US v. Seda Perez, Civ. No. 91-2599 (JAF).
| Decision Date | 23 June 1993 |
| Docket Number | Civ. No. 91-2599 (JAF). |
| Citation | 825 F. Supp. 447 |
| Parties | UNITED STATES of America, Plaintiff, v. German SEDA PEREZ; the Members of the Estate of Luis E. Boothby, and Pedro J. Monzon, Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Silvia Carreño-Coll, Asst. U.S. Atty., Charles E. Fitzwilliam, U.S. Atty., San Juan, PR, for plaintiff.
José Enrique Colón-Santana, San Juan, PR, for defendants.
Plaintiff, United States of America ("the government"), has moved, by amended complaint, for a permanent injunction pursuant to Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, and Fed.R.Civ.P. 65, requiring relief against defendants, Germán Seda Pérez,1 the Members of the Estate of Luis E. Boothby ("Boothby"), and Pedro J. Monzón ("Monzón"), specifically by: (1) enjoining the defendants from continuing to moor their floating homes in navigable waters of the United States at La Parguera, Lajas, Puerto Rico; (2) ordering the immediate removal of said floating homes from the navigable waters of the United States at La Parguera; (3) permanently enjoining the subsequent return or future permanent mooring or fixing of said floating homes in the waters of La Parguera without first obtaining the necessary permits from the U.S. Army Corps of Engineers ("Army Corps"); and (4) paying the costs of the action and any other relief deemed necessary and proper under the circumstances. For the reasons that follow, the government's complaint is granted and permanent injunctive relief is ordered.
La Parguera is a unique, environmentally-sensitive area in the South coast of Puerto Rico. Extensive mangrove forests along the shoreline, offshore mangrove cays, huge meadows of seagrass beds in the bays, along with one of the most extensive coral reef systems in the Caribbean, characterize the area. At La Parguera, Lajas, Puerto Rico, is found one of the world's few bioluminescent bays, which enhances the environmental importance of La Parguera. The environmental sensitivity of the location is based on the presence of endangered species and the peculiar conditions of the mangroves and coastal waters of La Parguera. The areas' Thalassia beds and mangroves are among the most spectacular in Puerto Rico. The health of these ecosystems depends on water clarity and purity. Both the federal and Commonwealth governments have recognized the need to create a protected area. The La Parguera National Marine Sanctuary addresses these needs by ensuring the future conservation of the La Parguera marine and wildlife resources.
The National Oceanic and Atmospheric Administration ("NOAA"), the Puerto Rico Department of Natural Resources ("DNR"), the Puerto Rico Planning Board, the U.S. Environmental Protection Agency, the U.S. Department of Agriculture, the U.S. Department of the Interior, the Fish & Wildlife Service, the Army Corps, as well as a number of other federal and state agencies and environmentally-oriented national and local organizations, have expressed their determination to save this environmentally-delicate area and its ecosystems from further damage and destruction caused by destructive use by citizens. All of these agencies have expressed their objection to the presence of floating houses at La Parguera.
The government has consistently claimed that the majority of the floating houses at La Parguera are not houseboats, but floating homes disguised as houseboats, where their intended purpose is not to navigate and move around, but to moor in selected areas, to be used as floating homes.2 These floating homes are often moored and attached to red mangroves found along the shoreline. Damage to the mangrove trees is evident. Several homeowners have cleared and deposited fill material within the mangrove wetlands and salt flats to provide parking space for their cars and immediate road access to their floating homes. Many floating homes have been found to be discharging raw sewage into the bay waters, degrading the ambient water quality. Others, like the ones under scrutiny here, discharge gray waters from sinks and bathtubs, contributing to the degradation of the waters. The water pollution problems associated with these discharges have an effect beyond the immediate surroundings and also jeopardize delicately-balanced rates of seawater exchange upon which the surrounding areas and the bioluminescent bay depend for survival.
