Montijo-Reyes v. U.S., 05-1353.

• Decision Date: 24 January 2006
• Docket Number: No. 05-1353.,05-1353.
• Citation: 436 F.3d 19
• Parties: Clara MONTIJO-REYES; Jorge Pimentel-Milanes; Rohaldo Velazquez-Galarza; Iluminada Serrano-Reyes; Ana Aviles-Santiago; Emma Ruiz-Llaneza; Xavier I. Gonzales; Irma Jimenez; Esteban Maltes, Plaintiffs, Appellants, v. UNITED STATES of America, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

436 F.3d 19

Clara MONTIJO-REYES; Jorge Pimentel-Milanes; Rohaldo Velazquez-Galarza; Iluminada Serrano-Reyes; Ana Aviles-Santiago; Emma Ruiz-Llaneza; Xavier I. Gonzales; Irma Jimenez; Esteban Maltes, Plaintiffs, Appellants, v. UNITED STATES of America, Defendant, Appellee.

No. 05-1353.

United States Court of Appeals, First Circuit.

Heard September 15, 2005.

Decided January 24, 2006.

Miguel Sarriera-Roman for appellants.

Isabel Muñoz-Acosta, United States Attorney, with whom Miguel A. Fernandez, Assistant United States Attorney, and H.S. Garcia, Assistant United States Attorney, were on brief, for appellee.

Before SELYA and LYNCH, Circuit Judges, RESTANI^*, Judge.

RESTANI, Judge.

Plaintiffs-Appellants, owners of properties located near La Marginal Beach in Puerto Rico, bring this action pursuant to the Federal Tort Claims Act ("FTCA") for damages to their homes resulting from the disposal of dredged material on La Marginal Beach under the direction of the U.S. Corps of Engineers ("Corps"). Plaintiffs appeal the district court's grant of summary judgment in favor of the United States holding that (1) the Corps' disposal activity is protected by the discretionary function exception to the FTCA, and (2) there is no causal connection between the violation of a specific requirement and the injuries caused by the discharge of dredged material. We agree with the district court that there is no jurisdiction for it to entertain this suit under the FTCA, and we affirm its judgment.

BACKGROUND¹

By public notice dated January 20, 1999, the Corps proposed emergency maintenance dredging involving approximately 60,000 to 80,000 cubic yards of shoal material from the federally authorized navigation channel in Arecibo Harbor. For disposal of the dredged material, the Corps proposed placement upland on Port Authority property, with nearshore placement as the next alternative. By letter dated March 1, 1999, the Puerto Rico Environmental Quality Board ("EQB") required the Corps to submit additional dredging project documentation and to obtain a water quality certificate.

In response the Corps submitted an Environmental Assessment, which increased the estimated cubic yards of dredged to 150,000. The Assessment explained that upland disposal was discarded because it was a more costly alternative. Instead, the Corps concluded that

the material to be removed is considered suitable for downdrift beach and shore nourishment. Erosion, partly related to sea level rise, has been an ongoing problem along the Arecibo coast for many years . . . Therefore, it is appropriate and beneficial to dispose of the dredge material back into the natural littoral drift of the region.

By letter dated July 27, 1999, the Corps requested a waiver of water quality certificate from the EQB for the nearshore disposal of dredged material from Arecibo Harbor. The EQB granted an exemption to the water quality certificate on August 6, 1999, for deposit of the dredged material "in the Arecibo river banks, in order to help combat the erosion problems that exist in the beaches along the Arecibo coast." An environmental survey of the nearshore disposal site revealed that the site consisted of hardbottom habitats of invertebrates, fish, and marine reptiles, so the Corps revised its plan to beach only disposal.²

Nonetheless, on June 19, 2000, the Corps began disposal in the open waters of the United States, which had never been suggested as an alternative. Soon thereafter, disposal was halted because the United States Fish and Wildlife Service ("USFWS") discovered that the dredged material was being deposited on a coral hard-ground community.³ The Corps proposed a new disposal method along the shoreline instead of the near-shore disposal site to minimize the impact to hard-ground habitats and potential marine life. By the July 2001 project completion date, almost all of the dredged material had been placed directly on La Marginal Beach, in front of Paseo Victor Rojas and across from Plaintiffs' properties. As a result, the beach height increased approximately fifteen feet along the entire beach area and was leveled with Paseo Victor Rojas to an estimated width of 1000 feet. The street was protected from blowing sand by a stone concrete wall and silt fence.

