Barcelo v. Brown

DECISION AND ORDER

TORRUELLA, District Judge.

In substance, these suits concern the military use by the United States Navy of land which it owns in the Island of Vieques, a civilian municipality of the Commonwealth of Puerto Rico. They bring into focus the delicate and complex constitutional interplay that exists between our three branches of Government, as well as between the Federal and local establishments and its citizens.

I.

Procedural Preface

The parties to these actions are as varied and as multifarious as the issues which they raise.

In Civil Number 78-323 the Plaintiffs

1

are Carlos Romero Barceló, who is the Governor of the Commonwealth of Puerto Rico, Radamés Tirado Guevara, the Mayor of Vieques, and the Environmental Quality Board, an administrative agency of the Commonwealth charged by law with protection of the environment in Puerto Rico.

2

The Defendants in that suit are Harold Brown, Secretary of Defense of the United States, W. Graham Claytor, Jr., the Secretary of the Navy, James L. Holloway, Chief of Naval Operations, I. C. Kidd, Jr., Commander in Chief of the Atlantic Fleet, and Louis H. Wilson, Commandant of the Marine Corps.

3

After the commencement of this suit on March 1, 1978, additional Plaintiffs sought and received permission to intervene. They were Carlos A. Zenón, Mario Félix, Mariano Rivera Guishard, Alicio Ayala Soto, Francisco Medina Meléndez, Esmeraldo Meléndez and Santos Rios, fishermen who are residents of Vieques, and the “Aso

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dación de Pescadores de Vieques, Inc.”, a cooperative of Vieques fishermen.

4

The Plaintiffs in Civil Number 78-377, which was filed on March 8, 1978, are Luis Medina, Jesús Medina, Mario Antolino Félix, Cristóbal Medina, Severino Ventura Cintrón, Héctor Medina, Cristóbal Medina, Jr., Enrique Garcia, Antonio Ayala González, Angel Ventura, and Daniel Medina, all fishermen and/or residents of Vie-ques, and Misión Industrial de Puerto Rico, Inc., an entity which is allegedly interested in advocating environmental causes.

5

Intervention was also sought and allowed in this case on behalf of “Fundación Arqueológica, Antropológica e Histórica de Puerto Rico”, a non-profit corporation involved in research and preservation of historical and prehistorical cultural resources.

6

The Defendants in this suit are the same as those in Civil Number 78-323, except for the addition of William R. Flannagan, Caribbean Commander of the Atlantic Fleet, Swain Wilson, Commandant of the United States Coast Guard, and unnamed John Doe Defendants.

After various preliminary procedural interchanges, including a hearing in which a request for a temporary restraining order was denied in Civil Number 78-377, Civil Numbers 78-323 and 78-377 were consolidated. It is appropriate to briefly set forth the allegations in the various complaints.

Plaintiffs seek to enjoin Defendant Navy from using any portion of its lands in Vie-ques, or in the waters which surround this Island, for the purpose of carrying out naval training operations. Broadly speaking, the complaints allege harm to all residents of Vieques, to its fishing and agricultural industries, to certain endangered species of plant and wildlife, to officially designated and unidentified historical sites and to private property, all as a consequence of Defendant Navy’s activities.

The main thrust of Plaintiffs Romero Barceló’s allegations in Civil Number 78-323 is related to claims of violation by Defendant Navy of various environmental laws. These claims include the alleged failure of Defendant Navy to prepare and file an environmental impact statement pursuant to the National Environmental Policy Act of 1969 ( 42 U.S.C. §§ 4321

et seq.),

as well as other substantive offenses thereunder, and alleged violation of the Federal Water Pollution Control Act of 1972 ( 33 U.S.C. § 1311 ), the Water Pollution Control Act of Puerto Rico (24 L.P.R.A. §§ 591,

et seq.),

Public Policy Environmental Act (12 L.P.R.A. §§ 1121

et seq.),

and Executive Order No. 11752 ( 38 F.R. 34793 ); the Marine Protection, Research and Sanctuaries Act of 1972 ( 33 U.S.C. §§ 1401 , 1411 and 1412); the Clean Air Act ( 42 U.S.C. §§ 7401

et seq.);

the Noise Control Act of 1972 ( 42 U.S.C. §§ 4901

et seq.)

and the general Nuisance Law of Puerto Rico (33 L.P.R.A. § 1365); the Resource Conservation and Recovery Act ( 42 U.S.C. §§ 6901

et seq.);

the Endangered Species Act of 1973 ( 16 U.S.C. §§ 1531

et seq.);

the National Historic Preservation Act ( 16 U.S.C. §§ 470

et seq.),

and Executive Order 11593 ( 36 F.R. 8921 ); the Coastal Zone Management Act ( 16 U.S.C. §§ 1451

et seq.);

the Marine Mammal Protection Act of 1972 ( 16 U.S.C. §§ 1361 ,

et seq.);

the Rivers and Harbors Act of 1899 ( 33 U.S.C. § 407 ); the First and Fifth Amendments to the Constitution, and Presidential Orders and Congressional restrictions relating to the transfer of military activities from the Island of Culebra, another off-shore municipality of the Commonwealth.

7

The allegations of Plaintiffs Zenón et al are substantially a copy of the complaint of Plaintiffs Romero Barceló et al, with the exception that additional contentions are made with regards to violations of the Federal Relations Act of 1950 (48

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U.S.C. § 749) and the Water Law of Puerto Rico (12 L.P.R.A. §§ 1501-1523).

In Civil Number 78-377 Plaintiffs Medina et al, in addition to also relying on the previously enumerated claims, allege various other basis for relief, including a challenge to the taking and acquisition by Defendant Navy of the land on which the activities subject of these suits are carried out, allegations of violation of the Organic Act of 1900 (“Foraker Act”) ( 31 Stat. 77 ), the Organic Act of 1917 (“Jones Act”) ( 39 Stat. 951 ), the Federal Relations Act ( 64 Stat. 319 , 48 U.S.C. § 731

et seq.),

and of certain treaties (15 U.S.T. 1636), by virtue of Defendant Navy’s use of the navigable waters surrounding Vieques, and claims for damages arising by reason of Defendant Navy’s allegedly intentional and/or negligent actions, which claims are ostensibly grounded on the Federal Tort Claims Act ( 28 U.S.C. § 2671

et seq.).

The contentions of Plaintiff Fundación are similar to parallel ones by Plaintiff Romero Barceló et al, based on the National Historic Preservation Act of 1966, supra, and Executive Order 11593, supra.

For the present moment, suffice it to say that Defendant Navy’s answers put at issue Plaintiffs’ allegations and resulted in a trial lasting three months in duration. Sixty three witnesses, many of them leading authorities in various fields of expertise, as well as hundreds of exhibits were presented during the course of this legal marathon. Additionally, at the request of the parties, the Court conducted two field trips to various sites in and around Vieques. The Court consolidated the preliminary and permanent injunction hearings.

Because these cases present such an all-inclusive challenge to Defendant Navy’s presence and activities in Vieques, we must commence our homeric voyage through this evidence with some relevant background discussion about the Island in question.

II.

Background

A.

Physical Biography

Vieques is a long narrow island located approximately 6 miles off the Southeastern coast of the main Island of Puerto Rico and about 9 miles due South of its sister municipality of Culebra. It is nearly 20 miles long and 4.5 miles wide at its widest point, and is oriented on an East-West axis. The Island has an area of about 33,000 acres or 51 square miles of land.

The topography of Vieques is dominated by a backbone of rolling hills several hundred feet in height leading up to Monte Pirata in its western extremity, which at nine hundred and eighty one feet is the highest point on the Island. The shores are principally composed of calcareous sandy beaches, interrupted by several rocky promontories, particularly in the eastern extremities, and in the points of the various half-moon bays located throughout the southern coast. There are fringe and offshore coral reefs mostly in the northern, eastern and southern sectors.

The mean average temperature is 80° and the average annual rainfall is 46.23 inches, mostly concentrated in the central and western areas. There are no permanently flowing fresh water streams or rivers. Generally speaking the prevailing winds are from the East; however, they tend to bend towards the Northeast along the north coast and the South East along the southern shores.

The ocean and wave action follow a pattern similar to that of the wind. The ocean currents are also generally wind-oriented from East to West, but tidal flow can affect this pattern substantially, particularly in the eastern and western extremities of the Island where the tide moves north when ebbing and south when flooding.

The biota of Vieques is typical of a Caribbean Island with low population density but contains some unique features as well.

The flora is in large part determined by the various humidity zones as well as the present land use, a matter we shall presently deal with in greater detail. Suffice it to say for the moment that it generally tends to run from thorny brush in the East to lusher vegetation in the West, the central strip being subjected to some cultivation of

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minor crops. Scrub grass covers much of the bare ground throughout Vieques. There are several large stands of mangrove along the coast, the most important of which are in the vicinity of Punta Arenas in the West, and surrounding Puerto Mosquito, Puerto Ferro and Ensenada Honda on the South. Inland from these are generally found dryland forests of ucar

(Bucida

hue-eras ). Many areas of the ocean floor in the immediate vicinity of the coast are covered with stands of sea grasses, mostly of the

thaiassia

variety, the largest of these concentration starting West from Punta Cabal-lo on the North coast and fanning around Punta Arenas to the South West. There are also large seagrass areas in the South in Ensenada Honda and in Bahia Salinas del Sur.

Vieques’ animal life includes several species of particular interest to the present action. In addition to the usual complement of fish and bird population

8

there are present in Vieques six species which are designated as either “endangered” or “threatened” pursuant to statute or regulations.

9

These are the brown pelican

(Pelecanus occi

dentalis),

10

the manatee

(Trichechus manatus),

11

the leatherback turtle

(Dermochelys cariocea

),

12

the hawksbill turtle

(Eretmochelys imhricata

),

13

the loggerhead turtle

(Caretta caretta),

14

and the green turtle

(Chelonia mydas

).

15

Three coves in the Southern coast of Vie-ques (Puerto Mosquito, Puerto Ferro and Bahia Tapón) contain an unusual phenomena found occasionally

16

in protected shorelines of tropical waters, within very particular physical and biological parameters. This phenomena is known as bioluminescense, a process which has not been fully explored scientifically but which is believed to be related to the presence of microscopic dinoflagellate

17

activated by specific physical circumstances.

B.

Pre-History and History

A brief look at Vieques’ pre-history and history will give us some insight into the problems we are faced with in the present case.

The first semi-permanent inhabitants of Vieques were Carib Indians. They arrived in the period immediately preceding the discovery of Vieques by Christopher Columbus (1493), and for various decades thereafter.

18

These sea-going tribes came up from the northern coast of South America via the Lesser Antilles and used Vieques as a base from which to carry out their fierce raids into Puerto Rico. Prior thereto, commencing as far back as perhaps 850 A.D., various migratory waves of Arawak Indians

19

which originated in the Orinoco Basin, passed through the Island on their way to more permanent abode in Puerto Rico and Hispanola. In historic times, Indians

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from Puerto Rico and St. Croix, Virgin Islands moved to Vieques to escape the Spanish conquest.

20

The Spanish forces sent to conquer Vieques had little influence on the native population living there and no attempt was made by Spain to colonize the Island at this point.

During the 17th and 18th Centuries the French, English, Dutch and Danes all attempted to establish footholds on Vieques. In 1673 the Spanish attacked and destroyed the colonial population and thereafter continued to send military expeditions from time to time. In 1816, colonists from Saint Thomas and St. Croix asked and received permission to establish a livestock industry in Vieques, and thus began what is today the Island’s dominant agricultural activity. One year later the Governor of Puerto Rico delegated authority to one of these colonists and thereafter a fort was built at Isabel Segunda, the capital of Vieques. By 1828 the population of Vieques was 122 engaged mostly in timber harvesting for export to the Virgin Islands, in the growing of crops and livestock, and in fishing. After 1869, economic activity increased and sugar cane became the leading crop.

In 1898, and as a result of the Spanish-American War Vieques together with the rest of the present-day Commonwealth of Puerto Rico became a territory of the United States.

21

Through the early 1940’s, the principal activities in Vieques were the growing of sugar cane and livestock, and fishing. The total population throughout this period fluctuated between 6,000 and 12,000. The population of Vieques according to the 1970 census, was 7,767 persons of which 2,378 lived in Isabel Segunda and 620 in Esperanza, the Island’s two towns, and 4,769 were classified as rural inhabitants. Sugar is no longer of any relevance, and the principal agricultural endeavours are related to the planting of some minor crops, and to livestock. Fishing is still of importance to the local inhabitants.

As previously stated, Vieques is a civilian municipality of the Commonwealth of Puerto Rico. It is divided into seven wards (“barrios”): Puerto Diablo, Puerto Ferro, Puerto Real, Florida, Mosquito, Llave and Punta Arenas. During the period from 1939 to 1944, Defendant Navy acquired title by purchase to 26,000 of the 33,000 total acres of Vieques. This property is physically divided into two sections and is bisected by the civilian area of Vieques. (See Appendix A).

The eastern part of the naval reservation includes Barrio Puerto Diablo and most of Barrio Puerto Ferro. The western part begins at a north-south line which commences west of Punta Caballo and continues south to the eastern end of Laguna Playa Grande. It includes the barrios of Punta Arenas, part of Mosquito, Llave and Florida. There is also an additional area in the middle of civilian sector known as Barriada Monte Santo, to which Defendant Navy holds title but in which there has been considerable civilian squatting with Defendant Navy’s knowledge and acquiescence.

22

III.

Defendant Navy’s Activities in and around Vieques

Generally speaking, in the eastern sector are located a Marine Corps facility known as Camp García, a 5000 foot airstrip not presently in active use, a heliport, a field ammunition depot, the bulk of the beaches used for amphibious landings, an observation post complex on top of Cerro Matías, and the various ordinance impact zones, with related targets. The western sector is mainly used for the storage of ammunition in the bunkers spread throughout this area,

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as well as for quarrying, some amphibious operations, and some of the non-firing small unit training. Also in this sector is located a breakwater-pier at Desembarcadero Mosquito, an administrative center, and an electronic warfare facility on the summit of Monte Pirata.

Defendant Navy’s properties in Vieques are part of a much larger and inclusive military complex known as the Atlantic Fleet Weapons Training Range, which consists of four ranges: the inner range in the east end of Vieques, previously alluded to; the outer range, which is an ocean range extending both north and south of Puerto Rico and to the east; the underwater tracking range at St. Croix, Virgin Islands; and an electronic warfare range. All of the operations of these various ranges are directed from a center located at the Roosevelt Roads Naval Station in Ceiba, Puerto Rico, approximately 7 miles northeast of Vieques across Vieques Sound.

The outer range is at least 35 miles north of Vieques and 20 miles to the south. On this range are conducted various surface and anti-aircraft gunnery exercises as well as missile exercises, including surface-to-air, surface-to-surface, air-to-surface and air-to-air training.

The underwater tracking range is located in waters varying in depth from 200 fathoms to 500 fathoms off the western shore of St. Croix (and southeast of Vieques), and encompasses 21 square nautical miles. This range is used for training for accurate three-dimensional tracking of surface and underwater objects.

The electronic warfare range is a complex of so-called threat platform simulators located at various sites in Puerto Rico and adjacent islands, including Monte Pirata as previously stated, as well from one sea-going location. These facilities provide a realistic electronic environment for the training of shipboard electronic warfare teams and tactical electronic order-of-battle, in support of exercises and operations conducted on the various other ranges.

A.

The inner range

The inner range (see Appendix B), which consists of air-to-ground, ship-to-shore, and artillery targets, is locally controlled from the observation post previously mentioned atop Cerro Matías. The post is surrounded by a 1200 yard safety zone into which no ordnance may be discharged.

The public is notified that the range will be used through notices to airmen, notices to mariners and fishermen’s notices. Fishermen’s notices indicate the schedule of activities for the following week and include a map of the island of Vieques for aid to the reader in determining the activated areas. These notices are widely distributed and posted, including at the fishermen’s cooperative. In the event of a change in activities, a written schedule is printed and distributed at least 24 hours in advance to fishermen. Defendant Navy does not restrict access to the waters in the danger zone

23

at Vieques except shortly prior to, during, and immediately after training operations utilizing these waters.

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This range normally opens at 7:30 A.M., with firing commencing at 8:00 A.M., and usually closes at 10:00 P.M.

24

When the range is active, a red eight-foot square flag is flown from a 15 foot pole above the observation post during the daylight hours, and a red rotating beacon is operated at all times. Prior to commencing range use, a patrol aircraft covers the water areas around the Island to assure that the area is clear. When required, a patrol boat is also used for this purpose. The range control officer on location can visually observe the entire land mass area and the surrounding sea and air space for considerable distances.

25

Additionally, there are two radars observing the surface water area and to maintain the position of ships while firing on the range.

