Barcelo v. Brown

• Decision Date: 17 September 1979
• Docket Number: 78-377.,Civ. No. 78-323
• Parties: Carlos Romero BARCELO, Governor of Puerto Rico, et al., Plaintiffs, Carlos Zenon et al., Plaintiffs-Intervenors, v. Harold BROWN et al., Defendants. Luis MEDINA et al., Plaintiffs, Fundacion Arqueologica, Antropologica E Historica De Puerto Rico, Plaintiff-Intervenor, v. Harold BROWN et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

478 F. Supp. 646

Carlos Romero BARCELO, Governor of Puerto Rico, et al., Plaintiffs, Carlos Zenon et al., Plaintiffs-Intervenors, v. Harold BROWN et al., Defendants.

Luis MEDINA et al., Plaintiffs, Fundacion Arqueologica, Antropologica E Historica De Puerto Rico, Plaintiff-Intervenor, v. Harold BROWN et al., Defendants.

Civ. Nos. 78-323, 78-377.

United States District Court, D. Puerto Rico.

September 17, 1979.

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Miguel Gimenez Munoz, Secretary of Justice, Commonwealth of Puerto Rico, San Juan, Puerto Rico; Gerardo A. Carlo, Special Counsel to the Governor, Commonwealth of Puerto Rico, La Fortaleza, San Juan, Puerto Rico; Lewis A. Rivlin, John A. Hodges, Sanda M. Kayden, Peabody, Rivlin, Lambert & Meyers, Washington, D.C.; Timothy L. Harker, Washington, D.C.; Jorge L. Cordova, Charles R. Work, Collister Johnson, Theodore A. Miles, Washington, D.C. (of counsel), for plaintiffs Carlos Romero-Barcelo, Governor of Puerto Rico, et al.

Pedro J. Saade Llorens, Servicio Legales, Santurce, Puerto Rico, for plaintiffs-intervenors Zenon, et al.

Judith Berkan and Pedro J. Varela, Hato Rey, Puerto Rico, for plaintiffs Medina, et al.

Wilfredo A. Geigel, Santurce, Puerto Rico, for plaintiff-intervenor Fundacion Arqueologica, Antropologica e Historica de Puerto Rico.

Julio Morales Sanchez, U.S. Atty., San Juan, P. R., for defendants.

DECISION AND ORDER

TORRUELLA, District Judge.

In substance, these suits concern the military use by the United States Navy of land which it owns in the Island of Vieques, a civilian municipality of the Commonwealth of Puerto Rico. They bring into focus the delicate and complex constitutional interplay that exists between our three branches of Government, as well as between the Federal and local establishments and its citizens.

I. Procedural Preface

The parties to these actions are as varied and as multifarious as the issues which they raise.

In Civil Number 78-323 the Plaintiffs¹ are Carlos Romero Barceló, who is the Governor of the Commonwealth of Puerto Rico, Radamés Tirado Guevara, the Mayor of Vieques, and the Environmental Quality Board, an administrative agency of the Commonwealth charged by law with protection of the environment in Puerto Rico.² The Defendants in that suit are Harold Brown, Secretary of Defense of the United States, W. Graham Claytor, Jr., the Secretary of the Navy, James L. Holloway, Chief of Naval Operations, I. C. Kidd, Jr., Commander in Chief of the Atlantic Fleet, and Louis H. Wilson, Commandant of the Marine Corps.³ After the commencement of this suit on March 1, 1978, additional Plaintiffs sought and received permission to intervene. They were Carlos A. Zenón, Mario Félix, Mariano Rivera Guishard, Alicio Ayala Soto, Francisco Medina Meléndez, Esmeraldo Meléndez and Santos Ríos, fishermen who are residents of Vieques, and the "Asociación de Pescadores de Vieques, Inc.", a cooperative of Vieques fishermen.⁴

The Plaintiffs in Civil Number 78-377, which was filed on March 8, 1978, are Luis Medina, Jesús Medina, Mario Antolino Félix, Cristóbal Medina, Severino Ventura Cintrón, Héctor Medina, Cristóbal Medina, Jr., Enrique García, Antonio Ayala González, Angel Ventura, and Daniel Medina, all fishermen and/or residents of Vieques, and Misión Industrial de Puerto Rico, Inc., an entity which is allegedly interested in advocating environmental causes.⁵ Intervention was also sought and allowed in this case on behalf of "Fundación Arqueológica, Antropológica e Histórica de Puerto Rico", a non-profit corporation involved in research and preservation of historical and prehistorical cultural resources.⁶ The Defendants in this suit are the same as those in Civil Number 78-323, except for the addition of William R. Flannagan, Caribbean Commander of the Atlantic Fleet, Swain Wilson, Commandant of the United States Coast Guard, and unnamed John Doe Defendants.

After various preliminary procedural interchanges, including a hearing in which a request for a temporary restraining order was denied in Civil Number 78-377, Civil Numbers 78-323 and 78-377 were consolidated. It is appropriate to briefly set forth the allegations in the various complaints.

