Colon v. Carter

• Decision Date: 10 October 1980
• Docket Number: Civ. A. No. 80-2104,80-2106 and 80-2117.
• Citation: 507 F. Supp. 1026
• Parties: Wilfredo Marquez COLON et al., Plaintiffs, v. James CARTER, President of the United States of America et al., Defendants. Jorge COLON et al., Plaintiffs, v. James CARTER, President of the United States of America et al., Defendants. COMMONWEALTH OF PUERTO RICO, Plaintiffs, v. Edmund S. MUSKIE et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

507 F. Supp. 1026

Wilfredo Marquez COLON et al., Plaintiffs, v. James CARTER, President of the United States of America et al., Defendants.

Jorge COLON et al., Plaintiffs, v. James CARTER, President of the United States of America et al., Defendants.

COMMONWEALTH OF PUERTO RICO, Plaintiffs, v. Edmund S. MUSKIE et al., Defendants.

Civ. A. Nos. 80-2104, 80-2106 and 80-2117.

United States District Court, D. Puerto Rico.

Opinion and Order — October 8, 1980.

On Motion for Reconsideration — October 10, 1980.

Michael J. Henke, Vinson & Elkins, Washington, D. C., Gerardo A. Carlo, San Juan, P. R., Néstor D. Ramírez-Cuebas, Dept. of Justice, Commonwealth of Puerto Rico, San Juan, P. R., for Commonwealth of Puerto Rico.

Pedro J. Saade Llorens, Río Piedras, P. R., for plaintiffs Jorge Colón, et al.

Pedro J. Varela, Hato Rey, P. R., for plaintiffs Máquez Colón, et al.

Luis R. Dávila Colón, Dept. of State, Commonwealth of Puerto Rico, San Juan, P. R., for Commonwealth of Puerto Rico.

José E. Colón Santana, Josefina Pantoja, A. Santiago, Río Piedras, P. R., Fausto D. Godreau, Servicios Legales de Puerto Rico, Juana Diaz, P. R., for plaintiffs.

William Want and Dorothy Burakreis, U. S. Dept. of Justice, General Litigations Section, Sand Division, Washington, D. C., for defendants.

OPINION AND ORDER

TORRUELLA, District Judge.

The above-entitled consolidated cases arise from the decision made by executive governmental authorities to transfer to Fort Allen, Puerto Rico a number of undocumented Haitian and Cuban aliens that are presently being housed in refugee centers located in the State of Florida. Plaintiffs herein are the Commonwealth of Puerto Rico as well as several individual residents of the Municipality of Juana Diaz, Puerto Rico. Defendants are the President of the United States, James Carter, Secretary of State, Edmund S. Muskie; Secretary of Defense, Harold Brown; Secretary of Justice, Benjamin Civiletti; Rear Admiral Arthur Knoizen, Commander of the Caribbean Naval Forces of the United States; David W. Crossland, Director of the Immigration and Naturalization Service; Clifford Alexander, Jr., John W. Macy, Jr., Director of the Federal Emergency Management Agency ("FEMA"), and their agents, employees and successors in office.

This Court has jurisdiction over this controversy by reason of the federal questions presented and pursuant to 28 U.S.C. Sec. 1331.

Plaintiffs allege in essence that the intended transfer to Fort Allen of undocumented Cuban and Haitian aliens will be carried out in violation of the Constitution of the United States, of several Federal Laws including the National Environmental Policy Act ("NEPA"), 42 U.S.C. Sec. 4321 et seq., the Federal Water Pollution Control Act, 33 U.S.C. Sec. 1251 et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sec. 6901 et seq., the Water Pollution Control Act, 33 U.S.C. Sec. 1256, and the Disaster Relief Act of 1974, 42 U.S.C. Sec. 5121, et seq.; of various Commonwealth Laws and the applicable Federal and local Regulations. More specifically, Plaintiffs allege that Defendants have failed to prepare an adequate and detailed environmental impact statement ("EIS") with respect to said transfer and related operations and activities, as required by Section 102(C) of NEPA, 42 U.S.C. Sec. 4332(C). The substance of Defendants' defense is based on the issuance of two Executive Orders which allegedly exempt Defendants from compliance with the variously cited environmental statutes.

The cases are now before us upon Plaintiffs' request for a temporary restraining order and Defendants' opposition thereto.