26

In the event of unauthorized entry on the range while the same is in use, the range officer immediately halts the firing and personnel is dispatched to clear the range fouler. The United States Coast Guard provides assistance for such contingencies in the danger areas of the surrounding waters.

There have been occasions when ships or aircraft have disregarded safety precautions incorporated in the range user’s manual or the range officer’s instructions. The range officer has authority, which has in fact been exercised at times, to order an offender off the range.

In addition to fire control and related safety measures, one of the principal functions of the observation post is the scoring of the firing. This is accomplished visually, in the case of ship-to-shore firing, and by television in the case of air-to-ground bombing.

The eastern boundary of the inner range is a north-south fire break, approximately 20 meters in width, running from a point just west of Bahía Playa Blanca and continuing directly south to the shore west of Cerro Indio. This boundary is referred to by Defendant Navy as the “Eastern Friendly Front Line.” No ordnance is used east of this demarcation. Immediately to the west of this line commences the Air Impact Area and Close Air Support Zone (AIA/CAS) which extends west to another north-south fire break known as the “Western Friendly Front Line.” This line commences on the shore of Bahía Icacos and runs directly south past the eastern edge of an unnamed lagoon, to the beach at Bahia Salinas del Sur. The area between the two “Friendly Lines” is also known as the Naval Gunfire Support Range (NGFS). West of the Western Friendly Front Line is the Surface Impact Area (SIA) which runs to another north-south boundary commencing from a point west of Bahía Fanduca in the south, to the north shore three fourths a mile east of Puerto Diablo. A cattle fence, which is approximately 1,000 yards west and parallel to this SIA boundary, marks the western most extension of the inner range.

Since most of the controversies in this case arise out of Defendant Navy’s activities within inner range, we shall describe these and the facilities therein located with greater detail.

(1)

The targets

The inner range contains two bullseye targets, referred to as Targets 1 and 2. These are used for inert ordnance practice with Mark 76 practice bombs

27

and 2.75 mm. inert rockets. Live ordnance is never used on these targets. Target 1 is located approximately half way up on the Western Friendly Front Line. It is 400 feet in diameter and consists of 4 concentric rings of tires, 50 feet apart. Target 2, which is made up of three similar rings 300 feet in

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diameter, is located approximately two statute miles west of Target 1.

At the southern extremity of the Western Friendly Front Line is located a strafing target. Again, only inert ordnance is used against this target.

The AIA/CAS zones are the air-to-ground live ordnance target areas.

28

The targets consist of realistic mockups of an airstrip, a fuel farm, a motor pool, an ammunition dump, SAM rocket sites, and numerous targets of opportunity such as tanks, a convoy and airplanes. (See Appendix B).

There is also one stationary water target currently active

29

located about a mile off the eastern tip of Punta Este and consisting of a floating buoy. It was installed for inert, air-to-ground activity and has been used very infrequently.

A Mark 33 SEPTAR, which is an 18 foot drone target boat operated remotely from Cerro Matías, is sometimes operated in Bahia Salinas del Sur for air-to-ground exercises using inert ordnance.

In August of 1977 a target barge was anchored off the southeastern tip of Vie-ques for about a month. A guided 500 pound inert glide bomb called SMART ROC was fired at it.

All of the targets described above in the inner range, with the exception of the water targets, were installed and operational by the end of 1971. Some of the targets in the SIA and AIA were in use for some years prior to that.

(2)

Air-to-ground activities

The type of aircraft usually involved in ordnance delivery on the AIA/FAS targets and on the two bullseye targets are A — 4, A-6 and A-7 fix wing jet aircraft flying either from carriers lying offshore or from the Roosevelt Roads Station.

It is standard procedure to conduct safety and range use briefings for all range users, including air crews. These procedures are outlined in the range user’s manual and will be discussed hereinafter.

Coming out of Roosevelt Roads aircraft take off on a heading of either 060° M and turn on a radial of 100° M headed out to an area 3 miles off the central Vieques coast. In a warning area north of Vieques known as Whiskey 428, the radial 100° M intersects Defendant Navy’s operational area. Aircraft in this area must file a flight plan and are controlled by the Federal Aviation Administration (F.A.A.). At this point aircraft will be at about 6-7000 feet in altitude, climbing and proceeding easterly until they reach an area directly off Punta Este where they will begin a turn to the south. The aircraft must maintain altitude until they are inside a restricted area south of Vieques known as Romeo 7104, and then must descent immediately to an altitude of about 8000 feet and proceed over the target low enough to identify the same.

If the point of origin of aircraft coming into the inner range is an aircraft carrier operating in the north, they are required to pass through a designated area known as Point November, about 4 miles north of Vieques. The aircraft come in on a southerly heading through Point November at an altitude of between 12-15,000 feet. This altitude reservation is pre-established by agreement with the F.A.A.

If the aircraft carrier is operating to the south of Vieques, aircraft come in through Romeo 7104 as it lines up with Whiskey 428, in a two mile wide corridor on a northerly heading.

Normally aircraft come over the range area in groups of 3 or 4, 5 aircraft being the maximum that Targets 1 and 2 can handle in a pattern.

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Aircraft loaded with either inert or live ordnance are not permitted by range regulations to overfly any civilian area, and no credible proof was presented during the trial of any practice to the contrary.

After the target identifying run, the aircraft must assume a course pointed at the designated target and with wings level, whereupon he is declared “cleared hot” after visual observation of the range control officer stationed at the observation post atop Cerro Matías.

30

Thereafter the pilot is permitted to arm the aircraft’s master switch and to fire when he gets within the correct range. As the aircraft pulls off the target, it is required to advise the range officer that the master switch is on a “safe” position so that no ordnance may leave the plane. The minimum separation interval between different aircraft firing is 30 seconds. The second aircraft is not permitted to fire until the first aircraft over the target calls in that its master switch is “safe.”

For bombing runs aircraft typically pass over target at about 1500 feet. In strafing, aircraft turn at about 3000 feet, fire at about 500 feet and pull out over the target at about 200 feet.

The course headings for the various targets are predetermined. The approach for Targets 1 and 2 and for the strafing target is from the south, on 010° M headings. Over Target 1 the pilot must make a right-hand turn off the target, except in instances where Target 2 is not activated when he may request a left-hand turn. The normal pattern for Target 2 is counterclockwise. In a left-hand turn off Target 2, the closest distance to the civilian sector is about 5.8 miles (to Barrio Santa María).

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The approach to the AIA/CAS targets is also from the south on courses of between 330° M and 030° M. Over the AIA/CAS targets the normal pattern is a right hand turn, although a left-hand turn can also be requested.

(3)

Ship-to-shore activities

As previously intimated ship-to-shore firing is also conducted in the inner range. This takes place into the same AIA/CAS zone, on six point targets located around the shoreline of Bahía Salina del Sur and on two area targets. As in the case of air-to-ground range users, ships crews must receive a briefing prior to arrival on the range.

Ships fire only from the waters to the south of Vieques. Upon arrival at the range, each ship must work its way through the range, visually identifying each one of the point targets and plotting them on a chart. The naval gunfire range can accommodate two ships maneuvering on the range at one time, but only one ship can fire at a time. During gunfire, except on rare occasions, the ships are between three to eleven miles from the shoreline. As previously stated, while firing the ship’s position is monitored by the observation post’s radar. Only live ordnance is used by ships as it has been found that inert naval ordnance creates a safety and scoring problem by its propensity to ricochet and its difficulty of observation.

When ship-to-shore firing is scheduled, air-to-ground activity is restricted to Target 2.

(4)

Field artillery

To the west of Cerro Matías is located the SIA, previously described, which is the Marine Corps artillery range.

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This is the live

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ordnance target area which is closest to the civilian populated areas. It is approximately 6.2 miles form Barrio Santa Maria. This type of practice involves the firing of howitzers, singly or in batteries, from positions along the vicinity of the SIA’s western boundary toward targets near the Western Friendly Front Line, that is, from west to the east. Howitzer activity normally occurs only twice a year during the Marine amphibious exercises which will be subsequently discussed.

B.

The Ground Maneuvering Area (GMA)

The GMA is the principal Marine Corps training area in Vieques. This area is located within the zone comprised from the cattle fence previously described, which is the eastern boundary, all the way to the western property line contiguous to the civilian sector. The property line is marked by a chain link fence, topped by barbed wire.

(1)

Camp Garcia

On the south western extremity of the GMA is the Marine camp previously referred to, Camp Garcia. This camp has sufficient facilities to accommodate several thousand troops, although its present complement is about 150 men. Camp Garcia has been operational since the early 1940’s although improvements and additions have been carried out until recent times. The intensity of its use has fluctuated with the variated state of world affairs.

The airstrip which is adjunct to the base is operational but has only been used once in recent years and this was to allow an emergency landing by a civilian aircraft. Air transport to the base is conducted through a heliport located on a grassy field. The frequency of use of the heliport depends in large part on the training pressures of the GMA. Normal helicopter traffic in and out of Camp Garcia, or the pads atop Monte Pirata and Cerro Matías, does not overfly the civilian sector of Vieques.

(2)

Amphibious landings

The GMA contains the beaches wherein the Marines conduct the bulk of their amphibious landings in Vieques.

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The principal landing beaches are called Red Beach and Blue Beach and are located on the south coast in an area designated as “Amphibious OP Area South”, which runs from Punta Conejo on the east to Punta Negra on the west. Both beaches are immediately to the north of two cays approximately 2V2 miles apart but which are confusingly enough both called “Cayo Chiva.” Yellow Beach, which is south of Cerro Matías in the immediate vicinity of Punta Matías, is rarely used because of the other activities that are conducted in the SIA zone. On the north coast, in the “Amphibious OP Area North”, is located Purple Beach between Punta Goleta and Punta Campanilla. Purple Beach is also used infrequently.

A typical landing exercise on OP Area South involves various support ships in the vicinity of the south coast off the restricted area south of Red and Blue Beaches. Those are large amphibious attack transports from which are launched the landing craft and amphibious tracked vehicles. These vessels proceed to the beaches where they land the troops as well as supporting tank, field artillery and vehicle units.

In recent years these exercises have included vertical envelopment landings by helicopter-borne troops. These are sometimes conducted independently of conventional amphibious operations. Those maneuvers include helicopter carriers within the supporting fleet. The troop landings take place inland of the conventional landing beaches.

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Landings are usually accompanied by realistic low-level support flights by Marine air units of fixed wing, jet aircraft or helicopter gunships. If ordnance is used, this is expended within AIA/CAS zone. Naval units may be involved in activities related to the NGFS area.

Upon landing the troops engage in various tactical maneuvers throughout the GMA related with the securing of predetermined objectives in the area. At times, the landings are opposed by “enemy” troops, which have periodically included units of the Puerto Rico National Guard. As part of these activities the howitzer exercises previously described are carried out.

After the exercises are completed, the troops and their equipment are normally embarked in the same manner as landed.

The amphibious exercises previously described usually take place throughout the year and in various degrees of complexity, involving from a score of men to various thousands of troops, and from one vessel to large supporting fleets. They can also be independent of other Naval activities or be part of “sequential” operations in which the different segments of a naval force (aircraft, ships and landings) are coordinated in a hopefully well-timed sequence.

C.

The Naval Ammunition Facility (NAF)

As previously indicated, the NAF covers the entire portion of Vieques to the west of the civilian sector.

Before we discuss the principal activity in this area we should state that it contains a designated landing zone in the south western coast. This landing area is sometimes used for infiltration type exercises by small units.

The NAF is not properly a part of the Inner Range, although it may indirectly support its activities. It is a division of the weapons department of Roosevelt Roads and its main function is as a magazine for the storage of ammunition for both ship-to-shore and air-to-ground firing.

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The principal “client” of the NAF is of course Defendant Navy, but it also stores ammunition for the Puerto Rico Air and Army National Guard.

A link wire fence, again topped by barbed wire, separates the NAF from the civilian sector. It has two guarded gates and its perimeter is secured by roving patrols.

Ordnance is stored in 102 bunkers spread throughout the NAF, of which only 76 are presently in use. They are an average of 450 feet away from each other and are designed and built in such a manner that if one were to explode, no damage would occur to another magazine or any off-station location (from which the nearest is 2000 feet away).

35

The bunkers are periodically inspected by several levels of supervision, as often as on a monthly basis. The last major inspection of the magazines was conducted by the Naval Sea Systems Command on May 15, 1978. No deficiencies were found.

The ammunition is landed in Vieques from civilian cargo ships docking at Mosquito Pier in the north coast. There is also an ammunition anchorage area off this sector for ships that may have to await approaching the dock.

Ammunition may be moved from the NAF to the GMA through the civilian sector. This consists of anything from 5.56 caliber small arms rounds up to 175 millimeter howitzer ammunition.

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Eighty-one

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millimeter white phosphorous smoke rounds are also occasionally moved to Cerro Matías. The ordnance is transported by pick-up trucks when it is small amounts, or in a larger truck when large amounts are involved, with an escort in front and in back. The ammunition-carrying vehicle is identified with a placard and red flags in accordance with Department of Transportation regulations. 49 C.F.R. 177.823. The boxes of ordnance are also marked with signs clearly signifying that they are mass detonating high explosives.

37

49 C.F.R. 172.1

et seq.

Prior to hauling ammunitions in a truck, the truck is inspected for 23 items by the driver. The drivers who haul ammunition are specially trained and tested. Only naval personnel who have been specially trained handle ordnance on Vieques.

Two overland routes are used to transport munitions from the NAF to the GMA. One is through the front gate on the north side of the Island and through Isabel Segunda. The second is through the back gate on the south side of Vieques, which route is used most frequently because it passes through areas with fewer people and less traffic.

There has not been any known accident from handling ammunition on Vieques.

We thus arrive to the legal issues raised by Plaintiffs’ complaints.

IV.

THE LEGAL ISSUES

A.

Preliminary Questions Raised by Defendant Navy’s Motion to Dismiss

Shortly before the commencement of trial Defendant Navy filed a Motion to Dismiss. Because of the tardiness of this filing the Court decided to take it under advisement and allow opposing counsel to file opposition thereto. No opposition was in fact filed, although some of the issues were covered by Plaintiffs Romero-Barceló et al. in their brief.

38

(1)

The Party Defendants

All complaints except that of Plaintiff Fundación, attempt to state claims against Defendants in their individual as well as official capacities. These complaints however, are silent as to the personal involvement of any of these Defendants, nor do they specify what claims are stated against which Defendant in their individual capacities. The rule that constitutional and other claims against government officials in their individual capacities must be pleaded with specificity has thus been violated.

Rotolo v. Borough of Charleroi,

532 F.2d 920, 922 (C.A. 3, 1976).

Furthermore, it is well established that Federal officials are not vicariously liable for the acts of their subordinates,

Black v. United States,

534 F.2d 524, 528 (C.A. 2, 1976), and Plaintiffs must show a direct involvement or responsibility on the part of each of the named Defendants in the action of which they complain.

Rizzo v. Goode,

423 U.S. 362, 371, 375-376 , 96 S.Ct. 598 , 46 L.Ed.2d 561 (1976).

On all these counts Plaintiffs have failed and thus the actions against Defendants as individuals must be dismissed.

The allegations in Plaintiffs Medina et al’s complaint against “John Doe” and “Unknown Federal Agents” must also be dismissed as there is no provision in the Federal Rules of Civil Procedure for suit against persons under fictitious names. See: Rules

*662

4(d)(1); 10(a), 17(a) Fed.R.Civ.P.;

McDonald v. General Mills, Inc.,

387 F.Supp. 24, 33 (E.D.Cal., 1974).

(2)

The actions that seek damages for allegedly tortious conduct

Although the United States is not named as a party Defendant, the various nuisance and tort claims are in reality claims against the sovereign. In determining this, we are not bound by the naming of individual Defendants nor by Plaintiffs’ characterization of the suit.

Sportique Fashions, Inc.

v.

Sullivan,

421 F.Supp. 302, 305 (N.D.Cal., 1976). Pursuant to

Dugan v. Rank,

372 U.S. 609, 620 , 83 S.Ct. 999 , 10 L.Ed.2d 15 (1963), a suit is deemed to be against the sovereign if the judgment would expend itself on the public treasury or interfere with public administration. See also

Smith v. Grimm,

534 F.2d 1346, 1351 (C.A. 9, 1976), cert. den. 429 U.S. 980 , 97 S.Ct. 493 , 50 L.Ed.2d 589 (1976). These claims have precisely that effect, particularly where there is no allegation or proof that any of Defendants took any action beyond the scope of their authority. They thus qualify for absolute immunity as to common law torts and statutory claims under

Barr v. Matteo,

360 U.S. 564 , 79 S.Ct. 1335 , 3 L.Ed.2d 1434 (1959);

Howard v. Lyons,

360 U.S. 593 , 79 S.Ct. 1331 , 3 L.Ed.2d 1454 (1959);

Sportique Fashions,

supra, at 305-306; as the import of these claims would only fall upon the United States.

