Romero-Barcelo v. Brown

• Decision Date: 26 January 1981
• Docket Number: E,ROMERO-BARCEL,No. 79-1626,79-1626
• Parties: , 11 Envtl. L. Rep. 20,391 Carlostc., et al., Plaintiffs-Appellants, v. Harold BROWN, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 835

643 F.2d 835

16 ERC 1593, 11 Envtl. L. Rep. 20,391

Carlos ROMERO-BARCELO, Etc., et al., Plaintiffs-Appellants, v. Harold BROWN, et al., Defendants-Appellees.

No. 79-1626.

United States Court of Appeals, First Circuit.

Argued Sept. 11, 1980.

Decided Jan. 26, 1981.

Timothy L. Harker and John A. Hodges, Washington, D. C., with whom Peabody, Rivlin, Lambert & Meyers, Lewis A. Rivlin, Washington, D. C., Miguel Gimenez Munoz, Secretary of Justice, Government of Puerto Rico, Thomas R. Lincoln, Dept. of Justice, San Juan, P. R., Gerardo A. Carlo, Sp. Counsel to the Governor of Puerto Rico, Old San Juan, P. R., Jorge L. Cordova, San Juan, P. R., Lawrence White, and Jeffrey N. Martin, Washington, D. C., were on brief, for appellants.

Anne S. Almy, Atty., Dept. of Justice, Washington, D. C., with whom Capt. Thomas E. Flynn, Lt. Cmdr. Eugene M. Pinkelmann, Jr., Office of the Judge Advocate Gen., Dept. of the Navy, Washington, D. C., Richard M. Cornelius, Asst. Gen. Counsel, Dept. of the Navy, Washington, D. C., Sanford Sagalkin, Acting Asst. Atty. Gen., Peter R. Steenland, Jr., Dorothy R. Burakreis, and Edward J. Shawaker, Attys., Dept. of Justice, Washington, D. C., were on brief, for appellees.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

The Commonwealth of Puerto Rico appeals from the district court's denial of its request for a comprehensive injunction against the United States Navy's military training operations on the Island of Vieques, a municipality of the Commonwealth. Armed with a battery of federal and state laws, Puerto Rico ¹ alleged that the Navy's ² activities in and around Vieques cause irreparable injury to the island's ecology and its inhabitants. More specifically, Puerto Rico claimed that the Navy's operations pollute the island's air and its coastal waters, threaten the habitats of endangered species and many of the island's irreplaceable historical sites, and diminish the productivity of the island's fishing and agricultural resources. The Commonwealth also claimed that the Navy transferred certain training activities from the island of Culebra to Vieques, contrary to congressional and executive directives. After an extensive trial, the district court ordered the Navy to obtain a NPDES permit, prepare an environmental impact statement and obtain a determination on the eligibility of certain historical and prehistorical sites on the island for inclusion in the National Register of Historic Places. The court otherwise ruled in the Navy's favor and refused to enjoin the training operations. Barcelo v. Brown, 478 F.Supp. 646 (D.P.R.1979). Before turning to the issues raised by Puerto Rico on appeal, we briefly sketch some basic characteristics of the island and the Navy's activities.

Vieques

The island of Vieques lies six miles off the southeastern coast of Puerto Rico and approximately nine miles directly south of the island of Culebra. Situated on an east-west axis, Vieques is nearly twenty miles long with an average width of four miles. Of a total area of approximately 33,000 acres, the Navy owns 25,231.72 acres, or slightly more than 76% of the island.

Certain features of the island's ecology deserve particular mention. Fringe and offshore coral reefs are found in the coastal waters of Vieques, primarily off the northern, eastern and southern shores. Seagrass flourishes along the ocean floor adjacent to the coasts; the largest concentration runs from Punta Caballo on the north coast eastward around Punta Arenas to the southwest coast. There are also several large mangrove stands located along the shores; in the west near Punta Arenas and in the south around Puerto Mosquito, Puerto Ferro and Ensenada Honda. Three of the seven bioluminescent bays known to exist in the world are located along the southern coast Puerto Mosquito, Puerto Ferro, and Bahia Tapon.

Of the animal species living on Vieques, six are designated by the U. S. Fish and Wildlife Service as either "endangered" or "threatened." 50 C.F.R. § 17.11. The "endangered" are the manatees, the brown pelicans, the leatherback turtles and the hawksbill turtles. Considered "threatened" are the green turtles and the loggerhead turtles. At least some of the nesting sites favored by the pelicans and the turtles are located within the areas where the Navy conducts its training operations.

