Petition — Weinberger v. Romero-Barcelo

Office-Supreme Court, U.S,

FILED

80-1990

In the Supreme Court of

OCTOBER TERM, 1

CASPAR WEINBERGER, ET AL., PETITIONERS

V.

CARLOS ROMERO-BARCELO, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

‘ FOR THE FIRST CIRCUIT

WADE H. MCCREE, JR.

Solicitor General

ANTHONY C. LIOTTA

Acting Assistant Attorney General

EDWARD J. SHAWAKER

ANNE S. ALMY

Attorneys

Department of Justice

Washington, D.C. 20580

(202) 683-2217

QUESTION PRESENTED

Whether injunctions to require immediate cessation of

discharges in violation of the Clean Water Act are manda-

tory under the standards articulated in TVA v. Hill, 437

U.S. 153 (1978), and not subject to the traditional equitable

diseretion of the district court.

1In addition to the Secretary of Defense, the defendants below in-

cluded the Secretary of the Navy, the Chief of Naval Operations, the

Commander in Chief of the Atlantic Fleet, the Commandant of the Ma-

rine Corps, the Carribbean Commander of the Atlantic Fleet, the

Commandant of the Coast Guard, and “unnamed John Doe Defend-

ants.” In addition to Carlos Romero-Barcelo, the Governor of the Com-

monwealth of Puerto Rico, the original plaintiffs below included the

Mayor, of Vieques, the Commonwealth Environmental Quality Board,

MisiQm Industrial de Puerto Rico, Inc., and individual

fishermen/residents of Vieques: Luis Medina, Jesus Medina, Mario

Antolino Félix, Cristébal Medina, Severino Ventura Cintrén, Héctor

Medina, Cristébal Medina, Jr., Enrique Garcia, Antonio Ayala

Gonzalez, Angel Ventura and Daniel Medina. Plaintiffs-intervenors in-

cluded: Carlos A. Zenén, Mario Félix, Mariano Rivera Guishard, Alicio

Ayala Sota, Francisco Medina Meléndez, Esmeraldo Meléndez and

Santos Rios, fishermen who are residents of Vieques, the ‘Asociacién

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

and “Fundacién Argeuolégica, Antropolégica e Histérica de Puerto

Rico,” a non-profit corporation involved in research and preservation

of historical and prehistorical cultural resources (App. C, infra, 54a).

I

III

TABLE OF CONTENTS

Page

% AM . 1

/ ô»B—O»»»ů!.·.... ⸗⅛„ panveesan 1

õ«;oOÜͤOꝛ 1 Ü 1

I ͤ ͤ / ͤ „„ 2

Reasons for granting the petit ion. 5

. ³˙·1iůĩůů⸗ͤĩ Ae 16

;öÜͤ%ö;ẽ é:U·o n T — ] ]% 1a

e 52a

.o Lee eer errr e e e yy yee 53a

een ee dent 169

. eee ee e ee 17la

TABLE OF AUTHORITIES

Cases:

Consolidation Coal v. Costle, 604 F.2d 239 ... 5, 10

E. I. du Pont de Nemoure & Co. v. Train, 430

AER ˙² A ²² T 12

Hecht Co. v. Bowles, 321 U.S. 32111. 10-11

Milwaukee v, Illinois, No. 79-408 (Apr. 28,

%% „b 5

Monongahela Power Co. v. EPA, 586 F. 2d

SU US aedGRs sc cbbnedecsecesedds %% 9, 10

National Rifle Ass’n v. Kleppe, 425 F. Supp.

e err 13

Realty Income Trust v. Eckerd, 564 F.2d 447 . 10

Republic Steel Corp. v. Costle, 581 F.2d 1228 . 9

Reserve Mining Co. v. EPA, 514 F.2d 492.... 8

State Water Resources Board v. Train, 559

Dr · 8 5, 10

TVA v. Hill, 437 U. S. 1588. 5, 6, 7, 8, 14

United States v. Kennebec Log Driving Co.,

491 F. 2d 562, on remand, 399 F. Supp. 754 . 8

IV

Cases (continued): Page

United States v. Rohm & Haas Co., 500 F.2d

167, cert. denied, 420 U.S. 962............. 8

United States ex rel. Greathouse v. Dern, 289

c sth ddue eae ty 11

Statutes and regulations:

Clean Air Act Amendments of 1977, 42 U. S. C.

oe „„ 2

Coastal Zone Management Act, 16 U.S.C. 1451

Ey;·˙ bbb 2

Endangered Species Act, 16 U.S.C. (& Supp.