Larson v. Domestic & Foreign Corp.,

337 U.S. 682 , 69 S.Ct. 1457 , 93 L.Ed. 1628 (1949);

Minnesota v. United States,

305 U.S. 382 , 59 S.Ct. 292 , 83 L.Ed. 235 (1939);

Commonwealth of Mass. v. U. S. Veteran’s Administration,

541 F.2d 119 (C.A. 1, 1976).

It is elementary that the Federal Tort Claims Act, 28 U.S.C. § 2671

et seq.,

constitutes an express, but limited waiver of sovereign immunity. Although negligent actions of government agents constituting a common law tort may be sued upon, intentional torts are specifically excluded from this waiver. 28 U.S.C. § 2680 (a), (h). See

Dalehite v. United States,

346 U.S. 15 , 73 S.Ct. 956 , 97 L.Ed. 1427 (1953). Claims against the Government based upon the concept of nuisance however, are included.

In Re: Silver Bridge Disaster Litigation,

381 F.Supp. 931, 967 (S.D.W.Va., 1974). But the statute specifically requires an initial presentation of the claim to the appropriate federal agency and a final denial by that agency as a prerequisite to suit. 28 U.S.C. § 2675 . This requirement is jurisdictional and cannot be waived.

Bialowas v. United States,

443 F.2d 1047, 1049 (C.A. 3, 1971);

Collazo v. United States,

372 F.Supp. 61 (D.P.R.1973). Plaintiffs have made no allegation nor presented any evidence to show compliance with this prerequisite.

The consequence of this situation is that the nuisance claims of Plaintiffs Romero Barceló, et al, Zenón et al and Medina et al, to the extent they may be interpreted as seeking damages, and the intentional and/or negligent conduct counts of Plaintiffs Medina et al’s complaint, must be dismissed for lack of jurisdiction.

(3)

Plaintiffs Medina et al “taking” claims

Plaintiffs Medina et al claim that they have been deprived of their property without just compensation when agents of the United States purchased a large number of private tracts in Vieques in “about 1941”, which tracts are now part of the lands used by Defendant Navy. Here again we see that the real party is the United States and not the named individual Defendants.

With the exception of one Plaintiff, Angel Ventura, none of the other Plaintiffs have any standing to sue as they do not even allege to have been “deprived” property owners.

39

In any event, these claims are subject to the provisions of the Tucker Act, 28 U.S.C. §§ 1346 (a)(2), 1491, under which the Plaintiffs would have to sue.

Dow v.

*663

United States,

357 U.S. 17, 21 , 78 S.Ct. 1039 , 2 L.Ed.2d 1109 (1958).

The statute of limitations under this legislation is six years measured from the time when the cause of action first accrues against the Government. 28 U.S.C. § 2501 .

Camacho v. United States,

494 F.2d 1363 , 204 Ct.Cl. 248 (1974);

Castro v. United States,

500 F.2d 436 , 205 Ct.Cl. 534 (1974). The time of taking is the date when the United States first enters into possession or files a declaration of taking, whichever is earlier.

Dow v. United States,

supra. Thus the time for filing a suit against United States would have expired in “about 1947”, and a suit filed in 1978, as in the present ease, is absolutely time barred. See

Camacho v. United States,

supra.

B.

The Federal Water Pollution Control Act

Plaintiffs’ claims under the Federal Water Pollution Control Act ( 33 U.S.C. §§ 1251-1376 , as amended), referred to in this Section as the “Act”, fall into two categories: (1) that Defendant Navy is required to obtain a National Pollution Discharge Elimination System (NPDES) permit for its discharge of sewage at Camp García and for the alleged discharge of ordnance from ships and planes which fall into the sea surrounding Vieques; (2) that the Defendant Navy is violating various Puerto Rican laws incorporated by reference into this Act (see 33 U.S.C. § 1323 ).

The uncontroverted evidence presented, including the testimony of the President of Plaintiff Environmental Quality Board, clearly establishes that Defendant Navy no longer discharges treated sewage effluent from its plant at Camp Garcia into the waters surrounding Vieques.

40

This operation has been converted to a land discharge, for which no permit is required under the Act.

As to the discharge of sewage by Defendant Navy’s vessels into the surrounding sea, although there is no direct evidence presented of this taking place, the nature of Defendant Navy’s operations make this a distinct possibility. The evidence is however, that with the exception of landing barges, these vessels operate beyond the three-mile limit, which is the maximum geographical coverage of the Act. 33 U.S.C. § 1362 (7), (8) and (12). Furthermore, the Secretary of Defense has exempted these vessels from marine sanitation requirements pursuant to authority conferred by the Act. 33 U.S.C. § 1322 (d)

41

It is our opinion that the majority of the ordnance that falls into the waters surrounding Vieques does so by chance, although it appears that this may happen with some frequency in the waters in the immediate vicinity of Bahía Icacos and Bahia Salinas del Sur in the AIA/CAS/NGFS zones. Furthermore, as previously stated, a water target exists east of Punta Este which lies within the “territorial seas.” 33 U.S.C. § 1362 (8).

We must decide whether these accidental bombings of the navigable waters, and the occasional intentional bombing of the water target, require that Defendant Navy obtain a NPDES permit.

The conduct that requires an NPDES permit is “the

discharge

[or runoffs] of any pollutants” (emphasis added), 33 U.S.C. § 1311 (a), § 1323(a). The term “discharge of any pollutant” means:

*664

. . (A) any addition of any

pollutant

to navigable waters from any

point source.

(B) any addition of any

pollutant

to the waters of the contiguous zone or the ocean from any

point source

other than a vessel or other floating craft.” (Emphasis added). 33 U.S.C. § 1362 (12).

“Pollutant” is defined as:

“. . . dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage

sludge, munitions,

chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal and agricultural waste discharged into water. . . . ”

“Point source” in turn is defined as:

“any

discernible, confined and discrete

conveyance,

including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft,

from which pollutants are or may be discharged. . .

(Emphasis supplied) 33 U.S.C. § 1362 (14).

It would be a strained construction of unambiguous language for the Court to interpret that the release or firing of ordnance from aircraft into the navigable waters of Vieques is not “. . . any addition of any pollutant . . . from any point source . . . ”, particularly in view of the broad rather than narrow interpretation given to this type of statute,

United States v. Standard Oil Co.,

384 U.S. 224 , 86 S.Ct. 1427 , 16 L.Ed.2d 492 (1966);

United States v. Republic Steel Corp.,

362 U.S. 482 , 80 S.Ct. 884 , 4 L.Ed.2d 903 (1960);

Minnehaha Creek Watershed District v. Hoffman,

597 F.2d 617, 625 (C.A. 8, 1979);

United States v. Hamel,

551 F.2d 107, 112 (C.A. 6, 1977);

United States v. Ashland Oil and Transportation Co.,

504 F.2d 1317, 1328-1329 (C.A. 6, 1974). We are forced to so conclude notwithstanding the fact that the agency charged with administration of this Act, the Environmental Protection Agency, does not appear to have any regulation which provides for the issuance of a NPDES permit under circumstances such as herein presented, and further notwithstanding that we find that no credible evidence was presented to the Court to the effect that any of the materials deposited in the waters surrounding Vieques as a result of the aforementioned activities has had any measurable deleterious effects on the environment, or on the quality of the surrounding waters, from a scientific vis-a-vis legal standpoint. Nevertheless, we hold that as the Act now reads, Defendant Navy is required to have an NPDES permit to cover the accidental or intentional release or firing of ordnance into the areas herein discussed.

Train v. Colorado Public Interest Group,

426 U.S. 1, 7 , 96 S.Ct. 1938 , 48 L.Ed.2d 434 (1976);

E.P.A. v. State Water Resources Control Board,

426 U.S. 200, 205 , 96 S.Ct. 2022 , 48 L.Ed.2d 578 (1976).

The second aspect of this issue is called into play by the provisions of 33 U.S.C. § 1323 (a), which states:

“Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants, and each officer, agent, or employee thereof in the performance of his official duties, shall be subject to, and 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 entity

including the payment of reasonable service charges. . . . ” (Emphasis added).

It is the contention of Plaintiffs that accidental and intentional ordnance dropping into the water areas previously indicated violates various Puerto Rican legislation, namely the Water Pollution Control Act (24 L.P.R.A. § 591 et seq.) the Public Policy Environmental Act (12 L.P.R.A. § 1121, et seq.) and the Water Pollution Control Regulation, promulgated thereunder.

*665

The Public Policy Environmental Act, supra, is a statute which, as the title implies, generally sets out the Commonwealth’s environmental posture and establishes the Environmental Quality Board to administer it. There is little of a specific nature in this statute on which we can hang our legal hat for purposes of the present issue.

It is in the Water Pollution Control Act, supra, that we find a specific relevant prohibition (24 L.P.R.A. § 595):

“It shall be unlawful for any person, directly or indirectly, to throw, discharge, pour, or dump, or permit to be thrown, discharged, poured or dumped into the waters, any organic or inorganic matter capable of polluting or of leading

to the pollution

of said waters in such manner as to place them out of the

minimum standards of purity

that the [Environmental Quality Board]

42

may establish under section 599 of this title.” (Emphasis supplied).

That statute defines “pollution” as follows: (24 L.P.R.A. § 591(i):

“ ‘To pollute’, with reference to

waters,

means

making them in any way noxious

to human health, or to that of animals, vegetables or fish, or rendering them ill-smelling or impure, all

according to the permissible standards of purity or impurity

heretofore or hereinafter established as provided herein. ‘Pollution’ has this same meaning.” (Emphasis supplied).

“Discharge” is defined as (24 L.P.R.A. § 591(j)):

“. . . [T]he terminal of a sewer system, large or small, collective or individual, or of a discharge of industrial refuse or any other kind of refuse, where it emerges to be dumped into the waters.”

This language, together with that statute’s definition of “sewage”,

43

“industrial waste”

44

and “other[s]

45

kinds of refuse leads us to conclude that the prohibited acts under the Puerto Rican legislation are narrower in scope than those under the “Act.”

To begin with, upon reading this statute we are left with the clear impression that it is only meant to cover normal endeavors of human activity producing sewage and industrial water through pipes and similar devices, and not military operations of the type here in question.

46

Apart from that however, the activity has to either make the water noxious to humans, animals, etc. or violate specific standards of water purity.

We have already stated that no credible evidence was adduced establishing that the activities of Defendant Navy have made the

water

noxious. Thus assuming it was the intention of the Puerto Rican Legislature to apply this statute to the naval operations of the Defendant Navy in Vieques, we must look to the regulations to determine whether a standard of purity established thereunder has been violated.

*666

Plaintiffs rely on the applicability of the “Water Quality Standards Regulations” of Plaintiff Environmental Quality Board.

47

This regulation is intended to promulgate water quality standards for the coastal and surface waters of Puerto Rico, (Art. 3), and prohibits the pollution

48

of these waters (Art. 4.1.1) or the discharge of any water pollutant (Art. 4.1.2).

The water quality standards are the following:

“2.1 Gene»/ water quality standards. All waters shall meet generally accepted aesthetic qualifications and shall be capable of supporting diversified aquatic life. These waters shall, except as specifically noted, meet the following quality standards:

2.1.1 Solids and other matter. The waters of Puerto Rico shall not contain materials attributable to

discharges

that will settle to form objectionable deposits. Nor will they contain floating debris, scum, oil and other floating materials attributable to

discharges

in amounts sufficient to be unsightly or deleterious.

2.1.2 Color, odor, taste or turbidity. The waters of Puerto Rico shall be free from color, odor, taste or turbidates attributable to

discharges

in such a degree as to create a nuisance.

2.1.3 Substances in toxic concentrations thereof

The waters of Puerto Rico shall not contain substances in concentrations or combinations which are toxic or which produce undesirable physiological responses in human, fish or other animal life, and plants.

A.

Specific standards

for some substances:

i) Coastal waters

The maximum allowable concentrations of certain substances in the receiving coastal waters shall be the following:

Substance Limit (mg/1)

Arsenic (As) 0.15

Barium (Ba) 1.0

Boron (B) 4.8

Cadmium (Cd) 0.005

Carbon (Chloroform extract) 28.0

Chromium (hexavalent (Cr.) 0.05

Chromium (trivalent (Cr.) 0.30

Copper (Cu) 0.05

Cyanide (CN) 0.01

Detergents (Methylene Blue

(Active Substances) 0.5

Fluorides (F) 1.3

Iron (Fe) 0.200

Lead (Pb) 0.015

Manganese (Mn) 0.100

Mercury (Hg) 0.001

Nitrogen (N03 N02 NH3) 5.0

Phenols .010

Selenium (Se) 0.01

Silver (Ag) 0.001

Sulfate (S04) 2800.

Uranil (U02) 0.500

Zinc (Zn) 0.050.”

(Emphasis supplied)

Defendant Navy makes much ado about the unconstitutional vagueness of these provisions. See

Connally v. General Construction Co.,

269 U.S. 385, 391 , 46 S.Ct. 126 , 70 L.Ed. 322 (1926);

Lanzetta v. New Jersey,

306 U.S. 451 , 59 S.Ct. 618 , 83 L.Ed.

*667

888 (1939);

Cramp v. Board of Public Instruction,

368 U.S. 278 , 82 S.Ct. 275 , 7 L.Ed.2d 285 (1961); but see:

Cerame Vivas v. Secretary of Health,

99 P.R.R. 44 (1976). However, this is an issue we need not decide as this regulation is clearly inapplicable to Defendant Navy’s operations presently at issue.

The key word in the quality standards reproduced above is “discharges.” The regulation defines this term as follows:

“ ‘Discharge (to), Discharge’ — The outflow of

wastewater

from any domestic, commercial, industrial, agricultural or any other source into receiving waters.” (Emphasis supplied). Art. I.

When we seek the definition of “waste-water” in the regulation we are referred to the definition of “municipal wastes”, which states:

“Water carrying human and animal wastes from homes, buildings, industrial establishments and other places alone or in combination with industrial wastes.” (Art. I.)

We see no plausible way of interpreting the accidental or intentional bombing or sheltering of the coastal waters as falling within the proscribing language of the regulation. This of course, is in keeping with our prior interpretation of the language of the Statute which authorizes this regulation.

Furthermore, the record is barren of any credible evidence which would support a finding that Defendant Navy has conducted any activity violative of the specific standards of Article 2.1.3 Ai) of this Regulation or that the waters in question do not “meet generally accepted aesthetic qualifications” or are not “capable of supporting diversified aquatic life.” In fact, if anything, these waters are as aesthetically acceptable as any to be found anywhere, and Plaintiffs’ witnesses unanimously testified as to their being the best fishing grounds in Vie-ques.

C.

The Marine Protection, Research and Sanctuaries Act

Plaintiffs’ claim to the effect that Defendant Navy’s activities violate the Marine Protection, Research and Sanctuaries Act, also known as the “Ocean Dumping Act”, and referred to in this section as the “Act”, 33 U.S.C. § 1401

et seq.,

are clearly without merit. It is Plaintiffs’ contention that Defendant Navy’s discharge of ordnance in the waters off Vieques as well as related activities during the course of military operations, constitute “dumping” which requires a permit from the Environmental Protection Agency, a permit which Defendant Navy lacks.

It cannot be disputed but that the complained of activities are incidental to military training exercises and that the purpose of Defendant Navy’s activities are said exercises rather than the disposal of waste.

The definition of “dumping” contained in the Act excludes “. . . the intentional placement of any device in ocean waters or on or in the submerged land beneath such waters, for a purpose other than disposal, when . . . such placement . occurs pursuant to an authorized Federal . . . program.” 33 U.S.C. § 1402 (f). This language, together with the legislative history of the Act, leave no doubt but that Congress intended to prohibit

purposeful disposal of waste.

See 1972 U.S.Code Cong. & Admin.News, pp. 4234

et seq.

The report of EPA Administrator William D. Ruckelshaus specifically states:

“Special note should also be made of the fact that ‘dumping’ as defined in subsection 3(f) would not include an activity which has as its primary purpose a result other than ‘a disposition of material’ but which involves the incidental depositing of some debris or other material in the relevant waters.

For example, material from missiles and debris from gun projectiles and bombs ultimately come to rest in the protected waters. Such activities are not covered by this Act.”

Supra, p. 4255-6. (Emphasis supplied).

D.

Allegations under the Resource Conservation and Recovery Act

The allegations of Plaintiffs pursuant to the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901

et seq.

herein

*668

after referred to in this Section as the “Act” are equally without substance. A reading of this statute as well as its legislative history establishes beyond any question that Congress’ intended targets were the evils brought about by “solid wastes” and “hazardous wastes” as

therein

defined.

49

“Solid Waste” is defined as:

“. . . [A]ny garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other

discarded

*669

material,

including solid, liquid, semisolid, or contained gaseous material

resulting from industrial, commercial, mining and agricultural operations, and from community activities. . .

