Com. of Puerto Rico v. Alexander

• Decision Date: 12 August 1977
• Docket Number: Civ. A. No. 76-1216.
• Citation: 438 F. Supp. 90
• Parties: The COMMONWEALTH OF PUERTO RICO, Plaintiff, v. Clifford ALEXANDER, Jr., et al., Defendants.
• Court: U.S. District Court — District of Columbia

438 F. Supp. 90

The COMMONWEALTH OF PUERTO RICO, Plaintiff, v. Clifford ALEXANDER, Jr., et al., Defendants.

Civ. A. No. 76-1216.

United States District Court, District of Columbia.

August 12, 1977.

Michael E. Veve, Washington, D. C., for plaintiff.

Earl Salo and John E. Varnum, Dept. of Justice, Washington, D. C., for defendants.

MEMORANDUM OPINION

WADDY, District Judge.

This is an action for declaratory and injunctive relief arising under the Federal Water Pollution Control Act Amendments of 1972¹ (FWPCA), 33 U.S.C. §§ 1251-1376, and the Puerto Rican Federal Relations Act of 1950 (FRA), 48 U.S.C. §§ 731-916. Plaintiff, the Commonwealth of Puerto Rico, seeks a determination of whether the FRA limits the federal government's FWPCA regulatory powers over the Commonwealth's unnavigable waters. More specifically, this Complaint alleges that Section 404 of the Water Pollution Act, 33 U.S.C. § 1344, and the regulations promulgated thereunder,² which provide for the issuance of permits to discharge dredged or fill material into the waters, are inapplicable to the Commonwealth in light of Sections 7 and 9 of the FRA, 48 U.S.C. §§ 747, 734, respectively.

This case is before the Court on defendants' motion to dismiss and cross motions of plaintiff and defendants for summary judgment.³

Defendants in this action are the Secretary of the Army and the Chief of the Army Corps of Engineers (Corps), who are responsible for issuing the FWPCA Section 404 discharge permits, and the Administrator of the Environmental Protection Agency, who has responsibility for the administration of the Water Pollution Act, 33 U.S.C. § 1251(d).

The Army Corps of Engineers has adopted regulations implementing its discharge permit responsibilities under FWPCA Section 404. The parties to this action are agreed that those regulations, specifically 33 C.F.R. § 209.120(d)(2) (1976), expand the Corps' jurisdiction under that section, titled "Navigable waters", to include areas which were previously considered to be unnavigable waters. In light of recent judicial decisions expanding the scope of "navigable" waters under the FWPCA⁴ plaintiff does not challenge the Corps' authority to promulgate such regulations, but it does contend that Sections 7 and 9 of the Puerto Rican Federal Relations Act, 48 U.S.C. §§ 747, 734, respectively, make those regulations inapplicable to Puerto Rico's unnavigable waters.

It is Puerto Rico's contention that the Corps' regulations require plaintiff to obtain dredge and fill discharge permits from the federal government for bodies of water which are controlled by Puerto Rico, which have always been under Puerto Rican sovereignty, and over which the federal government and the Congress have no jurisdiction.

This is not an action which presents the Court with a specific body or bodies of water for a determination of whether the Corps' regulations require the plaintiff to obtain the appropriate discharge permit. This is not an action for review of a denial by the Corps of a Puerto Rican permit application. Rather, this action is for a pre-enforcement review of federal regulations and the scope of those regulations as applied to the Commonwealth of Puerto Rico's unnavigable waters. Plaintiff is here seeking declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201, 2202, and 1651.

The defendants respond by alternative motions to dismiss or for summary judgment. The Court considers first defendants' motion to dismiss this Complaint.

Defendants' Motion to Dismiss

The federal defendants move to dismiss this action as unripe and not appropriate for judicial resolution, and because plaintiff lacks standing to bring this Complaint. It is their contention that judicial resolution at this point would involve the Court prematurely in resolving an abstract question, as no particular body of Puerto Rican waters is now before the Court for a focused determination of FWPCA applicability. Defendants submit that the Commonwealth is asking the Court to write a treatise on federal jurisdiction over Puerto Rican waters. Defendants further contend that plaintiff has failed to show any real or immediate injury since no one has been denied a dredge permit, or been required to apply for one. They conclude that this Court lacks jurisdiction over the subject matter of this action.

