que implica afirmar que los entes públicos no sólo están en la obligación de hacer cumplir –a los particulares y otros entes públicos- la legislación ambiental, sino también, ante todo, que deben ajustar su accionar a los dictados de esos cuerpos normativos tutelares. Las instituciones del Estado son las primeras llamadas a cumplir con la legislación tutelar ambiental, sin que exista justificación alguna para eximirlas del cumplimiento de requisitos ambientales como, a manera de ejemplo, el estudio de impacto ambiental que exige la Ley Orgánica del Ambiente para las actividades que emprendan los entes públicos que, por su naturaleza, puedan alterar o destruir el ambiente." (énfasis añadido)

IX.La coordinación de las instituciones públicas en la protección integral al ambiente. Existe una obligación para el Estado –como un todo- de tomar las medidas necesarias para proteger el ambiente, a fin de evitar grados de contaminación, deforestación, extinción de flora y fauna, uso desmedido o inadecuado de los recursos naturales, que pongan en peligro la salud de los administrados. En esta tarea, por institución pública se entiende tanto a la Administración Central –Ministerios, como el Ministerio del Ambiente y Energía y el Ministerio de Salud, que en razón de la materia, tienen una amplia participación y responsabilidad en lo que respecta a la conservación y preservación del ambiente; los cuales actúan, la mayoría de las veces, a través de sus dependencias especializadas en la materia, como por ejemplo, la Dirección General de Vida Silvestre, la Dirección Forestal, y la Secretaría Técnica Nacional Ambiental (SETENA)-, así como también las instituciones descentralizadas como el Instituto Nacional de Vivienda y Urbanismo, el SENARA, el Instituto Costarricense de Turismo o el Instituto Costarricense de Acueductos y Alcantarillados.

Del mismo modo, en esta tarea tienen gran responsabilidad las municipalidades en lo que respecta a su jurisdicción territorial. Debido a la diversidad de actores que pueden intervenir, podría pensarse que esta múltiple responsabilidad provocaría un caos en la gestión administrativa. Por ello, a fin de evitar la coexistencia simultánea de esferas de poder de diferente origen y esencia, la duplicación de los esfuerzos nacionales y locales, así como la confusión de derechos y obligaciones entre las diversas partes involucradas, se hace necesario establecer una serie de relaciones de coordinación entre las diversas dependencias del Poder Ejecutivo y las instituciones descentralizadas, y entre éstas con las municipalidades, a fin de poder llevar a cabo las funciones que les han sido encomendadas. Esta Sala se ha referido ya al principio de coordinación de las dependencias públicas con las municipalidades en la realización de fines comunes, al señalar mediante sentencia número 5445-99, de las catorce horas treinta minutos del catorce de julio de mil novecientos noventa y nueve, que:

"[L]a coordinación es la ordenación de las relaciones entre estas diversas actividades independientes, que se hace cargo de esa concurrencia en un mismo objeto o entidad, para hacerla útil a un plan público global, sin suprimir la independencia recíproca de los sujetos agentes. Como no hay una relación de jerarquía de las instituciones descentralizadas, ni del Estado mismo en relación con las municipalidades, no es posible la imposición a éstas de determinadas conductas, con lo cual surge el imprescindible «concierto» interinstitucional, en sentido estricto, en cuanto los centros autónomos e independientes de acción se ponen de acuerdo sobre ese esquema preventivo y global, en el que cada uno cumple un papel con vista en una misión confiada a los otros. Así, las relaciones de las municipalidades con los otros entes públicos, sólo pueden llevarse a cabo en un plano de igualdad, que den como resultado formas pactadas de coordinación, con exclusión de cualquier forma imperativa en detrimento de su autonomía, que permita sujetar a los entes corporativos a un esquema de coordinación sin su voluntad o contra ella; pero que sí admite la necesaria subordinación de estos entes al Estado y en interés de éste (a través de la «tutela administrativa» del Estado, y específicamente, en la función de control la legalidad que a éste compete, con potestades de vigilancia general sobre todo el sector).” Por otro lado, las omisiones al deber de protección del ambiente y de cumplimiento de la normativa ambiental son de relevancia constitucional, por cuanto como consecuencia de la inercia de la Administración en esta materia, se puede producir un daño al ambiente y a los recursos naturales, a veces, de similares o mayores consecuencias que de las derivadas de las actuaciones de la Administración; como lo es la autorización de planes reguladores, o construcciones sin la aprobación del estudio de impacto ambiental por parte de la Secretaría Técnica Nacional Ambiental, o la falta de control y fiscalización en la ejecución de los planes de manejo de las áreas protegidas por parte de la Dirección General de Vida Silvestre del Ministerio del Ambiente y Energía, el permitir el funcionamiento de empresas sin los permisos de salud en lo que respecta al tratamiento de aguas residuales -Acueductos y Alcantarillados y Ministerio de Salud-, o no verificar los controles sónicos en bares, restaurantes o centros de fiestas -municipalidades y Ministerio de Salud-.

X.La protección reconocida al almendro amarillo y a la lapa verde. La Sala ha tenido oportunidad de valorar la problemática planteada en torno a la íntima relación existente entre la lapa verde –ara ambigua- y el árbol de almendro amarillo –dipteryx panamensis-, partiendo de su consideración como especies protegidas y amenazadas. La valoración efectuada ha llevado a esta jurisdicción a pronunciarse sobre la protección particular que debe otorgarse a cada una de estas especies en situaciones concretas, y a reconocer la relación existente entre ellas. Así, mediante sentencia número 2002-2486, de las diez horas cincuenta y cuatro minutos del ocho de marzo de dos mil dos, consideró la Sala que:

“Acerca de la Lapa Verde. Esta Sala ha tenido por demostrado, que la lapa verde (Ara Ambigua), es considerada como una especie en vías de extinción, no solo por la documentación aportada, sino también por el mismo reconocimiento hecho por los decretos impugnados. Por otra parte, la Administración en el informe rendido, ha reconocido la situación de peligro en la cual se encuentra la lapa verde, y la relación de ésta con el árbol de almendro. Según estudios aportados, demuestran como la población de lapas verdes ha ido en constante disminución, y que la razón de la misma, ha sido por un lado la caza ilegal en razón de ser un especie exótica, y por otro lado, la eliminación progresiva de sus fuentes de alimentación y refugio, principalmente el árbol de almendro (Dipteryx panamensis). De autos se desprende que existe una estrecha relación entre la lapa verde y el árbol de almendro. El reconocimiento de ese vínculo esencial, no deviene solo de las investigaciones científicas, sino que también, el mismo Estado lo ha afirmado mediante los Decretos Ejecutivos 25167-MINAE y 25663-MINAE. En este sentido el Decreto 25167-MINAE reza en sus considerandos lo siguiente:

"6º.- Que la Lapa Verde (Ara Ambigua) constituye una de las aves más impresionantes de Costa Rica y que se encuentra en peligro de extinción, en caso de continuar la deforestación en la zona norte del país (…) 8º.- Que según los estudios científicos, la lapa verde anida en hoyos naturales, principalmente en árboles grandes de almendro (Dipteryx panamensis), ubicados en la zona Atlántica del país.

9º.- Que en Costa Rica el hábitat óptimo para la sobrevivencia ha sido reducido en un sustancialmente hábitat que se encuentra entre el río de San Carlos y el río Sarapiquí.

1. 10Que según los estudios científicos respectivos, durante la estación de reproducción, las lapas se alimentan casi exclusivamente del fruto del almendro.
2. 11Que se estima existen únicamente entre 25 y 35 parejas reproductivas de lapas verdes en Costa Rica. Asimismo los ciclos de reproducción de las mismas frecuentemente son afectados, ya sea por la acción del uso irracional del árbol de anidamiento o debido a los cazadores que sacan los pichones del nido para venderlos como mascotas.
3. 12Que de continuar con la extracción irracional del árbol de almendro se perderá el hábitat de la especie y por lo tanto la misma se extinguirá…”

IV.Ahora bien, con base en el marco fáctico y normativo expuesto, en el caso concreto, la Administración mediante los Decretos Ejecutivos 25167-MINAE y 25663-MINAE, determinó una serie de restricciones a la tala del árbol de almendro, en consideración a los argumentos de conservación expuestos, sin embargo tal y como lo alega el recurrente, estas medidas contravienen el espíritu de los convenios ratificados por la administración, ya que otorgan la oportunidad de continuar con la tala del almendro con lo cual se destruye el hábitat de la lora verde. Si bien es cierto, como lo señala la Administración en su informe, las medidas patrocinadas por ambos decretos, en especial el 25167-MINAE son una evidencia del interés estatal en materia de conservación, en este caso de la lapa verde y su hábitat, a criterio de esta Sala y de conformidad con la documentación aportada, las medidas adoptadas a pesar de que tratan de regular el proceso de deforestación, no constituyen las medidas legales apropiadas, por cuanto permiten que el proceso de reducción del hábitat continúe, no sólo facultando la tala, sino también mediante la limitación de la protección a una sola área del país.

Aunado a lo anterior, los recurrentes acusan que las autoridades de la Administración, no sólo no han reducido el "portillo" para el uso comercial del almendro, sino que lo han ampliado otorgando un mayor número de permisos para su explotación, además de descuidar la labor de fiscalización de la que es responsable. En el informe presentado, el Ministro a.i. de Ambiente y Energía fue omiso con relación a esos aspectos, por lo que de conformidad con el artículo 45 de la Ley de la Jurisdicción Constitucional se tienen por ciertos tales actuaciones. Aunado a ello, observa este Tribunal que la parte recurrida no ha demostrado que los alegatos de los recurrentes carezcan de fundamento, más bien se ha limitado a argumentar la ausencia de presupuesto como una excusa para no asumir de forma diligente sus funciones, cuando el eje del asunto está en la aplicación estricta tanto de los convenios internacionales, como de la normativa interna. Por ejemplo, la Ley Forestal número 7575 en su artículo 6 establece:

"Art. 6.- Son competencias de la Administración Forestal del Estado las siguientes:

• e)Establecer vedas de las especies forestales en vías o en peligro de extinción, o que pongan en peligro de extinción otras especies de plantas, animales u otros organismos, de acuerdo con los estudios técnicos respectivos y conforme a otras disposiciones del ordenamiento jurídico vigente." En el expediente bajo estudio, no se desprende que la promulgación de los Decretos cuestionados haya sido resultado de un análisis ni de las investigaciones correspondientes en aras de proteger la especie. Tampoco se extrae que hayan tomado en cuenta los Convenios y la legislación que pretende proteger esta especie y muchas otras que se encuentran en peligro de extinción, lo que demuestra, en definitiva, también una lesión de los artículos 7 y 89 de la Constitución Política al no cumplirse con la protección establecida en los Convenios Internacionales, desprotegiéndose en esa forma el derecho a un ambiente sano y ecológicamente equilibrado.

V.Así las cosas, a pesar de que existe una obligación del Estado de velar por la supervivencia de las especies en peligro de extinción -y en este caso de la lapa verde- lo cierto del caso es que, las autoridades públicas encargadas de darle vida y sustento a la protección de estas especies, todavía para este momento, no han acreditado elementos que lleven a este Tribunal a concluir que se han dispuesto las medidas pertinentes para evitar la extinción de la especie. De este modo, considera la Sala que se ha desconocido con ello lo dispuesto en el artículo 25 de la Ley de Conservación de la Vida Silvestre y en el artículo 60 del Reglamento a esta Ley, por lo que no cabe duda alguna de que la Administración recurrida, ha permitido que se lesione el derecho a un ambiente sano y ecológicamente equilibrado que se encuentra tutelado en el artículo 50 constitucional, pues al haber sido la lapa verde declarada como una especie en peligro de extinción, -LEY DE CONSERVACION DE LA VIDA SILVESTRE, No. 7317- el Estado tiene la obligación de implementar todas las medidas que sean necesarias para proteger esta especie, lo que conlleva la obligación de impedir el comercio de tal especie y por su relación con el árbol de almendro, también se debe impedir su tala en todo el territorio, claro está que ello debe respetarse principalmente en las zonas donde se encuentra el hábitat óptimo para la sobrevivencia de dicha especie, la cual según Decreto N. 25167-MINAE se ha visto reducida sustancialmente.

En razón de lo dicho, se recomienda a la Ministra de Ambiente y Energía, verificar si las acciones adoptadas son tanto económica como legalmente efectivas para favorecer el mantenimiento y el desarrollo de las áreas destinadas a los árboles de Almendro y en aras de cumplir con las obligaciones que legalmente le han sido impuestas por la ley, deberá implementar las medidas legales y sancionatorias necesarias para procurar un efectivo resguardo de la especie "Ara Ambigua", ello necesariamente deberá de darse concomitantemente con un plan de vigilancia hacia la lapa verde y la tala del árbol de almendro, en todo el país. En virtud de las consideraciones externadas, no procede otra cosa más que la estimación del presente recurso como en efecto se ordena.”

Más recientemente, ahondando sobre la frágil situación de la lapa verde y precisando su relación con el árbol de almendro amarillo, mediante sentencia número 2008-13426, de las nueve horas treinta y tres minutos del dos de setiembre de dos mil ocho, estableció la Sala que:

“Sobre la situación de la lapa verde. La lapa verde o ara ambigua es un ave de mayor tamaño que la lapa roja, pues alcanza a medir hasta 84 centímetros de envergadura y puede llegar a poseer una masa de aproximadamente 1,3 kilogramos. Su contextura es bastante robusta, posee una cola ligeramente más corta que la lapa roja o ara macao. Su color -como lo designa su nombre- es verde amarillento, con las plumas cobertoras de las alas de color azul; por su parte, las de la cola, llamadas rectrices centrales, son rojas; y el resto de las rectrices color azul. La cara de este animal se encuentra desprovista de plumas, mostrando la piel descubierta, que tiene un color blanco hueso. Tiene un fuerte y ganchudo pico un poco más grande que el de la lapa roja, la estructura queratinosa de este le sirve para abrir las duras semillas de las que se alimenta. Su costumbre es anidar en troncos huecos.

La lapa verde (ara ambigua) tiene una distribución limitada en tierras bajas y húmedas, principalmente del lado del Atlántico en bosques entre el este de Honduras y el norte de Colombia, con una población aislada en el Pacífico en Guayaquil, Ecuador. En Costa Rica, su rango de anidamiento se limita actualmente a la Zona Huetar Norte, más específicamente entre los ríos San Carlos, San Juan y Sarapiquí y las faldas del norte de la Cordillera Volcánica Central. Ella depende altamente del almendro (dipteryx panamensis) tanto para alimentarse como para anidar. Esta especie se encuentra en la lista del Apéndice I de CITES, lo que significa que se encuentra en peligro de extinción. Como se indicó, en el país la especie fue abundante, principalmente, en la Zona Atlántica y la Zona Norte, en donde era común ver volar ejemplares en bandadas hace pocos años. Sin embargo, hoy apenas se encuentran algunas parejas que anidan en la Zona Norte, entre Boca Tapada y las llanuras del Colorado.

Existen algunos reportes de unas bandadas de entre 6 y 12 individuos en las estribaciones de la Cordillera Volcánica Central, sobre todo cerca del sector bajo atlántico del Parque Nacional Braulio Carrillo, en los alrededores de la carretera que conduce a Guápiles y algunos reportes esporádicos en la falda de la Cordillera Volcánica de Guanacaste por el sector Norte. El abrupto descenso en la población de la lapa verde se debe sobre todo a la destrucción de su hábitat mediante tala no sostenible en los sitios de anidación. En Costa Rica, el rango de distribución de la especie se ha reducido en un 90% desde el siglo pasado, y la amenaza que enfrenta radica en el hecho de que ella depende del árbol almendro de montaña (dipteryx panamensis), que desaparece con el mal manejo y la tala ilegal de los bosques. Entonces, existen dos peligros que representan una seria amenaza para esta especie: la pérdida de hábitat por la tala de árboles que constituyen su principal alimento y sitios de anidamiento, en especial del almendro (dipteryx panamensis) pues la lapa verde depende en un 80% del almendro para alimentarse y en un 90% para anidar; además, del comercio ilegal que realizan con ella, para utilizarla como mascota (información obtenida en parte de las páginas http://www.minae.go.cr, http://www.sinaccr.net, http://www.lapaverde.or.cr, http://www.inbio.ac.cr, http://www.una.ac.cr, http://www.cct.or.cr y http://www.guiascostarica.com). [énfasis añadido] En ese mismo sentido afirma el Sistema Nacional de Áreas de conservación en su página en Internet:

“[…] Probablemente el águila harpía (sic) llegó a su extinción en el país; mientras que otras especies como la lapa roja, la lapa verde, el piche careto y el oso hormiguero gigante, están fuertemente amenazadas de extinción. Nuestro sistema de áreas protegidas parece ser insuficiente para aquellas especies que, como el jaguar, requieren grandes extenciones (sic) de bosque virgen para sobrevivir. […]” (El destacado se suplió, descargado del sitio http://www.sinaccr.net/vidasilvestre.php a las 14:50 horas de 8 de agosto de 2008).

A lo anterior añaden en ese mismo sitio:

“[…] La flora y fauna silvestre son patrimonio de todos los costarricenses […]. Por tal motivo, la Dirección General de Vida Silvestre, por medio del Sistema Nacional de Areas (sic) de Conservación ha emprendido diferentes acciones tendientes a aumentar las posibilidades de conservación de la Vida Silvestre, entre las que cabe destacar: […] 2.-la elaboración de un decreto tendiente a proteger las poblaciones de almendro de montaña, árbol del cual se alimenta la lapa verde. […]” (El destacado es suplido, descargado del sitio http://www.sinaccr.net/vidasilvestre.php a las 14:50 horas de 8 de agosto de 2008).

Se debe tomar en cuenta igualmente lo dispuesto por el Sistema Nacional de Áreas de Conservación que, en su página en Internet, incluye en la lista oficial de especies en peligro de extinción a la lapa verde (sitio http://www.sinaccr.net/vidasilvestre5.php consultado a las 14:58 horas de 8 de agosto de 2008). Adicionalmente, el Decreto Ejecutivo “Crear el Refugio Nacional de Vida Silvestre Mixto Maquenque”, número 34205-MINAE de 23 de mayo de 2005, publicado en La Gaceta 113 de 13 de junio de 2005, señala:

“[…] 7º-Que el Ministerio del Ambiente y Energía, tiene entre sus proyectos más próximos, la declaratoria de creación del Refugio Nacional de Vida Silvestre Mixto Maquenque situado en la zona fronteriza norte entre las desembocaduras de los ríos San Carlos y Sarapiquí. Es un área que por su interés científico es considerada de importancia para la conservación, pues presenta características especiales para la conservación de importantes especies de flora y fauna entre ellas: la Lapa verde (Ara Ambigua), Jaguar (Pantera onca), Almendro (Dypteryx panamensis), Manatí (Trichechus manatus), Gaspar (Atractosteus tropicus) y Pinillo (Podocarpus guatemalensis). La ubicación geográfica de esta zona resulta de gran importancia ya que esta área silvestre protegida estaría situada en el Corredor Biológico Binacional El Castillo-San Juan-La Selva, que es continuidad del Corredor Biológico Mesoamericano entre Nicaragua y Costa Rica y constituye el último bloque de cobertura forestal natural significativo que permita mantener la conectividad biológica entre ambos países, por lo que esta área conectaría hábitat claves y corredores de vida silvestre, lo que prevendría el aislamiento de especies y de ecosistemas nativos.

8º-Que las áreas El Jardín, Cureña y Chaparrón constituyen núcleos muy importantes para la conservación de la biodiversidad, entre la cual se encuentran varias especies amenazadas tales como:

[…] Especies de aves amenazadas Especie Nombre común Situación […] 37 Ara ambigua lapa verde peligro […] Especies de árboles amenazadas Especie Nombre común Situación […] 12 Dipteryx panamensis almendro amenazada […]” (El destacado fue suplido).

Así, queda claro que tanto la lapa verde (ara ambigua) como el almendro amarillo (dipteryx panamensis) son especies que se encuentran en peligro de extinción -en el caso de la primera- y amenazada -en el de la segunda-, y que existe una dependencia directa de aquella respecto de esta.” En este sentido, queda claro que las autoridades gubernativas han reconocido la situación de amenaza a la que se ven enfrentadas tanto la lapa verde como el almendro amarillo. El ave por su necesidad del árbol para la reproducción y alimentación, y el árbol por la tala no sostenible, factores que unidos –tala no sostenible en los sitios de anidación- provoca un riesgo adicional en la preservación del ave. Es por ello, que en la misma sentencia 2008-13426, se estableció que:

“[S]e debe prohibir la iniciación de cualquier procedimiento tendiente al aprovechamiento de la madera del almendro amarillo (dipteryx panamensis) mientras éste y la lapa verde (ara ambigua) se encuentren en la lista de especies en peligro de extinción o amenazadas. (…) Se ordena (…) archivar cualquier diligencia o procedimiento destinado al aprovechamiento, explotación o extracción del almendro amarillo (dipteryx panamensis). Se prohíbe a ese funcionario dar inicio o continuar cualquier procedimiento tendiente al aprovechamiento, explotación o extracción del almendro amarillo (dipteryx panamensis) mientras este árbol y la lapa verde (ara ambigua) se encuentren en la lista de especies amenazadas o en peligro de extinción, sin que esa prohibición exima al servidor indicado de resolver y notificar lo correspondiente a quienes hubieran planteado alguna gestión en ese sentido…” De tal forma, la Sala consideró que la debida protección que debe otorgarse a estas especies, implica que no puede procederse a la explotación y aprovechamiento del almendro mientras el árbol y el ave permanezcan en la lista de especies protegidas.

Esta prohibición o restricción que parece absoluta, debe ser apreciada en el contexto de la propia sentencia de comentario, de donde resulta que la prohibición de explotación y aprovechamiento existe de manera plena cuando tal actividad pretenda desarrollarse en los sitios de anidación del ave. En otras palabras, la explotación, extracción y aprovechamiento del almendro amarillo, está absolutamente prohibida por disposición de esta Sala, en la medida que los árboles que se pretenda cortar estén en una zona donde se haya acreditado plenamente que anida la lapa verde. Sin embargo, esta definición no puede ser entendida como un permiso irrestricto para la tala de árboles de almendro en sitios donde no anide el ave, pues en estos casos, y partiendo de que se trata de una especie amenazada, siempre se deberá contar previamente con todos los permisos otorgados por la administración forestal, que con la rigurosidad científica del caso garanticen la inocuidad para el ambiente y la debida preservación de esta especie y de otras que guarden estrecha relación con él.

XI.Sobre la protección del agua y la situación de las aguas subterráneas. La jurisprudencia de la Sala es clara en reconocer el derecho al agua como un derecho fundamental, siendo así que junto con la realización de esfuerzos serios para su otorgamiento a la población, existe el deber de las instituciones públicas de hacer un uso responsable y adecuado del recurso hídrico disponible, lo cual implica la necesidad de adquirir certeza del agua susceptible de explotación –disponibilidad- garantizando su otorgamiento presente y la futura sostenibilidad del servicio, evitando que con la utilización actual del recurso se produzca un riesgo ambiental que comprometa la existencia y dotación futura del líquido. La Sala ha tenido oportunidad de pronunciarse de manera contundente y detallada sobre la protección que debe otorgarse al recurso hídrico nacional, clarificando tanto el marco normativo de protección, como las instituciones que conforman el sector hídrico, reconociendo y precisando el ámbito de competencias de dichas instancias y la trascendencia de sus actuaciones en materia de otorgamiento, aprovechamiento y protección del agua.

Es por ello que resulta particularmente importante referir los precedentes jurisprudenciales de la materia, los cuales resultan de exacta aplicación en el caso que ahora se conoce. De tal forma, mediante sentencia de esta Sala número 2004-1923, de las catorce horas cincuenta y cinco minutos del veinticinco de febrero de dos mil cuatro –reiterada por sentencias números 2008-14092, de las nueve horas veintiocho minutos del veintitrés de setiembre de dos mil ocho, y 2008-15657, de las once horas cuarenta y cinco minutos del diecisiete de octubre de dos mil ocho-, consideró la Sala que:

“V.- AGUAS SUBTERRÁNEAS. Frente a las aguas denominadas superficiales, en cuanto discurren sobre la corteza terrestre, y pueden ser objeto de aprovechamientos comunes o especiales, se encuentran las subterráneas. Las aguas subterráneas son aquellas que se encuentran bajo la superficie terrestre ocupando los espacios vacíos en el suelo o las rocas, su fuente más importante lo son las precipitaciones pluviales que se infiltran en el suelo. El suelo, por su parte, está compuesto por dos niveles que son los siguientes: a) Superior o zona de aireación, en el cual los espacios vacíos están ocupados por el aire y el agua infiltrada que desciende por gravedad y b) otro debajo de éste denominado zona de saturación, en la que los espacios vacíos están llenos de agua que se mueve lentamente y cuyo nivel superior se denomina tabla de agua, nivel hidrostático o freático. Las aguas incluidas en los espacios porosos de la zona de saturación, en formaciones geológicas, se denominan mantos acuíferos o de aguas subterráneas.

El gradiente hidráulico es la diferencia de altitud entre dos puntos de la misma tabla de agua –nivel freático-, en relación con su distancia horizontal, la velocidad de movimiento de las aguas subterráneas depende, en esencia, del gradiente hidráulico. Las aguas subterráneas son parte esencial del ciclo hidrológico, así del total del agua de la hidrosfera el 2,4% es agua dulce, de esta un 78,1% se encuentra congelada, un 21,5% corresponde a las aguas subterráneas y un 0,4% son superficiales que se encuentran en ríos y lagos. En la región centroamericana la principal fuente de abastecimiento público son las aguas subterráneas, frente a las superficiales que están notablemente expuestas a su contaminación y degradación por las nocivas prácticas del uso de la tierra y la expansión urbana descontrolada. Para el caso particular de nuestro país se ha estimado que la recarga potencial anual de aguas subterráneas es de aproximadamente 47 000 millones de metros cúbicos por año, lo que significa un 20% de la precipitación, igualmente se ha calculado que de los 750 000 metros cúbicos de agua diarios para consumo humano que se utilizan, un 70% ( 500 000 metros cúbicos por día) provienen de captaciones de aguas subterráneas.

El consumo y uso de las aguas subterráneas, respecto de las superficiales, presenta ventajas cualitativas y cuantitativas evidentes y claras como las siguientes: a) La inversión para la extracción y explotación de las aguas subterráneas potables se realiza en forma gradual dependiendo del aumento de la demanda del servicio y las áreas de captación pueden ser ubicadas cerca del lugar donde se produce la demanda, todo lo cual reduce los costos de conducción, tratamiento y almacenamiento; b) la calidad físico-química natural de las aguas subterráneas es más constante que las superficiales y es potable con poco o ningún tratamiento; c) al existir suelo o rocas por sobre las aguas subterráneas se encuentran más protegidas de la contaminación de origen natural o humano; d) las variaciones en cantidad y disponibilidad en épocas secas o de precipitación pluvial son mínimas comparadas con las de las aguas superficiales; e) constituyen una reserva estratégica para hacerle frente a estados de emergencia por calamidad pública, conmoción interna (v. gr. terremotos, huracanes, erupciones volcánicas, etc.) o guerra.

VI. AGUAS SUBTERRÁNEAS Y DERECHOS FUNDAMENTALES

El tema de las aguas subterráneas se encuentra íntimamente ligado a varios derechos fundamentales recogidos en el texto constitucional e instrumentos internacionales de derechos humanos. Nuestra Constitución Política, en su artículo 50, enuncia el derecho a un ambiente sano y ecológicamente equilibrado, el cual se logra, entre otros factores, a través de la protección y conservación de la calidad y cantidad del agua para consumo y uso humano y para mantener el equilibrio ecológico en los hábitats de la flora y la fauna (v. gr. humedales) y, en general, de la biosfera como patrimonio común de la humanidad. Del mismo modo, el acceso al agua potable asegura los derechos a la vida –“sin agua no hay vida posible” afirma la Carta del Agua aprobada por el Consejo de Europa en Estrasburgo el 6 de mayo de 1968-, a la salud de las personas –indispensable para su alimento, bebida e higiene- (artículo 21 de la Constitución Política) y, desde luego, está asociado al desarrollo y crecimiento socio-económico de los pueblos para asegurarle a cada individuo un bienestar y una calidad de vida dignos (artículo 33 de la Constitución Política y 11 del Protocolo Adicional a la Convención Americana sobre Derechos Humanos).

La escasez, la falta de acceso o disponibilidad y la contaminación de ese líquido preciado provoca el empobrecimiento de los pueblos y limita el desarrollo social en grandes proporciones. Consecuentemente, la protección y explotación de los reservorios de aguas subterráneas es una obligación estratégica para preservar la vida y la salud de los seres humanos y, desde luego, para el adecuado desarrollo de cualquier pueblo. En el año 1995 se estimó que 1000 millones de habitantes no tenían acceso al agua potable y se calcula que para el año 2025 cerca de 5.500 millones de personas tendrán escasez de agua, siendo que anualmente mueren entre 5 y 10 millones de personas por uso de agua no tratada. En otro orden de ideas, actualmente, se ha reconocido el deber de preservar, para las generaciones futuras, unas condiciones de existencia al menos iguales a las heredadas (desarrollo sostenible), por lo que la necesidades del presente deben ser satisfechas sin comprometer la capacidad de las futuras generaciones para hacerlo con las propias (Principio 2 de la Declaración de la Conferencia de las Naciones Unidas sobre el Medio Ambiente Humano, Estocolmo, 1972).

En esencia, el agua, desde un punto de vista económico y ecológico, es un bien preciado, puesto que, es indispensable para cualquier actividad humana (industrial, agrícola, doméstica, comercial, servicios etc.), como fuente de energía, materia prima, vía de transporte, soporte de actividades recreativas y elemento constitutivo para el mantenimiento de los ecosistemas naturales –uso del agua no contaminante o compatible con el ambiente-.

VII. NATURALEZA Y REGIMEN JURÍDICOS DE LAS AGUAS SUBTERRÁNEAS, MANTOS ACUÍFEROS Y AREAS DE RECARGA

BIENES DE DOMINIO PÚBLICO. En nuestro sistema jurídico no existe un único cuerpo normativo sistemático y coherente que regule de forma global la protección, extracción, uso, gestión y administración eficiente de los recursos hídricos. Adicionalmente, la poca legislación existente se centra, preponderantemente, en las aguas superficiales obviando a las subterráneas. Como es propio y consustancial al Derecho Administrativo, se puede constatar en esta materia una dispersión normativa y un conjunto fragmentado, caótico y ambiguo de normas sectoriales que regulan aspectos puntuales quedando serias lagunas y antinomias, todo lo cual también dificulta, seriamente, la gestión ambiental por parte de los entes públicos encargados de la materia. Obviamente, la escasa regulación de las aguas subterráneas no constituye la excepción a la regla anteriormente señalada. En el Derecho de Aguas se han sostenido diversas tesis acerca de su naturaleza jurídica –cuya variación depende de la evolución histórica-.

Así a las aguas subterráneas se les ha reputado como (a) bienes privados, por lo que son una res nullius apropiable por su alumbrador, esto es, por el propietario del terreno en el que surjan, siguiéndose la máxima del Derecho Romano según la cual la propiedad se extiende desde el cielo hasta el infierno. Las regulaciones decimonónicas sobre el recurso hídrico (v. gr. Ley de Aguas española de 1879 que inspiró a muchas legislaciones latinoamericanas, entre ellas, a nuestra Ley de Aguas de 1942) le darán a las aguas subterráneas un carácter de (b) bien mixto, por lo que serán privadas las que el dueño de un terreno particular haga alumbrar y públicas las que nacen en un terreno de dominio público o las primeras después de haberlas utilizado su propietario. Finalmente, a partir del siglo XX, muchas legislaciones van a calificar todas las aguas subterráneas como (c) bienes de dominio público, a partir de la indubitada unidad del ciclo hidrológico, con lo que pasan a conformar lo que se ha denominado el “dominio público hidráulico” como parte del dominio natural y no artificial; esta posición concibe el agua como un recurso unitario subordinado al interés general por lo que no se debe distinguir entre superficiales y subterráneas, puesto que, se encuentran íntimamente vinculadas para mantener su calidad y cantidad.

De acuerdo con esta última tesis, las aguas subterráneas no son apropiables por ningún particular y su calificación como bienes de dominio público constituye título suficiente para someterlas a un régimen de intervención administrativa muy fuerte e intenso en aras de garantizar su integridad y calidad y de apartarlas de los modos de adquisición y disfrute propios del Derecho Privado. En nuestro ordenamiento jurídico, a partir de una serie de normas dispersas, se puede determinar la naturaleza jurídica de las aguas subterráneas, con evidentes variaciones, según el devenir histórico- legislativo. La Ley de Aguas No. 276 del 27 de agosto de 1942 y sus reformas, en su artículo 1°, incisos IV, VIII y IX califica, respectivamente, como aguas de dominio público “Las de los (...) manantiales (...)”, “Las de los manantiales que broten en las playas, zonas marítimas, cauces, vasos o riberas de propiedad nacional y, en general, todas las que nazcan en terrenos de dominio público” y “Las subterráneas cuyo alumbramiento no se haga por medio de pozos”, puesto que, el ordinal 4°, inciso III, de ese texto legal reputa de dominio privado –y, por ende, pertenecientes al dueño del predio- “Las aguas subterráneas que el propietario obtenga de su propio terreno por medio de pozos”, siendo que los sobrantes – de pozos concesionados para obtener agua con fines no domésticos y necesidades ordinarias- que salgan del terreno se convertirán en aguas de dominio público.

Evidentemente, la Ley de Aguas de 1942 sigue una tesis mixta acerca de la naturaleza jurídica de las aguas subterráneas, puesto que, conjuga el carácter res nullius y, por consiguiente, apropiable de éstas si son alumbradas en terrenos privados con el demanial si surgen en un terreno cuyo titular es un ente público. Serán dos leyes posteriores, dictadas durante el curso del último cuarto del siglo pasado, las que reformaron o modificaron, tácitamente lo establecido en los artículos 1°, incisos IV, VIII y IX y 4°, inciso III, de la Ley de Aguas. En realidad, estos dos nuevos instrumentos normativos se inscriben en la corriente contemporánea de concebir las aguas subterráneas como bienes del dominio público en virtud de la unidad del ciclo hidrológico, por lo que son título habilitante suficiente para admitir un fuerte régimen de intervención administrativa para conservar la cantidad, calidad y asegurar una explotación racional y sostenida de los recursos hídricos.

Así, el Código de Minería, Ley No. 6797 del 4 de octubre de 1982 y sus reformas, en su numeral 4° dispuso lo siguiente “(...) las fuentes y aguas minerales y las aguas subterráneas y superficiales, se reservan para el Estado y sólo podrán ser explotados por éste, por particulares de acuerdo con la ley, o mediante una concesión especial otorgada por tiempo limitado y con arreglo a las condiciones y estipulaciones que establezca la Asamblea Legislativa (...)”, de esta forma se produjo una publificación y nacionalización de todas las aguas subterráneas del país, incluso las que son alumbradas mediante un pozo ubicado en un predio particular para uso domésticos o necesidades ordinarias. Ulteriormente, la Ley Orgánica del Ambiente, No. 7554 del 13 de octubre de 1995 y sus reformas, en el numeral 50 -cuyo epígrafe es “Dominio público del agua”- reforzó esa declaratoria de demanialidad y preceptúo que “El agua es de dominio público, su conservación y uso sostenible son de interés social”, este instrumento legislativo supone una afectación expresa, de las aguas continentales (aguas superficiales y subterráneas -al no distinguirlas-) al demanio público del Estado y califica de interés social, con lo que se dejó expedito el camino para eventuales expropiaciones o limitaciones por razón de interés social (artículo 45 de la Constitución Política), su protección, preservación o conservación y uso sostenido o racional.

VIII. MANTOS ACUÍFEROS, AREAS DE RECARGA Y DESCARGA

El acuífero es un estrato o formación geológica (depósitos no consolidados de materiales sueltos tales como arenas, gravas, mezclas de ambos, rocas sedimentarias como la caliza, rocas volcánicas, etc.) que permite la circulación del agua por sus poros o grietas, por lo que el ser humano puede aprovecharla en cantidades económicamente apreciables para atender sus necesidades. En un sentido muy lato, los mantos acuíferos son las formaciones geológicas que contienen agua, la han contenido y por las cuales el agua fluye o circula. Dos de los parámetros hidrogeológicos para definir el funcionamiento de un manto acuífero –relación entre la recarga y la extracción del agua o descarga- son la porosidad o permeabilidad –conductividad hidráulica- y el coeficiente de almacenamiento. Existen una serie de formaciones geológicas que no deben confundirse con los mantos acuíferos, así los (a) acuícludos son formaciones geológicas que contienen agua en su interior pero que no la transmiten impidiendo su explotación; en lo atinente a las aguas subterráneas no renovables, fósiles, muertas, estancadas o no fluyentes contenidas en éstos no cabe la menor duda que también son de dominio público, dado que, los artículos 4° del Código de Minería y 50 de la Ley Orgánica del Ambiente no distinguen entre aguas subterráneas y superficiales y, mucho menos, entre las subterráneas renovables y no renovables, por lo que no se les puede concebir como un res nullis susceptible de apropiación por el alumbrador particular.

El (b) acuitardo, por su parte, comprende un conjunto de formaciones geológicas que contienen apreciables cantidades de agua pero las transmiten de forma muy lenta. Finalmente, el (c) acuifugo es aquella formación geológica que no contiene agua ni la puede transmitir. En lo relativo a la tipología de los acuíferos, la hidrogeología, los clasifica, según la presión hidrostática del agua encerrada en los mismos, de la forma siguiente: a) acuíferos libres, no confinados o freáticos en los que existe una superficie libre del agua encerrada en ellos en contacto directo con el aire, su tabla de agua se encuentra a presión atmosférica y no está limitado por una capa impermeable y b) acuíferos cautivos, confinados o a presión en los que el agua está sometida a una presión superior a la atmosférica. También existe la subcategoría de los acuíferos colgados que son aquellos libres con una distribución espacial limitada y existencia temporal.

La recarga natural de los mantos acuíferos se produce por el volumen de agua que penetra en éstos durante un período de tiempo a causa de la infiltración de las precipitaciones pluviales o de un curso de agua (v. gr. los ríos influentes). Las áreas de recarga, por consiguiente, son todas las zonas de la superficie del suelo donde las precipitaciones pluviales se filtran en el suelo hasta alcanzar la zona saturada incorporándose al acuífero. La Ley Forestal No. 7575 del 13 de febrero de 1996, en su artículo 3°, inciso l), define las áreas de recarga acuífera como “Las superficies en las cuales ocurre la infiltración que alimenta los acuíferos y cauces de los ríos (...)”. La descarga natural es el volumen de agua que, durante un período de tiempo, sale naturalmente del acuífero a través de los manantiales superficiales, subfluviales o submarinos, por evapotranspiración o por percolación vertical hacía acuíferos inferiores.

La descarga artificial se produce a través de la extracción del agua mediante pozos, zanjas, trincheras o túneles. Las áreas de descarga de las aguas subterráneas comprenden todos aquellos puntos en los que la tabla de agua o nivel freáctico intersecta la superficie del suelo –manantiales, nacientes, filtraciones- el curso de un río o los lechos marinos o lacustres.

IX. TIPOLOGIA DE LOS MANTOS ACUÍFEROS EN COSTA RICA

En nuestro país se reconocen dos tipos de familias de acuíferos: a) Volcánicos o fisurados, formados en rocas ígneas (volcánicas e intrusivas), representan los de mayores dimensiones y mejor calidad y b) Sedimentarios o granulares en formaciones superficiales. En cuanto al primer tipo debe indicarse que las rocas ígneas, naturalmente, no tienen permeabilidad, poseen una porosidad secundaria originada en la presencia de fracturas o fisuras originadas por enfriamiento o eventos tectónicos (áreas vinculadas a fallas geológicas) con lo que adquieren aptitud hidrogeológica. Este tipo de acuíferos surge en las zonas altas donde las precipitaciones son elevadas y particularmente existen rocas volcánicas, ejemplos conocidos y estudiados de éstos son los acuíferos del Valle Central (v. gr. Colima Superior e Inferior y Barva). Desde la perspectiva de la hidrogeología, nuestro país presenta condiciones ideales y excepcionales para la explotación racional y mesurada de las aguas subterráneas, puesto que la Cordillera Volcánica Central está constituida por suelos volcánicos con una elevada capacidad natural de infiltración, siempre y cuando no hayan sido compactados o erosionados por las actividades humanas, con lo que cumplen una función esencial al regular la escorrentía de las aguas superficiales y la recarga de los acuíferos.

La alta permeabilidad de los mantos de lava fracturados y brechosos y las condiciones de alta precipitación pluvial favorecen la formación de acuíferos de alto potencial. Las tobas existentes, a su vez, se comportan como rocas de poca permeabilidad que permiten la constitución de acuitardos que son la base de los acuíferos y permiten la transferencia vertical de aguas entre éstos. La ubicación y geomorfología de la Cordillera Volcánica Central, con todos sus acuíferos, es una fuente de primer orden de agua para satisfacer las necesidades de, por lo menos, la mitad de la población del país, incluido la Gran Área Metropolitana y poblaciones circunvecinas. La utilización del agua subterránea en esta zona se efectúa mediante pozos o la captación de manantiales para usos domésticos, industriales, agropecuarios. En la Cordillera Volcánica Central, para el año 1996, el SENARA tenía registrados 3.460 pozos de uso variado y 353 manantiales para abastecimiento público empleados por el ICAA, las corporaciones municipales, las asociaciones administradoras de acueductos rurales y otros entes.

También se han localizado este tipo de acuíferos en las formaciones de Liberia y Bagaces (Provincia de Guanacaste). Se encuentra plenamente establecido que este tipo de acuíferos, por sus características petrofísicas, son más vulnerables a la contaminación en sus áreas de recarga cuando no se encuentran en zonas protegidas o reservadas y expuestos a actividades antrópicas como la deforestación, urbanización descontrolada y actividades agropecuarias intensivas y extensivas que conllevan el uso de plaguicidas y agroquímicos, por lo que se encuentran expuestos a una peligrosa y lenta degradación en su calidad ambiental. Los acuíferos superficiales están conformados por capas de rocas no consolidadas de origen reciente y diverso, se trata de rellenos aluviales de algunos valles que pueden alcanzar espesores de unos pocos metros a cien metros, están separados de la superficie por una delgada y permeable capa de suelo por lo que son altamente vulnerables a la contaminación, sobre todo cuando se encuentran debajo de zonas de ocupación antrópica (desarrollo urbano, industrial o de cultivos agrícolas).

Este tipo de acuíferos son explotados en la región del Pacífico Central, como, por ejemplo, el relleno aluvial del Valle del Río Barranca que contiene dos acuíferos costeros que son el de Barranca y El Roble.

X. CONTAMINACION DE LAS AGUAS SUBTERRANEAS

A diferencia de la contaminación de las aguas superficiales que suele ser patente y visible, lo que permite tomar acciones ambientales tendentes a mitigarla o erradicarla, la de las aguas subterráneas, por su propia naturaleza, suele pasar inadvertida y se hace evidente cuando ha alcanzado grandes proporciones. Los mantos acuíferos por la lenta circulación de las aguas, la capacidad de absorción del terreno y otros factores, pueden tardar mucho tiempo en mostrar la contaminación. Adicionalmente, el gran volumen de las aguas contenido hace que las contaminaciones extensas tarden un lapso prolongado en manifestarse o bien cuando se trata de contaminaciones localizadas se detectan cuando fluyen en algún sitio de explotación. Ciertamente, este tipo de aguas tienen una resistencia a contaminarse, sin embargo cuando esta se produce su regeneración puede ser extraordinariamente lenta y en ocasiones es irreversible por el alto costo de los medios para hacerlo.

Está demostrado que los intentos para reparar el daño producido por contaminación a un acuífero para lograr, de nuevo, niveles de potabilidad del agua no han tenido éxito, las tecnologías para su limpieza han contribuido poco a reducir el daño y los métodos son económicamente muy elevados. A lo anterior debe agregarse la falta de infraestructura organizacional, recursos materiales, financieros y humanos, en este último caso, debidamente capacitados para evaluar, medir y, en general, monitorear la calidad de esta agua y la dimensión exacta de su contaminación. La degradación y contaminación de los mantos acuíferos le impone al legislador y a las administraciones públicas la tarea urgente e impostergable de protegerlos. La contaminación de las aguas subterráneas puede ser directa o indirecta, lo es del primer tipo cuando se introducen directamente las sustancias contaminantes en el acuífero como el caso de los pozos negros o pozos de inyección, lo es del segundo tipo cuando con dilución se produce por contaminación de la recarga natural.

Los agentes de contaminación pueden ser de muy diversa índole, esto es, minerales, orgánicos degradables (excretas y purinas), órganicos poco o no degradables (pesticidas, detergentes, hidrocarburos), biológicos (bacterias, virus, algas), radioactivos y gaseosos. La contaminación de los acuíferos depende de los condicionantes geológicos, hidráulicos y químicos de cada lugar o emplazamiento, por lo que está en función de factores locales razón por la cual se precisa del conocimiento de cada zona y del estudio de casos similares. Los orígenes de la contaminación de los acuíferos pueden ser de muy diversa índole, tales como los siguientes: a) contaminación por actividad doméstica, la cual es orgánica y biológica y nace de tanques sépticos, fugas del sistema de alcantarillado, vertido de aguas negras, a lo que se debe agregar el aumento de productos químicos de uso doméstico como los detergentes; b) contaminación por actividades agrícolas, tenemos aquí el uso de abonos artificiales a base de nitratos, fosfatos y potasa o naturales -a base de estiércol-, el riego con aguas residuales y de alta salinidad y el uso de pesticidas (insecticidas, herbicidas y plaguicidas); c) contaminación por la ganadería, esencialmente, es orgánica y biológica, similar a la doméstica pero más intensa cuando se trata de granjas intensivas; d) contaminación por aguas superficiales, cuando recargan y se encuentran, a su vez, contaminadas; e) contaminación por intrusión salina, se produce cuando las aguas marinas y saladas se introducen en las regiones costeras por la sobreexplotación, a través de pozos, de los acuíferos costeros; f) contaminación por actividades mineras – mineral –, se relaciona con evacuaciones de aguas de mina y lavaderos de mineral; g) contaminación por actividades industriales, este tipo es tan variado como el tipo de industria que la origina, siendo especialmente nocivas las provocadas por metales pesados provenientes de la industria metalúrgica, así como de las industrias químicas, petroquímicas de alimentos (sustancias orgánicas) y bebidas (detergentes); h) contaminación por actividades nucleares, aunque excepcional en nuestro medio, puede provenir de plantas de tratamiento de combustibles irradiados y de minerales radioactivos y de la actividad médica; i) contaminación a través de pozos mal construidos, los pozos pueden intercomunicar varios mantos acuíferos y cuando tienen entubamientos rotos o corroídos en niveles de aguas de mala calidad o que permiten la entrada de aguas superficiales pueden provocarla; j) contaminación a través del vertido de aguas residuales a través de pozos negros, tanques sépticos, fugas de la red de alcantarillado o vertido indiscriminado a las cuencas hidrográficas; k) contaminación por vertido de desechos sólidos, se produce cuando se construye un relleno sanitario en terrenos permeables o no impermeabilizados a través de los lixiviados; l) contaminación por pozos de inyección -forma de utilización del subsuelo como almacén de residuales- mal proyectados, construidos o utilizados.

(…)

XII. PROTECCIÓN DE LAS AGUAS SUBTERRÁNEAS

Por las características de la contaminación de los mantos acuíferos destinados al abastecimiento público y su difícil regeneración, las medidas para evitar la contaminación deben ser preventivas y protectoras, mediante la prohibición de ciertas actividades humanas en determinadas zonas u ordenando medidas de seguridad sobre ciertas actividades potencialmente contaminantes. Nuestro ordenamiento jurídico-administrativo (legislación, reglamentos y decretos) carece, lamentablemente, de una regulación precisa, clara y completa para la protección de los mantos acuíferos, zonas de recarga y áreas de captación de aguas subterráneas. En la legislación extranjera (v. gr. Ley de Aguas española 29/1985 del 2 de agosto) se prevén algunas potestades extraordinarias de intervención administrativa en la economía del agua que atañen directamente a la protección de los mantos acuíferos, en aras de lograr un aprovechamiento sostenido de los recursos hídricos, esto es, para garantizar una disponibilidad de agua en cantidad suficiente y calidad requerida para atender la necesidades humanas y ecológicas presentes y futuras.

Estas potestades administrativas extraordinarias, que deben ser admitidas en nuestro ordenamiento jurídico -pese a su falta de regulación- como implícitas en la competencia expresa y general de protección y conservación de las aguas subterráneas que tienen atribuidas el Estado y los entes descentralizados del sector hídrico, tienen sustento en la necesidad de lograr una utilización racional y equilibrada del agua. La escasez y degradación de las condiciones naturales del recurso hídrico imponen la posibilidad administrativa de adoptar tales medidas para evitar su agotamiento o deterioro irreversible y de superar, temporalmente, los efectos nocivos que pueda generar una crisis hídrica. Este tipo de medidas administrativas suponen diversas restricciones y controles drásticos sobre los múltiples usos o aprovechamientos de agua –en especial los generales o especiales de carácter privado- y sobre las actividades preexistentes que puedan afectar el recurso en cuanto se justifican en un interés público, por lo que no afectan el derecho de propiedad o la integridad del patrimonio.

En esencia, tales medidas deben ser reputadas como limitaciones de interés social que no vacían de contenido el derecho de propiedad o amplían el dominio público sobre las aguas subterráneas sin previa indemnización sino que moldean su contenido esencial por lo que deben ser soportadas, al tratarse de un sacrificio o una carga general, por todos los usuarios, los que, en último término, son los beneficiarios de éstas, en tanto están orientadas a corregir una situación coyuntural de carestía o contaminación inminente que afecta la economía del recurso hídrico en una zona determinada. Tales medidas administrativas de intervención, virtualmente contenidas en los artículos 32 de la Ley de Aguas de 1942 y 10° del Reglamento de Perforación y Explotación de Aguas Subterráneas (Decreto Ejecutivo No. 30387 del 29 de abril del 2002), pueden ser las siguientes:

• a)Perímetros de protección de los mantos acuíferos: Una de los instrumentos más novedosos en la protección de los recursos hídricos es la definición de perímetros de protección para la conservación del recurso y de su entorno. Esta medida de intervención administrativa busca preservar la calidad y cantidad del agua contenida pero también de su continente, esto es, de la formación geológica denominada acuífero. Esa actividad consiste en proyectar y trazar sobre la superficie una demarcación bajo la que se asienta un acuífero o parte de éste, en la que se establece un régimen específico de utilización del dominio hidráulico –ordenación y restricción de las concesiones de agua preexistentes, impedimento de otorgar nuevas- y de control de las actividades e instalaciones que puedan afectarlo –a través de autorizaciones- (v. gr. minas, canteras; actividades urbanas que incluyan tanques sépticos, cementerios, rellenos sanitarios –almacenamiento, transporte y tratamiento de residuos sólidos y líquidos-; actividades agrícolas y ganaderas con depósito y distribución de fertilizantes y plaguicidas, riego con aguas residuales y granjas; actividades industriales con almacenamiento, transporte y tratamiento de hidrocarburos líquidos o gaseosos, productos químicos, farmacéuticos y radiactivos, industrias alimentarias y mataderos, etc.).

Evidentemente, la definición de perímetros por las autoridades nacionales –MINAE e ICAA- debe ser respetada por los gobiernos locales (Municipalidades) y el INVU (dada su competencia residual en materia de planificación urbana en ausencia de planes reguladores locales) para compatibilizar, desarrollar y reflejar efectivamente los condicionamientos establecidos en la definición de los perímetros de protección en la normativa contenida en los respectivos Planes Reguladores sobre los usos de suelo o de ordenación del territorio (v. gr. reglamento de zonificación, de construcciones, etc.). Obviamente, a lo anterior debe añadirse la protección alrededor de las áreas de captación (pozos -PPP: perímetros de protección de los pozos-, manantiales, nacientes, etc.-), mediante la definición de una zona alrededor en la que se prohíban o limiten determinadas actividades humanas regulándose o controlándose el uso del suelo.

La determinación del perímetro depende de la zona de captura o de carga del pozo (ZOC) y su extensión depende de las características y propiedades del área de captación y del terreno de recarga, puesto que, las normas no pueden ser iguales para el caso de terrenos permeables o fisurados que para los que tengan formaciones impermeables. La definición de perímetros debe conjugarse con la cartografía de vulnerabilidad o susceptibilidad natural de los mantos acuíferos de abastecimiento a las cargas de contaminación antrópica, en función de sus características hidrogeológicas y geoquímicas, ante problemas de contaminación antropogénica, lo que se logra mediante el levantado de mapas. Sendas medidas, perímetros de protección y la cartografía de vulnerabilidad son idóneas para poder reubicar a tiempo un determinado tipo de actividad, la fuente de abastecimiento o, en último término, introducir métodos e instrumentos técnicos para el tratamiento y disposición de los agentes contaminantes.

Las medidas a tomar a partir de los perímetros y cartografía de vulnerabilidad varían según se trate de una (a) área sin ocupación territorial, siendo útil para definir las actividades que en el futuro puedan instalarse o no; (b) áreas ya ocupadas, en cuyo caso se efectúa un mapeo de la vulnerabilidad natural y de las áreas con mayor susceptibilidad a la contaminación, pudiéndose, ante la amenaza de un índice elevado de contaminación, reubicar las actividades, las fuentes de abastecimiento e introducir tecnología para el tratamiento y disposición de contaminantes; (c) áreas ya contaminadas, para lo cual se podrán buscar fuentes alternas, evitar la propagación de las plumas de contaminación y, de ser posible, por su elevado costo, tratar las aguas del acuífero después de su extracción; (d) áreas para nuevas captaciones, supuesto en el cual se debe inventariar las actividades potencialmente contaminantes y el área de impacto de cada una de éstas.

• b)Declaración de acuífero sobreexplotado: La sobreexplotación de un acuífero sobreviene cuando las extracciones o aprovechamientos son tan intensivos –descarga- y fuertes que superan los volúmenes de la recarga, con lo que las reservas de agua del acuífero se disminuyen progresivamente y se degradan. La sobreexplotación provoca nefastos efectos económicos y naturales; entre los primeros, los usuarios pueden experimentar el encarecimientos de los costos de extracción –más energía para hacer fluir las mismas cantidades de agua o gastos para reprofundizar un pozo para alcanzar el nivel de agua-, agotamiento de los pozos ubicados en la zonas periféricas del acuífero y en las de mayor concentración de perforaciones; entre los efectos de carácter natural, está la merma en los caudales de aguas en manantiales, ríos, arroyos, quebradas, lagunas, lagos y humedales con lo que se pone en peligro la existencia de éstos y la afectación de la capacidad de las formaciones geológicas – acuíferos – para almacenar agua al disminuir el espacio intersticial en las rocas por falta de la presión interior que aporta el agua, la subsidiencia del terreno por compactación, con alteración del acuífero, aparición de grietas y corrimiento de laderas.

En la hipótesis de la sobreexplotación del acuífero, la autoridad administrativa competente puede declarar ese estado para revertir el estado de cosas a través de una ordenación, restricción y reparto de las extracciones o aprovechamientos preexistentes para lograr una explotación racional y la inmediata suspensión de las solicitudes nuevas o de modificación de concesiones pendientes a ese momento. Desde luego, que, también, se pueden implementar medidas de ahorro y buena utilización de los recursos como el tratamiento y depuración de las aguas residuales para ser reutilizadas en el riego de ciertos cultivos, sistemas de riego por goteo o nocturno para paliar los efectos de la evapotranspiración, la recarga artificial, etc..

• c)Declaración de acuífero en proceso de intrusiones salinas: Se estima que un acuífero está en proceso de salinización cuando, como consecuencia directa de las extracciones, se registran aumentos generalizados y progresivos de concentración salina de las aguas captadas con lo que se corre el peligro de convertirse en inutilizables. La salinización supone una reducción del espesor de la capa de agua dulce bajo la que asciende el agua marina, de modo que el agua de los pozos deja de ser potable e, incluso, inservible para usos domésticos o de riego, siendo la recuperación de acuífero muy difícil o casi imposible. Este problema que se puede presentar en nuestro país, sobre todo, en los acuíferos costeros sobreexplotados –intrusión de origen marítimo- de forma gradual o generalizada, aunque no cabe descartar, en otros puntos, la intrusión de origen continental. La causa de la intrusión salina se encuentra en una explotación irracional o sobreexplotación, por lo que deben implementarse medidas similares a las dispuestas para cuando se produce ese problema tales como la ordenación, restricción y reparto de los aprovechamientos o usos preexistentes y suspensión de las solicitudes nuevas o de modificación de concesiones.
• d)Estados de necesidad y crisis hídrica: En circunstancias anómalas, excepcionales y coyunturales que provocan una calamidad pública o conmoción interna (v. gr. sequías extraordinarias, sobreexplotación grave de acuíferos o intrusión salina generalizada de éstos), el Estado –a través del Poder Ejecutivo- y, con fundamento en el principio de necesidad, puede adoptar las medidas necesarias e idóneas respecto a la utilización del dominio público hidráulico para superar ese estado de cosas o evitar que se agrave. Cuando cesa el estado de necesidad y se restablece la normalidad se pueden adoptar otro tipo de medidas como las anteriormente expuestas (perímetros de protección, declaración de acuíferos sobreexplotados o en proceso de salinización).

XIII. PROTECCIÓN JURÍDICA DE LAS AGUAS SUBTERRÁNEAS EN COSTA RICA

El artículo 31 de la Ley de Aguas No. 246 del 27 de agosto de 1942, declara como “reserva de dominio a favor de la Nación” lo siguiente: “a) Las tierras que circunden los sitios de captación o tomas surtidoras de agua potables, en un perímetro no menor de doscientos metros de radio; b) La zona forestal que protege o debe proteger el conjunto de terrenos en que se produce la infiltración de aguas potables (...)”. Esta declaratoria resulta de suma importancia, puesto que, a partir de la misma surge la obligación del Estado, a través de sus órganos competentes, de fijar y determinar las áreas de protección perimetral de los pozos o áreas de captación –de 200 metros- y, desde luego, de las áreas de recarga de los mantos acuíferos –zona en que “se produce la infiltración de aguas potables”- que cuenten o deban contar con una capa forestal para su protección que son tan sensibles para su conservación y protección.

De la misma forma, a partir de tal afectación expresa, el Estado puede ejercer las acciones reivindicatorias y posesorias para garantizar la indemnidad de esas zonas y substraerlas de todo tipo de contaminación sometiéndolas a un fuerte régimen de control del uso del suelo, atribución que, muy probablemente, ha omitido ejercer de forma oportuna y exacta. El numeral 32 de la Ley de Aguas de 1942 establece que “Cuando en un área mayor de la anteriormente señalada exista peligro de contaminación en las aguas superficiales o en las subterráneas, el Poder Ejecutivo, por medio de la Sección de Aguas Potables –actualmente ICAA- (...) dispondrá en el área dicha las medidas que juzgue oportunas para evitar el peligro de contaminación”, esta norma le impone un ineludible deber de colaboración y cooperación al Poder Ejecutivo con el ICAA para adoptar todos los actos y providencias administrativas oportunas y convenientes para conjurar el peligro de contaminación en un área mayor a los perímetros de protección de las áreas de recarga de los acuíferos y zonas de captación.

El contenido de la norma es sumamente significativo y rico, puesto que, habilita al Estado para adoptar cualquier medida oportuna para evitar los daños y perjuicios irreversibles que podría provocar un estado de emergencia por crisis hídrica. Evidentemente se trata, también, de una competencia que no ha sido ejercida responsablemente o infrautilizada. La Ley General de Agua Potable, No. 1634 del 18 de septiembre de 1953, en su artículo 2°, establece que “Son de dominio público todas aquellas tierras que tanto el Ministerio de Obras Públicas como el Ministerio de Salubridad Pública –órganos del Poder Ejecutivo que fueron sustituidos por el Instituto Costarricense de Acueductos y Alcantarillados por virtud de su Ley de Creación No. 2726 del 14 de abril de 1961 y sus reformas y, más concretamente, el artículo 2°, inciso h), que le encomendó hacer cumplir la Ley General de Agua Potable- consideren indispensables para construir o para situar cualquiera parte o partes de los sistemas de abastecimiento de aguas potables, así como para asegurar la protección sanitaria y física, y caudal necesarios de las mismas (...)”, evidentemente, esta norma tiene una enorme trascendencia, puesto que, se declara de dominio público las áreas de captación que pueden incluir los manantiales o nacientes –forma de descarga natural de las aguas subterráneas- y, lo que es más importante, le otorga la condición de bien demanial a todos aquellos terrenos necesarios para asegurar la protección sanitaria y física y su caudal, lo cual, necesariamente, incluye las áreas de recarga de los mantos acuíferos claramente delimitadas a través de la actividad perimetradora ya indicada, puesto que, la desprotección de estas zonas incide, necesariamente, en la calidad –por contaminación- y caudal –por impermeabilización o sobreexplotación- de las aguas para consumo y uso humanos que brotan de un manantial.

La Ley Forestal No. 7575 del 13 de febrero de 1996, en su artículo 33, incisos a) y d), respectivamente, dispone que son áreas de protección las “ (...) que bordeen nacientes permanentes, definidas en un radio de cien metros medidos de modo horizontal” y “Las áreas de recarga y los acuíferos de los manantiales, cuyos límites serán determinados por los órganos competentes establecidos en el Reglamento de esta ley”, evidentemente estas normas le dan sustento a la actividad o intervención administrativa para definir los perímetros de protección de los acuíferos y zonas de captación. La Ley Orgánica del Ambiente No. 7554 del 13 de octubre de 1995, en su artículo 51, indica que para la conservación y uso sostenible del agua, deben aplicarse, entre otros, los siguientes criterios: “a) Proteger, conservar y en lo posible, recuperar los ecosistemas acuáticos y los elementos que intervienen en el ciclo hidrológico”, “b) Proteger los ecosistemas que permiten regular el régimen hídrico” y “c) Mantener el equilibrio del sistema agua, protegiendo cada uno de los componentes de las cuencas hidrográficas”.

Se establece así la necesidad de proteger y conservar la integridad y unidad del ciclo hidrológico sin hacer distinciones, el cual comprende, especialmente, las aguas subterráneas. Finalmente, los artículos 5°, inciso e), párrafo in fine de la Ley de Creación del ICAA (No. 2726 del 14 de abril de 1961 y sus reformas) y 15 de la Ley de Creación del SENARA (No. 6877 del 18 de julio de 1983 y sus reformas) coronan el marco normativo para la protección institucional de las aguas subterráneas al indicar, respectivamente, “Se declaran de utilidad pública y de interés social, y podrán ser expropiados, los terrenos necesarios para la conservación y protección de los recursos de agua, así como para las construcciones que se hagan necesarias en la captación (...)” “Decláranse de interés público las acciones que promueve el Estado, con el objeto de asegurar la protección y el uso racional de las aguas (...)”.

En el ordenamiento jurídico-administrativo de las aguas nos encontraremos, también, con una serie de obligaciones y cargas impuestas a los particulares y sujetos de derecho público –entes y órganos públicos- para una adecuada protección del dominio público hidráulico subterráneo y superficial. Así la Ley de Aguas de 1942 y otros cuerpos legislativos, establecen una serie de prohibiciones y obligaciones para los propietarios y usuarios de los manantiales –que son un componente del área de descarga de un manto acuífero-, como las siguientes: a) los usuarios o concesionarios deben ajustarse a los reglamentos de policía y salubridad en cuanto a las aguas sobrantes que son devueltas a un manantial para evitar contaminaciones o fetidez –de no hacerlo pueden perder el aprovechamiento especial y sufrir pena de multa- (artículos 57 y 166, inciso III, ibidem), de modo concordante, la Ley de Conservación de la Vida Silvestre No. 7317 del 21 de octubre de 1992, en su artículo 132, párrafo 1°, prohíbe “(...) arrojar aguas servidas, aguas negras, desechos o cualquier sustancia contaminante en manantiales, ríos, quebradas, arroyos permanentes o no (...) lagos (...)” y le impone al que incumpla la norma una multa de 50.000 a 100.000 colones convertible en pena de presión de uno a dos años. b) Se prohíbe la construcción de estanques para criaderos de peces en los manantiales destinados al abastecimiento de poblaciones (artículo 63 ibidem). c) Los propietarios de terrenos en los que existan manantiales en cuyos contornos hayan sido destruidos los bosques que les brindaban abrigo están obligados a plantar árboles en las márgenes a una distancia no mayor de 5 metros (artículo 148 ibidem). d) Se prohíbe destruir, tanto en bosques nacionales como particulares, los árboles situados a menos de 60 metros de los manantiales que nacen en los cerros o a menos de 50 metros de los que surgen en terrenos planos (artículo 149 ibidem), la Ley Forestal, No. 7575 del 13 de febrero de 1996, dispone, en su artículo 34, de forma coincidente, que “Se prohíbe la corta o eliminación de árboles en las áreas de protección que bordean las nacientes permanentes y de recarga y los acuíferos de los manantiales”. e) Toda solicitud de aprovechamiento de aguas vivas, corrientes y manantiales deberá dirigirse al Ministerio de Ambiente y Energía con la presentación de una serie de requisitos (artículo 178 ibidem).

En lo tocante a los entes y órganos públicos que tienen competencia y responsabilidades en materia de protección de las aguas subterráneas, se establecen una serie de obligaciones y prohibiciones tales como las siguientes: a) Se le prohíbe a las Municipalidades enajenar, hipotecar o comprometer de otra manera, arrendar, dar en esquilmo, prestar o explotar por su propia cuenta –sobre todo si supone deforestación- las tierras que posean o adquieran en las márgenes de los ríos, arroyos o manantiales o en cuencas u hoyas hidrográficas en que broten manantiales o en que tenga sus orígenes (artículos 154 y 155 ibidem). b) Se obliga a las Municipalidades a reforestar tales terrenos (artículo 156 ibidem). c) Se obliga a toda Municipalidad, Junta de Educación, Junta de Protección Social y, en general, a todo “organismo de carácter público”, consultar para obtener el respectivo permiso al Ministerio de Agricultura para enajenar, hipotecar, dar en arriendo, esquilmo o explotar por su cuenta terrenos que posean o adquieran en los que existan aguas de dominio público utilizables (artículo 157 ibidem).

La Ley General de Salud, No. 5395 del 30 de octubre de 1973 y sus reformas, de su parte, contiene normas específicas para la protección y conservación efectiva de las aguas subterráneas, así el artículo 275 estipula que “Queda prohibido a toda persona natural o jurídica contaminar las aguas superficiales, subterráneas (...) directa o indirectamente, mediante drenajes o la descarga o almacenamiento, voluntario o negligente, de residuos o desechos líquidos, sólidos o gaseosos, radiactivos o no radiactivos, aguas negras o sustancias de cualquier naturaleza, que, alterando las características físicas, químicas y biológicas del agua la hagan peligrosa para la salud de las personas, de la fauna terrestre y acuática o inservible para usos domésticos, agrícolas, industriales o de recreación.”, por su parte el numeral 276 establece que solo con permiso del Ministerio se podrán hacer drenajes o proceder a la descarga de residuos o desechos sólidos o líquidos u otros que puedan contaminar el agua superficial, subterránea, o marítima, “(...) ciñéndose a las normas y condiciones de seguridad reglamentaria y a los procedimientos especiales que el Ministerio imponga en el caso particular para hacerlos inocuos”.

Los artículos 285 y 291 de ese cuerpo normativo, respectivamente, obligan a toda persona a eliminar las excretas y aguas negras de forma adecuada y sanitariamente para evitar la “contaminación del suelo y de las fuentes naturales de agua para el uso y consumo humano” y prohíben la descarga de residuos industriales o de establecimientos de salud en el alcantarillado para “evitar la contaminación de las fuentes o cursos de agua”. Finalmente, el artículo 309 de esa ley establece que a los urbanizadores el Ministerio de Salud les aprobará el proyecto, entre otras cosas, si éste “(...) dispone de sistemas sanitarios adecuados (...) de disposición de excretas, aguas negras y aguas servidas”.

XIV.ENTES Y ORGANOS ADMINISTRATIVOS RESPONSABLES DE LA PROTECCIÓN DE LAS AGUAS SUBTERRÁNEAS Y, EN ESPECIAL, DE LOS MANTOS ACUÍFEROS. DELIMITACION DE COMPETENCIAS. La gestión de los recursos hídricos subterráneos comprende diversos aspectos tales como la investigación de su potencial, identificación, categorización, planificación de sus usos, protección, aprovechamiento racional, prevención y sanción del daño ecológico o contaminación, control y seguimiento ambiental de su uso, etc.. Consecuentemente, lo idóneo es que existiera un ente administrativo regulador y rector en la materia, sin embargo, las competencias para el manejo integrado de los recursos hídricos subterráneos se encuentran dispersas y fragmentadas, por lo que, ocasionalmente, son exclusivas o excluyentes de un solo ente y, la mayoría de las veces, concurrentes, compartidas o paralelas lo cual requiere de un esfuerzo de coordinación administrativa particular para asegurar su utilización sostenible.

En el conjunto heterogéneo y disperso de entes y órganos administrativos que conforman la administración pública costarricense se puede identificar un sector de éstos que tienen asignadas, por ley o reglamento, una serie de competencias irrenunciables, intransferibles e imprescriptibles en materia de conservación y protección de aguas subterráneas que no pueden declinar y deben ejercer de forma efectiva en aras de un derecho a un ambiente sano y ecológicamente equilibrado de todos los habitantes del país. En ese sector del aparato público o de organizaciones serviciales para la satisfacción de las necesidades de toda la colectividad, se puede identificar un grupo que pertenece a la administración central o ente público mayor –Estado- que son, preponderantemente algunos Ministerios u órganos de éstos- y otro conformado por entes descentralizados funcionalmente o por servicios –de carácter técnico- y territorialmente –Municipalidades-.

1. 1Administración Central.

<![if !supportLists]>a) <![endif]>Ministerio de Ambiente y Energía y sus órganos el Departamento de Aguas y el Órgano Asesor de Aguas.

El artículo 3°, inciso l), de la Ley Forestal, No 7575 del 13 de febrero de 1996, le impone al Ministerio de Ambiente y Energía la competencia indeclinable de delimitar las áreas de recarga acuífera –por propia iniciativa o de organizaciones interesadas, y previa consulta al ICAA, el SENARA o cualquier otra entidad técnicamente competente en materia de aguas.

El artículo 17, párrafo 1°, de la Ley de Conservación de la Vida Silvestre faculta y habilita al Ministerio de Ambiente y Energía para “(...) coordinar acciones con los entes centralizados (sic.) o descentralizados que ejecuten programas agropecuarios de conservación de suelos, aguas y bosques, con el fin de lograr el aprovechamiento “sostenible” de la vida silvestre”.

Este Ministerio cumple un rol de fundamental importancia en una de las vertientes de la administración de los recursos hídricos como lo es el control o fiscalización en el aprovechamiento y uso de las aguas subterráneas para asegurar su explotación racional. El Reglamento de Perforación y Explotación de Aguas Subterráneas (Decreto Ejecutivo No. 30387 del 29 de abril de 2002), dispone en su ordinal 1° que “Toda empresa perforadora debe inscribirse (...) ante el Departamento de Aguas, con el fin de que se le extienda la licencia que le permita ejercer actividades de perforación y exploración de aguas subterráneas”. Estas funciones son compartidas con el SENARA y el ICAA, puesto que, el Departamento de Aguas del MINAE debe trasladarles el asunto para que, respectivamente, emitan criterio técnico, se asigne el número de pozo, se registre en el Registro Nacional de Pozos –SENARA- y se dictamine sobre el perjuicio o no a las fuentes de abastecimiento de agua destinadas al consumo humano –ICAA- (artículo 7°).

