U.S. v. Rivera Torres

Decision Date05 June 1987
Docket NumberNo. 87-1186,87-1186
Parties, 17 Envtl. L. Rep. 21,285 UNITED STATES of America, Plaintiff, Appellee, v. Manuel RIVERA TORRES, Defendant, Appellant. . Heard
CourtU.S. Court of Appeals — First Circuit

Edelmiro Salas Garcia with whom Ricardo R. Perez Pietri, was on brief, for defendant, appellant.

Sarah P. Robinson, Dept. of Justice, with whom Robert L. Klarquist, Dept. of Justice, F. Henry Habicht II, Asst. Atty. Gen., Daniel F. Lopez-Romo, U.S. Atty., and Eduardo E. Toro Font, Asst. U.S. Atty., were on brief, for plaintiff, appellee.

Before COFFIN, DAVIS * and TORRUELLA, Circuit Judges.

TORRUELLA, Circuit Judge.

This interlocutory appeal from an injunction issued to enforce violations of the Fed Water Pollution Control Act, 33 U.S.C. Secs. 1251 et seq., commonly known as the Clean Water Act (CWA), raises three issues: (1) whether the Puerto Rico Federal Relations Act, 48 U.S.C. Secs. 731 et seq. (FRA), precludes the application of the CWA in Puerto Rico, (2) whether the pendency of certain proceedings before the courts of the Commonwealth of Puerto Rico deprives the United States District Court for the District of Puerto Rico of jurisdiction to entertain a suit for violation of the CWA, and (3) whether appellant can claim a "taking" of his property in violation of his constitutional rights by reason of the designation of part of his property as a "wetland" under the CWA. We conclude that the district court properly complied with the requirements for the issuance of a preliminary injunction, Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981), and that appellant has failed to carry the "heavy burden of proving that the district court abused its discretion." Commonwealth of Massachusetts v. Watt, 716 F.2d 946, 947-948 (1st Cir.1983).

Appellant owns three parcels of land in Punta Picua, Rio Grande, Puerto Rico, located on the northeastern coast of the island. Because the United States Corps of Engineers (Corps) concluded that he was engaged in the filling of certain mangrove areas located on his property, deemed "wetlands" by the Corps, without a permit, various unsuccessful cease and desist orders were issued against him. Thereafter the Corps brought an action to restrain appellant's activities, to force him to restore those areas into which he had deposited fill, and to pay civil penalties for his violations of the CWA. The district court issued a temporary restraining order, and thereafter, the preliminary injunction subject of this appeal, 656 F.Supp. 251.

The Puerto Rico Federal Relations Act (FRA)

It is appellant's contention that Sections 7 and 8 of the FRA, 48 U.S.C. Secs. 747, 749, preclude the application of the CWA in Puerto Rico. Pursuant to Section 7 of the FRA, 48 U.S.C. Sec. 747, Congress transferred ownership to Puerto Rico of certain specified public assets and domains acquired in Puerto Rico by the United States under the cession of Spain resulting from the Spanish-American War. Furthermore, it authorized the Legislature of Puerto Rico, "subject to the limitations imposed upon all its acts, to legislate with respect to all such matters as it may deem advisable." 1

In Section 8 of the FRA, 48 U.S.C. Sec. 749, "[t]he harbor areas and navigable streams and bodies of water ... in and around ... Puerto Rico ... owned by the United States on March 2, 1917, and not reserved by the United States for public purposes, [were] 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 [Section 7]." 2 It further provided that "[a]ll 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 the same may be locally inapplicable, shall apply to" Puerto Rico and its waters. Id. (emphasis supplied); see Section 9 of the FRA, 48 U.S.C. Sec. 734. 3

The CWA 4 has as its objective to "restore and maintain the chemical, physical and biological integrity of the Nation's waters," 33 U.S.C. Sec. 1251(a), in support of which it prohibits the discharge of any pollutant into the navigable waters, unless a permit has been granted by the Corps. 33 U.S.C. Secs. 1311(a), 1362(12). Rock and sand fill is included within the statutory definition of "pollutant." 33 U.S.C. Sec. 1362(6). The CWA defines "navigable waters" as "the waters of the United States, including the territorial seas." 33 U.S.C. 1362(7). Congress intended said term to be given "the broadest constitutional interpretation." Conference Report on Section 2770, reprinted in 1 A Legislative History of the Water Pollution Control Act Amendments of 1972, at 178. Thus, this term has been held to include wetlands adjacent to such navigable waters. Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 914-917 (5th Cir.1983); United States v. Riverside Bayview Homes, 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). See 33 C.F.R. Sec. 323(c). In defining the term "State," the CWA included "the Commonwealth of Puerto Rico" within its circumscription. 33 U.S.C. Sec. 1362(3).