. ” (Emphasis supplied). See 42 U.S.C. § 6903 (27).

With one exception which will be presently discussed, it is obvious that Defendant Navy’s military activities, although causing the incidental depositing of debris are not the discarding of material nor are they the result of an industrial, commercial, mining or agricultural operation.

“Hazardous waste” is in turn defined as:

“[A ]

solid waste, or combination of solid wastes,

which because of its quantity, concentration or physical, chemical, or infectious characteristics may—

(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or

(B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.” (Emphasis supplied). See 42 U.S.C. § 6903 (5).

Even assuming that Plaintiffs have otherwise met the substantial burden placed upon them by sub-paragraphs (A) and (B) of this definition, a fact which is far from certain, the scope of this definition in referring to “solid waste”, a term of art under this Act, excludes

military

hazardous wastes from its coverage.

Plaintiffs next rely on the “Regulation for the Control of Solid Waste” promulgated by Plaintiff Environmental Quality Board.

50

Plaintiffs allege that this regulation is applicable to Defendant Navy’s activities by virtue of 42 U.S.C. § 6961 , which states:

“Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any

solid waste management facility or

disposal site, or (2) engaged in any activity resulting, or which may result, in the disposal of

solid waste, or hazardous waste

shall be subject to, and comply with, all Federal, State, interstate, and local requirements, both substantive and procedural (including any requirement for permits or reporting or any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief) respecting control and abatement of

solid waste

or

hazardous waste

disposal in the same manner, and to the same extent, as any person is subject to such requirements, . . . ” (emphasis supplied).

The military activities of Defendant Navy, with one exception, fall outside of the scope of this delegation. Within the Act’s definition of the term “solid waste management facility” we find that it includes “any facility for the treatment of solid wastes, including hazardous wastes, whether such facility is associated with facilities generating such wastes or otherwise.” 42 U.S.C. § 6903 (29). Considering this definition together with the definition of “solid waste”, which as previously indicated, includes “discarded material . resulting from . .

community activities . .

. ” (emphasis supplied, 42 U.S.C. § 6903 (27), it becomes apparent that the Commonwealth’s regulation is applicable to a single trench landfill operated by the Marines in Camp Garcia for the disposal of food waste and packaging material. As to this, the evidence presented during the trial shows that on October 16, 1978, Defendant Navy applied to the Environmental Quality Board for a solid waste facility operating permit.

E.

The Rivers and Harbors Act

Plaintiffs seek injunctive relief alleging that Defendant Navy has violated the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 401

et seq.,

hereinafter called the “Act” in this Section. More specifically, Plaintiffs claim that Defendant Navy has without a permit from the Corps of Engineers thrown, discharged or deposited refuse ma

*670

terial in the navigable waters of the United States in violation of Section 13 of the Act ( 33 U.S.C. § 407 ), and also without a permit, has sunk vessels and other craft in the vicinity of Vieques in violation of Section 15 of the Act ( 33 U.S.C. § 409 ).

The short answer to these contentions is that Plaintiffs lack standing to sue for these alleged violations.

In differentiation to other statutes involved in this case,

51

the “Act” not only fails to provide for a private right of action to enforce its provisions, but in fact preempts the field in favor of

public

enforcement. Thus 33 U.S.C. § 413 clearly and expressly mandates that:

“The Department of Justice shall conduct the legal proceedings necessary to enforce the provisions of Sections 401, 403, 404, 406,

407,

408,

409,

411, 549, 686 and 687 of this title; . . . ” (Emphasis supplied).

Plaintiffs rely on

Wyandotte Transportation Co. v. United States,

389 U.S. 191 , 88 S.Ct. 379 , 19 L.Ed.2d 407 (1967), for the proposition that in addition to the criminal sanctions of this penal statute, they as private parties are allowed to seek injunctive relief for its alleged violation. But this case far from supporting this proposition concludes that it is the

United States

that has the right to injunctive relief in aid of protecting a public interest expressed in a statute containing criminal penalties for its violation. The Court there said ( 389 U.S. 201 -202, 88 S.Ct. 385 -386, citations omitted):

“Article I, § 8, of the Constitution grants to Congress the power to regulate commerce. For the exercise of this power, the navigable water of the United States are to be deemed the ‘public property of the nation, and subject to all the requisite legislation by Congress.’ The Federal Government is charged with ensuring that navigable waterways, like any other routes of commerce over which it has assumed control, remain free of obstruction. The Rivers and Harbors Act of 1899, an assertion of the sovereign power of the United States, was obviously

intended to prevent obstructions in the Nation’s waterways.

Despite some difficulties with the wording of the Act, we have consistently found its coverage to be broad. And

we have found that a principal beneficiary of the Act, if not the principal beneficiary, is the Government itself.

“Our decisions have established, too, the general rule that the

United States

may sue to protect its interests. This rule is not necessarily inapplicable when the particular government interest sought to be protected is expressed in a statute carrying criminal penalties for its violation. Our decisions in cases involving civil actions of private parties based on the violation of a penal statute so indicate. In those cases we concluded that criminal liability was inadequate to insure the full effectiveness of the statute which Congress had intended.

Because the interest of the plaintiffs in those cases fell within the class that the statute was intended to protect, and because the harm that had occurred was of the type that the statute was intended to forestall, we held that civil actions were proper.

That conclusion was in accordance with a general rule of the law of torts. We see no reason to distinguish the Government, and to deprive the

United States

of the benefit of that rule.

“The inadequacy of the criminal penalties explicitly provided by § 16 of the

*671

Rivers and Harbors Act is beyond dispute. That section contains only meager monetary penalties. In many cases, as here, the combination of these fines and the Government’s

in rem

rights would not serve to reimburse the

United States

for removal expenses. It is true that § 16 also provides for prison terms, but this punishment is hardly a satisfactory remedy for the pecuniary injury which the negligent ship owner may inflict upon

the sovereign.”

(Emphasis supplied).

It is clear that this case does not support Plaintiffs’ standing under the Act to seek

private

injunctive relief. See

Cort v. Ash,

422 U.S. 66, fn. 11 , 95 S.Ct. 2080 , 45 L.Ed.2d 26 (1974);

Cannon

v.

University of Chicago,

supra at fn. 13 and (J. Powell, dissenting) fn. 3.

We decline the invitation to follow

Natural Resources Defense Council Inc. v. Grant,

355 F.Supp. 280 (E.D.N.C., 1973) and

People of State of Illinois ex rel. Scott v. Hoffman,

425 F.Supp. 71 (S.D.Ill.1977), as in our opinion they run contrary to the controlling language of 33 U.S.C. § 413 and to the greater weight of authority. The Second, Third, Fourth, Fifth, and Seventh Circuits have all expressed themselves as finding no private causes of action under different sections of the Rivers and Harbors Act, see:

Connecticut Action Now, Inc. v. Roberts Plating Co.,

457 F.2d 81 (C.A. 2, 1972);

Red Star Towing & Transportation Co. v. Department of Transportation,

423 F.2d 104, 105 (C.A. 3, 1970);

Hughes v. Ranger Fuel Corp.,

467 F.2d 6 , 8 n. 1 (C.A. 4, 1972);

52

Guthrie v. Alabama By Products,

456 F.2d 1294 (C.A. 5, 1972) cert. den. 410 U.S. 946 , 93 S.Ct. 1352 , 35 L.Ed.2d 613 (1973);

53

Jacklovich v. Interlake, Inc.,

458 F.2d 923 (C.A. 7, 1972). Besides

Grant,

supra, and

Hoffman,

supra, only the Ninth Circuit in

Riggle v. State of California,

577 F.2d 579, 582-583 (C.A. 9, 1978),

54

and in two lower court decisions,

Sierra Club v. Morton,

400 F.Supp. 610, 622-623 (N.D.Cal.1975);

Sierra Club v. Leslie Salt Co.,

354 F.Supp. 1099, 1104-05 (N.D.Cal.1972), have recognized private causes of action, under this “Act.” All other lower court case law is decidedly against recognizing such a right.

Township of Long Beach v. City of New York,

445 F.Supp. 1203 (D.N.J.1978);

Loveladies Property Owners Ass’n v. Raab,

430 F.Supp. 276, 281 (D.N.J.1975) aff’d unreported decision, 547 F.2d 1162 (C.A. 3 1976) cert. den. 432 U.S. 906 , 97 S.Ct. 2949 , 53 L.Ed.2d 1077 (1977);

Parsell v. Shell Oil Co.,

421 F.Supp. 1275 (D.Conn., 1976);

Burgess v. M/V Tamano,

373 F.Supp. 839, 845 (D.Me., 1974);

Gerbing v. I.T.T. Rayonier Incorporated,

332 F.Supp. 309 (M.D.Fla.1971);

Hooper v. United States,

331 F.Supp. 1056, 1058 (D.Conn.1971);

Bass Anglers Sportsman’s Society v. Scholze Tannery Inc.,

329 F.Supp. 339 (E.D.Tenn.1971);

United States ex rel. Mattson v. Northwest Paper Company,

327 F.Supp. 87 (D.Minn.1971);

Enquist v. Quaker Oats Company,

327 F.Supp. 347 (D.Neb.1971);

Bass Anglers Sportsman’s Society v. Plywood Champion Papers, Inc.,

324 F.Supp. 302 (S.D.Tex.1971);

Bass Anglers Sportsman Society v. United States Steel Corp.,

324 F.Supp. 412 (N.D., M. D., and S. D. Ala.1971) aff’d. 447 F.2d 1304 (C.A. 5, 1971); see also:

H. Christiansen & Sons, Inc. v. City of Duluth,

154 F.2d 205 (C.A. 8, 1946). Contra see:

Potomac River Association, Inc.

v.

Lundeberg Maryland Seamanship School, Inc.,

402 F.Supp. 344 (D.Md. 1975).

While we hold that sounder law dictates a finding that no private cause of action is

*672

created by the Rivers and Harbors Act, as is clear from the above citations, we are not unmindful of the division of authority on this point. As mentioned Plaintiffs specifically allege violations under Sections 13 and 15 of this Act, 33 U.S.C. §§ 407 , 409. Section 13 of this Act, also commonly known as the “Refuse Act” generally prohibits the “discharge, or deposit, [of] . . ., any refuse matter of any kind or description ., into any navigable water of the United States” without a permit from the Secretary of the Army. It may be true that Defendant Navy’s release of ordnance in the navigable waters surrounding Vie-ques could constitute “refuse matter” under Section 407.

United States v. Standard Oil,

384 U.S. 224 , 86 S.Ct. 1427 , 16 L.Ed.2d 492 (1966);

United States v. Republic Steel Corp.,

362 U.S. 482 , 80 S.Ct. 884 , 4 L.Ed.2d 903 (1960). But even so assuming any relief that we could enter for this violation would be only superfluous and cumulative. We have hereinbefore found that under the Federal Water Pollution Control Act the Defendant Navy must secure a permit for the release or firing of ordnance into the surrounding waters. An NPDES permit under the pollution act is the same permit required under Section 407 of the Rivers and Harbors Act, see: 33 U.S.C. § 1342 (a)(4), (5). Relief entered under the pollution act and any relief that might be entered under Section 407 would necessarily be identical.

Plaintiffs also argue that Defendant Navy is in violation of Section 409 of this Act. Said Section makes it unlawful

“. . .to tie up or anchor vessels or other craft in navigable channels in such a manner as to prevent or obstruct the passage of other vessels or craft; or to voluntarily, or carelessly sink, or permit or cause to be sunk, vessels or other craft in navigable channels; . . . ”

Plaintiffs’ contention in this regard centers on the sinking of the U.S.S. Killan, a landing barge, in the waters of Vieques. See n. 29, supra. The short answer to these allegations is that the record contains no evidence establishing any obstruction to navigation or that any other vessels plying these waters are endangered by this. In fact the state of this vessel is such as may be classified as “broken up”, cf. 33 U.S.C. § 414 , and constitutes no safety hazard. Moreover, the environmental effects of this sinking, if any, are essentially minimal.

F.

Claims under the Federal Clean Air Act

Plaintiffs Romero Barceló, et ah, Medina, et al., and Zenón, et ah, claim that Defendant Navy’s activities violate the Federal Clean Air Act, 42 U.S.C. § 7401

et seq.

(hereinafter called the “Act” in this Section) and Executive Order 11752. It is alleged that this statute requires that the departments of the executive branch of the Federal government comply with local requirements regulating the control and abatement of air pollution, but that Defendant Navy’s activities, particularly the use of ordnance and the bulldozing and maintenance of unpaved roads, violate the “Regulation for the Control of Atmospheric Pollution” promulgated by the Plaintiff Environmental Quality Board, especially as related to so-called “fugitive dust.”

It cannot be seriously questioned but that, under appropriate circumstances, the Act requires the Federal Government to comply with State substantive and procedural requirements related to air pollution. 42 U.S.C. § 7418 (a) (West Supp.1977).

55

*673

People of State of Cal., etc. v. Dept. of Navy,

431 F.Supp. 1271 (N.D.Cal.1977). The issue is whether the matters claimed herein are such an appropriate circumstance.

The regulation in question

56

states that “. . . [n]o person shall cause or permit air pollution as defined in Article 1.” Art. 2.1.1. “Air pollution” is defined as:

“The presence in the outdoor atmosphere of one or more

air pollutants in such quantities and duration

as is or could be injurious to human health or welfare, animal or plant life, or property, or which interferes with the enjoyment of life or property.” (Emphasis supplied). Art. 1.

“Air pollutant” includes:

“Dust, fumes, mist, smoke, other particulate matter, vapor, gas odorous substances, or any combination thereof, but not including uncombined water vapor.” Art. 1.

As to “fugitive dust” the regulation states that it is:

“Solid airbone (sic) particulate matter from any source other than through a stack.”

Article 5.2.1, which specifically deals with fugitive dust, states:

“No person shall cause or permit any materials to be handled, transported or stored; or a building, its appurtenances, or a road to be used, constructed, altered, repaired or demolished without taking reasonable precautions to prevent particulate matter from becoming airborne.

Another section of this regulation requires that:

“No person shall cause or permit the discharge of visible emissions of fugitive dust beyond the lot line of the property on which the emissions originate.” (Art. 5.2.2).

In our opinion nothing but sheer speculation would support a finding that Defendant Navy’s emissions of “fugitive dust” are “in such quantities and duration as is or could be injurious to human health or welfare, animal or plant life or property.” Although Defendant Navy’s activities undoubtedly produce “dust, fumes [and] smoke . . .’’in what we consider to be relatively limited amounts

57

and of short duration, Plaintiffs fall considerably short of their burden in having failed to show in any convincing fashion any deleterious effect to humans, or otherwise, of the “fugitive dust” caused by the objected activities of Defendant Navy, much less that there are “visible emissions . . . beyond the lot line of the property on which the emissions originate.”

In fact the “hard” evidence is to the contrary. Although the Environmental Protection Agency inspected the Camp Garcia facility on November 1977, and March 1978 for air pollution matters, no “fugitive dust” was noted as a problem in either report. Existing studies by Plaintiff Environmental Quality Board (EQB) show no violation of the federal standards for 24-hours maximum allowable concentration of particulate matter in either Isabel Segunda or Esperanza. A nineteen-day study in 1972 conducted by the EQB in Isabel Segunda, found the background level for particulate matter at 80 micrograms per cubic meter, far less than the allowable concentration, which is 150 microgram per cubic meter, or than the national secondary standard for 24-hour maximum allowable concentration, which is 150 micrograms per cubic meter. Furthermore, the measure

*674

ments of sulfur dioxide, nitrogen oxide, ozone, hydrocarbons and particulates did not show any violation of national ambient air quality standards in either Isabel Segunda or Esperanza. Another sampling conducted by the E.Q.B. at Esperanza throughout May 25-June 6, 1978, showed a average of 99 micrograms per cubic meter at Esperanza as compared to only 25.9 microgram per cubic meter at the impact area, again in neither case exceeding the 24-hour maximum allowable concentration.

Of course, we have throughout this discussion been assuming that Plaintiffs are on sound footing procedurally, a situation which unfortunately for Plaintiffs, is not the case. Although for many sources of air polluting emissions the states are allowed to continue enforcing their own laws and regulations ( 42 U.S.C. § 7416 ),

58

a citizen’s suit such as the present one under the provisions of 42 U.S.C. § 7604 (a), must be based on the violations of a

specific

emission

standard or limitation. Citizens for Clean Air, Inc. v. Corps. of Engineers,

356 F.Supp. 14 (S.D.N.Y.1973).

This section provides that:

“(a) . . . [A]ny person may commence a civil action on his own behalf-—

(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to be in violation of (A) an emission standard or

limitation

under this chapter or (B) an order issued by the Administrator or a State with respect to

such a standard or limitation . .