Este reglamento establece que se denegará el permiso de perforación en las zonas que no permitan una explotación racional del recurso hídrico tales como las declaradas por el Estado u otra institución competente área de protección y reserva acuífera, las que sufran sobre-explotación, bajo condiciones de vulnerabilidad de la capacidad máxima de explotación del acuífero, las susceptibles de intrusión salina, contaminación y otras razones que a juicio del MINAE y SENARA afecten el acuífero e impidan su explotación y las de interferencia con otros pozos o nacientes de agua (artículo 10°).

Mención especial merece el Departamento de Aguas, adscrito al Instituto Metereológico Nacional –órgano del MINAE-, cuyas funciones de interés, entre otras, a tenor del artículo 3° del Decreto Ejecutivo No. 26635-MINAE del 18 de diciembre de 1997, son las siguientes:

“ a) Definir las políticas nacionales en cuanto al recurso hídrico.

• b)Ejercer el dominio, vigilancia, control y administración de las aguas nacionales.
• c)Tramitar las solicitudes de concesión para el desarrollo de fuerzas hidráulicas para la generación de electricidad.
• d)Tramitar y autorizar los permisos para la perforación de pozos para la extracción de aguas. (...)
• J)Inscribir las empresas perforadoras de pozos y las sociedades de usuarios, así como los movimientos que se realicen en sus estatutos y representantes (...)
• n)Aplicar las sanciones establecidas en la Ley de Aguas, previo cumplimiento del debido proceso (...)” El Jefe de este Departamento, tiene, a su vez, importantes competencias en la materia (artículo 4°), tales como las siguientes: a) emitir informes de recomendación sobre concesiones, traspasos, aumentos de caudal, ampliación de uso o cualquier otro trámite referido al aprovechamiento del recurso hídrico; b) aprobar los permisos de perforación de pozos, etc.. En el ordinal 5° del referido decreto se crea el “Órgano Asesor de Aguas” integrado por representantes de diversos entes involucrados en el sector hídrico (ICAA, SENARA, ICE, Universidades Públicas, UNGL, etc.), entre cuyas funciones figuran las siguientes (artículo 7° ibidem): a) Asesorar y recomendar lineamientos de políticas en materia de recursos hídricos, considerando los planes de desarrollo nacional y sectorial, disponibilidad hídrica y la normativa legal existente); b) Revisar y pronunciarse sobre el Balance Hídrico propuesto por el Departamento de Aguas y su administración para cada región del país y c) Asesorar al Departamento de Aguas en la fijación de dotaciones por parte de éste, para el uso del agua según la actividad productiva y la región en que se desarrolle.
• b)Ministerio de Salud.

Las competencias de este ministerio se encuentran circunscritas a hacer efectivas las prohibiciones establecidas en los ordinales 275, 276, 285 y 291 de la Ley General de Salud – contaminación directa e indirecta de las aguas superficiales y subterráneas y descarga de residuos industriales o de salud en el alcantarillado- y de sancionar su transgresión. Asimismo, le corresponde aprobar los proyectos urbanísticos cuando dispongan de sistemas sanitarios adecuados de disposición de excretas, aguas negras y servidas (artículo 309 ibidem).

• c)Ministerio de Agricultura y Ganadería.

El MAG tiene, realmente, una competencia secundaria o residual en la materia, puesto que, la Ley sobre el Uso, Manejo y Conservación de Suelos No. 7779 del 30 de abril de 1998, en su artículo 21, le impone en materia de aguas el deber de coordinar con el SENARA y cualquier otra institución competente “(...) la promoción de las investigaciones hidrológicas, hidrogeológicas y agrológicas en las cuencas hidrográficas del país, así como en las prácticas de mejoramiento, conservación y protección de los suelos en las cuencas hidrográficas (...).

1. 2Administración descentralizada.

• a)ICAA (Instituto Costarricense de Acueductos y Alcantarillados) La Ley Constitutiva del ICAA (No. 2726 del 14 de abril de 1961 y sus reformas) le atribuye, en lo que es de interés, las siguientes competencias (artículo 2°): a) Dirigir y vigilar todo lo concerniente para proveer a los habitantes de la república de un servicio de agua potable, recolección y evacuación de aguas negras y residuos industriales líquidos y de aguas pluviales en las áreas urbanas (...) c) Promover la conservación de las cuencas hidrográficas y la protección ecológica, así como el control de la contaminación de las aguas (...) d) Asesorar a los demás organismos del Estado y coordinar las actividades públicas y privadas en todos los asuntos relativos al (...) control de la contaminación de los recursos de agua (...) siendo obligatoria, en todo caso, su consulta, e inexcusable el cumplimiento de sus recomendaciones (...) f) Aprovechar, utilizar, gobernar o vigilar, según sea el caso, todas las aguas de dominio público indispensables para el debido cumplimiento de las disposiciones de esta ley, en ejercicio de los derechos que el Estado tiene sobre ellas, conforme a la ley número 276 de 27 de agosto de 1942, a cuyo efecto el Instituto se considerará el órgano sustitutivo de las potestades atribuidas en esa ley al Estado, ministerios y municipalidades”.

De su parte el artículo 5° de esa ley habilita al ICAA para “c) Adquirir en propiedad bienes muebles e inmuebles” y “e) Tramitar las expropiaciones necesarias para el cumplimiento de sus fines, siendo que este mismo inciso en su párrafo 2° declara de utilidad pública y de interés social, pudiendo ser expropiados, “(...) los terrenos necesarios para la conservación y protección de los recursos de agua, así como para las construcciones que se hagan necesarias en la captación (...). El numeral 21 de la ley de Creación le confiere al ICAA la potestad de aprobar o improbar todo proyecto de construcción, ampliación o modificación de sistemas de disposición de aguas servidas y pluviales, público o privado, siendo la misma obligatoria, so pena de nulidad, en tratándose de construcción de fraccionamientos, urbanizaciones o lotificaciones. Finalmente, el artículo 22 de su ley de creación establece que “Es obligación del Instituto Costarricense de Acueductos y Alcantarillado sufragar los gastos que demanden la conservación, ampliación y seguridad de los bosques que sirvan para mantener las fuentes de aguas, en las propiedades de aquellas Municipalidades donde asuma los servicios de aguas y alcantarillado”.

De acuerdo con el artículo 2°, inciso h), de la Ley de Creación de este ente descentralizado (No. 2726 del 14 de abril de 1961 y sus reformas) es parte de sus competencias la de hacer cumplir la Ley de Agua Potable, No. 1634 del 18 de septiembre de 1953, siendo que el artículo 16 de este último cuerpo normativo prohíbe las instalaciones, edificaciones o labores comprendidas en las “zonas cercanas a fuentes de abastecimiento (...) que perjudique en forma alguna (...) las condiciones físicas, químicas o bactereológicas del agua; esta zonas serán fijadas por el Ministerio de Obras Públicas y Salubridad Pública” –órganos que, como ya se indicó fueron sustituidos, para todos los efectos legales, por el ICAA-. Consecuentemente, al ICAA, también, le compete definir las áreas de protección de fuentes de abastecimiento tales como los manantiales o nacientes que son una forma natural de descarga de las aguas subterráneas. El artículo 34, párrafo in fine, de la Ley Forestal le impone la realización de los alineamientos de las áreas de protección al INVU. Se trata, en realidad, de una competencia que no es exclusiva o excluyente del ICAA o del INVU, sino concurrente o compartida, por lo que los dos entes públicos tienen el deber de ejercerla.

El artículo 3° de la Ley General de Agua Potable, No. 1634 del 18 de septiembre de 1953, le impone la obligación al ICAA de “(...) seleccionar y localizar las aguas destinadas al servicio de cañería (...), con lo cual es responsabilidad de este ente efectuar un inventario pormenorizado de las nacientes que puedan ser utilizadas para proveer de agua de consumo humano a las poblaciones, lo anterior, independientemente, de encontrarse el suministro y distribución en manos de un Municipio en un cantón determinado.

• b)SENARA (Sistema Nacional de Aguas Subterráneas, Riego y Avenamiento).

A pesar de tener aparentemente limitada su competencia a los distritos de riego, avenamiento y control de inundaciones –unidades físicas técnico-administrativas de carácter agropecuario para el logro de su desarrollo socioeconómico definidas por Decreto Ejecutivo a solicitud de este ente (artículos 17 y 18 de su Ley de Creación No. 6877 del 18 de julio de 1983 y sus reformas)-, es lo cierto que su ley constitutiva le asigna importantes competencias en materia de aguas subterráneas, las cuales, evidentemente, tienen una vocación nacional y, por consiguiente, no se circunscriben a los meros distritos de riego. Lo anterior resulta corroborado por los antecedentes de este ente público, puesto que, la Ley No. 5438 del 17 de diciembre de 1973 –que ratificó y sustituyó el Decreto Ejecutivo No. 1878-P del 22 de julio de 1972-, actualmente derogada, creó el Servicio Nacional de Aguas Subterráneas (SENAS) con una vocación claramente nacional para la planificación, investigación y asesoría de todo lo relativo a la materia.

Así, entre otros objetivos, el SENARA tiene el de procurar el aprovechamiento óptimo y justo de los recursos de (...) aguas –tanto superficiales como subterráneas- en las actividades agropecuarias (...) en los distritos de riego” (artículo 2°). Entre sus funciones figura la de “Investigar, proteger y fomentar el uso de los recursos hídricos del país tanto superficiales como subterráneos” y “Realizar, coordinar, promover y mantener actualizadas las investigaciones hidrológicas, hidrogeológicas (...)” (artículo 3°, incisos d y e). En el artículo 4°, se establece que le compete al SENARA promover y dirigir la coordinación y colaboración con otras instituciones y entidades competentes en materias tales como “Prevención, corrección y eliminación de todo tipo de contaminación de las aguas en los distritos de riego”, “Elaboración y actualización de un inventario de las aguas nacionales, así como la evaluación de su uso potencial para efectos de aprovechamiento en los distritos de riego” y “Construcción y mantenimiento de las obras necesarias para la conservación y renovación de los manos acuíferos aprovechables para las actividades agropecuarias en los distritos de riego” (incisos c, ch y f).

Dentro de las atribuciones de la Junta Directiva está la de expedir los acuerdos de solicitud de recuperación, expropiación o compra de las “(...) tierras en que asienten o subyazcan recursos hídricos (...)” (artículos 6° y 7°).

• c)INVU (Instituto Nacional de Vivienda y Urbanismo).

El artículo 34, párrafo 2°, de la Ley Forestal dispone que los alineamientos de las áreas de protección contempladas en su artículo 33, entre las que figuran las que bordean las nacientes permanentes, las de recarga y los acuíferos de los manantiales, serán realizados por el INVU. Adicionalmente, el Decreto Ejecutivo No. 25902-MIVAH-MP-MINAE del 12 de febrero de 1997, le impone a esa entidad la fiscalización del “Área de Control Urbanístico” que comprende algunos de los distritos de las Provincias de San José, Alajuela, Heredia y Cartago, siempre que el Gobierno Municipal no haya promulgado un Reglamento de Zonificación, siendo que en la “zona de especial protección” toda edificación se debe construir bajo estricto control debiéndose aprobar un Estudio de Impacto Ambiental por el MINAE y construir una planta de tratamiento para aguas residuales autorizada por el ICAA y el Ministerio de Salud para evitar “(...) la contaminación de los mantos acuíferos y de los cauces fluviales a que (sic) desemboquen”.

• d)MUNICIPALIDADES.

Las corporaciones municipales tienen un papel de primer orden en la protección y conservación de las aguas subterráneas a través de una serie de instrumentos indirectos. Así, la Ley de Planificación Urbana (No. 4240 del 15 de noviembre de 1968), hace más de 35 años, con fundamento en el ordinal 169 de la Constitución Política -en cuanto les compete “La administración de los intereses y servicios locales en cada Cantón”- les impuso el deber de promulgar un plan regulador para planificar y controlar el desarrollo urbano y los reglamentos de desarrollo urbano conexos (artículos 15 y siguientes). Dentro de ese plan regulador y el reglamento de zonificación, las Municipalidades deben identificar, a efecto de regular, controlar y restringir las actividades humanas (industrial, urbanística, agropecuaria, etc.), las áreas o zonas reservadas por ubicarse en las mismas un manto acuífero o su área de recarga o descarga.

Por aplicación de los derechos fundamentales a un ambiente sano y ecológicamente equilibrado (artículo 50 de la Constitución Política), a la vida y la salud humanas (artículo 21 ibidem) y en aras de un desarrollo sostenible los cantones que por sus características geomorfológicas cuenten en su circunscripción terrenos que alberguen mantos acuíferos, áreas de recarga y descarga de éstos, manantiales y nacientes están especialmente llamados y obligados a regular y normar, responsable, eficiente y eficazmente, tales extremos, puesto que, en ocasiones las aguas subterráneas no solo proveen al consumo y uso de las poblaciones del cantón sino a diversos cantones lo que demuestra un claro interés supralocal o nacional. Los habitantes de esas localidades, de su parte, deben soportar la carga general o las limitaciones y restricciones en el uso y el aprovechamiento del suelo y de las aguas derivadas de la determinación y fijación de tales áreas protegidas, puesto que, es en beneficio de ellos, de los habitantes de los otros cantones que son abastecidos con las aguas que discurren por el manto acuífero y que afloran o descargan en otros cantones y, desde luego, de las futuras generaciones.”

XII.Sobre el principio precautorio en materia ambiental y su aplicación en materia de aguas subterráneas. Partiendo del reconocimiento del derecho a un ambiente sano y ecológicamente equilibrado, receptado en el artículo cincuenta de la Constitución Política y el principio número quince de la Declaración de Río –Conferencia de Naciones Unidas sobre el Medio Ambiente y el Desarrollo-, se ha reconocido igualmente el denominado «principio precautorio en materia ambiental» o «principio in dubio pro natura», cuya observancia implica que todas las actuaciones de la administración pública en temas sensibles al ambiente, sean realizadas con el celo adecuado para evitar riesgos y daños graves e irreversibles. En otras palabras, si se carece de certeza sobre la inocuidad de la actividad en cuanto a provocar un daño grave e irreparable, la administración debe abstenerse de realizar este tipo de actividades. Es claro que este principio tiene aplicación igualmente tratándose de la explotación de aguas subterráneas. Así, en la precitada sentencia número 2004-1923, estableció la Sala que:

“XV.- PRINCIPIO PRECAUTORIO DEL DERECHO AMBIENTAL Y PROTECCIÓN DE LAS AGUAS SUBTERRÁNEAS. Uno de los principios rectores del Derecho Ambiental lo constituye el precautorio o de evitación prudente. Este principio se encuentra recogido en la Conferencia de las Naciones Unidas sobre el Medio Ambiente y el Desarrollo o Declaración de Río, la cual literalmente indica “Principio 15.- Con el fin de proteger el medio ambiente, los Estados deberán aplicar ampliamente el criterio de precaución conforme a sus capacidades. Cuando haya peligro de daño grave e irreversible, la falta de certeza científica absoluta no deberá utilizarse como razón para postergar la adopción de medidas eficaces en función de los costos para impedir la degradación del medio ambiente”. En el ordenamiento jurídico interno la Ley de Biodiversidad (No. 7788 del 30 de abril de 1998), en su artículo 11 recoge como parámetros hermenéuticos los siguientes principios: “1.- Criterio preventivo: Se reconoce que es de vital importancia anticipar, prevenir y atacar las causas de la pérdida de biodiversidad o sus amenazas. 2.- Criterios precautorio o indubio pro natura: Cuando exista peligro o amenaza de daños graves o inminentes a los elementos de la biodiversidad y al conocimiento asociado con estos, la ausencia de certeza científica no deberá utilizarse como razón para postergar la adopción de medidas eficaces de protección”.

En el Voto de esta Sala No. 1250-99 de las 11:24 horas del 19 de febrero de 1999 (reiterado en los Votos Nos. 9773-00 de las 9:44 horas del 3 de noviembre del 2000, 1711-01 de las 16:32 horas del 27 de febrero del 2001 y 6322-03 de las 14:14 horas del 3 de julio del 2003) este Tribunal estimó lo siguiente: “(...) La prevención pretende anticiparse a los efectos negativos, y asegurar la protección, conservación y adecuada gestión de los recursos. Consecuentemente, el principio rector de prevención se fundamenta en la necesidad de tomar y asumir todas las medidas precautorias para evitar contener la posible afectación del ambiente o la salud de las personas. De esta forma, en caso de que exista un riesgo de daño grave o irreversible –o una duda al respecto-, se debe adoptar una medida de precaución e inclusive posponer la actividad de que se trate. Lo anterior debido a que en materia ambiental la coacción a posteriori resulta ineficaz, por cuanto de haberse producido ya las consecuencias biológicas socialmente nocivas, la represión podrá tener una trascendencia moral, pero difícilmente compensará los daños ocasionados en el ambiente”.

Posteriormente, en el Voto No. 3480-03 de las 14:02 horas del 2 de mayo del 2003, este Tribunal indicó que “Bien entendido el principio precautorio, el mismo se refiere a la adopción de medidas no ante el desconocimiento de hechos generadores de riesgo, sino ante la carencia de certeza respecto de que tales hechos efectivamente producirán efectos nocivos en el ambiente”. Para el caso de las aguas subterráneas contenidas en los mantos acuíferos y áreas de carga y descarga, el principio precautorio o de indubio pro natura, supone que cuando no existan estudios o informes efectuados conforme a las regla unívocas y de aplicación exacta de la ciencia y de la técnica que permitan arribar a un estado de certeza absoluta acerca de la inocuidad de la actividad que se pretende desarrollar sobre el medio ambiente o éstos sean contradictorios entre sí, los entes y órganos de la administración central y descentralizada deben abstenerse de autorizar, aprobar o permitir toda solicitud nueva o de modificación, suspender las que estén en curso hasta que se despeje el estado dubitativo y, paralelamente, adoptar todas las medidas tendientes a su protección y preservación con el objeto de garantizar el derecho a un ambiente sano y ecológicamente equilibrado.

En esencia, una gestión ambiental segura de las aguas subterráneas pasa por proteger el recurso antes de su contaminación o degradación.” De tal forma, el principio precautorio encuentra aplicación en la medida que se carezca de certeza en cuanto al daño a producir y las medidas de mitigación o reparación que deben implementarse, pues al tenerse certeza sobre el tipo o magnitud del daño ambiental que puede producirse y de las medidas que deberán adoptarse en cada momento, se elimina todo sesgo de duda y, por consiguiente, resultaría impropio dar aplicación al principio precautorio. Dicho de otro modo, el principio precautorio debe ser aplicado en supuestos de duda razonable o incerteza, mas no cuando se tiene certeza del tipo de daño y de las medidas que deban adoptarse, ya que por su propia naturaleza resulta inviable la aplicación de este principio. En el caso bajo estudio, tal como se verá en las consideraciones de esta sentencia, se demuestra que se ha acreditado los impactos ambientales que se presentarán con el desarrollo del proyecto minero, al mismo tiempo que se ha previsto y aprobado las medidas de mitigación y compensación conducentes a la evitación de aquellos daños graves e irreparables, por lo que de conformidad con lo dicho, el principio precautorio resulta de inviable aplicación.

En consecuencia, partiendo de que la propia Declaración de Río reconoce la existencia y correlación de los principios precautorio y de desarrollo humano sostenible, debe en todo momento asegurarse que se cumpla el adecuado juicio de ponderación que permita el debido respeto y aplicación de ambos principios, de forma que las actividades sean valoradas de acuerdo tanto al impacto ambiental como a su aporte al desarrollo humano sostenible.

XIII.La protección otorgada a los denominados acuíferos o cursos de agua transfronterizos. Partiendo del reconocimiento del derecho al agua como un derecho humano y la protección que por ello debe otorgarse a los recursos hídricos, la comunidad internacional se ha abocado a definir instrumentos normativos que permitan la preservación de los mantos acuíferos situados entre diferentes países o que discurran de un territorio nacional hacia otro, estableciendo así obligaciones asumidas por los Estados para evitar que por su actuación se generen impactos negativos en los recursos hídricos de otro Estado. Así, la «Convención sobre el derecho de los usos de los cursos de agua internacionales para fines distintos de la navegación», de veintiuno de mayo de mil novecientos noventa y siete, dispone que los Estados se comprometen a otorgar todas las medidas de protección y colaboración necesarias para evitar este tipo de daños en los recursos hídricos de otros países tributarios o beneficiarios del acuífero o curso de que se trate. En lo conducente, los artículos 5, 6 y 7 de la Convención señalan que:

“Artículo 5 Utilización y participación equitativas y razonables (…) 2. Los Estados del curso de agua participarán en el uso, aprovechamiento y protección de un curso de agua internacional de manera equitativa y razonable. Esa participación incluye tanto el derecho de utilizar el curso de agua como la obligación de cooperar en su protección y aprovechamiento, conforme a lo dispuesto en la presente Convención.

Artículo 6 Factores pertinentes en una utilización equitativa y razonable 1. La utilización de manera equitativa y razonable de un curso de agua de conformidad con el artículo 5 requiere que se tengan en cuenta todos los factores y circunstancias pertinentes, entre otros:

• a)Los factores geográficos, hidrográficos, hidrológicos, climáticos, ecológicos y otros factores naturales; (…) d) Los efectos que el uso o los usos del curso de agua en uno de los Estados del curso de agua produzcan en otros Estados del curso de agua; (…) Artículo 7 Obligación de no causar daños sensibles 1. Los Estados del curso de agua, al utilizar un curso de agua internacional en sus territorios, adoptarán todas las medidas apropiadas para impedir que se causen daños sensibles a otros Estados del curso de agua. (…)” Más recientemente, y de manera concreta sobre acuíferos transfronterizos y ya no sólo sobre aguas de uso internacional, la Asamblea General de Naciones Unidas, en su sexagésimo tercer período de sesiones, adoptó la resolución número 63/124, de once de diciembre de dos mil ocho, denominada «El derecho de los acuíferos transfronterizos”, en la cual recoge diversos principios ya establecidos en la Convención de cita, otorgándoles aplicación a este otro tipo de acuíferos; a los efectos del caso bajo estudio resulta particularmente ilustrativo la disposición del artículo 6 de la resolución, norma que reedita una fórmula similar a la ya establecida en el artículo 7 de la Convención, disponiendo que:

“Artículo 6 Obligación de no causar un daño sensible 1. Al utilizar un acuífero o sistema acuífero transfronterizo en su territorio, los Estados del acuífero adoptarán todas las medidas apropiadas para prevenir que se cause un daño sensible a otros Estados del acuífero o a otros Estados en cuyo territorio se halle situada una zona de descarga.” De tal forma, es claro que a través de estos instrumentos internacionales –por principio aplicables en el ámbito interno costarricense en virtud del artículo 48 de la Constitución y la dimensión reconocida al denominado Derecho de la Constitución- se establece a los Estados la obligación de evitar daños sensibles que puedan afectar o impactar de manera negativa los recursos hídricos de otro Estado con el que se comparta regiones fronterizas, o acuíferos que transcurran de un Estado hacia otro. En el caso bajo estudio, este es el caso del Río San Juan –fronterizo entre Nicaragua y Costa Rica- y del llamado acuífero inferior identificado en la zona del proyecto minero Crucitas –que transcurre en dirección noroeste sureste desde Nicaragua hacia Costa Rica-, por lo que lo dispuesto en los instrumentos normativos de referencia debe ser tenido en cuenta al momento de valorar la prueba técnica allegada al expediente, para determinar si el país ha observado estas disposiciones o si, eventualmente, pudiera ser objeto de alguna imputación por presunto incumplimiento de sus obligaciones internacionales.

XIV.La protección al ambiente y su relación con el desarrollo sostenible. Uso racional de los recursos. Un equilibrio entre el desarrollo del país y el derecho al ambiente. Partiendo del artículo 69 constitucional, en la medida que dispone el "uso racional de los recursos naturales", la Sala ha identificado los parámetros constitucionales para el uso adecuado de los mismos. En virtud de estos parámetros, la protección al ambiente debe encaminarse a la utilización adecuada e inteligente de sus elementos y en sus relaciones naturales, socioculturales, tecnológicos y de orden político -desarrollo sostenible- para con ello salvaguardar el patrimonio al que tienen derecho las generaciones presentes y futuras. Por ello, el objetivo primordial del uso y protección del ambiente es que a través de la producción y uso de la tecnología, se obtengan no solo ganancias económicas -libertad de empresa- sino un desarrollo y evolución favorable del ambiente y los recursos naturales con el ser humano, esto es, sin que se cause daño o perjuicio. Así, la Sala ha considerando que:

"[T]anto el derecho a la salud como a un ambiente libre de contaminación, sin el cual el primero no podría hacerse efectivo, son derechos fundamentales, de modo que, es obligación del Estado proveer a su protección, ya sea a través de políticas generales para procurar ese fin o bien, a través de actos concretos por parte de la Administración. El desarrollo sostenible es una de esas políticas generales que el Estado dicta para ampliar las posibilidades de que todos puedan colmar sus aspiraciones a una vida mejor, incrementando la capacidad de producción o bien, ampliando las posibilidades de llegar a un progreso equitativo entre un crecimiento demográfico o entre éste y los sistemas naturales. Es el desarrollo sostenible, el proceso de transformación en la utilización de los recursos, orientación de las inversiones, canalización del desarrollo tecnológico, cambios institucionales y todo aquello que coadyuve para atender las necesidades humanas del presente y del futuro" (sentencia número 1763-94, de las dieciséis horas cuarenta y cinco minutos del trece de abril de mil novecientos noventa y cuatro).

La Sala ha indicado que el ambiente debe ser entendido como un potencial de desarrollo para utilizarlo adecuadamente, debiendo actuarse de modo integrado en sus relaciones naturales, socioculturales, tecnológicas y de orden político, ya que, en caso contrario, se degrada su productividad para el presente y el futuro y podría ponerse en riesgo el patrimonio de las generaciones venideras. Los orígenes de los problemas ambientales son complejos y corresponden a una articulación de procesos naturales y sociales en el marco del estilo de desarrollo socioeconómico que adopte el país. Por ejemplo, se producen problemas ambientales cuando las modalidades de explotación de los recursos naturales dan lugar a una degradación de los ecosistemas superior a su capacidad de regeneración, lo que conduce a que amplios sectores de la población resulten perjudicados y se genere un alto costo ambiental y social que redunda en un deterioro de la calidad de vida, pues precisamente el objetivo primordial del uso y protección del ambiente es obtener un desarrollo y evolución favorable al ser humano.

La calidad ambiental es un parámetro fundamental de esa calidad de vida. Otros parámetros no menos importantes son salud, alimentación, trabajo, vivienda, educación, pero más importante que ello es entender que si bien el ser humano tiene el derecho de hacer uso del ambiente para su propio desarrollo, también tiene el deber de protegerlo y preservarlo para el uso de las generaciones presentes y futuras, lo cual no es tan novedoso, porque no es más que la traducción a esta materia del principio de la "lesión", ya consolidado en el derecho común, en virtud del cual el legítimo ejercicio de un derecho tiene dos límites esenciales: por un lado, los iguales derechos de los demás y, por el otro, el ejercicio racional y el disfrute útil del derecho mismo. Nuestro país ha dependido y seguirá dependiendo, al igual que cualquier otra entidad nacional, de sus recursos naturales y su medio para llenar las necesidades básicas de sus habitantes y mantener operando el aparato productivo que sustenta la economía nacional, cuya principal fuente la constituye la agricultura y, en los últimos años, la tecnología y el turismo, especialmente en su dimensión de ecoturismo.

El suelo, el agua, el aire, los recursos marinos y costeros, los bosques, la diversidad biológica, los recursos minerales y el paisaje, conforman el marco ambiental sin el cual las demandas básicas -como espacio vital, alimentación, energía, vivienda, sanidad y recreación- serían imposibles. De igual modo, la economía también está íntimamente ligada al estado del ambiente y de los recursos naturales. Por otro lado, las metas del desarrollo sostenible tienen que ver con la supervivencia y el bienestar del ser humano y con el mantenimiento de los procesos ecológicos esenciales, es decir, de la calidad ambiental y de la sobrevivencia de las otras especies. Hablar de desarrollo sostenible en términos de satisfacción de las necesidades humanas presentes y futuras y del mejoramiento de la calidad de vida es hablar de la demanda de los recursos naturales a nivel individual y de los medios directos o de apoyo necesarios para que la economía funcione generando empleo y creando los bienes de capital, que a su vez hagan posible la transformación de los recursos en productos de consumo, de producción y de exportación.

La declaración formulada en la Cumbre de la Tierra en 1992, proclamó y reconoció la naturaleza integral e independiente del planeta; ello significa la aceptación de ciertos principios que informan la transición de los actuales estilos de desarrollo a la sostenibilidad. Los Estados signatarios, entre los que figura Costa Rica, se comprometieron, dentro de la preservación del desarrollo sostenible, a la protección sobre todo del ser humano, partiendo del principio de que toda persona tiene derecho a una vida saludable y productiva en armonía con la naturaleza; se incluyó el derecho de las generaciones presentes y futuras a que el desarrollo se realice de modo tal que satisfaga sus necesidades ambientales y de progreso; se mantuvo la potestad soberana de los Estados de explotar sus recursos, recalcando su responsabilidad de asegurar que las actividades que realicen dentro de su jurisdicción y control no causen daños ambientales a otros Estados o áreas más allá de los límites de su jurisdicción nacional.

Establecieron el deber de los Estados de cooperar en la conservación, protección y restauración del ambiente y sus responsabilidades comunes en ese sentido. De este modo, la cooperación internacional para la promoción y apoyo del crecimiento económico y el desarrollo sostenible permitirá abordar mejor los problemas de la degradación ambiental. Asimismo, se impuso un deber especial a los países desarrollados fundado en su responsabilidad en la búsqueda del desarrollo sostenible, dada la evidente presión que ejercen en el ambiente global las tecnologías que desarrollan y los recursos financieros que poseen –ver, en similar sentido, sentencia de esta Sala número 2004-9927, de las once horas un minuto del tres de setiembre de dos mil cuatro-.

XV.Sobre el Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento. Según se ha explicado en el X considerando de esta sentencia, las competencias del SENARA trascienden lo concerniente a los distritos de riego, siendo así que las mismas resultan tener una vocación nacional derivada de sus mismos antecedentes institucionales. Asimismo, el artículo tres de la Ley de Creación del SENARA, ley número 6877, dispone, en lo conducente que:

“ARTÍCULO 3º.- Son funciones del SENARA: (…) ch) Investigar, proteger y fomentar el uso de los recursos hídricos del país, tanto superficiales como subterráneos. (…) h) Vigilar el cumplimiento de las disposiciones legales en las materias de su incumbencia. Las decisiones que por ese motivo tome el Servicio, referentes a la perforación de pozos, y a la explotación, mantenimiento y protección de las aguas -que realicen las instituciones públicas y los particulares- serán definitivas y de acatamiento obligatorio. No obstante, tales decisiones podrán apelarse dentro del décimo día por razones de ilegalidad, para ante el Tribunal Superior Contencioso Administrativo. El Tribunal resolverá en un plazo no mayor de noventa días.” (énfasis añadido) Es así, que por disposición expresa de su ley de creación, el SENARA tiene la competencia de proteger los recursos hídricos del país, razón por la cual sus decisiones en torno a la explotación, mantenimiento y protección, serán definitivas y de acatamiento obligatorio. Por su parte, el artículo ciento cincuenta y siete de la Ley de Aguas -aún vigente- señala que:

“Artículo 157.- Es deber de las Municipalidades consultar al Departamento de Agricultura, y obtener de él el correspondiente permiso, antes de enajenar, hipotecar, dar en arriendo o a esquilmo o explotar por su cuenta, cualquier terreno que posean o adquieran cuando en dichos terrenos existan aguas de dominio público utilizables. El Departamento de Agricultura decidirá si tales terrenos están comprendidos entre los mencionados y si el destino que se deseare darles pudiera afectar la conservación de las aguas que utilizan las poblaciones. Igual obligación tendrán las Juntas de Educación, Juntas de Protección Social y, en general, todo organismo de carácter público.” (el destacado no es del original) Esta disposición normativa debe interpretarse y aplicarse de conformidad con lo dispuesto en el artículo veintiuno de la Ley sobre el Uso, Manejo y Conservación de Suelos –a partir del cual se define que el Ministerio de Agricultura y Ganadería (o Departamento de Agricultura en el lenguaje utilizado por la Ley de Aguas)- mantiene una competencia secundaria o residual en esta materia- norma que claramente establece que:

“ARTÍCULO 21.- En materia de aguas, el Ministerio de Agricultura y Ganadería deberá coordinar, con el Servicio Nacional de Riego y Avenamiento y cualquier otra institución competente, la promoción de las investigaciones hidrológicas, hidrogeológicas y agrológicas en las cuencas hidrográficas del país, así como en las prácticas de mejoramiento, conservación y protección de los suelos en las cuencas hidrográficas, según las competencias del Servicio mencionado…” De tal forma, la integración de las normas de reciente cita informa que para el aprovechamiento de las aguas de dominio público, toda entidad pública –sin distingo- deberá obtener del SENARA el permiso correspondiente, al punto que las decisiones que de manera fundamentada adopte el SENARA en cuanto a ello, serán definitivas y de acatamiento obligatorio. Esta definición dista de ser una manifestación retórica de la Sala; por el contrario, la misma deriva de la responsable integración del amplio marco normativo que regula la materia, que, como se dijo, requiere del progresivo avance y reconocimiento propio del ámbito de los derechos humanos, toda vez que el derecho al agua y el derecho a un ambiente sano y ecológicamente equilibrado son derechos humanos fundamentales.

La Sala advierte que esta precisión sitúa al SENARA en una posición particularmente relevante en cuanto a la gestión del recurso hídrico nacional, lo cual resulta importante considerando la naturaleza eminentemente técnica de esta dependencia administrativa, posición que debe ser reforzada y ejercida mediante la necesaria y debida coordinación interinstitucional de las diferentes entidades involucradas –Ministerio de Agricultura y Ganadería, Instituto Costarricense de Acueductos y Alcantarillados, Secretaría Técnica Nacional Ambiental, Municipalidades, entre otras-. En este sentido, pretender ejecutar proyectos de extracción y explotación del recurso hídrico sin la debida autorización y vinculación del SENARA, resulta ser violatorio de las previsiones normativas de protección al ambiente, pues se carecería de los insumos técnicos necesarios que dictaminen la disponibilidad y posibilidad de aprovechamiento de las aguas de dominio público.

XVI.Sobre la importancia de la viabilidad ambiental, los estudios de impacto ambiental y el procedimiento que debe observarse. El reconocimiento del derecho a un ambiente sano y ecológicamente equilibrado, la aplicación del referido principio precautorio, y el consecuente desarrollo normativo en materia de protección ambiental, impone el cumplimiento de diferentes requisitos y procedimientos que permiten a la administración conocer el impacto real que la ejecución de actividades y obras –públicas o privadas- puede tener sobre el ambiente, para una vez adquirida la certeza correspondiente, autorizar o improbar su realización. Es así como el ordenamiento interno crea la Secretaría Técnica Nacional Ambiental –SETENA-, dependencia administrativa a la que le corresponde el otorgamiento de la viabilidad ambiental de los proyectos, una vez que se cumpla el procedimiento establecido –ver artículo diecisiete de la Ley Orgánica del Ambiente-, mediante resoluciones fundamentadas donde se analice de manera pormenorizada la situación planteada.

La realización de las evaluaciones ambientales ha sido reconocida por esta Sala igualmente como un principio rector en materia ambiental, de donde resulta que su observancia y aplicación es irrestricta para asegurar la debida protección del ambiente. Así, mediante sentencia número 2003-6322, de las catorce horas catorce minutos del tres de julio de dos mil tres, definió la Sala que:

“5.- de la realización del estudio de impacto ambiental previo a la iniciación de obras: Se parte del principio de que las normas ambientales deben tener un sustento técnico, pues su aplicación tiene que partir de límites que determinen las condiciones en las cuáles debe sujetarse el uso y aprovechamiento de los recursos naturales. Esto es así porque al ser los daños y contaminación del medio ambiente evaluables, como la presencia de sustancias tóxicas o elementos externos que provoquen en el ambiente características negativas, tanto para la diversidad biológica -comprendiendo a la flora y la fauna-, como -y sobre todo- para la vida humana, que se ve reflejada en la salud o bienestar del hombre -suelo, hábitat, aire, agua, etc.-, el impacto de estos elementos requiere de una evaluación y tratamiento científico. Por ello, este principio (de la realización previa del estudio de impacto ambiental) se constituye en corolario del principio anterior, y teniendo especial importancia su realización para todas las "[...] actividades humanas que alteren o destruyan elementos del ambiente o generen residuos materiales tóxicos o peligrosos, requerirán una evaluación de impacto ambiental por parte de la Secretaría Técnica Nacional Ambiental creada en esta Ley.

Su aprobación previa, de parte de este organismo, será requisito indispensable para iniciar las actividades, obras o proyectos." (Artículo 17 de la Ley Orgánica del Ambiente, número 7554, de dieciocho de septiembre de mil novecientos noventa y cinco).

Es así como la protección del derecho a un ambiente sano y ecológicamente equilibrado obliga al Estado a tomar las medidas de carácter preventivo a efecto de evitar su afectación; y dentro de las principales medidas dispuestas por el legislador en este sentido, se encuentran los Estudios de Impacto Ambiental, los que encuentran fundamento en lo dispuesto en el citado artículo 17 de la Ley Orgánica del Ambiente. A este efecto, es importante resaltar en virtud de mandato constitucional –artículo 50-, y en la Ley –artículo 17 de la Ley Orgánica del Ambiente-, se establece como principio general, que toda actividad humana de modificación del entorno requerirá el estudio de impacto ambiental, de donde, será la condición del proyecto o de la obra, la que determinará en cada caso, si se requiere o no del referido estudio técnico, y no el establecimiento de condiciones arbitrarias, sean éstas administrativas o reglamentarias (según lo indicado por este Tribunal, en sentencia número 1220-2002, de las catorce horas cuarenta y ocho minutos del seis de febrero del dos mil dos)." La jurisprudencia constitucional exige una evaluación previa del riesgo que pueda producir una actividad económica determinada, la cual deberá realizarse con el instrumento técnico que corresponda según el caso. Al respecto la Sala ha considerado:

"d-El estudio de impacto ambiental como instrumento de protección. Las normas dirigidas a proteger al ambiente deben tener un sustento técnico, pues su aplicación tiene que partir de las condiciones en las cuáles debe sujetarse el uso y aprovechamiento de los recursos naturales. Esto es así porque al ser los daños y contaminación del medio evaluables, el impacto de estos elementos requiere de un análisis y tratamiento científico. Por ello, la necesidad de una valoración del impacto en el ambiente que según determina el Reglamento General sobre los Procedimientos de Evaluación de Impacto Ambiental, consiste en un procedimiento administrativo científico-técnico que permite identificar y predecir cuáles efectos ejercerá sobre el medio, una actividad, obra o proyecto, cuantificándolos y ponderándolos para conducir a la toma de decisiones. De conformidad con el Reglamento citado, que es decreto No. 31849-MINAE-S-MOPT-MAG-MEIC publicado el 28 de junio del 2004, y que reformó el decreto ejecutivo No. 25705-MINAE, la evaluación del impacto ambiental abarca tres fases: a) una evaluación ambiental inicial, que consiste en un procedimiento de análisis de las características ambientales de la actividad, obra o proyecto, con respecto a su localización para determinar la relevancia del impacto, de este análisis previo se puede otorgar incluso una viabilidad ambiental potencial (que es temporal) o el condicionamiento de la misma a la presentación de otros instrumentos de valoración de dicho impacto; b) la confección del estudio de impacto ambiental o de otros instrumentos de evaluación según corresponda.

El estudio de impacto ambiental es un documento de naturaleza u orden técnico de carácter interdisciplinario, que constituye un instrumento de análisis del ambiente, que debe presentar el desarrollador de una actividad, obra o proyecto, de previo a su realización y que está destinado a predecir, identificar, valorar, y corregir los impactos ambientales que determinadas acciones puedan causar sobre el medio y a definir la viabilidad (licencia) ambiental del proyecto, obra o actividad objeto del estudio; y c) el control y seguimiento de la actividad, obra o proyecto a través de los compromisos ambientales establecidos. La viabilidad ambiental por su parte, representa la condición de armonización o de equilibrio aceptable, desde el punto de vista de carga ambiental, entre el desarrollo y ejecución de una actividad, obra o proyecto y sus impactos ambientales potenciales, y el ambiente del espacio geográfico donde se desea implementar.

Desde el punto de vista administrativo y jurídico, la viabilidad ambiental corresponde al acto en que se aprueba el proceso de evaluación de impacto ambiental, ya sea en su fase de Evaluación Ambiental Inicial, o en la fase de aprobación del Estudio de Impacto Ambiental o del Plan de Gestión Ambiental, según la actividad de que se trate y amerite. De conformidad con el artículo 17 de la Ley Orgánica del Ambiente, número 7554, de dieciocho de septiembre de mil novecientos noventa y cinco, las actividades que requieren un estudio de impacto ambiental aprobado por SETENA son aquellas actividades humanas que alteren o destruyan elementos del ambiente o generen residuos materiales tóxicos o peligrosos. Su aprobación previa, de parte de este organismo, será requisito indispensable para iniciar las actividades, obras o proyectos. Es así como la protección del derecho a un ambiente sano y ecológicamente equilibrado obliga al Estado a tomar las medidas de carácter preventivo a efecto de evitar su afectación; y dentro de las principales medidas dispuestas por el legislador en este sentido, se encuentran varios instrumentos técnicos entre los que destaca el Estudio de Impacto Ambiental, según lo dispuesto en el artículo citado, siendo la condición del proyecto o de la obra, la que determinará en cada caso, su necesidad…El legislador encomendó a la "Secretaría Técnica Nacional Ambiental", las evaluaciones a cargo de "un equipo interdisciplinario de profesionales, inscritos y autorizados por la Secretaría… de conformidad con las guías elaboradas por ella…” (sentencia No. 2004-9927)

XVII.Sobre el procedimiento de la evaluación ambiental y la necesaria comunicación, información y diálogo con la población. La realización de la evaluación ambiental en los términos dichos, implica el cumplimiento de los pasos normativamente establecidos para la actuación de las autoridades públicas involucradas, especialmente la Secretaría Técnica Nacional Ambiental. Dentro de este procedimiento resulta particularmente relevante la necesidad de informar públicamente a la población que positiva o negativamente pueda verse afectada con la ejecución de obras con impacto ambiental, trascendiendo de la mera transmisión de información para propender al establecimiento de un diálogo que aporte insumos de previo al otorgamiento de la viabilidad ambiental. Así, en la precitada sentencia 2003-6322, estableció la Sala que:

“11.- participación ciudadana en los asuntos ambientales: La participación ciudadana en los asuntos ambientales abarca dos puntos esenciales: el derecho a la información relativa a los proyectos ambientales, o que puedan causar una lesión a los recursos naturales y al medio ambiente, y la garantía de una efectiva participación en la toma de decisiones en estos asuntos. Por ello, el Estado costarricense no sólo debe invitar a la participación ciudadana, sino que debe promoverla y respetarla cuando se produzca (Sentencias número 2001-10466, supra citada). De esta suerte, resulta de gran importancia la puesta a disposición de los interesados de la información que en la materia tengan en las oficinas públicas, caso de la relativa a los estudios de impacto ambiental a cargo de la Secretaría Técnica Nacional Ambiental, o la requerida para la aprobación de los planes reguladores de las respectivas municipalidades, por ejemplo.

Fue la Convención de Río la que en el principio 10 elevó esta participación a rango de principio en materia ambiental, al señalar "El mejor modo de tratar las cuestiones ambientales es con la participación de todos los ciudadanos interesados, en el nivel que corresponda. En el plano nacional, toda persona debe tener adecuada formación sobre el medio ambiente que dispongan las autoridades públicas, incluida la información sobre los materiales y las actividades que encierran peligro en sus comunidades, así como la oportunidad de participar en los procesos de adopción de decisiones. Los Estados deberán facilitar y fomentar la sensibilización y la participación de la población poniendo la información a disposición de todos. Deberá proporcionarse acceso efectivo a los procedimientos judiciales y administrativos, entre éstos el resarcimiento de daños y los recursos pertinentes." De este principio, se evidencia claramente la importancia que a nivel internacional se da a las cuestiones ambientales, y en general, sobre todo, a la participación de la sociedad civil en decisiones de gran trascendencia para la comunidad.

Al ser Costa Rica un Estado signatario, este instrumento ciertamente la obliga y condiciona, pues esa es la consecuencia de su suscripción, según con consideró este Tribunal, en sentencia número 8319-2000, de las diez horas dieciocho minutos del ocho de setiembre del dos mil:

"Así, su propósito es que las decisiones gubernamentales sean consecuencia de una discusión que no se constriña a pequeños núcleos oficiales o de intereses parcializados, sino que sean tomadas en consideración otras opiniones, con la apertura necesaria para crear el debate ampliado, aunque sin dejar de cumplirse, claro, los requisitos que establece la legislación correspondiente. No se trata de una desconstitucionalización del principio de legalidad de la Administración Pública, aunque sí por supuesto, de una forma de gobierno más democrático, que amplía los foros de debate sobre temas como el de la protección al medio ambiente, y que por virtud de ello, quedan abiertos a la intervención y opinión ciudadana. Estamos, pues, ante una opción ya muy aceptada en la evolución del concepto de democracia y este amparo ofrece una magnífica oportunidad de darle clara y efectiva vigencia, para que no se quede en el mero discurso. Por eso mismo es que la cuestión ambiental es un tema que ya la Sala ha reconocido como aquellos que otorgan a los particulares una legitimación especial, y de la que se reconoce como un «derecho reaccional» (vid. sentencia 2233-93 y 3705-93 de esta Sala).

«En el derecho ambiental, el presupuesto procesal de la legitimación tiende a extenderse y ampliarse en una dimensión tal, que lleva necesariamente al abandono del concepto tradicional, debiendo entender que en términos generales, toda persona puede ser parte y que su derecho no emana de títulos de propiedad, derechos o acciones concretas que pudiera ejercer según las reglas del derecho convencional, sino que su actuación procesal responde a lo que los modernos tratadistas denominan el interés difuso, mediante el cual la legitimación original del interesado legítimo o aún del simple interesado, se difunde entre todos los miembros de una determinada categoría de personas que resultan así igualmente afectadas por los actos ilegales que los vulneran. Tratándose de la protección del ambiente, el interés típicamente difuso que legitima al sujeto para accionar, se transforma, en virtud de su incorporación al elenco de los derechos de la persona humana, convirtiéndose en un verdadero "derecho reaccional", que, como su nombre lo indica, lo que hace es apoderar a su titular para "reaccionar" frente a la violación originada en actos u omisiones ilegítimos.» (vid. sentencia 3705-93) Es por ello, que por Ley 7412 del 03 de junio de 1994, la Asamblea Legislativa reformó el artículo 50 de la Constitución Política, garantizando a toda persona el derecho al ambiente sano y ecológicamente equilibrado.

En esta materia, entonces, existe la legitimación para denunciar actos que infrinjan ese derecho y para reclamar la reparación del daño causado, a través del acceso efectivo a los procedimientos judiciales y administrativos. De esta manera, cuando la Constitución Política hace mención de que el Gobierno de la República es popular, representativo, alternativo y responsable, hemos de tener claro que la participación ciudadana no se limitaría al mero ejercicio del derecho al voto, o a la aspiración de alcanzar un cargo público de elección popular, sino, además y en esta nueva visión, a la de que a las personas se les ofrezca la oportunidad real de contribuir a la toma de las decisiones políticas del Estado, especialmente cuando éstas tengan trascendencia nacional, o eventualmente pudieren afectar los derechos fundamentales de ciertos sectores de la población. De los artículos 1 y 50 Constitucionales se rescata pues, la consideración que los ciudadanos merecen en un estado democrático, en el cual puedan al menos tener acceso a la información sobre el medio ambiente de que dispongan las autoridades públicas, tal y como lo señalan los recurrentes.

El precepto comentado, entonces, recoge el principio citado a través del acceso a la información de que se dispone y a la divulgación de ella, para que la toma de decisiones no se circunscriba a un limitado grupo de intereses. Ciertamente, que en la materia que ahora analizamos, nuestro ordenamiento jurídico ya prevé que los particulares pueden solicitar a la SETENA llevar a cabo audiencias públicas, para efecto de que se tomen en cuenta las posiciones formuladas por las comunidades interesadas en la toma de decisiones que afectan el ambiente, lo que ha sido recogido en la Ley Orgánica del Ambiente y de su Reglamento, como informó la autoridad recurrida." Precisamente, la Ley Orgánica del Ambiente reconoce este principio en los artículos 6 y 23, que textualmente disponen en lo que interesa:

"Artículo 6. Participación de los habitantes El Estado y las municipalidades, fomentarán la participación activa y organizada de los habitantes de la República, en la toma de decisiones y acciones tendientes a proteger y mejorar el ambiente." "Artículo 23. Publicidad de la información La información contenida en el expediente de la evaluación de impacto ambiental será de carácter público y estará disponible para ser consultada por cualquier persona u organización." Asimismo, en el Reglamento sobre procedimientos de la Secretaría Técnica Nacional Ambiental, también se recoge este principio, al disponerse en el Capítulo IV, en el que se regula lo relativo a la audiencia pública prevista dentro del procedimiento del estudio de impacto ambiental (artículos 35 a 40), en el que se tiene prevista la participación activa, tanto de la sociedad civil como de las municipalidades -en su condición de ente "[...] constituido por el conjunto de vecinos residentes de un mismo cantón, que promueven y administran sus propios intereses por medio del gobierno municipal" (artículo 1° del Código Municipal).

Norma similar tiene la Ley de Planificación Urbana, en lo relativo a la aprobación por las municipalidades de los planes reguladores, al obligarlo a "1) Convocar a una audiencia pública por medio del Diario Oficial y la divulgación adicional necesaria con la indicación de local, fecha y hora para conocer el proyecto y de las observaciones verbales o escritas que tengan a bien formular los vecinos o interesados. El señalamiento deberá hacerse con antelación no menor de quince días hábiles" (artículo 17 de la Ley de Planificación Urbana).

Este principio de la participación ciudadana en los asuntos ambientales, nace y se justifica precisamente de la aplicación de la positivación del principio democrático -consagrado en el artículo 1° de la Constitución Política-. Es importante resaltar que esta participación se puede lograr en forma individual, a través de grupos asociativos de orden particular, así como también a través de los gobiernos locales, a quienes, por su competencia asignada en el artículo 169 de la Constitución, se les reconoce plena competencia para promoverla en los asuntos que de algún modo puedan afectar la comunidad de su jurisdicción, y más bien, si no lo hace, estaría incumpliendo uno de sus cometidos que el constituyente le asignó, y que ha sido desarrollada en la legislación ordinaria "Las municipalidades fomentarán la participación activa, consciente y democrática del pueblo en las tomas de decisiones del gobierno local. Las instituciones públicas estarán obligadas a colaborar para que estas decisiones se cumplan debidamente" (artículo 5 del Código Municipal).

Queda claro que la participación ciudadana y de las municipalidades es de trascendental importancia a fin de promover la conciencia en los problemas ambientales y para coadyuvar en la toma de decisiones de las instituciones encargadas de la preservación, vigilancia y protección del medio ambiente y los recursos naturales. Este principio ya había sido reconocido en voto salvado de los Magistrados Piza, Solano y Arguedas en sentencia número 4423-93, supra citada, no sólo como un derecho de participación, sino un deber de la comunidad y municipalidad en la toma de decisiones y discusiones sobre la ubicación de un relleno sanitario en Esparza. En este mismo sentido, en sentencia número 10466-2000, de las diez horas diecisiete minutos del veinticuatro de noviembre del dos mil, la Sala señaló que en modo alguno "[...] puede excluirse al ser humano que recibirá los efectos de las decisiones gubernamentales en materia ambiental-, de su participación en la decisión de asuntos vinculados con esta materia." Con anterioridad, este Tribunal, reconoció la importancia de la participación de los gobiernos locales en este tipo de procesos (estudios de impacto ambiental) bajo las siguientes consideraciones:

"[...] queda claro para la Sala que en los procedimientos de estudio de impacto ambiental y declaratoria de viabilidad ambiental de los proyectos en los que se pretenda explotar recursos naturales, la participación de las municipalidades debe ser activa; sin embargo, en modo alguno puede pretenderse la sustitución del órgano director de los mismos -en este caso la Secretaría Técnica Nacional Ambiental- por las municipalidades. En el caso concreto, esa participación se traduce en la participación de los gobiernos locales en todo el procedimiento, y por ello es que en dicho procedimientos tienen plena cabida sus gestiones, pero como una parte más, motivo por el cual se le notifican todas las gestiones que se realicen dentro de ese procedimiento. En todo caso, el procedimiento previsto en los artículos 35 a 40 del Reglamento sobre Procedimientos de la Secretaría Técnica Nacional Ambiental, Decreto Ejecutivo número 25.705-MINAE, prevé no sólo la participación de la sociedad civil, sino sobre todo, de las municipalidades, con las cuales coordinará la celebración de la audiencia pública (artículo 36), pero a modo de colaborador de esta entidad con la Secretaría Técnica Nacional Ambiental, sin que en modo alguno pueda pretender la toma de decisiones.

Por lo demás, las competencias municipales en lo que respecta a la preservación y protección del medio ambiente no pueden verse limitadas a la organización de la audiencia pública -que por disposición legal le corresponde a la Secretaría Técnica Nacional Ambiental-, sino que va mucho más allá, como lo es la concientización de los munícipes en la participación ciudadana, la denuncia -con pruebas técnicas- ante entidades administrativas y los tribunales de justicia, el manejo adecuado de la basura y de los desechos industriales, el control y fiscalización para que las leyes ambientales se cumplan, y la promoción de los recursos legales pertinentes, como lo sería la solicitud de suspensión de los actos administrativos que estimen nocivos para el ambiente, pero no en la vía constitucional, sino en la jurisdicción contenciosa-administrativa y civil de Hacienda, entre otros cometidos" (sentencia número 2001-5737, de las catorce horas cuarenta y un minutos del veintisiete de junio del dos mil uno).

En este sentido, resulta indispensable que la audiencia se lleve a cabo en el lugar donde los vecinos puedan asistir, y con preferencia en el lugar de los hechos, ya que lo contrario, la celebración de la audiencia ordenada por la Administración no lograría cumplir su finalidad, donde obviamente la falta de los recursos no puede constituirse en un obstáculo para hacer llegar al expediente todos los elementos probatorios que la Administración requiere para tomar una decisión en asuntos de tan fundamental importancia, ya que necesariamente tendrá implicaciones sobre el medio ambiente y la comunidad. Asimismo, la importancia de la participación de las municipalidades en la elaboración de los estudios de impacto ambiental ha sido reconocida en la propia Ley Orgánica Ambiental en el párrafo segundo del artículo 22, que prevé:

"Dentro de los cinco días hábiles siguientes al recibo de una evaluación de impacto ambiental, la Secretaría Técnica Nacional Ambiental remitirá un extracto de ella a las municipalidades en cuya jurisdicción se realizará la obra, la actividad o el proyecto. Asimismo, le dará profusa divulgación, por los medios de comunicación colectiva, a la lista de estudios sometidos a su consideración" Con lo que se resalta que la participación comunal en la toma de decisiones en materia ambiental forma parte del procedimiento al que debe sujetarse el Estado, y a la vez es integrante del derecho fundamental de toda persona, en los términos previstos en el artículo 50 de la Constitución Política. Por ello, reiteradamente la jurisprudencia constitucional ha sostenido que el derecho de audiencia hace parte del debido proceso sustantivo y que es una forma de expresión de la democracia participativa (en este sentido, entre otras ver voto salvado de los Magistrados Piza, Solano y Arguedas de la sentencia número 4423-93, de las doce horas del siete de setiembre de mil novecientos noventa y tres; 2331-96, de las catorce horas treinta y tres minutos del catorce de mayo de mil novecientos noventa y seis; 3521-95, de las diecisiete horas tres minutos del diez de julio de mil novecientos noventa y seis; 6640-00, de las nueve horas dieciséis minutos del veintiocho de julio del dos mil; y 10466-2000, de las diez horas dieciséis minutos del veinticuatro de noviembre del dos mil).

Sobre el tema de información en materia de ambiente, se ha indicado "En materia del medio ambiente debemos trasladar este concepto sobre el derecho de información a una nueva perspectiva que tiene todo individuo o colectividad de solicitar información y de ser informado por cualquier ente estatal [información] que no puede ser obstruida por las instituciones estatales referentes a cualquier proyecto que pueda afectar el goce de su derecho a un ambiente sano y ecológicamente equilibrado. Es entonces esta, la garantía que permitirá participar a cualquier individuo o colectividad, haciendo uso de los intereses difusos del acceso a la participación, dentro de los procesos de toma de decisiones que afecten ese derecho, pues lo contrario sería ilusorio y la norma constitucional resultaría superflua [...]" (sentencia número 2331-96, supra citada).

En esta especial materia, toda persona debe tener adecuada información sobre los materiales y las actividades o proyectos que pueden implicar un peligro o amenaza para las comunidades (derecho a la salud), y para la conservación y preservación del medio ambiente (derecho a un ambiente sano y ecológicamente equilibrado), así como para la efectiva oportunidad de participar en los procesos de adopción de tales decisiones; toda vez que tratándose del derecho al ambiente, la legitimación corresponde al ser humano como tal, pues la lesión a este derecho fundamental la sufre tanto la comunidad –como un todo-, como el individuo en particular. Por ello, la Administración debe facilitar y fomentar la sensibilidad y la participación de la población poniendo la información a disposición de todos, no sólo de los miembros de la comunidad, sino también de la ciudadanía en general, en tanto en materia ambiental se ha considerado la existencia de un verdadero interés difuso (según se había anotado anteriormente en esta sentencia).” La debida observación de este mandato de informar adecuadamente a la población, ha sido precisado y efectivamente aplicado en la jurisprudencia de la Sala, cuando en sentencia número 2004-13414, de las nueve horas veintinueve minutos del veintiséis de noviembre de dos mil cuatro, estableció que:

“Este Tribunal en anteriores oportunidades se ha referido a la consulta a las comunidades como parte del procedimiento administrativo para la obtención del estudio de impacto ambiental, que es requisito previo al inicio de labores de explotación, en el siguiente sentido:

“IV.- “...Antes de analizar los alegatos de las partes, cabe señalar que el proceso de Evaluación Ambiental de Proyectos tiene por objeto identificar, predecir, interpretar, y comunicar a los interesados preventivamente, el efecto de un proyecto sobre el medio ambiente. Es un procedimiento administrativo de control de proyectos que, apoyado en un estudio técnico sobre las incidencias ambientales de una actividad determinada, denominado Estudio de Impacto Ambiental (documento técnico que debe presentar el promotor o titular del proyecto) y en un trámite de participación pública, permite a la autoridad ambiental competente emitir una declaración de impacto ambiental, rechazando, aprobando o modificando el proyecto. El artículo 17 de la Ley Orgánica del Ambiente impone la obligatoriedad de que la Secretaría Técnica Nacional Ambiental evalúe el impacto ambiental de las actividades humanas que alteren o destruyan elementos del ambiente o generen residuos, materiales tóxicos o peligrosos, previo a que éstas inicien.

La Evaluación Ambiental involucra una serie de fases en las que participan el desarrollador del proyecto, el ente fiscalizador competente (SETENA en el caso de Costa Rica), y la sociedad civil. Inicia con la presentación del Formulario de Evaluación Ambiental Preliminar, documento que debe evaluar el Grupo de Evaluación Preliminar de la Secretaría Técnica Nacional Ambiental. Posteriormente, se determina qué instrumento de evaluación ambiental requiere la actividad, y el desarrollador presenta el documento que debe ser examinado a fin de determinar si se requiere o no información adicional. El desarrollador del proyecto debe rendir una garantía y nombrar un Regente Ambiental, además de dar una declaración de compromisos ambientales. No es sino hasta que se cumplen todas estas etapas que el proyecto obtiene la declaración de viabilidad ambiental por parte de SETENA, por lo que una vez que se ha llevado a cabo todo el proceso es que puede considerarse satisfecho el requerimiento del artículo 17 de la Ley Orgánica del Ambiente.

(sentencia número 2003-04818 de las diez horas con cincuenta y un minutos del treinta de mayo del dos mil tres).- Así las cosas, en este caso, lleva razón el recurrente al acusar que no se ha dado la consulta a las comunidades que pudieran resultar afectadas por el otorgamiento de la concesión de explotación cuestionada. Es claro que la audiencia que se echa de menos, debe en todo caso darse de previo a la aprobación del estudio de impacto ambiental por parte de ese Ministerio del Ambiente y Energía. Para tal efecto la administración debe informar en forma amplia, completa y veraz a las comunidades que se verán afectadas por la exploración y explotación minera en la zona de su actividad.” Esta necesidad de brindar debida participación a la población que de alguna manera pueda verse afectada con la realización de este tipo de proyectos, guarda un fundamento especial en materia de utilización del recurso hídrico, en el sentido que partiendo del reconocimiento del derecho al agua como un derecho fundamental, la Sala ha reconocido que debe declararse la inconformidad constitucional de cualquier medida que por intereses patrimoniales o de otra índole, impidan a una comunidad determinada acceder al agua para la satisfacción de sus necesidades –ver sentencia número 2001-5217, de las diez horas trece minutos del quince de junio de dos mil uno- de forma que toda acción o disposición que impida que una comunidad tenga acceso al agua potable cuando se reúnan las condiciones para ello, debe ser declarada violatoria de los derechos constitucionalmente reconocidos.

XVIII.En definitiva, es claro que el derecho a un ambiente sano y ecológicamente equilibrado otorga una protección especial a la biodiversidad y las aguas subterráneas, razón por la cual y en aplicación del principio precautorio en materia ambiental, las actividades económicas con impacto ambiental deben ser autorizadas cuando exista certeza científica de que ese impacto no implica un riesgo o amenaza al ambiente. Es por esta razón que la administración debe realizar siempre la evaluación ambiental necesaria, la cual debe ser compartida públicamente con la población afectada, para que luego de un análisis riguroso y detallado la administración emita de manera fundamentada la viabilidad ambiental correspondiente. La desatención e inobservancia de estos aspectos definidos normativa y jurisprudencialmente, deviene en la vulneración del referido derecho a un ambiente sano, por lo que las actuaciones administrativas así dispuestas resultan igualmente violatorias de este derecho fundamental.

XIX.El caso concreto. Breve descripción del proyecto minero Crucitas. El complejo del proyecto minero Crucitas está dividido en tres partes: un área de extracción o tajo, un área de relaves y un área administrativa industrial. En el área de extracción se ubica el yacimiento de oro, la cual se divide entre el cerro Botija, de 20 hectáreas, y el cerro Fortuna, de 30 hectáreas. El área administrativa es de 33.8 hectáreas, en la cual se ubica la planta de proceso y una zona de relaves o de disposición de materiales procesados de 143.8 hectáreas. La descripción del proceso de extracción del oro, indica que el mineral extraído de la mina será transportado en camiones articulados hasta el triturador. Del triturador, el mineral es conducido por bandas transportadoras hasta la etapa de molienda donde será demolido y clasificado por tamaño. En esta área, el mineral se muele y se mezcla con agua y cal, se continúa al circuito de lixiviación de oro o disolución del oro en cinco tanques de acero, donde se coloca el material que contienen el mineral con una solución de cianuro y cal hidratada bajo estrictas normas de seguridad; esa pulpa será agitada mecánicamente y fluirá de un estanque a otro por gravedad.

La pulpa llega a siete tanques con carbón activado de cáscara de coco con la capacidad de absorber el oro. Se saca el oro con carbón del circuito y es bombeado a otra zona de procesamiento. Todas las áreas de la planta están metidas en una especie de contenedor acuífero similar a una gran piscina, que es un sistema de contención secundaria que con pisos de concreto detendría cualquier derrame accidental. Para la destrucción del cianuro y recirculación del agua se dispone el siguiente proceso: la pulpa residual del cianuro será enviada a una planta de destrucción de cianuro denominada Cyplus Combinox, cuya tecnología garantiza que los materiales procesados y enviados al área de relaves estén libres de cianuro o se disminuya a niveles mínimos legales. Después de sedimentar los sólidos, el agua del área de relaves será rebombeada a la planta de proceso para que reinicie un nuevo ciclo de producción.

XX.Sobre el proyecto minero Crucitas y su comparación con otros proyectos mineros desarrollados anteriormente en el país. Durante la substanciación del recurso de amparo que ahora se conoce, y de manera concreta durante la realización de la vista celebrada el doce de noviembre de dos mil nueve, las partes recurrentes han señalado su preocupación por la experiencia minera desarrollada en el país en años anteriores, las cuales según su criterio, han sino negativas, nocivas y contraproducentes en materia ambiental, situación por la que plantean la interrogante sobre las garantías que actualmente existen o se ofrecen para evitar que las circunstancias acontecidas se presenten de nuevo en esta otra explotación minera; el argumento de las partes recurrentes se resume en que si ya hubo presuntos desastres anteriores, nada exime que en nuevo proyecto se presenten las mismas circunstancias.

Sobre el particular, observa la Sala que en el denominado “Informe Especial Minería Química a Cielo Abierto: el caso de Las Crucitas”, aprobado por el Consejo Universitario de la Universidad de Costa Rica en mayo de dos mil nueve, se enuncia cuáles son aquellos proyectos mineros y sus negativos impactos. Así, sobre la denominada mina Macacona, se indica que la misma fue la primera mina a cielo abierto que operó en el país hacia la década de los años ochenta del siglo pasado, y que a los nueve años de iniciada su operación hizo abrupto abandono del país, sin dejar indemnización adecuada por los daños causados. En este caso, aprecia la Sala que esta situación se presentó en un momento histórico en el cual el país carecía de la regulación ambiental –normativa e institucional- de la que ahora se dispone, situación que por sí misma determina la imposibilidad de comparación entre proyectos mineros realizados con una diferencia temporal de treinta años entre sí.

XXI.De igual forma, también se menciona en dicho informe la denominada mina Beta Vargas, en Chomes de Puntarenas, la cual el mismo documento señala que operó de manera ilegal durante los años mil novecientos noventa y siete y mil novecientos noventa y ocho, y que luego de funcionar por poco más de un año también cesó sus actividades y a la fecha el proyecto se encuentra abandonado. Así, tampoco resulta comparable esta mina con el actual proyecto minero Crucitas, toda vez que mientras aquel se implementó al margen de toda actividad regulatoria, el proyecto que ahora se conoce está pretendiendo desarrollarse dentro de un marco normativo e institucional que permita acreditar el debido cumplimiento de los requisitos ambientales establecidos.

XXII.Por otra parte, se menciona en este estudio la denominada mina Bellavista, señalada por las partes recurrentes como la experiencia más reciente y evidente de los negativos impactos de la minería a cielo abierto. Sin embargo, tampoco es de recibo el argumento de comparar esta mina con el actual proyecto minero Crucitas, por cuanto según señala el mismo documento, la mina Bellavista se acogió desde el principio al régimen de Zona Franca, lo cual la eximió del pago de impuestos nacionales y locales, situación que no acontece con el proyecto de la empresa recurrida, pues según se verá en el apartado correspondiente, como parte de los beneficios económicos de esta nueva actividad minera se señala justamente el pago de las obligaciones tributarias correspondientes. Asimismo, refiere el documento presuntos impactos negativos -«metales pesados y aguas cianuradas que podrían estar contaminando», «posible taponamiento»- que como tales no están plenamente acreditados aún, lo cual, aunado a la diferencia técnica entre ambos proyectos –los procesos de lixiviación y de destrucción de cianuro son distintos, la disposición del material estéril es diferente (ver descripción comparativa que consta a folio 4541)- implican que tampoco en este caso pueda equipararse una situación con la otra.

La Sala no soslaya que en efecto puede haber consecuencias negativas para el ambiente con motivo de la ejecución de actividades económicas sin la debida regulación y control, pero también reconoce como inviable descartar una actividad determinada partiendo de su comparación con otras actividades que ciertamente no son puntos de referencia. Así, lo que se impone es precisamente determinar si en el caso concreto del proyecto minero que ahora se conoce, se ha cumplido con las previsiones que el Derecho de la Constitución define para la adecuada protección al ambiente.

XXIII.Antecedentes jurídico-materiales del proyecto minero Crucitas. La empresa recurrida inició su etapa de exploración en la zona de Las Crucitas desde el año 1993, año en que le fue otorgada la concesión de exploración. En 1999 presentó el estudio de factibilidad económica, y mediante la resolución de la Secretaría Técnica Nacional Ambiental, números 3638-2005-SETENA de las nueve horas veinticinco minutos del doce de diciembre de dos mil cinco, se aprobó el Estudio de Impacto Ambiental y concedió la Viabilidad Ambiental al Proyecto Minero Crucitas; el seis de diciembre de dos mil siete, la empresa presentó ante SETENA una propuesta de modificación del proyecto minero, aportando al mismo tiempo la Declaración Jurada de Compromisos Ambientales y el Plan de Gestión Ambiental actualizado para cada etapa del proyecto. Así, por resolución número 170-2008-SETENA, de las doce horas cincuenta minutos del cuatro de febrero de dos mil ocho, se aprobó la Modificación del Proyecto Minero Crucitas.

Posteriormente, el veintiuno de abril de dos mil ocho, el Ministerio del Ambiente y Energía, mediante la resolución número 217, de las quince horas del día veintiuno de de abril de dos mil ocho, otorgó a Industrias Infinito S.A. la concesión de explotación minera –más adelante se verá con mayor detalle lo relativo a esta concesión, tramitada bajo el número de expediente 2594 de la Dirección de Geología y Minas-. En virtud de que el proyecto minero Las Crucitas está destinado a desarrollarse en un terreno cuya naturaleza es de bosque, resultaba necesaria la declaratoria previa de conveniencia nacional por parte del Poder Ejecutivo que autorizara el cambio de uso de suelo del terreno, por lo que el veintiuno de mayo de dos mil ocho la empresa recurrida solicitó al Sistema Nacional de Áreas de Conservación el permiso para el cambio de uso de suelo, solicitud que fue tramitada mediante el expediente AH-O1-PM-003 2008, dentro del cual se le solicitaron los requisitos correspondientes, particularmente la declaratoria de conveniencia nacional por parte del Poder Ejecutivo.

El decreto de conveniencia nacional es un procedimiento de excepción previsto en la Ley Forestal y adoptado por el Poder Ejecutivo con plena certeza de los impactos y la validez de las medidas de compensación que sean propuestas. En el caso concreto, mediante el Decreto Ejecutivo número 34801-MINAET, de las trece horas del trece de octubre de dos mil ocho, emitido por el Presidente de la República de Costa Rica y el Ministro del Ambiente, Energía y Telecomunicaciones, se declaró de interés público y conveniencia nacional el Proyecto Minero Crucitas desarrollado por la empresa Industrias Infinito S.A. De conformidad con el artículo 2 de dicho Decreto, la empresa desarrolladora, previa autorización de la oficina correspondiente del Sistema Nacional de Áreas de Conservación, podrá proceder a la corta de árboles –incluso de las especies que estén vedadas- y al desarrollo de las obras de infraestructura en áreas de protección, según se indica en el proyecto.

