Serrano-Lopez v. Cooper

• Decision Date: 04 April 2002
• Docket Number: Civ. No. 02-1460 (PG).
• Parties: Hon. Damaso SERRANO LOPEZ, et al., Plaintiffs, v. Gregory COOPER, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

193 F.Supp.2d 424

Hon. Damaso SERRANO LOPEZ, et al., Plaintiffs, v. Gregory COOPER, et al., Defendants.

Civ. No. 02-1460 (PG).

United States District Court, D. Puerto Rico.

April 4, 2002.

COPYRIGHT MATERIAL OMITTED

Hiram Lozada-Perez, Hato Rey, for Plaintiff.

Isabel Munoz-Acosta, U.S. Atty's Office, San Juan, PR, for Defendant.

OPINION AND ORDER

PEREZ-GIMENEZ, District Judge.

I. INTRODUCTION

Before the Court is a "Motion to Dismiss and Memorandum of Law in Support of Motion to Dismiss and Opposition to Request for Injunctive Relief" ("Mot. to Dismiss") (Docket No. 5) filed on April 1, 2002. The complaint in this case was originally filed in the Court of First Instance of the Commonwealth of Puerto Rico, Fajardo Part, on Thursday, March 21, 2002. It was removed to this Court on Tuesday, March 26, 2002 pursuant to 28 U.S.C. §§ 1441, 1442 and 1442(a) (See Docket No. 1). Plaintiffs bring this lawsuit against 1) Gregory Cooper in his official capacity as Commanding Officer of the Atlantic Fleet Weapons Training Facility of the United States Navy; 2) Gordon England, Secretary of the United States Navy; 3) Donald Rumsfeld, Secretary of the United States Department of Defense; 4) Kevin Green, Rear-Admiral of the United States Navy; and 5) several unnamed defendants. In their complaint, Plaintiffs request preliminary and permanent injunctions under the laws of the Commonwealth of Puerto Rico to forestall naval training and activities on the island of Vieques.

On March 27, 2002 this Court dismissed all but one of the Plaintiffs from this lawsuit for lack of standing. (Docket No. 3). Therefore, the only remaining Plaintiff is Hon. Dámaso Serrano-López, Mayor of the municipality of Vieques. For the reasons stated below this Court GRANTS Defendants' Motion to Dismiss, and therefore, DENIES Plaintiff's request for a preliminary and permanent injunction.

In summary, the Court finds that the factors to be considered pursuant to a request for injunctive relief weigh against granting such relief in this case. Moreover, several procedural faults in Plaintiff's complaint weigh in favor of dismissing it. First and foremost, there has been no waiver of sovereign immunity and therefore, the court does not have subject matter jurisdiction to hear this case. Second, the act which forms the basis of Plaintiff's complaint, the Coastal Zone Management Act ("CZMA"), codified as amended at 16 U.S.C. §§ 1451-1465 (1972), does not provide him with a direct cause of action to bring this lawsuit. Third, even if we assume arguendo, that Plaintiff could and is bringing this action under the Administrative Procedure Act ("APA"), codified as amended at 5 U.S.C. §§ 551-559, 701-706 (1994), Plaintiff still lacks standing to bring this lawsuit. Finally, the Court also finds that Defendants have complied with the requirements of the CZMA and that the alleged violations of Plaintiff's constitutional rights are not traceable to and will not result from Defendants' activities.

II. FACTUAL BACKGROUND

A. THE RELEVANT MILITARY EXERCISES

Beginning on April 1, 2002 the Navy plans to conduct a Composite Training Unit Exercise ("COMPTUEX") which is expected to run for a period of three weeks. (See Mot. to Dismiss, Ex. I, Declaration of Captain Michael Vitale, Chief of Staff for Commander, Carrier Group FOUR). Other Multiple Unit Level Training ("ULT") activities will also take place at the Vieques Inner Range. Some of these exercises are being conducted in an effort to prepare USS GEORGE WASHINGTON (CVN 73) Aircraft Carrier Battle Group for an upcoming assignment overseas in which it will join other Groups from the Atlantic Fleet in their intensive combat operations against terrorism. (See Mot. to Dismiss, Ex. II, Declaration of Admiral Lidnell G. Rutherford, ¶ 9). The training exercises in Vieques will involve different scenarios and activities including: 1) air-to-ground bombing, 2) Naval Surface Fire Support, 3) Close Air Support strikes, Combat Search and Rescue, 4) and Naval Special Warfare unit level training. (See Mot. to Dismiss, Ex. I).

