US v. Rivera Torres, Civ. No. 86-1917.

• Decision Date: 20 February 1987
• Docket Number: Civ. No. 86-1917.
• Citation: 656 F. Supp. 251
• Parties: UNITED STATES of America, Plaintiff, v. Manuel RIVERA TORRES, Defendant.
• Court: U.S. District Court — District of Puerto Rico

656 F. Supp. 251

UNITED STATES of America, Plaintiff, v. Manuel RIVERA TORRES, Defendant.

Civ. No. 86-1917.

United States District Court, D. Puerto Rico.

February 20, 1987.

Daniel Lopez Romo, U.S. Atty., Eduardo E. Toro Font, Asst. U.S. Atty., Hato Rey, P.R., for plaintiff.

Edelmiro Salas Garcia, Santurce, P.R., for defendant.

OPINION AND ORDER

GIERBOLINI, District Judge.

This is an action brought by the United States seeking injunctive and punitive relief to prevent defendant, Manuel Rivera Torres (Rivera) from filling certain wetlands within a large plot of land located in Punta Picúa, Río Grande, Puerto Rico. This case is presently before us on the United States' motion for a preliminary injunction and defendant's opposition thereto. Jurisdiction is invoked under 28 U.S.C. § 1345 and under the Federal Water Pollution Control Act (commonly known as the Clean Water Act), 33 U.S.C. § 1251 et seq.

The sector of Punta Picúa is located on the northern coast of Puerto Rico, in the municipality of Río Grande. Within that sector lies a large farm measuring 782.73 "cuerdas" (cds.)¹, whose original owner was U.S. Industries, Inc. Most of this farm is covered by a large mangrove forest, but its northern portion is beachfront property. On July 5, 1983, U.S. Industries, Inc. divided the farm into thirty narrow tracks of at least 25 cds. each, which it sold to private parties. Each of these tracks has access to the beach. Rivera presently owns lots numbered 11, 17 and 18 of the larger farm.²

On February 20, 1985, the United States Army's Corps of Engineers (the Corps) performed an aerial surveillance over Punta Picúa and discovered that heavy machinery was being operated near the area covered by the mangrove forest within lots 17 and 18. Because the Corps understood that this forest was a wetland under its jurisdiction, it notified Rivera that he needed a permit before filling any wetlands in his property. On July 26, 1985, the Corps issued a cease and desist order to Rivera. On September 17, 1985, both parties agreed on a restoration plan for the wetland areas that Rivera had filled. Rivera apparently reneged because according to the Corps on February 6, 1986, he was again spotted depositing fill material on lots numbered 5 and 6 of the larger farm. On November 5, 1986, the Corps issued a second cease and desist order to Rivera, ordering him to stop filling the wetlands located within lots 10 and 11. Consistent with his pattern of conduct, on December 11, 1986, Rivera worked with heavy machinery in the wetlands area within lots 17 and 18. Officers of the Corps approached Rivera and requested that he stop filling the wetlands and cutting down trees. Rivera refused.

The United States brought the instant action against Rivera, requesting a temporary restraining order to enjoin him from further filling the wetlands in his property. Said order was issued on December 24, 1986. We held an evidentiary hearing on January 5, 1987 and thereafter conducted a site inspection of the Punta Picúa area. Both parties have filed legal memoranda before us and the matter now stands submitted.

Before addressing the United States' request, we shall first resolve some jurisdictional questions raised by Rivera in his memorandum of law. Rivera argues that we lack jurisdiction to entertain this action on three grounds: 1) that the Clean Water Act does not apply to Puerto Rico; 2) that the mangrove forest in Punta Picúa is not a wetland, and 3) that this matter is already subjudice at the Puerto Rico courts. We consider that the first two arguments actually question the standing of the United States to bring this action and the jurisdiction of the Corps over Punta Picúa while the third one questions our subject matter jurisdiction. We shall address each contention in turn.

The Clean Water Act (the Act) makes it unlawful for any person to discharge any pollutant into the waters of the United States, unless that person falls under any of the exceptions contained therein. 33 U.S.C. § 1311(a). Pursuant to 33 U.S.C. § 1344(a), the Secretary of the Army (the Secretary) may issue permits for the discharge of fill materials into the waters of the United States. In doing so, the Secretary acts through the Chief of Engineers, who enacts the regulations that apply to this section. 33 U.S.C. § 1344(d). If a person fails to obtain such a permit before discharging any fill materials, the United States may take a civil action before the federal district court where the violation took place to request appropriate relief. 33 U.S.C. § 1319(b). The person is further exposed to both civil and criminal penalties. 33 U.S.C. § 1319(c) and (d).