Sin embargo, en el artículo 3 se indica que la empresa desarrolladora deberá cumplir con cada una de las medidas de compensación previstas en el Considerando IX. Además, para el seguimiento y control de lo anterior, deberá rendir un informe a la oficina correspondiente del Sistema Nacional de Áreas de Conservación, la que por su parte certificará el cumplimiento. Lo anterior fundamentado normativamente en los artículos 11, 140 incisos 3) y 18) y 146 de la Constitución Política, el numeral 27 de la Ley General de la Administración Pública, los artículos 3 inciso m), 19 inciso b), 33 y 34 de la Ley Forestal y el artículo 2 del Decreto Ejecutivo 25721-MINAE, de diecisiete de octubre de mil novecientos noventa y seis. Asimismo, el Decreto sustenta su declaratoria en que la empresa recurrida cuenta según el Registro Nacional Minero de la Dirección de Geología y Minas, con el otorgamiento de la concesión de explotación minera dado por el Ministerio del Ambiente y Energía mediante la referida resolución número 217; con el otorgamiento por parte de la Secretaría Técnica Nacional Ambiental –SETENA- de la viabilidad ambiental al Proyecto Minero Crucitas, mediante resolución número 3638-2005-SETENA, de las nueve horas veinticinco minutos del doce de diciembre de dos mil cinco; a la cual posteriormente SETENA aprobó modificaciones al Proyecto mediante resolución número 170-2008-SETENA, de las doce horas cincuenta minutos del cuatro de febrero de dos mil ocho; y tomando en consideración que el proyecto minero Crucitas traerá varios beneficios económicos a la comunidad de San Carlos y el gobierno central.

XXIV.Sobre la realización del Estudio de Impacto Ambiental para el proyecto minero Crucitas. El veinticuatro de enero de dos mil, la Secretaría Técnica Nacional Ambiental recibió de parte de la Dirección de Geología y Minas el expediente minero número 2594, con la indicación de que se realizara el respectivo Estudio de Impacto Ambiental. Ante ello, SETENA, mediante resolución número 486-2000-SETENA, de trece de junio del mismo año, informó a la Dirección de Geología y Minas que para atender esa solicitud requería la presentación de un Estudio de Impacto Ambiental, por lo que a partir de entonces se evidencia que dio inició el proceso de elaboración de dicho estudio. Así, mediante resolución número 119-2005-SETENA, de diecisiete de enero de dos mil cinco, SETENA requirió a la empresa recurrida la presentación de un anexo al Estudio de Impacto Ambiental bajo consideración, lo cual se cumplió el veintiséis de abril de dos mil cinco y, en consecuencia, se solicitó a la empresa el cumplimiento de otra serie de requisitos como el depósito de la garantía ambiental, el nombramiento de un regente ambiental y la Declaración Jurada de Compromisos Ambientales, entre otros, requerimientos cuyo cumplimiento la empresa informó a SETENA el treinta de setiembre de dos mil cinco.

Así, mediante resolución número 3638-2005-SETENA, de doce de diciembre de dos mil cinco, se aprueba el Estudio de Impacto Ambiental y el Anexo presentado por la empresa recurrida, al mismo tiempo que se define una garantía ambiental de seiscientos mil dólares estadounidenses que deberá actualizarse año con año contemplando el número de hectáreas que se vaya a intervenir en cada período –por ejemplo, este primer monto fijado de seiscientos mil dólares estadounidenses se fijó en esa fecha con una vigencia hasta el dieciocho de junio de dos mil ocho-. De tal forma, es claro que sí existe un Estudio de Impacto Ambiental aprobado por la autoridad administrativa competente, y en el cual se fijó una garantía ambiental actualizable anualmente de conformidad con el área impactada año con año. Así, acreditándose la existencia de este estudio, lo que corresponde es determinar el ámbito de su cobertura de acuerdo a las violaciones aducidas por los recurrentes.

XXV.Detalle cronológico de la realización y aprobación del Estudio de Impacto Ambiental del proyecto minero Crucitas. De conformidad con los artículos 3, 24 inciso ch), 101 y 102 del Código de Minería, así como del Anexo primero del Decreto Ejecutivo No.31849-MINAE-S-MOPT-MAG-MEIC, todo permiso de exploración o concesión de explotación minera requiere de la elaboración previa de un estudio de impacto ambiental. Según consta en autos -ver folio 1318 del tomo IV del expediente administrativo No. AH01-PM-03-08-, tal como se ha indicado en el considerando precedente, el veinticuatro de enero de dos mil, la Dirección General de Geología y Minas remitió a SETENA una solicitud de revisión de lo que debía contener el estudio de impacto ambiental requerido para el Proyecto Minero Crucitas. En atención a esta gestión, SETENA emitió la resolución No. 486-2000-SETENA de trece de junio de dos mil, indicando que la presentación del mismo debía ajustarse a los términos de referencia ahí expuestos, lo cual le fue notificado también a la empresa desarrolladora el veintiuno de junio de dos mil.

Dicho estudio fue presentado por la empresa recurrida ante SETENA el día doce de marzo de dos mil dos -ver primer folio del Estudio de Impacto Ambiental-. De conformidad con la fecha de realización del Estudio, el mismo se hizo en atención a la resolución No. 486-2000-SETENA de trece de junio del dos mil y al Manual de Instrumentos Técnicos de Evaluación Impacto Ambiental de mil novecientos noventa y siete, que fue derogado posteriormente por el artículo 12 del decreto ejecutivo No. 32712 de diecinueve de julio de dos mil cinco. Las pautas establecidas para el Estudio de Impacto Ambiental de ese entonces, según el artículo 8.3, eran:

“i. Identificación de los impactos y riesgos: elaboración de un diagnóstico preliminar de las condiciones ambientales de la zona escogida e identificación inicial de los impactos y riesgos ambientales potenciales y su relación causal con las actividades propias del proyecto, obra o actividad a realizar. Se hace la primera identificación de posibles costos y beneficios.

ii. Selección de las prioridades de estudio: dadas las características del proyecto, obra o actividad (tamaño, localización, procesos, etc.) y las condiciones ambientales de la zona, se determinan cuales son los aspectos fundamentales que deben ser estudiados más detalladamente.

iii. Descripción del estado inicial del sitio o diagnóstico: se realiza un diagnóstico más detallado (biofísico, social y económico) del área de influencia del proyecto, obra o actividad.

iv. Selección de variables: Se escogen las variables (biológicas, químicas, físicas, sociales, y económicas) que servirán para sistematizar la información acerca del proyecto, obra o actividad a realizar y sus impactos ambientales potenciales. Además, se realiza la estimación de los costos y beneficios ambientales que servirán para realizar la evaluación económica del proyecto, obra o actividad.

v. Predicción de los impactos potenciales: se determina la intensidad de los impactos y riesgos ambientales a través de la predicción de los valores futuros de las variables de referencia.

vi. Tipificación de los impactos y riesgos ambientales: se definen las características de los impactos potenciales de acuerdo, entre otras características, con la duración del impacto, periodicidad, extensión, proximidad de la fuente, reversibilidad, y probabilidad de ocurrencia vii. Elaboración de un Plan o Sistema de Gestión Ambiental: se determinan alternativas que permitan cambiar los impactos negativos a otros de menos magnitud o más favorables. Se hace el cálculo de las inversiones necesarias para la implantación de las medidas preventivas, mitigantes o compensatorias de los impactos y riesgos ambientales, y de los beneficios económicos y sociales que generan. Se incluye en este un subplan de Regencia Ambiental que desarrolla el grupo de acciones para la incorporación de las medidas preventivas, mitigantes o compensatorias dentro del proceso de implantación y operación del proyecto, obra o actividad, asignando las responsabilidades correspondientes de ejecución y evaluación del plan.” Se utilizaba un formato creado por SETENA que se denominaba OCE -Orientador Conceptual para la Elaboración de EsIA- y, según el artículo 10.2, los impactos debían ser valorados por la matriz de importancia de impactos ambientales –MIIA-.

El estudio aportado en aquella oportunidad incluyó un resumen ejecutivo, una introducción referida básicamente a los alcances del estudio físico-biótico, estudio socioeconómico, de evaluación arqueológica, objetivos, metodología, duración e instrumentalización. Asimismo, un capítulo de información general -sobre la persona jurídica, el equipo profesional que lo elaboró y los términos de referencia del EsIA realizado-, un capítulo de descripción del proyecto que abarca la ubicación geográfica, ubicación político-administrativa, resumen del proyecto, legislación aplicada, área estimada del proyecto y área de influencia, fases de desarrollo, actividades a realizar en cada fase, tiempo de ejecución, flujograma de actividades –procesos- que incluye transporte, reducción de tamaño y concentración gravimétrica, lixiviación y adsorción en circuito CIP, deserción del oro del carbón, lavado ácido y recuperación del carbón, electrodepositación y función, destrucción del cianuro, manejo de relaves y reciclaje de agua; infraestructura a desarrollar, equipo a utilizar en cada fase, necesidades de recursos durante la operación, disposición de desechos en cada fase, sistema de manejo ambiental, salud y seguridad -Plan de protección ambiental, Plan de respuesta ante emergencias, Plan de salud y seguridad ocupacional, Plan de impactos y beneficios comunales, Plan de manejo de Aguas, Plan de Manejo de Colas, Plan de Cierre y Recuperación-, contingencias -accidentes, malfuncionamiento y eventos no planeados como ruptura de represa de relaves, ruptura de tuberías, incendios, derrame de materiales peligrosos, accidentes públicos, accidentes laborales, descubrimiento de recurso arqueológico-, concordancia con el plan del uso de la tierra, análisis financiero y ajuste económico preliminar -Estudio Financiero-, descripción del ambiente físico -formaciones geológicas regionales, unidades geológicas locales, análisis estructural y evaluación, caracterización geotécnica, mapa geológico del área del proyecto y del área de influencia indirecta, evaluación de potencial drenaje ácido en saprofita, geomorfología, caracterización de suelos, clima, hidrografía, calidad del aire (ruido), amenazas naturales (sísmica: fuentes, historia, períodos de recurrencia, modelo de sismicidad, máxima duración probable de la sacudida sísmica, aclaración máxima; movimientos en masa, erosión, inundaciones, mapa de susceptibilidad)-; descripción del ambiente biológico -flora, unidades vegetales, pastos con árboles dispersos, charral, crecimiento secundario, bosque intervenido, plantación forestal, especies amenazadas, endémicas o en peligro de extinción, especies indicadoras, fauna, ecosistemas frágiles; descripción del ambiente socioeconómico -uso de la tierra, características de la población, empleo, tenencia de la tierra, seguridad vial, servicios básicos y de emergencia disponibles, percepción local sobre el proyecto, infraestructura comunal, sitios históricos, culturales, sitios arqueológicos, paisaje; diagnóstico ambiental (medio físico, biótico y socioeconómico), evaluación de impactos (aspectos metodológicos, actividades del proyecto y Contingencias), identificación de componentes ambientales valorados (CAV´s), matriz de interacción, criterios para valoración de impactos (cuantitativos y cualitativos), Impactos Ambientales en las Fases de desarrollo del proyecto sobre el Medio Físico y biótico (en el aire, agua, suelo, ecosistemas acuáticos y terrestres, en Especies en estado especial de conservación); Impactos Ambientales en fases de desarrollo del proyecto sobre el medio socioeconómico (uso del suelo, infraestructura comunal, servicios comunales, calidad de vida, empleo, economía local); Impactos ambientales por contingencias sobre el medio físico y biótico y sobre el medio socioeconómico, Medidas de Mitigación y/o Compensación, Plan de Gestión Ambiental (incluye costos), Equipo profesional que elaboró el EsIA, Referencias y Apéndices.

XXVI.Mediante resolución Nº 272-2003-SETENA, de once de marzo de dos mil tres, SETENA comunicó a la empresa recurrida que en sesión ordinaria Nº 008-2003, de veinticinco de febrero de dos mil tres, se acordó en el artículo 38 no otorgar la viabilidad ambiental al proyecto, dado que el Estudio de Impacto Ambiental no cumplía con los objetivos del mismo y se dispuso archivar el expediente. El catorce de marzo de dos mil tres, la empresa recurrida presentó un Incidente de Nulidad, recurso de revocatoria y subsidiariamente de apelación, contra la resolución Nº 272-2003-SETENA, y por resolución Nº 811-2003-SETENA, de las catorce horas veinte minutos del siete de julio de dos mil tres, la Comisión Plenaria de la Secretaría procedió a rechazar el recurso de revocatoria y el incidente de nulidad. Posteriormente, en resolución Nº R-569-2003-MINAE, de las nueve horas treinta minutos del veinte de octubre de dos mil tres, el Ministro declaró con lugar el incidente de nulidad y el recurso de apelación en subsidio interpuesto por Industrias Infinito S.A., ordenando a la Secretaría Técnica Nacional Ambiental retrotraer el expediente administrativo al momento en que se presentó ante SETENA el Estudio de Impacto Ambiental.

XXVII.Así, el diecinueve de febrero de dos mil cuatro se publicó en el Periódico Al Día la lista de Estudios de Impacto Ambiental que se encontraban en esa Secretaría para su respectivo análisis, incluyendo en la lista al Proyecto Minero Crucitas, Expediente 129-2000-SETENA, otorgando un plazo de diez días para que cualquier interesado hiciera llegar sus observaciones técnicas en forma escrita, y se puso a disposición dicho estudio en el Área de Conservación y en la Municipalidad respectiva. Los días veintinueve y treinta de abril de dos mil cuatro, los miembros de la Comisión Plenaria realizaron una gira al Proyecto en cuestión, y el dieciséis de junio del mismo año se recibió en tiempo una oposición por parte de los señores Elí Roque Salas Herrera y la señora Blanca Lidia Vargas Monzón. Por resolución Nº 831-2004-SETENA, de las diez horas cincuenta y cinco minutos del dos de junio de dos mil cuatro, la Comisión Plenaria de esa Secretaria, en Sesión Ordinaria Nº 018-2004, celebrada el veinticuatro de mayo de dos mil cuatro, en el artículo 68 acordó realizar el proceso de Audiencia Pública para el proyecto Minero Crucitas, la cual se programó para el treinta y uno de julio de ese mismo año en el Salón Comunal de COOPEVEGA.

El veinticuatro de junio del año dos mil cuatro SETENA recibió nota por parte de los señores Sara Obando Cantón y el señor Elí Roque Salas en la cual solicitaban el traslado de la fecha de dicha audiencia, por considerar que el Frente de oposición a la Minería tenía poco tiempo para dar lectura y revisar el estudio de impacto ambiental; esta solicitud fue denegada mediante oficio SG-2271-2004-SETENA, de primero de julio de dos mil cuatro, aclarando que la fecha de la convocatoria no podía ser trasladada ya que se había venido realizando un trabajo de planeamiento y una serie de actividades de divulgación que hacían difícil dicho cambio. Se indicó además que dicho expediente corresponde al presentado aproximadamente hacía dos años, por lo cual el estudio ya era de conocimiento público. El cinco de julio de dos mil cuatro se publicó en el diario Oficial La Gaceta la resolución de Convocatoria a Audiencia Pública, y el nueve de julio del mismo año se publicó en los periódicos El Norte, Al Día, Diario Extra y La República.

Además, se realizaron emisiones radiales y de televisión en la Zona Norte, con la finalidad de ampliar la participación ciudadana. Como parte del proceso de información y divulgación por parte de la empresa desarrolladora, el diecinueve de julio de dos mil cuatro se celebró en la Universidad Latina una exposición relacionada con el manejo de cianuro en la extracción de oro, el proceso INCO SO/2, la utilización y transporte del cianuro. Finalmente, el treinta y uno de julio de ese año se llevó a cabo la Audiencia Pública, tal como se referirá en detalle más adelante.

XXVIII.Sobre la participación de la sociedad civil en relación con el Estudio de Impacto Ambiental del proyecto minero Crucitas. De conformidad con lo dicho en considerandos precedentes, de previo a la aprobación de un Estudio de Impacto Ambiental, debe permitirse y contarse con la participación de la comunidad, participación que trasciende la simple información de la actividad y los resultados del estudio, hacia la generación de un diálogo efectivo con la sociedad, de manera que se reciban sus insumos, se evacuen sus consultas y se les dé una efectiva e igualitaria participación. Según lo indicado, en el caso del proyecto minero Crucitas, a través de una publicación en un periódico de alcance nacional, el diecinueve de febrero se comunica al público que se había presentado ante la Secretaría Técnica Nacional Ambiental el respectivo Estudio de Impacto Ambiental del proyecto minero Crucitas; el veintiséis de mayo de dos mil cuatro se comunicó a todos los apersonados al expediente 129-2002-SETENA que el Estudio de Impacto Ambiental se encontraba a disposición del público, y mediante resolución número 831-2004-SETENA, de dos de junio de dos mil cuatro, se convoca a una audiencia pública para conocer el Estudio, convocatoria que se difundió en distintos medios de comunicación nacionales y regionales.

Así, el treinta y uno de julio de dos mil cuatro se realizó la audiencia pública en el Salón Comunal de Coopevega de Cutris, Esta audiencia tuvo una duración de once horas y en ella participaron los miembros de la Comisión Plenaria de SETENA –conformada por un representante de las universidades estatales, del Instituto Costarricense de Electricidad, del Ministerio de Agricultura y Ganadería, y la propia SETENA-. Se indica que en esta actividad participaron mil ciento treinta y cinco personas, al punto que más de un centenar de personas debieron seguir la audiencia fuera del salón mediante un sistema de audio y video, y se asegura que al menos unas ciento cincuenta personas participantes manifestaron su oposición al proyecto minero. Se informa que la presentación del Estudio de Impacto Ambiental se realizó en un espacio de cuarenta y cinco minutos; se dio la participación de la Municipalidad de San Carlos durante quince minutos, y se otorgó treinta minutos a quienes se oponían al proyecto.

Posteriormente se realizaron ciento nueve preguntas, las cuales fueron contestadas por la empresa recurrida. Más adelante se promovió la participación de aproximadamente cien personas para la formulación de comentarios –no preguntas-, y finalmente, treinta minutos más para que la empresa se refiriera a los criterios planteados. El veinte de agosto siguiente, la empresa desarrolladora aportó a SETENA la trascripción impresa y digital de la audiencia pública, así como un video De tal forma, es claro que durante la tramitación del Estudio de Impacto Ambiental del proyecto minero Crucitas, el mismo sí fue debidamente socializado entre la comunidad, con lo cual se tiene por acreditado el mandato de informar y sostener un diálogo sobre el contenido y alcance de la actividad que se pretende desarrollar, y con ello, el respeto a la normativa que así lo dispone.

XXIX.Sobre la continuidad de la tramitación y la aprobación del Estudio de Impacto Ambiental del proyecto minero Crucitas. Así, mediante resolución 119-2005-SETENA, de las ocho horas del diecisiete de enero de dos mil cinco, se previno a la empresa que a efecto de continuar con el proceso de evaluación de impacto ambiental, debía presentar un anexo en un plazo máximo de 6 meses, el cual contuviera los siguientes elementos:

“ANÁLISIS TÉCNICO Y LEGAL 1. OBSERVACIONES LEGALES:

<![if !supportLists]>1.1 <![endif]>Aportar certificación actualizada de la personería jurídica del desarrollador.

<![if !supportLists]>1.2 <![endif]>Aportar los planos catastrados debidamente certificados por el Registro de la Propiedad o Notario Público, de los inmuebles en los cuales se va a desarrollar el proyecto.

<![if !supportLists]>1.3 <![endif]>Aportar certificaciones de la Propiedad, en la que se llevará a cabo el proyecto. Si las propiedades no se encuentran a nombre del desarrollador deberá aportar las respectivas autorizaciones con las firmas debidamente autenticadas, para llevar a cabo dicho proyecto.

<![if !supportLists]>1.4 <![endif]>Analizar e interpretar la situación jurídica del proyecto con respecto a los Convenios Internacionales ratificados con Costa Rica.

2-OBSERVACIONES TÉCNICAS:

2.1 ASPECTOS GEOLÓGICOS:

2.1.1 Anotaciones a nivel de formulación de EsIA Proyecto Minero Crucitas <![if !supportLists]>· <![endif]>A nivel de formulación los planes de mitigación, prevención, emergencias y en general todos los planes de implementación para la etapa constructiva y operativa se encuentran definidos de manera genética. Dada la magnitud de la obra y la ejecución en fases del mismo, se debe contar, a nivel de esta Secretaría, con dichos planes de manera concreta y detallada, referida a los primeros años de la construcción y operación del proyecto.

2.1.2 A nivel de redacción y contenido del EsIA se obtiene lo siguiente:

<![if !supportLists]>· <![endif]>El estudio detallado de diseño presentado como un anexo se presentó en idioma inglés por lo tanto, no ha sido ni analizado, ni se puede utilizar como información para la toma de decisión.

<![if !supportLists]>· <![endif]>Lo presentado dentro del EsIA para el análisis de la estabilidad de la presa relaves es relativo al comportamiento de diseño para condiciones estratégicas y dinámicas. No se analizan los efectos de agentes erosivos como el agua dentro de la estabilidad de la misma, dado que la zona presenta altas precipitaciones debe de indicarse y analizarse otras fuentes de desestabilización propias de las inclemencias y otros riesgos asociados.

<![if !supportLists]>· <![endif]>Tampoco se detallan los sitios de préstamos de material para la presa de relaves ni su evaluación ambiental. Por tanto, esto debe ser debidamente detallado en el Anexo.

<![if !supportLists]>· <![endif]>Aunque se indica en las páginas 153-154, las medidas de mitigación ante una posible ruptura de la presa de relaves, como son la contención o reducción de la extensión de la migración de los sólidos aguas abajo no se especifica cómo se lograría este punto sin el desarrollo de represas adicionales aguas abajo, su ubicación, diseño, etapa de construcción, sitios de préstamos, y en general toda la evaluación de eficiencia-eficacia de las mismas, así como la evaluación ambiental de las mismas. Por tanto, esto debe ser debidamente explicado en el Anexo.

<![if !supportLists]>· <![endif]>No se ubica ni se especifican las modificaciones que sufrirá el relleno sanitario propio con el inicio de la fase de construcción y la operación de la mina.

<![if !supportLists]>· <![endif]>Aunque se establece una manera satisfactoria la eventualidad de la ruptura de las tuberías de lodos que se dirigen a la represa de relaves, no se indica, describe ni analiza, la tubería que transporta lodos desde las parcelas de explotación y su posibilidad de ruptura con el análisis de planes de contingencia o emergencia. Por tanto, esto debe ser debidamente explicado en el Anexo.

<![if !supportLists]>· <![endif]>Existen datos contradictorios en la generación de drenaje ácido de minas; por lo tanto no queda claro si se generará drenaje ácido de mina y, si es del caso, que medidas de mitigación, prevención o compensación se tomarán <![if !supportLists]>· <![endif]> Los datos de precipitaciones aportados dentro del EsIA como dato para diseño son de 450 mm/mes pero los datos de la estación Crucitas, mientras estuvo activa, indica valores muy superiores dejando la impresión de que se está efectuando una sub-valoración de un factor primordial al establecer los diseños y factores de seguridad de la obra, por tanto se deberá indicar claramente los datos utilizados en el diseño y si es del caso modificar los mismos para incluir las condiciones extremas detectadas por la estación Crucitas.

<![if !supportLists]>· <![endif]>No hay definición de la topografía final del tajo o del patio de lamas. Por tanto esto debe ser debidamente explicado en el Anexo.

<![if !supportLists]>· <![endif]>El análisis sísmico efectuado y aportado dentro del EsIA define un período de retorno para la aceleración pico de 50 años. El Código Sísmico (2002) define el período de retorno para la aceleración pico de 500 años y especifica que construcciones más complicadas como puentes o represas deben realizar estudios complementarios o específicos, por lo tanto se deberá realizar un nuevo análisis de amenaza sísmica ajustado a un parámetro acorde al tipo de obra en cuestión, adicionalmente se deberá elaborar un estudio de respuesta de suelo para conocer los períodos de predominancia, factores de amplificación, (espectros de respuesta) con lo cual conocer la resonancia del suelo ante eventos sísmicos y tener un análisis de amenaza sísmica ajustado a la magnitud de la obra a realizar.

<![if !supportLists]>· <![endif]>Aunque se incluye como un elemento de la obra, la planta de generación eléctrica, ésta no es evaluada ambientalmente, ni incluida dentro de los planes de mitigación, prevención o de emergencia, así como en los controles de monitoreos propuestos. Este particular deberá ser subsanado adecuadamente.

De los informes preexistentes se pueden señalar las siguientes deficiencias:

<![if !supportLists]>· <![endif]>Respecto de las áreas de influencia directa e indirecta, deben ser explicados los criterios mediante los cuales se definieron dichas áreas, ya que, corresponde al equipo consultor definir, de acuerdo con la naturaleza del proyecto, si el AID es de 500 m o es mayor o incluso menor. Se debe considerar que un proyecto de estas características, implica actividades tales como el transporte de sustancias peligrosas, implementación de lagunas de relaves, transporte de productos dentro y fuera del área, entre otros. Por otra parte, la lámina 5.4 que corresponde al Mapa de Areas de influencia debe incluir los elementos mencionados en el cuadro dentro de la página 60, como son: Quebrada Tamagá (mina), hasta la confluencia con la Quebrada Chamorro, la Microcuenca de la Quebrada Descubrimiento hasta la confluencia con el Caño Crucitas y las comunidades de Crucitas, Chamorro, Moravia, El Roble, Coopevega del distrito Cutris y las comunidades de Jocote y Llano Verde, debido a que estos elementos marcan los límites de las áreas de influencia definidas.

<![if !supportLists]>· <![endif]>De la página 384 a la página 388, se resumen en un cuadro las medidas de mitigación y compensación, sin embargo, éste no es práctico para realizar el análisis e induce a confusión al analista, de manera que se debe hacer un análisis conjunto de los factores ambientales y sus interrelaciones, el impacto producido y las medidas de mitigación propuestas.

2.2 ASPECTO BIOLÓGICO:

El análisis del ambiente biológico se basa en listas taxativas a partir de referencias bibliográficas de 1966. El análisis carece de un estudio de campo consistente. Los impactos que se anticipan se propone mitigarlos mediante propuestas muy genéricas.

Así mismo se presentan algunas medidas compensatorias y se propone la recuperación de los terrenos afectados mediante regeneración natural y/o mediante plantaciones forestales. No se contemplaron aspectos como territorios de especies existentes (sobre todo de especies en peligro como felinos, monos y aves como lapas etc) ni se incluyeron en las listas presentadas las especies no leñosas con lo que se hace imposible analizar realmente el ecosistema de manera integral.

Por el tipo de proyecto y las diferentes comunidades bióticas existentes en el área del proyecto es necesario realizar un estudio biológico sistémico que responda satisfactoriamente a lo señalado anteriormente y que garantice, con cierto grado de certeza, la no afectación de especies, en particular, aquellas con algún grado de protección especial (endémicas, en peligro etc.) y la recuperación efectiva de las comunidades bióticas que necesariamente deberán ser afectadas. Por lo anteriormente señalado se deberá reforzar la información existente mediante estudios específicos de campo según las siguientes directrices:

<![if !supportLists]>· <![endif]>Realizar un inventario exhaustivo de la fauna y la flora existentes en el área a ser afectada por el proyecto. (dentro de la flora deben incluir las plantas no leñosas) <![if !supportLists]>· <![endif]>Realizar un muestreo significativo de las zonas aledañas al área del proyecto. Para lo anterior deberá delimitar un Area de influencia indirecta del proyecto, según sean las especies de fauna y sus requerimientos de hábitat (extensión) que se encuentren o utilicen en Area del proyecto (AP).

<![if !supportLists]>· <![endif]>Realizar un estudio significativo del estado de las poblaciones (flora y fauna) de las especies que estén con algún grado de protección (en peligro, amenazadas, endémicas etc) en el AP.

<![if !supportLists]>· <![endif]>Dado que el Area del Proyecto es utilizada por alguna (s) especie (s) de felino (s), según lo afirmado por el Biólogo Manuel Mora en la Audiencia Pública realizada, que las especies de felinos poseen un territorio considerablemente extenso, que dichas especies se encuentran bajo algún grado de protección por ser especies en peligro, que dichas especies serán afectadas (directa o indirectamente) por el proyecto: Realizar un estudio exhaustivo de dichas especies en el Area del Proyecto, realizar un estudio que refleje, con cierto grado de certeza, cómo se afectarán las poblaciones existentes de felinos en el área de influencia indirecta ya que los felinos que utilicen el AP se deberán desplazar a sitios aledaños y demarcar nuevos territorios, con lo que otros individuos de esta y otra especie se podrán ver afectados por la nueva competencia. Realizar un estudio de hábitats alternativos según sea la duración del proyecto y la recuperación efectiva del hábitat existente (deberá tomarse en cuenta que muchas especies no utilizarán el hábitat restaurado hasta tanto el ruido, la presencia, humana etc, sean adecuados o inexistentes) <![if !supportLists]>· <![endif]>Realizar lo mismo que se estipula en el punto anterior, para todas aquellas especies que se indique en el AP y que posean territorios lo suficientemente grandes (monos, lapas, etc.) como para afectar las poblaciones existentes en el Area de influencia indirecta incluir aspectos relacionados con las mitigaciones en relación con los hábitos alimenticios y reproductivos <![if !supportLists]>· <![endif]>Plantear medidas de recuperación (en forma de un compromiso específico) del área que se afectara por la extracción de metales u otras actividades de proyecto de modo que: se restaure o mejore el hábitat existente en la actualidad. En este punto el compromiso y las medidas a aplicar deberán ser muy específicas para RECUPERAR EL HABITAT Y NO PARA SUSTITUIRLO POR ECOSISTEMAS FORESTALES U OTROS.

<![if !supportLists]>· <![endif]>Del mismo modo, realizar un estudio de las posibilidades de organismos acuáticos que se podrían ver afectadas o indirectamente por el proyecto. Incluir en este ítem el concepto de “Afectación Potencial”, por tanto, no bastará afirmar que no se afectarán dichos cursos de agua.

<![if !supportLists]>· <![endif]>Justificar científicamente y de manera detallada el por qué esta zona puede o no ser deforestada y luego recuperarse de manera efectiva. (No hacer referencia a aspectos socioeconómicos, ni legales en este ítem) 2.3- ASPECTO FORESTAL:

<![if !supportLists]>1. <![endif]>Areas a invertir De acuerdo al cuadro siguiente, se requiere intervenir parcial o totalmente, áreas boscosas con una extensión aproximada a las 225.27 hectáreas. Los sitios más intervenidos serán los conocidos como Cerro Fortuna (60 hectáreas), Cerro Botija (45 hectáreas), área de relaves (113.4 hectáreas) y área de embalse (7.48 hectáreas).

Sector Area a intervenir en Hectáreas Observaciones Relaves 113.4 Bosque natural e intervenido Embalse 7.48 Bosque natural sin intervención Extracción 103.81 Incluido Cerros Botija y Fortuna compuestos por bosques intervenidos Estanques de Clarificación 1.03 Planta 0.00 Edificaciones 0.23 Depósito temporal de materia orgánica V suelo 0.35 TOTAL 225.27 <![if !supportLists]>2. <![endif]>Los Cerros Botija y Fortuna muestran un tipo de bosque con indicaciones claras de que fueron sometidos a una fuerte extracción de madera hace unos 15 o 20 años atrás. Esta situación se evidencia por la poca presencia de árboles comerciales mayores a 60 cm DAP y la observación de varios troncos de árboles cortados, especialmente de especies como caobilla, pilón y otras.

<![if !supportLists]>3. <![endif]>El Estudio de Impacto Ambiental es omiso en cuanto a los datos exactos de la estructura, datos volumétricos y composición florística de los bosques que serán intervenidos o eliminados. Por otra parte, en el estudio se indica que se trata de bosques de crecimiento secundario y bosques intervenidos, sin que se aporten datos científicos que permitan estratificar adecuadamente las zonas a las que se aplicará una eliminación temporal de la cobertura forestal y de aquellas con un efectivo cambio de uso. Esto requiere una ampliación de los estudios de campo que impliquen la estratificación normal para áreas sin intervenir e intervenidas en los bosques AP.

<![if !supportLists]>4. <![endif]>Se debe solicitar a la empresa la realización de estudios más profundos de la cobertura forestal del área, con una secuencia como la que se indica a continuación:

<![if !supportLists]>a. <![endif]>Realización de un mapa de zonificación de las áreas a intervenir a fin de identificar claramente las áreas de repastos, repastos arbolados, zonas de reforestación, charrales y bosques. Para el caso de los bosques se debe realizar una estratificación de los mismos a fin de diferenciar cuando se trata de bosques primarios, secundarios e intervenidos.

<![if !supportLists]>b. <![endif]>Para el caso de los repastos arbolados y charrales a intervenir, debe realizarse un inventario pie a pie a fin de conocer el número de árboles a cortar por especie y el volumen en m3 de madera rolliza que deberá ser eliminada de este tipo de cobertura.

<![if !supportLists]>c. <![endif]>Para el caso de las áreas de bosques debidamente estratificadas, debe realizarse primeramente un muestreo preliminar con una intensidad de muestreo no menor al 5%. Este muestreo nos dará información clara del número de árboles/ha, el volumen/ha, el área basal de estrato en estudio, la distribución diamétrica por especie y la composición florística de la masa forestal.

<![if !supportLists]>d. <![endif]>Con los datos obtenidos, los profesionales forestales podrán clasificar los tipos de bosque a intervenir o eliminar, debido a que la Administración Forestal del Estado ya cuenta con parámetros que permiten realizar esta diferenciación.

Por otra parte, la composición florística obtenida nos permitirá conocer si en el área de corta existen especies de flora amenazadas o en peligro de extinción, para lo cual deberán plantearse recomendaciones específicas para la protección y reproducción de las mismas.

<![if !supportLists]>e. <![endif]>Los diferentes tipos de bosque identificados (primarios, secundarios o intervenidos), debidamente ubicados en un mapa a escala adecuada, que necesariamente requieran ser eliminados, deberán ser sometidos a un inventario forestal total (Pie a pie) a partir de 30 cm DAP o bien el Diámetro Mínimo de corta que se señale el Area de conservación correspondiente del MINAE. Lo anterior debido a que las eventuales autorizaciones de corta o permisos oficiales están basados en especies, número de árboles y volumen total en metros cúbicos de madera rolliza.

<![if !supportLists]>f. <![endif]>Los datos volumétricos obtenidos para la composición florística, serán básicos para los programas de recuperación que deberán aplicarse en términos de áreas especies. En los diferentes foros que se han realizado sobre el proyecto, se dice que se reforestarán 336 hectáreas como medida compensatoria, sin embargo esta cifra puede ser suficiente o insuficiente, hasta tanto no se tengan datos claros del volumen de la masa forestal afectada.

<![if !supportLists]>g. <![endif]>El inventario forestal debe hacerse de tal manera que se tengan datos exactos de número de árboles a cortar por especie y su volumen en m3, para cada uno de los cuarteles anuales de intervención (21 hectáreas), lo anterior debido a que posiblemente las autorizaciones oficiales de corta podrían ser anuales.

<![if !supportLists]>5. <![endif]>Debe tenerse presente que la eliminación de algunas áreas de bosque por el proyecto representaría un cambio de uso del suelo. Sin embargo en otras, está programado que al empezar la extracción del próximo bloque de 21 hectáreas, se estaría avanzando con la recuperación técnicamente controlada y aprobada, del bloque anterior. Por lo anterior, la empresa, con los datos de los muestreos, inventarios forestales y composición florística obtenida, debe aportar un plan de manejo forestal que garantice una adecuada recuperación de las áreas a intervenir, en términos de volumen y representación de las especies forestales presentes en el AP, así como las medidas compensatorias para aquellas áreas que impliquen un cambio de uso permanente.

2.4-ASPECTO SOCIAL:

Con relación a las medidas de mitigación propuestas en la página 380, en general se presentan como una lista descriptiva y no necesariamente como acciones correctivas concretas para mitigar los impactos:

<![if !supportLists]>2.4.1 <![endif]>Se menciona en el número 34 que se promoverán instancias de participación con los representantes de la empresa y las comunidades, sin embargo, se debe indicar concretamente con cuáles acciones será promovida dicha participación.

<![if !supportLists]>2.4.2 <![endif]>En la misma página en la medida número 37 indicar cuál es ese programa de capacitación empresarial para los habitantes de las comunidades aledañas o cómo se implementaría, puesto que está estipulado como una intención y debe ser una medida concreta. Igualmente indicar las acciones concretas específicas para llegar a cumplir el objetivo planteado en la medida 38.

<![if !supportLists]>2.4.3 <![endif]>Además se debe realizar un análisis detallado sobre los siguientes aspectos:

<![if !supportLists]>· <![endif]>Evaluar la dinámica poblacional antes, durante y después del proyecto.

<![if !supportLists]>· <![endif]>Estimar la situación social Post-Proyecto <![if !supportLists]>· <![endif]>Proponer medidas sociales Post-Proyecto <![if !supportLists]>· <![endif]>Diagnóstico y estimación de la calidad de vida de la población antes, durante y después del proyecto.

<![if !supportLists]>· <![endif]>Evaluar y proponer medidas en torno a la seguridad ciudadana.

<![if !supportLists]>· <![endif]>Evaluar conflictos sociales y proponer soluciones.

<![if !supportLists]>· <![endif]>Cuantificar la generación de empleo directo a los habitantes de la zona.

<![if !supportLists]>· <![endif]>Proponer medidas socioeconómicas específicas para mitigar la situación post proyecto de acuerdo con los resultados que se obtengan del análisis de los ítems solicitados anteriormente en esta Resolución.” El veintiséis de abril de dos mil cinco, la empresa recurrida presentó ante SETENA el anexo prevenido, el cual fue aprobado y mediante resolución 2237-2005-SETENA, de treinta de agosto de ese mismo año, se le previno efectuar el depósito de garantía ambiental, nombrar un responsable ambiental, presentar un libro de actas para habilitarlo como bitácora y adjuntar la Declaración Jurada de Compromisos Ambientales, todo lo cual fue aportado por la desarrolladora el treinta de setiembre de dos mil cinco. Finalmente, mediante resolución No. 3638-2005-SETENA, de las nueve horas veinticinco minutos del doce de diciembre del dos mil cinco, se otorgó la viabilidad ambiental al proyecto minero en estudio por un período de dos años para el inicio de la extracción -ver folios 1313 y 1318 del tomo IV del expediente administrativo No. AH01-PM-03-08-.

XXX.Señalado lo anterior, debe indicarse que SETENA, como órgano técnico competente para determinar la viabilidad ambiental del Proyecto Minero Crucitas, solicitó de acuerdo a los parámetros vigentes en aquella oportunidad -entiéndase doce de marzo de dos mil dos, momento en el cual fue presentado el Estudio de Impacto Ambiental- el cumplimiento de los requisitos técnico-legales del mismo, lo cual se evidencia y desprende de todas las actuaciones expuestas. En este sentido, este Tribunal en forma unánime ha sido enfático en establecer en reiterados pronunciamientos, que no es una instancia técnica a la que competa determinar si el estudio de impacto ambiental se ajusta o no a los requerimientos profesionales; ha indicado la Sala que:

“…Así las cosas, debe dejarse claro que este Tribunal no es una instancia técnica a la cual le competa verificar si un estudio de impacto ambiental fue bien preparado o no, sobretodo cuando los mismos profesionales que lo cuestionan indican que se debe revisar más minuciosamente el mismo (folio 371) y que los recurridos cuestionan el que se ha realizado una revisión parcial del estudio impugnado (folios 469 y 470). Precisamente SETENA que es la entidad encargada de tal verificación estimó que el mismo sí cumple con la información necesaria para evaluar y predecir el impacto que la construcción del túnel tendría en la zona, y en razón de ello lo aprobó. En todo caso, si los recurrentes consideran que en este estudio no se realizaron todas las mediciones adecuadas o contemplaron todos los aspectos, es un asunto que debe ser dirimido ante esa instancia [SETENA], conocedora técnica en esta materia.” (sentencia No. 2004-9927) “…Precisamente estas entidades -en particular SETENA- que son las encargadas de revisar dichos estudios, estimaron que los mismos sí cumplen con la información necesaria para evaluar y predecir el impacto del proyecto minero en la zona, y en razón de ello éste fue aprobado, otorgándose la Viabilidad Ambiental y los demás permisos que en los considerandos anteriores se citaron.

En todo caso, si los promoventes consideran que los estudios no se realizaron de manera adecuada o estiman que no se contemplaron todos los aspectos necesarios –por tratarse de empresas privadas contratadas por la empresa concesionaria-, ello constituye un asunto que debe ser dirimido ante las instancias conocedoras de los aspectos técnicos en esta materia, y no ante la jurisdicción constitucional, en virtud de que se trata de un aspecto que escapa de la esfera de su competencia.” (sentencia No. 2005-5790) En consecuencia, de lo expuesto y no encontrando motivo para variar de criterio, debe señalarse que lo relevante a efectos de esta jurisdicción, es que se hayan realizado los estudios que establece nuestra legislación y que una vez revisados por los profesionales técnicos oficiales correspondientes se determine la viabilidad o no del proyecto, contemplando a priori los impactos que puedan producirse en el ambiente, su valoración, mitigación y compensación.

XXXI.Sobre los aspectos técnicos considerados en el Estudio de Impacto Ambiental del proyecto minero Crucitas. El Estudio de Impacto Ambiental aprobado por la Secretaría Técnica Nacional Ambiental para el proyecto minero Crucitas –realizado de conformidad con el Decreto 25705-MINAE, denominado “Procedimientos de SETENA”-, es un documento de 437 páginas que incluye, entre otros y según lo ya indicado en los considerandos precedentes, los siguientes aspectos técnicos: situación del proyecto con relación a los sismos; la precipitación promedio anual; el área de influencia del proyecto; el área total del proyecto y las zonas de impacto; los relaves que se producirá; la situación del dique de la laguna de relaves; las contingencias y riesgos ante una eventual ruptura de la laguna y la represa de relaves; el agua que se utilizará en el proceso; cómo se dispondrán los materiales extraídos; los planes de cierre para cada una de las fases; la situación climática de la región; la hidrografía de la zona; la calidad del aire; las amenazas naturales al proyecto; el ambiente biológico en las áreas de impacto del proyecto, con particular énfasis y detalle de las especies de flora y fauna existentes en la zona –explicitando que no existen especies de flora endémica en peligro de extinción y que existen áreas de bosque intervenido-; la descripción del ambiente socio-económico; el diagnóstico ambiental de los medios físico y biótico; las medidas de mitigación y compensación.

De igual forma, considera la evaluación de impactos en materia de contingencias; calidad del agua; ruptura de la represa de relaves; ruptura de tuberías; derrame de materiales peligrosos; capacidad de uso de suelo. En este sentido, es claro que el Estudio de Impacto Ambiental evaluado y aprobado por SETENA es un amplio documento que considera y valora variados elementos que podrían ser impactados con la actividad propuesta. Este estudio, al ser aprobado por la autoridad administrativa correspondiente, acredita que la administración ha tenido la oportunidad de valorar los diferentes aspectos allí considerados, y ha concluido que en los términos propuestos, la actividad bajo estudio puede ser ejecutada.

XXXII.Sobre la Propuesta de Modificación al Proyecto Minero Crucitas. Estando ya otorgada la viabilidad ambiental al proyecto, y tomando en consideración una serie de factores externos por los cuales se consideró conveniente la modificación del proyecto inicial –legislación interna del país de origen de la empresa desarrolladora, precio internacional de la onza de oro y factibilidad económica de la empresa-, el seis de diciembre de dos mil siete la empresa recurrida presentó ante SETENA lo que denominó “Propuesta de Modificación al Proyecto Minero Crucitas”, adjuntando para ello la Declaración Jurada de Compromisos Ambientales, la cual incluye el Plan de Gestión Ambiental actualizado para cada etapa del proyecto y los Planes de Monitoreo -folio 1292 del tomo IV del expediente administrativo No. AH01-PM-03-08)-. La Propuesta de Modificación fue preparada por profesionales en Arquitectura, Ingeniería Forestal, Biología -especialistas en Mastozoología, ecosistemas terrestres, herpetología, entomología, botánica, recuperación de hábitats acuáticos-, Geología, Hidrología, Sociología y Geografía.

El documento consta de Justificación, Introducción, Ubicación geográfica, Ubicación político-administrativa, Cambios propuestos al proyecto, Cuadro comparativo del proyecto en relación a los cambios propuestos, Descripción del medio -Medio físico, Medio biológico, Medio socioeconómico-, Identificación de impactos -Actividades del proyecto, Identificación de componentes ambientales valorados, Matriz de interacción-, Valoración de impactos ambientales durante las fases de construcción, de operación y de cierre; Medidas de mitigación y/o compensación en esas mismas tres fases, Cuadro resumen del plan de gestión ambiental. Se aportaron también láminas de Ubicación del proyecto, Componentes del proyecto, Manejo de relaves, Ubicación de toma de agua y un capítulo de apéndices que incluye el Manual de Procedimientos de Voladura de EXPLOTEC, Estudio del conocimiento y la percepción local de la modalidad de explotación roca dura, así como Recomendaciones para un Plan de Restauración Ecológica del Lago Artificial y la Laguna de Relaves del Proyecto Minero Crucitas. Para su realización se contó con la actualización de los siguientes estudios realizados en el año 2007:

<![if !supportLists]>§ <![endif]>Fernando Nietzen Rovira, 2007: Actualización de las condiciones geológicas y de amenazas naturales en el área del Proyecto Minero Crucitas.

<![if !supportLists]>§ <![endif]>Hugo Rodríguez Estrada, 2007: Actualización de las condiciones hidrogeológicas en el área del Proyecto Minero Crucitas.

<![if !supportLists]>§ <![endif]>Luis Carlos Paniagua Carvajal, 2007: Actualización de las condiciones hidrográficas y climáticas en el área del Proyecto Minero Crucitas.

<![if !supportLists]>§ <![endif]>Rolando Barrientos Saborío, 2007: Inventario y Plan de Manejo Forestal Proyecto Minero Crucitas.

<![if !supportLists]>§ <![endif]>Tania Bermúdez Rojas, 2007: Plantas no leñosas en el área del Proyecto Minero Crucitas.

<![if !supportLists]>§ <![endif]>Mónika Springer y Danny Vásquez Acosta, 2007: Actualización del estudio biológico del área del Proyecto Minero Crucitas, con énfasis en macroinvertebrados acuáticos.

<![if !supportLists]>§ <![endif]>Mario Espinoza Mendiola, 2007: Descripción y evaluación ecológica de la ictiofauna. Informe base para la evaluación de impacto ambiental del Proyecto Minero Crucitas. (ver capítulo 3) Según los datos aportados en el capítulo 3.3 de la Propuesta –referido al medio socioeconómico-, el cambio en la modalidad de explotación que propone la empresa no ha generado actitudes negativas en la población; por el contrario, las comunidades consideran que esta modalidad además de ser menos impactante para el ambiente por reducir significativamente el área de explotación –y por ende reducir el área donde debe quitarse la cobertura boscosa-, generará aumento en los empleos, lo que redundará en mejorar la calidad de vida de las poblaciones cercanas al sitio. La modalidad de explotación de la roca dura fue ampliamente difundida entre la población local, pues la empresa propició un proceso de divulgación y análisis de las características de esa modalidad de explotación y de sus efectos, información que ha estado disponible a todos los sectores de las siete comunidades que integran el área de influencia del proyecto –detalle de esta socialización se encuentra más adelante al analizar algunos de los cambios propuestos-.

XXXIII.En términos generales sobre la modificación del proyecto y los cambios relacionados. La propuesta de modificación al proyecto minero se puede resumir en los siguientes aspectos. El área de extracción se reduce de 126.4 hectáreas a 50 hectáreas, lo que significa una reducción de un 60% del área que cuenta con viabilidad ambiental, al mismo tiempo que disminuye el número de árboles a cortar, los cuales pasan de 7,409 a 2,942 árboles, es decir, no cortar un 60% de los árboles previstos. En materia de recuperación del suelo o aspectos forestales, se propone reforestar 382 hectáreas contra las 336 hectáreas del proyecto inicial, sembrándolas con especies nativas plantadas en el vivero del proyecto –antes se sembrarían especies comerciales como la Melina o la Teca-; así, a modo de compensación por las áreas que permanecerán como lagunas -relaves y lago Fortuna- esta reforestación de 382 hectáreas de potreros representará una compensación de un 57% del espejo de agua total que permanecerá en la zona.

A partir del cambio propuesto, la vida útil del proyecto aumenta en dos años, lo cual redunda en un beneficio económico para las comunidades y el Cantón de San Carlos, lo que se verá reflejado en los impuestos y permanencia de la empresa apoyando los compromisos socioeconómicos que ha iniciado incluso antes de la fase constructiva. En materia de empleo, en la fase constructiva se generará un aumento de un 144%, ya que bajo el modelo anterior se esperaba contratar ciento veintitrés personas y ahora se contratarán trescientas personas; mientras que en la fase operativa habrá un incremento en empleos directos de un 67%, ya que en lugar de contratar ciento cincuenta, se contratarán doscientos cincuenta personas. También se informa una modificación positiva en los aspectos económicos, pues durante la producción de la mina se pagará aproximadamente ¢2,369 millones de colones por año en Impuesto de la Renta; ¢515 millones de colones anuales en pagos a la Caja Costarricense de Seguro Social; en impuesto de minas -establecido en el Código de Minería- que corresponde a un 2% de las ventas brutas, se pagarán ¢474.8 millones de colones anuales que se deben dividir en partes iguales, o sea, un 1% que corresponde a ¢237.4 millones de colones anuales para la Municipalidad de San Carlos, y el otro 1% para las Asociaciones de Desarrollo de la zona. Todo esto aunado a los pagos de cánones y patentes, entre otros aspectos -ver capítulo 2 Introducción-.

XXXIV.La valoración de impactos ambientales de la propuesta de modificación. El capítulo cinco de la Propuesta de Modificación al proyecto minero Crucitas, contiene la valoración de impactos ambientales en cuanto al aire, el agua, el suelo, los ecosistemas acuáticos y terrestres, la calidad de vida, el empleo y el ingreso. Especifica que el aire manifiesta un impacto positivo moderado de +50 en lo que atañe a la reducción de las necesidades de transportes de suministros y trabajadores, y un impacto positivo severo de +57 por la reducción del área de extracción. En cuanto al recurso hídrico, señala un impacto negativo moderado de -37 por la cantidad de trabajadores en la fase de construcción, pero también un impacto positivo severo de +60 por la reducción del área de extracción. En lo que atañe al suelo, refiere un impacto positivo moderado de +45 por la ubicación del campamento en un área menor compuesta actualmente por potreros, así como un impacto positivo severo de +69 por la reducción del área de extracción.

También en los sistemas acuáticos se refleja un impacto positivo severo de +51 por la disminución en el arrastre de sedimentos, mientras que sobre los ecosistemas terrestres se muestra un impacto positivo moderado de +43, también por la reubicación del campamento y la utilización del sitio original para planes de regeneración natural e inducida, y un impacto positivo severo de +67 al reducir el área afectada por la corta de árboles. En lo que respecta a la calidad de vida, se señala un impacto positivo moderado de +50 por la seguridad de los trabajadores y su acceso a los servicios que se prestará; un impacto positivo moderado de +50 al no alterarse un área con cobertura boscosa; y un impacto positivo severo de +68 por brindar una solución al desempleo en la zona. También se acredita un impacto positivo severo de +68 en materia de empleo e ingreso, por la generación de empleos directos e indirectos, así como por los programas de capacitación impartidos por el Instituto Nacional de Aprendizaje en virtud de un convenio suscrito con la empresa, y los programas de promoción de pequeñas y medianas empresas en la zona.

XXXV.Un ejercicio similar se repite en materia de la valoración de impactos durante la fase de operación, en cuyo caso se señala para el aire un impacto negativo moderado de +29 por el reducido impacto de la posible emisión de gases y partículas con motivo de la utilización de explosivos, pero un impacto positivo crítico de +76 por no requerir el proyecto del funcionamiento de una planta a combustible para la generación de electricidad. En cuanto al agua se informa un impacto negativo moderado de -49 por la posible intersección del acuífero inferior en el proceso de excavación; un impacto negativo moderado de -43, por la existencia de la laguna de relaves; de un impacto negativo moderado de -39 por el aumento en la cantidad de empleados; y un aumento positivo moderado de +49 por la eliminación de la planta generadora de electricidad. Los ecosistemas acuáticos mostrarían un impacto negativo moderado de -45 por la disposición del material estéril en la laguna de relaves; un impacto negativo moderado de -44 por el aumento en la mano de obra; y un impacto positivo moderado de +47 por la eliminación de la planta de generación.

Por su parte, los ecosistemas terrestres aparecen con un impacto negativo moderado de -38, por la utilización controlada de voladuras; un impacto negativo moderado de -45 por el manejo de roca estéril; un impacto negativo moderado de -37 por el aumento en la demanda de mano de obra; y un impacto positivo moderado de +40 por la disposición de un área mayor de regeneración, lo cual también genera un impacto positivo moderado de +40 en el uso de suelo. Un impacto positivo crítico de +77 se muestra en materia de infraestructura y servicios comunales, incluyendo la instalación de una red de distribución de energía eléctrica. La calidad de vida muestra un impacto negativo moderado de -48 por los temas de seguridad y salud ocupacional de los trabajadores, pero hay un impacto positivo severo de +66 por la eliminación de la posibilidad de generar drenaje ácido; también se aprecia un impacto positivo severo de +68 por la generación de empleo, y un impacto positivo moderado de +40 por el aumento en la vida útil de la mina –lo que trae aparejado el aumento en el pago de impuestos, cuotas obrero-patronales, entre otros-; hay un impacto positivo crítico de +78, nuevamente por eliminar la planta generadora de electricidad, y un impacto positivo moderado de +40 por existir una mayor área de reforestación. En cuanto al empleo y el ingreso, se indica un impacto positivo severo de +68 por el aumento de empleos directos.

XXXVI.La fase de cierre técnico del proyecto también fue valorada en términos socio-ambientales. Así, en lo que atañe al agua, se concluye un impacto positivo moderado de +49 por la eliminación de la posibilidad de impactos sobre el recurso hídrico; mientras, el suelo muestra un impacto negativo moderado de -42 por la formación del lago Fortuna, pero un impacto positivo severo de +58 por la regeneración con especies nativas. Los ecosistemas acuáticos también aparecen con impacto positivo severo de +67 por el potencial que reviste el lago Fortuna y la laguna de relaves, así como un impacto positivo severo de +64 por la regeneración con vegetación nativa en los alrededores de estos cuerpos de agua. Por su parte, los ecosistemas terrestres aparece con un impacto negativo moderado de -41, precisamente por la formación de un lago que antes no existía, pero con un impacto positivo severo de +61 al crearse las condiciones idóneas para la regeneración de la vegetación. El uso de suelo también aparece con un impacto negativo moderado de -42 por la formación del lago, pero un impacto positivo crítico de +80 por la reforestación con especies nativas.

XXXVII.Así, se evidencia que la Propuesta de Modificación del proyecto minero Crucitas sí se incluye una relación de impactos, costos y beneficios socio-ambientales, asignando a cada uno de los ítemes puntuaciones concretas que son tenidas en cuenta por la administración para la adopción de las resoluciones técnicas que corresponda.

XXXVIII.Sobre las medidas de mitigación planteadas en la Propuesta de Modificación. El capítulo 6 de la Propuesta considera qué medidas de mitigación o compensación se implementarán con motivo de la modificación del proyecto. Durante la fase de construcción, se indica en el documento que el vertedor de excedencias de la laguna de relaves se construirá en una zona alejada al punto de descarga de los tubos que movilizan las colas desde la planta de destrucción de cianuro, con el fin de conformar un área de clarificación de aguas, que ayude a reducir el nivel de sólidos suspendidos totales en el efluente; este vertedor se construirá en forma de una torre de rebalse como las implementadas en proyectos hidroeléctricos como Arenal, desde donde el agua será conducida por medio de tuberías hacia una planta de adición de cal para un monitoreo constante y estabilizar el pH en el caso necesario, sin embargo este impacto se espera que no sea significativo ya que el pronóstico final de calidad del agua de rebalse se considera apropiado y dentro de las normas de vertidos nacionales.

Asimismo, se indica que las instalaciones para la planta de generación eléctrica de emergencia y componentes relacionados contará con una adecuada ventilación mediante la instalación de ventanas y ventiladores que propicien la circulación horizontal del aire; que las actividades de compensación de las áreas de bosque intervenido y crecimiento secundario, contemplarán la regeneración inducida en una mayor área posible con especies nativas, utilizando prioritariamente especies forestales amenazadas o con poblaciones reducidas, con el fin de compensar el valor ecológico de los terrenos afectados, al punto que a ese momento la empresa había iniciado ya la instalación de un vivero temporal con especies nativas –actualmente en funcionamiento según se pudo constar durante la Inspección realizada el doce de setiembre de dos mil nueve- que se extraen del sotobosque de las futuras áreas de tajo, con el fin de desarrollar las áreas de bosque con las mismas especies nativas y la misma distribución de biodiversidad como la que existe en las futuras áreas de extracción.

En el vivero se cuenta con una población de especies nativas de unos 45,000 árboles, y a la fecha ya se han reforestado más de 11 hectáreas, a pesar que todavía no se ha iniciado la fase constructiva, pero se desea iniciar la recuperación de áreas de potreros y reforzar el sector del corredor biológico que fue propuesto y aprobado desde el EsIA y su Anexo. También se considera que para las actividades de preparación del terreno que involucren la corta de vegetación se deberá seguir medidas que consideren el transporte de biomasa en vagonetas tapadas por un toldo hasta el sitio predestinado o escombrera autorizada, así como el traslado expedito de la madera y biomasa al sitio de almacenamiento temporal. También se considera dar continuidad a los proyectos y programas para el mejoramiento de la calidad de vida de la población, incluyendo los programas de promoción del deporte y otras actividades recreativas sanas, tales como los ya establecidos con la Escuela de Fútbol Crucitas, el patrocinio a la Asociación Deportiva San Carlos, la Vuelta Ciclística a San Carlos y las Cabalgatas, al mismo tiempo que continuar con la colaboración en la gestión ante las autoridades respectivas para la ampliación y el mejoramiento del acueducto que abastece a las comunidades de Coopevega, Moravia, Chamorro, El Roble, y Llano Verde, Jocote y Crucitas.

De igual forma, continuar con la promoción de actividades productivas posibles en la zona, que integren a miembros de las comunidades del área de influencia del proyecto, así como dar continuidad a la elaboración de un programa de capacitación empresarial, técnica, en servicios u otros, para los habitantes de las comunidades en el área de influencia del proyecto. De igual manera, refiere el desarrollo de programas de capacitación denominados Proyectos de Desarrollo Comunal –PCDC-, dirigidos a los miembros de las asociaciones de desarrollo de las comunidades del área de influencia del proyecto, a los miembros de los Concejos de Distrito y a los miembros de la Municipalidad de San Carlos; continuar con el desarrollo de canales y estrategias de comunicación efectiva con las comunidades para mantenerlos informados de las actividades del proyecto; crear una oficina de atención al ciudadano, como centro de recepción de los comentarios, sus opiniones y problemas asociados a la ejecución del proyecto, que provea un mecanismo formal de información y comunicación; así como cumplir con todos los otros compromisos sociales establecidos y aprobados desde el Estudio de Impacto Ambiental y su Anexo.

XXXIX.Por otra parte, la misma Propuesta de Modificación hace un recuento de los beneficios sociales que se habían obtenido hasta noviembre de dos mil siete, dentro de los que destacan las actividades de capacitación en pequeñas y medianas empresas, así como en diversos tipos de oficios mediante cursos impartidos con motivo de los convenios suscritos entre la empresa y el Instituto Nacional de Aprendizaje. Así, se señala que a ese momento se había otorgado doscientos treinta y dos certificaciones en acuicultura, cursos de cómputo, agricultura orgánica, elaboración de quesos en dos diferentes localidades, pintura sobre tela, confección de prendas de vestir, operación de máquinas textiles, entre otros, al tiempo que hace un recuento de la ubicación del laboratorio de cómputo en el Liceo de Coopevega –y por el cual los estudiantes tienen acceso a cursos de informática-, del nacimiento de una empresa textil y de otras iniciativas de carácter productivo, como la agricultura orgánica y la creación de una cooperativa de vecinos de Coopevega.

XL.- De igual forma, la propuesta también contempla las medidas de mitigación o compensación a implementar durante la fase de operación del proyecto minero. Señala que todo suelo vegetal que sea removido de las áreas de extracción deberá ser trasladado apropiadamente al sitio para depósito de suelos, donde se aplicarán todas las medidas necesarias para asegurar su adecuado almacenaje, de manera que mantenga al máximo sus condiciones originales y pueda ser utilizado sin mayores problemas en la posterior recuperación de áreas afectadas por los diferentes componentes del proyecto. También refiere que para la conformación de taludes en roca dura, la separación vertical de terrazas se estima en veinte metros, y que cuando la calidad de la roca sea favorable, el ángulo de las paredes puede ser de 70º; estas dimensiones se obtuvieron a partir del estudio de estabilidad de laderas realizado, pero además, se mantendrá un control permanente de las condiciones de la roca y saprolita con base en el avance de la extracción para verificar las dimensiones o, si es necesario, modificarlas; el objetivo es asegurar la estabilidad apropiada.

De igual forma, indica que se realizará una adecuada implementación del control de explosivos, implementando y dando seguimiento al protocolo de transporte, almacenamiento y uso de explosivos, contratando una empresa experta en el tema que cuente con todos los permisos y protocolos vigentes; menciona que se mantendrá un control de vibraciones, ruido y emisiones en las áreas de los tajos. Señala que se continuará con las labores ya iniciadas de reforestación con especies nativas en las zonas de potrero y áreas no utilizadas por los componentes del proyecto. Con el fin de anular el potencial de generación de drenaje ácido, los relaves y la roca estéril deberán ser depositados en la laguna de manera que queden sumergidos bajo una columna de agua de una profundidad promedio de dos metros, evitando su exposición al aire y su eventual oxidación. El manejo será utilizando una tubería flotante móvil que distribuya homogéneamente el material en la laguna en el sector oeste, la roca estéril se depositará de manera mecánica en forma inmediata sin almacenamiento, en el sector este, controlando que permanezca inundada.

Adicionalmente, se utilizará el exceso de saprolita para respaldar la cobertura del dique de colas y cubrir la roca estéril en el área de almacenamiento y taludes de los pits de extracción para inhibir la oxidación. De ser posible se depositará una capa de relaves inertes provenientes de material estéril al final de la fase de operación, con el fin de conformar una capa de sellado sobre el resto de relaves y material con potencial de generar drenaje ácido. La roca estéril de desecho deberá ser depositada de la misma manera que los relaves en la laguna. Se deberá diseñar un Plan de Manejo de Roca Estéril que reduzca al mínimo el tiempo de manejo, acarreo y exposición de este material. Por su parte, el vertedor de la laguna de relaves se localizará lo más lejos posible del sitio de descarga de relaves, esto con el fin de conformar un área de clarificación de aguas dentro de la laguna, que reduzca el nivel de sólidos suspendidos totales en el efluente.

El vertedor de la laguna de relaves se conformará mediante la construcción de una torre de rebalse localizada en el área de clarificación de agua. Esta torre deberá ser diseñada para mantener un nivel óptimo de agua que asegure la operación adecuada de la laguna de relaves durante toda su vida útil. El agua será conducida de esta torre mediante tuberías a una planta de adición de cal, en el caso muy improbable de que el efluente requiera de estabilización de pH previo a su descarga, por ejemplo mediante la adición de cal diluida. El agua proveniente de los tajos de minado será tratada en el sitio mediante la adición de cal para estabilización del pH. Esta agua tratada que contará con altos niveles de pH deberá ser bombeada hacia el área de depositación de roca estéril en la laguna de relaves, donde ayudará a estabilizar posibles niveles bajos de pH como producto de la oxidación de roca no sumergida.

XLI.- Del mismo modo, la Propuesta de Modificación refiere las medidas de mitigación y compensación a implementar durante la fase de cierre del proyecto minero. Así, señala que la conformación final de taludes en el área rellenada del tajo Botija deberá buscar además de las condiciones más aptas de estabilidad, acercarse en la medida de lo posible a la configuración original del sitio. Para ello, el área de extracción Botija se reforestará con especies nativas pioneras una vez finalizadas las actividades de conformación de taludes y aplicación de suelo orgánico; luego se continuará con el plan de reforestación con especies nativas. Durante el cierre de la mina se deberá implementar un monitoreo continuo de la calidad del agua en el efluente de la planta de tratamiento hasta que se pueda asegurar que el sistema se mantendrá estable indefinidamente. Una vez alcanzadas las condiciones esperadas de estabilidad de aguas y otras variables relacionadas en la laguna de relaves y el lago del área de extracción Fortuna, se aplicarán todas las recomendaciones establecidas en el Plan de Restauración Ecológica de Ambientes Acuáticos elaborado para el proyecto por la empresa Hábitat Crítico.

Dentro de estas medidas destacan las siguientes: a) implementar la re-vegetación de la zona litoral y riparia del lago Fortuna y de la laguna de relaves con especies de flora cuyos hábitos de vida sean acuáticos, anfibios y que se asocien a ambientes húmedos para que logren establecerse en el área del proyecto según su afinidad con el agua; b) previo a la introducción de especies, se deberá realizar ensayos de sobrevivencia de diversas especies a las condiciones predominantes en la laguna de relaves y el lago Fortuna; las especies a seleccionar deben ser nativas de la región o con una distribución geográfica que incluya la vertiente norte; c) preparar un plan de investigación, y los diseños experimentales que se pondrán en práctica, tanto en laboratorio como in-situ; d) la grada que coincida cerca de la cota de la altura esperada del lago, deberá modificarse con un diseño que incluya una pendiente suave para crear una batimetría heterogénea pero con un patrón básico que vaya desde los cero metros en la orilla hasta un máximo entre dos y cuatro metros en el final de la grada y hacia la parte interna del lago -dependiendo del ancho del piso de la grada-, buscando que el piso de la misma tenga una concavidad que incremente hacia el final de la grada, de tal forma que se forme o se construya un freno o muro de contención para atrapar sedimentos.

Se sugiere colocar bloques de roca para crear escondrijos y microambientes para la biota. Los bloques de roca que se utilicen deben tener un potencial de generación ácida nulo; e) en virtud de que el Plan de Gestión Ambiental incorpora medidas de recuperación forestal, se sugiere que a partir de los tres metros sobre la línea de agua, en la zona de ladera, se inicie el plan establecido con especies forestales nativas, tomando en consideración la topografía final para elegir las especies adecuadas para el crecimiento en esa zona; f) se recomienda el recubrimiento de la futura zona de riparia con una capa base de grava y arena de río y la colocación en la parte superior una capa delgada de limos y detritos, en una franja de al menos cinco metros para la laguna de relaves; g) en las pozas someras se recomienda colocar un fondo de arena, grava y piedra, así como bloques medianos y grandes de roca o piedras -con potencial nulo de generación de drenaje ácido-; esto ayudará a crear una mayor heterogeneidad en el piso de la zona litoral, creando una serie de microambientes para peces, y otra biota acuática que eventualmente logre colonizar el lago.

En la zona de pozas profundas en el borde externo de la zona litoral, se recomienda colocar bloques grandes y medianos contra la pared que da hacia la zona litoral, esto podría ayudar a crear hábitats para peces de mayor tamaño, como guapotes; h) el plan de restauración ecológica requiere de un plan de monitoreo para darle seguimiento a la evolución de la sucesión ecológica. Finalmente, indica que el periodo de cierre del proyecto se extenderá por un periodo adicional de seis meses posteriores al final de todas las actividades de cierre, con el fin de establecer un periodo adicional de monitoreo que asegure el debido funcionamiento de todos los componentes de cierre.

XLII.- La aprobación de la Propuesta de Modificación. Así, valorados todos estos aspectos sucintamente expuestos, mediante resolución número 170-2008-SETENA, de cuatro de febrero de dos mil ocho, la Comisión Plenaria aprobó la modificación solicitada por la empresa recurrida, haciendo alusión expresa a los siguientes cambios:

<![if !supportLists]>a. <![endif]>El proyecto inicial contemplaba la extracción de saprolita hasta una profundidad de 15 metros, por implicar un menor costo de extracción; sin embargo, en atención a los cambios del proceso del oro y por no cumplir la empresa con una norma exigida por Canadá, se solicitó como parte de los cambios extraer además la roca dura -donde aumenta la probabilidad de una mayor cantidad de oro- con profundidades de 67 metros y reducir el área de extracción de 126.4 hectáreas a 50 hectáreas. Asimismo, como la extracción de roca dura implica la utilización de voladuras para el avance apropiado de bloques de extracción y de la adecuada conformación de los taludes de las paredes de los tajos, la empresa se comprometió a contratar una empresa certificada para este tipo de actividad. El resto de las áreas que contemplaba el proyecto se mantienen incólumes.

<![if !supportLists]>b. <![endif]>Para la degradación del cianuro en un inicio se contemplaba la tecnología denominada INCO; sin embargo, la empresa se compromete a utilizar una nueva tecnología que mejora la anterior y que es el sistema CYPLUS, con el fin de mejorar la gestión ambiental cumpliendo la normativa tanto nacional como internacional, la cual funciona de la misma forma que la anterior pero constante.

<![if !supportLists]>c. <![endif]>Dentro del proceso final de tratamiento de cianuro o pulimento de los desechos se prevé la degradación natural del mismo en la laguna de relaves, con lo cual se estaría realizando la reducción completa de cianuro en las aguas residuales.

<![if !supportLists]>d. <![endif]>Se estableció que los “Estudios de Línea Base” en material de cobertura, roca dura y los materiales de relaves o colas, muestran que existe un potencial bajo para la generación de drenaje ácido; no obstante, la empresa desarrolladora prevé un manejo adecuado que controle su eventual producción, sumergiendo bajo el agua el material proveniente de la roca estéril y las colas.

<![if !supportLists]>e. <![endif]>Con respecto a la utilización de energía eléctrica, se aclara que ya no se utilizará la planta de generación eléctrica que había sido aprobada de 5.4 W, lo cual eliminará la emisión a la atmósfera de 3.3 ton/hora de CO2.

<![if !supportLists]>f. <![endif]>Esto último, a su vez, disminuye el almacenamiento de combustible que pasa de 1500 m3 diesel y 38 m3 de gasolina, a 50 m3 diesel y 3.7 m3 de gasolina.

<![if !supportLists]>g. <![endif]>En el aspecto forestal se pasa de reforestar 336 hectáreas -donde 227 hectáreas serían de tipo comercial-, a reforestar 382 hectáreas de bosque natural con especies nativas -1600 árboles por hectárea para un aproximado de 611.200 árboles-.

<![if !supportLists]>h. <![endif]>En el aspecto social se mantienen los mismos compromisos.

<![if !supportLists]>i. <![endif]>En cuanto al cierre, se pasa de la conformación de una laguna de relaves, reforestación con especies nativas y comerciales, a la conformación de una laguna de relaves, el lago Fortuna y la reforestación total con especies nativas.

<![if !supportLists]>j. <![endif]>Se adjuntó un diagnóstico actualizado de las condiciones ambientales, sociales y económicas del proyecto validadas por profesionales afines para cada componente: medio físico, medio biológico, medio socioeconómico, indicando que prevalecen los factores considerados en el Estudio de Impacto Ambiental aprobado por la SETENA.

<![if !supportLists]>k. <![endif]>Se presentó una identificación de impactos y su valoración dentro del proyecto incluyendo las actividades estipuladas como modificación para las tres fases que conlleva la ejecución del proyecto -construcción, operación y cierre-, con las medidas de mitigación y compensación correspondientes.