The plaintiff, opposing the motion to dismiss, argues that the administrative actions of the Corps, for all intents and purposes, have concluded, and all that remains at issue is the Commonwealth's compliance with the Corps' regulations. No factual determinations remain for this Court; the sole question being a legal one — the power of the defendants and of the Congress to regulate Puerto Rico's unnavigable waters in light of the Federal Relations Act. Insofar as this action seeks, inter alia, a declaratory judgment of federal administrative regulatory jurisdiction, plaintiff contends that the concrete sharpening of issues necessary for judicial resolution exists right now, and that this case is ripe for decision.

Plaintiff alleges that the expenses required to comply with the FWPCA regulations are its injury in fact. It maintains that it must now establish procedures consistent with the Corps' regulations — present operations must be revised, maintenance schedules changed, operational methods and procedures altered, pending and future projects delayed or aborted — all at considerable expense and inconvenience to plaintiff. It also claims that such expenditures are irreversible and irretrievable.

The Supreme Court has provided considerable guidance in the area of pre-enforcement review of agency regulations. Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) concerned pre-enforcement review of certain HEW prescriptive drug labeling regulations. The regulations were definitive and compliance was expected. They had the status of law and, as in this case, violations gave rise to civil and criminal penalties. The Court in Abbott Laboratories stated that:

These regulations purport to give an authoritative interpretation of a statutory provision that has a direct effect on the day-to-day business of all prescription drug companies; its promulgation puts petitioners in a dilemma that it was the very purpose of the Declaratory Judgment Act to ameliorate. 387 U.S. 136, 152, 87 S.Ct. 1507, 1517, 18 L.Ed.2d 681.

In that case petitioners faced the choice of complying with the regulations and incurring the costs of changing their promotional materials and labeling, or facing the risk of prosecution by following their present course. The Court rejected the government's contention that mere financial loss couldn't justify a judicial challenge:

But there is no question in the present case that petitioners have sufficient standing as plaintiffs: the regulation is directed at them in particular; it requires them to make significant changes in their everyday business practices; if they fail to observe the Commissioner's rule they are quite clearly exposed to the imposition of strong sanctions. 387 U.S. 136, 154, 87 S.Ct. 1507, 1518, 18 L.Ed.2d 681 (Emphasis Supplied).

The same considerations as in Abbott Laboratories are apparent in Puerto Rico's claim, plus an additional argument which significantly strengthens plaintiff's jurisdictional posture. The essence of this dispute is an apparent conflict between the extent of federal jurisdiction and the sovereignty of the Commonwealth of Puerto Rico. Puerto Rico argues, and the Court is in agreement, that the Commonwealth, by merely requesting from the federal government a permit for dredged or fill material to be discharged into its unnavigable waters, sustains injury to its claim of sovereignty over those unnavigable waters. Although a portion of the injury here is to the Commonwealth's sovereignty, a concept of freedom from external controls which operates to regulate the formal manner in which one political entity may interact with another such entity, that injury is nonetheless real and immediate.

This Court does not intend to write, nor does this case require, a treatise on the federal jurisdiction over Puerto Rican waters. The Declaratory Judgment Act appears well suited to this type of pre-enforcement regulatory review.⁵ Later piecemeal resolution of this controversy through individual enforcement proceedings would be costly and inefficient for all the parties here concerned. Gardner v. Toilet Goods Association, Inc., 387 U.S. 167, 173-4, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967).

The Corps' regulations are, for the purposes of this litigation, finalized in their intent and application as to the Commonwealth. The claims have sufficiently ripened so as to present this Court with a record which does reflect a sharpening of the issues as is required for judicial resolution of the controversy. Plaintiff has alleged injury in fact, giving plaintiff standing to bring this action. Therefore, for all of the foregoing reasons, defendants' motion to dismiss for lack of jurisdiction will be denied, and the Court will proceed to consider the merits of this case.

The Case on the Merits

This case is now before the Court on the parties' cross motions for summary judgment. The parties agree that the Army Corps of Engineers' regulations implementing Section 404 of the Federal Water Pollution Control Act, as amended 1972, 33 U.S.C. § 1344, expand the jurisdiction of the Corps to include the unnavigable waters of the Commonwealth of Puerto Rico. Though this broadening of federal regulatory power is not, in itself, at issue here, plaintiff does contend that the regulations exceed Congressional power to regulate the affairs of Puerto Rico insofar as the FWPCA is applied to the unnavigable waters of Puerto Rico.

Plaintiff argues that Puerto Rico is sui generis, neither a state nor a territory, but something between the two, whose relationship with the United States is derived from and defined by the ...