% ²˙²˙*˙⸗ 'ae . n 2, 4

Section 2(b), 16 U. S. C. 1531(b) .......... 7

Section 2(c), 16 U.S.C. 1531(c)........... 7

Section 7, 16 U.S.C. 1536 ......... 4, 5, 6, 7,9

Federal Water Pollution Control Act (Clean

Water Act), 33 U.S.C. (& Supp. IIT) 1251 et

rr 2 b e 1, 2, 3, 171a

Section 101(a), 33 U.S.C. 12510) ... 11-12, 171a

Section 301(a), 33 U. S. C. 1311(a) . 11-5, 7, 8, 171a

Section 301(b), 33 U. S. C. (& Supp. III)

% ĩ ( c§˙c˖ ccc 12, 171a

Section 301(b)(1), 33 U. S. C.

r 11-9, 171a

Section 304(b), 33 U.S.C. (Supp. III)

SA ĩ˙ĩ˙¼ è —»⁰v: . 12, 173a

Section 309, 33 U.S.C. 13199. 10, 173a

Section 309(a)(1), 33 U.S.C. (Supp. III)

r See 11, 173a

Section 309(a)(5)(B), 33 U.S.C. (Supp. IIT)

ps 10, 173a-174a

Section 309(b), 33 U.S.C. 1819(b) .... 8, 10, 174a

Section 313(a), 33 U.S.C. (Supp. III)

„.... 7, 8, 14, 15, 174a-175a

Section 401(a), 33 U.S.C. (Supp. III)

re 13, 1754-176

Section 402(a), 33 U. S. C. 1342) 13, 15, 177a

V

Statutes and regulations (continued): Page

Section 502(6), 33 U.S.C. 1362(6)... 4, 177a-178a

Section 502(12), 33 U.S.C. 1362(12)... 4, 178a

Section 502(14), 33 U.S.C. (Supp. III)

TO ere ere 4, 178a

Section 504(a), 33 U.S.C. (Supp. III)

Nias ⸗ ccc „ 8, 178-179 a

Section 505(b)(1)(A), 33 U.S.C.

„ ns 13, 179a

Section 505(b)(1)(B), 33 U.S.C.

/ ¼ A 0 9, 180a

Section 505(c), 32 U. S. C. 13651) (2) . . . 11, 180a

Marine Mammal Protection Act, 16 U.S.C. 1361

——.w Abe 2

Migratory Bird Treaty Act, 16 U.S.C. 703 et

P ͥ aA n b ll 13

National Environmental Policy Act, 42 U. S. C.

r 2, 14

National Historie Preservation Act, 16 U.S.C.

;é²—B³ũ “˙ ü——[ 0e 2

Noise Control Act of 1972, 42 U. S. C. 4901 et

DO ea cS Picks dd 2

Resource Conservation and Recovery Act, 42

Se oss sb wiiee Rkavave enes 2

Rivers and Harbors Appropriation Act of 1899

(Refuse Act), 33 U.S.C. 401 et seq.......... 3

Section 13, 33 U.S.C. 40 8

40 C. F. R.:

e 11

/ ²˙—ö— . ·˙· m 12

Miscellaneous:

A Legislative History of the Water Pollution Con-

trol Act Amendments of 1972, 93d Cong., Ist

%% ²˙ A debe ceresdonesctye 8, 9, 12

VI

Miscellaneous—Continued: Page

Exec. Order No. 11593, 36 Fed. Reg. 8921 (1971) re-

printed in 16 U.S.C. 470 note 2, 3, 4

Exec. Order No. 12088, 43 Fed. Reg. 47707, 47709

%%% A 15

„ 3

Hearings on Federal Water Pollution Control Act

Amendments of 1977 Before the Subcomm. on

Environmental Pollution of the Senate Comm. on

Environment and Public Works, 95th Cong., Ist

, ⅛è⅛ʃorTœ WNC TEG now 4 dud cee Baw Cede ee 10

H.R. Rep. No. 92-911, 92d Cong., 2d Sess. (1972) . 12

H.R. Rep. No. 93-412, 93d Cong., Ist Sess. (1973) . 7

S. Rep. No. 92-414, 92d Cong., Ist Sess. (1971) ... 8

S. Rep. No. 93-307, 93d Cong., Ist Sess. (1973) 7

7 Moore’s Federal Practice 2d ed. 1980) ........... 11

In the Supreme Court of the United States

OCTOBER TERM, 1980

No.

CASPAR WEINBERGER, ET AL., PETITIONERS

Vv.

CARLOS ROMERO-BARCELO, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

The Solicitor General, on behalf of the Secretary of De-

fense and other officials of the Department of Defense, pe-

titions for a writ of certiorari to review the judgment of the

United States Court of Appeals for the First Circuit in this

case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la—5la) is not yet reported. The opinion of the district

court (App. C, infra, 58a-168a) is reported at 478 F. Supp.

646.

JURISDICTION

The judgment of the court of appeals was entered on Jan-

uary 26, 1981 (App. D, infra, 169a-170a). A timely petition

for rehearing was denied on February 27, 1981 (App. B,

infra, 52a). The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATUTE INVOLVED

The pertinent provisions of the Federal Water Pollution

Control Act (Clean Water Act), 33 U.S.C. (& Supp. IID

1251 et seq., are reprinted in App. E, infra, 171a—180a.

1

2

STATEMENT

This case concerns the Navy’s use of part of Vieques Is-

land, Puerto Rico, as a range for air-to-ground, naval gun-

fire support (NGFS) and amphibious weapons training. The

island, located off the southeast coast of Puerto Rico, is ap-

proximately 20 miles long and has an average width of 4

miles. It consists of approximately 33,000 acres, of which

the United States owns more than 25,000 acres. For many

years, the Department of the Navy has used a small portion

of the eastern end of the island for weapons training. The

remaining Navy-held land is used primarily as a buffer

zone. (See App. C, infra, 57a, 6la, 63a, 167a—168a.)

The weapons training facilities located on Vieques are

crucial to the national defense. The installations on and

around the island are the only facilities available to the

naval vessels and crews of the Atlantic Fleet that provide

an opportunity to train under conditions closely resembling

actual combat. All Atlantic Fleet vessels assigned to the

Mediterranean and the Indian Ocean must complete their

training at Vieques to become operational. Cessation of

Navy activity on Vieques would cripple the service’s ability

to perform the tasks assigned to it by the National Security

Council. (See App. C, infra, 163a-165a.)

On March 1, 1978, the Governor of Puerto Rico, Carlos

Romero-Barcelo, and others initiated a suit seeking to en-

join continued use of the island for weapons training. In his

complaint, the Governor charged the Navy with violations

of almost every piece of major environmental legislation

enacted by Congress in the last decade. These included the

National Environmental Policy Act (NEPA), 42 U.S.C. (&

Supp. III) 4321 et seq.; the Clean Water Act, 33 U.S.C. (&

Supp. III) 1251 et seq.; the Clean Air Act Amendments of

1977, 42 U.S.C. (Supp. III) 7401 et seg.; the Noise Control

Act of 1972, 42 U.S.C. 4901 et seq.; the Resource Conser-

vation and Recovery Act, 42 U.S.C. 6901 et seq.; the En-

dangered Species Act, 16 U.S.C. (& Supp. ITI) 1531 et seg.

the National Historic Preservation Act, 16 U.S.C. 470 et

seq. (and Exec. Order No. 11593, 36 Fed. Reg. 8921 (1971)

reprinted in 16 U.S.C. 470 note, which implements that

Act); the Coastal Zone Management Act, 16 U.S.C. 1451 et

3

seq.; and the Marine Mammal Protection Act, 16 U.S.C.