<![if !supportLists]>l. <![endif]>Dentro de los planes de monitoreo propuestos por el desarrollador se incorporó el seguimiento a datos de línea base en cuanto a suelos, aguas superficiales, ictiofauna, macroinvertebrados acuáticos, anfibios y reptiles, avifauna, componente florístico, mamíferos, componente forestal y social; así como se incorpora el protocolo de manejo de sustancias peligrosas.

<![if !supportLists]>m. <![endif]>Se mantiene en el Plan de Gestión Ambiental la Comisión de Fiscalización y Monitoreo del Proyecto Crucitas.

XLIII.- En este sentido, es claro que la solicitud de modificación del proyecto minero dista de ser una simple gestión administrativa, para convertirse en una petición amplia y concreta acompañada de diferentes estudios técnicos relacionados con cada uno de los cambios propuestos, así como de apéndices o anexos igualmente técnicos como complemento a la información de los aspectos allí considerados. Según lo dicho, la propuesta de modificación incluye no sólo una descripción de los cambios, sino también la relación de impactos en lo ambiental y social, así como las medidas de mitigación a implementar en cada una de las fases del proyecto. Adicionalmente, además de los estudios técnicos, se informó también de la debida socialización de la propuesta de cambio, por lo que fue una vez cumplido todo este proceso –elaboración de estudios; identificación de cambios, impactos y medidas de compensación; y socialización de la propuesta- que la empresa interesada presentó a SETENA la solicitud de modificación, la cual fue valorada y aprobada por la administración técnica competente al acreditarse en dicha sede el beneficio para la situación ambiental.

Ante ello, es evidente que no se trata de una simple solicitud ni de la sola emisión de una Declaración Jurada de Compromisos Ambientales de carácter unilateral, sino de documentos técnicos que por una parte respaldan la modificación propuesta, al mismo tiempo que acreditan la bondad para el ambiente que esa modificación conlleva. Así, logra acreditarse que la solicitud planteada por la empresa recurrida cumple con allegar a la administración información técnica suficiente con respecto a los cambios concretos en similar sentido a la finalidad buscada con la exigencia de estudios de impacto ambiental, por lo que desde el punto de vista constitucional resulta inexacto afirmar que la propuesta de modificación fue planteada y aprobada sin que la administración tuviere acceso a información técnica y sin que se le diera la oportunidad de valorar la dimensión e impacto de los cambios propuestos.

En todo caso, debe tomarse en consideración las ya citadas sentencias de esta Sala números 2004-9927 y 2005-5790, en cuanto se ha definido de manera reiterada que escapa al ámbito de competencias de esta jurisdicción detenerse en valorar si los estudios han sido bien realizados o si cumplen con la información necesaria, aspectos que de suyo deben ser dirimidos por las instancias técnicas que corresponde.

XLIV.- Sobre los aducidos impactos en flora y fauna. La situación del almendro amarillo en la zona del proyecto minero Crucitas. Refieren los recurrentes que lo pretendido con la modificación de uso de suelo en el proyecto minero Crucitas, es arrasar con 262 hectáreas, de las cuales 192 están totalmente cubiertas de bosque, para excavar allí la mina a cielo abierto. Aducen, igualmente, que para permitir tal cometido, el Decreto 34801 autoriza la corta de especies en veda, como lo es el almendro amarillo, a pesar que tal especie se encuentra amenazada, que el Estado había reconocido previamente esa situación mediante el Decreto 25700, y que la jurisprudencia de esta Sala prohibió expresamente cualquier tipo de permiso de corta o aprovechamiento del almendro. Del estudio de los autos y de los informes rendidos bajo fe de juramento, la Sala aprecia que los informes técnicos emitidos en diferentes momentos –uno de ellos por parte del Instituto Tecnológico de Costa Rica-, si bien reconocen la situación de peligro del almendro, concluyen que el almendro amarillo no se concentra en el área del tajo, al punto que su presencia es escasa en las áreas de extracción y relaves del proyecto minero, y que las parcelas de bosque allí localizadas están caracterizadas como muy explotadas –posiblemente para utilizar las tierras para agricultura y ganadería-, donde los árboles existentes no alcanzan el promedio generalizado para ser tenidos como bosques primarios, toda vez que sus diámetros son inferiores a cincuenta centímetros y su altura no alcanza en general los veinticinco metros, incluyendo las copas, por lo que se trata de bosques secundarios.

En el mismo sentido, se ha comprobado que las áreas de cobertura boscosa del proyecto minero sometidas a cambio de uso de suelo, se definen como vegetación leñosa de carácter sucesional, plantada sobre tierras inicialmente destruidas por actividades humanas, por lo que no se pueden considerar como bosques primarios sino como bosques naturales intervenidos hace más de treinta años. Asimismo, consta que en el área total del proyecto minero sobre la que se solicitó autorización de cambio de uso de suelo, se censaron 197 árboles de almendro que serían los individuos a cortar, mientras a octubre de dos mil ocho se había reforestado un total de 6,093 árboles de almendro, lo cual garantiza la existencia del almendro amarillo porque se están sembrando 103 árboles por cada árbol cortado y se ha constituido un vivero de dos hectáreas con capacidad de producir 67,500 árboles al año.

De igual forma, la Escuela de Ingeniería Forestal del Instituto Tecnológico concluye que la eliminación de 192 hectáreas de bosque secundario no implica una pérdida relevante en la biodiversidad y representatividad de los ecosistemas; que el plan de manejo y mitigación forestal aumentará la cobertura boscosa en un veinte por ciento; que la eliminación de 196 árboles de almendro de una población de más de 700 árboles no es un deterioro significativo de la posibilidad de alimentación de la lapa verde, ni pérdida de su hábitat; y que el remanente de árboles que queda en pie garantiza la variabilidad genética.

XLV.- De manera concreta, el informe de los científicos doctor Olman Murillo, M.S.c Braulio Vílchez y la ingeniera Yorleny Badilla, todos de la Escuela de Ingeniería Forestal del Instituto Tecnológico de Costa Rica, emitido en febrero de dos mil nueve -visible como anexo número 3 adjunto al expediente-, concluye entre otras cosas que la eliminación de 196 árboles de un total de poco más de 700 individuos de almendro (Dipteryx panamensis) a favor de la zona de explotación de manera directa, en terrenos propiedad de la empresa, no significa un deterioro significativo de la posibilidad de alimentación de la lapa verde (Ara ambigua), ni se puede considerar tampoco como una pérdida de hábitat importante, dado que ha sido una zona que no ha registrado la existencia de anidamiento de la lapa verde en los últimos 14 años y, al grado de deterioro en que ya estaban estos bosques desde su última intervención maderera ocurrida en la década de los años ochenta del siglo pasado.

Dado que la alimentación de la lapa verde (Ara ambigua) se basa en al menos treinta y siete especies vegetales, y que el árbol de almendro (Dipteryx panamensis) proporciona frutos únicamente durante dos o tres meses al año, no se puede argumentar la dependencia alimentaria exclusiva de estas aves en una sola especie forestal. También concluyen que la eliminación de población de poco más de 700 individuos dentro de la finca, implica la permanencia de más de 500 árboles, lo que representa un tamaño de población efectivo suficiente para garantizar su variabilidad genética y descartar cualquier grado de amenaza en las próximas generaciones. La siembra de más de 5000 árboles de almendro ocurrida en los últimos tres años en áreas sin bosque dentro de la propiedad, incrementarán considerablemente el tamaño de población efectiva de la especie en el muy corto plazo. En las conclusiones 9 y 10 se establece que la presencia de la empresa en la zona impidió que continuara el deterioro de los bosques, suelos y aguas de la propiedad adquirida; y que el plan de compensación y mitigación propuesto dentro de la propiedad supera en una relación aproximada a tres veces la eliminación en área de cobertura boscosa causado por la explotación minera.

De igual forma, se indica que las medidas adicionales de compensación propuestas en términos de reforestación y asignación de fondos para la compra de tierras dentro de áreas protegidas de la zona norte, permitirán superar notablemente la relación de proporcionalidad y racionalidad exigida por la normativa vigente en la materia –ver páginas 15 y 16 de dicho informe-.

XLVI.- Bajo estas consideraciones técnicas establecidas en el trasanterior considerando, y luego reforzadas por las valoraciones del reciente informe de cita, el veintiuno de mayo de dos mil ocho la empresa recurrida solicitó al Área de Conservación Arenal Huetar Norte, Sub-región San Carlos-Los Chiles el cambio de uso forestal de los terrenos donde se ubica la concesión minera. Para tramitar y resolver tal solicitud, el Área de Conservación respondió a la empresa que resultaba importante contar con un decreto que declarara de conveniencia nacional el cambio de uso de suelo, criterio que fue ratificado luego por la asesoría legal de esa misma Área. Paralelamente, la administración solicitó al regente forestal de la empresa la aclaración de una serie de dudas con respecto a la solicitud, apercibimiento que fue cumplido por la empresa el ocho de julio, por lo que una semana después -dieciséis de julio- se confirma a la empresa que previo a emitir la resolución final, es necesario aportar al expediente el decreto de declaratoria de conveniencia nacional e interés público del proyecto minero Crucitas.

Consta en el expediente que hubo alguna divergencia de criterio al interno del Ministerio del Ambiente, Energía y Telecomunicaciones sobre la necesidad de tal decreto, mas siempre se mantuvo la decisión de solicitar el mismo, por lo que el veinticuatro de setiembre de dos mil ocho se comunica a la empresa que sí se debe aportar el decreto de declaratoria de conveniencia nacional. Tal como se acreditó en el considerando anterior, en el transcurso del procedimiento de autorización de cambio de uso de suelo, se aportó al expediente documentación técnica que informa que para octubre de dos mil ocho se había sembrado ya la referida suma de 6,093 árboles de almendro; que las áreas de cobertura boscosa sujetas al cambio de uso se definen como vegetación leñosa sobre tierras originalmente destruidas; que la clasificación diamétrica de las parcelas inventariadas es inferior a cincuenta centímetros DAP (diámetro de altura al pecho); y que los bosques a intervenir son bosques naturales intervenidos con altura inferior a los veinticinco metros.

Así, finalmente, el Poder Ejecutivo adopta el Decreto Ejecutivo número 34801-MINAET, el cual es publicado en La Gaceta número 201 del diecisiete de octubre del mismo año, por lo que ese mismo día el Área de Conservación Arenal Huetar Norte aprueba y autoriza la solicitud de cambio de uso de suelo solicitada por la empresa recurrida, autorizando de manera expresa la corta de 197 árboles de esa especie.

XLVII.- En este sentido, la Sala advierte que la administración recurrida autorizó el cambio de uso de suelo y la corta de árboles de almendro previa realización del procedimiento administrativo necesario, el cual consideró tanto la demostración técnica del impacto de la corta a realizar, como la declaratoria de conveniencia nacional del proyecto a ejecutar. Cumplidos estos requisitos, la administración autorizó la solicitud planteada, por lo que debe descartarse que tal decisión administrativa sea arbitraria, pues según se ha dicho, la administración tomó las previsiones necesarias para asegurar que lo propuesto no impactaría de manera negativa al ambiente. Según lo dicho en los considerandos precedentes, la Sala no soslaya que el almendro amarillo sea una especie que se ha encontrado amenazada, que el Poder Ejecutivo había reconocido previamente ese peligro, ni que la Sala había dispuesto la prohibición de corta del almendro; sin embargo, debe hacerse notar que los criterios técnicos establecidos durante la substanciación del procedimiento administrativo informan la escasa o nula afectación ambiental con la corta de 197 árboles sobre una población de más de 700 individuos, partiendo que los árboles de almendro a cortar no son bosque primario sino secundario y joven, y que el plan establecido que ya se estaba cumpliendo a ese momento, implica la siembra de 103 almendros por cada árbol de esa especie que sea cortado, razones por las cuales no se disminuye la población de almendros sino que se aumenta sustancialmente la misma e incluso la cobertura boscosa general en un veinte por ciento.

XLVIII.- Asimismo, debe tenerse en consideración los motivos por los cuales se procedería a la corta de esos árboles de almendro, pues la prohibición expresa establecida por la Sala en la sentencia 2008-13426 está referida por una parte a la explotación, extracción y aprovechamiento de los árboles de almendro, y por otra –según lo establecido previamente-, a que esos árboles se encontraren en los sitios de anidación de la lapa verde. Con respecto a la primera situación, es claro que en el caso bajo estudio el motivo de la corta de los árboles de almendro no era la explotación ni el aprovechamiento económico de la madera de esos árboles; por el contrario, bajo juramento la administración afirma que los árboles cortados no serían vendidos, sino donados para realizar obras sociales en la zona de influencia del proyecto –más adelante se vuelve sobre este punto-. Por su parte, en cuanto a si en el caso concreto resulta de aplicación la restricción de eliminar el almendro en los sitios de anidación de la lapa verde, debe necesariamente estudiarse la situación del ave con respecto a la autorización de corta de 197 árboles de almendro.

XLIX.- La situación de la lapa verde con respecto al cambio de uso de suelo en el proyecto minero Crucitas y la autorización de corta del almendro amarillo. Señalan los recurrentes que la tala de árboles de almendro autorizada por el Área de Conservación Arenal Huetar Norte, con base en el Decreto 34801-MINAET, dará como resultado la irremediable extinción de la lapa verde, por lo que el Estado está incumpliendo los compromisos ambientales voluntariamente asumidos y propiciando la extinción de esta especie. Sobre el particular merecen destacarse diferentes aspectos, tanto del almendro en sí como de la lapa y la relación existente entre ambas especies.

L.- Sobre la existencia del almendro, la alimentación y la reproducción del ave. Tal como se ha referido, la corta de 197 árboles de almendro no compromete su existencia en la zona, al punto que la presencia del almendro se encuentra garantizada con la reforestación que se está efectuando en el área global del proyecto, reforestación que es impulsada por el vivero implementado. El Plan de Manejo Forestal del proyecto, indica que el vivero dará prioridad a especies nativas con semillas certificadas de almendro y titor, árboles que proveen buena parte de la cuota alimentaria de la lapa verde, por lo que con ello tiende a garantizarse no sólo la existencia del almendro –y reducir la amenaza de su disminución sin planes de sustitución-, sino que también asegura fuentes de alimentación para el ave. En todo caso, en cuanto a los aspectos alimentarios de la lapa, el Centro Científico Tropical acredita que para su alimentación la lapa verde no depende exclusivamente de la zona de Crucitas, así como tampoco esa zona es la zona exclusiva de tránsito del ave –no es sólo por allí que el ave transita-; por el contrario, afirma el Centro que el proyecto minero no interrumpirá el proceso de reproducción del ave ni su ciclo de alimentación, misma conclusión a la que arriba el Informe sobre los Aspectos de Conservación Biológica de la Lapa Verde y el Almendro Amarillo, informe que también establece que la lapa obtiene su alimentación de al menos treinta y siete especies diferentes de árboles.

LI.- Con respecto a la reproducción de la lapa verde, se ha acreditado en autos que la lapa anida en árboles maduros de almendro con un DAP –diámetro de altura al pecho- promedio de 129 centímetros –ver informe del Centro Científico Tropical-, aunque también se indica que anida en árboles de Guanacaste, Blanco, Botarrama y Caobilla. Sin embargo, ya desde octubre de dos mil ocho, el Informe de Aspectos Forestales concluye que la clasificación diamétrica de la mayoría de los árboles en el área del proyecto es de un DAP inferior a 50 centímetros, y, según el Centro, solamente cuatro árboles mostraban un diámetro mayor a 120 centímetros. Estas apreciaciones y los hallazgos encontrados en los árboles cortados, hacen concluir que el ave no anida en la zona de Crucitas, sino que el hábitat óptimo de la lapa verde es el Refugio Maquenque, lo cual concuerda con las manifestaciones de la empresa en el sentido que estudios del año dos mil tres demuestran que el ave anida en un área de mil kilómetros cuadrados situada fuera del área del proyecto, y de la propia administración, quien afirma que no se encontraron nidos ni vestigios en los árboles removidos.

Asimismo, se ha explicado dentro del recurso, que la época reproductiva del ave abarca de diciembre a junio, poniendo los huevos en huecos grandes formados en los troncos de almendro, y durante esa época sí depende en un noventa por ciento de los frutos de almendro; sin embargo, pasada la época de reproducción –durante julio a noviembre- las aves se dispersan y obtienen el alimento de más de treinta especies diferentes de árboles, porque durante esa época no reproductiva el almendro no da frutos. Es en esta época no reproductiva que el ave llega o transita por la zona de Crucitas.

LII.- Resultan de interés también las conclusiones a las que arriba el M.Sc Jorge Hernández Benavides en su informe sobre los Aspectos de Conservación Biológica de la Lapa Verde y el Almendro Amarillo -aportado como Anexo No. 2-, que ratifica que la lapa verde no depende exclusivamente de la zona Las Crucitas para su alimentación, ya que ésta hace uso de un extenso territorio compartido entre Nicaragua y Costa Rica -parte de cantones de San Carlos, Sarapiquí y Pococí-. Se indica que el área de forrajeo de la lapa supera el área de influencia del proyecto minero aproximadamente en 1.500 hectáreas y concluye que la lapa verde no anida en la zona de Crucitas. El nido más cercano se encuentra a 8.7 kilómetros, y explica que ello probablemente es así debido a la alta fragmentación del hábitat en esa zona y a la falta de árboles maduros de almendro amarillo. También refiere que dicha zona no es exclusiva para el tránsito de la lapa verde, pues el ave hace uso de un extenso territorio compartido entre Nicaragua -Reserva Biológica Indio-Maíz y su zona de amortiguamiento en los municipios de El Castillo, San Juan del Norte, así como en la Región Autónoma del Atlántico Sur- y Costa Rica -parte de cantones de San Carlos, Sarapiquí y Pococí-.

Señala que el proceso de reproducción de las 25 ó 35 parejas de lapas verdes que anidan en Maquenque no se verá interrumpido con el proyecto minero, por cuanto Las Crucitas se encuentra fuera del rango de reproducción de la lapa verde. Lo que puede disminuir es la visita de la lapa verde al proyecto minero debido a la disminución de los árboles de almendro amarillo y a la actividad humana presente; sin embargo, indica que el cambio de uso de suelo en 192 hectáreas del proyecto no interrumpirá el ciclo alimenticio de la población de la lapa verde que anida en Maquenque, el cual se encuentra a 8.1 kilómetros, lo que puede producir es el desplazamiento ya referido. Indica que el proyecto se encuentra en el noroeste del Corredor Biológico San Juan-La Selva y forma parte de una de las áreas más importantes para la Conservación de Aves, de la Reserva de Biosfera Agua-Paz y del Corredor Binacional El Castillo-San Juan-La Selva.

Esta zona ha sido definida como un núcleo importante para la conservación dentro del Corredor Biológico San Juan-La Selva y ha sido priorizada por el Sistema Nacional de Áreas de Conservación. Refiere que el proyecto minero afecta un ecosistema único y es por esa razón que las medidas de mitigación de la corta de individuos de almendro amarillo y sus impactos perjudiciales sobre la población de la lapa verde deben ser orientadas a reparar los daños causados. Sin embargo, señala que desde su punto de vista, sembrar una cantidad aún muy alta de almendro amarillo para compensar los cortados no contribuye a recuperar este ecosistema, ni permite que la lapa verde se pueda alimentar a corto o mediano plazo en la zona, ya que no suele frecuentar árboles bajos. Agrega que comprar tierras en la cuenca alta del río San Carlos para la conservación del Parque Nacional Juan Castro Blanco, no contribuye de ninguna manera a garantizar la viabilidad de la población del almendro amarillo y la lapa verde, por lo que recomienda que los proyectos de compensación y mitigación del proyecto persigan los siguientes objetivos: “1-consolidar el RNVSM Maquenque por medio de la implementación de su Plan de Manejo (funcionarios del SINAC, vigilancia, infraestructura, compra de tierra, educación, monitoreo y ciencia, etc) 2-Fortalecer la conectividad del Corredor Biológico San Juan –La Selva por medio de actividades de restauración ecológica en los nexos críticos de las rutas de conectividad identificadas.

Así como un mayor compromiso del gobierno para consolidar el RNVSM Maquenque con el apoyo de la sociedad civil.” LIII.- En resumen, la lapa verde anida en árboles maduros de almendro –u otras especies- con DAP mayores a 120 centímetros, de los cuales no hay en la zona de Crucitas, por lo que en esa zona no existen nidos de lapa verde; mientras se reproduce –fuera del área del proyecto-, el ave sí se alimenta de almendro, y una vez superada la época reproductiva sí vuelan y pasan por la zona de Crucitas, pero para entonces el almendro no está dando frutos, por lo que no se alimentan de él sino de las más de treinta especies arbóreas de las cuales obtienen alimento. En consecuencia, resulta inexacto afirmar que la tala de 197 árboles de almendro en la zona de Crucitas conlleva a la irremediable extinción de la lapa verde, pues no pone en riesgo ni su reproducción ni su alimentación.

Por el contrario, el impulso de las labores de reforestación de almendro amarillo y la conservación de esta especie en zonas aledañas, permitirá en el futuro que el ave encuentre más opciones de anidación y, por ende, alimentación durante la época reproductiva.

LIV.- Sobre la ubicación del proyecto minero Crucitas en el área del Corredor Biológico Mesoamericano. Durante la vista celebrada los días doce, trece y diecisiete de noviembre de dos mil nueve, se planteó y externó la preocupación de que el proyecto minero Crucitas se encuentra ubicado en una zona del denominado Corredor Biológico Mesoamericano, por lo que el proyecto podría tener un impacto negativo en la biodiversidad e incidir en los fines de protección del Corredor. Sobre el particular, tal como indica el estudio Corredores Biológicos de Costa Rica, compilado por Luis Rojas y María Isabel Chavarría –ver folio 4886-, un corredor biológico «es un espacio delimitado que proporciona conectividad entre paisajes, ecosistemas y hábitat, naturales y modificados, asegurando el mantenimiento de la diversidad biológica y los procesos ecológicos y evolutivos (…). Tiene como objetivo fundamental conectar integralmente bosques con bosques, agua con agua, especies con especies, seres humanos con seres humanos».

De manera concreta sobre el Corredor Biológico Mesoamericano, señala este estudio que el mismo está orientado hacia un desarrollo socio-productivo más sostenible, la seguridad alimentaria en la región y la valoración de los conocimientos de las comunidades locales, el mejoramiento de la participación de la gente en la toma de decisiones referentes a su desarrollo, y la reducción de la fragmentación social por medio del establecimiento de alianzas entre los grupos y los sectores de interés. En este sentido, entiende la Sala que la existencia de un corredor biológico no impide la realización de actividades económicas o productivas, siempre que las mismas sean realizadas dentro de un marco de protección ambiental que impida efectos negativos contra la biodiversidad y favorezca el desarrollo económico y social, de donde resulta que una actividad económica determinada sí puede ser permitida si la misma asegura el mantenimiento de los fines del corredor biológico y posibilita un mejor desarrollo económico-social.

En el caso de la zona donde se ubica el proyecto minero, y como parte del Corredor Biológico Mesoamericano, refieren las autoridades recurridas que ciertamente existe el denominado Corredor San Juan-La Selva –según lo dicho en el considerando trasanterior, el proyecto se sitúa al noroeste de este corredor-, el cual busca rescatar la zona norte del país del proceso de deforestación generado en los años setenta del siglo XX, por lo que este Corredor pretende consolidar seis áreas protegidas en una sola unidad geográfica, que suman un millón doscientos cuatro mil ochocientos doce hectáreas, y que tiene como unidad de conservación central el Refugio Nacional de Vida Silvestre Maquenque –superficie de sesenta mil hectáreas-, ubicado al sur de la Reserva Indio Maíz de Nicaragua, y colindando con el límite oeste de Barra del Colorado. Indican las autoridades que se espera que ese Corredor permita ordenar las acciones, inversiones e intervenciones necesarias, así como priorizar las que se estén desarrollando, tanto para el desarrollo social-económico como para la conservación de la biodiversidad.

En este sentido, si justamente dentro de los objetivos del Corredor Biológico Mesoamericano y del Corredor San Juan-La Selva se encuentra el fomento del desarrollo socio-económico con protección de la biodiversidad, es claro que en estas áreas puede autorizarse la implementación de iniciativas productivas cuyo impacto sobre el ambiente no sea negativo. Asimismo, si la unidad central del Corredor San Juan-La Selva es el Refugio Nacional de Vida Silvestre Maquenque, se ha documentado que el área donde se piensa desarrollar el proyecto minero se encuentra a una distancia cercana a los veinte kilómetros de este Refugio, así como a cuarenta y tres kilómetros ochocientos metros del Refugio Caño Negro, y a una distancia aún mayor del Refugio Barra del Colorado, que como tales sí son áreas con especiales regímenes de protección que por su naturaleza son distintos a los que operan en materia de corredores biológicos.

En todo caso, debe tomarse en consideración que tal como se informa, para la ejecución del proyecto minero será necesaria la eliminación de ciento noventa y dos hectáreas de bosque ya intervenido, lo cual se indica no representa una pérdida relevante en la biodiversidad y representatividad de los ecosistemas, pues esa cantidad es el 0.38% de la cobertura boscosa del distrito de Cutris, y donde se determina una frecuencia de árboles de almendro amarillo de 1.12 árboles por cada hectárea, por lo que aún efectuando la corta, perviven en la zona más de quinientos árboles de almendro amarillo. De tal forma, si se acredita la inocuidad de actividades dentro de los corredores biológicos, las autoridades competentes pueden autorizar el desarrollo de las mismas, para lo cual deberán asegurarse los estudios técnicos que corresponda, tal como lo puede ser las definiciones que sobre el impacto sobre la biodiversidad contenga un estudio de impacto ambiental.

Así, en el caso bajo estudio y según se ha definido en los considerandos precedentes, una vez realizado el procedimiento correspondiente –incluyendo la socialización y participación de la comunidad- la Secretaría Técnica Nacional Ambiental otorgó la viabilidad ambiental al proyecto minero Crucitas, por lo que se tuvo por validados los estudios técnicos presentados y se tomó en consideración la percepción social de la actividad; asimismo, según se ha indicado, las autoridades técnicas refieren que no existe amenaza o riesgo para la pervivencia de especies como el almendro amarillo y la lapa verde, lo que aunado a los beneficios socio-económicos de la actividad productiva, llevaron a la administración a validar su desarrollo bajo los compromisos y mecanismos de control aprobados. En todo caso, debe tomarse en consideración que tal como lo propuso la empresa al solicitar la modificación del proyecto minero, y así fue aprobado por la Secretaría Técnica Nacional Ambiental mediante resolución 170-2007-SETENA, esta modificación implica una reducción en el área de extracción, la cual pasa de 126.4 hectáreas a 50 hectáreas, situación que por sí misma implica una reducción cercana al 60% del área a impactar con la corta de árboles; es decir, la modificación planteada y aprobada significa talar menos árboles, evitando la afectación de 75 hectáreas que inicialmente serían taladas.

Asimismo, los compromisos asumidos por la empresa indican –tal como lo señala la resolución de cita- que aumentará el área a reforestar, pues se pasará de reforestar 336 hectáreas –de las cuales 272 hectáreas lo serían con especies comerciales-, a reforestar 382 hectáreas y sólo con especies nativas de la zona, ya no con especies comerciales; esto implica 46 hectáreas más que ahora serán reforestadas. En este sentido, la reforestación que deberá implementar la empresa como parte del proyecto, a razón de 1,600 árboles por hectárea, da un gran total de 611,200 árboles reforestados al finalizar la fase de cierre del proyecto. De tal forma, lejos de representar una afectación negativa para el Corredor Biológico Mesoamericano, la reducción del área a impactar y el aumento del área a reforestar implican a mediano plazo una mejoría en la cobertura boscosa del área, al pasar de una región de bosques intervenidos con evidentes espacios no conectados entre sí, hacia una cobertura forestal amplia y nativa que sí debe permitir la conexión o interconexión de tales espacios, favoreciendo con ello la integración de los diferentes elementos biológicos involucrados, y cumpliendo así con la definición y los objetivos de un corredor biológico según se indica en el informe de comentario.

De tal forma, ante la existencia del criterio técnico reseñado y de los compromisos asumidos por la empresa recurrida, resulta impropio aducir ante la jurisdicción constitucional la presunta afectación del Corredor Biológico Mesoamericano como un factor para impedir el desarrollo de esta actividad. De tal forma, ante la existencia del criterio técnico reseñado, resulta impropio aducir ante la jurisdicción constitucional la presunta afectación del Corredor Biológico Mesoamericano como un factor para impedir el desarrollo de esta actividad.

LV.- Sobre la utilización de explosivos y su aducido impacto en el entorno biológico del proyecto minero Crucitas. Un aspecto adicional señalado durante la realización de la vista, fue la afectación que para la biodiversidad puede representar el uso de explosivos en el desarrollo de la actividad de extracción del material, habida cuenta que se adujo que el ruido y el polvo producto de las explosiones afectarían el entorno biológico del proyecto. Sobre el particular, tal como se ha señalado en el capítulo de Hechos Probados, debe indicarse que el proyecto minero Crucitas fue inicialmente tramitado, conocido y estudiado por la Dirección de Geología y Minas del Ministerio del Ambiente y Energía bajo el número de expediente 2594. Al valorar el proyecto minero Crucitas, la Dirección de Geología y Minas solicitó a la empresa desarrolladora la presentación de un documento anexo a su solicitud en el que se aclarara el uso de explosivos en los frentes de explotación, aportando para ello el diseño de las voladuras y el manejo integral de los explosivos, lo cual se indica fue aportado por la empresa, consignando también la carga típica a utilizar tanto en roca dura como en la saprolita –ver folio 5379-.

En efecto, dentro del referido expediente 2594 consta el denominado «Estudio de Factibilidad», el cual en sus páginas 4-6 a 4-8, y 4-18 a 4-23, define lo relativo a cómo se realizarán las perforaciones, cómo se harán las voladuras y las cargas de los explosivos, cómo se transportarán los mismos y qué mantenimiento debe darse a los caminos; también se indica en este estudio, cómo debe disponerse la planta de servicio de explosivos, el personal relacionado con el proceso y los diseños de las voladuras. En adición a este estudio, consta también ante la Dirección de Geología y Minas y dentro del mismo expediente 2594, como anexo al Estudio de Factibilidad, el apéndice 5, denominado «Manejo de Explosivos y Voladuras, Proyecto Minero Crucitas, San Carlos, Alajuela», de octubre de dos mil, elaborado por el Ingeniero en Minas Tomás Goic. Este apéndice considera el diseño de las voladuras a cielo abierto, el diámetro de perforación, el espaciamiento entre ellas, la distribución de la carga explosiva y la necesaria para roca saprolita y roca dura, todo lo cual se hace acompañar de diagramas que explican estos diferentes aspectos.

Así, dentro de ese expediente 2594 se dictó la resolución número R-578-2001-MINAE, de las nueve horas del diecisiete de diciembre de dos mil uno, por la cual se otorgó a la empresa recurrida la concesión de explotación minera. En esta resolución la Dirección de Geología y Minas reconoce que el proyecto minero Crucitas utilizará explosivos en el proceso de extracción del oro; haciendo referencia a los estudios técnicos realizados y al oficio número DGM-DC-320-2001 –para todos los efectos incorporado a la resolución de cita- el Ministerio del Ambiente define que «[e]n cuanto al uso de explosivos, esta Dirección velará porque se emplee la tecnología que cause el menor impacto al ambiente y en apego a la normativa vigente en esta materia», y bajo estas condiciones otorga la concesión de explotación minera. De tal forma, es claro que ante la Dirección de Geología y Minas ya se había analizado la utilización de explosivos en el procedimiento de extracción del oro.

Sin embargo, esta resolución fue anulada por esta misma Sala Constitucional mediante sentencia número 2004-13414, de veintiséis de noviembre de dos mil cuatro, indicando la Sala que esa anulación lo era sin perjuicio de lo que determinara el Estudio de Impacto Ambiental de ese proyecto de explotación, esto por cuanto la Sala definió en aquel momento que dicho Estudio debía aprobarse de previo al otorgamiento de la concesión de explotación. Mientras tanto, como se ya se ha acreditado, desde el doce de marzo de dos mil dos la empresa recurrida había iniciado ante la Secretaría Técnica Nacional Ambiental el procedimiento de aprobación del Estudio de Impacto Ambiental del proyecto minero Crucitas; cumplidas las prevenciones ya explicadas emitidas por SETENA, la empresa presentó el Estudio de Impacto Ambiental correspondiente, el cual fue finalmente aprobado mediante la resolución 3638-2005-SETENA.

Sin embargo, a pesar de la valoración inicial efectuada en sede de la Dirección de Geología y Minas, al presentarse el Estudio de Impacto Ambiental –doce de marzo de dos mil dos-, el proyecto no consideró la necesidad de utilizar explosivos por cuanto la profundidad pretendida sería menor a la que luego se propuso, esto por cuanto en aquel momento las condiciones económicas en torno a la explotación del oro y la condición financiera de la empresa así lo determinaban, pues se trataba de una explotación más superficial que no implicaba la extracción de roca dura, y por tanto, sin utilizar explosivos, solamente remoción de tierra y excavación. Al haberse aprobado el Estudio de Impacto Ambiental, el treinta de mayo de dos mil siete la empresa solicitó a la Dirección de Geología y Minas la convalidación de la mencionada resolución 578-2001-MINAE, pero estando en curso esta tramitación, la empresa también presentó ante SETENA la solicitud de modificación del proyecto minero, pues al variar aquellas condiciones iniciales bajo las cuales se presentó el Estudio de Impacto Ambiental –y al exigir la legislación canadiense que las empresas mineras de su nacionalidad emitiesen información indiscutible en cuanto al recurso minero disponible-, la empresa desarrolladora consideró importante efectuar una modificación al proyecto en el sentido de disminuir el área de explotación, pero aumentando la profundidad de la misma; al aumentar la profundidad, sería distinto el material a extraer, porque al aumentar la profundidad sí se encuentra roca dura, razón por la cual debía acudirse nuevamente a la propuesta inicial de utilización de explosivos, cuyo uso, en todo caso, había sido ya valorado por la Dirección de Geología y Minas.

Así, tal como se ha indicado, la empresa solicitó a SETENA la aprobación de una propuesta de modificación al proyecto, solicitud que fue acompañada de la denominada «Evaluación Ambiental de Cambios Propuestos al Proyecto Minero Crucitas»; como apéndice 1 de esta evaluación figura el «Manual de Procedimientos de Voladura” elaborado por la empresa Explotec, el cual define cómo debe ser el almacenamiento de los explosivos, cómo debe disponerse la zona de los polvorines, los mecanismos de uso y seguridad de estos materiales –control de operaciones, protección, preparación, qué hacer con el material no utilizado, cómo se carga, la seguridad del área de voladura y la protección del personal-, así como la forma de transportar los explosivos –incluyendo cómo debe disponerse su transporte, en qué tipo de vehículos y el mantenimiento y operación que debe darse a los mismos-.

Esta modificación fue aprobada por la Secretaría Técnica mediante resolución 107-2008-SETENA, de cuatro de febrero de dos mil ocho. Así, finalmente y mediante resolución número R-217-2008, del veintiuno de abril de dos mil ocho, y reconociendo todo el procedimiento aquí descrito, el Poder Ejecutivo otorgó la concesión de explotación minera a favor de Industrias Infinito Sociedad Anónima; en esta nueva resolución se tiene por acreditado igualmente que la empresa desarrolladora utilizará explosivos en el proceso de extracción, y contiene una referencia en idénticos términos a los ya citados en cuanto a que la Dirección de Geología y Minas velará porque la empresa utilice la tecnología que cause el menor impacto al ambiente. De tal forma, es claro que el uso de explosivos en el proyecto minero Crucitas, es un aspecto que ha sido planteado y resuelto favorablemente tanto por la Dirección de Geología y Minas como por la Secretaría Técnica Nacional Ambiental, ambos órganos técnicos de la administración con competencia específica para pronunciarse sobre el particular.

En todo caso, dado el cuestionamiento planteado ante la Sala, y aunque se ha demostrado que el tema de los explosivos sí fue considerado en sede administrativa, se considera importante formular las siguientes apreciaciones.

LVI.- Sobre el tipo de explosiones y sus efectos. Es importante mencionar que la empresa recurrida afirma que en materia de explosivos y explosiones se utilizará el sistema de «voladura controlada», la cual se define como «aquella que tiene por objetivo evitar el rompimiento de la roca fuera de límites previamente establecidos. Las cargas explosivas son de baja energía y se colocan de forma cercana entre sí, controlando la dispersión de las rocas y el ruido producido»; en este sentido, al utilizar este sistema de «voladura controlada», la vibración, el ruido, el polvo y los gases generados son de baja intensidad y periodicidad, limitándose a un máximo de dos explosiones por semana. A manera de ejemplo, explica la empresa que una voladura a una distancia de doscientos a quinientos metros produce un ruido máximo de 103.8 y 95.3 decibeles, respectivamente, mientras que criterios técnicos acreditan que un trueno produce un ruido de 120 decibeles –ver página 50 de documento aportado por la empresa del veintisiete de noviembre de dos mil nueve-.

Es ante ello, que las autoridades recurridas concluyen que debido al tipo de explosivos que se utilizará, la fauna no se verá afectada –ver folio 5379-, pues sus efectos serán muy puntuales y localizados en tiempo y espacio, sin que se prevea afectación para la fauna local –incluyendo las lapas-, pues los efectos durarán poco tiempo y solamente provocará el alejamiento temporal de las especies en los días siguientes, volviendo a sus actividades normales en muy corto plazo.

LVII.- Esta conclusión de las autoridades competentes coincide con lo explicado en torno a este tipo de explosiones en el curso de capacitación sobre explosivos impartido en junio de dos mil siete a la Secretaría Técnica Nacional Ambiental por el Ingeniero Orlando Reyes, Gerente Técnico de la empresa ORICA Mining Services Centroamérica Sociedad Anónima –copia del material utilizado en este curso fue aportado al expediente por la Regente Ambiental del proyecto minero Crucitas-. En esta actividad de capacitación, se explica que el término «voladura» se refiere a un mecanismo de rotura de las rocas por acción de los explosivos, pero aclara que estos explosivos –denominado pólvora de minas- son mezclas de azufre, carbón vegetal y nitrato potásico, y se diferencian de los explosivos convencionales en que deflagran en lugar de detonar, y por ello son muy apropiadas para el arranque de rocas ornamentales como granito, mármol y pizarra.

Tanto la detonación como la deflagración son fenómenos de óxido-reducción, pero la deflagración es de carácter subsónico, mientras que la detonación es de carácter supersónico, pues en este último caso, las ondas de compresión se propagan a velocidad mayor que la del sonido. De tal forma, una detonación es una reacción química a alta velocidad que crea una onda de choque, mientras que la deflagración es una reacción térmica que no produce ondas de choque. En cuanto a los aspectos técnicos, menciona que la energía del explosivo debe estar confinada a lo largo de la perforación para producir el fracturamiento y desplazamiento de la roca, y que los resultados de una voladura dependen más de las propiedades y estructuras de la roca que de las propiedades de los explosivos. Así, refiere que los efectos de las voladuras pueden afectar potencialmente el medio ambiente principalmente de tres maneras: acústica –ruido producido-, vibraciones –vibración del terreno- y gases producidos.

Afirma la presentación que la contaminación acústica producida por las voladuras puede ser absolutamente controlada utilizando apropiadas y conocidas técnicas modernas de control, dentro de las cuales se encuentra la detonación secuenciada, por la cual se diseña y establece adecuadamente la cantidad de explosivo para cada evento, de forma tal que las vibraciones producidas estén dentro de los parámetros aceptados en las regulaciones locales o internacionales. Indica que lo más importante es que el control de afectación potencial producido durante las voladuras por efecto de las vibraciones, pasa única y exclusivamente por la distribución de las cargas explosivas en el tiempo, y en la dosificación de estas y esto es totalmente controlable y se diseña para cada caso específico. El curso profundiza en cuanto a la contaminación acústica, explicando que el sonido causado por una voladura puede ser minimizado y controlado utilizando adecuadamente los elementos de retardo y eliminando el uso de cordón detonante en la superficie de la voladura; de esta forma, el sonido que se perciba será principalmente el de las cargas en superficie, sonido que en todo caso no sobrepasa los 50 decibeles en el sitio exacto de la detonación, recordando que en toda voladura, las personas deben estar a lo menos a una distancia de trescientos metros por razones de seguridad, y a esta distancia el sonido es en ocasiones apenas perceptible.

La explosión de las cargas dentro de las perforaciones no aporta mayor sonido si estas se encuentran apropiadamente confinadas, como debe ser para conseguir el efecto deseado -que la energía liberada se utilice para el fracturamiento de la roca- y lo que se percibe por los seres humanos y fauna es principalmente la vibración producida por estas detonaciones pero en un rango máximo aproximado de unos trescientos metros, la cual se puede predecir y controlar hasta los valores mínimos. En materia de gases, explica que así se denomina al conjunto de productos resultante de una voladura, que comprende los gases inocuos de vapor de agua, nitrógeno, dióxido de carbono, algunos productos sólidos y líquidos y los gases como el monóxido de carbono y los óxidos de nitrógeno; los gases producidos durante la detonación del explosivo en tajo abierto son los que provocan la ruptura de la roca, dada sus altas presiones y temperatura, pero estos gases se diluyen al entrar en contacto con el aire, llegando a presentar concentraciones en el aire que no se consideran riesgosas para el ser humano ni la flora y fauna, pues el control y diseño adecuado de las voladuras son las que disminuyen la posibilidad de generación de gases a la atmósfera.

De tal forma, lo indicado en este curso impartido a la Secretaría Técnica Nacional Ambiental, se encuentra en el mismo sentido de lo resuelto por las autoridades recurridas en cuanto a la declaración que el tipo de explosiones a implementar en el proyecto minero, carecerá de efectos negativos sobre el entorno biológico, siempre que se observe de manera adecuada los protocolos de aplicación y seguridad correspondientes.

LVIII.- En el mismo sentido, la Regente Ambiental del proyecto expone como ejemplo las voladuras que se realizan en casos urbanos para la construcción de sótanos, indicando un caso concreto en una zona de edificios de oficinas, donde se han desarrollado explosiones al lado de edificaciones que mantienen su plena ocupación, es decir, sin desalojar a las personas, y donde el radio de percepción de la explosión no fue más allá de sesenta metros de distancia, datos que fueron verificados por geófonos, los cuales son instrumentos que miden las ondas sísmicas. Además, explica que este mismo tipo de voladuras como las que se realizarán en el proyecto minero, se implementan regularmente en tajos ubicados en el Valle Central, alrededor de los cuales se encuentran zonas residenciales o urbanizadas a tan sólo doscientos metros de distancia, todo lo cual demuestra, en su criterio y de acuerdo con lo aquí indicado, que el proceso de voladuras controladas no representa riesgo significativo para la flora y fauna que habita en zonas aledañas al proyecto minero Crucitas.

LIX.- El conocimiento social sobre la utilización de explosivos. Al incluirse la utilización de explosivos en la propuesta de modificación del proyecto, la referida Evaluación Ambiental de Cambios Propuestos al Proyecto Minero Crucitas contempló como Apéndice 2 el “Estudio del conocimiento y la percepción local de la modalidad de explotación de roca dura”, elaborado en octubre de dos mil siete, en el cual se acredita ante la Secretaría Técnica Nacional Ambiental, que dadas las modificaciones planteadas, se repitió el análisis de la percepción local del proyecto para determinar el grado de conocimiento que la población tenía de los cambios propuestos en relación con la reducción del área de extracción y el procesamiento de saprolita y roca dura, así como sus efectos en las condiciones sociales y económicas de las comunidades en el área de influencia del proyecto.

Se informa que se realizaron grupos focales y conversación abierta con representantes de organizaciones y personas en su carácter individual, cumpliéndose así diez diferentes reuniones celebradas en Ciudad Quesada, Coopevega, Moravia de Cutris, Chamorro, el Roble, Crucitas, Llano Verde y Jocote, así como otras visitas individuales a personas o familias de poblaciones más pequeñas y alejadas. Las convocatorias se realizaron de manera verbal y a través de comunicados escritos pegados en las comunidades y sitios de reunión de vecinos, y su contenido consideró de manera expresa los antecedentes, las razones técnicas y financiera para cambiar el modelo de explotación, la viabilidad del modelo saprolita, los principales cambios en el área del proyecto con el modelo roca dura, los impactos sociales y ambientales asociados al nuevo modelo de explotación y la generación de impuestos con el nuevo modelo.

El estudio concluye que los entrevistados destacaron principalmente efectos positivos en el cambio, porque se reduce considerablemente el área a impactar y habrá mayor generación de empleo con la modalidad propuesta. Este estudio sobre percepción social, se acompaña también de otros apéndices propios como son la guía de entrevistas, el cuestionario para la consulta individual, la lista de personas entrevistadas y participantes en grupos focales y resúmenes de los resultados de entrevistas grupales.

LX.- La aprobación de la propuesta de modificación en lo que atañe al uso de explosivos. De tal forma, habiéndose presentado la solicitud de modificación del proyecto adjuntando los estudios correspondientes al uso de explosivos y la percepción social sobre esta modalidad, mediante resolución No. 170-2008-SETENA, de cuatro de febrero de dos mil ocho, la Comisión Plenaria aprobó la modificación solicitada por la empresa, haciendo alusión de manera concreta a que el proyecto inicial contemplaba la extracción de saprolita hasta una profundidad de 15 m., por implicar un menor costo de extracción; sin embargo, en atención a los cambios del proceso del oro y por no cumplir la empresa con una norma exigida en su país de origen –Canadá-, se solicitó como parte de los cambios extraer además la roca dura -donde aumenta la probabilidad de una mayor cantidad de oro- con profundidades de 67 m y reducir el área de extracción de 126.4 hectáreas a 50 hectáreas.

Asimismo, como la extracción de roca dura implica la utilización de voladuras para el avance apropiado de bloques de extracción y de la adecuada conformación de los taludes de las paredes de los tajos, la empresa se comprometió a contratar un desarrollador certificado para este tipo de actividad. En este sentido, la Sala advierte que la entidad técnica competente en esta materia sí tuvo conocimiento tanto del contenido de la modificación propuesta, de los mecanismos de aplicación y utilización de explosivos, y de la difusión social que se realizó a estas modificaciones –uso de explosivos incluido-, todo lo cual llevó a la administración a considerar que el uso de explosivos no generaría impacto negativo sobre el entorno biológico, razón por la cual aprobó la solicitud planteada por la empresa recurrida. Debe reiterarse que el conocimiento técnico de las solicitudes y pretensiones como las aquí indicadas, son del resorte de entidades técnicas de la administración, por lo que si los órganos pertinentes han vertido su criterio científico sobre el particular, escapa al ámbito de competencias de la jurisdicción constitucional discutir si tal criterio se encuentra ajustado al carácter también técnico de los elementos tenidos en cuenta por la administración para la emisión de su pronunciamiento; en consecuencia, si los interesados consideran que existe alguna inconformidad al respecto, deberán interponer las acciones pertinentes ante los órganos que corresponda.

LXI.- La Sala es conciente de las alarmantes afirmaciones tanto de los recurrentes como de los recurridos, en el sentido que se ha acreditado la existencia de tan sólo veinticinco parejas de lapas verdes, mas este inquietante dato y el temible escenario que se cierne de mantenerse las condiciones actuales no es atribuible de manera alguna a la autorización de cambio de uso de suelo, sino a la ausencia de monitoreos y controles anteriores sobre esta situación, que llevaron a la explotación indiscriminada de coberturas boscosas sin parámetros técnicos como los que ahora se implementan y deben mejorarse, y la sustracción del ave de su entorno natural con fines comerciales y de entretención doméstica. En este sentido, y tomando en cuenta las recomendaciones técnicas pronunciadas, la Sala insta a la administración a fortalecer los controles adecuados y el monitoreo pertinente, para dar seguimiento a la situación de la lapa verde y aminorar los riesgos de extinción que ahora se vislumbran. En consecuencia, se ordena al Área de Conservación Arenal Huetar Norte y al Ministerio del Ambiente, Energía y Telecomunicaciones, implementar programas interdisciplinarios de seguimiento para la preservación y conservación de la lapa verde en la zona norte y atlántica del país.

LXII.- Por otra parte, en lo que respecta a la utilización de la madera de los árboles que deberán ser cortados para permitir la implementación del proyecto minero, procede autorizar su uso única y exclusivamente bajo el compromiso asumido por la propia empresa Industrias Infinito Sociedad Anónima, visible y reiterado a folios 500, 534 y 557 del expediente, donde de manera expresa indica que "[l]as utilidades esperadas con la venta de la madera que asciende aproximadamente a $1.000.000 (un millón de dólares americanos) será depositada en el fideicomiso existente de APANAJUCA, que es la Asociación del Parque Nacional Juan Castro Blanco cuyo objetivo único es la compra de terrenos privados para conservación del Parque Nacional, también conocido en San Carlos como el parque del Agua, y que actualmente tiene más del 90% de su área bajo propiedad privada", pues no es de su "interés sacar la madera y obtener un beneficio económico de la misma [sino que] los recursos económicos que se obtengan de la venta de la madera serán donados a una institución reconocida en Ciudad Quesada para la compra de terrenos dedicados a la conservación".

De tal forma, si una vez ejecutadas las medidas de mitigación autorizadas, la empresa decide disponer de la madera de los árboles cortados y de los desechos vegetales removidos, tal disposición debe serlo únicamente a efectos de incrementar en lo que corresponda el fideicomiso de la Asociación del Parque Nacional Juan Castro Blanco, y solamente para la adquisición de los terrenos propiedad privada que conforman el Parque Nacional, para lo cual debe el Ministerio del Ambiente, Energía y Telecomunicaciones ejercer de manera rigurosa las acciones de control y monitoreo para verificar el cumplimiento de este mandato.

LXIII.- En definitiva, la autorización de cambio de uso de suelo y el permiso otorgado para la corta de 197 árboles de almendro en la zona del proyecto minero Crucitas, no contraviene la protección ambiental ni sitúa en posición de riesgo o amenaza al almendro amarillo. De igual forma, la corta autorizada y la modificación aprobada al proyecto minero, tampoco compromete la existencia de la lapa verde pues carece de impacto negativo sobre sus sitios de anidación y fuentes de alimentación, por lo que el recurso debe ser declarado sin lugar en cuanto a estos extremos.

LXIV.- Sobre la existencia de recurso hídrico en la zona de Crucitas y el riesgo de contaminación. Acusan los recurrentes que la empresa minera para llevar a cabo el Proyecto en Crucitas va a arrasar una zona de protección de quebradas y nacientes en el área de las excavaciones y de las zonas de relaves donde se construirán lagunas para almacenar material cianurado. Además, deberá desviar quebradas y afectar zonas de recarga acuífera, con lo que se afectarán importantes acuíferos superficiales como las quebradas “La Plata” y “La Mina”, así como zonas de recarga acuífera, incluso afectando el río San Juan por su cercanía. Del estudio de los autos y de los informes rendidos bajo fe de juramento, la Sala aprecia que la situación planteada ha sido valorada tanto por la empresa como por las instancias administrativas correspondientes. En primer lugar, vale precisar que el Inventario de Corrientes en la zona de explotación del proyecto, elaborado en noviembre de dos mil siete, concluyó que: a) en el área de explotación no existe ninguna quebrada o corriente de tamaño significativo que pudiera ser afectado por la explotación minera; b) que en el área del embalse se afectarían cuatro yurros y la quebrada Mina, los cuales serían inundados por el embalse de relaves; c) que en el área de la planta de proceso no se afectaría ningún tipo de corriente, y; d) que la explotación minera se manifestaría en un aumento de la escorrentía, el cual sería despreciable en el caudal de los ríos receptores.

Por su parte, el Departamento de Aguas del Ministerio del Ambiente, Energía y Telecomunicaciones, acredita en mayo de dos mil ocho que: a) en el área de explotación minera del cerro Fortuna existen diez quebradas sin nombre de caudal intermitente y de dominio público; b) que en el área de explotación del cerro Botija existen dos quebradas sin nombre de caudal intermitente y de dominio público; c) que en el área de embalse de relaves existen cinco quebradas de caudal permanente de dominio público, tales como las quebradas Minas y Campamento. Según los estudios realizados por la empresa recurrida durante la etapa de exploración se analizaron los siguientes cuerpos de agua: Quebrada Descubrimiento, Caño Crucitas, Quebrada Chamorro, Quebrada la Mina, Río Infiernito, Quebrada Llano Verde, Río San Juan y Laguna -ubicada cerca del campamento ver página 194 del Estudio de Impacto Ambiental “EsIA”-.

No obstante, ninguna de ellas es potable porque los niveles de contaminación por coliformes superan en todo caso los valores máximos admisibles -ver página 196 del EsIA-. Además, se identificaron 3 pozos de abastecimiento doméstico en el pueblo Crucitas a 3 kilómetros al norte de la excavación minera, los cuales penetran el acuífero superior -ver página 196 del EsIA-. Existen dos manantiales que son utilizados para abastecimiento doméstico, uno para el campamento del proyecto y el otro, se ubica 50 metros al este de la escuela -página 197 del EsIA-, ambos obtienen agua del acuífero superior. Asimismo, se logró demostrar la existencia en la zona del proyecto minero Crucitas de dos acuíferos: 1- Un acuífero superior de tipo freático a 4 metros o más por debajo de la superficie, que se presume su recarga debe ser local, por infiltración de las lluvias. Tiene una serie de direcciones de flujo que discurre de acuerdo a la topografía -página 198 del EsIA-.

Para esta determinación en la fase de exploración se hicieron aproximadamente 24 perforaciones de pozos para establecer la permeabilidad de la saprolita y del basamento -página 205 del EsIA-. 2- Un acuífero inferior que está confinado dentro de rocas volcánicas fracturadas a profundidades superiores a los 80 metros -página 23 del EsIA-. No hay evidencias de afloramientos naturales de esta agua en todo el área de estudio y se determinó que este acuífero sí tiene una dirección regional de flujo subterráneo -pág. 207 del EsIA-. Quedó debidamente demostrado que este acuífero presenta condiciones de baja calidad de aguas, ya que los valores de amonio, hierro, potasio, sulfatos, color y turbidez superan la norma de potabilidad; y que los pozos que se hagan en esas áreas y que penetren el acuífero inferior se comportarán como pozos surgentes -ver página 208 del EsIA, según muestras realizadas en el año 2000-.

De acuerdo a los estudios realizados, la calidad de las aguas de ambos acuíferos es baja y fuera de las normas nacionales para abastecimiento humano por el nivel de ph, el cual es bajo, ya que los datos reportados registran el pH entre 5.76 y 4.92, por debajo de la norma mínima nacional (6.5 pH). Sobre el particular, el Resumen de Condiciones Hidrogeológicas y Efectos Esperados en el proyecto minero Crucitas, concluye que el acuífero superior no se contaminará con el proceso de extracción del mineral siempre que se cumpla con las medidas de prevención. Sobre el acuífero inferior, señala este Resumen que el mismo no presenta afloramientos, y que sus áreas de recarga se encuentran fuera del proyecto y no discurre hacia el río San Juan. El acuífero inferior presenta condiciones de confinamiento y en algunos sectores un comportamiento artesiano surgente, donde el nivel piezométrico presenta una dirección de flujo que es aproximadamente noreste-suroeste, y donde la cota del nivel piezométrico en el sector donde se ubicarán los tajos es de aproximadamente 73 m.s.n.m., por lo que entonces el acuífero inferior será intersecado en ese punto.

En ese caso, el afloramiento de agua conforme se avance la extracción por debajo de la cota 73, será bombeado hacia la laguna de relaves hasta que se finalice la extracción y entonces en el tajo Botija que se rellenará, el nivel de agua podrá recuperar aproximadamente su ubicación dentro del material que se ubicará dentro del tajo, para posteriormente recuperar con vegetación la superficie del terreno. En el caso del tajo Fortuna, el nivel recuperará su ubicación pero rellenará el pit formando un lago. Para evaluar los efectos de la excavación de los tajos sobre el acuífero inferior, se hizo una evaluación mediante modelación del abatimiento del nivel del agua en la propia excavación y en sus alrededores. Para ello se utilizó un modelo de flujo radial -Rushton y Redshaw, 1979- y se calculó el caudal necesario a extraer de la excavación para mantener el nivel del agua en el piso del tajo mientras se terminan las labores de extracción y se calculó también el radio de influencia.

Para esto se hizo una simplificación geométrica de la forma de los tajos y se le dio énfasis al tajo Fortuna, ya que el agujero del Botija será rellenado. En términos generales, el área de la base del tajo Fortuna se tomó como 19103.8 m2. El área del espejo de agua una vez recuperado se calcula en 88096.6 m2. Este efecto de abatimiento del nivel en el acuífero inferior es temporal, ya que una vez que cesen los trabajos de explotación del material y ya no exista la extracción del agua desde la excavación, el nivel del agua subterránea empezará a recuperarse hasta alcanzar la cota de 73 m.s.n.m. que presenta actualmente.

LXV.- Al respecto, el informe rendido bajo juramento por SETENA a folio 3781 del expediente, admite que el desarrollo de las actividades de remoción y corte del terreno, en conjunto con la ocurrencia de fuertes lluvias, pueden desencadenar procesos erosivos y arrastre de materiales hacia los cuerpos de agua que drenan el área del proyecto durante la operación del proyecto, sin embargo en el Plan de Gestión Ambiental se han previsto las medidas necesarias para su control y mitigación. En cuanto a la posibilidad de contaminación de ríos y quebradas incluido el río San Juan, se indica que el sistema para la reducción del cianuro se denomina CYPLUS, el cual constituye una herramienta indispensable para la gestión ambiental del proyecto, de tal forma que por ser un sistema de punta y probado en otros países como Estados Unidos donde ha sido avalado por la Agencia de Protección Ambiental de este país (EPA), permite garantizar los niveles que la normativa actual fija en el país (menor 1 ppm).ppm=partes por millón.

La planta está diseñada para que la descarga a la laguna de relaves posea una concentración entre 30-90 ppb (partes por billón), lo cual permite que el desarrollo del proyecto cumpla con la norma internacional que es de 100 ppb (0.1 ppm), adicionalmente el proceso remueve exitosamente todos los materiales base incluido el cobre. De igual forma, el proceso final de pulimento de desechos mediante la degradación natural del cianuro se realiza en la laguna de relaves, entendiéndose este proceso como la reducción completa de cianuro de las aguas residuales en ausencia de la intervención humana, por lo que las aguas tanto superficiales como subterráneas en el área del proyecto y su área de influencia no serán contaminadas. En lo que respecta a la extracción de roca dura, el efecto en relación al sistema de extracción de saprolita, consiste en la afectación de la cantidad de agua subterránea por el afloramiento del acuífero inferior durante la excavación de los tajos.

Se espera el abatimiento del nivel del agua subterránea hasta la base de este acuífero, sin embargo esta situación, tal y como se presentó en el estudio de impacto ambiental, por las características que presenta de distribución y flujo, generaría un radio de influencia máximo esperado de 267 metros, situación que obviamente no afectaría propiedades que se encuentren fuera de ese radio, y que en todo caso se ubicaría en la totalidad de la propiedad de Industrias Infinito, por lo que no se verían afectadas tomas de agua o pozos en propiedades aledañas. El abatimiento se generaría en las inmediaciones de la excavación, pero la magnitud de ese descenso del nivel del agua puede ser prácticamente imperceptible fuera de ese radio de 267 metros. Se concluyó que ese impacto no tiene relevancia en términos de uso del acuífero. De manera que, ambos acuíferos fueron valorados en el estudio de impacto ambiental y su propuesta de cambio, pero no se determinó la existencia de una afectación, al igual que con respecto a la acusada contaminación de los ríos y quebradas por el sistema a implementar denominado CYPLUS (ver informe a folio 1751).

LXVI.- Asimismo, ante una eventual contaminación por emergencia existe un Capítulo dentro del estudio de impacto ambiental denominado Plan de Contingencia, que incorpora todo tipo de eventualidades que podrían ocurrir. En caso de sismos, la laguna de relaves contará con una estructura de rebalse o vertedor de excedencias que ha sido diseñada y aprobada en el estudio de impacto ambiental y su Anexo, con el fin de darle una estabilidad permanente al dique y para manejar en forma independiente excedentes de agua en los períodos de máxima precipitación. Además, de mantener un control permanente de la calidad del agua de rebalse, se instalará una planta dosificadora de cal al igual que en la salida de los tajos, para que en caso necesario se pueda neutralizar el ph. La ubicación de esta planta es una medida adicional y un factor de seguridad extra, con la cual la calidad de agua del vertido es aceptable, pues cumple con la normativa internacional -ver informe a folio 1751-.

Lo anterior es reforzado por el estudio del científico M.Sc. Hugo Virgilio Rodriguez Estrada, Hidrogeólogo, citado anteriormente, al indicar que según el diseño del Proyecto Minero Crucitas, el acuífero superior no representa limitaciones para su desarrollo, debido a que no se contaminará por efecto del proceso de extracción del material, ni por los procesos industriales siempre y cuando se cumplan con las medidas de prevención y mitigación propuestas. El acuífero inferior está formado en rocas ígneas del basamento, es de carácter confinado y no presenta afloramientos en la superficie, esta característica implica que las áreas de recarga se ubican fuera del Área del Proyecto Crucitas. Reitera que este acuífero muestra un flujo regional de noroeste a suroeste, con una gradiente hidráulica promedio de 3.2%, esto implica que el flujo de agua de este acuífero no drena hacia el Río San Juan.

La capa confinante no la conforma la saprolita, sino que está formada por algunos horizontes de baja permeabilidad ubicados dentro de las propias rocas del basamento. Actualmente no se tienen registros de que este acuífero se capte en la región y que la calidad del agua del acuífero inferior, presenta una concentración más alta en todos los parámetros químicos, lo cual es comprensible debido a que es un acuífero más profundo, en el que el agua tiene un mayor tiempo de residencia y está más propenso a ser afectado por las alteraciones hidrotermales relacionadas con el yacimiento mineral. Por esta razón este acuífero presenta condiciones de baja calidad en sus aguas, y los valores de amonio, hierro, potasio, sulfatos, color, turbidez están fuera de las normas nacionales de calidad de agua para abastecimiento humano. Los análisis realizados a los datos existentes indican como conclusión general que desde el punto de vista de la hidrogeología, el proyecto Crucitas es viable y no se espera ninguna afectación negativa a las aguas subterráneas si se aplican todas las medidas de control, prevención y mitigación establecidas.

Por su parte, la evaluación hidrogeológica realizada por el SENARA y comunicada mediante oficio GE-097-2009 del 13 de febrero de 2009, por el Gerente General, también validó el proyecto en el marco de los compromisos asumidos por la empresa para mitigar el impacto potencial a las aguas subterráneas de interés. El informe DIGH-0034-2009 del 11 de febrero de 2009 dirigido al gerente general de SENARA y que sirvió de sustento a al oficio recién citado indica: “…De acuerdo a los radios de influencia por el abatimiento, producto de la excavación al intersecar los niveles de agua de los acuíferos superior e inferior, no se afectaría las fuentes de abastecimiento público como pozos o nacientes, ni tampoco alcanza el área de la laguna de relaves…”, sin embargo hace énfasis en los mecanismos de control y prevención que deben realizarse.

LXVII.- En este sentido, la Sala tiene por acreditado que sí existen recursos hídricos en la zona del proyecto Crucitas, pero ninguno de los acuíferos existentes resultan ser potables, a pesar que el acuífero superior sí descarga en ríos y quebradas cercanas. Asimismo, se demuestra que no existe riesgo de contaminación con motivo del desarrollo de la actividad minera, siempre que al respecto se observe las medidas de prevención y mitigación establecidas en los planes de manejo, de donde resulta el deber ineludible de la empresa y de la administración, de ejercer con particular celo el monitoreo de la situación para evitar un descuido en los referidos planes de prevención y mitigación.

LXVIII.- De igual manera, la prueba técnica allegada al expediente sobre la geografía del terreno y la dirección en que corre el acuífero inferior, descarta el riesgo de contaminación de este curso de agua de carácter transfronterizo en los términos planteados por los recurrentes. Por el contrario, dadas las obligaciones establecidas en la «Convención sobre el derecho de los usos de los cursos de agua internacionales para fines distintos de la navegación», y lo estatuido en la resolución de la Asamblea General de Naciones Unidas, número 63/124, es claro que el Estado costarricense es tributario de la protección que debe otorgar el Estado del curso de agua del que proviene el acuífero, mientras que Costa Rica es la responsable de brindar la plena protección dentro de su territorio, pues tal como se ha acreditado, no existe riesgo de impacto negativo alguno hacia el Estado del curso de agua del cual proviene el acuífero regional –acuífero inferior-. Distinto sería en el supuesto que el acuífero transcurriera desde Costa Rica hacia otro país, en cuyo caso sí está obligado a adoptar en ese caso todas las medidas de protección necesarias para evitar daños sensibles en el otro Estado del curso de agua; al no ser así, las obligaciones costarricenses sobre el particular están constreñidas a la protección que debe brindar dentro de su propio territorio.

LXIX.- No obstante lo anterior, este Tribunal logró constatar ante una consulta que se le realizó al Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento, que esta dependencia no había realizado estudio hidrogeológico alguno en la zona, y que ante el SENARA no se había presentado ningún Estudio de Impacto Ambiental del proyecto minero Crucitas, sino que sólo se tramitó la valoración para la instalación de un tanque de combustible a través de un estudio puntualmente elaborado para la zona del tanque sin reflejar las condiciones hidrogeológicas generales, por lo que se carecía de información que permitiera definir zonas de recarga y descarga y el impacto de la actividad minera sobre los mantos acuíferos. Lo expuesto amerita, de acuerdo a las competencias técnicas del SENARA en la protección del recurso hídrico, que se advierta una irregularidad por parte de las autoridades recurridas en cuanto a la valoración del riesgo ambiental, pues tratándose de una actividad sujeta a valoración ambiental, la autoridad competente para el otorgamiento de la viabilidad debía contar con todos los elementos técnicos necesarios, siendo uno de ellos, determinar en mayor medida, la posibilidad de afectación o no del recurso hídrico, no sólo sobre un área determinada dentro del proyecto minero, sino sobre toda el área a impactar por el proyecto, valoración integral que ciertamente no fue presentada ante el SENARA, ni ante SETENA de previo a la aprobación del Estudio de Impacto Ambiental.

Es con posterioridad a la aprobación de dicho estudio que la empresa recurrida presentó al SENARA un Estudio Hidrogeológico para que fuera analizado, gestión que dio como resultado el informe número DIGH-0034-2009, de once de febrero de dos mil nueve, por el cual la Dirección de Investigación y Gestión Hídrica del SENARA concluyó que la excavación no afectará las fuentes de abastecimiento público, pero sí se podrían contaminar las aguas superficiales si la laguna de relaves no tuviese el caudal suficiente para mantener el espesor del espejo de agua, por lo que debe garantizarse la condición de funcionamiento de la presa e implementar un sistema de tratamiento que mejore la calidad del agua de la laguna que descarga al sistema fluvial. De igual forma, mediante informe número DGIH-0039-2009, de trece de febrero de ese año, SENARA concluyó que no existe comunicación hidráulica entre las actividades del proyecto y las fuentes de agua potable, que ninguno de los dos acuíferos –superior e inferior- son potables, y que el acuífero inferior no descarga hacia el río San Juan, sino hacia territorio nacional, por lo que el Estudio Hidrogeológico presentado es finalmente validado por el SENARA y así fue informado al MINAET el propio trece de febrero de dos mil nueve.

De conformidad con lo expuesto, lo que corresponde es declarar con lugar el recurso en cuanto a este extremo, toda vez que las autoridades recurridas actuaron negligentemente al no haber requerido previo al otorgamiento de la viabilidad ambiental del proyecto, el pronunciamiento de SENARA, de conformidad con los fundamentos que en reiteradas ocasiones ha dispuesto este Tribunal. No obstante lo anterior, esta declaratoria debe entenderse únicamente a efecto de condenar a las autoridades recurridas al pago de daños y perjuicios, causados con la omisión de la administración de no requerir ni validar un estudio hidrogeológico completo del área del proyecto de previo al otorgamiento de la viabilidad ambiental, mas no anular el Estudio de Impacto Ambiental, ni la viabilidad ambiental otorgada, por cuanto la autoridad competente –SENARA- confirmó la viabilidad del proyecto según los estudios aportados.

Esto no significa que la Sala valide el otorgamiento de permisos ambientales sin el cumplimiento de los requisitos legales siempre que los mismos se cumplan posteriormente; por el contrario, es una reiteración de que no es válido otorgar permisos ambientales si los estudios exigidos por el ordenamiento no están completos, pero si en el caso concreto donde las actividades de impacto aún se encuentran detenidas, y se cuenta ya con elementos técnicos que concluyen la no afectación del recurso hídrico de la zona y así ha sido declarado por la autoridad competente, las reglas de la lógica y la ciencia indican que pueda continuarse con el proyecto en los términos planteados sin ocasionar mayores dilaciones que las estrictamente necesarias. En este caso específico, resulta inconsecuente retrotraer la validación del Estudio de Impacto Ambiental para que la administración valore estudios que ya están aprobados, cuando los mismos acreditan la protección del recurso hídrico de la zona y no se han ejecutado en el proyecto actividades que eventualmente pudiere afectar dicho recurso hídrico.

De ahí que, el efecto de la acreditada violación es en la condena de daños y perjuicios contra el Estado, con la advertencia de abstenerse en incurrir en omisiones o situaciones como las que dieron lugar a la estimatoria de este extremo.

LXX.- Sobre el riesgo contaminación acuífera con cianuro o material cianurado. Un aspecto adicional aducido por los recurrentes en cuanto al riesgo de contaminación acuífera, es la utilización del cianuro en el proceso de lixiviación del oro, toda vez que el mismo es altamente contaminante si su manejo no es el apropiado. Debe indicarse que para la extracción del oro la tierra excavada debe someterse a un proceso de lavado, dentro del cual se incorpora el cianuro para separar el mineral, extraerlo y, posteriormente, desechar el material restante, que se denomina material estéril. Este proceso de lavado se realiza dentro de un mecanismo cerrado que impide el contacto del cianuro con el ambiente y que elimina el cianuro del agua utilizada y del material sometido al proceso, de forma que el agua y materiales que salen del sistema y que luego serán depositados en la laguna de relaves, carecen de concentraciones importantes de cianuro, por lo que no generan riesgo para los recursos hídricos y el entorno biológico del proyecto.

Este sistema cerrado se dispondrá sobre una plancha de concreto que impide filtraciones hacia el suelo, la roca y los recursos hídricos, y ha sido diseñado bajo las normas de sismicidad adecuadas para soportar eventos de magnitud de hasta 8.4 gados en la escala Richter –así se informó durante la Inspección Judicial realizada el doce de setiembre de dos mil nueve-. De tal forma, se indica que el riesgo de contaminación acuífera con cianuro es prácticamente nulo. Otro aspecto relacionado con el cianuro es lo relativo a su transporte, almacenamiento y aplicación. Sobre el particular, en cumplimiento de la resolución número 2237-2005-SETENA, de treinta de agosto de dos mil cinco –es decir, de previo a la aprobación del Estudio de Impacto Ambiental-, la empresa recurrida presentó ante la Secretaría Técnica el «Protocolo para el Transporte, Manejo y Almacenamiento de Sustancias Peligrosas”, dentro de las cuales se incluye necesariamente al cianuro.