Rivera asserts that the Corps of Engineers lacks jurisdiction over Punta Picúa because Congress has transferred to the government of Puerto Rico its control over the island's navigable waters by enacting Section 8 of the Puerto Rican Federal Relations Act, 48 U.S.C. § 749. This statute, in relevant part, reads as follows:

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, ..., are placed under the control of the government of Puerto Rico ... 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 the same may be locally inapplicable, shall apply to said island and waters and to its adjacent islands and waters ...

This statute grants the Commonwealth of Puerto Rico a limited power to make "locally inapplicable" a federal maritime statute which Congress has not specifically applied to Puerto Rico by enacting inconsistent legislation. That is the lesson taught by cases like Guerrido v. Alcoa Steamship Co., 234 F.2d 349, 355 (1st Cir. 1956); Feliciano v. United States, 297 F.Supp. 1356, 1361 (D.P.R.1969), aff'd, 422 F.2d 943 (1st Cir.1970), cert. denied, 400 U.S. 823, 91 S.Ct. 44, 27 L.Ed.2d 51 (1970). However, this does not authorize the Commonwealth to supplant a maritime rule that Congress, in the exercise of its constitutional power over the United States' territories, has expressly made applicable to Puerto Rico. United States v. Ferrer, 613 F.2d 1188, 1193 (1st Cir.1980); García v. Friesecke, 597 F.2d 284, 287 (1st Cir.), cert. denied, 444 U.S. 940, 100 S.Ct. 292, 62 L.Ed.2d 306 (1979); Guerrido, supra. Congress expressly made the Clean Water Act applicable to Puerto Rico by including it under the Act's definition of "State". 33 U.S.C. § 1362(3). It has been further held that Section 1344, the specific section in controversy, applies to Puerto Rico. Commonwealth of Puerto Rico v. Alexander, 438 F.Supp. 90, 96 (D.D.C.1977).

To buttress his claims, Rivera relies primarily on the recent decision by the Court of Appeals for the First Circuit in the case of Pérez de la Cruz v. Crowley Towing and Transportation Co., 807 F.2d 1084 (1st Cir.1986). We find, however, that reliance on that case is mislaid. In Pérez de la Cruz, the statute in question was the Jones Act, 46 U.S.C. § 688, which provides for a remedy to seamen suffering accidents in the waters of the United States. Puerto Rico had enacted its own legislation granting such remedy to resident seamen within the Puerto Rico Workmen's Accident Compensation Act, 11 L.P.R.A. §§ 1-42. After citing a long line of First Circuit decisions regarding the applicability of the Jones Act to Puerto Rico, the court held that Puerto Rico had displaced federal maritime law with respect to accidents to its resident seamen by enacting inconsistent local legislation. Pérez de la Cruz, at 1089. We must note, however, that unlike the case of the Clean Water Act, Congress never made the Jones Act expressly applicable to Puerto Rico. Furthermore, Rivera has failed to cite or even mention a single piece of legislation by the Commonwealth of Puerto Rico that could be inconsistent with the Clean Water Act. But even if he had, we still could not hold that it could overrule the express intent of Congress to apply the Act to Puerto Rico. Guerrido, supra. It is beyond cavil, and so we hold, that the Clean Water Act, and specifically Section 1344, applies to Puerto Rico.

We must also note that Section 1344 itself provides for the implementation by States of their own permit program, which would substitute the Federal permit program once the former is approved by the Secretary. 33 U.S.C. § 1344(h). Puerto Rico, like any State, may establish such a program under this section. Since Rivera has not shown that such a program exists in Puerto Rico, and our research reveals that the Secretary has approved none, we are compelled to conclude that the Corps and the United States may enforce the provisions of the Act in Puerto Rico's waters.

Rivera's second argument is that the Corps lacks jurisdiction over the mangrove forest in Punta Picúa because that area is neither a "navigable water of the United States" nor a "wetland" for the purpose of the Act. This tenuous contention finds no support in the regulatory scheme, the law or the interpretative jurisprudence.

The term "navigable waters of the United States" is defined in the act to mean "the waters of the United States, including the territorial seas". 33 U.S.C. § 1362(7). The regulations enacted by the Corps under the Act place wetlands under the definition of the term "waters of the United States", 33 C.F.R. § 323.2(a)(3). The term "wetlands" is further defined as

those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.

33 C.F.R. § 323.2(e). Wetlands separated from other waters of the United States by man-made barriers, beach dunes and the like are "adjacent wetlands" under Section 323.2(a)(7)...