Com. of Puerto Rico v. Muskie, Civ. A. No. 80-2117

CourtUnited States District Courts. 1st Circuit. District of Puerto Rico
Citation507 F. Supp. 1035
Docket NumberCiv. A. No. 80-2117,80-2104 and 80-2106.
PartiesCOMMONWEALTH OF PUERTO RICO, Plaintiff, v. MUSKIE et al, Defendants. MARQUEZ et al, Plaintiffs, v. CARTER et al, Defendants. COLON et al, Plaintiffs, v. CARTER et al, Defendants.
Decision Date09 January 1981

507 F. Supp. 1035

MUSKIE et al, Defendants.

MARQUEZ et al, Plaintiffs,
CARTER et al, Defendants.

COLON et al, Plaintiffs,
CARTER et al, Defendants.

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

United States District Court, D. Puerto Rico.

January 5, 1981.

As Amended January 9, 1981.

507 F. Supp. 1036
507 F. Supp. 1037
Michael J. Henke, Vinson & Elkins, Washington, D. C., Gerardo A. Carlo, San Juan, P. R., Néstor D. Ramírez-Cuebos, Dept. of Justice, Commonwealth of Puerto Rico, San Juan, P. R., for Commonwealth of Puerto Rico
507 F. Supp. 1038

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.


TORRUELLA, District Judge.

These cases arise as a result of the decision to transfer an indeterminate number of undocumented aliens1 from various points of detention in Continental United States, principally in the State of Florida, to a Department of Defense facility known as Fort Allen, which is located in the Municipality of Juana Diaz in the Commonwealth of Puerto Rico.


Three separate actions are involved in this matter. Civil Numbers 80-2104, and 80-2106 concern suits by individual citizens,2 all nearby residents of Fort Allen (hereinafter collectively referred to as "Individual Plaintiffs"). The movant in Civil Number 80-2117 is the Commonwealth of Puerto Rico (hereinafter referred to as "the Commonwealth").

In Civil Number 80-2117, the Defendants are Edmund S. Muskie, Secretary of State, Harold L. Brown, Secretary of Defense, Clifford L. Alexander, Jr., Secretary of the Army, and John W. Macy, Jr., Director of the Federal Emergency Management Agency. In Civil Number 80-2104, President James Carter, Benjamin Civiletti, Secretary of Justice, Rear Admiral Arthur Knoizen, Commander Caribbean Naval Forces, as well as Secretary Brown3 are named Defendants. Civil Number 80-2106 has the same Defendants as Civil Number 80-2104, except for the exclusion of Secretary Civiletti, and the inclusion of David W. Crossland, the Director of the Immigration and Naturalization Service.

Although the allegations in all three cases are similar, there are various significant differences. In 80-2117 the Commonwealth seeks declaratory and injunctive relief alleging violation of the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., the National Historic Preservation Act, 16 U.S.C. § 470 et seq., the Clean Water Act, 33 U.S.C. § 1251 et seq., the Solid Waste Disposal Act, 42 U.S.C. § 6901 et seq., the Laws of Puerto Rico at 12 L.P.R.A. § 1131 and 32 L.P.R.A. § 3532, and various regulations of the Environmental Protection Agency, 40 C.F.R. Parts 122, 125, 240, 241 and 243. As will be discussed in greater detail later in this opinion, the substance of the Commonwealth's allegations are that the construction of a refugee camp in Fort Allen, and the subsequent transfer there of the refugees without compliance by Defendants with various prerequisites established in the mentioned legislation, entitles it to the relief sought barring said actions.

The complaint in Civil Number 80-2104 claims as additional grounds for relief that Defendants' action violates the Resource

507 F. Supp. 1039
Conservation and Recovery Act, 42 U.S.C. § 6901 and is a violation of the Fifth and Fourteenth Amendments of the Constitution and of the Refugee Act of 1980 (P.L. 96-212), the Federal Relations Act of 1950, 48 U.S.C. § 731 et seq., and the United Nations Charter

The allegations in Civil Number 80-2106 are substantially identical to 80-2104 and need not be further detailed.

Generally speaking Defendants answered these allegations denying the applicability of these various legislation, either by virtue of factual situations which were controverted, or by reason of specific legal exceptions allegedly contained in other legislation or in Presidential Executive Orders. These contentions will be the subject of detailed discussion herein.