En efecto, en los apéndices del Estudio de Impacto Ambiental se incluye el apéndice 2.b, denominado «Protocolo de Gestión para el transporte, manejo y almacenamiento de sustancias peligrosas en el proyecto minero Crucitas, el cual considera un protocolo de transporte, uno de manejo y otro de almacenamiento. Así, este protocolo contempla aspectos como la clasificación de peligrosidad de diversas sustancias –figura el cianuro dentro de la clase 6.1-, y dispone cómo debe efectuarse el transporte, cómo debe etiquetarse la carga, cómo debe embalarse la misma, qué prohibiciones cubren y qué especificaciones debe tener el vehículo que las transporte, cómo debe elaborarse la ruta para su traslado y la coordinación que debe ejercerse con la Dirección General de Ingeniería de Tránsito del Ministerio de Obras Públicas y Transportes, cuáles con las condiciones de carga, acondicionamiento y descarga de las sustancias; cuál es el personal involucrado en esas operaciones; la documentación que deben portar los vehículos; y los procedimientos en casos de emergencia, accidente o avería.

También contempla diferentes aspectos relacionados con el manejo y almacenamiento, como la seguridad y diseño del almacén, la recepción de las sustancias, la separación de otros productos, el equipo de protección a utilizar, las inspecciones que debe practicarse y los planes de emergencia. Adicionalmente, este apéndice 2.b. incluye como anexo 3 el documento denominado «Manejo del Cianuro en proyectos mineros”, el cual considera otros aspectos directamente relacionados con la producción y almacenamiento del cianuro, cómo debe venir el producto desde el proveedor, dónde y cómo se debe almacenar, el manejo y evaluación del riesgo y cómo se manejan esos riesgos en la planta y en la propia mina de oro, cómo debe ser su transporte y la necesaria información sobre los riesgos. Así, es claro que todos estos aspectos fueron aportados por la empresa, valorados y aprobados por la Secretaría Técnica Nacional Ambiental al validar el Estudio de Impacto Ambiental y sus anexos, y otorgar la viabilidad ambiental al proyecto minero Crucitas.

LXXI.- Sobre el riesgo de drenaje ácido de rocas. Concluido el tratamiento con cianuro, y eliminado el mismo del agua y del material, tanto agua como material tratado serán trasladados a la laguna de relaves. Aducen los recurrentes que ante la extracción del material de los cerros Botija y Fortuna, y por la disposición de este en la laguna de relaves, podría sobrevenir un drenaje ácido y la contaminación abierta más allá de los mantos acuíferos. Por drenaje ácido de rocas se entiende una reacción química que se produce cuando una roca que contiene minerales sulfurosos de hierro, es expuesta a la oxidación atmosférica mediante la combinación de agua, oxígeno y dióxido de carbono. El drenaje ácido puede ocurrir de forma natural o como consecuencia de la actividad humana, pero si alguno de los tres factores -sulfuros, aire y agua- no reaccionan o no están presentes, no se produce el drenaje ácido; otro factor importante, es que no todos los minerales sulfurosos poseen la misma reactividad ni producen acidez en igualdad de condiciones, así como tampoco todas las rocas o materiales sulfurosos son potencialmente generadores de ácido.

Sobre este tema, se ha informado a la Sala que el sistema implementado para el tratamiento del material cuenta con un área de excedencias para evitar la contaminación en caso de sismos –la situación en torno a la sismicidad se trata en detalle más adelante-, la cual es capaz de contener todo el volumen del sistema de aplicación del cianuro más un veinte por ciento adicional como seguridad; se ha indicado a la Sala que toda la estructura –tanto el dique de la laguna de relaves como las plantas de lixiviación y obtención del oro- reúnen las condiciones de sismoresistencia establecidas en el Código Sísmico de Costa Rica, al punto que pueden soportar movimientos telúricos mayores a los ocho grados en la escala Richter –ver acta de inspección judicial realizada el once de setiembre de dos mil nueve-. Adicionalmente, el área de la laguna cuenta también cuenta con una planta dosificadora de cal para neutralizar el pH, y se encuentra confinada tanto por edificios geográficos naturales como por estructuras de concreto que, aunadas a las condiciones del terreno, impiden la contaminación de acuíferos por gravedad o filtración.

Tanto el Ministerio del Ambiente, Energía y Telecomunicaciones, como la empresa recurrida, refieren que en el proceso de destrucción del cianuro se utilizará el método Cyplus, el cual permite reducir el cianuro a niveles menores de los deseados, es decir, acrecentando los requeridos niveles de destrucción. En efecto, la Secretaría Técnica Nacional Ambiental informa que el sistema Cyplus ofrece un rendimiento superior al establecido en la normativa nacional, y que la degradación natural del cianuro se realiza en la referida laguna de relaves, por lo que las aguas superficiales y subterráneas en el proyecto y su área de influencia no serán contaminadas.

LXXII.- De manera concreta sobre el drenaje ácido aludido, la Propuesta de modificación es clara en indicar que los análisis realizados permiten concluir que:

<![if !supportLists]>a. <![endif]>El material cubierto con saprolita tiene niveles muy bajos de sulfuro. El lixiviado de bajo pH de este material que existe actualmente de forma natural en el acuífero superior y drenajes fluviales, se debe a la acidez residual en el agua intersticial que drena, sin embargo no presenta potencial de generación actual de ácido, por lo que este material se clasifica prácticamente como inerte.

<![if !supportLists]>b. <![endif]>El yacimiento rocoso y los relaves se caracterizan por niveles moderados de sulfuro con un pH bajo; sin embargo, contiene poco carbonato que es el compuesto que puede desarrollar neutralización natural del sistema, por lo que la mayor parte del material de roca inerte y colas que se ubicarán en el área de relaves presentan potencial de generación de ácido.

<![if !supportLists]>c. <![endif]>El basamento de roca volcánica se clasifica como generadora potencial de drenaje ácido. Estos materiales presentan alguna capacidad neutralizante; sin embargo los materiales que presentan esta condición existen en muy poca proporción en el yacimiento, por lo que se podría clasificar como ligeramente potencial generadora de ácido con algunos materiales rocosos categorizados como inertes.

<![if !supportLists]>d. <![endif]>A pesar de la existencia del potencial de oxidación de sulfuros en la roca inerte y colas, un manejo apropiado que aísle completamente la posibilidad de reacción entre el aire, agua y sulfuros, como lo es el manejo de estos materiales (roca estéril y colas) sumergidas permanentemente bajo agua, anula por completo el potencial de generación de ácido.

En la audiencia oral realizada ante este Tribunal, explicó la Regencia Ambiental del proyecto, que en el caso de Crucitas se realizaron en mil novecientos noventa y seis más de trescientos cincuenta análisis en muestras de rocas, cuyos resultados fueron presentados ante SETENA junto con el Estudio de Impacto Ambiental en el año dos mil dos –en idioma Inglés-, y también en el Anexo ordenado por SETENA al Estudio en el año dos mil cinco –ya traducido al Castellano-; luego, esos mismos resultados fueron actualizados en el año dos mil siete, concluyéndose lo que se indica en la propuesta de modificación en el sentido de que las rocas de la zona presentan un bajo potencial de generar ácido. A modo de ejemplo, señala que el porcentaje de sulfuros es de 1.5%, lo cual es bajo porque en minas con fuerte drenado ácido los porcentajes de sulfuro son cercanos al 10%, y en casos de minas de sulfuros se llega hasta el 50% o más. De tal forma, es evidente que el tema del drenaje ácido de rocas sí fue considerado tanto en el Estudio de Impacto Ambiental como en la propuesta de modificación al proyecto, resultando finalmente que ambos documentos fueron debidamente validados por la autoridad administrativa competente.

LXXIII.- Sobre estos dos últimos temas –manejo del cianuro y riesgo de drenaje ácido- constan en el expediente otros informes técnicos que refieren la pertinencia de este sistema de destrucción del cianuro y de los mecanismos previstos por la empresa para este procedimiento. Así, mediante Informe sobre Manejo y Control de Sustancias Cianuradas y de Generación de Drenaje Ácido en el proyecto minero, elaborado por los geólogos Jorge Laguna Morales y Franz Ulloa Chaverri, se concluye que todos los procesos cubren la normativa internacional de manejo y control, así como que la infraestructura ha sido diseñada con controles de seguridad que exceden hasta en un quince por ciento las normas internacionales; sobre el sistema Cyplus, explica que es el de mayor efectividad para la destrucción de sustancias cianuradas. Por su parte, el Informe de Manejo de Roca y de Colas de proceso con potencial drenaje ácido, de enero de dos mil nueve, elaborado por Gregory Pleshcheev concluye que la reposición subacuática de colas y material estéril es el método más eficiente de manejo y mitigación de potencial drenaje ácido de rocas, y que el pH de la laguna de relaves se mantendrá dentro del rango característico de aguas superficiales locales.

De igual forma, el Informe Cianuro y su Aplicación en Crucitas, también de enero de ese año, explica que los niveles exigidos de destrucción del cianuro se alcanzan cuando los efluentes son tratados con el proceso Combinox, el cual incluye el sistema Cyplus. En adición a estos estudios, el Informe Potencial de Drenaje Ácido de Roca en el Proyecto Crucitas y los Planes de Mitigación Existentes, de febrero de dos mil nueve, elaborado por Alejandro Arauz, reitera que la técnica de sumergir el material sospechoso de drenaje ácido debajo de una capa de agua quieta, ha demostrado ser la más eficaz para evitar la generación de aguas ácidas, porque al suprimir el contacto con el oxígeno se evita la reacción química que da origen a las aguas ácidas. Finalmente, el Informe Revisión y Evaluación de la información técnica sobre la aplicación, control y destrucción del cianuro en el proceso del proyecto minero Crucitas, también de febrero de ese año, elaborado por Sherman Thomas Jackson, asevera que el proyecto contará con eficientes controles para el traslado, uso y destrucción del cianuro, cumpliendo con la normativa nacional e internacional vigente, así como que el proceso de destrucción del cianuro permite que las descargas de efluentes puedan ser manejadas y controladas de manera segura.

LXXIV.- Sobre la actividad sísmica y su posible impacto en el proyecto minero Crucitas. Durante la vista celebrada los días doce, trece y diecisiete de noviembre de dos mil nueve, se planteó la interrogante sobre la sismografía del área donde se encuentra el proyecto minero, y los posibles efectos o impactos de sismos sobre la laguna de relaves y el dique de la misma, esto por cuanto los recurrentes, aduciendo información del Atlas Tectónico de Costa Rica, aseguran que el área de la laguna de relaves y otras zonas del proyecto son intersecadas por una falla tectónica –ver documentos visibles a folios 5271 a 5277 del tomo XIX de este recurso de amparo-, por lo que en su criterio se requiere un estudio neotectónico que analice el riesgo de actividad sísmica –estudio que estiman debió ser realizado para la aprobación inicial del proyecto-. Sobre el particular, la Sala verifica que el Estudio de Impacto Ambiental aprobado por la Secretaría Técnica Nacional Ambiental sí considera la situación sísmica de la región, así como que ante la SETENA consta el denominado «Estudio de Amenaza Sísmica para el Proyecto Minero Crucitas, San Carlos», elaborado por la Sección de Sismología y Vulcanología de la Universidad de Costa Rica en octubre de mil novecientos noventa y seis.

Señala el Estudio que el área del proyecto puede verse afectada por sismos interplaca o intraplaca, pero serían eventos tan sólo posibles con magnitud 7.7M de aceleración 4 en suelo de 2.19 m/s2, con períodos de retorno de 50 y de 3.97 m/s2 para quinientos años, sin que existan evidencias de movimiento en masa o cicatrices de eventos antiguos –ver página 24 del Estudio.- El estudio sobre amenaza sísmica se concentra entre las páginas 214 a 221 del documento, y allí se indica que por la profundidad que tienen los eventos procedentes de esta fuente sísmica, el grado de amenaza sobre el área del proyecto es mediano, difícilmente superando el grado de intensidad VII. Agrega que los fallamientos activos de carácter zonal que podrían representar algún grado de amenaza para el proyecto, son los que se localizan en la Placa Caribe, a profundidades menores de 20 km. Se indica que el estudio realizado abarcó desde el año mil quinientos a mil novecientos noventa y cinco, y la distribución epicentral de sismos superficiales muestra que la sismicidad es muy baja y que la principal concentración de sismos se encuentra al suroeste de San Jorge de Los Chiles y cerca de las estructuras caldéricas localizadas al sur del área del proyecto.

Las investigaciones refieren que las fallas de la zona se caracterizan por generar sismos esporádicamente. También se valoraron los parámetros de las fuentes sísmicas más relevantes que podrían tener alguna influencia en el área del proyecto, y se consideró la duración máxima que podría tener una sacudida sísmica y la aceleración máxima del suelo. Así, es claro que el Estudio de Impacto Ambiental sí consideró la sismicidad de la zona, la cual no fue valorada como un factor que impidiese la realización del proyecto porque tal Estudio fue en su momento aprobado por la Secretaría Técnica Nacional Ambiental. De igual forma, las autoridades recurridas refieren en sus informes que la misma documentación aportada por los recurrentes –obtenida del denominado Atlas Tectónico de Costa Rica- es clara en advertir que los mapas que muestran las fallas geológicas, son instrumentos que por la escala en que se presentan no son adecuados para ser utilizados como base para la ubicación de obras civiles, para cuyo cometido debe realizarse estudios específicos.

Así, resaltan el estudio sísmico que consta ante la SETENA –uno de cuyos autores es justamente también autor del Atlas Tectónico de Costa Rica-, y en el cual se indica que la zona donde se ubicará el proyecto minero es de baja sismicidad. Afirman, igualmente, que en los mapas que constan en el documento aportado por los recurrentes se evidencia que la falla aducida por ellos es la denominada falla Recreo, la cual se encuentra dentro de las fallas “inferidas o probables” –figura 19 del Atlas-, por lo que no se ha demostrado su existencia. Asimismo, indican que el Atlas Tectónico informa que no existen registros de sismos de importancia durante los siglos XIX y XX –figura 8 del Atlas-, y que según el Código Sísmico esta zona se ubica en la zona II de intensidad sísmica, es decir, la de menor intensidad del país. Así, las autoridades recurridas arriban a la misma conclusión ya establecida en el Estudio de Impacto Ambiental y su aprobación por SETENA, en el sentido que no habría afectación de la laguna de relaves ni su dique con motivo de eventos sísmicos en la zona.

LXXV.- Finalmente, ante solicitud concreta de la Sala, el Observatorio Vulcanológico y Sismológico de Costa Rica –instituto de investigación adscrito a la Universidad Nacional- indica que para descartar la completa existencia de fallas en la zona debería realizar un estudio de campo que requiere varios meses de trabajo. No obstante, sí acredita que las principales fallas detectadas en la región son dos: la falla San Carlos, que se presume es una falla activa o que ha presentado actividad durante el período Cuaternario, pero ninguno de los sismos registrados se relaciona con la misma; y la falla Recreo –tal como lo afirmaron las autoridades públicas recurridas-, que estuvo activa en el período Terciario y no se ha comprobado actividad sísmica durante el Cuaternario, ni se registra actividad alguna desde mil novecientos ochenta y cuatro. Ante ello, partiendo de sus propios estudios y de los de la red sismológica mundial, concluye el OVSICORI que la actividad sísmica en la zona es muy baja comparada con otras regiones del país, y se puede considerar como insignificante.

Así, observa la Sala que la conclusión a que arriba el OVSICORI se encuentra en el mismo sentido de lo establecido en el Estudio de Impacto Ambiental, por lo que tanto lo expresado en el Estudio, las valoraciones efectuadas por las autoridades recurridas y la información técnica del OVSICORI, arriban a la misma conclusión de un mínimo riesgo sísmico en la zona donde se ubica el proyecto minero Crucitas.

LXXVI.- Sobre la resistencia del dique de la laguna de relaves y el riesgo de ruptura. De tal forma, acreditan las autoridades recurridas que la posibilidad de ruptura del dique de la laguna de relaves sigue siendo prácticamente nula, pues aunque el desarrollador insistió que el factor de seguridad impediría que el dique cediera, SETENA solicitó que se modelara de forma adecuada las posibles consecuencias de una ruptura; esa modelación incluyó aspectos constructivos, hidrológicos, curvas de intensidad y duración de frecuencia, diseño del vertedor de excedencias, morfología de los cuerpos de aguas superficiales, caudal formativo, transporte de sedimentos y ancho del canal, y que el desarrollo de los procesos constructivos y metodologías de diseño han contribuido al aumento en la seguridad de la presa. En todo caso, la eventualidad de una ruptura de la laguna de relaves había sido ya prevista en el propio Estudio de Impacto Ambiental, al definirse las medidas a implementar en caso de riesgo de ruptura de este tipo.

Así, se indica en el Estudio que debe emplearse medidas para mitigar el efecto, reduciendo la migración de sólidos aguas abajo, algunas de ellas con represas adicionales aguas abajo, desviaciones de agua y remoción de sólidos desplazados y confinamiento, pero que aún en un supuesto de ruptura, el impacto sería de carácter temporal y reversible, se produciría en un contexto ya medianamente degradado y donde no se encontrarían soluciones cianuradas provenientes de la planta de proceso –ver página 361 del Estudio-. Sí señala el documento que el principal impacto en caso de una muy eventual ruptura, sería sobre la cobertura del suelo con potencial de utilización por aporte de las colas depositadas en el área de relaves, pero que, según lo dicho, no contendrían soluciones cianuradas; en este caso, se considera que el suelo cubierto por las colas tendría una pérdida en términos de su utilización como área cultivable y como área de conservación y protección de la cobertura vegetal.

En este sentido, los impactos estimados para una ruptura de la represa serían de carácter negativo, con magnitud alta y con capacidad de afectación local, pero igualmente sería de carácter temporal y tendría un carácter reversible –ver página 363 del Estudio-, lo mismo que sucedería en cuanto a la Quebrada Mina, la cual recibiría una cantidad de sedimentos que podría alterar temporalmente su medio acuático y el del río Infiernito, pero igualmente con carácter reversible –páginas 365 y 366-. El Estudio sí muestra preocupación en caso que la ruptura genere una avalancha, pues en ese caso habría mayor material depositado sobre el suelo, no obstante lo cual y dependiendo de su magnitud, refiere que podría aplicarse técnicas de limpieza y recuperación –páginas 367 y 368-, lo cual coincide con la información que el Instituto Nacional de Innovación y Transferencia en Tecnología Agropecuaria remitió a la Dirección General de Geología y Minas mediante oficio número DST-773-2006, de cuatro de octubre de dos mil seis –dentro del expediente 2594-, indicando que no se perderá la capacidad productiva de los suelos siempre que se cumpla con las actividades técnicas de manejo detalladas en las declaraciones.

LXXVII.- Sobre el riesgo de ruptura del fondo de la laguna y la posible amenaza para el acuífero inferior. Partiendo del tema de la sismicidad, durante la vista también surgió la interrogante de si el suelo, piso o fondo de la laguna podría romperse o agrietarse en caso de un evento sísmico, y cuál sería el efecto de esa ruptura sobre el acuífero inferior. Sobre el particular, se ha informado que las condiciones geológicas del área del proyecto impiden la ruptura del fondo de la laguna y eliminan el riesgo de contaminación acuífera. Se acredita que el acuífero inferior es de carácter confinado, y que sobre él existen ya de manera natural capas de arcilla de entre nueve a dieciocho metros de espesor –incluso de hasta veinticinco metros-, que cubren toda el área de la laguna de relaves y mantienen al acuífero inferior bajo presión, lo cual evita que el agua de la laguna se filtre hacia el acuífero. Además, no es posible la ruptura de estas capas de arcilla porque por su propia naturaleza se comportan de forma plástica, es decir, moldeable, por lo que en caso de afrontar fuerzas sísmicas, la arcilla solamente tenderá a deformarse pero no a romperse ni reventarse –ver explicación aportada por la empresa recurrida el veintisiete de noviembre de dos mil nueve-.

LXXVIII.- De tal forma, es claro que el riesgo sísmico en la zona del proyecto minero Crucitas sí fue considerado en el Estudio de Impacto Ambiental y validado por la administración técnica responsable de su aprobación, por lo que deberán todas las partes relacionadas estarse a lo dispuesto en los documentos científicos que respaldan la ejecución del proyecto en los términos acordados en cuanto a este extremo.

LXXIX.- Sobre el cambio climático, el riesgo de sequía y la afectación del nivel del agua de la laguna de relaves. Por otra parte, tomando en consideración la situación en torno al drenaje ácido por la composición mineral del material a depositar en la laguna de relaves, durante la Vista surgió la preocupación sobre el impacto del cambio climático en la zona y la eventual afectación de la laguna por un descenso en el nivel del agua o procesos de sequía que amenacen el recurso hídrico necesario para su alimentación. Sobre el particular, el Estudio de Impacto Ambiental sí se refiere de manera expresa a la situación de cambio climático –ver páginas 184 y siguientes del Estudio-. Allí se refiere que el promedio anual de precipitación está por encima de los tres mil mm, repartidos en siete meses lluviosos y cinco meses secos, con una humedad relativa del 85%. Para el estudio sobre el cambio climático se utilizó la información de cinco estaciones meteorológicas ubicadas en las comunidades de Upala, Los Chiles, San Jorge, Pital y Coopevega, y se informa que en ninguna de ellas parece existir un patrón anual definido de eventos secos extremos de sequía –se considera evento extremo de sequía cuando se presenta una reducción del 21% en la lluvia anual-, pues las sequías extremas en la zona norte han sido estacionales, es decir, ubicadas dentro de un período definido del año –el seco o el lluvioso- sin que superen más de dos meses.

Se explica que diciembre es el mes de mayor variabilidad en la precipitación, pues así como puede dejar de llover totalmente, puede también aportar cantidades suficientes de lluvia como para crear problemas de inundaciones. Se afirma que si la sequía se presenta durante la época lluviosa, se produce una mayor sensación de sequía porque lo habitual es una fuerte precipitación. Se añade que el período de retorno de los eventos de sequía tampoco es muy claro, pero tomando en consideración tres momentos anteriores de aparición de sequía en un período que comprende veintitrés años –mil novecientos ochenta y dos a dos mil cinco- un evento seco extremo podría presentarse entre seis y ocho años. En cuanto a la situación de lluvia, los estudios refieren que entre mayo y diciembre de cada año llueve casi el 80% de las precipitaciones anuales. El estudio de cambio climático define que la comunidad de Las Crucitas se encuentra ubicada en un área de transición, situada entre regiones de condición más lluviosa –como la costa del Caribe- y zonas menos lluviosas –como la región montañosa de la Zona Norte-, y que la precipitación en la región de Las Crucitas debería comenzar a disminuir paulatinamente, siendo imperceptible a principios de siglo, y más acentuada en la segunda mitad del siglo –figura 6 del estudio, folio 5374-, por lo que al final del año 2100, se proyecta una reducción de 650 mm aproximadamente, pero siempre con alternancia de años más secos y años más lluviosos.

De igual forma, se considera la variación en la temperatura, pues el incremento hacia el año 2100 será de uno a seis grados centígrados sobre la temperatura de referencia de 27.5°C. Por otra parte, informa la empresa recurrida que para que la laguna de relaves se llegare a secar se requeriría de una sequía de aproximadamente dos años, pues los estudios climatológicos realizados informan que la tasa de evaporación media del agua de la represa de relaves es de 1000 mm al año, por lo que si se aplica esa tasa al volumen de agua contenida en la laguna, se tiene esa estimación de dos años; además, afirma que con una precipitación media anual de 3000 mm al año, una sequía completa de dos años sería imposible, tal como se indica en el apéndice 3 del Estudio de Impacto Ambiental. En este sentido, se evidencia que la situación de cambio climático sí fue considerada en los estudios ambientales del proyecto minero, concluyéndose un impacto mínimo de este proceso durante los años de operación del proyecto; así, resulta inexacto aducir la inexistencia de los mismos y que este factor no fue considerado por la administración técnica.

LXXX.- Punto importante en cuanto a la eventual afectación del nivel de la laguna de relaves con motivo del aumento de la temperatura y posibles eventos de sequía –que según lo dicho, su impacto es mínimo durante la primera mitad de este siglo-, lo constituye el carácter técnico previsto para la ejecución del proyecto minero –aspecto validado por los órganos competentes- que refieren que al producirse el afloramiento del acuífero superior –que según se ha visto no es potable-, el agua que aflore será bombeada hacia la laguna de relaves, de donde resulta que el nivel del agua de la laguna no depende de manera exclusiva del recurso hídrico superficial –quebrada Minas- sino también de otras fuentes que por su naturaleza son impactadas de manera diferente por el cambio climático. De tal forma, esta consideración técnica, así como el limitado impacto que el cambio climático tendría en la zona del proyecto durante su fase de ejecución y cierre, determina que deba atenuarse de manera significativa la preocupación que sobre este aspecto se planteó durante la vista, pues según lo dicho, los estudios técnicos determinan que el riesgo para el proyecto minero es mínimo, y con ello, eliminando el aducido riesgo de drenaje ácido con motivo del cambio climático.

LXXXI.- Sobre el riesgo de desbordamiento de la laguna de relaves. En contraposición al aducido riesgo por sequía y efectos del cambio climático, se planteó el tema de la capacidad de la laguna de relaves en dos aspectos: primero, para disponer en ella el material extraído –tomando en cuenta que se hará una explotación a mayor profundidad-, así como; y, segundo, si su diseño permite que el agua no se desborde y afecte el entorno biológico y geográfico de la laguna. Sobre el primero de los aspectos, en la página 10 de la Propuesta de Modificación al Proyecto Minero Crucitas, se indica que la laguna de relaves fue diseñada para albergar toda la roca extraída de los tajos, tanto la saprolita como la roca dura, al punto que existe una holgura de volumen o capacidad de dos y medio millones de metros cúbicos. En cuanto al segundo aspecto –riesgo de desbordamiento-, las previsiones ambientales adoptadas versan a su vez en un doble sentido.

Por una parte, en las páginas 20 a 23 del tomo I del anexo al Estudio de Impacto Ambiental, se indica que el nivel de agua de la laguna será regulado a través de tres tubos de sifón con la capacidad de drenar el líquido hacia la Quebrada Mina –la posible afectación de la quebrada se analiza más adelante-; que se construirá un vertedor provisional con capacidad de asegurar y evitar el desbordamiento en el caso de fuertes lluvias durante la etapa constructiva, y que cuando se finalice la construcción del dique se construirá asimismo el vertedor definitivo, que podrá disponer el agua de exceso, como lo puede ser la lluvia provocada por fenómenos atmosféricos. Este vertedor de excedencias se indica en la propuesta de modificación al proyecto, que se construirá en forma de una torre de rebalse o “Morning Glory” tal y como se maneja en las regulaciones de descarga de los proyectos hidroeléctricos como Arenal, desde donde el agua será conducida por medio de tuberías hacia una planta de adición de cal para un monitoreo constante y estabilizar el pH si fuera necesario; sin embargo este impacto se espera que no sea significativo ya que el pronóstico final de calidad del agua de rebalse se considera apropiado y dentro de las normas de vertidos nacionales.

En todo caso –y este es el segundo aspecto del riesgo de desbordamiento-, en páginas 15 a 18 del anexo al Estudio de Impacto Ambiental acredita que el diseño de la laguna y el dique permite soportar de diez a veinte veces más la cantidad de lluvia que cae en un día bajo condiciones normales; de ahí que si la cantidad de lluvia promedio anual en la zona norte es de tres mil trescientos setenta y un milímetros, la laguna y el dique han sido diseñados para soportar mil sesenta y nueve milímetros en un solo día. De tal forma, es claro que la situación de un posible desbordamiento sí fue considerada dentro del Estudio de Impacto Ambiental aprobado por SETENA, de donde resulta que la autoridad competente en la materia sí consideró y validó los aspectos técnicos relacionados.

LXXXII.- Sobre la posible afectación de la quebrada Minas. La laguna de relaves –que para efectos de esta valoración debe aclararse que no es una laguna de lixiviación de cianuro-, se alimenta del agua de lluvia, del agua utilizada en el proyecto y parte del caudal de la quebrada Minas; así, tomando en consideración que la laguna de relaves utiliza recurso hídrico de la quebrada, que la misma quebrada tiene conexión con otros cursos de agua, y que existirán vertederos que permitirían la eventual evacuación de excedentes de agua hacia la Quebrada, se planteó la interrogante sobre la afectación en caso de desbordamiento, ruptura del dique o desagüe de la laguna. Esta preocupación surge por el impacto que podría tenerse en la zona inmediata al proyecto –situación ya analizada- como, especialmente, en lo que atañe al riesgo de contaminación de recursos acuíferos transfronterizos. Esto es así porque se ha documentado que desde la laguna de relaves, la quebrada Minas recorre una distancia cercana a un kilómetro hasta su desembocadura en el río Infiernito, el que a su vez desde allí continúa por veinte kilómetros hasta desembocar en el río San Juan.

En cuanto a la ruptura del dique, debe estarse a lo ya indicado en los considerandos precedentes donde se consideró lo relativo al riesgo sísmico y su mínimo impacto negativo, pero debe precisarse qué sucedería con el recurso hídrico de la quebrada y los ríos citados. Sobre el particular, se ha documentado reiteradamente que el agua de la laguna de relaves se encuentra libre de cianuro y de sustancias cianuradas, pues en la laguna se recibirá aguas y rocas que han sido tratadas en la planta de destrucción de cianuro, por lo que la laguna es un área de almacenamiento de roca molida y agua que no contienen sustancias tóxicas; además, los planes de monitoreo propuestos para la Planta de Proceso, tienden a garantizar que no se enviarán materiales si contienen niveles de cianuro. En todo caso, se tienen previstos planes de monitoreo de las fuentes de agua, los cuales se realizarán tanto aguas arriba como aguas abajo –ver páginas 148 a 150 del Estudio de Impacto Ambiental-.

El Estudio sí prevé que ante una eventual ruptura se aportarían sedimentos a la Quebrada, los cuales tendrían la capacidad de afectar su hábitat acuático y los del río Infiernito; este impacto se considera de carácter negativo porque generaría una degradación en las condiciones del medio acuático, pero, dice el Estudio, es de extensión limitada a esa zona y de carácter temporal y reversible, en un contexto ya medianamente degradado por actividades antrópicas anteriores, y donde eventualmente podría haber pérdida de peces pero con afectación únicamente local –ver páginas 365 y 366 del Estudio—. Así, se indica que ante un evento extremo en este sentido, el tramo afectado se localizaría en las cercanías de la desembocadura de la Quebrada con el río Infiernito, la cual es una zona plana que almacenaría un volumen de agua y sedimento que disminuiría de manera significativa el caudal pico y el nivel máximo aguas abajo; en ese sentido, la dilución en el río San Juan disminuiría en términos de concentración de sedimentos en una proporción, afirman las autoridades recurridas, de treinta al nueve por ciento, con lo cual el nivel de agua esperado como afectación al río San Juan sería de cuarenta y un centímetros sobre el nivel del caudal promedio anual.

De tal forma, se evidencia que la situación con respecto a una posible afectación del entorno ante una ruptura o desbordamiento del agua de la laguna de relaves, sí fue tomado en cuenta en las valoraciones ambientales efectuadas y así validadas por las autoridades recurridas.

LXXXIII.- Aspecto igualmente relacionado con esto es la situación en torno a un eventual desbordamiento de la laguna de relaves. En primer término, debe estarse a lo ya indicado en cuanto a la calidad del agua de la laguna y el impacto en el medio terrestre y acuático relacionado, pero igualmente debe precisarse que según se ha informado, las valoraciones efectuadas se han realizado tomando en consideración el máximo de precipitaciones de la zona, considerando incluso los niveles de pluviosidad de fenómenos atmosféricos como huracanes, determinándose así que un dique que presenta una zona de seguridad de un metro veinticinco centímetros es apto para retener el contenido líquido de la laguna de relaves. En todo caso, debe recordarse que el agua de la laguna se afirma que estará libre de contaminantes –libre de cianuro y otros metales pesados-, aspecto que también implica un mínimo riesgo para el entorno en caso de desbordamiento.

LXXXIV.- De tal forma, tomando en consideración las valoraciones contenidas en el Estudio de Impacto Ambiental, así como las indicadas en los demás documentos técnicos aportados, se evidencia que son mínimos los riesgos de ruptura del dique de la laguna de relaves o de desbordamiento de la misma laguna, con limitados efectos sobre el entorno terrestre y acuático, que, en todo caso, serían de carácter temporal y reversibles. En este sentido, no se aprecia ninguna vulneración constitucional con respecto a la valoración efectuada.

LXXXV.- Sobre la valoración preliminar de impactos ambientales. En cumplimiento de sus deberes de control y fiscalización, mediante oficio DAJ-1757-08 del doce de noviembre del dos mil ocho, el Ministerio del Ambiente, Energía y Telecomunicaciones ordenó a la Comisión Institucional de Seguimiento, Control y Fiscalización del Proyecto Minero Crucitas, realizar una inspección en el área del proyecto a fin de determinar si existían impactos ambientales no previstos. Esta Comisión, integrada por la Secretaría Técnica Nacional Ambiental, el Sistema Nacional de Áreas de Conservación y la Dirección de Geología y Minas, realizó la inspección en el área del proyecto el trece de noviembre de dos mil ocho. Los resultados de esa inspección constan en el informe DAP-1379-2008-SETENA, el cual concluye que las actividades realizadas por la empresa recurrida en el área del proyecto y autorizadas por el Ministerio de Ambiente, Energía y Telecomunicaciones, no han generado impactos ambientales no previstos en la evaluación ambiental. De tal forma, se acredita que las autoridades recurridas han estado haciendo uso de sus competencias para fiscalizar que las actividades de la empresa se ajusten a los compromisos ambientales asumidos por la empresa en el Estudio de Impacto Ambiental aprobado por la autoridad administrativa competente.

LXXXVI.- En este sentido, la prueba técnica allegada al expediente resulta altamente favorable a la utilización del sistema reportado por la empresa recurrida para el tratamiento y eliminación del cianuro, así como a los planes de manejo y seguridad que se implementarán a efectos de evitar un drenaje ácido de rocas como el temido por los recurrentes por causa de accidentes o producto de eventos sísmicos. La coincidencia y complementariedad de los informes referidos, permite a la Sala concluir que de manejarse el cianuro de la forma prevista ciertamente se aminora sustancialmente el riesgo de una contaminación por cianuro, tanto acuífera como general, pues técnicamente se ha demostrado que el cianuro será destruido y debidamente eliminado del material estéril. Sin embargo, deben tomar nota el Ministerio del Ambiente, Energía y Telecomunicaciones y la empresa recurrida, que la certeza que se informa depende, nuevamente, en gran medida del pleno respeto a las medidas de prevención, control, monitoreo y mitigación, por lo que se ordena que en todo momento se preste el máximo de atención para evitar incumplimientos a los protocolos establecidos y garantizar la continua e ininterrumpida supervisión, para lo cual la empresa deberá extremar el cuidado en el manejo del cianuro, su aplicación y destrucción, y la administración ejercer de manera rígida y constante el monitoreo a las tareas de la empresa en este campo.

LXXXVII.- Sobre la construcción de puentes y el eventual cierre de un camino público por parte de la empresa recurrida. Durante la Inspección Judicial realizada el doce de setiembre de dos mil nueve, el recurrente [Nombre 001] solicitó que la Sala tomara nota de dos puentes que había construido la empresa recurrida, así como del presunto cierre al que se someterá un camino público que ha servido como acceso tradicional a la comunidad de Crucitas, esto por estimar que ambos aspectos evidencian que la empresa se ha extralimitado buscando facilidades de acceso al área del proyecto, aún a costa de obligar a los vecinos a realizar un trayecto mayor, y para el cual se erigieron algunas obras que en su criterio implicaron la corta de árboles y la desmejora de su entorno biológico. Sobre el particular, advierte la Sala advierte las manifestaciones del recurrente están referidas a quejas puntuales que por su carácter y naturaleza deben ser planteadas y conocidas inicialmente por las instancias administrativas que corresponda.

Asimismo, debe tomar en consideración el recurrente, que tanto el presunto cierre de un camino público - lo cual es aún un hecho impreciso e incierto porque el camino se encuentra abierto-, como que una vía de acceso ha sido mejorada o construida fuera de los parámetros establecidos en la legislación ordinaria, son aspectos que de manera evidente trascienden el objeto de este recurso de amparo, pues tales situaciones, aún presentándose en el entorno del proyecto minero, carecen de una relación directa con las situaciones de fondo aducidas en este recurso de amparo. En consecuencia, de mantener alguna inconformidad sobre estas situaciones, deberá el recurrente interponer las acciones que estime pertinentes ante los órganos administrativos competentes.

LXXXVIII.- Sobre la declaratoria de conveniencia nacional del proyecto minero. El conflicto que ahora se conoce tiene su origen inmediato en la declaratoria de conveniencia nacional del proyecto minero, tema que se desarrolla y es consustancial con la autorización del cambio de uso de suelo en el inmueble donde la empresa recurrida desarrolla el proyecto, toda vez que tales terrenos se encuentran clasificados como de cobertura boscosa. Este Tribunal, en sentencia Nº 2009-17155, se pronunció respecto a los artículos aquí cuestionados por los recurrentes en el siguiente sentido:

“VI. Sobre el artículo 19 inciso b) de la Ley Forestal impugnado. Refiere la Defensoría de los Habitantes en su condición de accionante, que la aplicación del artículo 19.2 de la Ley Forestal es inconstitucional, por cuanto establece como excepción a la protección del bosque la “conveniencia nacional”. Reconoce que para aplicar tal excepción, los beneficios sociales deben ser mayores que los costos socio-ambientales, sin embargo refiriéndose al caso particular del Proyecto Minero Crucitas, indica que la interpretación y aplicación que se está dando es inconstitucional, ya que los costos socio-ambientales son mayores que los costos sociales. El artículo impugnado se ubica dentro de la Ley Forestal en el Título III “Propiedad Forestal Privada”, Capítulo I “Manejo de Bosques”, el cual dispone que en terrenos cubiertos de bosque, no se permitirá cambiar el uso del suelo, ni establecer plantaciones forestales.

Sin embargo, la Administración Forestal del Estado puede otorgar permiso en esas áreas, con algunos fines determinados, entre los cuales está el inciso b, que lo autoriza para llevar a cabo proyectos de infraestructura, estatales o privados, de conveniencia nacional. Esta norma en particular fue objeto de pronunciamiento por parte de este Tribunal en la sentencia No. 2006-17126, en la cual luego del análisis de los principios rectores en materia ambiental, la Sala concluyó que tanto el artículo 19 inciso b) aquí impugnado como el artículo 34 de la Ley Forestal no son contrarios al derecho a un ambiente sano y ecológicamente equilibrado, siempre y cuando no sea una autorización para que las instituciones públicas lesionen "legítimamente" el ambiente, ni tampoco de un régimen de excepción. En aquella oportunidad se estableció claramente que la posibilidad del cambio del uso del suelo que se conoce, queda reservada únicamente para el patrimonio forestal privado, con lo cual, no se "afecta" el patrimonio natural del Estado (artículos 1, párrafo segundo y 18 de la Ley Forestal).

Asimismo, sólo es con ocasión de una situación de emergencia o excepción en los términos previstos en el artículo 180 constitucional ("para satisfacer necesidades urgentes o imprevistas en casos de guerra, conmoción o calamidad pública") que puede excepcionarse la vinculatoriedad de la normativa ambiental –al igual que el resto del ordenamiento jurídico, como lo consideró este Tribunal en la citada sentencia número 1992-2340. En virtud de ello, la normativa ambiental (principios y normas) son de aplicación irrefutable para las instituciones públicas, en lo relativo al cumplimiento de los fines encomendados (gestión pública), en atención a lo dispuesto en el artículo 50 constitucional. Es cierto que las normas impugnadas sí prevén el caso en que se puede modificar el destino de los inmuebles particulares sobre los que pese una afectación al patrimonio forestal del Estado, para permitir la construcción de obras de infraestructura de conveniencia social, pero como quedó debidamente establecido, no es un régimen de excepción que autorice a las instituciones públicas a contaminar el ambiente, pues de igual modo, el caso al cual se pretenda aplicar, debe sujetarse a la normativa ambiental vigente.

Lo establecido en esta disposición está referido a inmuebles a los que se les ha impuesto una limitación de evidente interés social, sustentada en la finalidad de la preservación y tutela del ambiente, de ahí que se contemplara como regla general la imposibilidad de su cambio de uso (párrafo primero del artículo 19 y frase primera del primer párrafo del artículo 34 de la Ley Forestal); sin embargo, ante la finalidad del interés general de la colectividad nacional se deben ponderar ambos derechos y equilibrar su utilización atendiendo a un principio de desarrollo humano sostenible, según el cual se reconoce la necesidad de una inter-relación equilibrada entre los elementos críticos del desarrollo económico (turismo, inversión, empleo, infraestructura, finanzas sanas y sistema tributario) de la política social (educación, salud, seguridad) y de la protección medioambiental.

Este desarrollo ha sido definido por la Organización de las Naciones Unidas, como la ampliación de las opciones para todas las personas de una sociedad, el cual es un concepto compresivo porque incluye a los hombres y mujeres como centro del desarrollo, la protección de las oportunidades en la vida de las futuras generaciones y los sistemas naturales de los que depende la vida en su totalidad. El propósito fundamental es la creación de un ámbito posibilitante en que todos puedan disfrutar de vidas largas, saludables y creativas, ya que el crecimiento económico también es un medio para el desarrollo humano. De ahí que lo relevante es permitir un desarrollo industrial y tecnológico de los pueblos, pero tolerable al utilizar el entorno físico y social, con el fin de lograr un progreso económico y social. La responsabilidad consiste en equilibrar la protección del ambiente, el desarrollo económico y las actividades de los particulares, que justifique la intervención del Estado.

Ahora bien, es precisamente por la vinculatoriedad del ordenamiento ambiental, que la decisión no puede ser arbitraria y por ello la discrecionalidad de la Administración está condicionada al respeto del bloque de legalidad, referidos a la naturaleza del bosque y del proyecto u obra, calificado como de "conveniencia nacional", el cual está definido en el artículo 2 del Reglamento de la Ley Forestal, número 25.721-MINAE, de la siguiente manera:

"Las actividades de conveniencia nacional son aquellas relacionadas con el estudio y ejecución de proyectos o actividades de interés público efectuadas por las dependencias centralizadas o instituciones autónomas o la empresa privada, que brindan beneficios a toda o gran parte de la sociedad tales como: captación, transporte y abastecimiento de agua; oleoductos, construcción de caminos, generación, transmisión y distribución de electricidad, transporte de actividades mineras, canales de riego y drenaje, recuperación de áreas de vocación forestal, conservación y manejo sostenible de los bosques, y otras de igual naturaleza que determine el MINAE según las necesidades del país." Así como también, al respeto de los principios y regulaciones ambientales, en virtud de los cuales se impone la realización de estudios técnicos (artículo 17 de la Ley Orgánica del Ambiente) para acreditar, la pertinencia del proyecto en la ubicación dispuesta, el impacto que tales obras tendrán sobre el ambiente a fin de determinar las medidas compensatorias necesarias para mitigar los efectos negativos, el sometimiento a los controles técnicos anteriores, durante y posteriores al levantamiento de las obras a cargo de las autoridades públicas correspondientes (en particular, el MINAE y SETENA); se requiere de un regente forestal y un plan de manejo (artículos 20 y 21 de la Ley Forestal) para su implementación, y por supuesto, cabe la posibilidad de la revocatoria del permiso si no se cumplen las exigencias que permitieron la autorización, esto es, si se daña al ambiente; y por supuesto, a la razonabilidad o proporcionalidad de la medida, como bien lo prevén las normas de referencia, de manera que "la corta del bosque será limitada, proporcional y razonable para los fines antes expuestos".

La posibilidad de cambio del uso de suelo de los inmuebles particulares que han sido afectados previamente para la preservación del recurso forestal, fue fundamentada precisamente en el concepto de desarrollo sostenible que debe ser incorporado al contenido de la debida tutela ambiental; con lo cual, como ya se indicó, no sólo es posible, sino necesario el fomento del desarrollo económico y social de la población –en cumplimiento del precepto contenido en el primer párrafo del artículo 50 constitucional, según el cual el Estado debe procurar el mayor bienestar a todos los habitantes del país, organizando y estimulando la producción y el más adecuado reparto de la riqueza; claro está, conforme al respeto de las normas ambientales, caso contrario se causaría una grave paralización en el desarrollo de nuestro país, no querido ni pretendido por los constituyentes, ni tampoco por los legisladores que tuvieron la responsabilidad de promulgar la Ley en cuestión.

Así las cosas, este Tribunal mantiene el criterio vertido con anterioridad, señalando que lo dispuesto en la norma impugnada no resulta lesivo del derecho a un ambiente sano y equilibrado, pues al momento de concretarse un proyecto como de conveniencia nacional, se deben verificar previamente los impactos ambientales que con él se producen y realizar una comparación con los beneficios sociales que éste implique, lo cual no se puede verificar abstractamente en la norma, sino en el análisis de cada caso concreto, vía recurso de amparo y no de acción de inconstitucionalidad (…)

VII.Sobre el artículo 6 del Código de Minería. La Defensoría accionante solicita la inconstitucionalidad del párrafo primero de este artículo argumentando que la palabra “toda” reconoce a toda actividad minera como de utilidad pública, ignorando que hay tipos más contaminantes que otros de minería que violentan en forma directa lo dispuesto en el artículo 50 constitucional. Igualmente alega que “las alteraciones ambientales producidas por la minería de interior son menores, menos radicales, menos extensas y menos generales que las producidas por la minería de superficie”. Este Tribunal considera que no se puede afirmar en forma generalizada que toda actividad minera lesiona el ambiente, sin considerar la mitigación de sus impactos, y sin valorar los efectos sociales y económicos que se producen alrededor de esta industria en cada caso concreto. Como bien indica la Procuraduría General de la República esta actividad ejecutada de manera sostenible, tanto a nivel nacional como mundial, reviste una gran importancia desde el punto de vista de obtención de materiales (arena, la grava, los áridos, las arcillas para ladrillos, la caliza y los esquistos para la fabricación de cemento, así como algunos combustibles y otros minerales) y de materias primas indispensables para la elaboración final de productos o la realización de obras de infraestructura.

Además, tampoco es preciso afirmar que toda minería a cielo abierto sea más dañina que la subterránea, pues esto dependerá de los procesos de aplicación a cada de una ellas. Si el Poder Ejecutivo estima que un proyecto minero puede o debe ser declarado de conveniencia nacional, deberá tener por acreditada la superioridad de los beneficios sobre los costos socio-ambientales mediante la aplicación de los procedimientos o instrumentos apropiados. De modo que, incentivar una actividad determinada, es una cuestión de oportunidad y conveniencia, como se ha hecho en otras áreas económicas del país. Actualmente por ejemplo, en la Ley No. 6990 “Ley de Incentivos de desarrollo Turístico”, en el artículo 1 se declara de utilidad pública la industria del turismo y en la “Ley sobre el régimen de productores, beneficiadores y exportadores de café”, Ley No. 2762, en el artículo 2 se declara de interés público lo relativo a producción, elaboración, mercadeo, calidad y prestigio del café de Costa Rica, para todos los efectos que señala la presente ley.” Por otro lado, se debe hacer una lectura integral del artículo 6 en cuestión, pues si bien inicia señalando que se declara de utilidad pública toda la actividad minera, tanto en los trabajos de exploración, como en los de explotación y que tendrán el mismo carácter la concentración, beneficio, transformación, transporte de sustancias minerales y los terrenos de propiedad particular o estatal necesarios para esos fines, la norma continúa señalando lo siguiente: “Excepto con autorización expresa de la Asamblea Legislativa, los permisos o concesiones podrán negarse o condicionarse, de acuerdo con el análisis de los estudios sobre el impacto social y ambiental que se hagan, en los cuales participarán las comunidades afectadas, cuando tales estudios tengan relación con la salud y la seguridad de los habitantes de comunidades ubicadas en las cercanías de las vías de transporte, acueductos, oleoductos, depósitos de combustible, explosivos, obras de defensa civil, poblaciones, cementerios, aeropuertos, plantas hidroeléctricas u obras de importancia pública.

Los estudios sobre el impacto social y ambiental contemplarán un análisis del uso alternativo de la tierra en varias actividades económicas. El análisis del impacto ambiental comprenderá las distancias y las otras condiciones para cada permiso específico a que se refiere este artículo. Los permisos o concesiones podrán negarse o condicionarse en razón del interés nacional. En caso de rescisión, el interés nacional será declarado por la Asamblea Legislativa.” De modo que no estamos frente a una autorización irrestricta, pues esta normativa debe aplicarse de conformidad con la tutela ambiental que garantiza la Constitución Política en el artículo 50. Según la interpretación que esta Sala ha dado a esta disposición y a los convenios internacionales suscritos por nuestro país en materia ambiental, el ambiente debe ser entendido como un potencial de desarrollo para utilizarlo adecuadamente, debiendo actuarse de modo integrado en sus relaciones naturales, socioculturales, tecnológicas y de orden político, ya que, en caso contrario, se degrada su productividad para el presente y el futuro y podría ponerse en riesgo el patrimonio de las generaciones venideras.

Los orígenes de los problemas ambientales son complejos y corresponden a una articulación de procesos naturales y sociales en el marco del estilo de desarrollo socioeconómico que adopte el país. Por ejemplo, se producen problemas ambientales cuando las modalidades de explotación de los recursos naturales dan lugar a una degradación de los ecosistemas superior a su capacidad de regeneración, lo que conduce a que amplios sectores de la población resulten perjudicados y se genere un alto costo ambiental y social que redunda en un deterioro de la calidad de vida; pues precisamente el objetivo primordial del uso y protección del ambiente es obtener un desarrollo y evolución favorable al ser humano. La calidad ambiental es un parámetro fundamental de esa calidad de vida; otros parámetros no menos importantes son salud, alimentación, trabajo, vivienda, educación, etc., pero más importante que ello es entender que si bien el hombre tiene el derecho de hacer uso del ambiente para su propio desarrollo, también tiene el deber de protegerlo y preservarlo para el uso de las generaciones presentes y futuras, lo cual no es tan novedoso, porque no es más que la traducción a esta materia, del principio de la "lesión", ya consolidado en el derecho común, en virtud del cual el legítimo ejercicio de un derecho tiene dos límites esenciales: Por un lado, los iguales derechos de los demás y, por el otro, el ejercicio racional y el disfrute útil del derecho mismo.

Nuestro país ha dependido y seguirá dependiendo, al igual que cualquier otra nación, de sus recursos naturales y su medio para llenar las necesidades básicas de sus habitantes y mantener operando el aparato productivo que sustenta la economía nacional. El suelo, el agua, el aire, los recursos marinos y costeros, los bosques, la diversidad biológica, los recursos minerales y el paisaje conforman el marco ambiental sin el cual las demandas básicas -como espacio vital, alimentación, energía, vivienda, sanidad y recreación- serían imposibles. De igual modo, nuestra economía también está íntimamente ligada al estado del ambiente y de los recursos naturales. Por otro lado, las metas del desarrollo sostenible tienen que ver con la supervivencia y el bienestar del ser humano y con el mantenimiento de los procesos ecológicos esenciales, es decir, de la calidad ambiental y de la sobrevivencia de las otras especies.

Hablar de desarrollo sostenible en términos de satisfacción de las necesidades humanas presentes y futuras y del mejoramiento de la calidad de vida es hablar de la demanda de los recursos naturales a nivel individual y de los medios directos o de apoyo necesarios para que la economía funcione generando empleo y creando los bienes de capital, que a su vez hagan posible la transformación de los recursos en productos de consumo, de producción y de exportación. La declaración que se hizo en la Cumbre de la Tierra en 1992, se proclamó y reconoció la naturaleza integral e independiente del planeta, ello significa la aceptación de ciertos principios que informan la transición de los actuales estilos de desarrollo a la sostenibilidad. Los Estados signatarios, entre los que figura Costa Rica, se comprometieron, dentro de la preservación del desarrollo sostenible, a la protección sobre todo del ser humano.

Se partió del principio de que toda persona tiene derecho a una vida saludable y productiva en armonía con la naturaleza; se incluyó el derecho de las generaciones presentes y futuras a que el desarrollo se realice de modo tal que satisfaga sus necesidades ambientales y de progreso; se mantuvo la potestad soberana de los Estados de explotar sus recursos, recalcando su responsabilidad de asegurar que las actividades que realicen dentro de su jurisdicción y control no causen daños ambientales a otros Estados o áreas más allá de los límites de su jurisdicción nacional. Establecieron el deber de los Estados de cooperar en la conservación, protección y restauración del ambiente y sus responsabilidades comunes en ese sentido; de ese modo la cooperación internacional en la promoción y apoyo del crecimiento económico y el desarrollo sostenible permitirá abordar mejor los problemas de la degradación ambiental.

Asimismo, se impuso un deber especial a los países desarrollados fundado en su responsabilidad en la búsqueda del desarrollo sostenible, dada la evidente presión que ejercen en el ambiente global las tecnologías que desarrollan y los recursos financieros que poseen. Es por ello que las normas dirigidas a proteger al ambiente deben tener un sustento técnico, pues su aplicación tiene que partir de las condiciones en las cuáles debe sujetarse el uso y aprovechamiento de los recursos naturales. Esto es así porque al ser los daños y contaminación del medio evaluables, el impacto de estos elementos requiere de un análisis y tratamiento científico. Factores sociales, económicos y ambientales fueron aspectos valorados por los legisladores cuando reformaron el Código de Minería mediante Ley No. 6797 de 4 de octubre de 1982. De las actas del expediente legislativo respectivo, se desprende que su intención fue promulgar un nuevo Código de Minería que resultaba indispensable para modernizar la legislación vigente y proporcionar un marco legal adecuado a las necesidades de la nueva etapa del desarrollo del sector minero, pues la legislación existente en aquella oportunidad era muy deficiente y no existía una política nacional minera de fomento y desarrollo, como sucedía en otros sectores de la economía.

En su discusión contaron con un diagnóstico del sector minero en Costa Rica emitido en diciembre de 1978, por parte de la OEA (folio 598 del tomo III), con el fin de identificar los problemas de la actividad minera en el país, así como se le pidió un estudio a la Universidad Nacional Facultad de Ciencias, Tierra y Mar, Escuela de Ciencias Ambientales, el cual fue emitido por el Ingeniero Carlos Torres Acosta en enero de 1980. Asimismo, se hicieron asesorar con la presencia de varios especialistas en geología, ambientalistas y otros, así como de la asesoría extranjera por parte del gobierno de Venezuela, donde incluso se llevó a cabo una inspección, y finalmente se modificó el texto legislativo, incluyéndose un capítulo en materia de protección ambiental. Así las cosas, quedó claro para el legislador, que si bien su intención era incentivar una actividad económica que estaba abandonada en nuestro país por una deficiente legislación, no se dejaba de lado la importancia de prevenir cualquier daño que se produjera al ambiente y por ello se exigió un estudio previo a cualquier exploración o explotación minera.

Como se indicó anteriormente, la Sala reconoce la necesidad de una inter-relación equilibrada entre los elementos críticos del desarrollo económico (turismo, inversión, empleo, infraestructura, finanzas sanas y sistema tributario) de la política social (educación, salud, seguridad) y de la protección medioambiental. Sin embargo, la responsabilidad consiste en equilibrar la protección del ambiente, el desarrollo económico y las actividades de los particulares, que justifique la intervención del Estado. Lo anterior, por cuanto una protección excesiva del ambiente que anule toda actividad económica, puede hacer incurrir a los particulares en costos desproporcionados e innecesarios, tornando algunas actividades productivas en ruinosas y generando pobreza y desempleo, lo cual impactaría negativamente a la gente. Pero de igual modo, una actividad económica descontrolada e irresponsable puede producir un daño irreversible en el ecosistema, razón por la cual se impone la aplicación del principio “in dubio pro natura”, en el sentido de que si existe duda sobre si una actividad produce o no daños al ambiente, debe priorizarse en su protección y en consecuencia, limitarse o prohibirse dicha actividad.

No obstante, la determinación de esa duda, no puede, ni debe, quedar al arbitrio de los grupos sea cual sea, sino de estudios técnicos, pues este aplicará cuando haya peligro de daño grave o irreversible en el ambiente. Precisamente el artículo 3 del Código de Minería, dispone que todo permiso de exploración o concesión de explotación requiere de previo el análisis y la aprobación del estudio o evaluación de impacto ambiental. Lo anterior, por cuanto sin duda alguna los efectos que produce un proyecto minero requieren de una evaluación de impacto ambiental por las consecuencias que se suelen producir en el desarrollo de la industria minera, y esta evaluación previa determinará si el proyecto es ambientalmente viable. En consecuencia de lo expuesto, la declaratoria de utilidad pública de una actividad como la minería, no resulta inconstitucional per se, siempre y cuando sea interpretada a la luz de lo dispuesto en el artículo 50 de nuestra Constitución Política según los términos expuestos. Los Magistrados Armijo, Cruz y Molina salvan el voto y declaran inconstitucional el artículo 6 citado con todas sus consecuencias.

VIII.Con relación a la inconstitucionalidad acusada del artículo 3 inciso m) de la Ley Forestal. Se alega por parte de la accionante que el concepto de “actividad de conveniencia nacional” que impacta el medio ambiente de la forma en que se desarrolla en la minería a cielo abierto, no es una actividad de conveniencia nacional, y que por ende, la interpretación y aplicación que se está dando en el Decreto 34801-MINAET resulta inconstitucional, por contrariar el artículo 50 de la Constitución Política. Sobre este aspecto debe señalarse que en primer término, el artículo 3 impugnado, constituye simplemente una norma de referencia dentro de la Ley Forestal, ya que en ella se establecen las definiciones de algunos conceptos importantes a fin de aplicar la legislación forestal. Nótese que el inciso m), lo único que hace es definir lo que debe ser entendido como un asunto de conveniencia nacional:

“…m) Actividades de conveniencia nacional: Actividades realizadas por las dependencias centralizadas del Estado, las instituciones autónomas o la empresa privada, cuyos beneficios sociales sean mayores que los costos socioambientales. El balance deberá hacerse mediante los instrumentos apropiados.” Lo dispuesto en ese sentido, no hace que la disposición sea inconstitucional, ya que como se indicó, constituye una mera referencia de lo que debe ser comprendido como un asunto de conveniencia nacional, en aquellas normas que la legislación así lo consigna. Cualquier inconstitucionalidad relacionada con el artículo 50 de la Constitución Política tendría que ser verificada en cada caso particular en el que se haya aplicado dicha definición y que afectara el derecho a un ambiente sano y equilibrado. Del mismo alegato de la accionante se desprende que en realidad su disconformidad no es con la norma en sí, sino con la valoración y aplicación que el Poder Ejecutivo hizo de ésta en el Decreto Ejecutivo No. 35801-MINAET, lo cual no corresponde ser determinado vía acción de inconstitucionalidad, sino que constituye materia de amparo en ese sentido. Es por ello que, en lo que respecta a este estudio, procede declarar sin lugar la acción en cuanto a esta norma se refiere.

IX.Sobre el decreto No. 34801-MINAET. Tal y como lo dispuso la mayoría de la Sala en las sentencias No. 2008-17292 y 2008-17293, el Decreto Ejecutivo No. 34801-MINAET del 13 de octubre del 2008, que declara de interés público y conveniencia nacional el Proyecto Minero Crucitas, es una disposición concreta y particularizada, sin alcance general ni carácter normativo, que se limita a calificar el interés público y la conveniencia nacional de un proyecto claramente individualizado en cuanto a sujeto y contenido. Por lo que si la disposición cuestionada infringe el derecho fundamental consagrado en el artículo 50 de la Constitución Política, ello debe ser examinado en la vía de amparo y no en la (residual) de acción (en igual sentido Nº 1993-4422 de las 10:30 horas del 7 de setiembre de 1993).”.

De esta forma, para examinar el alcance y legitimidad de la declaratoria de conveniencia nacional, paralelamente debe valorarse la autorización del cambio de uso de suelo. Así, el inciso b) del artículo 19 y el artículo 34 de la Ley Forestal, prohíben el cambio de uso de suelo y la corta de árboles en terrenos cubiertos de bosque, salvo aquellos proyectos privados o estatales que el Poder Ejecutivo declare de conveniencia nacional. En lo conducente establecen los artículos de cita:

“ARTICULO 19.- Actividades autorizadas.

En terrenos cubiertos de bosque, no se permitirá cambiar el uso del suelo, ni establecer plantaciones forestales. Sin embargo, la Administración Forestal del Estado podrá otorgar permiso en esas áreas para los siguientes fines:

• a)Construir casas de habitación, oficinas, establos, corrales, viveros, caminos, puentes e instalaciones destinadas a la recreación, el ecoturismo y otras mejoras análogas en terrenos y fincas de dominio privado donde se localicen los bosques.
• b)Llevar a cabo proyectos de infraestructura, estatales o privados, de conveniencia nacional.

(…) ARTICULO 34.- Prohibición para talar en áreas protegidas Se prohíbe la corta o eliminación de árboles en las áreas de protección descritas en el artículo anterior, excepto en proyectos declarados por el Poder Ejecutivo como de conveniencia nacional.

Los alineamientos que deban tramitarse en relación con estas áreas, serán realizados por el Instituto Nacional de Vivienda y Urbanismo.” Los recurrentes han aducido la inconformidad de la declaratoria de conveniencia nacional sobre la base de que el artículo 19 de reciente cita define que esa declaratoria puede ser sobre proyectos de infraestructura, pero en su criterio un proyecto minero no clasifica como infraestructura; sobre el particular, debe indicarse que escapa al ámbito de competencias de la Sala definir qué tipo de obras o proyectos debe entenderse como «infraestructura» y cuáles no; lo que la Sala debe valorar en estos casos se circunscribe a determinar si ha existido la declaratoria de conveniencia nacional que exige el ordenamiento para autorizar el cambio de uso de suelo, evitando detenerse en el alcance etimológico de conceptos que por su propia naturaleza, son competencia técnica de otras instancias. De tal forma, legislativamente se establece la potestad de la administración de autorizar el cambio de uso de suelo y la corta de árboles en áreas protegidas cuando las actividades a desarrollar hayan sido declaradas de conveniencia nacional. De lo anterior, resulta necesario clarificar qué se entiende por conveniencia nacional, para lo cual la misma Ley Forestal explica este concepto, precisando en el inciso m) del artículo 3 que:

“ARTICULO 3.- Definiciones Para los efectos de esta ley, se considera: (,,,) m) Actividades de conveniencia nacional: Actividades realizadas por las dependencias centralizadas del Estado, las instituciones autónomas o la empresa privada, cuyos beneficios sociales sean mayores que los costos socio-ambientales.

El balance deberá hacerse mediante los instrumentos apropiados."

(Así reformado por el artículo 114 de la Ley N° 7788 del 30 de abril de 1998)

Esta definición es complementada en el artículo 2 del Reglamento a la Ley Forestal, emitido mediante Decreto número 25721, publicado en La Gaceta número 16 del veintitrés de enero de mil novecientos noventa y siete, norma que refiere que:

“Artículo 2 °—Para los efectos de la aplicación de la Ley Forestal y el presente reglamento- los términos que se mencionan tendrán los siguientes significados: (…) - Conveniencia Nacional: Las actividades de conveniencia nacional son aquellas relacionadas con el estudio y ejecución de proyectos o actividades de interés público efectuadas por las dependencias centralizadas del Estado, las instituciones autónomas o la empresa privada, que brindan beneficios a toda o gran parte de la sociedad tales como: captación, transporte y abastecimiento de agua; oleoductos; construcción de caminos; generación, transmisión y distribución de electricidad: transporte; actividades mineras; canales de riego y drenaje; recuperación de áreas de vocación forestal; conservación y manejo sostenible de los bosques; y otras de igual naturaleza que determine el MINAE según las necesidades del país.” Esta disposición reglamentaria define que la actividad minera resulta de conveniencia nacional por tratarse de una actividad de interés público, definición que deriva tanto de las normas legales de cita como, particularmente, del primer párrafo del artículo 6 del Código de Minería, el cual señala que «[s]e declara de utilidad pública toda la actividad minera, tanto en los trabajos de exploración, como en los de explotación».

De la integración de las normas de comentario, se entiende que la actividad minera ha sido reconocida por el Poder Legislativo como de conveniencia nacional en términos generales –art. 6 del Código de Minería-, pero tal carácter debe ser reconocido en los casos particulares mediante una declaratoria de conveniencia nacional emitida por el Poder Ejecutivo, declaratoria que podrá adoptarse cuando en el caso concreto los beneficios sociales a obtener sean mayores a los costos socio-ambientales del proyecto –art. 3.m de la Ley Forestal-. En otras palabras, resulta válido afirmar que existe una presunción legislativa iuris tantum de que la actividad minera es de utilidad e interés público y, por tanto, de conveniencia nacional, mas esa presunción debe ser verificada por el Poder Ejecutivo para convertirse en un hecho incontrovertido sobre la base de la comparación entre los beneficios sociales y el costo socio-ambiental.

Dicho de otro modo, la declaratoria general de conveniencia nacional no cubre per se a toda la actividad minera ni a todos los proyectos de exploración y explotación minera, sino sólo aquellos donde se haya demostrado que los beneficios sociales son mayores a los costos. En definitiva, si el Poder Ejecutivo estima que un proyecto minero puede o debe ser declarado de conveniencia nacional, deberá tener por acreditada la superioridad de los beneficios sobre los costos mediante la aplicación de los procedimientos o instrumentos apropiados. Es realizando este procedimiento y obteniendo tales resultados que una actividad minera puede ser declarada de conveniencia nacional, y es con base en esta declaratoria que en casos como el que ahora se conoce, se puede proceder conforme lo establecido en el artículo 19.b de la Ley Forestal.

LXXXIX.- Es por lo anterior que resulta inexacto afirmar la inconstitucionalidad del artículo 2 del Reglamento de la Ley Forestal, pues de conformidad con lo establecido, lo que dicha norma dispone debe integrarse y aplicarse según lo definido en los artículos 19 y 34 de la propia Ley Forestal. Es decir, aún cuando el artículo 2 del Reglamento identifique a la actividad minera como actividad de conveniencia nacional, es claro que ese carácter, identificación o reconocimiento –conveniencia nacional- está supeditado al cumplimiento de lo establecido en las normas legales –demostración de que los beneficios son mayores al costo-, por lo que es evidente que el Reglamento no suplanta la voluntad legislativa, no vacía de contenido las normas legales que la informan, ni contradice de modo alguno la protección ambiental que debe otorgarse de conformidad con el artículo 50 de la Constitución, por lo que tampoco puede aducirse que dicha disposición reglamentaria exceda los límites de la razonabilidad cuando, por el contrario, se impone la realización de actos concretos legalmente establecidos.

Es así que la autorización de cambio de uso de suelo no puede acordarse tan sólo porque el Reglamento dice que la actividad minera es de conveniencia nacional, sino que tal autorización resulta procedente cuando esa conveniencia haya sido debidamente demostrada y públicamente declarada por el Poder Ejecutivo mediante un acto posterior, acto administrativo para cuyo dictado se haya cumplido con la aplicación de los procedimientos e instrumentos correspondientes. La aplicación de estos instrumentos y la determinación de la bondad de los beneficios por sobre los costos, es justamente lo que evita la adopción de actos arbitrarios por parte de la administración, toda vez que los resultados obtenidos darán criterio y base técnica-objetiva para que el Poder Ejecutivo emita la declaratoria de conveniencia nacional de un proyecto minero determinado y la correspondiente autorización para el cambio de uso de suelo.

XC.- El tema de la necesaria objetividad y evitación de la arbitrariedad, ha sido ya definido previamente por esta Sala precisamente al afirmar la conformidad constitucional de los artículos 19.b y 34 de la Ley Forestal en cuanto a la autorización para el cambio de uso de suelo. Mediante sentencia número 2006-17126, de las quince horas cinco minutos del veintiocho de noviembre de dos mil seis, definió la Sala que:

“Tercero: Es precisamente por la vinculatoriedad del ordenamiento ambiental que la decisión no puede ser arbitraria; de donde la discrecionalidad de la Administración está condicionada al respeto del bloque de legalidad, referidos a la naturaleza del proyecto u obra, calificado como de "conveniencia nacional", el cual está definido en el artículo 2 del Reglamento de la Ley Forestal, número 25.721-MINAE, de la siguiente manera:

"Las actividades de conveniencia nacional son aquellas relacionadas con el estudio y ejecución de proyectos o actividades de interés público efectuadas por las dependencias centralizadas o instituciones autónomas o la empresa privada, que brindan beneficios a toda o gran parte de la sociedad tales como: captación, transporte y abastecimiento de agua; oleoductos, construcción de caminos, generación, transmisión y distribución de electricidad, transporte de actividades mineras, canales de riego y drenaje, recuperación de áreas de vocación forestal, conservación y manejo sostenible de los bosques, y otras de igual naturaleza que determine el MINAE según las necesidades del país." al respeto de los principios y regulaciones ambientales, en virtud de los cuales se impone la realización de estudios técnicos (artículo 17 de la Ley Orgánica del Ambiente) para acreditar, la pertinencia del proyecto en la ubicación dispuesta, el impacto que tales obras tendrán sobre el ambiente a fin de determinar las medidas compensatorias necesarias para mitigar los efectos negativos, el sometimiento a los controles técnicos anteriores, durante y posteriores al levantamiento de las obras a cargo de las autoridades públicas correspondientes (en particular, el MINAE y SETENA); se requiere de un regente forestal y un plan de manejo (artículos 20 y 21 de la Ley Forestal) para su implementación, y por supuesto, cabe la posibilidad de la revocatoria del permiso si no se cumplen las exigencias que permitieron la autorización, esto es, si se daña al ambiente; y por supuesto, a la razonabilidad o proporcionalidad de la medida, como bien lo prevén las normas de referencia, de manera que "la corta del bosque será limitada, proporcional y razonable para los fines antes expuestos".

Cuarto: Por último, es necesario considerar que la posibilidad de cambio del uso de suelo de los inmuebles particulares que han sido afectados previamente para la preservación del recurso forestal, se sustenta en que, según se había indicado anteriormente (Considerando V.- de esta sentencia), el concepto del desarrollo sostenible se incorpora al contenido de la debida tutela ambiental; con lo cual, es no sólo posible sino necesario el fomento del desarrollo económico y social de la población –en cumplimiento del precepto contenido en el primer párrafo del artículo 50 constitucional (que enuncia "El Estado procurará el mayor bienestar a todos los habitantes del país, organizando y estimulando la producción y el más adecuado reparto de la riqueza"); claro está, conforme al respeto de las normas ambientales, caso contrario se causaría una grave paralización en el desarrollo de nuestro país, no querido ni pretendido por los constituyentes derivados, ni tampoco por los legisladores que tuvieron la responsabilidad de promulgar la Ley de comentario (…)”.

De tal forma, es más que claro que si el ordenamiento impone a la administración el deber de realizar un procedimiento previo para pronunciar una declaratoria de conveniencia nacional de una actividad determinada, ello es precisamente un valladar que evita la arbitrariedad administrativa, y, por el contrario, obliga a la administración a adoptar y dictar actos administrativos debidamente fundados en razones técnicas objetivas; esta situación, además, permite y garantiza que el acto administrativo dictado pueda ser valorado en su momento por las instancias administrativas y judiciales que correspondiere.

XCI.- Reconocida de esta forma la conveniencia nacional, es claro que en terrenos con cobertura boscosa se puede permitir la autorización de cambio de uso de suelo y la correspondiente corta de árboles, si la actividad a desarrollar es declarada de conveniencia nacional por el Poder Ejecutivo, declaración que solamente puede emitirse si los beneficios sociales a obtener son mayores a los costos socio-ambientales del proyecto –definición objetiva y no arbitraria-, por lo que el análisis de la pertinencia de la declaratoria de conveniencia nacional del proyecto minero Crucitas, pasa necesariamente por valorar si en el caso concreto se ha considerado y concluido que los beneficios sociales resultan mayores a los costos socio-ambientales.