. ” (Emphasis supplied).

Under 42 U.S.C. § 7604 (f) “emission standard or limitation” is defined as:

“. . . (1) a schedule or timetable of compliance, emission limitation, standard of performance or emission standard,

(2) a control or prohibition respecting a motor vehicle fuel or fuel additive, or

(3) any condition or requirement of a permit . . . any condition or requirement . . . (relating to certain enforcement order) . . . any condition or requirement under an applicable implementation plan relating to transportation control measures, air quality maintenance plans, vehicle inspection and maintenance programs or vapor recovery requirements, . . . (relating to fuel and fuel additives) . . . [and] (relating to visibility protection), any condition or requirement . . . (relating to ozone protection) or any requirement (without regard to whether such requirement is expressed as an emission standard or otherwise).

This definition does not incorporate a local regulation such as the one here in question dealing with “fugitive dust” and which in fact contains no quantitative limitation. Therefore, no citizens suit lies under the Act for enforcement of the regulation in question.

Citizen for Clean Air, Inc. v. Corps of Engineers, U. S. Army,

supra.

G.

The Noise Control Act claims

It is the contention of Plaintiffs that Defendant Navy’s military activities (shelling, bombing, artillery practice and aircraft and helicopter overflights) “generate noise [and shock waves] that unreasonably interfere^] with the welfare of the residents on the island” in violation of the Noise Control Act of 1972, 42 U.S.C. § 4901

et seq.,

referred to as the “Act” in this section.

This Statute directs Federal agencies, “to the fullest extent consistent with their authority” to carry out the programs within their control in such a manner as to further the Act’s noise abatement policies, namely, “. . .to promote an environment for all Americans free from noise that jeopardizes their health or welfare.” See 42 U.S.C. §§ 4901 , 4903(a). The Act requires that:

*675

“Each department, agency or instrumentality of the executive, legislative, and judicial branches of the Federal Government—

(1) having jurisdiction over any property or facility, or

(2) engaged in any activity resulting, or which may result, in the emission of noise, shall comply with Federal, State, interstate and local

requirements respecting control and abatement of environmental noise

to the same extent that any person is subject to such requirements ...” (See 42 U.S.C. § 4903 (b)). (Emphasis supplied).

Executive Order 11752 (38 Fed.Reg. 34793, Dec. 17, 1973) in substance requires this same action from Federal agencies.

Plaintiffs’ principal reliance for their contentions is placed on Puerto Rico’s criminal nuisance statute, 33 L.P.R.A. § 1365, which states that:

“Anything which is injurious to health, or is . . . offensive to the senses, or is an obstruction of the free use of property so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons . is a public nuisance.”

For reasons that are not clear to us, Plaintiffs make no mention of Puerto Rico’s civil nuisance law, found at 32 L.P.R.A. § 2761, which would seem to have more relevance than the cited criminal law. The language of this statute is somewhat similar to the penal law:

“Anything which is injurious to health, . or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action. Such action may be brought by any person whose property is injuriously affected or whose personal enjoyment is lessened by the nuisance, and by the judgment the nuisance may be enjoined or abated, as well as damages recovered; nothing herein provided shall apply to activities related to public worship in churches practiced by different religions; Provided, That the provisions herein established shall not be construed as a limitation of the powers of the Environmental Quality Board to promulgate regulations, as it is authorized by law.”

In any event, in our opinion neither the penal or the civil nuisance statutes can be considered as establishing “requirements respecting control and abatement of environmental noise.” This language of the Act together with the legislative history of 42 U.S.C. § 4903 (b) contemplates compliance with

specific standards

existing or to be promulgated by the various jurisdictions. Thus Senate Report No. 92-1160 speaks in terms of “authority to establish and enforce

limits

on environmental noise” and the authority of the . . States and local governments

... to .. . reach or maintain levels

of environmental noise which they desire through (a) operational limits or regulations on products in use . ; (b) quantitative limits on environmental noise in a given area which may be enforced against any source within the area . . .(c) regulations limiting the environmental noise which may exist at the boundary of a construction site; (d) nuisance laws; or (e) other devices tailored to the needs of differing localities and land uses . . (Emphasis supplied, see 1972 U.S.Code Cong, and Admin.News pp. 4655, 4660).

Conversely, in interpreting the civil nuisance statute the Supreme Court of Puerto Rico held in

Arcelay v. Sánchez

77 P.R.R. 782 (1955), that there are no fixed norms for making a determination of whether a nuisance exists but rather that the resolution of the problem must be decided on a case by case basis, the fundamental question being whether or not the use by the defendant of his property is reasonable, bearing in mind the right of the complainant to enjoy his own property.

59

*676

Shortly before the end of the trial, Plaintiff Environmental Quality Board promulgated a “Regulation For The Prevention and Control of Noise Pollution”, pursuant to authority conferred under the Public Policy Environmental Act of Puerto Rico (12 L.P.R.A. § 1121,

et seq.

at § 1131(12)). Although it contains specific noise standards this regulation did not come into effect until after the trial ended.

60

Irrespective of the above discussion, even under the most liberal interpretation of the Puerto Rican nuisance statute or the quoted noise regulation, Plaintiffs have failed to establish facts attributable to Defendant Navy justifying a conclusion that it is generating noise and shock waves of such magnitude as to interfere with either the health or property of the civilian residents of Vie-ques. On this issue the Court not only received extensive expert and lay testimony, but conducted a site inspection during actual bombing of the range, for the specific purpose of perceiving subjective sound impressions. In this respect the Court was present on four different locations: the observation post at Cerro Matías, located approximately 2-3000 yards from the impact points), and three civilian sites, Colonia Lujan, (about 9 miles away) the town square at Isabel Segunda, (about 10 miles distant) and Barrio Santa Maria (approximately 8 miles distant). During these listening periods the Court was accompanied by experts of all the parties, who had suitable measuring and recording instruments.

Suffice it to say that even during the bombing runs while at the observation post at Cerro Matías, the aircraft-connected sound were “negligible”, while this time same activity was at best “barely audible” at the Barrio Santa Maria location.

The sounds of the bombs landing can of course be clearly heard from the observation post. These varied from an instrument recorded 128 decibels (dB) sound, involving the dropping of one MK-82 (500 pounds) bomb, to a high of 137 dB from twenty MK-82 (500 pounds) bombs, which did cause shockwave-induced rattling in the observation post’s windows.

The sounds of explosions were not discernible to the human ear from any of the three civilian locations. Although they could be recorded with the aid of instruments at Lujan and Santa Maria, they were completely inaudible, even by instruments, from the central Plaza at Isabel Segunda.

61

At Lujan, using the peak flat sound pressure level (peak flat SPL) scale,

62

with an

*677

ambient level

63

of between 83 to 93 dB, the events recorded between 91 and 99.6 dB. On this same location, using the Slow A sound pressure level (Slow A SPL) scale, with an ambient level of between 42 and 53 dB, the events recorded between 45.8 and 53 dB. At Santa Maria, using the peak flat SPL scale, with an ambient level of between 70 and 92 dB, the recorded events varied between 94.8 and 102.2 dB, but several of the events could not be picked up even with the instruments. On the Slow A SPL scale, with ambient levels of between 48 to 57 dB, none of the events could be heard. The events in question involved up to 8-500 pound bombs simultaneously dropped.

It is an established scientific fact that damage begins to occur to both people (eardrums) and houses (window breakage), at a peak flat SPL of 140 dB. Ground motion damage to structures can begin to occur at 3 millimeters vibrations per second. The above recordings, together with other matters to be discussed do not establish sound pressures or ground motion levels

64

*678

in the civilian areas anywhere near these levels.

Weather conditions are of great importance to sound and ground motion problems because they can bring about focusing. Under severe focusing conditions the peak flat SPL can be increased by up to 25 dB, and ground motion can be multiplied by a factor of up to 18. Under these weather conditions the predicted levels for Isabel Segunda are marginal for four Mark 83 bombs, which are 1000 pound bombs, detonated simultaneously.

65

Studies indicate that these weather conditions occur less than 10% of the days during the year, and during these days, Defendant Navy takes corrective action.

To prevent excessive noise caused by sound focusing phenomena, Defendant Navy has set up an elaborate noise abatement system for the inner range. Meteorological information from San Juan and St. Martin is collected twice a day and fed into a computer which is programmed to provide a sound focusing prediction for a given explosion. This data can be used for predicting trends of sound focusing on Vieques, but not for predicting absolute magnitudes of sound pressure levels. Thus a supplementary verification system has been set up whereby test bombs are dropped and reports received from listeners located in St. Thomas, St. Croix, Camp Garcia and at the police station in Isabel Segunda. A meter on Crown Mountain in St. Thomas also sends a digital readout to the observation post in Cerro Matías. If the information received establishes high noise levels, operations are modified or curtailed, or in extreme cases, cancelled.

A compilation of the measurement of one-hour average sound levels made by both Plaintiffs and Defendants at 18 sites on Vieques over a six month period;

66

reveals that at all populated areas on Vieques, except Lujan in October, the average day-night average sound level was about 58 dB. An analysis of this information reveals that most of the sound comes from natural sources: the biota, rain and thunder. Activities of local residents appear to be next in order as sound makers.

Twelve graphs of one-hour average sound levels illustrate that on many locations (except Luján in October), there was a sudden increase in sound just at sunset that is clearly not caused by Defendant Navy’s activities. Furthermore, the one-hour average sound level remains high into the early morning hours, long after the cessation of Defendant Navy’s military activities. Such night time sounds are well-known to be associated with the mating calls of the Puerto Rican tree frog

(eleutherodoctylus portoricensis),

also known as the

coqui.

This conclusion is reaffirmed when compared to evidence that the sudden increase in noise at sundown was not recorded on less humid days, a fact scientifically supported in that the

coqui

ceases calling soon after sundown on nights when the relative humidity goes below 85%.

67

At Destino, the cumulated sound of big claps of thunder were measured by automatically activated equipment which operated there for ten days to measure the sound exposure levels. The sound exposure levels of two claps of thunder, which were specifically identified by a witness, were respectively 96.7 and 103.6 dB. These levels may be compared with the sound exposure level of 77.6 dB of a 500-pound (Mark 82) bomb at a distance of 3 miles. The differ

*679

ence of more than 20 decibels between the exposure levels of thunder and a bomb, means that the dropping of 100 bombs 3 miles from Destino would cause the same cumulated sound there (and the same average sound level) as would one big clap of thunder. (Thunder at Vieques is common in the summer).

Aircraft noise was measured at Destino while two Naval aircraft (Type A-6, which is a noisier aircraft than the A-7) made 25 northward runs over Target 2 (only inert bombs are dropped on this target); after a run they made a left turn and returned southward, east of Destino, to make another run. Fourteen of the runs triggered the automatic measuring equipment, yielding a typical sound exposure level at Destino, for one A-6 aircraft, of 79.3 dB. Inasmuch as the sound exposure levels of the other 11 runs were less than the smallest one that did activate the automatic measuring system, by the rules for levels, the typical sound exposure level of all 25 of the A-6 aircraft flying southward east of Destino was 76.7 dB.

In 1977-78 the average number of aircraft (all types) making runs on Target 2, and the climbing left turns thereafter, was 37.8 per day. An analysis of the distribution of operations for 20 days in August and September 1978 indicated that 3 per cent of aircraft operations occur after 10 p. m. In view of the 10-dB emphasis on sound levels at night, the yearly day-night average sound level at Destino, due to aircraft, would be 44 decibels.

As noted above, the day-night average sound level at Destino for the six months recorded due to all sources of noise, was about 58 dB. If the yearly aircraft operations described above were stopped entirely, the day-night average sound level at Destino would drop to 57.8 dB — an insignificant reduction of 0.2 dB.

Naval gunfire at the Vieques target range in September 1978 did not appreciably increase the noise at Destino, and presumably at other populated areas more distant from the guns. The evidence establishes a one-hour average sound level for the hour ending at 1:00 P.M. on September, 1978. This is the highest level at any time during the 10 days of monitoring at the Topside House, at Destino. This high level was due to thunder and rain. During the five hours 1:00 to 6:00 P.M. on September 29, 1978, the one hour average sound levels were respectively 40.3, 46.0, 42.5, 41.3 and 41.0 dB. These are among the lowest in the 10-day period notwithstanding that the Weekly Range Utilization work sheet for September 29, 1978 lists for the same five hours 7, 6, 4, 10 and 0 rounds respectively fired by 5-inch guns. The fact that the one-hour average sound level was 41.0 dB at Destino when there was no gunfire at all, and 41.3 dB with the firing of 10 rounds, means that the gunfire added appreciably nothing to the noise at Destino, even in the quietest hours.

The lowest one-hour average sound level, day or night throughout the 10-day period, was 39.6 dB, for the hour ending at 2:00 P.M. on 30 September 1978. During this quietest hour, 13 rounds were fired by 5-inch guns. This gunfire likewise added nothing significant to the prevailing ambient noise.

According to a report of the National academy of Sciences entitled “Guidelines for Preparing Environmental Impact Statements on Noise”, 1977, the primary measure for describing noise in an environmental impact statement is the day-night average sound level. Various documents of the Environmental Protection Agency have named the day-night average (A-weighted) sound level as the primary measure of noise in the community. A day-night average sound level of 55 decibels is identified as the outdoor level in residential areas compatible with the protection of public health and welfare. This day-night average sound level is based on all sounds at the particular location. Along these same lines, should be further noted that the Acoustical Society of America’s proposed American National Standard S.3.23, recommends a yearly day-night average sound level of between 50 to 65 dB for residential, single-family building where extensive outdoor use is anticipated.

*680

The “hard” scientific evidence refutes Plaintiffs’ allegation that military operations create shock waves and excessive noise that interfere with health and welfare of residents of Vieques. The yearly day-night average sound level at Destino due to Navy aircraft is less than 44 dB, and due to gunfire, less than 41 dB.

It would be impossible for planning purposes to adopt a day-night average sound level limit lower than 55 dB, because the outdoor living on Vieques is already adapted to a day-night average sound level at times as high as 58 dB, which as previously stated is due mostly to biota, rain, thunder and the activities of the residents thereof. If an attempt were made to allow residential building only at places where the yearly day-night average sound level is less than 50 dB, no one would be allowed to build on Vieques. Whatever limit is adopted, it must be applied to the

combination of all sounds,

without discrimination as to source.

For the above reasons it is our opinion that Plaintiffs’ claims under the Act lack a basis in fact as well as law.

H.

The Coastal Zone Management Act and related matters under the Endangered Species Act and the Marine Mammal Protection Act

Plaintiffs allege that Defendant Navy’s activities are inconsistent with the Coastal Zone Management Act of 1972, 16 U.S.C. § 1451

et seq.

(hereinafter called the “CZMA” in this section) or with the Puerto Rico Coastal Management Plan (hereinafter called the “Plan”) promulgated pursuant to CZMA.

The “CZMA” is an all-encompassing statement of Federal policy

68

vis-a-vis the Nation’s coastal zone, which provides for various programs and grants to the States related to this policy. 16 U.S.C. §§ 1454 , 1455, 1456, 1456a, 1456b, 1456c, 1458, 1461. This statute is administered by the National Oceanic and Atmospheric Administration, an agency which is part of the United States Department of Commerce. Pursuant to 16 U.S.C. §§ 1454-1455 said agency, on September 21, 1978, approved the Plan submitted by the Commonwealth of Puerto Rico.

The “CZMA” provides that:

“Each Federal agency conducting or supporting activities directly affecting the

coastal zone

shall conduct or support those activities in a manner which is

to the maximum extent practicable

consistent with approved state management programs.” 16 U.S.C. § 1456 (c)(1). (Emphasis added).

As can readily be seen, the bone of this contention centers around Plaintiffs’ allegations that Defendant Navy’s activities are inconsistent with the Commonwealth’s Plan, while Defendant Navy claims that they have complied “to the maximum extent practicable.” Defendant Navy also alleges that Plaintiffs’ actions suffer from certain procedural defects.

There are various reasons why Plaintiffs’ contentions are inappropriate, not least of which is that the “CZMA” and the Commonwealth’s Plan are inapplicable to the Defendant Navy’s lands in Vieques.

The “CZMA”, at 16 U.S.C. § 1453 (1) specifically excludes the lands in question:

“The term ‘Coastal zone’ means the coastal waters (including the lands therein and thereunder) and the adjacent shorelands (including the waters therein and thereunder), strongly influenced by each other and in proximity to the shorelines of the several coastal states, and includes islands, transitional and intertidal areas, salt marshes, wetlands, and beaches. The zone extends, in Great Lakes waters to the international boundary between the United States and Canada and, in other areas, seaward to the outer limit of the United States territorial sea. The zone extends inland from the shorelines only to the extent necessary to control shore-lands, the uses of which have a direct and significant impact on the coastal waters.