B. THE VIEQUES REFERENDUM

On July 29, 2001 the residents of the island of Vieques went to the polls to cast their vote in a referendum held on whether the Navy should be allowed to continue their military training exercises on the island. The majority voted against the Navy continuing its operations in Vieques. This referendum took place pursuant to a bill signed on June 13, 2001 by Hon. Sila María Calderón, Governor of the Commonwealth of Puerto Rico. See 2001 P.R. Laws 34. ("Law 34").

Plaintiff requests relief for the Navy's failure to observe the majority vote in this referendum. However, nothing in Plaintiff's complaint would support his proposal that this referendum is binding on either the Government of the Commonwealth of Puerto Rico or the United States. Neither is there any support in the law itself for this proposition. In fact, the only effect of the law is set out in its Statement of Motives wherein it says that "[i]n the event that the majority of voters choose the option that asks for the immediate and permanent cessation of the Navy's military exercises and bombarding in Vieques, the population of Vieques will be clearly expressing their democratic will and their desire for the permanent cease of any kind of military training in the municipality." (See Statement of Motives of Law 34) (translation ours). Like the title of the law suggests,¹ the referendum was simply an "electoral consultation" to the people of Vieques regarding their views about the presence of the Navy in the island.

In making reference to another referendum where the residents of Puerto Rico were asked to express their views with regards to the political status of the Commonwealth, this Court stated that "[it was] mindful that any referendum, such as this one, is not binding on Congress." Popular Democratic Party v. Commonwealth of Puerto Rico, 24 F.Supp.2d 184, 195 (D.P.R.1998); see also New Progressive Party v. Colon, 779 F.Supp. 646, 662 (D.P.R.1991). Ultimately, the Supremacy Clause of the United States Constitution forbids us from embracing Plaintiff's suggestion that the Navy is obliged to cease operations in Vieques pursuant to the results of the July 2001 referendum. See United States v. Chester, 144 F.2d 415, 419-20 (3rd Cir.1944) (the exemption of the federal government from state and local zoning laws stems from the Supremacy Clause). A referendum cannot halt the Navy's endeavor to fulfill their duties under the United States Code which entail the military practices in Vieques scheduled for this month. As Defendants correctly point out, "[a] state statute, a local enactment or regulation or a city ordinance, even if based on the valid police powers of a state, must yield in case of direct conflict with the exercise by the government of the United States of any power it possesses under the Constitution." Pan American Health Organization v. Montgomery County, Md., 889 F.Supp. 234, 238-39 (D.Md.1994).

Therefore, even if we found Law 34 was intended to somehow be binding, we here find it cannot be binding on Congress or the Navy under the Supremacy Clause of the U.S. Constitution. Additionally, any intended effects of the results of the referendum must surrender against the "operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government." City of Los Angeles v. United States, 355 F.Supp. 461, 464 (C.D.Cal.1972). For these reasons we find that any claims Plaintiff is making on the basis of the Navy's or the United States' failure to observe and abide by the wishes of majority of voters in the July 29, 2001 referendum are without merit. Equitable relief on this basis is hereby DENIED.

C. THE COASTAL ZONE MANAGEMENT ACT

Plaintiff's causes of action are brought under the Constitution of the Commonwealth of Puerto Rico and the CZMA. The CZMA is a "federal law administered by the National Oceanographic and Atmospheric Administration [(`NOOA')], which, in turn, has delegated some authority for administration to the States." United States v. San Juan Bay Marina, 239 F.3d 400, 404 (1st Cir.2001). Puerto Rico is considered a state for these purposes. Id.

The general purpose behind the enactment of the CZMA was for the federal government to assist coastal states in effectively exercising their management responsibilities in an effort to preserve, protect, and develop the nation's coastal zone. 16 U.S.C. § 1452. States are responsible for developing a Coastal Management Plan ("CMP") and the NOAA decides whether to approve each state's CMP. A designated local agency which serves as liaison between the NOAA and the state is responsible for developing the CMP. In Puerto Rico this agency is the Puerto Rico Planning Board ("Junta de Planificación Ambiental") ("PRPB") and they have had a NOAA approved CMP since 1978. In return for carrying out the management programs of their coastal zones, states are eligible for federal grants as determined by the Secretary of Commerce. States also gain the right to influence activities carried out by federal agencies that might affect a coastal zone or its resources. The Act requires that all federal agencies carry out their activities "in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved State management programs." 16 U.S.C. § 1456(C)(1)(A).

Part 930 of the Code of Federal Regulations sets out the procedural framework for implementing the CZMA and achieving federal consistency with approved coastal management programs. If a federal agency foresees it will engage in activities that will affect any coastal use or resource, it must develop and submit a consistency determination to the state agency, the PRPB in Puerto Rico, with "sufficient information to reasonably determine the consistency of the activity" with the local CMP. 15 C.F.R. § 930.34(A)(1) & 930.36(B)(1) Note (200...