On September 25, 2001, Plaintiffs filed a complaint pursuant to the provisions of the FTCA, alleging damages resulting from sand and dust carried from the Corps' disposal site. The complaint alleged that the Corps discharged dredged materials in violation of both the CWA and the WQSR because the Corps did not receive a water quality certificate or an exemption from the EQB for the specific disposal site as required by the WQSR.⁴

The government filed a motion for summary judgment on the grounds that Plaintiffs' FTCA claims are precluded by the discretionary function exception to the FTCA and are not based on viable tort claims under Puerto Rico law. While the court agreed with Plaintiffs that "local law establishes a permit or waiver requirement from the Puerto Rico EQB for depositing [dredged material] along the Arecibo coastline," it did not agree "that this condition totally abrogates the discretion envisioned in § 2680(a)." Montijo-Reyes v. United States, 349 F.Supp.2d 234, 239 (D.P.R.2004). The court concluded that the discretionary function exception applied because "the permit or waiver requirement was but one of many factors that the Corps had to take into its calculus in making its site selection." Id. Moreover, the court concluded that Plaintiffs did not show "the necessary causal connection between the Corps' failure to comply with the [CWA] and the losses complained of in the complaint." Id. at 240.

DISCUSSION

I. Clean Water Act and Puerto Rico Water Quality Requirements

The CWA makes it unlawful to discharge pollutants into navigable waters outside of the CWA's permit requirements. See 33 U.S.C. § 1311(a) (2000). In order to receive a CWA permit, an applicant must provide a certification "from the State in which the discharge originates or will originate." Id. § 1341(a)(1); see 33 C.F.R. § 336.1(a)(1), (8) (the CWA requires the Corps to seek state water quality certification for discharges of dredged or fill material into waters of the United States).⁵ Additional provisions of the CWA make it clear that "Congress waived the federal government's sovereign immunity with respect to state regulation of dredging and water pollution." Friends of the Earth v. United States Navy, 841 F.2d 927, 934 (9th Cir.1988). Section 1344(t) provides:

Nothing in this section shall preclude. . . the right of any State . . . agency to control the discharge of dredged or fill material in . . . the navigable waters within the jurisdiction of such State, including any activity of any Federal agency, and each such agency shall comply with such State or interstate requirements both substantive and procedural to control the discharge of dredged or fill material to the same extent that any person is subject to such requirements.

33 U.S.C. § 1344(t). Section 1323 provides:

Each [federal agency] . . . shall . . . comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental agency . . . [This] shall apply (A) to any requirement whether substantive or procedural (including . . . any requirement respecting permits and any other requirement, whatsoever).

Id. § 1323(a).

The WQSR states that it was promulgated by the EQB in accordance with the Environmental Policy Act, in order "to preserve, maintain and enhance the quality of the waters of Puerto Rico in such manner that they be compatible with the social and economic needs of the Commonwealth of Puerto Rico." WQSR Decl. of Goals & Purposes. To meet this goal, the WQSR requires a water quality certificate prior to the discharge of pollutants into Puerto Rico's waters, WQSR Art. 6.1.2, 6.11, unless the EQB grants an exemption under WQSR Art. 6.1.3.

In the instant case, we do not determine whether the Corps violated the CWA and WQSR by discharging dredged material from Arecibo Harbor on La Marginal Beach. We do not need to decide any issue of the scope of the CWA waiver of sovereign immunity, or whether that waiver extends to actions under the FTCA. Neither do we need to decide whether state law may provide a mandatory duty such as to defeat the discretionary function exception. Instead, we decide the case on the independent ground that there is an insufficient causal link between the alleged failure to comply with the Puerto Rico water quality regulations and the alleged harm.

II. Federal Tort Claims Act

The FTCA provides a limited waiver of the United States government's sovereign immunity "for injury or loss of property . . . caused by the negligent or wrongful act or omission of any employee of the Government . . . under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b) (2000). This waiver of sovereign immunity itself has exceptions, which "define the limits of federal subject matter jurisdiction in this area." Hydrogen Tech. Corp. v. United States, 831 F.2d 1155, 1161 (1st Cir.1987). We review de novo a district court's dismissal for lack of subject matter jurisdiction under the FTCA's discretionary function exception. See Shansky v. United States, 164 F.3d 688, 690 (1st Cir.1999).

The discretionary function exception immunizes the federal government from FTCA claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). The basis for the discretionary...