XCII.- De lo expuesto en los considerandos precedentes –que la declaratoria de conveniencia nacional lo es sólo para aquellos proyectos donde se demuestre una relación positiva en el balance de costos ambientales y beneficios socio-económicos, y no de carácter general para toda la actividad minera; y que para esta declaratoria en los casos concretos debe cumplirse con las disposiciones normativas y seguirse el procedimiento establecido, lo que implica una base técnica y objetiva- es claro que la determinación de que un proyecto específico sea declarado de conveniencia nacional es una competencia y potestad propia del Poder Ejecutivo, según lo dispone la propia normativa emitida por el Poder Legislativo, para cuyo cumplimiento se impone la observancia de procedimientos en el ámbito administrativo que acrediten la existencia de aquellas razones objetivas, que como competencia técnica de la administración, debe ser validada y acordada por las instancias especializadas del Ejecutivo.

Al mismo tiempo, debe reconocerse que el ejercicio de esta potestad se encuentra dentro del ámbito de competencias de identificación y fijación de políticas públicas, aspecto de indudable iniciativa, atención e implementación del Poder Ejecutivo, pues decidir qué acciones benefician a la población –en términos generales o particulares- y la procedencia de su aplicación en un momento o contexto determinado resulta ser por definición una competencia propia de ese Poder, para lo cual deberá instarse en todo momento las adecuadas relaciones de coordinación de la administración –sobre estas relaciones, ver sentencia de esta Sala número 2007-13583, de las quince horas diez minutos del 19 de setiembre de 2007-. En este sentido, siendo que la fijación de políticas públicas es competencia del Poder Ejecutivo de acuerdo a razones técnicas y objetivas en un contexto determinado, discutir si las mismas son procedentes o viables son aspectos que se encuentra fuera del ámbito de competencias de la jurisdicción constitucional –sentencia de esta Sala número 2009-5270, de las doce horas veintiocho minutos del 27 de marzo de 2009-.

Para situaciones como las que ahora se conocen, lo anterior significa que la definición de que un proyecto minero sea declarado de conveniencia nacional, es una determinación producto del ejercicio de las competencias dadas por el mismo legislador al Poder Ejecutivo, con tal de que sea el Ejecutivo quien defina las políticas públicas que considere pertinentes para un lugar y momento determinados, definición de política pública que por su propia naturaleza –política y no jurídica- resulta inviable discutir ante esta jurisdicción. De tal forma, si un proyecto minero concreto es catalogado como de conveniencia nacional, debe tenerse claro que esta identificación es otorgada por el Poder Ejecutivo en el ejercicio de las potestades de definición de políticas públicas que le fueron otorgadas y reconocidas por el Poder Legislativo, sin que pueda entenderse que en esta definición tenga algún grado de participación los demás Poderes de la República, quienes deben limitarse al ejercicio de sus competencias constitucional y legalmente establecidas.

XCIII.- El balance de los beneficios económicos y sociales para la autorización del cambio de uso de suelo. Partiendo de lo anterior y cumpliendo con la normativa citada en los considerandos precedentes, ante la solicitud planteada por la empresa para el cambio de uso de suelo, la administración exigió desde el tres de junio de dos mil ocho –ver oficio número 456-2008 SCH del Área de Conservación Arenal Huetar Norte- que de previo a conocer y valorar tal gestión se presentara dentro del expediente la respectiva declaratoria de conveniencia nacional de la actividad minera desarrollada por la empresa en la zona de Crucitas, para lo cual incluso medió alguna discusión a lo interno de la entidad sobre la necesidad de solicitar tal declaratoria, por lo que fue hasta el veinticuatro de setiembre de dos mil ocho, mediante oficio número 695-2008 SC, que la Subregión San Carlos-Los Chiles, del Área de Conservación Arenal Huetar Norte del SINAC, comunica a la empresa que sí se requiere el decreto de conveniencia nacional para poder resolver la solicitud de cambio de uso de suelo. Así, mediante el Decreto Ejecutivo número 34801-MINAET, publicado en La Gaceta número 201, de diecisiete de octubre de dos mil ocho, expresamente y en lo conducente se dispone que:

“VII. — El proyecto Crucitas traerá varios beneficios económicos a la comunidad de San Carlos y el gobierno central. Entre estos beneficios están los siguientes: i) La mina tendrá una operación cercana a 11 años (incluye construcción, operación y cierre técnico). Esto significa que durante ese tiempo habrá desarrollo de las comunidades cercanas a Crucitas y necesidad de mano de obra; ii) La inversión inicial para construir la Mina Crucitas es cercana a US$ 65,000,000. Se calcula que gran parte de ese monto se usará para compra de servicios profesionales, pago de contratistas, compra de materiales y maquinaria; mucho de estos adquiridos en la zona de San Carlos; iii) Se estima que se dará empleo a 253 personas directas. En minería se calcula que por cada empleado directo, se da trabajo a 5 empleados indirectos; por lo que tendremos 1,265 empleados indirectos; iv) Dentro de los compromisos sociales se procurará que al menos el 75% de los empleados sean de la zona cercana a Crucitas; v) Planilla: La planilla anual para pagar los empleados se estima en US $ 4,132,859; vi) Impuesto local.

El código de minería establece que las empresas mineras deberán pagar el 2% de su utilidad bruta a la comunidad; por lo que la municipalidad de San Carlos y la comunidad del área de influencia a Crucitas recibiría anualmente un aproximado de US $ 1,441,158 durante ocho años (para un total de US $ 11,529,263); vii) Se maneja un fideicomiso para desarrollar obras sociales y las acciones de la comisión de monitoreo del Proyecto Crucitas, que recibiría anualmente la suma de US $ 364,063 y viii) El proyecto Crucitas pagará impuestos al gobierno central, se tiene calculado un pago anual por impuesto de renta de US$8,790,289 para un total por la vida de la mina de US $ 70,322,309.

VIII.— Para la construcción y desarrollo del Proyecto Crucitas se requiere la corta de árboles en 191 Ha 7 782,66 m2 que poseen bosque, lo cual representa el 19.93 % del bosque existente en todas las propiedades, la corta de árboles en 66 Ha 9474,53 m2 en áreas de uso agropecuario sin bosque, lo cual representa el 14.00 % de las áreas de uso agropecuario sin bosque existente en todas las propiedades y la corta de árboles de 4 Ha 1 751,38 m2 que poseen plantaciones forestales, lo cual representa el 12.33 % de las plantaciones forestales existente en todas las propiedades. Dentro de las especies forestales de la zona, se presentan algunas vedadas, de acuerdo con el voto de la Sala Constitucional Nº 2486 de las 10 horas 54 minutos del 8 de marzo de 2002 y el Decreto Ejecutivo Nº 25700 del 15 de noviembre de 1996.

IX. — Como compensación por el cambio de uso, Industrias Infinito, S. A. propuso las siguientes medidas de compensación: i) Apoyo para la compra de un terreno para conservación por un monto de doscientos cincuenta mil dólares; ii) La siembra de 49.8 árboles por cada árbol que se requiera cortar y iii) La creación y conservación de un corredor biológico dentro de sus propiedades. Por tanto,

Decretan

DECLARATORIA DE INTERÉS PÚBLICO Y CONVENIENCIA NACIONAL DEL PROYECTO MINERO CRUCITAS Artículo 1º—Se declarara de interés público y conveniencia nacional el Proyecto Minero Crucitas desarrollado por la empresa Industrias Infinito, S. A.

Artículo 2º—En virtud de la presente declaratoria, la empresa desarrolladora, previa autorización de la oficina correspondiente del Sistema Nacional de Áreas de Conservación, podrá proceder a la corta de árboles (inclusive de las especies que estén vedadas) y al desarrollo de las obras de infraestructura en áreas de protección, según se indica en el proyecto. (…)”.

XCIV.- No obstante, aducen los recurrentes que el decreto de cita es omiso en cuanto a la valoración del costo socio-ambiental que implica la destrucción de 196 hectáreas de bosque, que no existe base científico-técnica objetiva para establecer el beneficio social, que son especulativos los beneficios que se mencionan, y que, en todo caso, no se diferencian de los beneficios que puede generar cualquier otra actividad económica. Sobre el particular, advierte la Sala que mediante oficio número SG-ASA-259-2008, de diez de octubre de dos mil ocho, la Secretaría Técnica Nacional Ambiental comunica al Departamento de Auditoría y Seguimiento Ambiental, que la evaluación para determinar el balance del costo ambiental en relación con los beneficios socio-económicos del proyecto se realizó ante la SETENA en un período de tres años, procedimiento durante el cual se determinó que los beneficios sociales son mayores al costo ambiental.

En efecto, en el considerando VII del decreto de cita se enumeran los beneficios económicos, sociales y fiscales del proyecto, mientras en el considerando VIII se especifica el costo ambiental del desarrollo de la actividad minera en los términos propuestos, reconociendo que para ello debería cortarse el equivalente al 19.93% del bosque existente en todas las propiedades que poseen bosque, la corta del 14% de los árboles existentes en zonas de uso agropecuario sin bosque, y el 12.33% de las plantaciones forestales, incluyendo algunas especies vedadas. Sin embargo, el mismo decreto establece en el IX considerando las acciones de compensación, destacándose la siembra de casi cincuenta árboles por cada árbol cortado y la creación y conservación de un corredor biológico dentro de las propiedades de la empresa. De tal forma, se demuestra que la administración sí tuvo presente los costos ambientales en los que habría que incurrir así como los beneficios socio-económicos que se obtendrían con la actividad.

La valoración de estos distintos elementos y los resultados de la evaluación efectuada en sede administrativa, primero ante la Dirección de Geología y Minas para las concesiones de exploración y explotación mineras, y luego ante la Secretaría Técnica Nacional Ambiental para obtener la viabilidad ambiental correspondiente, hizo a la administración concluir que efectivamente los beneficios sociales son mayores al costo ambiental del proyecto, pues los eventuales perjuicios ambientales serían subsanados con las acciones de compensación, lo cual al final dejaría beneficios económicos hasta ahora no previstos en la zona y sin causar daños ciertos al ambiente. Esto no significa que la Sala valide la tesis de que se permita ejecutar una actividad dañina si los daños son posteriormente resarcidos, es decir, que una reparación deje sin efecto una violación; por el contrario, si se reconoce que una actividad genera cierto impacto sobre el ambiente, pero igualmente se acredita que tal impacto no se traduce en daño ambiental, la actividad puede permitirse cuando se demuestre que los beneficios son mayores a los costos.

El decreto de cita cumple con referir y explicitar los beneficios, costos y actividades de compensación, por lo que la Sala concluye que el decreto sí se encuentra debidamente fundamentado de conformidad con lo requerido por los artículos 19.b y 34 de la Ley Forestal, pues ciertamente el decreto es el resultado del estudio de beneficios y costos definidos en estas normas.

XCV.- En este sentido, la Sala explicita que el decreto ejecutivo que declare la conveniencia nacional de una actividad en los términos dichos, debe ser claro en referir la relación de beneficios y costos, sin que resulte necesario que en el mismo decreto se haga constar de manera expresa toda la valoración efectuada, los instrumentos aplicados, la metodología utilizada, o los puntajes obtenidos y asignados en cada ítem, aspectos todos que sí deben cumplirse en sede administrativa pero sin que sea necesario realizar una trascripción de toda la evaluación en el cuerpo del decreto, pues para los efectos de la fundamentación del instrumento normativo basta con referir la realización del procedimiento de evaluación o balance, explicar cuáles son los costos y cuáles son los beneficios a obtener, es decir, que el decreto demuestre con datos concretos y exactos que la evaluación sí fue realizada. Nótese que en el caso bajo estudio, para que la administración pudiese emitir el Decreto 34801, necesariamente hubo de acreditar primero cuáles serían los beneficios económicos y calcular el impacto ambiental producto del desarrollo de la actividad minera de la empresa recurrida, precisión que le permitió posteriormente realizar la enumeración que consta en los considerandos VII, VIII y IX de ese Decreto.

XCVI.- Tal como se ha indicado, estos estudios técnicos están considerados primero en el expediente de la concesión minera, número 2594 de la Dirección de Geología y Minas, y, posteriormente, en el expediente de la Secretaría Técnica Nacional Ambiental desde marzo de dos mil dos. En efecto, la empresa presentó ante la Dirección de Geología y Minas el Estudio de Factibilidad correspondiente, y en él se incluye una sección específica sobre los «Beneficios Económicos para Costa Rica», el cual considera los beneficios esperados durante las fases de exploración, construcción y operación, cuáles serían los ingresos brutos, el gasto por intereses, los gastos de capital y otros beneficios en efectivo en materia de impuestos al combustible, de explotación del mineral, pago de cargas sociales y otros aspectos relacionados. Así, mediante oficio número DGM-DC-320-2001, de catorce de marzo de dos mil uno, la Dirección de Geología indica que el mismo fue revisado por los geólogos de la institución, pero condicionando la aprobación del programa al resultado del análisis del estudio de factibilidad.

Ante ello, el estudio fue revisado por el economista Edwin Vega Araya, funcionario del Ministerio de Planificación, quien brindó este servicio en virtud de un convenio suscrito entre ese Ministerio y el Ministerio del Ambiente y Energía; ante el primer informe rendido por el señor Vega, en octubre de dos mil y dentro del mismo expediente 2594, la empresa presentó el Apéndice 9 al Anexo del Estudio de Factibilidad, lo cual dio como resultado que el economista Vega emitiera el «Informe de Aspectos Económicos sobre la revisión de anexos al Estudio de Factibilidad del Proyecto Crucitas (expediente 2594 de explotación) de Industrias Infinito S.A.». Este informe identifica y cuantifica tanto los costos económicos del proyecto, como el monto que se obtendría por beneficio social, explicando el beneficio que la actividad representa por cobro de impuestos –calculados sobre el precio de la onza de oro de aquel entonces, tasado en aquel momento en la mitad del valor actual-.

Sobre el particular, expresa el informe que «[e]l cobro de impuestos sería una compensación por impactos socioeconómicos y ambientales negativos (efectos en valores familiares como abuso de sustancias y criminalidad; impacto en caminos y puentes de mayor tráfico, molestias por ruido, polvo, etc.; mayor demanda de servicios públicos; etc.). Además, la parte ambiental sería internalizada al proyecto a través del Estudio de Impacto Ambiental, las garantías ambientales que debe otorgar la empresa y el Plan de Manejo Ambiental que debe seguir en coordinación con SETENA». De manera explícita agrega este informe que «[l]a aplicación de los parámetros sociales contenidos en la Guía de Evaluación Socioeconómica de Proyectos [Guía para la Evaluación Socioeconómica de Proyectos del Ministerio del Ambiente y Energía, de mil novecientos noventa y siete] vendría a beneficiar la rentabilidad social del proyecto respecto de la rentabilidad privada», pues el factor de cambio social es mayor que los costos sociales –ver página 6 de este informe-.

De tal forma, es claro que desde el procedimiento realizado ante la Dirección de Geología y Minas –restando aún las demás actuaciones ante la Secretaría Técnica Nacional Ambiental- la administración empezó a contar con elementos técnicos conducentes a la valoración de los costos y beneficios socio-ambientales, por lo que resulta inexacto afirmar la absoluta carencia de los mismos y que las posteriores resoluciones de la administración fueron adoptadas sin los criterios técnicos correspondientes.

XCVII.- En complemento a lo dispuesto en el Código de Minería y a lo actuado ante la Dirección de Geología y Minas en el procedimiento para el otorgamiento de la concesión de explotación minera, la Ley Orgánica del Ambiente establece los siguientes criterios para la aprobación de un proyecto productivo, los cuales deben observarse de previo al otorgamiento de una concesión minera: a) la relación adecuada entre el uso potencial y la capacidad económica del suelo y el subsuelo; b) el control de prácticas que favorezcan la erosión y otras formas de degradación; c) las prácticas u obras de conservación de suelos y aguas que prevengan el deterioro del suelo -artículos 53 y 54-. Según se ha dicho, la normativa establece que para poder declarar de conveniencia nacional un determinado proyecto, debe existir un balance positivo producto del análisis de los costos socio-ambientales en relación con los beneficios socioeconómicos, análisis que debe efectuarse mediante los instrumentos apropiados.

En el expediente de trámite de la declaratoria de conveniencia nacional, número DAJ-077-08, consta el oficio SG-ASA-259-2008, de diez de octubre de dos mil ocho, el cual establece que la evaluación ambiental contempló efectivamente el análisis del beneficio en relación con el costo ambiental del proyecto, concluyendo que hay un resultado positivo respecto al Balance del Costo Ambiental y Social. Para realizar dicha valoración, de conformidad con el Decreto número 32966-MINAE, correspondiente al Manual de Instrumentos Técnicos para el Proceso de Evaluación de Impacto Ambiental -Manual de estudio de impacto ambiental- se establece una metodología mínima que permite valorar los impactos ambientales generados por un proyecto, obra o actividad. El desarrollo metodológico para la valoración de impactos como en el presente caso, estipula el uso de una Matriz de Importancia de Impactos Ambientales –MIIA-, la cual permite determinar los efectos del proyecto y su significancia, y, por consiguiente, plantear las medidas de prevención, mitigación y compensación correspondientes.

Se informó que aunque la emisión del Decreto se da con posterioridad a la presentación del Estudio de Impacto Ambiental del Proyecto Minero Crucitas, tal Estudio sí incluyó una matriz de interacción que permitió la valoración de los impactos ambientales. La Matriz de Importancia de Impactos Ambientales es una herramienta mundialmente aceptada para la valoración cualitativa de proyectos que presentan instrumentos de evaluación ambiental, incluidos los Estudios de Impacto Ambiental; y ayuda a determinar el efecto de cada acción impactante sobre cada factor y aspecto ambiental impactado, incluido el componente social y económico, con lo cual se determina la importancia del impacto. Ahora bien, la importancia del impacto está en función tanto del grado de incidencia o intensidad de la alteración producida, como de la caracterización del efecto, el cual responde a su vez a una serie de atributos de tipo cualitativo, tales como intensidad, extensión, tipo de efecto, plazo de manifestación, persistencia, reversibilidad, capacidad de recuperación, sinergia, acumulación, periodicidad, importancia.

Esta importancia del impacto es representada mediante un modelo matemático, el cual toma valores entre 13 y 100; los impactos con valores de importancia inferiores a 25 son irrelevantes, o sea, compatibles, o bien, las medidas ambientales se contemplaron en el diseño del proyecto; los impactos moderados presentan una importancia entre 25 y 50, mientras que los impactos serán severos cuando la importancia se encuentre entre 50 y 75, o críticos cuando el valor sea superior a 75. La matriz permite la interacción de los factores socioeconómicos con los demás componentes ambientales que necesariamente deben ser analizados, lo cual permite a su vez plantear las medidas preventivas, de mitigación y compensación respectivas que son incorporadas al Pronóstico Plan de Gestión Ambiental. Una vez aprobado este pronóstico con las medidas correspondientes, su ejecución se convierte en un compromiso ambiental que debe ser asumido por el desarrollador.

La Matriz de Importancia de Impactos Ambientales es un elemento de gran relevancia en el análisis de los Estudios de Impacto Ambiental, y ayuda al equipo evaluador multidisciplinario de técnicos a recomendar o no la Viabilidad –Licencia- Ambiental de los proyectos, obras o actividades presentados en la SETENA. La valoración bajo esta metodología exigida por SETENA, implica la obtención de un impacto final, que es la diferencia entre la situación del medio ambiente con y sin el proyecto, tomando en cuenta no solo el efecto de las acciones impactantes, sino los efectos continuados. Para el caso específico del Proyecto Minero Crucitas, la matriz en cuestión incorporó en el análisis del ámbito socioeconómico elementos como uso de la tierra, características de la población, necesidades de poblados en áreas de influencia directa e indirecta y empleo, entre otros, donde los valores obtenidos arrojan un resultado positivo para el desarrollo del proyecto, por lo que se prevé en términos generales un aumento en la calidad de vida y un impacto positivo en la economía local -ver páginas 45 y 46 de la Evaluación Ambiental de Cambios Propuestos para el Proyecto Minero Crucitas-.

Por ejemplo, como ya se indicó, dentro de los impactos considerados como severos se encuentran la afectación de la calidad de vida con un puntaje de +68 y la generación de empleo e ingreso también con un puntaje de +68; en ambas casos el impacto es positivo, por lo que no se proponen medidas de mitigación adicionales a todas las ya contempladas en el instrumento correspondiente. La calidad de vida evalúa en forma exhaustiva la interacción de los componentes del medio natural -físico, biológico y otros componentes del medio socioeconómico-, tales como aire, agua, suelo, ecosistemas acuáticos y ecosistemas terrestres, para los cuales en el proyecto minero Crucitas se tomaron las medidas necesarias para asegurar que el proyecto se desarrollará en un ambiente controlado. Para todos los impactos negativos significativos se informa que se previeron las medidas ambientales necesarias, de modo que no se ha generado ningún déficit en la atención de los elementos del ambiente, y ello precisamente explica el saldo positivo del componente calidad de vida.

El documento Evaluación Ambiental de Cambios Propuestos al Proyecto, aprobado mediante resolución número 170-2008-SETENA, de cuatro de febrero de dos mil ocho, determina que todos los impactos identificados como severos y críticos en el ámbito socioeconómico fueron positivos para el desarrollo del proyecto y su ambiente circundante. El Pronóstico Plan de Gestión Ambiental incorporado al estudio de impacto ambiental aprobado por SETENA -incluyendo la actualización realizada en el documento Evaluación de Cambios Propuestos al Proyecto- es la base del documento denominado “Balance Socioeconómico del Proyecto Minero Crucitas”. De tal forma, es claro que también ante la Secretaría Técnica Nacional Ambiental, los informes incorporados al Estudio de Impacto Ambiental y la Propuesta de Modificación del proyecto minero, y especialmente los resultados obtenidos con la aplicación de la Matriz de Importancia de Impactos Ambientales, aportan a la administración elementos ciertos sobre la relación de costos y beneficios socio-ambientales, por lo que debe reiterarse lo ya afirmado, en el sentido de que resulta inexacto aducir la absoluta carencia de elementos o criterios técnicos que permitieran a la administración la valoración correspondiente.

Por el contrario, los diferentes estudios, informes y análisis aquí relatados, dan cuenta fehaciente de que la administración sí tuvo conocimiento tanto de los costos económicos propiamente dichos, como de los beneficios sociales y ambientales planteados para el proyecto minero, por lo que con el historial y los antecedentes que constan en autos, la administración realizó la valoración necesaria para emitir su criterio técnico final sobre el particular. Insistir en que la administración no realizó esta valoración, o que tal valoración no consta en los expedientes, es desconocer –o al menos pretender desacreditar- los diferentes estudios y resoluciones que sobre costos y beneficios del proyecto se aportaron, valoraron y aprobaron por la Dirección de Geología y Minas y por la Secretaría Técnica Nacional Ambiental, pues tal como ha sido referido, tales estudios sí existen y constan en los diferentes expedientes administrativos aportados.

La Sala no soslaya que durante la Vista celebrada en noviembre de dos mil nueve, SETENA manifestó que no existía un determinado estudio cuantitativo sobre el particular, pero esta manifestación debe entenderse en el contexto en el que fue producida; este contexto fue el cuestionamiento de algunos recurrentes sobre si existía un único documento que bajo un formato determinado reflejara la relación de costos y beneficios socio-ambientales; SETENA respondió en ese momento que tal documento único no existía, pero aprecia la Sala que ello no es óbice para que la administración haya efectuado el análisis con base en toda la información disponible y de la que aquí se ha dado cuenta. En otras palabras, la inexistencia de un documento determinado no puede implicar la desvalorización ni el desconocimiento de la diversidad de estudios técnicos sobre costos y beneficios económicos, sociales y ambientales realizada en diferentes momentos ante dos distintas instancias técnicas de la administración, pues ciertamente en tales estudios constan los datos que fueron finalmente validados por los órganos administrativos para la emisión de las resoluciones cuestionadas en este recurso de amparo.

XCVIII.- Adicionalmente, todo ese balance avalado por la Dirección de Geología y Minas y la Secretaría Técnica Nacional Ambiental, es posteriormente reforzado cuando mediante su informe, el economista Juan E. Muñoz Giró -adjunto en el anexo No. 10 aportado por el MINAET-, señala que con la metodología apropiada, la información disponible y los supuestos razonables para el cálculo, se concluye que el impacto biofísico del Proyecto Crucitas asciende a US$1,48 millones, y el impacto social a US$2,26 millones, para un total de US$3,74 millones; mientras que los beneficios sociales derivados del Proyecto superan los US$158,11 millones en el orden de empleos, impuestos o inversión en las comunidades de su área de influencia. Refirió el consultor en una nota dirigida al Ministro del Ambiente, Energía y Telecomunicaciones el doce de febrero de dos mil nueve, que el costo de oportunidad de habilitar el Proyecto Crucitas es de $7,5 millones, mientras que el costo de oportunidad de interrumpirlo asciende al orden de los US$144,9 millones, lo cual incluye la creación de 262 empleos directos, US$32 millones en pagos de salarios, US$10,5 millones de aporte a la seguridad social, US$83,8 millones de ingresos al país por concepto de impuestos sobre la renta, US$14 millones por canon minero, y US$4,6 millones del fideicomiso establecido para apoyar a asociaciones de desarrollo social de las comunidades del área de influencia del proyecto.

En la conclusión número 6 de este informe, el economista indica que los aportes del Proyecto Crucitas son muy superiores al valor de los posibles daños que pueda producir, además de que considera también el compromiso de restaurar la zona del proyecto, incluso proveyendo elementos que mejoren no sólo el ambiente, sino las condiciones de vida de los pobladores. En su conclusión número siete señala que es concluyente que el proyecto generará beneficios sociales que superan con creces los costos socio-ambientales. Igualmente consta la opinión consultiva sobre la viabilidad legal y económica del Proyecto Crucitas emitida por el economista Jorge Guardia Quirós el trece de febrero de dos mil nueve -adjunto como anexo número 12-, quien señala que si a la valoración de los beneficios ambientales de US$17.81 millones, se le restan los costos ambientales -US$3.74 millones- se tiene un beneficio neto de US$14.06 millones, lo cual en su criterio es suficiente para justificar legalmente el proyecto. Indica que agregándose los otros beneficios económicos y sociales previstos, el proyecto generaría beneficios totales por US$158.11 millones.

XCIX.- Por otra parte, de las pruebas aportadas se desprende que el proyecto minero Crucitas ya ha realizado diversas actividades que incluyen inversión social, donación para la reconstrucción y mejoramiento de infraestructura, de servicios básicos para las comunidades, la salud física y mental de la población y la capacitación en oficios y herramientas, así como formas de organización comunal que permitan a las poblaciones del área de influencia un mayor dinamismo social y económico. Dentro de sus compromisos sociales se citan: a) instalación de un centro de capacitación para el Instituto Nacional de Aprendizaje con el fin de dar cursos de corte y confección, acuicultura, agricultura orgánica, producción de queso, pintura sobre tela y manipulación de alimentos; lo cual generaría pequeñas empresas nuevas y beneficios concretos; b) trescientos empleos directos en fase de construcción, mil doscientos empleos indirectos y doscientos cincuenta empleos en fase de operación; c) mejoría de la calidad de vida de siete comunidades, apoyando a la Cooperativa de productores de las comunidades, programas de mejoramiento de calidad de vida y mejoramiento del acueducto; d) de previo a la construcción del proyecto la empresa dio inicio a una serie de programas -capacitación para microempresarios, capacitación laboral, creación de la Oficina de Atención al Ciudadano, la construcción de cuatro puentes y el mantenimiento de caminos, entre otros-; e) mano de obra durante once años; f) la inversión será de US$65.000.000, lo cual se utilizará para comprar materiales, servicios profesionales, maquinaria, contratistas, entre otros; g) una planilla anual valorada en US$4.132.859; h) la obtención de un impuesto local en ocho años de US$11.529.263 y al gobierno central por un total de US$70.322.309; i) se dispone de un fideicomiso para desarrollar obras sociales y acciones en la comisión de monitoreo que recibiría por año US$364.063 -ver informe rendido bajo juramento a folio 95 del tomo I del expediente-.

Actualmente la empresa recurrida ya financió la cooperativa agropecuaria Coopeagrovega R.L., otorgó una ambulancia, convirtió trochas intransitables en caminos, lo que mejoró el intercambio de bienes y servicios en la zona, construyeron tres puentes, se ampliaron las vías y se pusieron alcantarillas. Se ampliaron y reconstruyeron las escuelas de Cutris y Llano Verde, se inició la capacitación de pequeñas y medianas empresas desde el año dos mil seis, se firmó un convenio de cooperación con el Instituto Nacional de Aprendizaje por el cual ya se han impartido cincuenta cursos de acuicultura y textil -ya se formaron dos microempresas-, de agricultura orgánica, de computación, manipulación de alimentos, elaboración de quesos, entre otros -ver soporte electrónico en formato DVD sobre la Inspección Judicial realizada el doce de setiembre de dos mil nueve-, de manera que resulta inexacto afirmar que se trata de meras expectativas de beneficios -como señalan algunos de los recurrentes-, ya que algunos han sido concretados.

Ahora bien, dentro de las medidas de compensación propuestas y establecidas como compromisos ambientales para el plan de corta están: a) reforestación de 382 hectáreas de potrero a bosque natural; actualmente ya se han reforestado 16 hectáreas de potreros con los árboles provenientes del vivero forestal del proyecto; b) mantenimiento de un vivero forestal con especies nativas, que en la actualidad cuenta con más de 67 500 árboles nativos que fueron extraídos como brinzales de las áreas que se ubican dentro del plan de corta. Adicionalmente existen árboles de zotacaballo para revegetación de taludes y áreas de protección de cauces; c) se mantendrán como bosque natural que ya existen, en las más de las 800 hectáreas de cobertura boscosa que no serán utilizadas para el proyecto y que forman parte de las 1474 hectáreas de propiedades con que cuenta la empresa Industrias Infinito; d) se sembrarán 50 árboles por cada árbol cortado, y por cada almendro se sembrarán 100 en las áreas a reforestar que comprenden 382 hectáreas y que albergarán un desarrollo de bosque natural con la siembra de más de 600.000 árboles nativos; e) se mantendrá un monitoreo biológico y forestal tal que verifique la regeneración de las áreas a reforestar para un desarrollo de hábitats efectivos que permitan la conexión de sectores boscosos en forma continua y mitiguen la fragmentación de hábitats existentes; f) se conformará un corredor biológico que permitirá la movilidad de especies con transferencia genética de flora y fauna; g) se depositará un monto de US$250.000 a un fideicomiso del Ministerio de Ambiente, Energía y Telecomunicaciones, con el fin exclusivo de compra de terrenos en alguna zona protegida de la región de San Carlos; h) se apoyará a las comunidades con parte de la madera recogida en la corta para necesidades de la población; i) las utilidades esperadas con la venta de la madera que asciende aproximadamente a US$1.000.000 será depositada en el fideicomiso existente de APANAJUCA, que es la Asociación del Parque Nacional Juan Castro Blanco, cuyo objetivo único es la compra de terrenos privados para conservación del Parque Nacional, también conocido como Parque del Agua, y que actualmente tiene más del noventa por ciento de su área bajo propiedad privada -ver informe rendido bajo juramento a folio 95 del tomo I del expediente-.

C.- Tomando en cuenta los estudios técnicos aportados a los expedientes de la Dirección de Geología y Minas y ante la Secretaría Técnica Nacional Ambiental, así como la aplicación de la matriz de referencia, la identificación e incluso la concreción de varios de los aspectos aquí reseñados, la administración informa que los valores obtenidos con la aplicación de la matriz del Estudio de Impacto Ambiental son positivos para el proyecto, por lo que se prevé un aumento en la calidad de vida y un impacto positivo en la economía, al punto que la afectación de la calidad de vida es –como ya se indicó- de +68 y la generación de empleo e ingreso es también de +68. Refiere igualmente la administración, que además de los beneficios explicitados en el decreto, dentro de los beneficios que está aportando la actividad de la empresa se pueden enumerar: la instalación de un centro de capacitación empresarial y laboral; la formación de pequeñas empresas; la ampliación del acueducto que abastece las comunidades de Coopevega, Moravia, Chamorro y El Roble; la construcción de cuatro puentes en asocio con la Municipalidad de San Carlos; el mantenimiento de los caminos de Buenos Aires-Coopevega-Crucitas; un fideicomiso para obras comunales que recibirá anualmente trescientos cincuenta y cuatro mil dólares; y pagos a la seguridad social por más de diez millones de dólares.

Por su parte, la empresa afirma que dentro de los beneficios sociales acordados, se encuentra la donación de una línea de transmisión eléctrica valorada en seis millones de dólares; programas comunales de capacitación y promoción de pequeñas y medianas empresas; el mejoramiento de la infraestructura escolar; así como aportes para la Comisión Mixta de Monitoreo y Control Ambiental, aspectos todos que necesariamente debieron ser considerados por la administración para concluir que ciertamente los beneficios sociales resultan ser mayores al costo ambiental, pues tal como se ha acreditado, la actividad minera en los términos planteados, da lugar a un costo ambiental, mas no a un daño ambiental. En el mismo sentido, advierte la Sala que mediante la ya citada valoración económica de efectos ambientales y beneficios sociales del proyecto realizada por el experto Juan Muñoz Giró y presentada en febrero de dos mil nueve, se concluye que el costo de oportunidad del proyecto es de US$3.74 millones, mientras los beneficios generados por empleo e ingresos sería de US$158.11 millones, por lo que el informe de referencia valida las conclusiones a las que arribó la administración en cuanto a los beneficios a obtener.

CI.- Por otra parte, si tales beneficios son similares a los que pudiera aportar alguna otra actividad económica en la zona, conforme lo aseguran los recurrentes, ello es un aspecto ajeno a la verificación de que en el caso concreto sí existen mayores beneficios que costos, pues si existieren otras actividades que pudieren generar beneficios similares, ello no es óbice para que se examine un caso particular; en otras palabras, resulta impropio discutir una valoración realizada por la administración con base en datos técnicos, sobre la base de la posible existencia de otras actividades hasta ahora no conocidas, que eventualmente pudieren generar similares resultados o beneficios socio-económicos, pero sobre las cuales hasta el momento no se ha manifestado interés alguno ni han sido realizadas o implementadas en la zona.

CII.- En todo caso, debe tomarse en consideración la expresa mención que se hace en el Estudio de Impacto Ambiental del proyecto minero Crucitas –ver página 187 del Estudio-, en el cual se indica que de acuerdo a la correlación de las variables o elementos climáticos -lluvias intensas, elevados porcentajes de humedad y temperaturas- con otros factores físicos, naturales y de infraestructura predominantes a nivel regional -tipo de suelo, vialidad y servicios-, hacen que la denominada zona norte se considere como una región de condiciones difíciles para el desarrollo de ciertas actividades productivas, afirmación que refleja la inconsecuencia de aducir la presunta inidoneidad de una actividad concreta porque existen otras –imprecisas e indefinidas- que podrían realizarse.

CIII.- Bajo estas consideraciones, la Sala advierte que el decreto de referencia sí demuestra la realización de un trabajo previo que permitió a la administración determinar la existencia de beneficios socio-económicos mayores a los eventuales costos ambientales, determinación para la cual la administración utilizó los instrumentos técnicos establecidos y disponibles al efecto, instrumentos que fueron exigidos, presentados y valorados por las instancias pertinentes dentro de sus ámbitos de competencia técnica –Dirección de Geología y Minas y SETENA-., por lo que tratándose de una determinación de carácter técnico se está ante un asunto de legalidad ordinaria ya definido por las entidades competentes en cada caso.

CIV.- De tal forma, la Sala concluye que el decreto 34801 sí se encuentra debidamente fundamentado y cumple con demostrar que en sede administrativa sí se realizó el procedimiento de balance entre costos y beneficios, cuyo resultado se plasma en el decreto de comentario, por lo que contrario a lo aducido por los recurrentes, sí existe una base científico-técnica objetiva para establecer los beneficios concretos que reportará la implementación del proyecto.

CV.- A modo de conclusión. En el caso bajo estudio, la Sala tiene por acreditado que se encuentra asegurada la pervivencia del almendro amarillo, toda vez que la corta autorizada carece de un impacto negativo determinante para la población de esta especie, así como tampoco se encuentra impedida esta corta de árboles por su falta de conexidad con los sitios de anidación y reproducción de la lapa verde.

CVI.- Asimismo, se ha demostrado que esta corta del almendro tampoco tiene el carácter de amenaza cierta para la existencia y supervivencia de la lapa verde, pues se ha comprobado que el ave no anida en árboles como los que se autorizó cortar, sino que solamente llegaba a la zona de Crucitas en época no reproductiva y cuando el almendro no está en fruto, por lo que en esa temporada su alimentación se basa en el fruto de más de treinta variedades de árboles de la zona.

CVII.- Se descarta también el aducido riesgo ambiental contra el Corredor Biológico Mesoamericano y el Corredor Biológico San Juan-La Selva, por cuanto la existencia de estas áreas no impide la realización de actividades económicas bajo rigurosos estándares de control que permitan la compatibilización del desarrollo socio-económico y la protección ambiental.

CVIII.- De igual manera, se ha descartado el riesgo de contaminación acuífera, esto porque se demuestra la limitada permeabilidad de la roca que cubre los acuíferos superior e inferior; que la zona de recarga acuífera se encuentra fuera de la zona del proyecto; y que el riesgo sísmico de la zona es insignificante. Por otra parte, también debe descartarse la trascendencia internacional de un riesgo de contaminación acuífera, pues se ha demostrado que ambos acuíferos descargan sobre territorio nacional y no drenan hacia el río San Juan, y que en el caso de la Quebrada Minas y el río Infiernito el efecto sobre el río fronterizo sería mínimo, siempre que se cumpla debidamente todas las medidas de contención aprobadas y comprometidas.

CIX.- Del mismo modo, se ha acreditado la utilización de un método seguro de eliminación del cianuro, que evita el contacto de este material con el ambiente, tanto durante el proceso de aplicación y eliminación, como en la disposición de agua y material tratado en la laguna de relaves.

CX. Al mismo tiempo, se acredita también la adopción de las medidas técnicas recomendadas para evitar el drenaje ácido de rocas, tanto porque el material a extraer dispone de una limitada capacidad de generarlo, como por los sistemas que se implementará para evitar que suceda.

CXI.- Por otra parte, se ha demostrado que sí se realizaron los estudios sísmicos conducentes para valorar la situación de riesgo sísmico en la zona, concluyendo estos informes la viabilidad de desarrollar el proyecto planteado y de construir las obras necesarias. De igual manera, se ha acreditado que las construcciones relacionadas cumplen con los requisitos exigidos por la legislación nacional para tener una sismoresistencia para tolerar eventos de hasta 8.4 grados en la escala Richter.

CXII.- También se ha demostrado que la utilización de explosivos fue oportunamente valorada por la Dirección de Geología y Minas y la Secretaría Técnica Nacional Ambiental, mediante la consideración de estudios técnicos que acreditan que las voladuras a utilizar tendrán un impacto muy limitado en el entorno del proyecto.

CXIII.- Se ha definido que la declaración de conveniencia nacional del proyecto minero se encuentra ajustada a derecho, pues lejos de ser el resultado de la aplicación automática de los artículos 60 del Código de Minería, 19.b y 34 de la Ley Forestal, y 2 del Reglamento de la Ley Forestal, es el resultado de la comprobación de que los beneficios socio-económicos resultan mayores al costo ambiental, costo que tiene la particularidad de no generar un daño ambiental en los términos dichos.

CXIV.- En el mismo sentido, se ha demostrado que la acreditación de que los beneficios socio-económicos resultan mayores al costo ambiental, es el producto de una evaluación de varios años realizada ante la Dirección de Geología y Minas y la Secretaría Técnica Nacional Ambiental, y cuyo resultado se plasma en el decreto 34801-MINAET, instrumento normativo que refiere de manera clara los beneficios a obtener, el costo ambiental que debe soportarse, y las medidas de compensación que se debe implementar. Ha quedado resuelto también, que el decreto por el cual se declara la conveniencia nacional de una actividad económica en los términos dichos, debe explicitar los resultados finales del balance de costos-beneficios, mas no especificar de manera exacta y concreta la metodología implementada, los instrumentos utilizados, cada uno de los aspectos valorados ni el puntaje asignado, todo lo cual sí debe constar en sede administrativa, pero no plasmado en el instrumento normativo final.

CXV.- De tal forma, el decreto 34801-MINAET se encuentra debidamente fundamentado y refiere la base técnica objetiva sobre la cual se tomó la decisión de declarar de conveniencia nacional el proyecto minero, por lo que el mismo se encuentra ajustado a derecho sin que se aprecie inconformidad constitucional alguna.

CXVI.- Por lo anterior, la resolución del Área de Conservación Arenal Huetar Norte, Subregión San Carlos-Los Chiles, del Sistema Nacional de Áreas de Conservación del Ministerio del Ambiente, Energía y Telecomunicaciones, número 244-2008-SCH, de las nueve horas cinco minutos del diecisiete de octubre de dos mil ocho, por la cual se autoriza el cambio de uso de suelo, dista de ser una decisión arbitraria, pues para su dictado medió tanto la emisión del decreto de declaratoria de conveniencia nacional del proyecto, como la acreditación del tipo de árboles que se verían afectados con el cambio de uso de suelo.

CXVII.- Medidas a implementar. La Sala es conciente de la trascendencia de la actividad minera y de algunas experiencias negativas anteriores –que en todo caso no son parámetros de comparación con el proyecto minero que ahora se conoce-, motivo por el cual no pasa por alto que imprevistos humanos o eventos de la naturaleza de carácter extremo pudieren amenazar la seguridad ambiental del proyecto. Por esta razón, aún cuando en el caso bajo estudio no existe violación constitucional alguna más allá de la tramitación de la viabilidad ambiental sin la aprobación previa del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento, este Tribunal ordena al Ministro del Ambiente, Energía y Telecomunicaciones; a la Secretaria de la Secretaría Técnica Nacional Ambiental; al Gerente del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento; a John Thomas, en su condición de Apoderado Generalísimo de Industrias Infinito Sociedad Anónima; y a la Regencia Ambiental del proyecto minero, que de manera conjunta y dentro de sus respectivos ámbitos de competencias, coordinen con la Comisión Mixta de Monitoreo y Control Ambiental que ya existe, el seguimiento y fiscalización de todas las fases del proyecto, para que de manera oportuna la Comisión adopte las acciones de control, mitigación y compensación necesarias en cada una de estas fases, según lo considerado en sentencia.

Lo anterior implica que de presentarse alguna eventualidad, la Comisión o la Regencia Ambiental, en forma conjunta o separada, deba gestionar en forma inmediata ante la Secretaría Técnica Nacional Ambiental la suspensión del proyecto hasta tanto sea subsanada la misma o se garantice la no afectación al ambiente, y se establezca las responsabilidades del caso. Debe recordarse lo señalado por este Tribunal desde la sentencia No. 2004-9927, en el sentido de que el regente ambiental cumple también una función esencial en esta fiscalización y que el decreto ejecutivo No. 31849-MINAE-S-MOPT-MAG-MEIC define como aquella persona física o jurídica, contratada por el desarrollador con el fin de velar por el cumplimiento de los compromisos ambientales adquiridos por la actividad, obra o proyecto, el Código de Buenas Prácticas Ambientales y la normativa vigente, para lo cual debe informar oficialmente a la SETENA y a la autoridad ambiental los resultados del seguimiento y control conforme a lo establecido en el reglamento, así como emitir las recomendaciones ambientales necesarias conforme las situaciones lo vayan requiriendo (artículos 3 inciso 60, 79 y 80); pues además deberá responder civil y penalmente por la veracidad de la información de los documentos que suscribe, así como de los métodos y procedimientos que recomiende, con responsabilidad solidaria con el desarrollador del proyecto (artículo 81).

Lo anterior hace ver, que si bien es cierto el regente ambiental no es un funcionario público, sí ejerce una función pública en este sentido. En este sentido, se ordena a las autoridades recurridas y a la Comisión Mixta de Monitoreo y Control Ambiental, no autorizar el inicio de cada fase del proyecto si no se cuenta previamente con los protocolos respectivos.

CXVIII.- De igual forma, se ordena al Ministerio del Ambiente, Energía y Telecomunicaciones, y a la Secretaría Técnica Nacional Ambiental, implementar programas interdisciplinarios de seguimiento para la preservación y conservación de la lapa verde en la zona norte y atlántica del país, de manera que se mantenga información sólida sobre el número de parejas de lapa verde, la preservación de los sitios de anidación y alimentación, y se permita, con ella, la inmediata adopción de medidas que brinden mejores opciones de supervivencia y fortalezcan el hábitat del ave.

CXIX.- Asimismo, se ordena a Industrias Infinito Sociedad Anónima, extremar el cuidado en el manejo del cianuro y material cianurado, su aplicación y destrucción, y al Ministerio del Ambiente, Energía y Telecomunicaciones, y a la Secretaría Técnica Nacional Ambiental, ejercer de manera rígida y constante el monitoreo a las tareas de la empresa en este campo.

CXX.- Las órdenes dadas tienen fundamento en el énfasis que este Tribunal hace respecto al deber que tienen todas las instituciones recurridas de coordinar y coadyuvar con SETENA, dentro del marco de su competencia. El deber constitucional de protección al ambiente por parte de todas las dependencias deviene no solo del artículo 50 de la Constitución Política, sino también de la Declaración de Estocolmo sobre el Medio Humano, que en el principio No. 13 dispone:

"A fin de lograr una más racional ordenación de los recursos y mejorar las condiciones ambientales, los Estados deberían adoptar un enfoque integrado y coordinado de la planificación de su desarrollo de modo que quede asegurada la compatibilidad del desarrollo con la necesidad de proteger y mejorar el medio humano en beneficio de su población." Así, es claro que instituciones públicas técnicas como el SENARA, las áreas especializadas del Ministerio de Ambiente, Energía, Minas y Tecnología, SETENA y dentro de esta última el Regente Ambiental en la función pública que ejerce, deben realizar sus aportes técnicos en el área que les corresponda, y en lo que necesiten solicitar la coadyuvancia de las Municipalidades y otros, como la empresa desarrolladora del proyecto y la Comisión conformada al efecto. Ciertamente SETENA tiene funciones específicas en cuanto a la protección del ambiente y la fiscalización de la ejecución de proyectos como el de estudio, pues el artículo 84 de la Ley Orgánica del Ambiente dispone que esa Secretaría debe entre otras cosas:

“...b) Recomendar las acciones necesarias para minimizar el impacto sobre el medio, así como las técnicamente convenientes para recuperarlo.

Atender e investigar las denuncias que se le presenten en lo relativo a la degeneración o al daño ambiental...

...i) Realizar labores de monitoría y velar por la ejecución de las resoluciones...” No obstante lo expuesto, ello no exime a las demás instituciones públicas de colaborar ejerciendo una función tutelar del ambiente, como parte que son del Estado. Es menester tener presente, como ya en muchas ocasiones lo ha señalado la Sala, que el ambiente, debe ser entendido como un potencial de desarrollo para ser utilizado adecuadamente, sin degradar su productividad y sin poner en riesgo el patrimonio de las generaciones venideras. La Sala entiende y acepta, sin que ello sea un elemento que violente el ambiente, que en todo proceso de producción es necesario transformar y procesar recursos, todo lo cual significa un costo ambiental. Asimismo, que el proceso productivo no solo requiere de recursos naturales para mantenerse, sino que genera desechos, contaminación e impactos de muy variada índole. Sin embargo, es claro que debe darse un desarrollo controlado, de modo tal que sean satisfechas tanto las necesidades ambientales, como las de progreso y es allí donde cada institución estatal debe cumplir con la prevención, protección y seguimiento de todos aquellos procesos o proyectos que impliquen un impacto al medio en el cual se da (ver en sentido similar la sentencia No. 2004-9927).

CXXI.- En definitiva, la Sala concluye que en el caso bajo estudio existe una violación constitucional en lo que respecta al otorgamiento de la viabilidad ambiental sin que el Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento haya conocido y aprobado previamente los estudios hidrogeológicos de toda el área del proyecto minero Crucitas, sin que, según lo explicado en esta sentencia, tal declaratoria tenga el efecto de anular el Estudio de Impacto Ambiental ni de retrotraer los procedimientos al momento de presentación dicho Estudio, precisamente porque aún en forma extemporánea este órgano avaló los mismos. Del mismo modo, de acuerdo a las consideraciones dadas en esta sentencia, se descartan las demás violaciones aducidas al derecho a un ambiente sano y ecológicamente equilibrado en los términos reconocidos por el artículo 50 de la Constitución Política y la jurisprudencia constitucional.

De tal forma, el recurso debe ser declarado parcialmente con lugar, como en efecto se dispone, con las advertencias y disposiciones contenidas en los considerandos anteriores. Los Magistrados Jinesta y Castillo salvan el voto, declaran sin lugar el recurso en todos sus extremos y el Magistrado Castillo pone nota. El Magistrado Cruz salva el voto y declara con lugar el recurso únicamente en los siguientes aspectos: por estimar que el estudio de impacto ambiental no cumple con los requisitos establecidos en la normativa ambiental, por la acusada afectación al almendro amarillo y por carecer el proyecto minero previo a su aprobación de una adecuada relación costo ambiental-beneficio económico. En lo demás, coincide con el voto de mayoría y pone nota. El Magistrado Armijo salva el voto, declara con lugar el recurso y anula: a) la resolución #170-2008-SETENA del 4 de febrero de 2008 de la Comisión Plenaria de la Secretaría Técnica Nacional Ambiental; b) la resolución del Ministerio del Ambiente y Energía #R-217-2008-MINAE de las 15:00 horas del 21 de abril de 2008, que otorgó concesión minera a la empresa Industrias Infinito S.A.; y c) el Decreto Ejecutivo No. 34801-MINAET del 13 de octubre del 2008. Se condena al Estado al pago de las costas, daños y perjuicios causados, con los hechos tenidos en cuenta para la estimatoria de este amparo.

Por tanto

Por mayoría se declara con lugar el recurso, únicamente por haberse aprobado el Estudio de Impacto Ambiental sin el criterio previo del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento. En lo demás, por mayoría se declara sin lugar el recurso. En aplicación del principio precautorio en materia ambiental, se ordena a Jorge Rodríguez Quirós, en su condición de Ministro del Ambiente, Energía y Telecomunicaciones; a Sonia Espinoza Valverde, en su condición de Secretaria de la Secretaría Técnica Nacional Ambiental; a Bernal Soto Zúñiga, en su condición de Gerente del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento; a John Thomas, en su condición de Apoderado Generalísimo de Industrias Infinito Sociedad Anónima; y a la Regencia Ambiental del proyecto minero, o a quienes ocupen sus cargos, que de manera conjunta y dentro de sus respectivos ámbitos de competencias, coordinen con la Comisión Mixta de Monitoreo y Control Ambiental el seguimiento y fiscalización de todas las fases del proyecto, para que de manera oportuna la Comisión adopte las acciones de control, mitigación y compensación necesarias en cada una de estas fases, según lo considerado en sentencia.

Lo anterior implica que de presentarse alguna eventualidad, la Comisión o la Regencia Ambiental, en forma conjunta o separada, deba gestionar en forma inmediata ante la Secretaría Técnica Nacional Ambiental la suspensión del proyecto hasta tanto sea subsanada la misma o se garantice la no afectación al ambiente, y se establezca las responsabilidades del caso. De igual manera, se ordena a las autoridades recurridas y a la Comisión, no autorizar el inicio de cada fase del proyecto si no se cuenta previamente con los protocolos respectivos. Se condena al Estado al pago de los daños y perjuicios ocasionados con los hechos tenidos en cuenta para la estimatoria de este amparo. Se advierte a Jorge Rodríguez Quirós, Sonia Espinoza Valverde, Bernal Soto Zúñiga y a John Thomas, o a quienes ocupen sus cargos, así como a quienes conformen la Comisión y la Regencia Ambiental, que de conformidad con el artículo 71 de la Ley de esta jurisdicción, se impondrá prisión de tres meses a dos años, o de veinte a sesenta días multa, a quien recibiere una orden que deba cumplir o hacer cumplir, dictada en un recurso de amparo y no la cumpliere o no la hiciere cumplir, siempre que el delito no esté más gravemente penado.

Notifíquese la presente resolución a Jorge Rodríguez Quirós, Sonia Espinoza Valverde, Bernal Soto Zúñiga y John Thomas, o a quienes ocupen sus cargos, en forma personal. Proceda Sonia Espinoza Valverde en su condición de Secretaria de la Secretaría Técnica Nacional Ambiental, o a quien ocupe su cargo, a notificar esta resolución a los miembros de la Comisión y a la Regencia Ambiental. Comuníquese.- Los Magistrados Jinesta y Castillo salvan el voto, declaran sin lugar el recurso en todos sus extremos y el Magistrado Castillo pone nota.

El Magistrado Cruz salva el voto y declara con lugar el recurso únicamente en los siguientes aspectos: por estimar que el estudio de impacto ambiental no cumple con los requisitos establecidos en la normativa ambiental, por la acusada afectación al almendro amarillo y por carecer el proyecto minero previo a su aprobación de una adecuada relación costo ambiental-beneficio económico. En lo demás, coincide con el voto de mayoría y pone nota.

El Magistrado Armijo salva el voto, declara con lugar el recurso y anula: a) la resolución #170-2008-SETENA del 4 de febrero de 2008 de la Comisión Plenaria de la Secretaría Técnica Nacional Ambiental; b) la resolución del Ministerio del Ambiente y Energía #R-217-2008-MINAE de las 15:00 horas del 21 de abril de 2008, que otorgó concesión minera a la empresa Industrias Infinito S.A.; y c) el Decreto Ejecutivo No. 34801-MINAET del 13 de octubre del 2008. Se condena al Estado al pago de las costas, daños y perjuicios causados, con los hechos tenidos en cuenta para la estimatoria de este amparo. Comuníquese.- Ana Virginia Calzada M.

Presidenta Luis Paulino Mora M. Gilbert Armijo S.

Ernesto Jinesta L. Fernando Cruz C.

Fernando Castillo V. Teresita Rodríguez A.

VOTO SALVADO DE LOS MAGISTRADOS JINESTA Y CASTILLO Los Magistrados Jinesta y Castillo, con redacción del primero, salvan el voto y declaran sin lugar el recurso, por las consideraciones siguientes:

I. SOBRE EL “PREVIO ESTUDIO HIDROGEOLÓGICO DE TODA EL ÁREA DEL PROYECTO VALIDADO POR EL SENARA”

REQUISITO NO EXIGIDO POR EL ORDENAMIENTO JURIDICO VIGENTE. El ordenamiento jurídico ambiental define, con precisión y claridad, por razones de seguridad y certeza jurídica –valores constitucionales de primer orden, artículo 34 constitucional- de los ciudadanos, empresarios e inversionistas o, en general, administrados, los requisitos que se deben observar para desarrollar una actividad que pueda lesionar el ambiente. Así, para el caso particular, tanto el Decreto Ejecutivo No. 25705 de 8 de octubre de 1996 –vigente hasta mayo de 2004- denominado “Reglamento sobre procedimientos de la Secretaría Técnica Nacional Ambiental” como el No. 31849 de 24 de mayo de 2004 llamado “Reglamento general sobre los procedimientos de evaluación de impacto ambiental”, no se refieren, directamente, a los estudios hidrogeológicos. Para el lapso en que estuvo vigente el Decreto Ejecutivo N. 25705, la normativa que hace referencia a los estudios hidrogeológicos son el Código de Minería y el Reglamento a ese instrumento legislativo.

Así el Reglamento al Código de Minería en su artículo 26, punto 1.4 establece que el programa de explotación minera debe contener información sobre “1.4. Hidrogeología. 1.4.1 Modelos de acuíferos existentes. 1.4.2 Tomas de agua y nacientes”. De acuerdo con el artículo 77 del Código de Minería, la documentación técnica debe ser refrendada “(…) por un geólogo o por un ingeniero de minas, debidamente incorporado a su respectivo colegio profesional”. Al emitirse el Decreto Ejecutivo No. 31849 de 24 de mayo de 2004, el numeral 27 de ese cuerpo normativo remite al “Manual de EIA” –Manual de Instrumentos Técnicos para el proceso de evaluación de impacto ambiental-, el que fue aprobado mediante el Decreto Ejecutivo No. 32712 de 19 de julio de 2005. Este manual, sí hace referencia, en la Sección III al “Protocolo para la Hidrogeología ambiental de la finca”, con el cual deben cumplir las “canteras mineras o de minería subterránea” (punto 1.6), siendo que el punto 2, intitulado “Responsables de la realización del estudio de hidrogeología ambiental” preceptúa, de manera clara que “Los estudios de hidrogeología ambiental deberán ser realizados por profesionales en geología, debidamente habilitados por la legislación vigente en el país para realizar este tipo de estudio”.

Bajo esta inteligencia, se encuentra suficientemente claro que la normativa vigente no impone, como parte del estudio de impacto ambiental que los estudios hidrogeológicos sean efectuados por el SENARA o, eventualmente, validados de manera ulterior por esta entidad. Este Tribunal Constitucional en votos precedentes no ha establecido este requisito adicional, si se interpreta de esa manera resulta errado. Lo que sí ha admitido este Tribunal, a través de la figura de la ampliación del curso o los informes, es que los estudios hidrogeológicos que han sido efectuados sean revisados por esa entidad pública, o bien que rinda informe acerca de la ubicación y extensión de un determinado manto acuífero –en el caso que lo tenga identificado o ubicado-, por cuanto, dentro de sus competencias expresas sí figura “Realizar, coordinar, promover y mantener actualizadas las investigaciones hidrológicas, hidrogeológicas (...)” y “Elaboración y actualización de un inventario de las aguas nacionales (…)”.

Esto ha sucedido en casos pasados, cuando se trata de mantos acuíferos susceptibles de ser explotados para consumo humano, no cuando está suficientemente acreditado que no son aptos para tal efecto por tratarse de acuíferos confinados (acuitardos) o por contener altos niveles de acidez y otros metales y, por consiguiente idóneos para el consumo humano, como se tuvo por demostrado para el sub-lite. De tal proceder, facultativo, de este Tribunal, no cabe extraer o inferir un nuevo requisito no exigido por el ordenamiento jurídico. En el caso concreto, el hidrogeólogo Virgilio Rodríguez Estrada, en el 2002 presentó como anexo al Estudio de Impacto Ambiental el estudio hidrogeológico que sustentaba la hidrografía en el área del proyecto (folios 196-208 del Estudio de Impacto Ambiental), adicionalmente, el mismo profesional, en el año 2007 realizó una actualización de dichos estudios para la propuesta de cambio del Estudio de Impacto Ambiental (capítulo 3, páginas 19-21).

Cabe agregar que tales estudios se sustentaron, a su vez, en la investigación hidrogeológica precedente de 10 años y con fundamento en la perforación de más de 190 pozos “sacanúcleos” que permitieron conocer el detalle de la estructura geológica e hidrogeológica de la zona de ubicación del proyecto, tales como Geotest de 1996, Marcelino Losilla de 1996, Pitteau Associates de 1998, Golders de 1998 y 2006 y Hugo Rodríguez 2001 y 2007. Como se ve, la empresa desarrolladora del proyecto con tales estudios cumplió, cabalmente, con lo que impone el ordenamiento jurídico. Estimamos que exigir requisitos que no se encuentran predeterminados por el ordenamiento jurídico ambiental lo que provoca es un nivel considerable de inseguridad e incerteza entre las personas que pretenden emprender una actividad potencialmente contaminante, adicionalmente, lesiona, flagrantemente, el principio de la confianza legítima y de la buena fe de los administrados en las actuaciones previas de las administraciones públicas, los que, en esencia, no saben a qué atenerse perdiendo cualquier margen de predictibilidad en los trámites administrativos, por cuanto, un órgano de control jurisdiccional –de legalidad o de constitucionalidad- puede –con la tesis de la mayoría-, en cualquier momento, crear o idear nuevos requerimientos que no se establecen expresamente.

II. SOBRE LAS ÓRDENES DE HACER IMPARTIDAS EN LA PARTE DISPOSITIVA DEL VOTO

Una sentencia estimatoria de carácter condenatorio, en materia de amparo, puede contener, con el fin de restablecer el goce efectivo de derechos fundamentales, órdenes de hacer, no hacer o de dar, cuando se verifica, respectivamente, que se han incumplido –omitido- obligaciones o se ha verificado alguna actuación irregular que demanda su cesación inmediata. Así se desprende del tenor literal y de la doctrina que informa el artículo 49 de la Ley de la Jurisdicción Constitucional, sin embargo, en el presente asunto la mayoría le impartió una serie de ordenes de hacer, tanto al MINAET, la SETENA, el SENARA, la propia empresa encargada de la explotación minera y al regente ambiental, todo en aras del principio precautorio. Sin embargo, la imposición de tales órdenes de hacer no estuvo antecedida de la verificación o demostración del incumplimiento de obligaciones o deberes previos.

En otros términos, se imponen una serie de obligaciones de hacer o de actuar con el propósito de evitar cualquier daño o lesión ambiental futura, las que deberían tener fundamento en un incumplimiento previo y, sobre todo, no en el principio precautorio que impone, ante la incerteza científica la abstención en la ejecución de una actividad, sino del principio preventivo. Entendemos, que dentro de las obligaciones de la Comisión Mixta de Monitoreo y Control Ambiental, los órganos y entes involucrados en la autorización y fiscalización del proyecto deben, por sobreentendido, cumplir con todas las órdenes que ahora se imparten. En nuestro criterio, al no haberse constatado omisiones o incumplimientos de obligaciones preexistentes que lesionen derechos fundamentales por parte de los órganos, entes y personas jurídicas condenadas a un hacer, lo que procedía era indicar tales previsiones en la parte considerativa de la sentencia y disponer que las partes involucradas “tomaran nota” de las mismas, lo que ha sido práctica usual de este Tribunal bajo tales circunstancias.

III. COROLARIO

En mérito de las consideraciones expuestas, en nuestro criterio los recursos deben ser desestimados en todos sus extremos.

Ernesto Jinesta L. Fernando Castillo V.

NOTA SEPARADA DEL MAGISTRADO CASTILLO VÍQUEZ El suscrito considera que el recurso de amparo debe ser rechazado, además de las razones esbozadas, por otras, las cuales explico de inmediato.

Como es bien sabido, la competencia del Tribunal Constitucional se limita a garantizar los derechos y libertades fundamentales consagrados en la Constitución Política y en los instrumentos internacionales de derechos humanos vigentes en Costa Rica (artículo 1° de la Ley de la Jurisdicción Constitucional). En el caso que nos ocupa, el derecho a un ambiente saludable y ecológicamente equilibrado (artículo 50 del Código Político) a todos los habitantes de la República e, incluso, a la Nación costarricense (lo que estamos y los que aún no han nacido). Para tal propósito, al igual que para otros derechos y libertades fundamentales, la jurisdicción constitucional, entendida ésta, y para este caso, como la facultad o poder del Estado de resolver en forma definitiva y coercitiva los conflictos surgidos por la amenaza o la violación de esos derechos y libertades, ha diseñado un proceso constitucional, en este caso de garantías, que tiene una serie de características, que lo diferencian de otros, tales como el hábeas corpus –también un proceso de garantías- y los procesos constitucionales de defensa de la Constitución, y definen su objeto.

El proceso constitucional de amparo, en nuestro medio, es directo, ordinario y sumario. Es un proceso sencillo, informal y de fácil acceso, en el cual se le otorgan a las partes involucradas las debidas garantías. A diferencia de los procesos de cognición plena, el proceso de amparo es una vía sumarísima, cuyo objeto, cuando está de por medio la violación o la amenaza al ambiente, es conocer de lesiones o amenazas graves a éste, lo que excluye, de entrada, la discusión y resolución de aspectos técnicos, que son propios de otra jurisdicción como se explicará más adelante, lo cual nos obliga a abordar el tema de la naturaleza de este proceso en relación con la materia ambiental.

I. De la naturaleza propia del recurso de amparo y la materia ambiental

Esta Sala, en sentencia número 2001-13294 de las 12:05 horas del 21 de diciembre de 2001, conociendo de un amparo, había delimitado la competencia de la jurisdicción constitucional en este tipo de asuntos, cuando indicó:

“…Se desprende del escrito inicial que la recurrente se opone radicalmente a la explotación de hidrocarburos como tal, sea cual sea el manejo que se dé de esa actividad. Valga aclarar desde ahora que esta explotación está permitida por la Ley de Hidrocarburos, siempre y cuando se respeten las exigencias de protección al ambiente. Discutir si la actividad resulta en sí misma lesiva al ambiente, con independencia de las regulaciones técnicas y jurídicas que la sujeten, no es objeto de este amparo; tal discusión podría ser objeto de una eventual acción de inconstitucionalidad, pero no de un amparo. Valga aclarar también que esta Sala se pronuncia sobre las alegaciones de la recurrente en la medida en que esas supuestas violaciones lesionen un derecho fundamental. Al contrario, si los errores no violan, en el caso concreto, derecho fundamental alguno, estamos ante un vicio de mera legalidad que se debe atacar en la vía correspondiente…”. (El subrayado y resaltado no es del original).

Además, resulta importante para el tema que ahora nos ocupa en este amparo, que en la sentencia mencionada la Sala expresó: “No corresponde a este Tribunal evaluar técnicamente el impacto ambiental de la actividad de extracción de hidrocarburos: el recurso de amparo no es una vía plena que tenga a disposición los medios probatorios necesarios para tal cometido”. (El resaltado no es del original).

La anterior delimitación, conduce a una visión correcta de la jurisdicción constitucional, en la que, se debe partir de la naturaleza sumaria del recurso de amparo, diríamos incluso sumarísima, característica derivada de la apremiante necesidad de resolver sobre el objeto del recurso, según lo dispuesto en el artículo primero de la Ley de la Jurisdicción Constitucional, circunscrita básicamente a la restitución del derecho fundamental como garantía del respeto a un mínimo de protección a las personas consagrado dentro del derecho de la constitución, por lo que, solo debe darse cabida a los reclamos planteados en esta sede especial, a aquellos que comporten una evidente vulneración al haz de derechos fundamentales. De lo contrario, cuando en un libelo el aspecto planteado versa sobre la legalidad de la actuación administrativa, aun ligándolo vagamente con un derecho fundamental, no es procedente el amparo, pues el resultado de recibir este tipo de reclamos, es la desnaturalización del proceso de amparo.

El tema no es del todo carente de problemática, pues la delimitación de lo que es o no constitucional es un conflicto casuístico, sea que la Sala, en el proceso de admisibilidad, debe analizar cada caso, tomando en cuenta la existencia de un hilo conductor muy delgado entre la constitucionalidad y la legalidad de los asuntos, ello en el tanto todo aspecto legal tiene un raigambre constitucional, lo que no implica indefectible y necesariamente que deba ser analizado y resuelto en la jurisdicción constitucional. Precisamente, el no haberse delimitado claramente esta situación, a dado pie a un mal uso de la jurisdicción y las garantías establecidas en el numeral 48 de la Constitución Política, contando muchas veces con el apoyo de la misma Sala Constitucional, cuando se han resuelto asuntos en esta sede pese a su naturaleza ordinaria, interfiriendo en ámbitos que no le son propios, incluso, hasta sustituyendo la actividad de la Administración encargada en la Constitución al Poder Ejecutivo, en demérito del principio de división de los poderes o funciones.

Ante la conexidad entre la materia constitucional y la contenciosa, recientemente se ha robustecido el proceso ordinario contencioso administrativo, con la promulgación, por parte de la Asamblea Legislativa, de la Ley número 8508 de 28 de abril de 2006, en la que se desarrolló mejor la idea concebida en el artículo 49 de la Constitución Política, brindando una vez expedita para la resolución de asuntos contra la Administración, estableciendo el control objetivo y subjetivo; el objetivo sobre la legalidad de la función administrativa; y el subjetivo en la tutela de las situaciones jurídicas, los derechos subjetivos y los intereses legítimos. Sustentado en este artículo 49, así como en los principios de tutela judicial efectiva y de legalidad, toda controversia surgida contra la Administración, cuenta con la posibilidad de ser ventilada, en primera instancia, en la sede administrative –hoy en día el agotamiento de la vía administrativa es facultativa salvo las excepciones que más adelante se indicarán, sea mediante el procedimiento seguido al efecto, aplicando el Libro Segundo de la Ley General de la Administración Pública o en una normativa especial, con lo cual se faculta a la Administración para resolver las controversias que presentan las partes, obteniendo el dictado de un acto o disposición de la Administración Pública que solucione el conflicto y que esté acorde con la aplicación de la normativa vigente.

Aun sin agotar la vía administrativa, se cuenta ahora con un sistema jurisdiccional de protección de las situaciones subjetivas individualizadas, con ampliación de las facultades del juez, a fin de obtener un mayor resguardo de los derechos subjetivos e intereses legítimos de los administrados, ello en contraste con lo que era público y notorio con el sistema anterior (Ley Reguladora de la Jurisdicción Contenciosa Administrativa), la que se caracterizaba por su tardío al resolver, al aplicar un diseño basado en la escritura y teniendo como centro el control del acto administrativo (control objetivo). Ahora, la moderna normativa procesal contenciosa, se basa en una amplia gama de principios como el de la oralidad, como punto de partida y apostando el legislador a la agilización de los trámites, pasando por los fundamentales del debido proceso y la igualdad procesal de las partes.

También, algunos otros, entre los que se encuentran: El semi formalismo procesal; la amplitud de los poderes del juez; la flexibilidad impugnatoria; la apertura de la legitimación activa y pasiva, así como de la capacidad procesal; el alcance extensivo de las medidas cautelares; la inmediatez, contradicción y concentración de la prueba; el fortalecimiento de medidas alternativas de resolución de conflictos; la especialidad conciliatoria; la adaptación de la justicia a la realidad y necesidades sociales; el refuerzo del control pleno de la función administrativa; finalmente, el carácter facultativo del agotamiento de la vía administrativa, salvo para la contratación administrativa, Registro Civil –artículo 102 inciso 4) de la Constitución Política y la materia municipal (siempre que la agoten la Contraloría General de la República, el Tribunal Supremo de Elecciones o el Tribunal Contencioso Administrativo, respectivamente), siendo esta posibilidad del administrado otorgada primero por una sentencia de la Sala Constitucional, sea la número 2006-03669 de las 15 horas del 15 de marzo del 2006, en la que, entre otras razones, se indicó que no se podía someter al administrado a un vía crucis que significaba obligarlo a agotar la vía administrativa correspondiente, de previo a acudir al proceso judicial, ya que, no siempre en la práctica se conseguía por medio del agotamiento hacer que la Administración revocara su propia actuación, pese a determinar, por ejemplo, incluso la nulidad de lo actuado. Aspecto que con posterioridad a la sentencia mencionada, el Código Procesal Contencioso lo incorporó como un principio básico de su proceso.

Todo ello, ha dado como resultado un proceso contencioso más ágil y efectivo, así ya corroborado en la práctica desde inicios del año 2008, contándose con un sistema diseñado para que los administrados puedan ventilar sus problemas de legalidad, obteniendo de forma oportuna una solución. Además, de la tramitación más expedita que ahora trae de por sí el proceso contencioso en general, se da otra posibilidad, el llamado trámite preferente, dispuesto en el artículo 60 de la normativa procesal contenciosa, mediante el cual se permite tramitar sumariamente casos por urgencia, necesidad o trascendencia para el interés público. Además, merece hacerse distinguir un factor determinante, la valoración de la prueba en ambos procesos, ya que por la sumariedad del amparo, no es dable en la sede constitucional la amplitud en la recepción y análisis, por el contrario, en el proceso contencioso sí es más garantista.