Excluded from the coastal zone are lands the use of which is by law subject solely

*681

to the discretion of or which is held in trust by the Federal Government, its officers or agents.”

(Emphasis supplied).

The legislature history of this provision leaves little doubt as to this interpretation.

“This section defines the various terms used throughout this bill. Of particular importance is the definition of ‘Coastal zone.’ The coastal zone is meant to include the

non-Federal

coastal waters and the

non-Federal

land beneath the coastal waters, and the adjacent

non-Federal

shore lands including the waters therein and thereunder. . . . The zone also includes such transitional and intertidal (sic) as salt marshes, wetlands, and beaches. The outer limit of the zone is the outer limit of the territorial sea, beyond which the States have no clear authority to act. All federal agencies conducting or supporting activities in the coastal zone are required to administer their programs consistent with approved state management program. However,

such requirements do not

convey, release or diminish any rights reserved or possessed by the Federal Government under the Submerged Lands Act or the Outer Continent Shelf Lands Act or

extend state authority to

land subject solely to the discretion of the Federal Government such as national parks, forests and wildlife refuges, Indian reservations and

defense establishments .

. ” (Emphasis added).

See Senate Report No. 92-753, 1972 U.S. Code Cong, and Admin.News, p. 4783. In the “Joint Explanatory Statement of the Committee of Conference”, the Congress stated:

“. . . The Conferees also adopted the Senate language in this section which made it clear that Federal lands are not included within a state’s coastal zone.

See

Conference Report No. 92^1544, 1972 U.S.Code Cong. & Admin.News, p. 4822.

Interestingly enough, the evidence on record shows that at a time when litigation was not contemplated, Plaintiff Environmental Quality Board agreed with this conclusion. A cursory review of the approved Plan reveals that the Environmental Quality Board specifically

excluded

Federal lands in Vieques from the provisions of the Plan.

69

We are confronted, however, with certain provisions of the regulations promoted by the National Oceanic and Atmospheric Administration pursuant to the “CZMA”, which state:

“Federal activities outside of the coastal zone (e. g., on excluded Federal lands . or landward of the coastal zone) are subject to Federal agency review to determine whether they significantly affect the coastal zone.” 15 CFR 930.33(c).

We are somewhat at a loss to reconcile how Federal lands which are specifically excluded by the “CZMA” can nevertheless be subjected to review by administrative fiat. It would seem that the administrative inclusion of what has been legislatively excluded constitutes an

ultra vires

act. See,

Chrysler Corp. v. Brown,

441 U.S. 281, p. 304 , 99 S.Ct. 1705 , 60 L.Ed.2d 208 (1979). We need not decide this, however, as discussion of the merits of this controversy is also relevant to other pending issues.

Before entering into the merits of Plaintiffs’ claims, however, we should consider the procedural objections raised by Defendant Navy to the effect that pursuant to the “CZMA’s” mediation procedure ( 16 U.S.C. § 1456 (h)), the Court should defer to the “primary jurisdiction”

70

of the administrative agency charged with implementing the “CZMA”. This point is not well taken. The mediation procedures contained in the “CZMA” are only mandatory on the Secre

*682

tary of Interior

71

and not on either the Federal agency or the coastal states, a fact made abundantly clear by the regulations enacted pursuant to said statute.

72

The substantive charges implicit in Plaintiffs’ allegations hereunder are without merit. Although the nature of Defendant Navy’s activities have a tendency towards provoking dramatic conclusions, a dispassionate analysis of the scientific evidence leads us to the conclusion that the negative impact of the Defendant Navy’s activities on the coastal zone of Vieques is negligible, and if the truth be said, the control of large area of Vieques probably constitutes a positive factor in its over all ecology. The very fact that there are in the Navy zones modest numbers of various marine species which are practically non-existent in the civilian sector of Vieques or in the main island of Puerto Rico, is an eloquent example of

res ipsa loquitur.

73

An analysis of the various components which make for a healthy coastal ecosystem reinforces this view point:

(1)

The coral reefs and related communities

Various studies were conducted related to alleged sedimentation of the reefs, particularly in the high impact areas of Bahia Salinas del Sur and Bahía Icacos. These studies were conducted with a view to determining the extent and location of any deposition of terrigenous sediment

74

offshore, the location of areas of sediment damage to coral reefs, and the source and causation of any excessive sedimentation on corals. This is important in that sedimentation not only causes turbidity in the water and therefore blocks off light essential to the various life processes, but also because sedimentation brings about stress to the coral, which diverts energy from its reef-building functions.

“In case of serious disagreement between any Federal agency and a coastal state— (1) in the development or the initial implementation of a management program under Section 1454 of this title; or

(2) in the administration of a management program approved under section 1455 of this title; the Secretary, with the cooperation of the Executive Office of the President, shall seek to mediate the differences involved in such disagreement. The process of such mediation shall, with respect to any disagreement described in paragraph (2), include public hearings which shall be conducted in the local area concerned.”

“The availability of the mediation services in this subpart is not intended expressly or implicitly to limit the parties’ use of alternate forums to resolve disputes. Specifically, judicial review where otherwise available by law may be sought by any party to a serious disagreement without first having exhausted the mediation process provided for in this subpart.”

These studies show that the nature of sediments contained in the waters at the eastern end of Vieques

75

are similar to those of the Virgin Islands region, an area unaffected by Defendant Navy’s activity and world-renowned for the clarity of its waters. Although there are some corals which have been damaged by sediment, mostly in a narrow zone on the protected or leeward edges of the reefs, the percentage of terrigenous sediment on these corals is very low, and runoff does not pose a threat of any measurable magnitude to any reef-building organism. The sediment damaged coral is the result of deposits caused by natural forces rather than Defendant Navy’s activities.

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Comparative studies of the

Montastrea annularis,

an abundant coral

76

and a reef builder in Vieques and throughout the Caribbean, show that the effect of Defendant Navy’s activities in Vieques has been negligible' in terms of retarding coral growth rate. At present there is no irreparable damage to coral reefs in Vieques and what damage does exist can be repaired by the reefs’ normal growth processes.

Although undoubtedly there are some indications that stray ordnance have caused some pocketing in a limited area of the reefs of Bahia Salinas del Sur and Bahia Icacos, the bulk of the damage observed in the reefs there and elsewhere is caused by the natural processes of bioerosion and wave action, which processes causes cracks, shearing and breakage in

Montastrea.

This type of coral damage is typical of any high energy (i. e., wave) area, such as eastern Vieques, and can easily be confused with damage caused by explosions.

A comparison of the Vieques reefs with those of the Virgin Islands is particularly apropos because of the almost identical geological, climatological, ecological and physical oceanographic parameters of these two areas.

77

Thus the analysis of Vieques reefs inside the area of naval activity vis-a-vis the control reefs in the Virgin Islands outside of any naval activity should establish whether any differences exist that can be attributed to naval presence on Vieques.

In the study conducted in the eastern Vieques range area (AIA/CAS/NGPS) approximately 10,000 sample points were taken representing a linear distance of over 10 kilometers. In the Virgin Islands 4,440 sample points were taken representing a linear distance of over 4.4 kilometers. The results of these two transact analysis reveal that the reefs in the eastern part of Vie-ques and those in the Virgin Islands

78

are almost identical in composition. The organic portions of these reefs show nearly identical percentages for all major reefs components. The amount of broken, diseased, and dead coral, and of coral rubble is very similar in both areas. This tends to demonstrate that both reef systems are subject to the same kinds and same amount of stresses. It is particularly significant when we consider that a large percentage of the reefs studied in the Virgin Islands

79

is within the control of the Park Service of the Department of Interior and subject to stringent regulations as to its use, all of which reinforce our conclusion that the vast majority of coral rubble in both the Virgin Islands and Vieques is the result of natural bioerosion and wave action.

80

The living biomass of both of these reef systems exhibit a very low abundance of plants and sponges.

81

This is again the result of the rather shallow and exposed surf crest type environment of these reefs. Sea grasses, microalgae and sponges do not usually flourish in a high energy environment.

82

The quantitative assessment of 4,974 sample points of reef building corals in

*684

eastern Vieques reveals 14 points that show military impact. This is equivalent to 0.2% of the total reef and is representative of the damage attributable to the military to reefs in Vieques. This amount of damage is insignificant to the normal functioning of the Vieques reef ecosystem and clearly indicates that the impact of these activities on this system is negligible.

The coral reef fish communities in the Vieques range have also been compared with those in the Virgin Islands to determine differences in species, abundance, disease, parasitism and behavior.

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The ten Vieques reefs studied showed 105 species, as compared to the seven Virgin Islands reefs, which showed 109 species. The average number of species counted per hour is also very similar with 45 for Vieques and 43 for the Virgin Islands respectively, as well as the abundance of species, with both areas having 19 species with abundance scores of over 50%.

84

The sublethal effects of military ordnance were also studied. In over 50 hours of diving in Vieques, only one fish was observed with an open wound, and that was of undetermined origin. Disease was not seen in either Vieques or the Virgin Islands.

85

No abnormal behavior was observed in either study area. In fact courtship and spawning of the Blue-Headed Wrasse was seen in all but two reefs in both Vieques and the Virgin Islands, a factor which scientists consider demonstrative of a healthy and undisturbed fish population.

The results of this study are of relevance to commercial fishing in Vieques in that 40% of the species recorded are also caught commercially. Evidence that the numbers of the fish in the range have not been reduced by military activity is that the catch-per-unit-effort has remained constant from 1968 through 1978, in contrast with the south central area off Vieques, which is in the civilian sector, where the catch-per-unit-effort is half its level 10 years ago, thus indicating over-fishing by the fishermen rather than a negative impact from Naval activities.

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We thus conclude that the health of the coral reef fish in Vieques is equivalent to those of the Virgin Islands and reflect a substantially intact coral reef ecosystem.

(2)

The sea-grass communities

The sea-grass communities located in Vie-ques at Bahía Icacos, Bahia Salinas, Bahia Salinas del Sur and Mosquito Bay were studied and compared to those of Tague Bay (St. Croix). Two grass species were studied:

Thalassia testudinum

and

Syringodium fHiforne.

Average sea grass productivity at Vieques is 3.1 gm/m 2/day as compared to 2.8gm/m2/day at St. Croix, thus showing slightly higher values in Vieques.

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Furthermore, a comparison of the biomass weight of these two areas implies that the standing amounts of sea grass in both places is approximately equal.

The sea-grass studies thus show that Vie-ques has moderately productive sea-grass

*685

beds, that are healthy, and typical of sea-grass beds throughout the Caribbean.

A sampling of grassbeds fish yielded 25 species in Vieques and 35 species in St. Croix. The density of fish in St. Croix was 57.9 fish/sample compared to 21.5 fish/sample on Vieques. Species diversity on St. Croix was 3.107 as against 2.787 for all samples.

There is no doubt but that the impact of ordnance on grass beds creates craters and removes sediment and rhizones at the point of impact. This damage is limited to the immediate area of impact. No craters were observed larger than about six feet in diameter and these are principally limited to the waters in the immediate vicinity of Bahia Icacos, Bahia Salinas, and Bahia Salinas del Sur in the AIA/CAS/NGFS zone. None appear to be enlarging or becoming blowouts.

Blowouts, which are migrating holes in grassbeds that erode at one edge while recovering at another edge, occur on the northwest end of Vieques. Those blowouts were caused mainly during the construction of a fresh water pipe from Puerto Rico to Vieques, by Commonwealth employees or agents.

Grassbeds can recover from physical disturbance, and most of those on Vieques show signs of recovery. Nearly all craters show growth of green algae such as

Penicillus

and

Halimeda,

which are known early colonizers in the Caribbean. At least two craters north of Punta Gato show colonization by

Thalassia,

the final state in recovery.

A comparison between aerial photographs of Bahia Icacos, Bahia Salinas and Bahia Salinas del Sur taken in 1936-37, which were taken in 1978, show an increase rather than decreases in the total sea-grass areas. In 1937 Bahía Salinas del Sur, an area of approximately 143.17 hectárea (Ha), contained about 35.7 Ha of seagrass of which 15.3 Ha were dense seagrass. In 1978 this area has 85 Ha of seagrass of which 63.5 Ha is dense seagrass. In Bahia Icacos and Salinas, a total area of about 33.8 Ha, there was an increase in seagrasses of from 7.5 to 17.4 Ha during this same period.

In our opinion the damage to seagrass from the activities of Defendant Navy is neither substantial, permanent nor irreversible. As a matter of fact, even if all the seagrass in the eastern end of Vieques were damaged or removed, this would constitute but a relatively small portion of the seagrass productivity of the entire island, as the largest seagrass beds are located not in the AIA/CAS/NGFS zones but rather in the western portions of Vieques.

Studies were also conducted of the benthic faunal communities associated with seagrasses around Vieques. The object of these studies was to quantify benthic (in fauna), epibenthic (live on sediment) and cryptic (live on and among the blades) fauna which provide the main link between primary production of the area and higher trophic level consumers, many of which are valuable sport and commercial species, and to assess the condition of these communities.

88

The fauna of the samples was dominated numerically by small polychaetous annelids, with no sample dominated by any one species or even one family of organisms. No pattern was discernible that could be associated to Naval activity. For example, a station within a “very disturbed area” yielded a high abundance of organisms and had an almost exact analog in a station which had similar species and abundance but was more than 1 kilometer to the west, outside the impact area. The station with the highest seagrass biomass, off Punta Gato, had the fewest animals. We thus must conclude that benthic abundance can not be positively correlated to seagrass standing crop biomass.

Furthermore, any implication that military and other debris in a seagrass meadow

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is always detrimental is erroneous.

89

A change in the vertical relief in a seagrass bed or sand bottom acts as an attractant to important organisms such as spiny lobsters. Natural phenomena, such as blowouts, also provide this vertical relief and in Mosquito Bay serve as a surrogate reef, attracting concentrations of fishes and crustaceans usually found on patch reefs which are not present in the Bay.

(3)

Mangrove wetlands

Mangroves are an important segment of the coastal ecosystem. See:

Commonwealth of Puerto Rico v. SS Zoe Colocotroni,

supra. They are valuable as habitat for marine and estuarial vertebrates and invertebrates, are an important segment of the marine detrital food chain, and act as shoreline stabilizers.

As previously alluded to, there are several areas of mangrove in Vieques,

90

most of which are within Defendant Navy’s properties. Commencing from west to east the important mangrove forests are the Punta Arenas-Laguna Kiani (199.49 “cuerdas”)

91

and Laguna Playa Grande (57.68 cdas.) forests in the NAF, and the Puerto Mosquito (102.12 cdas.), Puerto Ferro (48.18 cdas.), Bahía Tapón (20.36 cdas.), Bahía Chiva (34.-27 cdas.), Bahia Yanuel (27.48 cdas.) and Ensenada Honda (86.18 cdas.) forests along the southern coast of the GMA. There are no mangrove stands of any significance or importance in either the SIA or AIA/CAS/NGFS zones.

Two of the above mangrove areas, Punta Arenas-Laguna Kiani and Puerto Mosquito, are under stress although the cause of the stress cannot be attributed to Defendant Navy’s activities.

In the Punta Arenas-Laguna Kiani mangrove complex there is a large area of dead mangrove in the Laguna Boca Quebrada area. Plaintiffs claim that the cause of this mortality is the closing of an alleged access to the sea with a consequent rise in the salinity of the entrapped waters, a factor which is highly detrimental to mangrove forests. However, pre-1940 aerial photographs and maps of this area show the existence of a continuous roadway between that mangrove forest and the sea and thus clearly establish that the present day road existed before Defendant Navy’s arrival in Vieques. Although there is a dry stream bed to the south of Punta Boca Quebrada which is crossed by a tramway construction, this stream bed, as appears from a map of the area,

92

is not connected to the mangrove swamp but rather serves the watershed to the north of Monte Pirata. More recent maps show a channel-like connection between Laguna Boca Quebrada and the sea, but no evidence was presented as to any activity of Defendant Navy which could support a finding that Defendant Navy has caused its blockage. If such a channel did in fact exist, it would be as reasonable to presume that it has filled from natural causes. We might add that it would be a simple operation to reopen such a channel because of the proximity of Laguna Boca Quebrada to the sea.

The second mangrove area of immediate concern is that on the western side of Puerto Mosquito, behind the public beach at Ensenada Sombe. This mangrove, although bordering in part on the Naval reservation (GMA), is actually in the civilian sector. The cause of the stress to this forest is again the hypersalinity of the soil, this time brought about by the blockage or diversion of the fresh water runoff and ground water. This has been caused by the rerouting of the civilian road between Esperanza and Isabel Segunda and by the excessive pumping of wells in the area. Neither

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of these factors can be attributed to Defendant Navy.

In our opinion the activities of Defendant Navy have a negligible impact on the mangrove ecosystem of Vieques.