The floating homes have had a negative impact on estuarine resources and vegetation along the shoreline. This vegetation provides valuable benefits to fishery resources, including habitat and nursery areas, production of dead organic matter essential to the estuarine food chain, and filtration of pollutants from the water. The decrease in water quality and the shade created by the permanently-moored floating homes further stress the vegetation and its ability to contribute to the system. Endangered species, such as the yellow-shouldered blackbird, are in such a state of jeopardy that the species may be expected to become extinct. The offshore cays are the last secure nesting area and the continued mooring of some houseboats there account in part for the dwindling population trends leading to the extinction of the species.
The parties are in agreement with the fact that La Parguera is a Natural Resource and is part of the designated Critical Habitat for the blackbird. This led the Army Corps and the Commonwealth of Puerto Rico to enter into a memorandum of understanding dated June 13, 1978, to deal with La Parguera's environmental and ecological problems. The DNR, along with the Army Corps, was in charge of implementing the memorandum of understanding. The purpose of the memorandum of understanding was to inventory all existing shore-based structures, many of which are "grandfathered" under the applicable laws because of the many years which have elapsed since they were built. The memorandum of understanding also established a management plan for the preservation of the environment. It halted the additional construction of stilt houses and geared efforts to prepare and implement a master plan to turn the area into a passive national reserve park. The intention was to open La Parguera for public use, with the necessary controls to prevent future damage to the ecosystems.
The memorandum of understanding expired after twelve years, in 1990. During the period 1978-1990, shore-based construction was halted and the grandfathered stilt houses were forced to take a series of measures to avoid damage to La Parguera's ecosystems and waters. However, a new type of construction flourished after 1978. Floating houses, similar to beach cottages, of impressive size and of non-marine configuration, started to appear permanently moored at specific locations.
During the month of October, 1987, the Army Corps inventoried the floating houses and found sixty-three of them at La Parguera. A legal determination was made by the Army Corps that these structures, referred to as houseboats by their owners, were permanently moored obstructions and, therefore, a section 10 permit was required. 33 U.S.C. § 403. Since none of the floating houses had such permit, cease and desist orders were issued by the Army Corps to the owners of the structures.3
The record shows that forty-eight owners applied for section 10 "after-the-fact" permits, among them defendants Seda Pérez, Boothby, and Monzón. The permit applications followed the administrative process in which applications were published and responses from federal and state agencies were considered. The views of private groups, ranging from national to local groups, were received. The governmental agencies, both federal and state, opposed the section 10 permits. Forty-one permits were denied, among which were the two at issue here. The Puerto Rico Planning Board and the DNR took a firm position against the issuance of the section 10 permits. The Planning Board was of the opinion that the floating houses and their permanent status in La Parguera was contrary to the Coastal Zone Consistency Management Plan. The Planning Board and the DNR denied consistency certificates. Absent state endorsement, the Army Corps would not issue the permits, in accordance with 33 C.F.R. §§ 325.2(a)(6) and 325.8(b). See Government Exhibits 21, 23 & 24. The defendants appealed to NOAA the denial of the Coastal Zone Consistency Certificate by the Puerto Rico Planning Board and the DNR. The National Oceanic and Atmospheric Administration affirmed the Puerto Rico Planning Board determination.
On June 5, 1990, the Army Corps notified the defendants that the maintenance of floating houses constituted an illegal activity. The defendants were granted fifteen days to remove their floating houses from La Parguera. Defendants did not seek judicial review from such administrative decision. 5 U.S.C. § 706. The agency action is, for all purposes, final. On December 21, 1991, the government commenced the present action, seeking to implement, through injunctive relief, the Army Corps' final administrative action finding against the owners of the floating homes.4
This action, brought to enforce the orders of the Army Corps pursuant to 28 U.S.C. § 1345 and 33 U.S.C. §§ 403, 409, and 413, rests to a large extent on the letter and spirit of section 403, which provides:
The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army;...
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