Plaintiffs seek to enjoin Defendant Navy from using any portion of its lands in Vieques, or in the waters which surround this Island, for the purpose of carrying out naval training operations. Broadly speaking, the complaints allege harm to all residents of Vieques, to its fishing and agricultural industries, to certain endangered species of plant and wildlife, to officially designated and unidentified historical sites and to private property, all as a consequence of Defendant Navy's activities.

The main thrust of Plaintiffs Romero Barceló's allegations in Civil Number 78-323 is related to claims of violation by Defendant Navy of various environmental laws. These claims include the alleged failure of Defendant Navy to prepare and file an environmental impact statement pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. §§ 4321 et seq.), as well as other substantive offenses thereunder, and alleged violation of the Federal Water Pollution Control Act of 1972 (33 U.S.C. § 1311), the Water Pollution Control Act of Puerto Rico (24 L.P.R.A. §§ 591, et seq.), Public Policy Environmental Act (12 L.P.R.A. §§ 1121 et seq.), and Executive Order No. 11752 (38 F.R. 34793); the Marine Protection, Research and Sanctuaries Act of 1972 (33 U.S.C. §§ 1401, 1411 and 1412); the Clean Air Act (42 U.S.C. §§ 7401 et seq.); the Noise Control Act of 1972 (42 U.S.C. §§ 4901 et seq.) and the general Nuisance Law of Puerto Rico (33 L.P.R.A. § 1365); the Resource Conservation and Recovery Act (42 U.S.C. §§ 6901 et seq.); the Endangered Species Act of 1973 (16 U.S.C. §§ 1531 et seq.); the National Historic Preservation Act (16 U.S.C. §§ 470 et seq.), and Executive Order 11593 (36 F.R. 8921); the Coastal Zone Management Act (16 U.S.C. §§ 1451 et seq.); the Marine Mammal Protection Act of 1972 (16 U.S.C. §§ 1361, et seq.); the Rivers and Harbors Act of 1899 (33 U.S.C. § 407); the First and Fifth Amendments to the Constitution, and Presidential Orders and Congressional restrictions relating to the transfer of military activities from the Island of Culebra, another off-shore municipality of the Commonwealth.⁷ The allegations of Plaintiffs Zenón et al are substantially a copy of the complaint of Plaintiffs Romero Barceló et al, with the exception that additional contentions are made with regards to violations of the Federal Relations Act of 1950 (48 U.S.C. § 749) and the Water Law of Puerto Rico (12 L.P.R.A. §§ 1501-1523).

In Civil Number 78-377 Plaintiffs Medina et al, in addition to also relying on the previously enumerated claims, allege various other basis for relief, including a challenge to the taking and acquisition by Defendant Navy of the land on which the activities subject of these suits are carried out, allegations of violation of the Organic Act of 1900 ("Foraker Act") (31 Stat. 77), the Organic Act of 1917 ("Jones Act") (39 Stat. 951), the Federal Relations Act (64 Stat. 319, 48 U.S.C. § 731 et seq.), and of certain treaties (15 U.S.T. 1636), by virtue of Defendant Navy's use of the navigable waters surrounding Vieques, and claims for damages arising by reason of Defendant Navy's allegedly intentional and/or negligent actions, which claims are ostensibly grounded on the Federal Tort Claims Act (28 U.S.C. § 2671 et seq.). The contentions of Plaintiff Fundación are similar to parallel ones by Plaintiff Romero Barceló et al, based on the National Historic Preservation Act of 1966, supra, and Executive Order 11593, supra.

For the present moment, suffice it to say that Defendant Navy's answers put at issue Plaintiffs' allegations and resulted in a trial lasting three months in duration. Sixty three witnesses, many of them leading authorities in various fields of expertise, as well as hundreds of exhibits were presented during the course of this legal marathon. Additionally, at the request of the parties, the Court conducted two field trips to various sites in and around Vieques. The Court consolidated the preliminary and permanent injunction hearings.

Because these cases present such an all-inclusive challenge to Defendant Navy's presence and activities in Vieques, we must commence our homeric voyage through this evidence with some relevant background discussion about the Island in question.

II. Background

A. Physical Biography

Vieques is a long narrow island located approximately 6 miles off the Southeastern coast of the main Island of Puerto Rico and about 9 miles due South of its sister municipality of Culebra. It is nearly 20 miles long and 4.5 miles wide at its widest point, and is oriented on an East-West axis. The Island has an area of about 33,000 acres or 51 square miles of land.

The topography of Vieques is dominated by a backbone of rolling hills several hundred feet in height leading up to Monte Pirata in its western extremity, which at nine hundred and eighty one feet is the highest point on the Island. The shores are principally composed of calcareous sandy beaches, interrupted by several rocky promontories, particularly in the eastern extremities, and in the points of the various half-moon bays located throughout the southern coast. There are fringe and offshore coral reefs mostly in the northern, eastern and southern sectors.

The mean average temperature is 80° and the average annual rainfall is 46.23 inches, mostly concentrated in the central and western areas. There are no permanently flowing fresh water streams or rivers. Generally speaking the prevailing winds are from the East; however, they tend to bend towards the Northeast along the north coast and the South East along the southern shores.

The ocean and wave action follow a pattern similar to that of the wind. The ocean currents are also generally wind-oriented from...