To say the least, this case has had a short but exciting life. Upon consolidation of these actions a hearing for preliminary injunction was held and evidence received on October 6, and 7, 1980. On October 8, 1980 a preliminary injunction was issued enjoining further construction at Fort Allen and the transferring of the refugees. An Opinion and Order was entered thereafter which is reported at 507 F.Supp. 1026 (D.C.P.R., 1980). For present purposes it is sufficient to state that the Court found that the construction of the refugee camp at Fort Allen and the proposed transfer there of the refugees, constituted a "major Federal action" within the meaning of Section 102(2)(c) of the National Environmental Protection Act (hereinafter called "NEPA"), 42 U.S.C. § 4332(2)(c), which requires the preparation and filing of an environmental impact statement (hereinafter called "EIS"), before such action is initiated, a procedure which Defendants had failed to comply with. In so ruling the Court concluded that the exemption to Section 102(2)(c) of NEPA contained in Section 405 of the Disaster Relief Act, (hereinafter called "DRA") (42 U.S.C. § 5175), as well as President Carter's May 6, 1980 declaration of emergency which allegedly triggered the application of the Section 405 exemption, see 45 Fed.Reg. 32116-7 (May 6, 1980), was unavailable to Defendants because Section 102(1) of the law (42 U.S.C. § 5122(1)) defined the term "emergency" with reference to natural disasters, such as hurricanes, floods and earthquakes, and further because President Carter's declaration was limited to the State of Florida. The Court however sustained the validity of Executive Order Number 12244 issued on October 3, 1980, whereby pursuant to specific authorization contained in those statutes, Fort Allen was exempted from complying with the provisions of the Federal Water Pollution Control Act, supra, the Clean Air Act, supra, the Noise Control Act, supra, and the Solid Waste Disposal Act, supra. In issuing this Order, President Carter stated that this action was necessary "in the paramount interest of the United States." This is the first time since the enactment of this legislation that the President has exercised these powers.

On October 10, 1980, at 9:35 A.M. EST, Defendants filed a Motion for Reconsideration alleging as grounds therefor the provisions of the Refugee Education Assistance Act of 1980, Pub.L.No. 96-422 (hereinafter called "REAA"), Section 501(c) which exempted action furnishing "assistance ... for the processing, care, maintenance, security, transportation, and initial reception and placement in the United States of Cuban and Haitian entrants" from the EIS requirements of NEPA, and Executive Order Number 12246, wherein President Carter delegated his functions under Section 501(c) of REAA to the Secretary of State and directed him to "promptly take action which provides assistance for those Cuban and Haitian entrants located or to be located at Fort Indiantown Gap, Fort McCoy, Fort Chaffee, Fort Allen, existing processing and reception sites in Florida, and such other sites as he may designate ..." This Statute and the Executive Order were both signed into law at approximately 9:30 A.M. EST on October 10, 1980, while the President was on a campaign swing through the State of Florida (Executive Order 12246, 45 F.R. 68367, October 10, 1980).

507 F. Supp. 1040

After a hearing, the Court lifted the preliminary injunction as to the requirement that an EIS be prepared and filed before construction could proceed, but otherwise continued the injunction and held that the Executive Order was judicially reviewable pursuant to 5 U.S.C. § 706(2)(A), "with a high probability of Plaintiffs' success when the case was heard on the merits" in that the validation of the transfer of refugees in the face of the Court's specific findings of the probable health hazards to the refugees and nearby residents in such transfer constituted arbitrary and capricious agency action.

On October 24, 1980 the Court of Appeals reversed our Order granting the partial preliminary injunction. Thereafter a decision issued which is reported at (1st Cir.) 633 F.2d 964. It is important to an understanding of our present decision to discuss the contents of the same.

In answer to the Commonwealth's contention to the effect that the NEPA exception in Title V of REAA was inapplicable to the proposed transfer of refugees to Fort Allen, the Court of Appeals concluded that a principal purpose of this legislation was "providing an EIS exemption." It specifically declined to consider and decide the Commonwealth's allegation that other NEPA requirements were not exempted by REAA (see footnote 1 of the decision). The Court of Appeals further left open allegations pursuant to the National Historic Preservation Act, supra, and the Coastal Zone Management Act, 16 U.S.C. § 1451 et seq. "because the district court did not rule on or make any findings of fact in connection with these claims" (see footnote 4). The Court then went on to sustain the Defendants' appeal "that the executive order designating Fort Allen as a relocation site" was not subject to judicial review under 5 U.S.C. § 701 et seq. ruling that it is a decision "committed to the President's discretion by law and therefore unreviewable." The Court thus decided that the Commonwealth had failed to demonstrate a sufficient probability of success on the merits so...

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