A hearing on the matter having been held at which the parties offered evidence and argued on behalf of their respective positions, the Court hereby makes the following

FINDINGS OF FACT

1. On May 6, 1980 President Carter issued a declaration of emergency for the State of Florida. The declaration was made in a letter addressed to Mr. John W. Macy, Jr., Director of FEMA, and was based on the provisions of the Disaster Relief Act of 1974 ("Relief Act"), P.L. 93-288, 88 Stat. 143, 42 U.S.C. Sec. 5121 et seq. It reads in its pertinent parts as follows:

"I have determined that the impact on state and local government in Florida due to the arrival of large numbers of undocumented aliens beginning on or about April 13, 1980, is of sufficient severity and magnitude to warrant a declaration of emergency under Public Law 93-288. I therefore declare that such an emergency exists in the State of Florida. Further, the humanitarian aspects of this exodus from Cuba cannot be ignored.

"In order to provide appropriate federal assistance, you are authorized under Public Law 93-288 to take those measures which are necessary to assist state and local governments to control this unusual event and alleviate hardships or damage to individuals and public bodies. You are authorized further to allocate funds available for these purposes in such amounts as you find necessary for administrative expenses."

2. Subsequent to said declaration, the Cuban-Haitian Task Force was formed and staffed by various agencies of the Federal Government. This executive ad hoc group has over-all supervision of all efforts directed at resolving the problems created by the influx of the aliens, including the day-to-day operation of processing and resettlement centers and the coordination of efforts to resettle the refugees.

3. Throughout the summer of 1980 the flow of Cubans and Haitians into Florida continued. Pending resettlement, they were temporarily housed in various processing centers. Among those centers are two designated as Krome North Refugee Camp and Krome South Refugee Camp, located in Dade County, Florida.

4. The conditions in these camps, because of apparent physical deficiencies, became a serious health and sanitation hazard. As a result of this, on September 8, 1980, the Department of Health and Rehabilitation Services of the State of Florida issued legal notices of violations of the Florida Statutes and Sanitary Code against the operation of both the Krome North and Krome South Camps. Krome North was cited for 14 violations and corrective actions, and Krome South was cited for 19 violations and corrective actions. The violations ranged in nature, from improper sewage treatment and overcrowding to failure to provide soap and towels in sanitary facilities.

5. As an immediate consequence of this situation, a search for alternative locations ensued. Various federal departments and agencies participated in the efforts made to find alternative facilities. Although an inventory of available Department of Defense facilities (referred to in the memoranda as "Prospective Alternative Consolidation Sites") showed no less than 36 such sites in Continental United States, ranging in acreage from the low hundreds to the high hundred thousands, in mid-September the search inexplicably zeroed in on two Federal properties located in Puerto Rico, none of which were on the original inventory of available facilities. These two locations were Ramey Field, a former Strategic Air Command Base in Aguadilla, which was closed and turned over to various Commonwealth agencies (with the exception of a United States Coast Guard Compound), and Fort Allen in Juana Diaz, a United States Naval Communication Center in its last stages of dismantling before transfer to the Puerto Rico National Guard. On September 23, 1980 the Federal Government decided upon Fort Allen.

6. Fort Allen occupies a low-lying area of approximately 940 acres. It is located in the Southern part of Puerto Rico, where it abuts several wards of Juana Diaz, a Municipality of Puerto Rico, and is near the town of Juana Diaz. The base is surrounded by a fence and contains various barracks, administrative and recreational buildings, as well as complementary support facilities consistent with a base whose population here never exceeded 1,500 persons (its usual number ranged in the vicinity of 500 to 800).

7. The evidence presented is conflicting as to the number of refugees to be transferred to Fort Allen. The numbers vary from between 5,000 to 20,000 in the figures that appear in the early documentation, to 1,000 to 3,000 in the present-day versions. The Court tends to conclude that the lower figures are presently contemplated, at least initially, although we note that the capacity of the camp under construction is designed to hold 5,000 refugees. We also note in this respect, that although the Government's representative at the hearing indicated that only the Krome inmates, whose present population consists of 652 Haitians and 262 Cubans, are to be transferred to Fort Allen, it was also indicated that all future new entrants will also be transferred to the new site. Since entries from Haiti appear to be continuing on a daily basis, it appears that the Fort Allen population will continue to expand if the present plans are executed. The Government intends to commence the transfers from Florida on October 14, 1980.

8. The Fort Allen processing center is composed at present of the former existing facilities, which will house approximately 1,000 security and support personnel, and the refugee facilities presently under construction, approximately half of which have been completed. The refugee facilities consist of 14 compounds surrounded by chain link fence topped by barbed wire. Within each compound will be built twelve living tents, framed with wood and covered by canvas. Each tent will house up to 30 refugees. Various administrative, sanitary, and recreational tents will also be constructed in each compound. The Haitian and Cuban refugees will be segregated from one another, and separate housing for single males and females will also be provided. A separate compound will also house the problem or Level II, inmates. At some future date diverse sports facilities are planned to be constructed. Present plans call for the staffing and care...