Feliciano v. United States, Civ. No. 388-68.

• Decision Date: 31 March 1969
• Docket Number: Civ. No. 388-68.
• Citation: 297 F. Supp. 1356
• Parties: Ramon FELICIANO, on his behalf and on behalf of all others similarly situated, Plaintiff, v. UNITED STATES, The President of the United States, and the Secretary of the Navy, Defendants.
• Court: U.S. District Court — District of Puerto Rico

297 F. Supp. 1356

Ramon FELICIANO, on his behalf and on behalf of all others similarly situated, Plaintiff, v. UNITED STATES, The President of the United States, and the Secretary of the Navy, Defendants.

Civ. No. 388-68.

United States District Court D. Puerto Rico.

March 31, 1969.

Jose A. Suro, San Juan, P. R., for plaintiff.

Charles E. Figueroa, Asst. U. S. Atty., San Juan, P. R., for defendants.

MEMORANDUM AND ORDER

CANCIO, Chief Judge.

Plaintiff has claimed, on behalf of himself and other residents of the Island of Culebra, Puerto Rico, that the defendants have illegally set up as a defensive sea area the waters out to the three-mile limit. He states that defendants control access to the Island and require all persons to obtain permission from them before entering the restricted area, in violation of the law and his constitutional rights. Defendants deny the control is illegal, allege that setting up of the defensive sea area is legal and entirely reasonable under the circumstances, and deny that their actions in any way constitute a taking of property belonging to plaintiff which would be compensable under the Fifth Amendment to the Constitution.

Plaintiff requested a temporary restraining order, which relief was denied by this Court after hearing the testimony of plaintiff and a number of other witnesses. Defendants have moved for dismissal of this action. After careful consideration of the testimony, all allegations, and the various memoranda filed herein, the Court has concluded that defendants' motion should be granted. This opinion will serve in place of findings of fact and conclusions of law.

Title 18 of the United States Code, Section 96, gave the President statutory authority to establish defensive sea areas in both war time and peace time, and the President has not abused his discretion in continuing in effect Executive Order No. 8684.

Executive Order No. 8684 designating the Culebra Island Naval Defensive Sea Area, was promulgated on February 14, 1941, pursuant to the authority given the President by 18 U.S.C. § 96. The pertinent language of that statute reads:

* * * or shall knowingly, willfully, or wantonly violate and duly authorized and promulgated order or regulation of the President governing persons or vessels within the limits of defensive sea areas, which defensive areas are hereby authorized to be established by order of the President from time to time as may be necessary in his discretion for purposes of national defense, * * *

The power of the President of the United States to establish defensive sea areas and issue orders or regulations governing persons or vessels within their limits, given by 18 U.S.C. § 96 as shown above, continues unimpaired in 18 U.S.C. § 2152. Section 2152 provides for the punishment of violators of:

any duly authorized and promulgated order or regulation of the President governing persons or vessels within the limits of defensive sea areas, which the President, for purposes of national defense may from time to time establish by executive order.

Unlike former Section 96, the current provision specifies the use of executive orders in conjunction with exercise of the granted power.

The repeal of Section 96 was accomplished only as part of the revision, codification, and enactment into positive law of Title 18, United States Code. 25 June 1948, Ch. 645, 62 Stat. 683. All former Title 18 sections were repealed and either transferred to other titles or omitted. (Notes preceding 18 U.S.C. § 1; H.Rpt. 304, 80th Cong., 1st Sess. 1947, p. 9) Section 96 was incorporated as new Section 2152. H.Rept. 304 supra, at A326 (incorporation of Act of March 4, 1917, Ch. 180, 39 Stat. 1194) Strong congressional desire not to disturb existing law more than necessary was manifested throughout the revision. No inference of legislative construction was to be drawn from the placement of sections or catchlines. (62 Stat. 862) Rights and liabilities existing under repealed sections were not to be affected by the repeal. (Id.) It was noted that the hundreds of sections repealed included all laws incorporated in the revision. (H.Rept. 304 supra, at 9.) A ponderous schedule of repeals was prepared to "lift from the courts the onerous task of ferreting out implied repeals." (Id.) It is clear that no omission of the President's power to establish and regulate defensive sea areas was intended or accomplished.

It is also clear that Congress would have revoked the executive orders promulgated under Section 96 if it had intended or desired that result. Such action was well within Congress' power.

Even if Section 96 had been omitted, and the President's power to establish defensive sea areas abolished, previous executive orders issued under Section 96 would remain valid and in effect until such time as they were specifically revoked.