En efecto en el proceso ordinario la prueba se plantea y pasa por un filtro en la audiencia preliminar, teniendo las partes la oportunidad de definir concretamente las pruebas que serán analizadas en la audiencia final; así al llegar al juicio oral se ha saneado con anterioridad, facilitando su tratamiento en el debate de forma técnica y ampliamente, lo que redunda en una mayor garantía para los administrados, amén de la posibilidad que tienen las partes de recurrir al recurso extraordinario de casación, sea por violación de normas procesales sea por quebranto de normas sustantivas del ordenamiento jurídico; recurso de casación desprovisto de formalidades, lo que confirma el acceso efectivo a la justicia en la nueva jurisdicción contenciosa-administrativa. Razón por la cual, precisamente, los asuntos que requieran un estudio más técnico de las probanzas, deben ser remitidos a la jurisdicción contenciosa por su especialidad y por el diseño de procesos ágiles, garantistas y de cognición plena.

En pocas palabras, no sólo los aspectos de legalidad deben ser conocidos por la jurisdicción contencioso-administrativa, sino todo aquellos asuntos donde se discuten aspectos técnicos relacionados con el ambiente, toda vez que los procesos que prevé esa jurisdicción resultan los idóneos para resolver, conforme a Derecho y a Justicia, ese tipo de controversias, no así el proceso constitucional de amparo, cuya naturaleza impide abordarlas. A causa de su naturaleza, el proceso de amparo no es el medio idóneo para discutir los complejos aspectos técnicos y ecológicos propios de los conflictos ambientales. En este tipo de procesos, no es posible un adecuado abordaje de los elementos técnicos y científicos.

II. De la competencia de la Sala Constitucional en materia ambiental en el proceso constitucional de amparo

A esta altura de nuestra exposición nos asalta una cuestión, y es determinar cuál es la competencia del Tribunal Constitucional entonces en materia ambiental en los proceso de amparo. En primer término, hay que decir que le compete verificar que no haya por parte de las autoridades competentes una irrazonabilidad manifiesta en su actuación o decisión. En estos casos, el estándar de control de las decisiones y actuaciones de la Administración por parte del Tribunal se limita a la verificación de que estén sustentadas en estudios técnicos que garanticen, precisamente, el derecho fundamental. Hasta aquí llega la competencia del Tribunal. Lo anterior significa, que el proceso de amparo no es una instancia para discutir si un estudio técnico es correcto o incorrecto, si un estudio técnico presenta falencias o no, mucho menos para rebatir los estudios técnicos que se sirvieron de fundamento a las actuaciones y resoluciones de la Administración, si un decreto ejecutivo está bien o mal motivado, si un decreto ejecutivo quebranta la normativa legal, etc., ya que estos asuntos son propios de otra jurisdicción, tal y como se indicó supra.

Por otra parte, también tiene competencia el Tribunal Constitucional, tanto en los procesos constitucionales de amparo como en los procesos constitucionales de defensa de la Constitución, de garantizar los principios constitucionales que regentan o informan el derecho a un ambiente saludable y ecológicamente equilibrado. Así las cosas, el Tribunal debe velar porque el Estado cumpla con la función tutelar y rectora en materia ambiental. “Prima facie garantizar es asegurar y proteger el derecho contra algún riesgo o necesidad, defender es vedar, prohibir e impedir toda actividad que atente contra el derecho, y preservar es una acción dirigida a poner a cubierto anticipadamente el derecho de posibles peligros a efectos de hacerlo perdurar para futuras generaciones. El Estado debe asumir un doble comportamiento de hacer y no hacer; por un lado debe abstenerse de atentar él mismo contra el derecho a contar con un ambiente sano y ecológicamente equilibrado, y por otro lado debe asumir la tarea de dictar las medidas que permitan cumplir con los requerimientos constitucionales” (2000-9193).

Además, debe garantizar el principio del uso racional de los recursos, a fin de que haya el necesario equilibrio entre el desarrollo del país y el derecho al ambiente. También debe tutelar el principio de la calidad del ambiente, el cual constituye un parámetro fundamental de la calidad de vida. Es así que ha sostenido que el derecho a un ambiente sano y ecológicamente equilibrado implica el correlativo deber de proteger y preservar el medio, a través del ejercicio racional y el disfrute útil de este (2003-6322).

Igual ocurre con el principio precautorio, también llamado principio de la evitación prudente, el que adquiere fuerza con la Declaración de Río de 1992 (Cumbre de la Tierra). Con base en él, ha sostenido que, de previo a la iniciación de cualquier obra, se debe realizar el estudio de impacto ambiental. Adicionalmente, sólo en caso de estado de necesidad declarado, se puede excepcionar el cumplimiento de las normas ambientales. En esta misma línea de pensamiento, el Tribunal Constitucional no puede admitir el argumento de que la falta de recursos económicos de las instituciones públicas, justifiquen las omisiones en la materia ambiental. En efecto, “(…) la falta de presupuestos (recursos económicos, materiales y/o personal calificado) no puede constituirse en un límite entre el respeto y la violación de los derechos fundamentales, es decir, no puede ser motivo para que la Administración no actúe y tome acciones concretas a fin de que a través de su gestión encuentre solución a los problemas que los particulares les requieran en materia ambiental...” (2003-6322).

Por otra parte, no puede admitir que opere el silencio positivo en esta materia y de que la participación ciudadana pueda ser obviada, pues constituye una consecuencia del principio democrático y abarca el derecho a la información relativa a los proyectos ambientales o que puedan causar una lesión a los recursos naturales y al medio ambiente y a la garantía de una efectiva participación en la toma de decisiones.

III.El control de la discrecionalidad administrativa compete a la jurisdicción contencioso-administrativa, no a la jurisdicción constitucional

Como es bien sabido, la discrecionalidad administrativa es la posibilidad que le otorga el ordenamiento jurídico a la Administración para elegir entre varias alternativas a aquella que satisfaga de mejor manera los intereses públicos. Desde este punto de vista, la discrecionalidad conlleva una actuación dentro del ordenamiento jurídico, a diferencia de la arbitrariedad, cuya actuación es al margen o a contrapelo de éste. En el caso de la discrecionalidad, la Administración debe realizar una valoración de las circunstancias, determinar cuál es la alternativa más viable y realizar una ponderación de intereses en una actividad tendente a la concreción del interés público. A diferencia de lo que ocurre con las potestades regladas, donde no existe ningún margen de apreciación, reduciéndose la actividad de la Administración a la comprobación del supuesto de hecho que prevé la norma para su ejercicio, en esa modalidad de función administrativa, la Administración tiene un mayor margen de actuación.

Ahora bien, por imperativo constitucional (artículo 49) el control de legalidad, y con ello el ejercicio de las potestades discrecionales por parte de la Administración, es una competencia exclusiva y excluyente del juez de lo contencioso-administrativo. Acorde con lo anterior, el numeral 16 de la Ley General de la Administración Pública indica, con claridad meridiana, que el juez –entiéndase el de lo contencioso-administrativo- controlará la conformidad de los elementos discrecionales de los actos de la Administración con base en las reglas unívocas de las ciencia o de la técnica o con fundamento en los principios elementales de justicia, lógica o conveniencia, como si ejerciera contralor de legalidad. Además, la doctrina ha diseñado una serie de técnicas para el control de la discrecionalidad administrativa, entre otras: los hechos determinantes, los principios generales de Derecho y los conceptos jurídicos indeterminados.

Así las cosas, todo lo relacionado con la discrecionalidad de los aspectos técnicos que sustentan una decisión o una actuación de la Administración debe ser ventilados en la jurisdicción contencioso-administrativa, no en la jurisdicción constitucional. Por ello, si la discusión versa sobre distintas alternativas técnicas o científicamente sustentables mejores a la que adoptó o aprobó la Administración, es un tema propio de la discrecionalidad administrativa, el cual corresponde discutir en la sede contencioso-administrativa. Como se indicó atrás, en estos casos, el Tribunal Constitucional tiene limitada su competencia a determinar que la decisión o actuación de la Administración tiene un fundamento técnico y que respeta los principios o reglas que regentan el derecho a un ambiente saludable y ecológicamente equilibrado; ergo, no le competente dilucidar si el estudio técnico tiene errores o no, o si hay otras alternativas que mejor garantizan ese derecho fundamental.

IV. Sobre el caso concreto

Tal y como ha quedado demostrado –hechos probados- las actuaciones de la Administración Pública están sustentadas en estudios técnicos, por lo que no estamos en presencia de actuaciones y decisiones irracionalmente manifiestas que afecten el derecho fundamental de los habitantes de la Nación costarricense a un ambiente saludable y ecológicamente equilibrado. A manera de ejemplo: hay estudios de factibilidad del proyecto minero, hay estudios de impacto ambiental del proyecto, se celebró la audiencia pública para el proyecto, hay un estudio poblacional de las especies fustales, hay un plan de manejo forestal para garantizar el uso racional de los recursos naturales en las áreas bajo administración del proyecto minero, hay un plan de gestión ambiental, hay un estudio hidrogeológico, hay un informe “Cianuro y su Aplicación en Crucitas” donde se concluye que se logra los niveles exigidos de destrucción del cianuro cuando los efluentes son tratados con el proceso combinox, hay un informe sobre el potencial drenaje de ácido de roca, etc. Así las cosas, el recurso de amparo debe rechazarse, toda vez que después de analizar las actuaciones y resoluciones de la Administración se llega a la conclusión necesaria de que están sustentadas en estudios técnicos, con lo que se cumple con la exigencia constitucional de garantizar a los habitantes de la República el derecho a un ambiente saludable y ecológicamente equilibrado.

Ahora bien, en todos los casos que la pretensión buscar poner entredicho la seriedad o solidez de esos estudios la vía correspondiente para ello es la contencioso-administrativa, no la jurisdicción constitucional. Más aún, en la jurisdicción contencioso-administrativa se tramita el proceso de conocimiento presentado por la Asociación Preservacionista de Flora y Fauna Silvestre contra el Estado y la Empresa Industrias Infinito Sociedad Anónima, bajo el expediente judicial n.° 08-001282-1027-CA, cuyas pretensiones son –para que se declare en sentencia- las disconformidad con el ordenamiento jurídico de: a) la resolución número 3638-2005-SETENA del doce de diciembre del dos mil cinco, mediante la cual, se otorgó la viabilidad ambiental al Proyecto Minero Crucitas (folio 37 de ese expediente); b) la resolución número 170-2008 SETENA del cuatro de febrero del dos mil ocho, en que se aprobaron modificaciones al estudio de impacto ambiental al Proyecto Minero Crucitas (folio 38 de ese expediente); c) la resolución número 217 dictada por la Dirección de Geología y Minas del veintiuno de abril del dos mil ocho, por medio de la cual, se otorgó la concesión de explotación minera a cielo abierto a favor de la empresa Industrias Infinito Sociedad Anónima (folio 38 de ese expediente); d) el Decreto Ejecutivo número 34801-MINAET, en el cual, el Poder Ejecutivo declaró de interés público y de conveniencia nacional el proyecto Minero Crucitas que desarrolla la empresa Industrias Infinito Sociedad Anónima (folios 40 y 41 de ese expediente).

Fernando Castillo V.

FCV/pmc.- VOTO SALVADO DEL MAGISTRADO ARMIJO: Respetuosamente me aparto de la decisión que adoptó la mayoría de la Sala, con base en los siguientes argumentos:

A. El Impacto del proyecto minero Crucitas sobre la biodiversidad. Considero que permitir que continúe ejecutándose el proyecto que se pone en entredicho en este recurso implica una palmaria lesión del derecho fundamental al medio ambiente sano y ecológicamente equilibrado, evidenciada en los siguientes aspectos y basado en las manifestaciones, documentación y preguntas que ampliamente se analizaron en las audiencias celebradas ante la Sala los días 12, 13, 16 y 17 de noviembre de 2009:

A.1. La minería de oro a cielo abierto por lixiviación con cianuro causa, en sí misma, un grave daño ambiental.

• a)Consideraciones generales de ese método minero y sus consecuencias: La explotación de oro, por diversas compañías, ha ido ganando terreno debido a los importantes aumentos en los precios del mineral (se disparó en el 2008 y superaba los $1.100 la onza en abril de 2010, de acuerdo con la información del sitio Internet www.kitco.com), así como por el empleo de métodos de extracción más rentables, en función de los costos de producción en yacimientos pobres, como es la tecnología de extracción por lixiviación con cianuro.

Esta tecnología ha venido a sustituir la recuperación de oro por amalgamación con mercurio, proceso menos eficiente, en términos de recuperación, ya que permite solo un 60% de recuperación del mineral, en comparación con más de un 97% en el caso de la extracción con cianuro.

Según se explicó en la vista de noviembre de 2009 y, principalmente, en el informe especial sobre minería química a cielo abierto, elaborado por una comisión creada por el Consejo Universitario de la Universidad de Costa Rica, y en el cual participaron especialistas en Biología, Química, Geografía y Geología, la extracción por lixiviación con cianuro, unida a la minería a cielo abierto, es capaz de impactar grandes extensiones de tierra. Apareja la remoción de los metales de las rocas y del suelo con el uso de compuestos químicos con alta afinidad a estos materiales. En su desarrollo a gran escala, esta tecnología permite la explotación de grandes volúmenes de roca y suelo, donde los metales se encuentran en bajas concentraciones. El proceso requiere la remoción, trituración y procesamiento químico de capas superficiales y profundas en áreas de gran extensión, donde toda forma de vida es destruida o removida.

El proceso es intrínsecamente nocivo para el ambiente, pues la necesidad de extraer grandes volúmenes de suelo y roca para su procesamiento, tiene impactos graves, de tres órdenes, al obligar a eliminar la biodiversidad superficial y del suelo: a) del área de extracción, b) del área de procesamiento del mineral y c) del área de depósito de desechos del procesamiento. El resultado es una transformación, en gran escala, del paisaje y la apertura de amplios cráteres. Como los yacimientos pueden encontrarse bajo áreas de bosque, zonas de recarga acuífera, o en general en áreas con fragilidad ambiental, el desarrollo de proyectos mineros a cielo abierto requiere muchas veces la desaparición de ecosistemas de interés para la conservación y protección de servicios ambientales. En las operaciones se usa material de desecho previamente extraído. Se trituran las menas (rocas que contienen el mineral) y se les amontona en un cúmulo que se coloca sobre una plataforma de lixiviación.

Una vez que el mineral triturado es apilado en la plataforma de lixiviación, se le rocía uniformemente con una solución de cianuro, que lixivia (lava y amalgama) las partículas microscópicas de oro del mineral mientras se filtra por el cúmulo. La solución de cianuro que contiene el oro -llamada la solución "encinta"- fluye por gravedad a un embalse de almacenamiento. Desde el embalse de almacenamiento se usan bombas o zanjas con forros para llevar la solución hacia la planta de recuperación de metales. Luego se funde el precipitado para recuperar el oro. Los productos finales de este proceso son el oro en barras y una solución de cianuro "estéril" (sin oro), la cual se transfiere con bombas a un embalse de almacenamiento. También se origina material de desecho que consiste en impurezas, incluyendo metales pesados. Normalmente se descargan estas escorias en un cúmulo de material de desecho.

Es conocida la alta toxicidad del cianuro y su reactividad natural. Se han documentado sus efectos perjudiciales en los peces, la vida silvestre y los humanos. Para las plantas y los animales, el cianuro es extremadamente tóxico. Derrames de cianuro pueden matar la vegetación e impactar la fotosíntesis y las capacidades reproductivas de las plantas. En cuanto a los animales, el cianuro puede ser absorbido a través de la piel, ingerido o aspirado. Concentraciones en el aire de 200 partes por millón (ppm) de cianuro de hidrógeno son letales para los animales, mientras que concentraciones tan bajas como 0.1 miligramos por litro (mg/l) son letales para especies acuáticas sensibles. Las dosis letales para humanos son, en caso de que sean ingeridas, de 1 a 3 mg/Kg. del peso corporal, en caso de ser asimilados, de 100-300 mg/Kg., y de 100-300 ppm si son aspirados. Esto significa que una porción de cianuro más pequeña que un grano de arroz sería suficiente para matar a un adulto. La exposición a largo plazo a una dosis subletal podría ocasionar dolores de cabeza, pérdida del apetito, debilidad, náuseas, vértigo e irritación de los ojos y del sistema respiratorio. Sin embargo, no constan casos de fatalidades humanas en las minas que usan las técnicas de lixiviación con cianuro.

Los trabajadores mineros suelen tener contacto con el cianuro, sobre todo durante la preparación de la solución de cianuro y la recuperación del oro de la solución. Para los trabajadores mineros, los riesgos son el polvo de cianuro, los vapores de cianuro (HCN) en el aire provenientes de la solución de cianuro y el contacto de la solución de cianuro con la piel.

Las minas que utilizan la extracción por lixiviación con cianuro son bombas de tiempo para el medio ambiente, tal y como se indicó en el amplio estudio de la National Wildlife Federation de los Estados Unidos de 1992: se trastorna los hábitats de la vida silvestre y las cuencas hidrográficas, con problemas tales como que los estanques de cianuro seducen a la vida silvestre. Ha sido registrada frecuentemente la muerte de animales silvestres, en especial aves, atraídos por el señuelo de los espejos de agua de esos estanques; después de la lixiviación, el cúmulo de mineral ya procesado contiene todavía vestigios de la altamente tóxica solución de cianuro, así como de metales pesados concentrados que han sido precipitados del mineral (arsénico, antimonio, cadmio, cromo, plomo, níquel, selenio, talio) y otras sustancias tóxicas que se encuentran en el cúmulo y los lixiviados (sulfuros); si no se enjuaga totalmente el mineral usado y la roca de desecho, o si se le deja sin tratar, el cianuro puede seguir filtrándose al medio ambiente, amenazando quebradas, ríos o lagos, las fuentes subterráneas de agua, la vida silvestre y las plantas.

Por más que los accionados insisten en la supuesta inocuidad de la actividad, debido a las medidas de seguridad que se seguirían, lo cierto es que se han producido accidentes en los que el cianuro ha entrado en contacto con el medio ambiente (Reece), debido, por ejemplo, a que los forros (geomembranas colocadas debajo de los cúmulos y los estanques) permiten filtraciones por un diseño inadecuado, defectos de manufactura, inadecuada instalación o daños (agujeros) producidos durante el proceso de operación. Otro motivo de accidente es el desbordamiento de las soluciones de los embalses de almacenamiento. Estos escapes causan daños a las plantas y a los animales que tienen contacto con concentraciones letales de la solución de cianuro, y representan una amenaza a largo plazo para las aguas subterráneas (freáticas). A pesar que los embalses de almacenamiento son diseñados para resistir grandes tormentas y crecidas –y en este caso concreto se afirma que también eventos sísmicos–, no siempre impiden los desbordamientos. Los metales pesados y el agua contaminada con cianuro que escapan de un embalse de almacenamiento, ocasionan mayores daños cuando fluyen directamente a cursos naturales de agua. La solución que escapa puede ser suficiente para matar peces y otras formas de vida acuática, o para contaminar recursos de agua potable.

Otro aspecto relevante es el de la disposición del cianuro residual. En todo caso, los procedimientos de degradación del ion cianuro se deben ejecutar de forma estricta, para evitar que las aguas residuales a verter, contengan cantidades no letales de cianuro. Además, todos los métodos conocidos implican el manejo de grandes cantidades de productos químicos, lo cual produciría, igualmente, un impacto ambiental considerable.

• b)Experiencias negativas anteriores de la minería a cielo abierto por lixiviación con cianuro en otros países: Algunos ejemplos sobre derrames de cianuro, demuestran que los temores no son simplemente teóricos o hipotéticos: en enero de 2000 ocurrió la denominada catástrofe de Baia Mare, en Rumania, por derrame de cianuro, que impactó Hungría, Rumania y Yugoslavia, y afectó al suministro de agua potable de dos y medio millones de personas y las actividades económicas de más de un millón y medio que viven del turismo, la agricultura y la pesca a lo largo del río Tisza (http://www.presseurop.eu), al punto que en los últimos años se discute en el Parlamento Europeo, una propuesta de resolución para prohibir el uso de cianuro en los países miembros de la Unión Europea. En diciembre de 1992 en Summitville, en Colorado (Estados Unidos de Norteamérica), ocurrió un derrame de cianuro y metales pesados; la reparación de daños ambientales se estimó en 150 millones de dólares y eliminó la vida acuática a lo largo de 27 kilómetros del río Alamosa (www.epa.gov).

También en 1992 en Carolina del Sur (Estados Unidos de Norteamérica) más de 11.000 peces murieron a lo largo de 80 kilómetros por otro derrame de cianuro (www.epa.gov). En Sudáfrica, en 1994, diez mineros murieron al ser cubiertos por un mezcla de barro cianurizado cuando cedió una barrera de un dique de cola (www.dme.gov.za). En 1995 en Guyana, más de 3,2 millones de litros de solución de cianuro se volcaron al Río Essequibo. La Organización Panamericana de la Salud demostró que murió la vida acuática a lo largo de 4 kilómetros (www.rfi.fr). En 1998 en Dakota del Sur (Estados Unidos de Norteamérica) se derramaron siete toneladas de solución de cianuro, con la consecuente muerte de peces y vida acuática (www.epa.gov).

• c)Experiencias negativas anteriores de la minería a cielo abierto por lixiviación con cianuro en Costa Rica: Pese a que la mayoría de la Sala considera que no son equiparables, a este caso, anteriores experiencias mineras negativas para el medio ambiente, en Costa Rica, solamente puedo conceder a esa posición que, efectivamente, han variado detalles técnicos del proceso, pero su grandes líneas continúan siendo las mismas en dos aspectos preocupantes: la destrucción de grandes extensiones de terreno y el empleo del cianuro. La mina Macacona se explotó con técnicas de cielo abierto. Jorge Alvarez Von Maack documenta que operó en nuestro país hacia la década de los ochenta, en la comunidad de Macacona, en Esparza, provincia de Puntarenas. Después de nueve años de operación, la compañía que la explotaba abandonó el país, sin una indemnización acorde con los daños provocados durante su operación.

Dentro de los impactos provocados se cuentan: la contaminación de la quebrada Turbina por el depósito de materiales estériles, colas y aguas cianuradas; la reducción y alteración del cauce de la quebrada Turbina; deforestación de la zona de extracción del oro y la zona destinada a la construcción de la infraestructura; apertura de cráteres y afectación de acuíferos en la zona del proyecto. También causó daños ambientales el funcionamiento ilegal de la mina Beta Vargas, localizada en la cuenca del río Lagarto, en la Pita, Chomes de Puntarenas, explotada por la empresa canadiense Lyon Lake Mines. La mina operó de manera ilegal en 1997 y 1998, ya que nunca contó con la patente comercial de funcionamiento municipal. Después de operar un poco más de un año, repentinamente cesó sus actividades, identificándose como repercusiones ambientales negativas del proyecto la afectación del bosque donde se levantó la planta industrial, la zona de los tajos o cráter y la zona destinada a las escombreras y pilas de lixiviación; contaminación del río Lagarto por el depósito de materiales estériles, colas y aguas cianuradas; apertura de cráteres y afectación de acuíferos en la zona del proyecto; reducción y pérdida de biodiversidad.

En cuanto a la Mina Bellavista, ubicada en la parte alta del distrito Central de Miramar de Puntarenas, propiedad de la empresa canadiense Glencair Gold Corporation, después de dos años de operación, a mediados del año 2007, suspendió sus actividades de manera repentina, a raíz del deslizamiento de más de cien toneladas de materiales. Solo para el año 2006, la empresa reportó ganancias cercanas a los tres mil millones de colones, pese a lo cual los beneficios para el país se redujeron al pago de salarios a costarricenses, dado que, desde el inicio de sus operaciones, la empresa se acogió al régimen de Zona Franca, que la eximía del pago de impuestos, tanto municipales como nacionales. Este proyecto afectó el bosque, en medio de una zona de recarga acuífera y de alto riesgo sísmico; se produjo la ruptura de la membrana que retiene los metales pesados contenidos en alrededor de 100 millones de toneladas de desechos de la mina, con lo que se liberan metales pesados y aguas cianuradas que podrían estar contaminando aguas subterráneas y superficiales; se causó la sedimentación de ríos y quebradas, especialmente el posible taponamiento del cañón del río Ciruelas; se contaminó con polvo producto de la zona de influencia del proyecto, incluido el casco urbano de Miramar.

Insisto en que, la brecha temporal y tecnológica que separa estos casos del que se analiza hoy, no impide cotejarlas. La actividad es la misma y la sola diferencia que permite defender su ejecución actual es que se trata de un simple proyecto, lleno de promesas de conjurar los peligros propios de esta clase de minería, pero no de una verdadera experiencia documentada que haya transcurrido sin ningún resultado perjudicial. De hecho, no se ha traído prueba alguna, a este proceso, de un caso de extracción, como el que desea implementar Industrias Infinito, en que no se haya causado daño ambiental alguno. Y nótese que empleo adrede el término “daño”, en el sentido de repercusiones negativas serias para el ambiente, porque impacto, desde luego, que tiene, en general, toda industria. La posición de la mayoría de la Sala es, en este sentido, contraria a la lógica y espíritu del principio precautorio en materia ambiental.

Por una parte, se tienen indicios técnicos y fácticos, que no se han desvirtuado, de las graves repercusiones ambientales de la minería a cielo abierto y, de otro, simples promesas que ellos no ocurrirán en Crucitas. Incluso, en el elenco de hechos probados, tiene la mayoría de la Sala por demostrado en el hecho 21 “Que la actividad minera a cielo abierto es tradicionalmente considerada como una actividad riesgosa para el ambiente en caso de no ejecutarse dentro de los parámetros establecidos para la protección ambiental (así planteado en la Vista celebrada los días doce, trece y diecisiete de noviembre de dos mil nueve)”, afirmación que, amén de no constituir un hecho en sentido estricto, simplifica groseramente lo discutido en esas sesiones e incluye un condicionante prácticamente mágico: la actividad es nociva, salvo que se ejecute dentro de determinados parámetros. En la sentencia se entiende que esos parámetros indispensables se cumplirán, sin mayor cuestionamiento.

Lo cual resulta especialmente relevante, si se toma en cuenta que en la propia decisión de la mayoría se esgrime como uno de los causantes del supuesto deterioro forestal de la zona la debilidad de los controles públicos en temas ambientales, lanzando una inocua exhortativa a su fortalecimiento (considerando LXI).

A.2. El daño ambiental al Corredor Biológico San Juan-La Selva y al Corredor Biológico Mesoamericano: El área de Crucitas es un remanente de bosque del paisaje deforestado de la región norte del país y forma parte importante del corredor biológico San Juan-La Selva y del Corredor Biológico Mesoamericano. Está constituido por algunas especies de árboles de delicada conservación y la deforestación que implica la labor minera a cielo abierto fácilmente puede tener resultados irreversibles y presionar especies a un deterioro poblacional que las conduzca a la extinción. Son de especial cuidado especies endémicas, como el tostado (Sclerolobium costaricense), el almendro de montaña (Dipteryx panamensis) y otras cuyo hábitat se limita a esa región. El corredor biológico consiste en un espacio delimitado de conectividad de paisajes, ecosistemas y hábitats, asegurando el mantenimiento de la diversidad biológica y los procesos ecológicos y evolutivos.

Permite unir hábitats seriamente fragmentados, dejando poblaciones aisladas. Contribuyen a mantener los flujos genéticos, la dispersión de especies, favorece las migraciones. De acuerdo con el estudio sobre ese Corredor concreto, elaborado por Guiselle Monge Arias y Olivier Chassot, pese a tratarse de un proyecto, contiene el último hábitat de conexión viable para mantener la continuidad del Corredor Biológico Mesoamericano entre Nicaragua y Costa Rica. Su papel es el de unir la Reserva Biológica Indio-Maíz, en Nicaragua, con el Área de Conservación de la Cordillera Volcánica Central y la Estación Biológica La Selva, en Costa Rica. Mantener la conectividad es esencial para la viabilidad, a largo plazo, de las especies residentes y migratorias. Es el único sitio en Centroamérica en donde una gran área protegida de tierras bajas del Atlántico, tiene el potencial de mantener su conexión ecológica con hábitats de medianas y altas elevaciones.

En la zona, ya se había logrado detener el proceso de fragmentación del ecosistema y se evidencia la recuperación de las áreas naturales y las poblaciones de especies en vías de extinción. La iniciativa de protección del Corredor nace en el 2001, con apoyo del Centro Científico Tropical. Su Comité Ejecutivo lo integran funcionarios del Ministerio del Ambiente, Energía y Telecomunicaciones; de las Municipalidades de San Carlos y Sarapiquí, la Sociedad para la Conservación de la Vida Silvestre, la Organización para Estudios Tropicales, el Proyecto para la consolidación del Corredor Biológico Mesoamericano, la Asociación para el Bienestar Ambiental de Sarapiquí, la Asociación Preservacionista de Flora y Fauna Silvestre, la Asociación para el Manejo de las Áreas Forestales de San Carlos, los Amigos de la Lapa Verde, la Asociación VIDA, el Centro de Derecho Ambiental y de los Recursos Naturales, al Reserva Biológica la Tirimbina y la Comisión de Desarrollo Forestal de San Carlos.

Los accionados y funcionarios del Ministerio del Ambiente, Energía y Telecomunicaciones argumentan que se realizarán procesos de restauración del bosque original, por medio del almacenamiento del suelo y siembra de árboles en plantaciones, así como la conservación de las propiedades para su recuperación después de la explotación minera. Por ejemplo, en la vista se indicó que en la zona quedaban 521 árboles de almendro y habían sido cortados 197; que se sembraron ya 7.300 árboles nuevos y, en total, se pensaba sembrar 27.000 árboles (Jorge Hernández, MINAET). Sin embargo, la fragmentación general de los bosques de Costa Rica, y en particular los de las regiones bajo interés de proyectos mineros, dificultan la recolonización del área por las especies de plantas del ecosistema original. En el caso del proyecto Crucitas, es importante mencionar que el paisaje boscoso de la región fronteriza se podrá fragmentar aún más con el desarrollo de nuevas exploraciones y minas a cielo abierto.

Admitir la explotación de la concesión actual no hará más que abrir paso a futuras concesiones en la zona con el consecuente incremente de la deforestación. También merece consideración el hecho que el área abandonada por las minas contendrá un suelo muy diferente al original y tendrá características de menor riqueza de materia orgánica que disminuirá su fertilidad. Supuestamente se almacenará la capa de suelo superficial para ser utilizada en la recuperación de la mina, no obstante, este suelo estará biológicamente muerto y profundamente alterado después de su extracción, procesamiento y años de almacenamiento. Se necesitarán décadas para la recuperación de nutrientes y su riqueza orgánica original. De igual forma, me hace dudar del éxito de la sustitución ofrecida la inexistencia de experiencias o protocolos técnicos para la siembra de muchas especies de plantas y árboles que serán eliminadas, en particular de muchas especies arbóreas donde existe muy poco conocimiento sobre su germinación y ecología.

El estudio de impacto ambiental del proyecto no contiene una verdadera planificación científica del proceso de restauración. Igual debe considerarse el tiempo de crecimiento prolongado de muchas de las especies de árboles de los ecosistemas forestales que desaparecerán con el proyecto. Mientras que muchas de estas especies pueden crecer rápidamente durante sus fases juveniles, su crecimiento se vuelve más lento con el tiempo, determinando edades de cientos de años para muchas especies de dosel y emergentes. La escala de estos procesos supera en mucho los ciclos económicos y la vida de las empresas mineras, por lo que su compromiso de “restaurar” no puede ser acompañado por la presencia de la empresa durante todo el proceso. Quiero recordar, sobre este tema, el voto salvado que suscribí con el Magistrado Sosto en el expediente 06-015904-0007-CO, oportunidad en la que nos manifestamos “…en desacuerdo con avalar el argumento de que la tala que se practicará quedará remediada con la posterior sustitución con nuevos árboles.

En temas ambientales es de sobra conocido que la mayor parte de los daños que se causen tienen carácter irreversible, de suerte que los paliativos que se enuncian en el informe son, a nuestro juicio, insuficientes, al igual que las explicaciones sobre la necesidad de recurrir a la tala para la solución del problema vial del sector”. En ese caso se trataba de las cercanías del Parque Metropolitano La Sabana. A fortiori esas razones no deben soslayarse cuando estamos frente a una destrucción mayor en una zona más frágil, desde el punto de vista de la biodiversidad. Muchas veces se recurre a la siembra de plantaciones poco diversas como una forma de mostrar al público un bosque en restauración. Estas plantaciones son muy diferentes a la estructura de la vegetación de un bosque natural, caracterizada por una alta diversidad de especies de plantas, y una diversidad de edades y tamaños dentro de cada especie.

Aun la propuesta de reparación en la que se sustituye los 197 almendros amarillos talados, por 6.093 árboles nuevos de esa especie, no tiene efectos equivalentes. De este modo, que en el Plan de Manejo Forestal en las áreas bajo administración del proyecto minero Crucitas, se indique que en la fase de cierre del proyecto se rehabilitarán las áreas impactadas, para devolverlas a un estado similar a las zonas boscosas cercanas, incluyendo la recuperación de la totalidad del área del cambio de uso de suelo (folios 235 y 237 del expediente administrativo), es insuficiente. De hecho, todas estas afirmaciones se ven sólidamente respaldas por el contenido del oficio CCT-PI 023-09 del 20 de febrero del 2009 emitido por el Centro Científico Tropical, visible a folio 3591, documento en el cual se hace ver que el proyecto minero afecta un ecosistema único y es por esa razón que las medidas de mitigación de la corta de individuos de almendro amarillo y sus impactos perjudiciales sobre la población de la lapa verde no contribuye a recuperarlo, ni permite que la lapa se pueda alimentar a corto o mediano plazo, pues esta ave, como ha sido explicado, no suele frecuentar árboles bajos.

Comprar tierras en la cuenca alta del río San Carlos para la conservación del parque nacional Juan Castro Blanco no contribuye de ninguna manera a garantizar la viabilidad de la población del almendro amarillo y la lapa verde, en suma, la afectación al corredor biológico San Juan-La Selva, como ha quedado acreditado, será prácticamente irreparable.

A.3. Sobre la afectación de la lapa verde y el árbol de almendro amarillo.

• a)Protección de las especies en vías de extinción como deber constitucional: La Sala, según se transcribe parcialmente en el voto de mayoría, ha conocido varios asuntos anteriores relacionados con el planteado dentro de este amparo, principalmente en las sentencias #2002-02486 de 10:54 horas del 8 de marzo de 2002 y #2008-13426. En relación con las especies en vías de extinción, el Estado costarricense se comprometió a proteger la flora y la fauna, en especial a las especies que se encuentren en la especial situación dicha, obligación que adquirió a través de diversos instrumentos de Derecho Internacional y que reforzó aprobando la legislación que vela por la preservación de aquellas. Esos compromisos resultan ser de acatamiento obligatorio para todos los poderes públicos, pues los órganos competentes para esos efectos decidieron aprobarlos e incorporarlos a nuestro ordenamiento.

Esa situación impone, en consecuencia, una multiplicidad de exigencias a nuestro Gobierno, las cuales van desde el planeamiento y la ejecución de políticas públicas, la dotación de recursos y la promoción de una cultura, tendientes todas a la conservación del medio, hasta la necesidad de abstenerse de ejecutar una conducta o medida, adoptar cualquier resolución o aprobar alguna disposición normativa -de rango legal o infralegal- que acaso pueda lesionar o amenazar la preservación de cualquiera de esas especies que se hallen en peligro o vías de extinción. En ese sentido, en casi todas las normas incorporadas al ordenamiento, el Estado no solo se comprometió a velar por la flora y la fauna que se encuentra en riesgo, sino que, adicionalmente, contrajo la obligación de proteger el hábitat y el ecosistema en el que esta se relacione y desarrolle. Ese compromiso resulta más que razonable, pues cualquier especie muy difícilmente logrará sobrevivir por sí sola mientras su entorno no sea resguardado, debido a que, si su hábitat y ecosistema se ven amenazados, o acaso destruidos, se quedará sin un sitio donde habitar, alimentarse, crecer o reproducirse; es decir, estará destinada a la desaparición.

Desde esa arista, podemos afirmar que el Estado costarricense ha sido pionero en el impulso y ejecución de políticas públicas destinadas a la protección de las diversas especies de flora y de fauna que corren el riesgo de desaparecer del planeta. Esto nos condujo a tener hoy, aproximadamente, el 25% del territorio nacional destinado a la preservación y tutela del medio a través de los diversos modelos de sistemas y áreas de conservación.

En ese sentido, y como acciones complementarias, Costa Rica, como República libre, independiente y soberana optó, como dijimos, por suscribir diversos instrumentos de Derecho Internacional en el ejercicio de sus atribuciones como persona jurídica internacional. Estos instrumentos contienen diversas disposiciones y entre ellas podemos observar el contenido del Convenio sobre Diversidad Biológica y Anexos, aprobado por Ley número 7416 de 30 de junio de 1994, publicado en La Gaceta número 143 de 28 de julio de 1994, que al efecto dispone:

“Preámbulo Las Partes Contratantes, Conscientes del valor intrínseco de la diversidad biológica y de los valores ecológicos, genéticos, sociales, económicos, científicos, educativos, culturales, recreativos y estéticos de la diversidad biológica y sus componentes.

Conscientes asimismo de la importancia de la diversidad biológica para la evolución y para el mantenimiento de los sistemas necesarios para la vida de la biosfera.

Afirmando que la conservación de la diversidad biológica es interés común de toda la humanidad.

[…] Reafirmando asimismo que los Estados son responsables de la conservación de su diversidad biológica y de la utilización sostenible de sus recursos biológicos.

Preocupadas por la considerable reducción de la diversidad biológica como consecuencia de determinadas actividades humanas.

[…] Observando que es vital prever, prevenir y atacar en su fuente las causas de reducción o pérdida de la diversidad biológica.

Observando también que cuando exista una amenaza de reducción o pérdida sustancial de la diversidad biológica no debe alegarse la falta de pruebas científicas inequívocas como razón para aplazar las medidas encaminadas a evitar o reducir al mínimo esa amenaza.

Observando asimismo que la exigencia fundamental para la conservación de la diversidad biológica es la conservación in situ de los ecosistemas y hábitats naturales y el mantenimiento y la recuperación de poblaciones viables de especies en sus entornos naturales.

Tomando nota de que, en definitiva, la conservación y la utilización sostenible de la diversidad biológica fortalecerán las relaciones de amistad entre los Estados y contribuirán a la paz de la humanidad.

[…] Resueltas a conservar y utilizar de manera sostenible la diversidad biológica en beneficio de las generaciones actuales y futuras.

Han acordado lo siguiente:

[…] ARTÍCULO 1. Objetivos Los objetivos del presente Convenio, que se han de perseguir de conformidad con sus disposiciones pertinentes, son la conservación de la diversidad biológica, la utilización sostenible de sus componentes y la participación justa y equitativa en los beneficios que se deriven de la utilización de los recursos genéticos, mediante, entre otras cosas, un acceso adecuado a esos recursos y una transferencia apropiada de las tecnologías pertinentes, teniendo en cuenta todos los derechos sobre esos recursos y a esas tecnologías, así como mediante una financiación apropiada.

ARTÍCULO 2. Términos utilizados A los efectos del presente Convenio:

Por "área protegida" se entiende un área definida geográficamente que haya sido designada o regulada y administrada a fin de alcanzar objetivos específicos de conservación.

[…] Por "condiciones in situ" se entienden las condiciones en que existen recursos genéticos dentro de ecosistemas y hábitats naturales y, en el caso de las especies domesticadas o cultivadas, en los entornos en que hayan desarrollado sus propiedades específicas.

Por "conservación ex situ" se entiende la conservación de componentes de la diversidad biológica fuera de sus hábitats naturales. Por "conservación in situ" se entiende la conservación de los ecosistemas y los hábitats naturales, y el mantenimiento y recuperación de poblaciones viables de especies en sus entornos naturales y, en el caso de las especies domesticadas y cultivadas, en los entornos en que hayan desarrollado sus propiedades específicas.

Por "diversidad biológica" se entiende la variabilidad de organismos vivos de cualquier fuente, incluidos, entre otras cosas, los ecosistemas terrestres y marinos, y otros ecosistemas acuáticos y los complejos ecológicos de los que forman parte; comprende la diversidad dentro de cada especie, entre las especies y de los ecosistemas.

Por "ecosistema" se entiende un complejo dinámico de comunidades vegetales, animales y de microorganismos, y su medio no viviente que interactúan como una unidad funcional.

[…] Por "hábitat" se entiende el lugar o tipo de ambiente en el que existen naturalmente un organismo o una población.

[…] ARTÍCULO 6. Medidas generales a los efectos de la conservación y la utilización sostenible Cada Parte Contratante, con arreglo a sus condiciones y capacidades particulares:

• a)Elaborará estrategias, planes o programas nacionales para la conservación y la utilización sostenible de la diversidad biológica o adaptará para ese fin las estrategias, planes o programas existentes, que habrán de reflejar, entre otras cosas, las medidas establecidas en el presente Convenio que sean pertinentes para la parte contratante interesada. Y b) Integrará, en la medida de lo posible y según proceda, la conservación y la utilización sostenible de la diversidad biológica en los planes, programas y políticas sectoriales o intersectoriales.

[…] ARTÍCULO 8. Conservación in situ Cada Parte Contratante, en la medida de lo posible y según proceda:

• a)Establecerá un sistema de áreas protegidas o áreas donde haya que tomar medidas especiales para conservar la diversidad biológica.
• b)Cuando sea necesario, elaborará directrices para la selección, el establecimiento y la ordenación de áreas protegidas o áreas donde haya que tomar medidas especiales para conservar la diversidad biológica.
• c)Reglamentará o administrará los recursos biológicos importantes para la conservación de la diversidad biológica, ya sea dentro o fuera de las áreas protegidas, para garantizar su conservación y utilización sostenible.
• d)Promoverá la protección de ecosistemas y hábitats naturales y el mantenimiento de poblaciones viables de especies en entornos naturales.
• e)Promoverá un desarrollo ambientalmente adecuado y sostenible en zonas adyacentes a áreas protegidas, con miras a aumentar la protección de esas zonas.
• f)Rehabilitará y restaurará ecosistemas degradados y promoverá la recuperación de especies amenazadas, entre otras cosas mediante la elaboración y la aplicación de planes u otras estrategias de ordenación.

[…] ARTICULO 9. Conservación ex situ Cada Parte Contratante, en la medida de lo posible y según proceda, y principalmente a fin de complementar las medidas in situ:

• a)Adoptará medidas para la conservación ex situ de componentes de la diversidad biológica, preferiblemente en el país de origen de esos componentes.
• b)Establecerá y mantendrá instalaciones para la conservación ex situ y la investigación de plantas, animales y microorganismos, preferiblemente en el país de origen de recursos genéticos.
• c)Adoptará medidas destinadas a la recuperación y rehabilitación de las especies amenazadas y a la reintroducción de éstas en sus hábitats naturales en condiciones apropiadas.

[…]” En el mismo sentido el Convenio para la Conservación de la Biodiversidad y Protección de Áreas Silvestres, Ley número 7433 de 14 de septiembre de 1994, publicado en la Gaceta 193 de 11 de octubre de 1994 dispone:

“ARTÍCULO 1.- Objetivo. El objetivo de este Convenio es conservar al máximo posible la diversidad biológica, terrestre y costero-marina, de la región centroamericana, para el beneficio de las presentes y futuras generaciones.

ARTÍCULO 2.- Los Estados firmantes de este Convenio reafirman su derecho soberano de conservar y aprovechar sus propios recursos biológicos de acuerdo a sus propias políticas y reglamentaciones en función de:

• a)Conservar y usar sosteniblemente, en función social, sus recursos biológicos; y b) Asegurar que las actividades dentro de sus jurisdicciones o control, no causen daños a la diversidad biológica de sus Estados o áreas que limitan su jurisdicción nacional.

[…] ARTÍCULO 10.- Cada Estado miembro de este marco regional, se compromete de acuerdo a sus capacidades, programas nacionales y prioridades, a tomar todas las medidas posibles para asegurar la conservación de la biodiversidad, y su uso sostenible, así como del desarrollo de sus componentes dentro de su jurisdicción nacional, y a cooperar en la medida de sus posibilidades en las acciones fronterizas y regionales.

ARTÍCULO 11.- Los Estados miembros tomarán las acciones pertinentes para incorporar a las respectivas políticas y planes de desarrollo, los lineamientos para, y el valor socioeconómico de, la conservación de los recursos biológicos.

ARTÍCULO 12.- Las instituciones en los países de la región centroamericana, cooperarán tanto como sea apropiado, con las instituciones regionales e internacionales, para apoyarse mutuamente en el cumplimiento de las obligaciones contraídas por el presente Convenio, incluso relacionadas con aspectos de biotecnología, salud y seguridad alimentaria.

ARTÍCULO 13.- Con el propósito de cumplir a cabalidad con el presente Convenio, se deberá:

[…] b) Implementar medidas económicas y legales para favorecer el uso sustentable y el desarrollo de los componentes de la diversidad biológica.

• c)Asegurar el establecimiento de medidas que contribuyan a conservar los hábitats naturales y sus poblaciones de especies naturales.

[…] f) Promover la conciencia pública en cada Nación, de la necesidad de conservar, usar sustentablemente y desarrollar la riqueza biológica de la región.

[…] ARTÍCULO 14.- Cada país de la región deberá desarrollar sus propias estrategias de conservación y desarrollo, entre las cuales la conservación de la biodiversidad y la creación y manejo de áreas protegidas sea prioridad.” Por otra parte, en nuestro Derecho Interno existen diversas leyes encargadas de velar por la protección y conservación de la flora, de la fauna y del medio en general, así, tenemos la Ley Orgánica del Ambiente, número 7554; la Ley de Conservación de la Vida Silvestre, número 7317; y, la Ley de Biodiversidad, número 7788. Todas estas normas van claramente dirigidas en un sentido progresivo en cuanto a la protección del ambiente se refiere, buscando el desarrollo socioeconómico del país; pero sin sacrificar el medio. Más bien esas disposiciones tienden a la armonización entre el progreso y la apropiada conservación y tutela del entorno.

Entonces, observamos que el Estado ha asumido como propia la tarea de velar por la subsistencia de las especies amenazadas, y para ello adquirió compromisos a nivel internacional y promulgó legislación a nivel nacional que, por supuesto, resulta de acatamiento obligatorio por parte de todos los órganos gubernamentales.

• b)Sobre la situación de la lapa verde: La lapa verde o ara ambigua es un ave de mayor tamaño que la lapa roja, pues alcanza a medir hasta 84 centímetros de envergadura y puede llegar a poseer una masa de aproximadamente 1,3 kilogramos. Su contextura es bastante robusta, posee una cola ligeramente más corta que la lapa roja o ara macao. Su color -como lo designa su nombre- es verde amarillento, con las plumas cobertoras de las alas de color azul; por su parte, las de la cola, llamadas rectrices centrales, son rojas; y el resto de las rectrices color azul. La cara de este animal se encuentra desprovista de plumas, mostrando la piel descubierta, que tiene un color blanco hueso. Tiene un fuerte y ganchudo pico un poco más grande que el de la lapa roja, la estructura queratinosa de este le sirve para abrir las duras semillas de las que se alimenta. Su costumbre es anidar en troncos huecos.

La lapa verde (ara ambigua) tiene una distribución limitada en tierras bajas y húmedas, principalmente del lado del Atlántico en bosques entre el este de Honduras y el norte de Colombia, con una población aislada en el Pacífico en Guayaquil, Ecuador. En Costa Rica, su rango de anidamiento se limita actualmente a la Zona Huetar Norte, más específicamente entre los ríos San Carlos, San Juan y Sarapiquí y las faldas del norte de la Cordillera Volcánica Central. Ella depende altamente del almendro (dipteryx panamensis) tanto para alimentarse como para anidar. Esta especie se encuentra en la lista del Apéndice I de CITES (ver http://www.cites.org/esp/app/appendices.shtml y http://www.cites.org/esp/app/S-Jul01.pdf, ambos consultados el 23 de marzo de 2010), lo que significa que se encuentra en peligro de extinción. Como se indicó, en el país la especie fue abundante, principalmente, en la Zona Atlántica y la Zona Norte, en donde era común ver volar ejemplares en bandadas hace pocos años.

Sin embargo, hoy apenas se encuentran algunas parejas que anidan en la Zona Norte, entre Boca Tapada y las llanuras del Colorado. Existen algunos reportes de unas bandadas de entre 6 y 12 individuos en las estribaciones de la Cordillera Volcánica Central, sobre todo cerca del sector bajo atlántico del Parque Nacional Braulio Carrillo, en los alrededores de la carretera que conduce a Guápiles y algunos reportes esporádicos en la falda de la Cordillera Volcánica de Guanacaste por el sector Norte. El abrupto descenso en la población de la lapa verde se debe sobre todo a la destrucción de su hábitat mediante tala no sostenible en los sitios de anidación. En Costa Rica, el rango de distribución de la especie se ha reducido en un 90% desde el siglo pasado, y la amenaza que enfrenta radica en el hecho de que ella depende del árbol almendro de montaña (dipteryx panamensis), que desaparece con el mal manejo y la tala ilegal de los bosques.

Entonces, existen dos peligros que representan una seria amenaza para esta especie: la pérdida de hábitat por la tala de árboles que constituyen su principal alimento y sitios de anidamiento, en especial del almendro (dipteryx panamensis) pues la lapa verde depende en un 80% del almendro para alimentarse y en un 90% para anidar; además, del comercio ilegal que realizan con ella, para utilizarla como mascota (información obtenida en parte de las páginas http://www.minae.go.cr, http://www.sinac.go.cr, http://www.lapaverde.or.cr, http://www.inbio.ac.cr, http://www.una.ac.cr, http://www.cct.or.cr y http://www.guiascostarica.com). En ese mismo sentido afirma el Sistema Nacional de Áreas de conservación en su página en Internet:

“[…] Probablemente el águila harpía (sic) llegó a su extinción en el país; mientras que otras especies como la lapa roja, la lapa verde, el piche careto y el oso hormiguero gigante, están fuertemente amenazadas de extinción. Nuestro sistema de áreas protegidas parece ser insuficiente para aquellas especies que, como el jaguar, requieren grandes extenciones (sic) de bosque virgen para sobrevivir. […]” (El destacado se suplió, descargado del sitio http://www.sinac.go.cr/vidasilvestre.php a las 11:00 horas de 23 de marzo de 2010).

A lo anterior añaden en ese mismo sitio:

“[…] La flora y fauna silvestre son patrimonio de todos los costarricenses […]. Por tal motivo, la Dirección General de Vida Silvestre, por medio del Sistema Nacional de Areas (sic) de Conservación ha emprendido diferentes acciones tendientes a aumentar las posibilidades de conservación de la Vida Silvestre, entre las que cabe destacar: […] 2.-la elaboración de un decreto tendiente a proteger las poblaciones de almendro de montaña, árbol del cual se alimenta la lapa verde. […]” (El destacado es suplido, descargado del sitio http://www.sinac.go.cr/vidasilvestre.php el 23 de marzo de 2010).

Se debe tomar en cuenta igualmente lo dispuesto por el Sistema Nacional de Áreas de Conservación que, en su página en Internet, incluye en la lista oficial de especies en peligro de extinción a la lapa verde (sitio http://www.sinac.go.cr/vidasilvestre5.php consultado el 23 de marzo de 2010). Adicionalmente, el Decreto Ejecutivo “Crear el Refugio Nacional de Vida Silvestre Mixto Maquenque”, número 32405-MINAE de 23 de mayo de 2005, publicado en La Gaceta 113 de 13 de junio de 2005, señala:

“[…] 7º—Que el Ministerio del Ambiente y Energía, tiene entre sus proyectos más próximos, la declaratoria de creación del Refugio Nacional de Vida Silvestre Mixto Maquenque situado en la zona fronteriza norte entre las desembocaduras de los ríos San Carlos y Sarapiquí. Es un área que por su interés científico es considerada de importancia para la conservación, pues presenta características especiales para la conservación de importantes especies de flora y fauna entre ellas: la Lapa verde (Ara Ambigua), Jaguar (Pantera onca), Almendro (Dypteryx panamensis), Manatí (Trichechus manatus), Gaspar (Atractosteus tropicus) y Pinillo (Podocarpus guatemalensis). La ubicación geográfica de esta zona resulta de gran importancia ya que esta área silvestre protegida estaría situada en el Corredor Biológico Binacional El Castillo-San Juan-La Selva, que es continuidad del Corredor Biológico Mesoamericano entre Nicaragua y Costa Rica y constituye el último bloque de cobertura forestal natural significativo que permita mantener la conectividad biológica entre ambos países, por lo que esta área conectaría hábitat claves y corredores de vida silvestre, lo que prevendría el aislamiento de especies y de ecosistemas nativos.

8º—Que las áreas El Jardín, Cureña y Chaparrón constituyen núcleos muy importantes para la conservación de la biodiversidad, entre la cual se encuentran varias especies amenazadas tales como:

[…] Especies de aves amenazadas Especie Nombre común Situación […] 37 Ara ambigua lapa verde peligro […] Especies de árboles amenazadas Especie Nombre común Situación […] 12 Dipteryx panamensis almendro amenazada […]” (El destacado fue suplido).

Así, queda claro que tanto la lapa verde (ara ambigua) como el almendro amarillo (dipteryx panamensis) son especies que se encuentran en peligro de extinción -en el caso de la primera- y amenazada -en el de la segunda-, y que existe una dependencia directa de aquella respecto de esta.

En este caso, es claro que el proyecto minero en cuestión, tal y como se afirmó, en forma precedente, vendrá a remover por completo la capa vegetal en una zona vital para la interconectividad del corredor biológico El Castillo-San Juan-La Selva, talando varias unidades de almendros amarillos, incluidos en el apéndice III al CITES (ver http://www.cites.org/esp/app/appendices.shtml y http://www.cites.org/esp/app/S-Jul01.pdf, ambos consultados a las 10:00 horas de 23 de marzo de 2010), lo cual reducirá aún más el hábitat y el territorio de tránsito de las lapas verdes, las cuales se verán aún más amenazadas, a pesar de que ya corren un gravísimo peligro de extinción, tal y como consta en el apéndice I al CITES (ver http://www.cites.org/esp/app/appendices.shtml y http://www.cites.org/esp/app/S-Jul01.pdf, ambos consultados el 23 de marzo de 2010), esta especie se halla, en este momento, en una condición de extrema vulnerabilidad, situación que se verá agravada, colocando al borde de la extinción a esta ave, la cual había sido, hasta ahora, defendida por el Tribunal Constitucional, en virtud de su precario estado y la importancia que tiene dentro del ecosistema en aras de garantizar el derecho a un ambiente sano y ecológicamente equilibrado.

A folio 4800 el Director a.i. del Área de Conservación Arenal Huetar Norte establece el recuento de la tala que restaría por ejecutar en la zona del proyecto: en el cerro Fortuna faltarían 6 has 5598.15m por cortar (342 árboles), en Relaves A y B faltarían 115 has 2165.56m (5520 árboles), en diques, caminos, tramos y líneas 7 has 8085.05m (1396 árboles) y en área no boscosas 8 has 8259.88 m (563 árboles). En total debe aún cortarse 7821 árboles, sin incluir la información del cerro Botija, donde todos los árboles se habían ya cortado. Todos los árboles de la especie almendro amarillo fueron cortados (se censaron 197 árboles de almendro, folio 1405 del expediente administrativo). En este sentido, se debe hacer ver que la mayoría de la Sala llega a invertir la carga de la prueba, en perjuicio de la protección del ambiente y, en específico de la lapa verde, al asegurar que solo debe protegerse el árbol de almendro amarillo cuando se haya demostrado, indubitablemente, que en la zona anida este tipo de ave (“…la explotación, extracción y aprovechamiento del almendro amarillo, está absolutamente prohibida por disposición de esta Sala, en la medida que los árboles que se pretenda cortar estén en una zona donde se haya acreditado plenamente que anida la lapa verde” considerando X, subrayado agregado), lo anterior aun cuando, en la sentencia 2008-13426 de 09:33 horas de 2 de septiembre de 2008, la propia Sala estableció una prohibición absoluta para la corta de esta especie vegetal, pues, al respecto se ordenó “[…] archivar cualquier diligencia o procedimiento destinado al aprovechamiento, explotación o extracción del almendro amarillo (dipteryx panamensis).”, además, se prohibió “[…] dar inicio o continuar cualquier procedimiento tendiente al aprovechamiento, explotación o extracción del almendro amarillo (dipteryx panamensis) mientras este árbol y la lapa verde (ara ambigua) se [encontraran] en la lista de especies amenazadas o en peligro de extinción […]”, esto, justamente, por el estrechísimo vínculo que existe entre el ave y el almendro amarillo; no obstante, la Sala ha reinterpretado ese fallo, lo que causará un efecto altamente perjudicial para el medio y, sobre todo, para la lapa verde. Desde esa perspectiva, el proyecto minero analizado representa una agresión abierta a esta especie, razón por la que se impone la estimatoria del amparo en cuanto a este extremo.

A.4. Repercusiones de la minería a cielo abierto sobre el recurso hídrico de la zona. Sobre este punto, lo primero que se debe indicar es que el Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento no cuenta con mayor información sobre los mantos acuíferos existentes en la zona del proyecto minero Las Crucitas. Esto queda plenamente demostrado si se toma en cuenta que, a folio 1143 del expediente, el gerente general del SENARA señala que esa institución nunca ha realizado un estudio hidrogeológico en esa zona que le permita determinar la existencia, influencia, capacidad de carga y recarga de los acuíferos en el sitio donde se pretende construir la mina, menos aún se cuenta con estudios regionales que le permitan a esa institución establecer, con certeza, el impacto que tienen los mantos ubicados en las cercanías del proyecto sobre los que se encuentran adyacentes a él. Desde esa perspectiva, cabe insistir en lo señalado en la sentencia de la Sala #2004-01923 de 14:55 horas de 25 de febrero de 2004, ampliamente citada en el voto de mayoría, por lo cual se transcribe solamente los puntos esencialmente relacionados con este voto salvado:

“X.- CONTAMINACION DE LAS AGUAS SUBTERRANEAS. A diferencia de la contaminación de las aguas superficiales que suele ser patente y visible, lo que permite tomar acciones ambientales tendentes a mitigarla o erradicarla, la de las aguas subterráneas, por su propia naturaleza, suele pasar inadvertida y se hace evidente cuando ha alcanzado grandes proporciones. Los mantos acuíferos por la lenta circulación de las aguas, la capacidad de absorción del terreno y otros factores, pueden tardar mucho tiempo en mostrar la contaminación. Adicionalmente, el gran volumen de las aguas contenido hace que las contaminaciones extensas tarden un lapso prolongado en manifestarse o bien cuando se trata de contaminaciones localizadas se detectan cuando fluyen en algún sitio de explotación. Ciertamente, este tipo de aguas tienen una resistencia a contaminarse, sin embargo cuando esta se produce su regeneración puede ser extraordinariamente lenta y en ocasiones es irreversible por el alto costo de los medios para hacerlo.

Está demostrado que los intentos para reparar el daño producido por contaminación a un acuífero para lograr, de nuevo, niveles de potabilidad del agua no han tenido éxito, las tecnologías para su limpieza han contribuido poco a reducir el daño y los métodos son económicamente muy elevados. A lo anterior debe agregarse la falta de infraestructura organizacional, recursos materiales, financieros y humanos, en este último caso, debidamente capacitados para evaluar, medir y, en general, monitorear la calidad de esta agua y la dimensión exacta de su contaminación. La degradación y contaminación de los mantos acuíferos le impone al legislador y a las administraciones públicas la tarea urgente e impostergable de protegerlos. (…) Los orígenes de la contaminación de los acuíferos pueden ser de muy diversa índole, tales como los siguientes: (…) f) contaminación por actividades mineras -mineral-, se relaciona con evacuaciones de aguas de mina y lavaderos de mineral; g) contaminación por actividades industriales, este tipo es tan variado como el tipo de industria que la origina, siendo especialmente nocivas las provocadas por metales pesados provenientes de la industria metalúrgica, así como de las industrias químicas, petroquímicas de alimentos (sustancias orgánicas) y bebidas (detergentes); h) contaminación por actividades nucleares, aunque excepcional en nuestro medio, puede provenir de plantas de tratamiento de combustibles irradiados y de minerales radioactivos y de la actividad médica;.

[…]

XII. PROTECCIÓN DE LAS AGUAS SUBTERRÁNEAS

Por las características de la contaminación de los mantos acuíferos destinados al abastecimiento público y su difícil regeneración, las medidas para evitar la contaminación deben ser preventivas y protectoras, mediante la prohibición de ciertas actividades humanas en determinadas zonas u ordenando medidas de seguridad sobre ciertas actividades potencialmente contaminantes.(…)” En este caso concreto, ya no se trata de que exista duda sobre la afectación o eventual peligro para el recurso hídrico, sino que, tal y como ha quedado acreditado, el acuífero se verá directamente afectado, pues la propia Secretaría General de la Secretaría Técnica Nacional Ambiental afirmó en su informe que:

“En lo que respecta a la extracción de roca dura, el efecto en relación al sistema de extracción de saprolita, consiste en la afectación de la cantidad de agua subterránea por el afloramiento del acuífero inferior durante la excavación de los tajos. Se espera el abatimiento del nivel del agua subterránea hasta la base de este acuífero esta situación tal y como se presentó en el estudio de impacto ambiental por las características que presenta de distribución y flujo, generaría un radio de influencia máximo esperado de 267 metros, situación que obviamente no afectaría propiedades que se encuentren fuera de ese radio que de por sí se ubica en su totalidad dentro de las propiedades de Industrias Infinito, por lo que no se verían afectadas tomas de agua o pozos en propiedades aledañas. El abatimiento se generaría en las inmediaciones de la excavación, pero la magnitud de ese descenso del nivel del agua puede ser prácticamente imperceptible fuera de ese radio de 267 metros.

No hay extracciones de agua subterránea en esa distancia por lo que se consideró que ese impacto no tiene relevancia en términos de uso del acuífero. Este efecto sería permanente en el tajo Fortuna, pues el área del tajo Fortuna persistiría aún después del cese de las operaciones. El acuífero inferior presenta condiciones de confinamiento y en algunos sectores un comportamiento artesiano surgente, donde el nivel piezométrico presenta una dirección de flujo es aproximadamente noreste-suroeste, y donde la cota del nivel piezométrico en el sector donde se ubicarán los tajos es de aproximadamente 73 msnm, por lo que entonces el acuífero inferior será intersecado en ese punto, en ese caso, el afloramiento de agua conforme se avance la extracción por debajo de la cota 73, será bombeado hacia la laguna de relaves hasta que se finalice la extracción y entonces en el tajo Botija que se rellenará, el nivel de agua podrá recuperar aproximadamente su ubicación dentro del material que se ubicará dentro del tajo, para posteriormente recuperar con vegetación la superficie del terreno.

En el caso del tajo Fortuna, el nivel recuperará su ubicación pero rellenará el pit formando un lago. Para evaluar los efectos de la excavación de los tajos sobre el acuífero inferior, se hizo una evaluación mediante modelación del abatimiento del nivel del agua en la propia excavación y en sus alrededores. Para ello se utilizó un modelo de flujo radial (Rushton y Redshaw, 1979) y se calculó el caudal necesario a extraer de la excavación para mantener el nivel del agua en el piso del tajo mientras se terminan las labores de extracción y se calculó también el radio de influencia. Para esto se hizo una simplificación geométrica de la forma de los tajos y se le dio énfasis al tajo Fortuna, ya que el agujero del Botija será rellenado. En términos generales, el área de la base del tajo Fortuna se tomó como 19103.8 m2. El área del espejo de agua una vez recuperado se calcula en 88096.6 m2.

Este efecto de abatimiento del nivel en el acuífero inferior es temporal, ya que una vez que cesen los trabajos de explotación del material y ya no exista la extracción del agua desde la excavación, el nivel del agua subterránea empezará a recuperarse hasta alcanzar la cota de 73 msnm que presenta actualmente. (folio 3781, resultando 143).” Nótese en este punto lo señalado por la secretaria general de la SETENA, en la siguiente dirección:

“Se espera el abatimiento del nivel del agua subterránea hasta la base de este acuífero esta situación tal y como se presentó en el estudio de impacto ambiental por las características que presenta de distribución y flujo, generaría un radio de influencia máximo esperado de 267 metros, situación que obviamente no afectaría propiedades que se encuentren fuera de ese radio que de por sí se ubica en su totalidad dentro de las propiedades de Industrias Infinito, por lo que no se verían afectadas tomas de agua o pozos en propiedades aledañas.” Y contrástense esas afirmaciones con lo dicho en la sentencia #2004-1923 de este Tribunal:

“Finalmente, a partir del siglo XX, muchas legislaciones van a calificar todas las aguas subterráneas como (c) bienes de dominio público, a partir de la indubitada unidad del ciclo hidrológico, con lo que pasan a conformar lo que se ha denominado el “dominio público hidráulico” como parte del dominio natural y no artificial; esta posición concibe el agua como un recurso unitario subordinado al interés general por lo que no se debe distinguir entre superficiales y subterráneas, puesto que, se encuentran íntimamente vinculadas para mantener su calidad y cantidad. De acuerdo con esta última tesis, las aguas subterráneas no son apropiables por ningún particular y su calificación como bienes de dominio público constituye título suficiente para someterlas a un régimen de intervención administrativa muy fuerte e intenso en aras de garantizar su integridad y calidad y de apartarlas de los modos de adquisición y disfrute propios del Derecho Privado..

[…] en lo atinente a las aguas subterráneas no renovables, fósiles, muertas, estancadas o no fluyentes contenidas en éstos no cabe la menor duda que también son de dominio público, dado que, los artículos 4° del Código de Minería y 50 de la Ley Orgánica del Ambiente no distinguen entre aguas subterráneas y superficiales y, mucho menos, entre las subterráneas renovables y no renovables, por lo que no se les puede concebir como un res nullis (sic) susceptible de apropiación por el alumbrador particular.” Es decir, en este caso se está permitiendo contaminar un manto acuífero en la zona del proyecto minero Las Crucitas y confunde, la Secretaría Técnica Nacional Ambiental, la naturaleza y régimen jurídicos de las aguas subterráneas y los mantos acuíferos, pues prácticamente asimila que, por el hecho de que el acuífero se encuentre dentro de la propiedad de la empresa Industrias Infinito Sociedad Anónima, se puede contaminar e impactar de forma directa y negativa.

El recurso hídrico es un bien de dominio público y, en este momento, tal y como lo indican los paneles científicos a nivel global, es, además, un bien escaso, que a cada momento enfrenta mayores riesgos. Justamente, en este caso, nuestro país no solo está aumentando el riesgo de contaminación del recurso hídrico, sino que, abiertamente, está otorgando una autorización para que particulares contaminen todo un manto acuífero. Por otra parte, el apoderado generalísimo judicial de Industrias Infinito, indicó en el memorial de folio 4519 que, de la Laguna de Relaves, se prevé efectuar un vertido del agua excedente a la Quebrada La Mina, asegurando que cumplirá las normas de vertido nacional e internacional. Las aguas vertidas, junto con el agua que aporta el caudal natural, discurren una distancia de 1 km antes de desembocar en el Río Infiernito. Este último recorre una distancia de 20,3 kilómetros a lo largo de su cauce natural hasta su desembocadura al Río San Juan.

Nuevamente se parte de una actividad completamente controlada e inocua y del único escenario del funcionamiento deseable. Es evidente que cualquier falla del sistema implicará contaminación de la quebrada que se mencionó y aún del Río San Juan. La actitud pasiva de la Secretaría Técnica Nacional Ambiental y el Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento en la protección del recurso hídrico, en el caso del proyecto minero Las Crucitas, es inexplicable, no se realizaron estudios propios, a pesar de la envergadura del proyecto, no se cuenta con datos que permitan determinar la influencia regional del acuífero que va a ser contaminado, con la autorización estatal, y no se cuenta con un plan remedial que permita determinar un protocolo de actuación frente a condiciones climáticas extremas, como las que presenciamos en nuestros días. Adicionalmente, no existe, como se ha reiterado a lo largo de este voto salvado, una estimación del costo que implica para el país el estropear, deliberada y consentidamente, un manto acuífero, contaminándolo con metales pesados, menos aún existe una estimación del costo y tiempo que podría tomar la recuperación de la polución que, de forma inexorable, sufrirá el acuífero.

No comparto tampoco el argumento de la mayoría, basado en el de la empresa recurrida, según el cual no hay daño, en la medida en que el agua del acuífero no es apta para el consumo humano, debido a su acidez. El hecho que el agua, por su composición química, no sea potable, no implica que se pueda dar carta abierta para su contaminación. Son dos cosas completamente diferentes agua no potable, por acidez, y agua contaminada con residuos de metales pesados. La utilización de un manto dentro del plan remedial de la mina simplemente acarreará más problemas de los que pretende corregir y significará el deterioro, consentido por el Estado, de un bien de dominio público. Pese a que la mayoría de la Sala estima el amparo por negligencia de las autoridades recurridas, al no haber requerido, previo al otorgamiento de la viabilidad ambiental del proyecto, el pronunciamiento de SENARA sobre la afectación del recurso hídrico en la región, a la sentencia se le confiere el solo efecto de condenar a las autoridades recurridas al pago de los daños y perjuicios causados, sin anular el Estudio de Impacto Ambiental, ni la viabilidad ambiental otorgada, por cuanto el SENARA dio un visto bueno posterior.

La solución contradice los más básicos principios del derecho ambiental: se resta importancia a la autorización de una actividad sin las indagaciones técnicas previas pertinentes y se resuelve el problema por la mecánica del acceso a mecanismos indemnizatorios. Claramente, según lo expuesto hasta acá, esta situación no solo vulnera el derecho fundamental a un ambiente sano y ecológicamente equilibrado, debido a que, además, lesiona el derecho fundamental de acceso a las fuentes del recurso hídrico, por lo que, en cuanto a este extremo, el amparo resultaba procedente.

B. El impacto socioambiental del proyecto de minería a cielo abierto. Ha sido recurrente, en la discusión de este caso, el argumento del beneficio social que acarrearía el proyecto, con el fin casi de acusar de mezquindad, en contra de la comunidad local –perteneciente a una zona de bajo desarrollo económico– a quien levante objeciones a la actividad. La noción de beneficio social, sin embargo, es altamente indeterminada, en parte porque tiene un componente axiológico: ¿qué es beneficioso o perjudicial?, pero además porque refiere a una colectividad que homogeniza (la sociedad), pese a su enorme diversidad y ser natural sede de intereses de toda clase, muchas veces contrapuestos. De este modo, hablar del beneficio social que causa una determinada actividad no es más que una fórmula vacía. Mientras no sea dotada de un contenido concreto, con necesario anclaje en la realidad que se evalúa, podría querer decir todo y nada.

El estudio de impacto ambiental es definido en el artículo 2° del Código de Minería como: “el análisis comparativo, técnico, económico, social, cultural, financiero, legal y multidisciplinario de los efectos de un proyecto sobre el entorno ambiental, así como la propuesta de medidas y acciones para prevenir, corregir o minimizar tales efectos.” En el estudio preparado por Muñoz Giró para el Ministerio del Ambiente, Energía y Telecomunicaciones en febrero de 2009, aprobado mediante oficio SG-ASA-259-2008 del 10 de octubre de 2008 de la Secretaría Técnica Nacional Ambiental (folio 1682 del expediente administrativo), sobre los efectos ambientales y beneficios sociales del proyecto de minería de oro a cielo abierto Crucitas, se contempló efectos negativos biofísicos (efectos sobre el medio natural que impactan sobre un recurso natural, con énfasis en el bosque) y sociales (efectos en la sociedad).