The crux of appellant's argument is that the CWA is "locally inapplicable" because the Commonwealth of Puerto Rico has enacted legislation which supersedes the CWA. It is also appellant's contention that Sections 7 and 8 of the FRA constitute a "complete delegation of power to the government of Puerto Rico for the sole exercise of jurisdiction and authority to resolve all local matters relative to [its navigable and non-navigable waters]." Appellant's Brief, at 7.

We begin with the proposition that Congress can, pursuant to the plenary powers conferred by the Territorial Clause, 5 legislate as to Puerto Rico in a manner different from the rest of the United States. Harris v. Rosario, 446 U.S. 651, 100 S.Ct. 1929, 64 L.Ed.2d 587 (1980); Califano v. Torres, 435 U.S. 1, 98 S.Ct. 906, 55 L.Ed.2d 65 (1978); Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088 (1901); Perez de la Cruz v. Crowley Towing & Transp. Co., 807 F.2d 1084, 1088 (1st Cir.1986); Guerrido v. Alcoa Steamship Co., 234 F.2d 349, 354-355 (1st Cir.1956). We shall therefore assume that Congress can, if it so desires, exclude Puerto Rico from application of the CWA. Thus, the first issue that must be resolved is whether Congress took such action. We rule that it did not.

In point of fact the CWA has been consistently applied by the courts to land and waters located in Puerto Rico. See United States v. Berenguer, 821 F.2d 19 (1st Cir.1987); United States v. Commonwealth of Puerto Rico, 551 F.Supp. 864 (D.P.R.1982) (Torruella, J.), aff'd, 721 F.2d 832 (1st Cir.1983); Barcelo v. Brown, 478 F.Supp. 646, 663-667 (D.P.R.1979) (Torruella, J.), aff'd, 643 F.2d 835 (1st Cir.1981), aff'd sub. nom. Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982); Commonwealth of Puerto Rico v. SS Zoe Colocotroni, 456 F.Supp. 1327, 1347-1352 (D.P.R.1978) (Torruella, J.), aff'd, 602 F.2d 12 (1st Cir.1979); USI Properties v. E.P.A., 517 F.Supp. 1235 (D.P.R.1981); Commonwealth of Puerto Rico v. Alexander, 438 F.Supp. 90 (D.D.C.1977); P.F.Z. Properties v. Train, 393 F.Supp. 1370 (D.D.C.1975). This is an outcome clearly mandated by the definitional standards previously indicated. See ante at 154; 33 U.S.C. Sec. 1362. Furthermore, we can find nothing in the legislative history of the CWA, nor has appellant pointed to anything, indicating a desire in Congress to exclude Puerto Rico from its application. See 1972 U.S. Code Cong. & Admin. News 3741 et seq. In fact, because Congress considered the pollution of the waters of the United States to be a problem of national importance, see ante at 153, 33 U.S.C. Sec. 1251, there is every reason to conclude that Puerto Rico would not have been excluded. We thus rule that, on its face, the CWA covers Puerto Rico.

We thus come to question whether there is some reason, external of the CWA, that makes this statute "locally inapplicable" to Puerto Rico.

In fairness to appellant, of the above cases applying the CWA in Puerto Rico, only in Colocotroni and Alexander was the relationship of the FRA to the CWA in any way considered, and in Colocotroni, this issue was only tangentially touched upon. Colocotroni, supra, 456 F.Supp. at 1337. In Alexander, however, the district court specifically ruled upon this issue.

In Alexander the Commonwealth of Puerto Rico sought a declaratory judgment to the effect that the CWA and its regulations were inapplicable to the non-navigable waters of Puerto Rico because such waters were of purely local concern and thus within the exemption established by the FRA. See Section 8 of the FRA, 48 U.S.C. Sec. 749; ante at 154. The court ruled against the Commonwealth's assertions, indicating that by the inclusion in the CWA of Puerto Rico within the definition of "State," Alexander, supra, 438 F.Supp. at 95 n. 7, and the extension of federal jurisdiction " 'over the nation's waters to the maximum extent permissible under the Commerce Clause of the Constitution'," id. at 95 (citing from Natural Resources Defense Council, Inc. v. Callaway, 392 F.Supp. 685 (D.D.C.1975)), Congress manifested an intention that the CWA "not fall within the limited exception for locally inapplicable federal statutes" as provided in the FRA. Id. at 96. We agree with this conclusion.

Although each statute must be examined independently to determine whether the "locally inapplicable" exemptions of the FRA apply, i.e., Secs. 8, 9, supra, we should point out that, as noted by the court in Alexander, this exclusion has been narrowly interpreted. Thus most federal legislation considered by the courts has been held applicable to Puerto Rico. United States v. Quinones, 758 F.2d 40 (1st Cir.1985) (Omnibus Control Act); United States v. Ferrer, 613 F.2d 1188 ...

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