This may be seen from the underlying rationale in United States v. Angcog, 190 F.Supp. 696 at 699-700 (D. C.Guam 1961), which in an analogous situation held as follows:

Since executive orders have the force and effect of statutes, United States v. J. D. Streett & Co., D.C.E.D.Mo. 1957, 151 F.Supp. 469, 476 modified 8 Cir., 1958, 256 F.2d 557, rules of statutory construction will be applied to the executive order in question.

The repeal of a law, by an implication arising from a subsequent one, is not favored. Rosenberg v. United States, 1953, 346 U.S. 273, 294, 73 S.Ct. 1152, 97 L.Ed. 1607.

* * * A law is not to be construed as impliedly repealing a prior law unless no other reasonable construction can be applied. United States v. Jackson, 1938, 302 U.S. 628, 631, 58 S.Ct. 390, 392, 82 L.Ed. 488.

`Repeals by implication are to be avoided if any other rational construction of the statute may retain the status quo of the existing law.' Birnie v. Permanente Metals Corp., 9 Cir. 1951, 192 F.2d 752, 754. Emphasis added by the District Court of Guam.

In United States v. Angcog, supra, the defendant was charged with unlawfully entering the Guam defensive sea area established by Executive Order No. 8683 (February 14, 1941, 6 F.R. 1015, promulgated simultaneously with Executive Order No. 8684) in violation of 18 U.S.C. § 2152. The Court rejected defendent's argument that Executive Order No. 8683 had been repealed by implication by the Organic Art of Guam (64 Stat. 384, 1950), reasoning that repeal by implication is not favored. Although in Angcog, supra, the Court did not specifically consider the effect of Section 2152 upon former Section 96, it did substitute Section 2152 for Section 96 in its reading of Executive Order No. 8683 and in reaching its holding that the executive order remained viable (Executive Order No. 8683 continued in effect until it was specifically revoked by Executive Order No. 11045, August 21, 1962, 27 F.R. 8511.).

If the recodification and revision of Title 18, United States Code, had resulted in the repeal of Executive Orders No. 8683 or 8684, then the Court in Angcog could not have substituted Section 2152 for Section 96 as mentioned above. Consequently, this Court holds that the revision and recodification of Title 18, United States Code, has not affected the validity of Executive Order No. 8684.

It is to be noted that the statute (18 U.S.C. § 96) did not limit the authority of the President to war time or any other specified contingency. On the contrary, it gave the President discretion to decide when the national defense required a defensive sea area: "It is settled that to all administrative regulations purporting to be made under authority legally delegated there attaches a presumption of the existence of facts justifying the specific exercise." Bailey v. Holland, 126 F.2d 317, 322 (4 Cir. 1942), and cases cited therein. Far from refuting this presumption, the record gives ample evidence of the necessity of the Culebra Island Naval Defensive Sea Area, thus bolstering the presumption that the President has not abused his discretion in continuing in effect Executive Order No. 8684.

Historically, presidents have issued executive orders designating defensive sea areas pursuant to the authority of 18 U.S.C. § 96 and, later, 18 U.S.C. § 2152, in both war time and peace time. Some of those created in war time were repealed at the end of the war and others so created remained in effect during peace time. Some created in peace time remained in effect through alternate periods of peace and war which followed.

There has been no presidential revocation of Executive Order No. 8684; it is therefore concluded that Executive Order No. 8684, if constitutional, continues in full force and effect.

Title 48, Section 749 of the United States Code does not prevent the authority granted by 18 U.S.C. § 96 from applying to Puerto Rico.

Section 749 of 48 U.S.C. enacted on March 2, 1917, two days prior to that portion of 18 U.S.C. § 96 which gave the President authority to designate defensive sea areas reads today as follows:

§ 749. Harbors and navigable waters transferred.

The harbor areas and navigable streams and bodies of water and submerged lands underlying the same in and around the Island of Puerto Rico and the adjacent islands and waters, owned by the United States on March 2, 1917, and not reserved by the United States for public purposes, are placed under the control of the government of Puerto Rico, to be administered in the same manner and subject to the same limitations as the property enumerated in Sections 747 and 748 of this Title. All laws of the United States for the protection and improvement of the navigable waters of the United States and the preservation of the interests of navigation and commerce, except so far as may be locally inapplicable, shall apply to said island and waters and to its adjacent islands and waters. Nothing in this chapter contained shall be construed so as to affect or impair in any manner the terms or conditions of any authorizations, permits or other powers lawfully granted or exercised in or in

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