Entre los primeros se enlistó el valor comercial del bosque, el costo de oportunidad de crecimiento anual del bosque, la pérdida por biodiversidad, la pérdida por liberación de carbono y la pérdida por afectación de cursos de agua, para un total de $1.479.824,46. Se consideró como efectos sociales el valor de mercado del bosque, la pérdida por afectación de paisaje, fuentes de estudio, investigación y recreación, costo de la restauración general del área, para un total de $2.264.530,47 y la sumatoria de los dos rubros arroja el monto de $3.744.354,93. Se coteja esa suma de dinero con la inversión en medidas de compensación, mitigación y monitoreo propuestas, que ronda los $7.500.000 (800 hectáreas de bosque, 140 hectáreas de corredor biológico, 15 hectáreas reforestadas, mitigación y monitoreo, restauración); así como con aportes por compensación de los efectos sociales por $5.619.842,87 (compensación de belleza escénica de las 800 hectáreas de bosque, 140 hectáreas de corredor biológico y las 15 hectáreas reforestadas, aporte ambiental por donación venta árboles, fideicomiso de apoyo a las asociaciones comunales).

Ahora bien, dentro de los beneficios se incluyó: los aportes efectivos hasta 2008 a favor de la comunidad (por $5.580.103,08) con obras de mantenimiento y mejoramiento de la infraestructura, la construcción de una línea de transmisión eléctrica, proyectos de organización comunal y pymes, apoyo de servicios de salud y para adultos mayores, actividades recreativas y deportivas, material educativo y donaciones varias. Se contempló también, dentro de las contribuciones del proyecto, los salarios de los empleos directos, aportes a la seguridad social e ingresos por canon minero, sumando $140.030.000. Con base en los anteriores datos, el estudio concluye que hay una diferencia favorable de $154.036.000.

En cuanto a la metodología se explica que “se empleó un método de valoración directa, que se basa en precios o tarifas disponibles a partir de la observación del contexto actual o del mercado disponible, estimando el costo del uso de los recursos naturales” y la metodología para la evaluación económica de daños ambientales en Costa Rica de Barrantes y Di Mare para el Instituto de Políticas de Sostenibilidad (p. 24 del estudio), empleando fuentes oficiales de información como la Cámara Costarricense Forestal, Oficina Nacional Forestal, Ministerio de Agricultura y Ganadería, Banco Mundial, Banco Central y otras investigaciones. Se contó con ayuda de funcionarios del SINAC, el MINAET y la SETENA.

Llama la atención que dentro de los efectos negativos del proyecto no se incluyen sus secuelas ambientales a mediano y largo plazo, pese a que se ha reconocido que las desarrollará.

En el cuadro resumen del plan de gestión ambiental, se estipula que la fase de cierre y recuperación ambiental se extiende por 18 meses, lo que se ha demostrado, en la audiencia celebrada ante la Sala, que es totalmente irreal. En el caso de la minería metálica a cielo abierto, debe hacerse notar que el tiempo de recuperación suele ser extraordinariamente largo, e incluso, indefinido.

Un instrumento como el empleado para hacer la anterior comparación entre beneficios y costos es altamente manipulable. Combina variables que temporalmente no suceden en el mismo momento. Por ejemplo, la tala ocurrirá al inicio del proyecto y se le asigna un costo; la mitigación de algunos de los efectos no iniciará hasta después de finalizado el período de diez años de explotación y simplemente se le asigna el valor actual (por lo menos, no se especifica que haya indexación del monto). Se hace las valoraciones en dólares por ser una moneda evidentemente más estable que el colón, pero a diez años plazo o más, no permite una comparación cierta. De la misma forma, puntos que se plantean como beneficios, como son los salarios de los empleos directos, son proyectados a diez años plazo. La sola elaboración de los temas que han de considerarse beneficios o perjuicios es bastante subjetiva. Pondríamos en duda, por ejemplo, que los aportes a la seguridad social por empleos directos constituyan un beneficio que se deriva del proyecto. Se trata, más bien, del cumplimiento de un deber constitucional ineludible. El beneficio debería consistir en un componente adicional de ganancia social de la actividad, no el mero respeto de la normativa sobre seguridad social.

En cuanto al monitoreo se estipula una inversión anual de $446.000 durante la operación del proyecto, no en el período posterior al cese de actividades.

Como efectos sociales se consideró el precio de la madera, los efectos sobre la belleza escénica y el paisaje. Tales repercusiones se compensan con la protección, recuperación y reforestación de los bosques; conservación de los recursos naturales; y el establecimiento de un fideicomiso de apoyo de las comunidades del área de influencia de $4.600.000 a razón de $0,20 por cada tonelada de 23 millones de toneladas de mineral que se explotaría.

No hay un solo rubro, ni en lo biofísico ni en lo social, por efectos contaminantes de la explotación. Parte de una actividad absolutamente controlada y limpia. No se habla de contaminación del aire, la tierra o las aguas de la zona de influencia por drenaje ácido, ni por lixiviación con cianuro.

La estimación del costo total de restauración del recurso natural dependerá de sus características y de las actividades que deberán realizarse en la restauración. Cuanto más complejo sea el factor, más elementos por recuperar se presentarán.

En la minería metálica a cielo abierto la afectación del recurso natural es sumamente intensa y se da sobre la totalidad de los recursos, con supresión completa de los beneficios sociales que ellos representan.

La afectación principal ocurre sobre un período muy corto, aunque los elementos subsistentes, como el sustrato geológico y las aguas subterráneas continuarán siendo afectados por un período mayor.

El daño social en este supuesto se manifestaría en la pérdida de beneficios que el capital natural provee y que la sociedad aprovecha para el mejoramiento de su bienestar. Debería identificarse, entonces, de manera precisa, los beneficios sociales que se ven afectados por la alteración del recurso natural, lo cual no se plasma en el estudio analizado. El capital natural ofrece a la sociedad valores que pueden ser de uso actual (directo e indirecto) o de uso potencial (de opción o de existencia). La estimación del valor de un recurso natural en particular resulta, por ende, compleja e indirecta. Los costos de compensación deben estimarse mientras el recurso natural está en vías de restauración, o sea, desde que se inicia el daño hasta que el recurso natural sea recuperado satisfactoriamente.

Una actividad extractiva tan nociva, como la minería de oro a cielo abierto, tiene un costo ambiental y social tan alto, que es imposible que pueda resultar “rentable” para un país que ha puesto la defensa del ambiente como uno de sus estandartes más valiosos y que es medido y muy bien valorado internacionalmente gracias a dicho estandarte.

Desde la perspectiva ambiental, el valor de la vida y, de una cualidad concomitante, la diversidad de la vida constituye dos variables ambientales y sociales de valor inestimable desde el punto de vista económico.

La vida y la extraordinaria diversidad de la vida es un fenómeno único del planeta Tierra, dentro de lo que hasta ahora se conoce del Universo.

Al tratarse de un daño ambiental intenso, un alto costo social y tiempo de recuperación del daño ambiental excesivamente amplio, la actividad es prácticamente inviable desde esta perspectiva.

C. El respeto de las pautas jurídico constitucionales de protección del ambiente. Es incuestionablemente anejo a las repercusiones sobre diferentes componentes medioambientales de la zona, el fiel empleo de las herramientas jurídicas de fiscalización del ambiente, tema en el cual también se ha encontrado importantes inconsistencias en el presente caso.

C.1. Sobre el monto de la garantía ambiental. Según quedó acreditado en el expediente y en la vista oral y pública, el monto de la garantía ambiental para el proyecto minero Las Crucitas es de $600.000,00. Sin embargo, tal y como quedó evidenciado, ese monto resulta a todas luces escaso para paliar la totalidad de los invaluables daños ambientales que la extracción de minerales ocasionará en la zona donde se realizará la explotación. Esto se demuestra si se toma en cuenta que, según los datos aportados por los recurrentes, la regeneración de una hectárea de bosque, sembrada con una única especie vegetal, es decir, una hectárea monocultivada, tiene un costo de $500.000,00, es decir, una hectárea de terreno con un monocultivo prácticamente absorbería la totalidad de la pírrica garantía ambiental. Ese monto resulta, por demás, ridículo si se compara con el hecho de que la empresa Industrias Infinitos Sociedad Anónima pretende extraer entre 800.000,00 y 1.000.000,00 de onzas de oro, el cual se cotiza a más de $1.100,00 la onza, lo que deja ingresos totales que oscilarían entre los $880.000.000 y los $1.100.000.000,00, a lo que hay que sumar que esas ganancias podrían verse sensiblemente incrementadas si se pondera el hecho de que el oro ha reflejado una tendencia alcista durante los último años, pues pasó, hace unos 10 años, de poco más de $255.00 a, como se indicaba supra, más de $1.100,00 por onza.

Desde esa perspectiva, la garantía ambiental resulta inexplicablemente baja si se compara con los incalculables daños ambientales que el proyecto minero Las Crucitas podría originar en la zona norte de nuestro país. Evidentemente, el monto de la garantía ambiental ni siquiera alcanzará para iniciar el proceso necesario para llevar adelante la tarea de restauración de una zona que podría quedar devastada una vez que termine la fase extractiva de este proyecto. Es de suma importancia acotar que en la vista oral y pública, al momento de consultar a las autoridades de la Secretaría Técnica Nacional Ambiental y del Ministerio de Ambiente, Energía y Telecomunicaciones si ellos disponían de un monto presupuestado para hacer frente a un eventual desastre de carácter ambiental, ocasionado por el proyecto minero bajo examen, estos simplemente se limitaron a afirmar que ese monto no existía y lo único que se tenía era el dinero de la escasísima garantía ambiental, adicionalmente, al consultárseles si ellos tenían una estimación de cuánto podría significar en dinero la regeneración del medio ante una catástrofe, no hallaron respuesta para ofrecer, pues, claramente, estudios de ese tipo no se hicieron y no se tiene ni idea de cuál es el monto que puede costar la regeneración o contención de los efectos nocivos causados por el proyecto minero Las Crucitas en el supuesto de un siniestro ambiental.

A todo lo anterior debe sumarse el hecho de que en ningún momento se aportaron datos fehacientes sobre cuánto costará y quién deberá hacer frente al proceso de cierre técnico de la mina, que es vital si se pretende hacer de esta una actividad que no implique un impacto aún mayor para el medio, una vez que la empresa haya finalizado la fase extractiva, de forma tal que no se cuenta con la certeza para determinar el manejo que recibirá la zona de Las Crucitas una vez que Industrias Infinito Sociedad Anónima se haya marchado, y tampoco queda claro quién deberá hacerse cargo de ese proceso, aunque, claro está, esa sería, en último caso, una responsabilidad del Estado, es decir, terminaría el país pagando para regenerar el medio que fue dañado por particulares, luego de que estos obtuvieran las ganancias correspondientes y depositaran una garantía ambiental de $600.000,00 contra los más de $850.000.000,00 que se extraerán en oro.

Lo anterior es valioso para hacer ver que la garantía ambiental simplemente es ínfima frente a los daños que se pueden y de hecho se causarán al medio, y será una cantidad que simplemente no alcanzará para hacerle frente al deterioro que sufrirá el ambiente, lo cual constata que este proyecto no fue evaluado ni sopesado con la seriedad, profundidad y severidad requeridas, producto de los profundos e incalculables impactos que causará al medio. La realidad es una y los hechos no dan margen para especulación, el monto de la garantía ambiental será insuficiente para paliar los daños al medio, generar una estrategia de desarrollo para la zona de Las Crucitas luego del cierre de la mina, tratar los acuíferos contaminados y poner en marcha el proceso de cierre técnico, por citar cuatro de las más importantes tareas que se tienen de frente, una vez finalizada la actividad extractiva, obligaciones todas que derivan directamente del texto Constitucional que obliga al Estado a velar por una estrategia de desarrollo sostenible, dejada de lado en este caso.

Todo lo expresado hasta acá no se trata del producto de unas meras especulaciones sin sustento fáctico, por el contrario, la realidad y los hechos, adustos ambos, conceden que la actividad de extracción de minerales a cielo abierto no es sustentable desde el punto de vista ambiental y sus consecuencias en todo el mundo son imponderables, además de harto onerosas. Las experiencias en los países tropicales, como el nuestro, son aún más nefastas y están estrechamente relacionadas con la pobre y laxa regulación que, desde el punto de vista legal, se hace de una actividad tan impactante para el medio. De hecho, en Latinoamérica, no existe un solo caso de un país que se haya embarcado en la aventura minera y hubiera resultado indemne desde el punto de vista socio-ambiental. En suma, los $600.000,00 que componen la garantía ambiental para este proyecto resultan insuficientes y, más que eso, minúsculos, si se los compara con la laceración que sufrirá el medio a causa de este proyecto.

C.2. El proyecto no cuenta con viabilidad ambiental, pues no se realizó un nuevo estudio de impacto ambiental. Como quedó acreditado en el expediente y durante la vista oral y pública, el Proyecto Minero Crucitas no cuenta con un estudio de impacto ambiental aprobado y, por ende, no cuenta con la viabilidad ambiental otorgada por la Secretaría Técnica Nacional Ambiental, debido a que las modificaciones que sufrió el proyecto, en su diseño, fueron de tal significación que incrementó el volumen de material por extraerse en un 39%, pues, aun cuando el área a explotar se redujo en 76 hectáreas, de 126,4 a 50 hectáreas, lo que significa un decrecimiento del 60,31% en el área; Sin embargo, la profundidad aumentó considerablemente, pues pasó de 15 a 67 metros de excavación en el tajo, lo que se traduce en un aumento de la profundidad de un 446,67%. No obstante, estas modificaciones no fueron sometidas a un nuevo procedimiento de evaluación ambiental para examinar los impactos que el cambio de diseño generaría en el entorno, los cuales en este momento no han sido sometidos al riguroso tamiz de un Estudio de Impacto Ambiental, situación que no cuenta con explicación alguna y que, en la vista oral y pública, los funcionarios de la Secretaría Técnica Nacional Ambiental no lograron aclarar satisfactoriamente.

Lo anterior es relevante, pues si no se conoce el impacto que el proyecto minero causará en el ambiente, tampoco se puede conocer con certeza técnica y científica la forma en como mitigarlo, prevenirlo o recuperarlo, lo anterior es trascendental, si se toma en consideración que la empresa Industrias Infinito Sociedad Anónima tiene la intención de desarrollar una serie de medidas para paliar los efectos adversos que provocará el funcionamiento de la mina, pero, si no se han predicho metódica y sistemáticamente los efectos adversos que se producirán muy difícilmente estos podrán ser mitigados o evitados. Al respecto, la Sala Constitucional ha sostenido que:

“VI.- El estudio de impacto ambiental como instrumento de protección. Las normas ambientales deben tener un sustento técnico, pues su aplicación tiene que partir de las condiciones en las cuáles debe sujetarse el uso y aprovechamiento de los recursos naturales. Esto es así porque al ser los daños y contaminación del medio ambiente evaluables, el impacto de estos elementos requiere de una evaluación y tratamiento científico. Por ello, la necesidad de una evaluación de impacto ambiental que según determina el Reglamento General sobre los Procedimientos de Evaluación de Impacto Ambiental, consiste en un procedimiento administrativo científico-técnico que permite identificar y predecir cuáles efectos ejercerá sobre el ambiente, una actividad, obra o proyecto, cuantificándolos y ponderándolos para conducir a la toma de decisiones.” (Sentencia 2005-05544 de 15:38 horas de 10 de mayo de 2005. El destacado se suplió.).

Asimismo, el tratar específicamente el tema de la minería, en concreto al anular la concesión minera a la empresa Industrias Infinito Sociedad Anónima, por no contar con un estudio de impacto ambiental aprobado, la Sala, en la sentencia #2004-13414 de 09:29 horas de 26 de noviembre de 2004, consideró:

“V.- De la alegada violación al principio de prevención en el caso particular.- En este asunto la concesionaria Industrias Infinito S.A. aún y cuando no cuenta con la aprobación del estudio de impacto ambiental, ya tiene la concesión de explotación minera en la zona indicada. Sobre el punto se debe indicar que la concesión de explotación minera, sin haber obtenido la aprobación del estudio del impacto ambiental, - que constituye una medida para asegurarse de que la actividad que se aprueba no causará daños al ambiente -, riñe en consecuencia con el Principio de Prevención y la normativa citada del Código de Minería y el Decreto Ejecutivo N°29300-MINAE, que en su artículo 9 establece los requisitos para la concesión de explotación, entre los que está el estudio ambiental comentado. Expresamente dispone:“Artículo 9.- Requisitos para la concesión de explotación. ...

La solicitud debe constar de original y dos copias, conteniendo:a)... b) Resolución de la SETENA de la aprobación del Estudio de Impacto Ambiental correspondiente a la explotación propuesta y copia del estudio de impacto ambiental aprobado.c)...”. En este asunto, respecto al estudio referido, éste fue presentado por la concesionaria ante la autoridad correspondiente para su debida aprobación y fue rechazado mediante la resolución N° 272-2003-SETENA de las once horas cuarenta y cinco minutos del once de marzo del dos mil tres de la Secretaría Técnica Nacional Ambiental; resolución que fuera impugnada por la interesada. El Ministro de Ambiente y Energía resolvió el recurso de apelación mediante la resolución R-569-2003 MINAE, de las nueve horas treinta minutos del veinte de octubre del dos mil tres, que declarándolo con lugar, por constatar vicios en el procedimiento (folio 191) y ordenó retrotraer el procedimiento al momento en que se presentó el estudio de impacto ambiental por parte de la empresa Industrias Infinito S.A. En consecuencia, estima la Sala que la decisión de otorgar la concesión de explotación sin la aprobación del estudio de impacto ambiental puede originar daños en el medio ambiente que resultarían irreversibles y que luego, no quedaría más que lamentar y tratar de mitigar algunos de sus efectos, pudiendo haberse prevenido tal situación.

Precaución que como se dijo, se establece en la Conferencia de las Naciones Unidas sobre el Ambiente y Desarrollo de 1992 donde Costa Rica suscribió junto con otras naciones la Declaración de Río, para lo cual resulta preciso señalar el principio 15: “Con el fin de proteger el medio ambiente, los Estados deberán aplicar ampliamente el criterio de precaución conforme a sus capacidades. Cuando haya peligro de daño grave e irreversible, la falta de certeza científica absoluta no deberá utilizarse como razón para postergar la adopción de medidas eficaces en función de los costos para impedir la degradación del medio ambiente.” y el principio 17: “Deberá emprenderse una evaluación del impacto ambiental, en calidad de instrumento nacional, respecto de cualquier actividad propuesta que probablemente haya de producir un impacto negativo considerable en el medio ambiente y que esté sujeta a la decisión de una autoridad nacional competente”.

VI.Consecuente con el análisis hecho, en atención al principio de protección de los recursos naturales, específicamente al Principio Prevención que contempla la Declaración de Río sobre el Medio Ambiente y el Desarrollo, deberá la interesada, de conformidad con el procedimiento del Código de Minería y su Reglamento, como requisito para obtener la concesión de explotación de minerales, contar con la aprobación del estudio de impacto ambiental, en resguardo del criterio de precaución y principio in dubio pro natura. Observa además en este caso la Sala que, el Jefe del Departamento de Suelos y Evaluación de Tierras del Ministerio de Agricultura y Ganadería no ha podido rendir su criterio definitivo en el procedimiento de concesión de explotación minera, porque no cuenta con el Estudio de Impacto Ambiental en el que se haga referencia a las prácticas de recuperación de suelos; lo que hace innegable la utilidad de ese estudio para valorar la viabilidad de la concesión desde los distintos ángulos; y el acto de las autoridades recurridas de otorgar la concesión minera condicionando el desarrollo de la actividad extractiva al cumplimiento de los requisitos indicados en el Código de Minería, no resulta eficaz para cumplir la finalidad de preservar los recursos naturales y la integridad del medio ambiente y es contrario al Principio Precautorio en materia ambiental.”

Justamente, en este caso no se cuenta con un análisis que haya evaluado, con la profundidad de un estudio de impacto ambiental, las modificaciones sufridas en su diseño por el Proyecto Minero Las Crucitas, lo cual incluye, la utilización, a partir del cambio de diseño, de explosivos para poder intervenir la roca dura, que será aprovechada junto con la saprolita. Esa razón resulta más que suficiente, de acuerdo con la jurisprudencia de la Sala, para estimar el amparo, anular el Decreto Ejecutivo #34.801-MINAE y ordenar la realización de un estudio de impacto ambiental que analice las modificaciones sufridas en su diseño por el proyecto minero en cuestión.

C.3. La consecuencia directa del deficiente análisis de impacto ambiental del proyecto (omisión de elaborar un nuevo EsIA) es la nulidad de la concesión minera. La concesión de explotación, entendida como autorización para extraer los minerales no reservados para el Estado (121 inciso 14) b de la Constitución), de transformarlos y procesarlos y de disponer de ellos con fines industriales y comerciales, fue concedida, en este caso, mediante la resolución R-578-2001-MINAE del Ministerio del Ambiente y Energía de las 9:00 horas del 17 de diciembre de 2001, a favor de Industrias Infinito S.A., para la explotación de oro, plata, cobre y minerales asociados. El inicio de las actividades se supeditó a la posterior aprobación del Estudio de Impacto Ambiental.

En la sentencia #2004-13414 de las 9:29 horas del 26 de noviembre de 2004 declaró la Sala que la decisión de otorgar la concesión de explotación, sin la previa aprobación del estudio de impacto ambiental, podía originar daños ambientales irreversibles, por lo cual anuló el acto administrativo de concesión, bajo las siguientes consideraciones:

“…la decisión de otorgar la concesión de explotación sin la aprobación del estudio de impacto ambiental puede originar daños en el medio ambiente que resultarían irreversibles y que luego, no quedaría más que lamentar y tratar de mitigar algunos de sus efectos, pudiendo haberse prevenido tal situación. Precaución que como se dijo, se establece en la Conferencia de las Naciones Unidas sobre el Ambiente y Desarrollo de 1992 donde Costa Rica suscribió junto con otras naciones la Declaración de Río, para lo cual resulta preciso señalar el principio 15: "Con el fin de proteger el medio ambiente, los Estados deberán aplicar ampliamente el criterio de precaución conforme a sus capacidades. Cuando haya peligro de daño grave e irreversible, la falta de certeza científica absoluta no deberá utilizarse como razón para postergar la adopción de medidas eficaces en función de los costos para impedir la degradación del medio ambiente." y el principio 17: "Deberá emprenderse una evaluación del impacto ambiental, en calidad de instrumento nacional, respecto de cualquier actividad propuesta que probablemente haya de producir un impacto negativo considerable en el medio ambiente y que esté sujeta a la decisión de una autoridad nacional competente.” Por resolución #3638-2005-SETENA de las 9:25 horas del 12 de diciembre de 2005 se otorgó viabilidad ambiental al proyecto minero Crucitas, requiriéndole una garantía ambiental de $600.000, calculada a $3.000 por hectárea impactada por año, de acuerdo con lo establecido para proyectos mineros.

Por resolución #170-2008-SETENA de las 12:50 horas del 4 de febrero de 2008 se evaluó cambios al proyecto, principalmente en la profundidad de la extracción, que aumentó de 15 metros a 67 metros, en promedio, reduciéndose el área extractiva de 126,4 ha a 50 ha. Lo anterior, en vista de que Canadá (mercado de destino) no permite incluir los recursos mineros “inferidos o estimados” derivados de la saprofita, sino que debe también extraerse de la roca dura, lo que aumenta la calidad del oro y obliga a utilizar voladuras. Se aprobó la modificación y se ordenó conformar la comisión de fiscalización y monitoreo.

Posteriormente, por medio de la resolución R-217-2008-MINAE de las 15:00 horas del 21 de abril de 2008, se otorgó una nueva concesión de explotación minera a favor de la misma empresa por diez años para explotar iguales minerales. La licencia se condicionó, igualmente, a que el proyecto resultara ambientalmente viable.

Considero que la concesión vigente, de 2008, se otorgó en condiciones contrarias al derecho fundamental a un medio ambiente sano. Primero, porque se confirió, sin que se haya efectuado un nuevo estudio de impacto ambiental, comprensivo de las modificaciones planteadas por la empresa en diciembre de 2007, el cual es, a mi juicio, indispensable. El proyecto, que en este momento se pretende llevar a la realidad, es completamente distinto al que, en un inicio, se planteó ante la SETENA y al cual se le otorgó la correspondiente viabilidad ambiental, como resultado de la aprobación de una evaluación de impacto ambiental que fiscalizó obras diametralmente distintas a las que ahora se está intentando ejecutar. Pero, además, se autorizó la actividad sin que existiera un estudio integral elaborado por el SENARA de la afectación del recurso hídrico en la zona. A pesar de que existen estudios locales, sobre el área del proyecto, bastante específicos, no se efectuaron análisis regionales para determinar la influencia entre los mantos acuíferos, incluido el que será utilizado para la laguna de relaves.

Al estimar el amparo, la mayoría de la Sala se fundamenta, precisamente, en esa omisión, pero resulta contradictorio con la protección del ambiente tenerla por subsanada con un estudio propuesto por la firma minera interesada, con un simple aval del Gerente del Servicio Nacional mencionado. La Sala ha insistido, incluso recientemente (p. ej, en la sentencia #2008-15760 de las 14:30 horas del 22 de octubre de 2008), en que es contraria al Derecho de la Constitución la alteración de la secuencia de los actos de autorización de una actividad que repercute negativamente sobre el medio ambiente, fundamentalmente si implica dictar el acto administrativo declarativo de derechos a favor del particular antes de establecer con seguridad que esa actividad es sostenible. Tal inconsistencia temporal entre los actos de autorización opera en el presente asunto y, desde la óptica ambiental, es obligada consecuencia del análisis que se ha efectuado, la nulidad de la concesión.

En síntesis, el orden de las autorizaciones administrativas ambientales se trastocó y se echa de menos dos estudios neurálgicos: un estudio de impacto ambiental completo sobre el proyecto después de sus importantes modificaciones y un análisis profundo e integral del SENARA sobre el recurso hídrico en la zona. La consecuencia directa de lo anterior es la anulación de la concesión minera y el sometimiento del proyecto a nuevas evaluaciones, de impacto ambiental e hidrogeológica, para obtener su viabilidad y, no sería hasta que se determinara su inocuidad ambiental, que podría emitirse el acto de autorización para explotar los minerales.

C.4. Sobre el Decreto de Conveniencia Nacional, #34801-MINAET y el cambio de uso de suelo previsto en el artículo 19 de la Ley Forestal.

El tema de la conveniencia nacional de la actividad autorizada ha sido también objeto de vivas controversias ante este Tribunal. Tal conveniencia fue declarada en el Decreto Ejecutivo #34801-MINAET del 13 de octubre de 2008, basándose en que el artículo 19 inciso b) de la Ley Forestal permite el cambio de uso de suelo y la corta de árboles, en terrenos cubiertos de bosque y en áreas de protección, para los proyectos estatales o privados que el Poder Ejecutivo declare de Conveniencia Nacional, y que el artículo 6 del Código de Minería califica de utilidad pública la actividad minera. Se indica que el proyecto específico, de Industrias Infinito, S. A., traerá varios beneficios económicos a la comunidad de San Carlos y el gobierno central. En contraposición a los beneficios, en el Decreto se detalla que para la construcción y desarrollo del Proyecto Crucitas se requiere la corta de árboles en 191 Ha (7 782,66 m2) que poseen bosque, lo cual representa el 19.93 % del bosque existente en todas las propiedades, la corta de árboles en 66 Ha (9474,53 m2) en áreas de uso agropecuario sin bosque, lo cual representa el 14.00 % de las áreas de uso agropecuario sin bosque existente en todas las propiedades y la corta de árboles de 4 Ha (1 751,38 m2) que poseen plantaciones forestales, lo cual representa el 12.33 % de las plantaciones forestales existente en todas las propiedades.

Dentro de las especies forestales de la zona, se presentan algunas vedadas, de acuerdo con el voto de la Sala #2002-2486 de las 10:54 horas minutos del 8 de marzo de 2002 y el Decreto Ejecutivo #25700 del 15 de noviembre de 1996. En las resoluciones #2008-17292 de las 14:45 horas del 19 de noviembre del 2008 y #2008-17293 de las 14:46 horas del mismo día, estimó la Sala –con voto salvado mío y del Magistrado Cruz Castro– que el Decreto no podía examinarse en vía de inconstitucionalidad, por consistir en una declaratoria de conveniencia concreta y no de una disposición normativa, relegando a este proceso la definición de su conformidad con la Constitución. Vinculada con este caso, se dictó también la sentencia #2009-17155 de las 14:00 horas del 5 de noviembre del 2009, donde, entre varios puntos discutidos, la mayoría de la Sala reiteró el antecedente del pronunciamiento #2006-17126, en el sentido que los artículos 19 y 34 de la Ley Forestal no son contrarios al derecho a un ambiente sano y ecológicamente equilibrado, siempre y cuando no sea una autorización para que las instituciones públicas lesionen "legítimamente" el ambiente, ni tampoco impliquen establecer un régimen de excepción.

En aquella oportunidad se estableció claramente que la posibilidad del cambio del uso del suelo que se conoce, queda reservada únicamente para el patrimonio forestal privado, con lo cual, no se "afecta" el patrimonio natural del Estado (artículos 1, párrafo segundo y 18 de la Ley Forestal).

A mi juicio, y según las razones que he estipulado arriba de las serias consecuencias ambientales del proyecto, no hay un balance razonado entre los beneficios y los probables daños ambientales que van a derivar de él, con lo que su fundamentación es débil e inconstitucional. El efecto práctico de la emisión del Decreto en comentario es vaciar de contenido el derecho al medio ambiente, tal y como lo había plasmado la Sala en sus resoluciones #2002-2486 y #208-13426, anteriormente mencionadas. En ellas se defendió categóricamente la lapa verde, como especie en peligro de extinción, prohibiendo de forma inflexible la corta del almendro amarillo. La norma permite precisamente lo contrario y de ahí, repito, su inconstitucionalidad.

Señalé ya también, en mi voto salvado de la resolución #2009-17155, que las excepciones que permite el artículo 19 de la Ley Forestal quebrantan de manera flagrante el derecho al medio ambiente sano y ecológicamente equilibrado. No puede haber doble discursos ni hesitaciones en esta materia, se apuesta por la conservación o se prescinde de ella, en franco enfrentamiento a la Constitución y los instrumentos internacionales que buscan la protección del ambiente.

D. El incumplimiento del principio de participación ciudadana. En este caso, ha quedado demostrado que ha existido un flagrante incumplimiento del principio de participación ciudadana, lo anterior queda corroborado que se tome en cuenta que en el caso concreto se omitió por completo otorgar audiencia a la ciudadanía sobre las modificaciones realizadas al diseño en el proyecto minero en cuestión, de tal suerte que en ningún momento se ofreció la posibilidad de que los vecinos o, en general, los interesados que estuviera apersonados dentro del expediente pudieran emitir su criterio sobre las implicaciones sociales, ambientales, económicas y jurídicas que podrían tener los cambios realizados al diseño original presentado ante la Secretaría Técnica Nacional Ambiental y que había sido aprobado por ese órgano, de esa forma, al no otorgarse audiencia a la población, ese órgano vulneró este principio de profunda raigambre constitucional, sobre el cual la Sala ha señalado que:

“IX.- En virtud de lo anterior, el principio democrático tiene una triple connotación constitucional: en primer lugar, como característica esencial de nuestro Estado Social y Democrático de Derecho, que implica, una especial forma de elección de nuestros gobernantes, que se traduce en el sistema de democracia representativa, participativa y pluralista, como el ejercicio indirecto del Poder a través de los diversos puestos de elección popular; en segundo lugar, como fuente o parámetro de interpretación, en tanto se constituye en la fuente y norte del régimen jurídico, al permear todo el ordenamiento y formas jurídicas, de modo que se impone como principio rector en la organización política del Estado y de todas las formas de organización colectiva (como sucede con la integración de los órganos colegiados de los entes corporativos, tanto de las municipalidades, como los colegios profesionales y corporaciones de producción) y, la representatividad en su instrumento pragmático de realización; y en tercer lugar, como verdadero derecho, y en esa condición, justiciable ante instancias administrativas y jurisdiccionales, como sucede respecto del sistema de las cuotas femeninas (ante el Tribunal Supremo de Elecciones) a fin de lograr el cuarenta por ciento de la representación, tanto en las candidaturas de puestos elegibles, como en la organización de los partidos políticos; o en lo que respecta a la participación de los vecinos de la localidad afectada en la celebración de la audiencia oral y pública prevista dentro de los procedimientos de estudio de impacto ambiental (sentencias número 2000-9060, de las diez horas veintisiete minutos del trece de octubre del dos mil y número 2001-05737, de las catorce horas cuarenta y un minutos del veintisiete de junio del dos mil uno).

(…) las autoridades públicas, siempre y dentro de la medida de lo posible, deben promover y fomentar la participación ciudadana en la toma de decisiones, pues ello no es más que el reconocimiento del carácter democrático de la sociedad costarricense.” (sentencia 2003-03475 de las 08:56 horas de 2 de mayo de 2003).

La obligación estatal de alentar la intervención de las personas en los asuntos relacionados con la explotación del medio no es un mero deseo o el fruto de una interpretación alejada de las normas constitucionales, sino que encuentra sustento en disposiciones de diverso rango dentro de nuestro sistema de fuentes, al respecto, la Constitución Política, en sus numerales 1 y 9, señala:

“Artículo 1.- Costa Rica es una República democrática, libre e independiente.

Artículo 9.- El Gobierno de la República es popular, representativo, participativo, alternativo y responsable. Lo ejercen el Pueblo y tres Poderes distintos e independientes entre sí. El Legislativo, el Ejecutivo y el Judicial.”. (El destacado se suple).

Por otra parte, la Declaración de Río, en su principio 10, dispone:

“El mejor modo de tratar las cuestiones ambientales es con la participación de todos los ciudadanos interesados, en el nivel que corresponda. En el plano nacional, toda persona debe tener adecuada formación sobre el medio ambiente que dispongan las autoridades públicas, incluida la información sobre los materiales y las actividades que encierran peligro en sus comunidades, así como la oportunidad de participar en los procesos de adopción de decisiones. Los Estados deberán facilitar y fomentar la sensibilización y la participación de la población poniendo la información a disposición de todos. Deberá proporcionarse acceso efectivo a los procedimientos judiciales y administrativos, entre éstos el resarcimiento de daños y los recursos pertinentes.”. (El destacado lo agregó el magistrado ponente).

Finalmente, la Ley Orgánica del Ambiente, número 7554, en sus numerales 22 y 23, deja clara la obligación de respetar y promover la participación de la gente en los asuntos ambientales, al respecto, prescriben:

“ARTÍCULO 22.- Expediente de la evaluación. Las personas, físicas o jurídicas, públicas o privadas, tendrán el derecho a ser escuchadas por la Secretaría Técnica Nacional Ambiental, en cualquier etapa del proceso de evaluación y en la fase operativa de la obra o el proyecto. Las observaciones de los interesados serán incluidas en el expediente y valoradas para el informe final.

Dentro de los cinco días hábiles siguientes al recibo de una evaluación de impacto ambiental, la Secretaría Técnica Nacional Ambiental remitirá un extracto de ella a las municipalidades en cuya jurisdicción se realizará la obra, la actividad o el proyecto. Asimismo, le dará profusa divulgación, por los medios de comunicación colectiva, a la lista de estudios sometidos a su consideración.

ARTÍCULO 23.- Publicidad de la información. La información contenida en el expediente de la evaluación de impacto ambiental será de carácter público y estará disponible para ser consultada por cualquier persona u organización.

No obstante, los interesados podrán solicitar que se mantenga en reserva información integrada al estudio, si de publicarse afectare derechos de propiedad industrial.” En este caso se celebró audiencia pública el 31 de julio de 2004 en el Salón Comunal de Coopevega (hecho probado 14), acto temporalmente muy distante de la modificación del proyecto, aprobada el 4 de febrero de 2008 por la Secretaría Técnica Nacional Ambiental. Es decir, que en el momento en que se celebró la audiencia no fue posible discutir las variaciones de la propuesta minera. Reitero que la importancia y peso de las modificaciones obligaban a repetir estos pasos, incluida la audiencia pública. Lo contrario implica que el momento en que los interesados pudieron preguntar, objetar y comentar el plan, este presentaba diferencias relevantes de lo que finalmente se aprobó. Con ello, se vulneró el principio de participación, uno de los pilares dentro de los procedimientos tendientes al otorgamiento de la viabilidad ambiental. No puede excluirse al ser humano que recibirá las consecuencias de las decisiones gubernamentales en materia ambiental, de la participación en la toma de decisiones en los asuntos vinculados con esta materia.

En suma, por las consideraciones expuestas es que salvo mi voto y declaro con lugar el amparo, dejando sin efecto la resolución de la Secretaría Técnica Nacional Ambiental que confiere viabilidad ambiental al proyecto (#170-2008-SETENA del 4 de febrero de 2008), la resolución del Ministerio del Ambiente, Energía y Telecomunicaciones que autorizó la concesión minera (R-217-2008-MINAE del 21 de abril de 2008) y el Decreto Ejecutivo #34801-MINAET del 13 de octubre de 2008, que declaró el proyecto de conveniencia nacional, a efecto de permitir la tala de especies forestales vedadas, como el almendro amarillo.

Gilbert Armijo S.

Voto particular del Magistrado Cruz Castro.

Disiento del voto de mayoría en varios de los temas planteados; considero que en un caso tan complejo como el que se plantea mediante este recurso de amparo, se evidencia la violación a varios derechos fundamentales, según se expondrá.

A. Sobre cómo la autorización y la tala del almendro amarillo En este aspecto existe una lesión al derecho al ambiente, destacando, además, que se contraviene la jurisprudencia de esta Sala que había establecido la prohibición de tala del almendro amarillo en todo el territorio nacional, sin excepción alguna.- El voto de mayoría hace una distinción que no es consecuente con la jurisprudencia de esta Sala respecto de la tala del almendro amarillo, pues prohíbe su tala únicamente en los lugares de anidación de la lapa verde, entendiéndose que es permitida –previo permiso- en lugares donde no anide la lapa verde. Sin embargo, esta distinción no es admisible, conforme a los siguientes argumentos: Primero, en la resolución anterior de esta Sala, número 2002-02486 de las 10:54 horas del 8 de marzo de 2002, se dijo expresamente que “por su relación con el árbol de almendro, también se debe impedir su tala en todo el territorio, claro está que ello debe respetarse principalmente en las zonas donde se encuentra el hábitat óptimo para la sobrevivencia de dicha especie” , con lo cual resulta claro el mandato –que no admite excepciones- que hizo previamente esta Sala en cuanto a la prohibición absoluta de la tala del almendro amarillo en todo el territorio nacional.

De igual forma, la parte dispositiva de la resolución número 2008-13426, de las 09:33 horas del 02 de setiembre de 2008 ordenó prohibir el trámite de permisos para el aprovechamiento, explotación o extracción del almendro amarillo mientras este árbol esté en la lista de especies amenazadas, literalmente se dispuso: “Se prohíbe a ese funcionario dar inicio o continuar cualquier procedimiento tendiente al aprovechamiento, explotación o extracción del almendro amarillo (dipteryx panamensis) mientras este árbol y la lapa verde (ara ambigua) se encuentren en la lista de especies amenazadas o en peligro de extinción”. Conforme a este criterio y su contenido esencial, no es admisible el argumento con el que se autoriza la tala, asumiendo que esta acción es legítima constitucionalmente, porque no se pretende el aprovechamiento, explotación o extracción de la madera. Claramente no es la finalidad última de la tala la que sustenta su prohibición, sino el simple hecho de la tala en sí; el destino que se le dé a los árboles cortados, es una cuestión secundaria que no puede llevar jamás a afirmar que si la finalidad de la tala no es la explotación, entonces sí se autoriza tal acción.

No son las consecuencias eventuales, como el aprovechamiento de la madera, la que determina la tutela del almendro amarillo. En este punto disiento del argumento expuesto en el voto de mayoría. Segundo, siendo clara la obligación del Estado de velar por la supervivencia de las especies en peligro de extinción, y tendiendo presente que el almendro amarillo es una especie declarada en amenaza de extinción, se deriva, inevitablemente de tales presupuestos, que el Estado debe velar por la supervivencia del almendro amarillo en todo el territorio nacional, impidiendo su tala, sin que importe si tal acción se realiza con una finalidad ulterior. Lo que se indica en la sentencia de mayoría en el sentido que “la escasa o nula afectación ambiental con la corta de 197 árboles sobre una población de más de 700 individuos, partiendo que los árboles de almendro a cortar no son bosque primario sino secundario y joven, y que el plan establecido que ya se estaba cumpliendo a ese momento, implica la siembra de 103 almendros por cada árbol de esa especie que sea cortado” no modifica la grave amenaza de extinción que se cierne sobre el almendro; la siembra de árboles nuevos –contra la tala anterior- no compensa los efectos del acto mediante el cual se procedió a la tala de una especie en amenaza de extinción.

En materia de medio ambiente los bienes tutelados no son fungibles. Nótese que en esta materia tan delicada, vulnerable y sensible como son los daños al ambiente, qué sentido tendría la resiembra de árboles, si para cuando estos ya hayan crecido al estado de los árboles talados, ya se habrán lesionado las especies que dependían de dicho hábitat. Tercero, el almendro amarillo merece una protección per se, que si bien resulta reforzada por su relación con la lapa verde, no puede desconocerse que es también una especie por sí misma, parte de la naturaleza, declarada en peligro de amenaza de extinción, que también merece protección por sí mismo. No es posible justificar la tala del almendro en los “sitios donde no anide el ave”, aún contando con los permisos, porque tal criterio no sería consistente con el expuesto en los precedentes de esta Sala, según votos 2002-002486 y 2008-013426.

En conclusión, considero que según la línea jurisprudencial que había mantenido esta Sala en anteriores oportunidades, existe una prohibición absoluta y total de tala del almendro amarillo en todo el territorio nacional. Por lo tanto, al haberse comprobado en este recurso de amparo que el 17 de octubre del 2008 SETENA autorizó la corta de 197 árboles de almendro, y al haber la empresa recurrida procedido con dicha corta, resulta evidente la violación al derecho al ambiente, pues con ello se sitúa en posición de riesgo o amenaza al almendro amarillo y se compromete la existencia de la lapa verde, por lo que el recurso debe ser declarado CON lugar en cuanto a este extremo.

B. La variación del proyecto sin exigir estudio de impacto ambiental y consulta ciudadana. Sobre la aprobación de la modificación del proyecto original sin contar un nuevo estudio de impacto ambiental y sin convocar nuevamente a un proceso de audiencia pública, estimo que es violatorio del derecho al ambiente y del derecho de participación ciudadana.- Ciertamente, tal como lo consigna el voto de mayoría, “El reconocimiento del derecho a un ambiente sano y ecológicamente equilibrado, la aplicación del referido principio precautorio, y el consecuente desarrollo normativo en materia de protección ambiental, impone el cumplimiento de diferentes requisitos y procedimientos que permiten a la administración conocer el impacto real que la ejecución de actividades y obras –públicas o privadas- puede tener sobre el ambiente, para una vez adquirida la certeza correspondiente, autorizar o improbar su realización.”, de lo cual se desprende que es necesario que el Estado conozca el impacto que tendrá sobre el ambiente la ejecución de obras y actividades –públicas o privadas-, previo a autorizarlas o aprobarlas.

En este sentido, también coincido con lo que se afirma en el voto de mayoría al aseverar que “La realización de las evaluaciones ambientales ha sido reconocida por esta Sala igualmente como un principio rector en materia ambiental, de donde resulta que su observancia y aplicación es irrestricta para asegurar la debida protección del ambiente.”, de donde se desprende que, la exigencia de las evaluaciones ambientales -como aquel procedimiento administrativo científico-técnico que permite identificar y predecir cuáles efectos ejercerá sobre el ambiente, una actividad, obra o proyecto, cuantificándolos y ponderándolos para conducir a la toma de decisiones- comprende varias fases, entre ellas la confección de un Estudio de Impacto Ambiental (EsIA), cuando se trate de actividades, obras o proyectos calificados de alta significancia. En el caso que se analiza, estando ya otorgada la viabilidad ambiental al proyecto, y a punto de vencerse el plazo de validez de dicha viabilidad (otorgada el día 12 de diciembre del 2005 por un plazo de validez de dos años, a vencer el 12 de diciembre del 2007) la empresa presentó ante SETENA, el 06 de diciembre de 2007, lo que denominó “Propuesta de Modificación al Proyecto Minero Crucitas”, aprobándose esta propuesta mediante decisión de la Comisión Plenaria, según resolución número 170-2008-SETENA, de 04 de febrero de 2008.

Sin embargo, tal aprobación se otorga sin contar con un nuevo estudio de impacto ambiental y sin convocar nuevamente a un proceso de audiencia pública. En este asunto resulta evidente que una modificación a un proyecto de tal envergadura, requería algo más que “una Declaración Jurada de Compromisos Ambientales de carácter unilateral” o una serie de “documentos técnicos que respalden la modificación propuesta”. Estas exigencias resultan insuficientes ante un proyecto de tanta trascendencia. Por esta razón considero que lo procedente y necesario, para la mejor protección del derecho al ambiente, era la presentación de un nuevo estudio de impacto ambiental, donde la administración pública tuviera una participación más activa, valorando la dimensión e impacto de los cambios propuestos. Respecto de las características del proyecto, tratándose de minería metálica a cielo abierto, no basta la aprobación de lo que presentó la empresa.

Además, nótese la obligatoriedad de volver a convocar a una audiencia pública, partiendo de la reiterada jurisprudencia de esta Sala relacionada con el derecho fundamental de participación pública en la decisión de los asuntos relacionados con el medio ambiente, que este Tribunal Constitucional ha derivado de la correlación de los artículos 9 y 50 de la constitución política. Respecto de los principios constitucionales mencionados, se afirma en la sentencia número 2008-015760 de las catorce horas treinta minutos del veintidós de octubre de dos mil ocho:

“VIII.- SOBRE LA INFRACCIÓN AL DERECHO DE PARTICIPACIÓN PÚBLICA EN LA DECISIÓN DE LOS ASUNTOS RELACIONADOS CON EL MEDIO AMBIENTE. CORRELACIÓN DE LOS ARTÍCULOS 9 Y 50 DE LA CONSTITUCIÓN POLÍTICA. (…) Sobre el particular y a partir del desarrollo realizado en torno a la importancia de la EIA, cabe reiterar que, según la más calificada doctrina, la evaluación es un procedimiento principalmente participativo para la ponderación anticipada de las consecuencias ambientales de una decisión para aprobar o denegar determinado proyecto. Según la doctrina, el estudio de impacto ambiental apareció, desde sus orígenes, relacionado con la tradición anglosajona de las encuestas y audiencias públicas, por lo que se debe resaltar la garantía que a lo largo de la evaluación y, en sus distintos momentos, serán oídos los afectados por la decisión final, que pueden ser no sólo las comunidades o sujetos inmediatamente involucrados, sino grupos que defienden intereses difusos, como lo es la oportuna protección al medio ambiente. Sobre la promoción de la participación pública en relación a los temas ambientales, la Declaración de Río dispone lo siguiente:

“PRINCIPIO 10 El mejor modo de tratar las cuestiones ambientales es con la participación de todos los ciudadanos interesados, en el nivel que corresponda. En el plano nacional, toda persona deberá tener acceso adecuado a la información sobre el medio ambiente de que dispongan las autoridades públicas, incluida la información sobre los materiales y las actividades que encierran peligro en sus comunidades, así como la oportunidad de participar en los procesos de adopción de decisiones. Los Estados deberán facilitar y fomentar la sensibilización y la participación de la población poniendo la información a disposición de todos. Deberá proporcionarse acceso efectivo a los procedimientos judiciales y administrativos, entre éstos el resarcimiento de daños y los recursos pertinentes.” La Carta Mundial de la Naturaleza citada supra, en el principio No. 23 dispone lo siguiente:

“23- Toda persona, de conformidad con la legislación nacional, tendrá la oportunidad de participar, individual o colectivamente, en el proceso de preparación de las decisiones que conciernan directamente a su medio ambiente y, cuando este haya sido objeto de daño o deterioro, podrá ejercer los recursos necesarios para obtener una indemnización.” En el plano interno, la Ley Orgánica del Ambiente dispone lo siguiente:

“Artículo 22.- Expediente de la evaluación Las personas, físicas o jurídicas, públicas o privadas, tendrán el derecho a ser escuchadas por la Secretaría Técnica Nacional Ambiental, en cualquier etapa del proceso de evaluación y en la fase operativa de la obra o el proyecto. Las observaciones de los interesados serán incluidas en el expediente y valoradas para el informe final.

Dentro de los cinco días hábiles siguientes al recibo de una evaluación de impacto ambiental, la Secretaría Técnica Nacional Ambiental remitirá un extracto de ella a las municipalidades en cuya jurisdicción se realizará la obra, la actividad o el proyecto. Asimismo, le dará profusa divulgación, por los medios de comunicación colectiva, a la lista de estudios sometidos a su consideración.

Artículo 23.- Publicidad de la información La información contenida en el expediente de la evaluación de impacto ambiental será de carácter público y estará disponible para ser consultada por cualquier persona u organización.

No obstante, los interesados podrán solicitar que se mantenga en reserva información integrada al estudio, si de publicarse afectare derechos de propiedad industrial.” Por su parte, la Ley de Biodiversidad dispone, en lo que interesa, lo siguiente:

“Artículo 95.- Audiencias públicas La Secretaría Técnica Nacional deberá realizar audiencias públicas de información y análisis sobre el proyecto concreto y su impacto, cuando lo considere necesario. El costo de la publicación correrá a costa del interesado.

La participación es todo proceso que involucra a la sociedad en la adopción de propuestas, solución de problemas y toma de decisiones en relación a la aprobación de determinada actividad o proyecto.” En la sentencia No. 10693-2002 de las 18:20 hrs. del 7 de noviembre de 2002, este Tribunal Constitucional destacó que la garantía de la participación ciudadana es un instrumento que dota a los ciudadanos del poder para hacer efectivo su derecho a un medio ambiente sano, de ahí que sea parte intrínseca de las garantías consagradas en el artículo 50 de la Constitución Política. En dicha resolución se dispuso lo siguiente:

“(...) considera esta Sala que derivado propiamente del marco democrático que informa todo el ordenamiento y que se encuentra dado por el artículo primero de la Constitución Política, en conjunción con el derecho a un medio ambiente sano establecido en el artículo 50 de dicha Carta, además de los instrumentos internacionales y las normas legales respectivas, es necesario extraer como cierta la presencia de un derecho de todas las personas a la participación en la toma de decisiones que incumben asuntos de interés público, en este caso la protección del ambiente. Este derecho a participar, se constituye entonces como un instrumento esencial de los habitantes para hacer valer su derecho a un ambiente sano, sin embargo, no puede entenderse el mismo como un mero ejercicio de una opinión, pues contrariamente a lo que se podría considerar a primera vista, esta participación exige ser entendida en forma amplia, por lo que consecuentemente, la misma implica tres dimensiones básicas –como lo reconoce la Declaración de Río de 1992–: el derecho de acceso a la información, el derecho a la participación “per se” y el derecho de acceso a la justicia en materia ambiental.

Estas tres dimensiones contienen a su vez, una serie de derechos básicos de orden procesal –tanto en sede administrativa como judicial– que en conjunto aseguran a las personas que sus opiniones no se convertirán en un ejercicio vacío y retórico de la libertad de opinión, y que por el contrario, efectivamente serán tomadas en cuenta por la autoridad pública.

(...)

ii.– El derecho a la participación pública. Implica esta vertiente, la posibilidad para aquellas personas que puedan verse afectadas o que tengan interés sobre una decisión referente al ambiente, a manifestar desde temprano sus criterios, opiniones, puntos de vista o cuestionamientos sobre la misma, sin tener estas que encontrarse sometidas a formalidades específicas para llegar a ser tomadas en cuenta. Consecuentemente, la información que se dé al administrado debe contener resúmenes no técnicos, que permita a las personas comprender la magnitud de la discusión. Asimismo, conlleva a la existencia de adecuados plazos para, de previo a la participación, se lleve a cabo una etapa para que los ciudadanos se informen.

El derecho de participación dentro del procedimiento de evaluación de impacto ambiental. Esta Sala en un reciente precedente (ver sentencia número 2002-06466 de las quince horas cincuenta minutos del dos de julio de dos mil dos) ha establecido que la obligación de la evaluación previa de impacto ambiental, se deriva como una consecuencia necesaria del artículo 50 de la Constitución Política, siendo establecido en el artículo 17 de la Ley Orgánica del Ambiente (...)

El procedimiento de evaluación de impacto ambiental, se caracteriza por ser un procedimiento administrativo con una nota diferenciadora, pues lo que busca es eludir o minimizar la eventual configuración de un daño ambiental, dentro de la ejecución de actividades sobre las que existe certeza acerca del efecto perjudicial que éstas producirían sobre el ambiente, de llevarse a cabo sin mediar contención alguna. En otras palabras, este instrumento corresponde a la materialización del principio de prevención, por cuanto ante una actividad que se sabe de antemano que es dañosa para el ambiente, el interesado propone una serie de medidas tendientes a evitar o mitigar el detrimento ecológico, al órgano o ente público –en este caso la SETENA– que se encarga de determinar si las mismas son las más adecuadas para tal fin. Por consiguiente, dado que este procedimiento lo que persigue en todo momento es el prever cualquier consecuencia negativa, a través de un amplio flujo de información, resulta natural entender que una de sus características es que las personas que puedan verse afectadas por el desarrollo del proyecto puedan aportar datos o puntos de vista fundamentales, que las autoridades competentes a raíz de una conducta omisiva o arbitraria podrían ignorar o dejar de lado, desprotegiendo consecuentemente al ambiente.

Es así como el principio o derecho de participación implica dentro del procedimiento de evaluación de impacto ambiental, un alto grado de publicidad, al punto de que cualquier acto o solicitud que tenga un efecto significativo sobre el resultado final del mismo, debe ser de alcance general para todos los interesados, de modo que estos puedan ejercer sus opiniones en cualquier momento y no ser encasillados a un momento procesal determinado. El papel de la población como defensor de un ambiente sano, va desde ‘la cuna hasta la tumba’, es decir, desde el inicio de la actividad productiva como proyecto, hasta el fin de su vida útil, por lo que no sería admisible que en una explotación encaminada a durar por un período de tiempo indefinido, inclusive décadas –como es el caso de los proyectos hidroeléctricos–, y de consecuencias irreversibles, se limite la participación de aquellos sectores sociales que puedan verse afectados, a una etapa procesal, que como una audiencia, puede durar sólo unas cuantas horas.

Así, en razón de su naturaleza preventiva, es exigible que desde el mismo momento de su inicio, un proyecto sometido a evaluación de impacto ambiental deba ser puesto en conocimiento de la población a efectos de iniciar un fenómeno abierto de participación. (...)” Lo que se encuentra resaltado no corresponde al original.

“… En virtud de lo expuesto, llevan razón los diputados consultantes puesto que la regulación que se pretende aprobar en el seno de la Asamblea Legislativa difiere el derecho a la participación ciudadana a un momento posterior a que se haya otorgado la concesión para la construcción, operación y administración de las marinas turísticas. En consecuencia, limita intensamente los derechos de los interesados a pronunciarse en relación a la conveniencia del proyecto en cuestión. Si bien, el artículo 9 del proyecto de ley prevé un procedimiento de consulta, audiencias públicas y oposiciones ante las autoridades competentes de otorgar la concesión, lo cierto es que, para ese momento, se carece de la información técnica apropiada de profesionales en la materia, que permita una participación fundamentada de parte de los interesados. Como se ha desarrollado a lo largo de esta consulta, la Evaluación de Impacto Ambiental se caracteriza por ser por un proceso de flujo de información relacionado con la conveniencia del proyecto, los eventuales efectos y los daños que se procuran minimizar.

En consecuencia, realizar un procedimiento consultivo sin contar de previo con información apropiada de parte de profesionales en la materia, limita, sensiblemente, el derecho de las personas de participar activamente en el procedimiento que se analiza por carecer, hasta ese momento, de la información necesaria para oponerse o apoyar el proyecto que se trate. En efecto, se realiza una etapa consultiva sin que, hasta ese momento, se ponga en conocimiento de la ciudadanía el detalle del proyecto así como los eventuales efectos sobre el medio ambiente, siendo que, como se analizó en la sentencia supra citada el acceso a la información es un elemento trascendental al promover el derecho a la participación. Dicho propósito es destacado, igualmente, en el Reglamento General sobre los Procedimientos de Evaluación de Impacto Ambiental (EIA), el cual, pone en evidencia que la intención de la audiencia que se realiza en el marco del EIA, es, precisamente, informar a la sociedad civil sobre la actividad, obra o proyecto que se pretende desarrollar y sus impactos (ver artículo 3, inciso 12).

A la luz de lo anterior, postergar la Evaluación de Impacto Ambiental a un momento posterior al otorgamiento de la concesión, limita, sensiblemente, el derecho a la participación de las personas en relación a la defensa de un interés difuso, como lo es la efectiva y oportuna protección del medio ambiente. “ Tomando en cuenta el precedente mencionado, es evidente que la modificación del proyecto minero Crucitas requería, no sólo de un nuevo estudio de Impacto Ambiental, sino que era necesaria la convocatoria a una nueva Audiencia Pública. Según se dijo en la sentencia transcrita, el procedimiento de evaluación de impacto ambiental es un instrumento que corresponde a la materialización del principio de prevención, por cuanto ante una actividad que se sabe de antemano que es dañosa para el ambiente, el interesado propone una serie de medidas tendientes a evitar o mitigar el detrimento ecológico, al órgano o ente público –en este caso la SETENA– que se encarga de determinar si tales medidas son las más adecuadas para tal fin.

Por consiguiente, toda persona que pueda verse afectada por el desarrollo del proyecto puedan aportar datos o puntos de vista fundamentales. Así entonces, Setena no solicitó un Estudio de Impacto Ambiental (EsIA) completo al variarse el diseño del Proyecto Crucitas presentado en diciembre del 2007 por la empresa (según el cual se modifica la extracción de 8.5 a 22 millones de toneladas en el total de rocas y suelo extraídos, multiplicándose por seis la profundidad de extracción), sino que lo aprueba el 04 de febrero del 2008, sin antes haber convocado nuevamente a audiencia pública, tal como lo hizo inicialmente, violándose así el derecho al ambiente y el derecho de participación ciudadana. Tómese en cuenta que, para quien suscribe este voto, la convocatoria a la ciudadanía es responsabilidad de SETENA y nunca puede considerarse que reuniones convocadas por la empresa interesada con algunos grupos de la comunidad, puedan suplir dicha obligación constitucional.

Nótese además que la modificación presentada implicaba, entre otros, un cambio drástico en la profundidad de las excavaciones, que pasarían de 15 metros a 67 metros (ver la resolución no.170-2008-SETENA del 04 de febrero del 2008 donde aprueba la modificación al proyecto), lo cual requería nuevamente de un estudio de impacto ambiental. El plazo de aprobación de la modificación, dos meses después de presentada, es a todas luces insuficiente para realizar las valoraciones que las modificaciones ameritaban. No existe ninguna evidencia clara que demuestre que exista una similitud esencial entre el alcance y contenido del proyecto original y la modificación posterior, por esta razón un control técnico tan trascendental como el estudio de impacto ambiental y de igual forma, un control político tan importante como la consulta a los ciudadanos, no podían soslayarse.

C. La insuficiencia y debilidad del cálculo sobre el costo medioambiental del proyecto. A partir de la simplificación y las omisiones en torno a la declaratoria del proyecto como de interés nacional, se evidencian contravenciones al bloque de constitucionalidad.- La declaratoria de conveniencia nacional del proyecto minero fue uno de los requisitos necesarios para otorgar la autorización del cambio de uso de suelo en el inmueble donde la empresa recurrida desarrolla el proyecto, toda vez que tales terrenos se encontraban clasificados como de cobertura boscosa. En este sentido, en virtud de lo establecido en el inciso b) del artículo 19 y el artículo 34 de la Ley Forestal, si el Poder Ejecutivo declara el proyecto de conveniencia nacional, se elimina la prohibición de cambio de uso de suelo. Ahora bien, de acuerdo a la normativa legal y reglamentaria (véase el inciso m del artículo 3 de la Ley Forestal) para que el Poder Ejecutivo proceda con dicha declaratoria, debe tenerse por acreditado que los beneficios sociales del proyecto son mayores que los costos socio-ambientales.

Por ello, es cierto, como lo dice el voto de mayoría que “En definitiva, si el Poder Ejecutivo estima que un proyecto minero puede o debe ser declarado de conveniencia nacional, deberá tener por acreditada la superioridad de los beneficios sobre los costos mediante la aplicación de los procedimientos o instrumentos apropiados.” Sin embargo, es justamente en este aspecto en que planteo mi voto disidente, pues el decreto del Poder Ejecutivo no fundamenta de forma debida, suficiente y certera que el proyecto minero en cuestión conlleve más beneficios que costos. Y los argumentos que brindan los recurridos para tener por cumplido este requisito -que resulta trascendental para este Magistrado, entratándose de materia tan sensible como la ambiental- resultan inadmisibles, tal como se explica. En primer lugar, el informe de valoración económica de efectos ambientales y beneficios sociales realizado por Juan Muñoz Giró, si bien es cierto concluye que los beneficios son mayores a los costos, fue realizado en febrero del 2009 cuando el decreto data del 17 de octubre del 2008.

Es decir, este informe no puede venir a sustentar el decreto pues, no sólo el informe es emitido con posterioridad a la entrada en vigencia del decreto, sino que además, dicho informe es realizado hasta con posterioridad a la solicitud de prueba para mejor resolver que hiciera esta Sala el 25 de noviembre del 2008. En segundo lugar, no puede asumirse que, por el sólo hecho de contar el proyecto minero en cuestión con viabilidad ambiental, debe suponerse que con ello queda ya demostrada la superioridad de los beneficios respecto de los costos, tal como lo hace la Secretaria de SETENA mediante oficio SG-ASA-259-2008 del 10 de octubre del 2008. En este sentido, el fundamento que debió haber quedado demostrado en el decreto en cuestión, no queda suplido per se por el hecho de contar con la viabilidad ambiental. Máxime cuando, según se dijo en el párrafo anterior, el proyecto original fue modificado sin contar con una audiencia pública previa y sin que se realizara un nuevo estudio de impacto ambiental.

En tercer lugar, del examen minucioso de lo que dice el decreto en cuestión, se observa que los únicos considerandos referidos a dicho sustento son los VII, VIII y IX, concentrándose el VII y IX en los beneficios –básicamente económicos- y el VIII someramente a los costos. Con lo cual, el decreto se refiere a los beneficios, pero prácticamente es nulo en la explicación de los costos, omisión que torna imposible hacer el balance y la ponderación que requiere la minería metálica a cielo abierto. En este caso, por las características y el impacto de este tipo de actividad minera, cuyos efectos al medio ambiente no son inocuos, se debieron evaluar los costos al medio ambiente del proyecto; esta evaluación incluye el tema del costo del agua, la biodiversidad, la movilización y traslado de miles de toneladas de tierra y piedras, etc. En una actividad de minería de este tipo, según se expuso, la evaluación no puede concentrarse en los parámetros económicos tradicionales, sino que deben evaluarse otros insumos que usualmente pasan desapercibidos, especialmente los que se refieren al medio ambiente.

Se requiere una valoración que determine el costo e impacto a la biosfera, al recurso hídrico, la diversidad biológica, etc. Sin duda alguna es importante evaluar el costo de los impactos irreversibles en cientos de hectáreas en la cobertura boscosa (flora y fauna), aire, suelo, aguas superficiales, aguas subterráneas, geomorfología, paisaje y en las comunidades. El hecho que se ignore el costo de estos impactos irreparables, que no se contabilizan tradicionalmente, no los convierte en bienes constitucionalmente irrelevantes. La trascendencia y la complejidad que tiene el costo medioambiental requiere una evaluación específica y cuidadosa, evitando su minimización, como se hace en la declaratoria de conveniencia nacional. La eliminación completa de cobertura vegetal y del suelo de un área de 227.6 has2., que incluye una extensión aproximada de 192 hectáreas de bosque (en diferentes grados de intervención y crecimiento) y 67 hectáreas de potrero, sin desconocer que el proyecto también incide sobre ecosistemas acuáticos como ríos, quebradas y caños.

La formación de dos tajos de cincuenta hectáreas de extensión de cincuenta o sesenta metros de profundidad, son variaciones que tienen un costo medioambiental importante, cuyo efecto y contabilización no puede ignorarse. Los planes de compensación que de buena fe propone la empresa minera, quizás parte de una visión ingenua, de consecuencias impredecibles en las próximas décadas, pues bien sabemos que un bosque tropical y sus ambientes acuáticos, no se reponen de un día para otro; quizás se asume que se puede destruir la naturaleza y posteriormente restaurarla sin mayores quebrantos. Poco se conoce de muchas de las especies de árboles se cortarán en el proyecto, especialmente las más raras y endémicas. En este sentido, el proyecto minero “crucitas” contraviene el artículo cincuenta constitucional, porque no existe un fundamento cierto que demuestre que el costo y al daño al medio ambiente es inferior a los beneficios económicos que producirá el proyecto.

El valor social que representa el medio ambiente, exige, en concordancia con la constitución, una evaluación privilegiada y cuidadosa. Todas estas omisiones e insuficiencias inciden en el fundamento mismo de la declaratoria de conveniencia nacional del proyecto. Una actividad a cielo abierto que tiene un costo medioambiental tan alto, requiere una evaluación de este extremo para alcanzar la legitimidad constitucional que exige un derecho de tanta trascendencia como el derecho a un medio ambiente sano y ecológicamente equilibrado. En cuarto lugar, no existió un único documento que se refiriera a los costos socio ambientales, tal como se admitió en la vista realizada, además tampoco existía una única metodología predeterminada normativamente sobre la forma de ponderación dichos costos, todo lo cual otorga un margen de discrecionalidad muy amplio, situación incompatible con la certeza que se necesita tener en materia ambiental.

Debo destacar que durante la audiencia oral celebrada en noviembre del dos mil nueve, los representantes de SETENA manifestaron que no existía un estudio específico sobre los costos y beneficios socio-ambientales. Esta imprecisión, si bien no demuestra, por sí misma, una ignorancia absoluta sobre la evaluación mencionada, estimo que sí evidencia que ese punto no tuvo una consideración prioritaria y determinante, confirmándose la omisión e imprecisión que he mencionado respecto de la evaluación costo-beneficio socio-ambiental. En este sentido, sin pretender hacer una evaluación crítica sobre estudios específicos y especializados, cabe mencionar que la primera evaluación de costes que consta en el expediente del proyecto de minería metálica a cielo abierto de “CRUCITAS”, que es un documento de veinticinco páginas con un anexo que contiene un estudio de factibilidad de fecha seis de abril del dos mil uno, que presentó el master Edwin Vega Araya, no contiene ninguna referencia específica sobre costos y beneficios socio-ambientales.

Posteriormente, se presenta un estudio sobre valoración socio-ambiental y beneficios sociales del proyecto, que suscribe el profesor Juan Muñóz Giró; sin embargo, este estudio, como se expuso supra, se conoció después que se emitió el decreto que declaraba de conveniencia nacional el proyecto. Es decir, que la evaluación de los beneficios y costos socio-ambientales se hizo después que la Administración había considerado de conveniencia nacional el proyecto. Esta evaluación tardía y extemporánea de un extremo tan trascendental, evidencia que el costo medio ambiental no era un parámetro significativo y de relevancia. Indudablemente debió ser un enfoque imprescindible en el nuevo estudio de impacto ambiental que debió exigirse ante la variación sustancial del proyecto de explotación minera a cielo abierto. Finalmente, también resulta cuestionable y quizás merecía un análisis de constitucionalidad, lo relativo a las normas que posibilitan la declaratoria de conveniencia nacional de un proyecto de minería metálica a cielo abierto.

Tal estudio requería un análisis de constitucionalidad, sin embargo, en el voto de mayoría, se desechó tal posibilidad. La declaratoria de conveniencia nacional del proyecto, exigía una evaluación específica del costo socio-ambiental, superando su tradicional invisibilización o infravaloración. El Poder Ejecutivo no procedió de forma constitucionalmente aceptable a sustentar que los beneficios del proyecto en cuestión eran superiores a los costos, especialmente los socio-ambientales, por esta razón la declaratoria de interés nacional del proyecto minero “crucitas”, resulta inconstitucional, pues no cumple con las exigencias que contiene el artículo cincuenta de la constitución.

Conclusión: Conforme a los argumentos recién expuestos, quien suscribe este voto disidente estima que existían suficientes razones para declarar con lugar el recurso, por violación al derecho a gozar de un ambiente sano y ecológicamente equilibrado, y al derecho de participación ciudadana, siendo lo procedente anular todo lo actuado con anterioridad a la aprobación del proyecto de modificación del proyecto minero, en cuento el decreto ejecutivo que declaró la actividad de conveniencia nacional, para que en su lugar SETENA procediera a convocar nuevamente a una audiencia pública antes de aprobar la modificación, y procediera nuevamente a realizar un estudio de impacto ambiental.

Fernando Cruz Castro Nota separa del magistrado Cruz Castro:

Las debilidades institucionales en la evaluación y el control de los temas de medio ambiente. En la discusión y análisis de la minería metálica a cielo abierto del proyecto crucitas, he identificado algunas debilidades que comprometen el control eficaz y oportuno de las actividades que inciden en el medio ambiente. Dentro de las posibles debilidades mencionadas, destaco las siguientes:

1- No es conveniente que la financiación del costo del regente ambiental lo asuma la corporación sometida al control medio ambiental. Este vínculo entre el contralor y el controlado, podría distorsionar seriamente las funciones que debe cumplir el regente ambiental.

2- En proyectos de trascendencia medioambiental, el estudio de impacto ambiental (EIA) debe tener un procedimiento de control y evaluación que no dependa, exclusivamente, del Poder Ejecutivo; en este sentido, se podría potenciar un régimen jurídico legal que le reconozca a los centros universitarios del país un mayor protagonismo en el análisis y evaluación de los estudios de impacto ambiental. El fortalecimiento de la instancia de control y evaluación es conveniente, porque no puede ignorarse que el estudio de impacto ambiental lo financia la empresa que pretende demostrar que su actividad no contraviene las exigencias del artículo cincuenta de la Constitución.

3- Las graves limitaciones de recursos de las instituciones estatales encargadas del medio ambiente, es palpable en el caso de la concesión de la minería a cielo abierto de crucitas, ya que SENARA no pudo realizar un estudio hidrogeológico, debiendo validar el que presentó la empresa ECOAMBIENTE S.A. y que fue sufragado por la misma corporación que gestiona la concesión.

4- La debilidad estatal en las actividades de control y supervisión de la concesión minera crucitas, también se evidencia ante las obligaciones que asume la empresa Industrias Infinito, al establecer el contrato de concesión que la empresa deberá prestar colaboración con el Gobierno en la capacitación de funcionarios públicos de las dependencias que deben ejercer control de la actividad minera. Esta capacitación pretende que los funcionarios adquieran criterios idóneos. Nuevamente la empresa fiscalizada tiene una clara incidencia en la definición y el perfil de los parámetros a los que podría ser sometida.

Las debilidades mencionadas evidencian las graves limitaciones que tiene la Administración frente a un mandato de tanta trascendencia como el que contiene el artículo cincuenta de la Constitución. La tutela de un ambiente sano y ecológicamente equilibrado requiere una mejor definición institucional y mayor cantidad de recursos, especialmente si se pretende evitar que la actividad minera ocasione daños graves e irreparables al ambiente.

Fernando Cruz C.