(4)

Bioluminescent bays

There is no credible evidence on the record to support any finding that any activity of Defendant Navy has in any way affected the bioluminescent bays or the organisms that thrive therein.

(5)

Beaches

There are numerous beaches throughout the Defendant Navy’s property in Vieques. With the exception of those in the confines of the AIA/CAS/NGFS zones the public is allowed permission to use them when maneuvers are not in progress. Green Beach (Punta Arenas), as previously stated, is in fact used almost exclusively for recreational purposes by both service personnel and civilians.

As indicated, the bulk of the amphibious operations take place at Blue Beach on the South coast. These operations are not on a continuous basis but rather take place two or three times a year. There is no indication that the use of this beach for these purposes causes any significant negative impact on the beach or its related surroundings.

The beaches within the AIA/CAS/NGFS zone, namely those in Bahia Salinas del Sur, Bahía Icacos and Bahia Salinas frequently receive direct ordnance impact. This may result in debris being strewn throughout as well as occasional unexploded rounds or bombs. The latter are periodically cleared or detonated in place by demolition crews of Defendant Navy. Quite obviously under its present use, these particular beaches would be inappropriate for use by the public. But in our opinion, the evidence is at best inconclusive that these activities have a

substantial

negative ecological impact on these beaches. In any event we conclude as a matter of law that because of the limited area in question and because of the intrinsic nature of the activity being conducted, Defendant Navy has “to the maximum extent practicable” conducted activities in compliance with the Act.

(6)

Wildlife

Generally speaking, and leaving aside fish species already described, the wildlife in Vieques’ coastal zone consists of various aquatic, mangrove, and sea birds species, various kinds of turtles, and lizards, and the manatee.

Birds, however, are the dominant form of wildlife in Vieques, and the coastal zone is no exception.

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The existence, relative

*688

abundance, and variety of bird life in Vie-ques, and in particular within Defendant Navy’s properties, clearly negate Plaintiffs’ contentions to the effect that the activities conducted therein are unfavorably affecting said wildlife. We do not credit evidence presented to the contrary.

a.

The Endangered Species Act

As previously stated, various species of Vieques’ wildlife are listed as threatened or endangered pursuant to the Endangered Species Act, 16 U.S.C. § 1531

et

seg.

94

and these should be discussed herein with some particularity. The endangered species include the Brown Pelican, the Hawksbill Turtle, the Leatherback Turtle and the West Indian Manatee. See 50 CFR § 17.11 . The threatened species include the Green Turtle and the Loggerhead Turtle. See 43 Fed.Reg. 32800.

It is a declared purpose of this statute “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved . [and] that all Federal departments and agencies . . . seek to conserve endangered species and threatened species.” 16 U.S.C. § 1531 (b) and (c). Generally speaking the “taking” by any person of any endangered species within the United States or its territorial sea is prohibited. 16 U.S.C. § 1538 . This statute defines “taking” as including to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532 (19). The law encompasses within the term “person”, any “officer, employee, agent, department, or instrumentality of the Federal Government.” 16 U.S.C. § 1532 (13). All Federal departments and agencies are required to carry out programs for the conservation of threatened and endangered species, and to insure that actions “authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered . and threatened species or result in the destruction or modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with the affected States, to be critical.” 16 U.S.C. § 1536 (a).

It is an undisputed fact that all of the mentioned threatened or endangered species can be found in Vieques or its surrounding seas.

The substance of Plaintiffs’ allegations is that Defendant Navy’s activities constitute prohibited “takings.” It is further alleged

*689

that these actions are contrary to law in that they fail to ensure that the species’ continued existence is not jeopardized or that habitat deemed critical is not destroyed or adversely modified.

It is best to discuss these species separately.

i.

The Brown Pelican

Brown Pelicans are colonial nesters, who seem to prefer to construct their nests on perches in small coastal islands. In Vie-ques, they have established a nesting colony on Cayo Conejo (also referred to at times as No-Name Island), a two acre island located just off-shore from Bahia Salinas del Sur on the AIA/CAS/NGFS zones.

Plaintiffs claim that the Cayo Conejo rookery is one of only two in Puerto Rico, the other one being in a small island off La Parguera, in the South coast. They claim that Defendant Navy’s activities disturb the Brown Pelican’s reproductive activities because they prefer quiet, secluded surroundings to carry out these functions.

Although these are plausible arguments, we are immediately confronted with various factors which militate against our adoption of the same. The most obvious one is the very fact that the pelicans have chosen Cayo Conejo as a nesting site. This rookery has been known to exist since at least 1971. If pelicans are as susceptible to military activity as is alleged one wonders why they established a nesting colony in such close proximity to Vieques’ most active military zone. In fact, the “Puerto Rico Coastal Management Program and Final Environmental Impact Statement” (referred to in Section IV H above, as the “Plan”, prepared by the Department of Natural Resources of the Commonwealth), lists the mudflats in San Juan Bay, a commercial harbor with considerable traffic and in whose midst is located an important local airport, “as [a] nesting area[s] by the Brown Pelican” (supra, p. C-l).

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More in point however, there is no evidence of a decline in the total population of the Vieques pelicans, a factor which would seem to bear a direct relationship to the breeding rate of the resident birds, and thus on whether the Cayo Conejo colony is being disturbed by Defendant Navy’s activities.

There is more specific data to substantiate these conclusions. Studies conducted of the Cayo Conejo group showed a clutch size of 2.58 eggs per nest, precisely the same clutch size found in Florida colonies during an eight year study. This tends to demonstrate that the Vieques colony has not suffered during the nesting season. The birds observed in Vieques had an age-class distribution with a high percentage of “birds of the year”, and a reasonable number of subadults, which also indicates a healthy population with a stable age-class distribution. Direct observation of the Cayo Conejo group during both periods of military activity and otherwise, showed no noticeable reaction by pelicans during military operations. In fact pelicans were observed engaging in low-intensity courtship behaviour during operations, even though adult birds are most susceptible to any form of disturbance during courtship activity. This is supportive of scientific opinion that birds, including Brown Pelicans, habituate themselves to noise and to the presence of airplanes.

From personal observation by the Court, there is no evidence of recent military activity taking place on Cayo Conejo. The only evidence that could be observed of any military activity on this island were the remains of some craters, completely covered over by grass, and some rusted metal fragments. In fact, the major disturbance to this nesting colony is brought about by visits of fishermen who go onto the cay to collect snails. By restricting the presence of humans in this area, Defendant Navy has

de facto

provided a refuge for the pelicans (and other wildlife).

*690

Although there is no designated critical habitat in Vieques for Brown Pelicans, Defendant Navy has proposed a cooperative agreement with the U.S. Fish and Wildlife Service establishing Cayo Conejo as a managed resource for Brown Pelicans. Under this agreement overflights are restricted to altitudes above 500 feet and no personnel will be permitted to visit the cay except on ornithological or operational safety matters. This altitude restriction is presently contained in Defendant Navy’s Range User’s Manual.

ii.

The Sea Turtles

Here again we are confronted with the fact that the sightings of the turtles and of their nests are almost exclusively within Defendant Navy’s properties or in the waters adjacent thereto, and again in close proximity to or within the AIA/CAS/NGFS zone. Plaintiffs contend that this dictates the automatic curtailment of Defendant Navy’s activities, without considering that it is perhaps this presence that accounts for the existence of the species there.

In any event, we must take into account that Vieques is not considered a major turtle site in terms of the range of the species here in question. This is a fact which has been officially recognized by the failure to designate as critical habitat any area in Vieques for any of these species.

The evidence shows that the population of green turtles on Vieques does not represent a significant proportion of the total number of these species. Again in terms of the total numbers of the species, the number of loggerhead turtles in the Caribbean is quite small, and those that can be found in Vieques insignificant. Even the presence of the leatherback and hawkbill turtles in Vieques is not of importance in terms of relative numbers when compared to the various other Caribbean sites where it is found, notwithstanding that these two species are the most abundant of the sea turtles to be found in Vieques.

Furthermore, no credible evidence was presented to show that any activity of Defendant Navy is affecting the sea turtles in Vieques in any significant manner.

96

The record shows that the greatest threat to these species in Vieques, as throughout the Caribbean, has been the unrestricted fishing that has taken place.

97

There is evidence that this fishing, although presently illegal under the Endangered Species Act, is still taking place around Vieques, together with the poaching of sea turtle eggs and nesting adults. Defendant Navy’s presence on Vie-ques, together with the restrictive nature of its activities, has had some measure of benefit to the turtle population by precluding some of the illegal fishing and egg poaching.

b.

The Manatee and the Marine Mammal Protection Act

The Manatee

(Trichechus manatus),

a large herbivorous marine mammal of the order

Sirenia,

is protected by the provisions of both the Endangered Species Act, supra, and the Marine Mammal Protection Act, 16 U.S.C. § 1361

et seq.,

see specifically 16

*691

U.S.C. § 1362(5).

98

This later statute also prohibits the “taking” of the manatee by any person in waters or on lands under the jurisdiction of the United States ( 16 U.S.C. § 1372 (2XA)). The definitions of “taking” and “person” in this law are similar to those contained in the Endangered Species Act. 16 U.S.C. § 1362 (10), (13).

The evidence presented demonstrates that the manatee is found in larger numbers and concentration in Vieques than in any other area of Puerto Rico except perhaps the Naval Reservation at Roosevelt Roads, across Vieques Sound. We do not deem it coincidental that both of these areas are under the control of Defendant Navy.

The Vieques group, which is concentrated almost exclusively in the sea grass beds around Punta Arenas (in the northwest), consists of between 13 to 25 manatees and includes a significantly large proportion of calves. It remains questionable whether the manatee population of Vieques is totally discreet from that of Roosevelt Roads, particularly since there are no year round fresh water sources on Vieques, which seems to be a periodic requirement for manatees.

99

However, the northwestern sector of Vieques, in addition to containing large areas of sea grass, has sediment of sufficient penetrability as to allow the manatee to easily root for the base of the grass, the preferred manner of feeding of manatee.

As previously indicated, the area of Vie-ques preferred by the manatee is an area almost totally devoid of any military activity. Again, although no area of Puerto Rico has been designated as critical habitat, we can find no activity of Defendant Navy which can be said to be affecting in any adverse way the manatee or its habitat.

The facts which we have found proven establish as a matter of law that there has been no “taking” of any of the above-mentioned endangered or threatened species under either the Endangered Species Act or, as applicable, the Marine Mammal Protection Act.

100

Furthermore, as previously indicated, no “critical habitat” designation has been effectuated as to any of these species pursuant to the procedures established by the Endangered Species Act, 16 U.S.C. § 1533 . Lastly, the actions filed under both the Endangered Species Act and the Marine Mammal Protection Act suffer from serious procedural defects: as to the first statute, Plaintiffs have failed to comply with the 60-day notice requirement of 16 U.S.C. § 1540 (g)(2),

101

which we deem to bar this citizen suit, (Cf.

Loveladies Property Owners Assn. v. Raab,

supra, at page 281); and as to the second, said Act not only fails to establish “citizen suits” for its enforcement but rather specifically limits such powers to the Secretary,

102

and thus Plaintiffs lack standing herein to enforce this Act.

103

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The sum total of the matter discussed under Section IV H above of this decision is thus that Plaintiffs have failed to state claims under either the Coastal Zone Management Act, the Endangered Species Act or the Marine Mammal Protection Act.

I.

The National Historic Preservation Act and Executive Order 11593.

Plaintiffs allege violations by Defendant Navy of Executive Order 11593 (“Protection and Enhancement of the Cultural Environment”, May 13, 1971, 36 F.R. 8921 , noted at 16 U.S.C. § 470 ) and of Section 106 of the National Historic Preservation Act (16 U.S.C. § 470f), referred to as the “Act” in this Section.

Section 2 of the Executive Order states in part, that federal agencies shall:

“(a) no later than July 1, 1973, with the advice of the Secretary of the Interior and in cooperation with the liaison officer for historic preservation for the State or Territory involved,

locate, inventory, and nominate

to the Secretary of the Interior all sites, buildings, districts, and objects under their jurisdiction or control

that appear to qualify for listing on the National Register of Historic Places.

(b)

exercise caution during the interim period

until inventories and evaluations required by subsection (a) are completed to assure that any federally owned property that might qualify for nomination is not inadvertently transferred, sold, demolished or substantially altered. The agency head shall

refer any questionable actions

to the Secretary of the Interior for an opinion respecting the property’s eligibility for inclusion on the National Register of Historic Places. The Secretary shall consult with the liaison officer for historic preservation for the State or territory involved in arriving at his opinion. Where, after a reasonable period in which to review and evaluate the property, the Secretary determines that the property is likely to meet the criteria prescribed for listing on the National Register of Historic Places, the Federal agency head shall reconsider the proposal in light of national environmental and preservation policy. Where, after such reconsideration, the Federal agency head proposes to transfer, sell, demolish or substantially alter the property he shall not act with respect to property until the Advisory Council on Historic Preservation shall have been provided an opportunity to comment on the proposal.” (Emphasis supplied).

Section 106 of the National Historic Preservation Act (16 U.S.C, § 470f) states that:

“The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object

that is included in or eligible for inclusion

104

in the National Register.

The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Sections 470i to 470n of this title a reasonable opportunity to comment with regard to such undertaking.” (Emphasis added).

The National Register referred to is a listing maintained by the Secretary of the Interior “. .of districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, and culture ...” 16 U.S.C. § 470a(a)(l). The Commonwealth of Puerto Rico is eligible to have listings in the National Register (16 U.S.C. § 470a(b)(1)). There are three locations in Vieques that are enumerated therein: the fort and light house at Isabel Segunda, and Frenchman’s House at Esperanza. See 44 Fed.Reg. 7416, 7561 (Feb. 6, 1979).

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Criteria for inclusion in the National Register is established in 36 C.F.R. 800.10(a):

“ ‘National Register Criteria’ means the following criteria established by the Secretary of the Interior for use in evaluating and determining the eligibility of properties for listing in the National Register: The quality of significance in American history, architecture, archeology, and culture is present in districts, sites, buildings, structures, and objects of State and local importance that possess integrity of location, design, setting, materials, workmanship, feeling and association and:

(1) That are associated with events that have made a significant contribution to the broad patterns of our history; or

(2) That are associated with the lives of persons significant in our past; or

(3) That embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual, distinction; or

(4) That have yielded, or may be likely to yield, information important in prehistory or history.”

There is little doubt in our mind but that Defendant Navy did not at any time prior to the commencement of the present actions locate, inventory and/or nominate any site or otherwise that appear to qualify for listing on the National Register, as required by Section 2(a) of the Executive Order.

After these actions were filed, however, Defendant Navy has conducted an extensive survey to such effects.

105

Prior to this survey twenty-nine archeological sites were known to exist in Vieques, of which all but two were in the civilian sector. The survey found an additional forty-five new sites, forty of which are on military property. The survey also located seventeen historical sites and structures, thirteen of which are on Naval lands.

There are at present no significant archeological or historical sites in the AIA/CAS/NGFS zones. Any that may have existed there have in all probability been destroyed.

106

*694

The sites which are located West of Cerro Matías, however, are not in any immediate danger of harm or destruction by virtue of Defendant Navy’s activities.

Although Defendant Navy admits that some of the newly discovered sites may be eligible for listing in the National Register no action has been taken to nominate them to the Secretary of the Interior or to seek his opinion respecting said eligibility. Thus Defendant Navy is in violation of Section 2(a) and (b) of Executive Order 11593. This order was issued pursuant to statutory authority

107

and has the force of law. Cf.

Farkas v. Texas Instrument, Inc.,

375 F.2d 629, 632 (C.A.5, 1967), cert. den. 389 U.S. 977 , 88 S.Ct. 480 , 19 L.Ed.2d 471 (1967);

Association for Women in Science v. Califano,

566 F.2d 339, 344 (C.A.D.C.1977). Violation of this Order may be privately enforced.

Aiuli v. Brown,

437 F.Supp. 602, 608-609 (D.C.Haw., 1977) rev. in part, 602 F.2d 876 (C.A.9,1979);

Save the Courthouse Committee v. Lynn,

408 F.Supp. 1323, 1331 (S.D.N.Y., 1975).

J.

Claims under the First and Fifth Amendments and Related Matters

A.

Alleged violations of agreements, Presidential Orders and Congressional Directives.

Plaintiffs claim that Defendant Navy has violated an agreement, and commitments with the Commonwealth of Puerto Rico, not to transfer to Vieques operations formerly conducted by Defendant Navy in the Island of Culebra. It is also alleged that Defendant Navy in transferring these activities, violated Presidential and Secretary of Defense orders not to effectuate a transfer from Culebra to an alternate site in Puerto Rico, without prior Commonwealth approval. Lastly, Plaintiffs contend that Congress, in enacting various Military Construction Authorization Acts

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intended “to exercise direct legislative supervision of the decision-making of the Department of Defense” with respect to the alleged Culebra transfer, by requiring the Secretary of Defense to study the problem, negotiate and obtain an agreement from the Commonwealth Government prior to any transfer within Puerto Rico, and report and recommend to Congress on the outcome of said matters.