The human history of the island dates back at least to the ninth century A.D. ³ At that time, Vieques served as a transit stop in the migration of Arawak Indians from the Orinoco Basin in South America (Venezuela) to Puerto Rico and Hispaniola (Haiti and the Dominican Republic). At the time of Columbus' "discovery" of Vieques in 1493, the island was used by the Carib Indians as a temporary base from which they carried out raids against the people of Puerto Rico. Spain's movement into the Caribbean during the sixteenth century resulted in the first permanent habitation of Vieques by Indians who sought to escape the Spanish occupation of Puerto Rico and St. Croix. Although Spain apparently never attempted to colonize Vieques, it periodically sent military expeditions to the island throughout the seventeenth and eighteenth centuries to maintain its hegemony over the island.

The early years of the nineteenth century mark the beginning of Vieques' modern history. In 1816 colonists from St. Croix and St. Thomas established the first livestock ranches, thus beginning what is today the island's primary agricultural activity. Soon thereafter, one of the colonists organized the construction of a fort at Isabel Segunda. In addition to ranching, the economy of Vieques at this time involved timber harvesting for export to the Virgin Islands, subsistence farming and fishing. By the second half of the century, sugar cane had become the leading cash crop.

After the Spanish American War of 1898, Vieques, together with the rest of Puerto Rico, became a Territory of the United States. The island's economy continued to be dominated through the early 1940's by sugar cane cultivation, ranching, and fishing. Since the mid 1940's, however, the sugar cane industry has declined to a point where it is of no current importance to the island. Thus, the islanders now derive their livelihood from the same sources relied upon by their ancestors more than one hundred fifty years ago fishing, subsistence farming and ranching.

During the early 1940's the Navy acquired title to most of its present holdings on Vieques. As a result of these acquisitions, civilians now occupy an area of about 7,000 acres, bounded on both the east and the west by Navy property. ⁴ The present population distribution reflects the island's economy. Of a total population of approximately 8,000, close to 5,000 people live in a rural environment outside the two coastal towns. Located on the northern coast of the civilian sector is the capital, Isabel Segunda, which has between 2,400 and 2,500 inhabitants. Esperanza, the island's other town, located on the southern coast, has a population of approximately 600.

Navy Operations on Vieques

The Naval Ammunition Facility (NAF) encompasses the entire area of Vieques west of the civilian zone. The Navy uses the facility for deep storage of conventional ammunition. Ships delivering the ordnance ⁵ dock at Mosquito Pier, located on the northern coast of the NAF. From there, it is transported by truck to bunkers distributed throughout the NAF. Most of the ammunition is destined for off-island use by the Navy, the Marines and the Puerto Rican National Guard. Occasionally, ammunition is transferred overland from the NAF to the ground maneuver area located east of the civilian zone.

The Navy's installations on the eastern half of Vieques are part of a large military complex known as the Atlantic Fleet Weapons Training Facility, headquartered at Roosevelt Roads Naval Station in Ceiba, Puerto Rico. The facility consists of four firing ranges of which only two are related to Vieques. The outer range, a large area of ocean, at its closest points to Vieques lies thirty-five miles to the north and twenty miles to the south. Within this range, the Navy conducts exercises in ship to ship weapons fire, ship to air missile fire and air to air weapons fire. The underwater range, located off the western shore of St. Croix, involves training in three dimensional tracking of surface and underwater objects. The electronic warfare range is a network of "threat platform" simulators located in Puerto Rico and nearby islands. These are used to train shipboard and airborne electronic warfare teams and provide tactical electronic order of battle support for operations conducted on the other ranges. One simulator is positioned at the western end of Vieques atop Monte Pirata. Until recently, the inner range consisted of air to ground bomb and missile targets and naval gunfire support targets on Culebra, and air to ground, artillery and naval gunfire support targets on Vieques. In 1975, however, the Navy ceased its Culebra operations. Thus, the Vieques installations now comprise the entire inner range.

The inner range is divided into four distinct areas. The ground maneuver area (GMA) extends from the civilian sector eastward for approximately seven miles to a cattle fence which runs the width of the island. Located at the southwestern corner of the GMA is Camp Garcia, a Marine Corps camp which, although able to accommodate several thousand troops, is occupied by one marine. The principal use of the GMA is for Marine amphibious landings. These are conducted throughout the year, primarily on the southern beaches between Punta Conejo and Punta Negra. A typical landing will require the use of large attack transports from which are launched the landing craft and amphibious tracked vehicles. These smaller craft carry troops, tanks and other equipment to the beaches. Once landed, the troops perform maneuvers throughout the GMA, which at times...