1361 et seq. In addition, the Governor claimed violations of

the Rivers and Harbors Appropriation Act of 1899, 33

U.S.C. 401 et seg., various amendments to the United

States Constitution, and congressional and presidential di-

rectives concerning cessation of Navy operations on the

neighboring island of Culebra (see App. C, infra, 55a—56a).

The district court held an extensive hearing on the

merits of these allegations. On September 17, 1979, the

court filed a comprehensive decision and order (App. C,

infra, 58a—168a). It found the Navy in violation of NEPA

for failure to file an Environmental Impact Statement

(EIS) or a reviewable environmental record to support a

decision not to file such a statement (id. at 155a—159a). It

held the Navy to be in violation of the Clean Water Act, 33

U.S.C. (& Supp. III) 1251 et seq., for occasionally and inad-

vertently discharging ordnance into coastal waters without

a National Pollutant Discharge Elimination System

(NPDES) permit (App. C, infra, 79a-81a). It also found

the Navy had failed to comply fully with Exec. Order No.

11593, supra, as it had not nominated historic sites to the

National Register (App. C, infra, 134a-138a). It ordered

the Navy to file for an NPDES permit, to nominate historic

sites to the National Register and to comply with the provi-

sions of NEPA (id. at 165a).? All other claims, including re-

quests for injunctive relief, were dismissed (ibid.).

On appeal, the court of appeals affirmed the district court

on most issues.* The court, however, disagreed with the

2The Navy prepared an environmental impact statement; in January

1981, the Secretary of the Navy reviewed the statement and made a

formal decision to continue using the weapons training facilities located

on Vieques. 46 Fed. Reg. 12773 (1981). The Navy also submitted 34

historic sites to the Keeper of the National Register and requested his

opinion on their eligibility to be placed on the Register.

Also, on December 28, 1979, the Department of the Navy filed an ap-

plication for an NPDES permit with the Environmental Protection

Agency.

In addition to the Clean Water Act issue presented in this petition,

the court of appeals remanded issues under the Endangered Species

Act and the National Historic Preservation Act to the district court for

4

district court on the proper standards for fashioning equita-

ble or injunctive relief to remedy violations of the Clean

Water Act (App. A, infra, 48a-49a). The district court had

held that the Navy was in violation of the Act because it did

not have an NPDES permit covering the occasional deposit

of ordnance into the coastal waters around Vieques.* These

deposits occur in connection with NGFS and air-to-ground

further consideration (App. A, infra, 51a). The district court had

found that the Navy’s use of Vieques did not violate Section 7 of the

Endangered Species Act (ESA), 16 U.S.C. 1536 (App. C, infra,

126a-131a). The Navy had not obtained a biological opinion from the

Fish and Wildlife Service at the time of trial. (The regulations creating

the biological opinion process were promulgated on January 4, 1978 43

Fed. Reg. 870 (1978), less than two months before the complaint was

filed in this case; during the district court hearing, the ESA was

amended on November 10, 1978, 16 U.S.C. (Supp. II) 1531 et seq., to

incorporate features of those regulations.) Subsequent to trial, the

Fish and Wildlife Service issued an opinion agreeing with the district

court. The court of appeals remanded to permit judicial review of the

biological opinion and to consider other related issues (App. A, infra,

38a—42a).

The district court had also ruled that a cultural resources survey of

Vieques satisfied the Navy’s obligation to “locate” historic sites under

Exec. Order No. 11593, supra. The court of appeals vacated that de-

termination, and remanded to the district court to consider what addi-

tional survey effort should be required (App. A, infra, 42a-47a). The

petitioners do not consider that either of these rulings present any

issue ripe for review by this Court.