The roots to these allegations are traceable to a controversy that commenced in this Court in the case of

Feliciano v. United States,

297 F.Supp. 1356 (D.P.R., 1969), aff’d 422 F.2d 943 (C.A.1, 1970), cert. den. 400 U.S. 823 , 91 S.Ct. 44 , 27 L.Ed.2d 51 (1970). At its inception it involved a challenge to the executive order which created the Culebra Island Naval Defensive Sea Area. The Navy won that legal battle but lost the political war that ensued, which culminated in the cessation in 1975 of all weapons training activities in Culebra Island.

The many complex, intertwining happenings that took place between the

Feliciano

case and the Culebra cease fire are the alleged basis of the present contentions.

In October 1970 Congress enacted the Military Construction Authorization Act of 1971 (P.L. 91-511, 84 Stat. 1204 ). Section 611 of this law

109

required the Secretary of

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Defense to study and report to Congress on the weapons training that was being conducted in Culebra with a view to considering “all possible alternatives, geographical and technological, to the training . taking place in the Culebra complex.” The report should “contain specific recommendations for . . . moving all or a part of such activities to a new site or sites . ” In preparing this report the Secretary was required to consult with the people of Culebra, the Government of Puerto Rico, and with appropriate Federal agencies. Furthermore, the Navy was directed to avoid any increase or expansion of its activities in the Culebra complex.

On January 11, 1971, a document entitled “Agreement” was signed by the Secretary of the Navy, John H. Chafee, the Governor of Puerto Rico, Luis A. Ferré, the President of the Puerto Rican Senate, Rafael Hernández Colón, and the Mayor of Culebra, Ramón Feliciano. This document principally dealt with various self-imposed operational restrictions by the Navy and contained a promise by this agency “to continue to investigate both technological and geographical alternatives to the training done around Culebra.”

On April 1, 1971, in compliance with the requirements of Section 611(b) of Public Law 91-511 the Secretary of Defense, Melvin R. Laird, forwarded to the Congress and the President a report on the weapons training then being conducted in the Culebra complex. As a result of this report the Secretary ordered, among other things, the cessation of explosive bombardment in the northwest peninsula of Culebra as of January 1, 1972.

Later that year Congress enacted the Military Construction Authorization Act of 1972 (P.L. 92-145; 85 Stat. 394 ), in which the Secretary of Defense was directed to prepare “a detailed feasibility study of the most advantageous alternative to the weapons training now being conducted in the Culebra Complex of the Atlantic Fleet Weapons Range.” § 207, 85 Stat. 401 . The standards to be used by the Secretary in determining the most advantageous alternatives were “cost, national security, the operational readiness and proficiency of the Atlantic Fleet, the impact on the environment, and other relevant’ factors.” Id. This report was to be completed by December 31, 1972, and submitted, together with the Secretary’s recommendations, to the President and to the chairmen of the Com

*696

mittees on Armed Services of the Senate and the House of Representatives.

This study was in fact submitted by Secretary Laird on December 27, 1972. It showed that the requirements for the Inner Range of the Atlantic Fleet Weapons Range,

which then included both Culebra and Vieques,

would not change substantially through 1985. The study predicted, however, a shift in the kind of operations conducted: naval gunfire support training, which was conducted mostly in the northwest peninsula of Culebra, was projected to decrease, while air-to-grounds weapons training, which was principally carried out on Vieques and several rocks and cays west of Culebra, were forecast to increase. Of the five alternate sites studied none was deemed superior to Culebra, although based on the criteria given, Vieques was considered the most advantageous of the alternate sites. However, transferring to Vie-ques would involve the relocation of the “Culebra training targets to the east end of Vieques with one air-to-ground target two miles off the northwest tip of Vieques.” The Secretary did not recommend this alternative as it was deemed to “significantly reduce the capability of the Inner Range and [to] transfer the training activity from an island with 700 inhabitants to one with 7,000 inhabitants”, a situation which the Secretary discarded as not being a prudent course of action. The Secretary, however, indicated that the requirements of weapons systems and training changed with time, and thus the Navy would remain abreast of developments that would modify the study’s conclusions, i. e., the Navy was keeping its options open.

Thereafter, in May, 1973, the new Secretary of Defense, Elliot Richardson, indicated to the Secretary of the Navy that in his opinion it was in the long-range interest of the Department of Defense to move the Navy training activities by July 1, 1975 from the Culebra complex

to the islands of Desecheo and Monito,

uninhabited islands lying in the Mona Passage, off the West coast of Puerto Rico, and a part thereof. The Secretary stated that

this

move was contingent upon Congress appropriating the funds and on working out “a satisfactory overall arrangement . . with the Government of Puerto Rico for carrying out the proposed move and for insuring the long-term continuation of the Atlantic Fleet Weapons Range and the Fleet Marine Force Training area.”

Later in 1973 Congress enacted the Military Construction Authorization Act of 1974 (P.L. 93-166, 87 Stat. 668 )

110

appropriating

*697

$12,000,000 to facilitate “the relocation of the ship-to-shore and other gun fire and bombing operations [from Culebra, and for the] construction and equipage of substitute facilities in support of such relocation.” Section 204(b) of this statute then provides that “[t]he relocation of such operations from the northwest peninsula of the island of Culebra is expressly conditioned upon the conclusion of a satisfactory agreement to be negotiated by the Secretary of the Navy . with the Commonwealth of Puerto Rico and reported to the Committees on Armed Services of the Senate and the House of Representatives prior to execution of such agreement.” The law further required that this agreement bind the Commonwealth of Puerto Rico to insuring that

Commonwealth lands

suitable to carrying out the relocated operations would be made available for long term continued use of the Atlantic Fleet Weapons Range and the Fleet Marine Forces Training area, “including, but not limited to, present areas and facilities on the Island of Vieques.” The agreement also had to have a provision compromising the Commonwealth to refrain from any activity that would interfere with the Navy’s training mission, including the building of a then proposed deep water super-port on the island of Mona (which is in the vicinity of Monito and Desecheo island), in the event the agreement included the use of said island or nearby areas.

On June 22, 1974 the Secretary of State, Henry Kissinger, in a confidential memorandum to the Secretary of Defense, informed him that President Nixon had decided to end weapons training activities in Culebra by July 1, 1975 and on the Culebra Cays by December 31, 1975. The Secretary of Defense was directed to consider and select alternative sites. “The selection of the

new

site, if . . .in Puerto Rico, [would] be contingent on its being acceptable to the Commonwealth, and the Secretary of Defense should so inform the Governor of Puerto Rico.” (Emphasis supplied).

Although we can well imagine that the above-described sequence is but the “tip of the iceberg” of the many incidents that culminated in the Culebra cease fire, they are the mainstay of Plaintiffs’ contentions and the principal sources of evidence on the record.

Considering these events in the most favorable light to Plaintiffs’ contentions, we cannot say that they convince us of the existence of any “agreement” on the part of Defendant Navy not to transfer operations to Vieques, even assuming that such an “agreement” would be legally enforceable or that the Plaintiffs would have proper standing to allege its “violation.” The very existence and contents of the January 11, 1971 document, which deals with matters of relative unimportance and ambiguity, militates against our concluding that Defendant Navy would reach a binding agreement to grant the Commonwealth veto powers over its Vieques exercises, without some specific written document to such effect. When we consider the unquestionable proof that Defendant Navy was at the time carrying out at least some of the Culebra operations also in Vieques, it makes it even more unlikely that they would agree to so seriously compromise the Vieques operations, without a substantial

quid pro quo

that would ensure the continuity of the training operations somewhere.

The above-quoted internal directives of the various members of the Executive, even if we assume them to have been issued at the express order of the President, are not such orders as give rise to a private cause of action.

Zabala Clemente v. United States,

567 F.2d 1140 (C.A.1, 1977), at 1144:

“. . . Not all acts and orders of the United States government are so sovereign that they must be treated as commands which create legal duties or standards, the violation of which involves breaking the law. A considerable part of the government’s conduct is in the context of an employer-employee relationship, a relationship which includes reciprocal duties between the government and its staff, but not necessarily a legal duty to the citizenry.”

*698

Furthermore, these directives, as well as the language in the various Appropriation Acts, cannot be taken out of the context of the circumstances surrounding them.

The above-described chain of events demonstrates that the Commonwealth and the Navy were negotiating for

additional Commonwealth lands

in substitution for the Culebra operations, and that eventually agreement could not be reached as to those lands, which more specifically were the islands of Mona, Monito and Desecheo.

111

Congress appropriated $12,000,000 for the purchase of those islands or similar Commonwealth lands, and it wanted to be sure that if it spent these sums in moving from Culebra, the Commonwealth would not do anything in the future to jeopardize these relocated facilities or the “present areas and facilities on the island of Vieques.” To interpret the Appropriation Acts as granting the Commonwealth a veto power over Naval operations in Vieques, even assuming its constitutional validity,

112

would not only require a strained construction of these statutes but would, because of the unusual nature of the same, necessitate a more specific mandate to said effect.

*699

Defendant Navy has used any of the amounts appropriated pursuant to P.L. 93-166 in the Vieques facilities or otherwise. It would seem that Plaintiffs could easily have established any such spendings, if in fact they do exist, during the course of their extensive pretrial discovery or by inquiry with the General Accounting Office.

113

Cf.

United States v. Richardson,

418 U.S. 166 , 94 S.Ct. 2940 , 41 L.Ed.2d 678 (1974). Conversely, in the Military Construction Authorization Act of 1976 (P.L. 94-107, 89 Stat. 551 ), Congress authorized the Secretary of the Navy to “establish or develop military installations and facilities by acquiring, constructing, converting, rehabilitating, or installing permanent or temporary public works, including land acquisition, site preparation, appurtenances, utilities, and equipment for the following acquisition and construction: . . . Atlantic Fleet Weapons Range, Roosevelt Roads, Puerto Rico, $2,128,000.” That statute did not otherwise restrict the nature of the spending. See also, Military Construction Authorization Act, 1979 (P.L. 95-356, 92 Stat. 565 , at 570).

*698

It is interesting to note that Plaintiffs have presented no allegation or proof that

*699

Furthermore, the evidence of a “transfer” from Culebra to Vieques is far from clear. Although the record shows that some improvements were made to the Inner Range facilities in Vieques after 1975, not only are these relatively minor in nature, but none were to establish new targets, all of which were in existence prior to 1975.

114

Although there is no question in our mind but that there was an increase in the intensity of operations at Vieques after 1975, this in itself demonstrates that these operations were already taking place in Vieques prior to the Culebra closing.

115

All of these statistics may be interesting reading, but they really are immaterial to the present issue.

116

Whether or not a transfer as such took place, the same cannot be the basis for a cognizable claim in this Court based on either the First or Fifth Amendment, as Plaintiffs have not shown that any such transfer has infringed any cognizable property interest or constitutional right,

117

particularly in view of our find

*700

ings which negate the existence of an enforceable agreement or mandate.

B.

The restriction of waters in the vicinity of Vieques

Plaintiffs Medina et al. and Zenon et al. contend that the restrictions of certain areas of the surrounding waters of Vieques, previously described, interfere with their personal rights and are contrary to the “Foraker Act”, 48 U.S.C. § 746 and the Federal Relations Act, 48 U.S.C. § 731

et seq.

Article I, § 8, Clause 3 of the United States Constitution accords to the Congress the power: “To regulate Commerce with foreign Nations and among the several states and with the Indian Tribes.” Chief Justice Marshall laid down the broad outlines of the commerce power in

Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1, 195 , 6 L.Ed. 23 (1824):

“We are now arrived at the inquiry— what is this power? It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution.”

In 1865, the Supreme Court in

Gilman v. Philadelphia,

70 U.S. (3 Wall.) 713, 724 , 18 L.Ed. 96 , ruled that navigable waters are public property of the Nation:

“Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose and to the extent necessary of all the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the Nation and subject to all the requisite legislation by Congress.”

Further, the Supreme Court has consistently maintained that, insofar as the control over commerce was concerned, more specifically the Commerce Clause,

plenary power

remained in. Congress. See,

National League of Cities v. Usery,

426 U.S. 833, 840 , 96 S.Ct. 2465 , 49 L.Ed.2d 245 (1976);

United States v. Wrightwood Dairy Co.,

315 U.S. 110 , 62 S.Ct. 523 , 86 L.Ed. 726 (1942).

The military’s operational restrictions at Vieques were issued by the authority of the Secretary of the Army under the Rivers and Harbors Act of 1889, 33 U.S.C. § 1 et

seq.

118

Sections 1 and 3 of Title 33 grant the authority to restrict access to waters in areas like Vieques. Generally, they commend to the sound judgment of the Secretary decisions on whether navigable waters should be restricted. His judgment is to be founded upon what “the public necessity may require for the protection of life and property.” 33 U.S.C. § 1 . The statute also provides for the issuance of Secretarial regulations, “[i]n the interest of the national defense, and for the better protection of life and property on the navigable waters of the United States” for waters under the jurisdiction of the United States likely to be endangered by target practice. 33 U.S.C. § 3 .

As previously indicated in this opinion, the pertinent regulations respecting the target range at Vieques Island are promulgated at 33 C.F.R. § 204.234 , establishing the danger zone, and 33 C.F.R. § 207.815 , establishing the restricted areas. On their face they are properly issued and fall within the purview of 33 U.S.C. §§ 1 and 3.

Nowhere have Plaintiffs shown that these restrictions operate to unreasonably restrict the waters from fishing and other activities. The two areas of restricted waters — the one, off the coast in the area of the Naval Ammunition Facility, and the

*701

other, off the coast in the Camp Garcia area — extend only 1,500 yards offshore. As previously stated, the danger area around the eastern end of Vieques is activated only at times when the range is in operation. Fishermen’s notices indicate the schedule of range activities for the following week, designating the areas to be closed and time periods of range activation. Fishing is permitted at all other times.

The Plaintiffs herein have presented absolutely no evidence that Defendant Navy has impermissibly or unilaterally expanded the areas authorized as a danger zone ( 33 C.F.R. § 204.234 ) or a restricted area ( 33 C.F.R. § 207.815 ). The navigable waters contiguous to Defendant Navy’s weapons training range at Vieques are navigable waters of the United States, and they have been restricted in exactly the manner intended by law and regulations. The Plaintiffs’ representations that the Federal Relations Act, 48 U.S.C. § 731 et

seq.,

negates Defendant Navy’s right to operate in this area are based on a misreading of that law and are contrary to §§ 734 and 749 of the same. See

PFZ Properties, Inc. v. Train,

393 F.Supp. 1370, 1382 (D.D.C., 1975). The waters of Vieques are legitimately restricted by the sovereign in order to protect Plaintiffs’ “life and property.” Cf.

United States v. Mowat,

582 F.2d 1194, 1205 (C.A.9, 1978), cert. den. 439 U.S. 967 , 99 S.Ct. 458 , 58 L.Ed.2d 426 (1939).

Since Plaintiffs have failed to demonstrate that the above restrictions are unreasonable, it is unnecessary for this Court to reach Plaintiffs’ Fifth Amendment taking claims. Again, however, Plaintiffs have failed to demonstrate any property interest of theirs which has been invaded, and indeed, they have none (see

Feliciano,

supra, at 1363-1364), particularly since no one has a property interest capable of being “taken” under the Fifth Amendment, in the fish in the sea.

Douglas v. Seacoast Products, Inc.,

431 U.S. 265, 284 , 97 S.Ct. 1740 , 52 L.Ed.2d 304 (1977).

Finally, the Plaintiffs Romero Barceló et al. and Medina et al., allege that the United States military operations on the Island of Vieques constitute a denial of freedom of travel as guaranteed by the First Amendment of the United States Constitution.

Feliciano,

supra, at 1364 and 1365, is dispositive of these claims of purported loss of personal liberties. See also,

Kreitzer v. Puerto Rico Cars, Inc.,

417 F.Supp. 498, 506 (D.P.R.1975), aff’d. 535 F.2d 140 (C.A.1, 1976). The evidence presented at trial demonstrates clearly that there is no significant restriction on travel or on use of the beaches around Vieques, particularly when we compare it with the factual situation that existed in the

Feliciano

case.

C.

Allegations that raise non-justiciable “political questions”

Plaintiffs have contended that the training conducted at or around Vieques could be carried out at some other location or that the type of training could be changed or reduced, all without harm to the National defense. Further in line with this position Plaintiffs have steadfastly contended that these are matters that should be considered by the Court in this case. In our view, questions dealing with the level and type of training required to maintain the Navy at an adequate level of efficiency, or the determination of the relative merits of various training sites or similar issues, are purely “po

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