The Clean Water Act defines pollutant to include “munitions” See-

tion 502(6), 33 U.S.C. 13626). A “point source” means “any discerni-

ble, confined and discrete conveyance, including but not limited to any

* * * vessel * from which pollutants are or may be discharged”

Section 502(14), 33 U.S.C. (Supp. III) 1362(14). Under these defini-

tions, shells and bombs released from naval ships and aircraft can be

deemed pollutants discharged from point sources. The firing of ord-

nance into waters outside the territorial sea (three miles), however, is

not subject to the Clean Water Act. See Section 502(12), 33 U.S.C.

1362(12).

Because the literal language of the definitions of the Clean Water

Act covers inadvertant release of shells and bombs into the coastal

waters off Vieques, and the Environmental Protection Agency was

willing to develop an appropriate NPDES permit, the petitioners did

not appeal the district court ruling that the Clean Water Act was vio-

lated. Before this suit was filed, however, the Navy had not antic-

5

training when the land-based targets are missed, and the

ordnance hits the water. The district court found that this

violation of the Clean Water Act was technical, and there

was no evidence that Navy activity had any significant ad-

verse environmental effect on the waters (App. C, infra,

80a, 162a). Accordingly, the district court ordered the

Navy to obtain a permit but declined to enjoin the Navy ac-

tivity on Vieques pending issuance of a permit (App. C,

infra, 162a, 165a).

The court of appeals, however, ruled that the district

court had no discretion to refrain from issuing an injunction

against activity that violates the Clean Water Act (App. A,

infra, 48a-49a). It deemed the prohibition against

unlicensed discharges of pollutants in Section 301(a), 33

U.S.C. 1311(a), to be a “congressional ordering of priori-

ties” (App. A, infra, 48a) similar to Section 7 of the Endan-

gered Species Act considered in TVA v. Hill, 437 U.S. 153,

194 (1978). Accordingly, it vacated the remedy devised by

the district court and remanded with directions to enter an

appropriate injunction (App. A, infra, 49a).

REASONS FOR GRANTING THE PETITION

The decision of the court of appeals conflicts in principle

with decisions of the Fourth Circuit, which reaffirm the

power of the courts to withhold injunctive relief to remedy

violations of the Clean Water Act when such relief would be

inequitable. State Water Control Board v. Train, 559 F. 2d

921 (1977); Consolidation Coal Co. v. Costle, 604 F.2d 239

(1979).5 Unless reversed, the decision below will result in a

significant adverse impact on military preparedness; more-

over, the precedent established will unnecessarily disrupt a

wide variety of federal and private activities in the First

ipated that an NPDES permit might be required for such activities,

partly because the EPA has not issued effluent guidelines or permits

for similar activities. Seg note 10, infra, page 13.

5 Moreover, this Court recently characterized a state enforcement

action that did not seek the immediate cessation of discharges in viola-

tion of the Act as an action “contemplated by the Act.” Milwaukee v.

Illinois, No. 79-408 (Apr. 28, 1981), slip op. 16.

6

Circuit,* and in any other circuits that follow the decision

below. These serious adverse effects are the result of a mis-

application of this Court’s decision in TVA v. Hill, 437

U.S. 153 (1978) and a serious misconception of the function

of the statutory provision for presidential exemptions from

the requirements of the Clean Water Act.

1. In TVA v. Hill, supra, 437 U.S. at 194, this Court

ruled that the federal courts lacked discretion to deny

injunctive relief against a federal action that would violate

Section 7 of the Endangered Species Act, 16 U.S.C. 1536.

Section 7 requires federal agencies to “insure that actions

authorized, funded, or carried out by them do not jeopard-

ize the continued existence of [any] endangered species

* * * or result in the destruction or modification of habitat

of such species which is determined * * * to be critical.”

The challenged federal action was closing the gates to the

Tellico Dam; it was conceded that this action would result

in the elimination of the known population of snail

darters—an endangered species—and destruction of the

species’ critical habitat (437 U.S. at 161-163).

In discussing the discretion of the lower federal courts to

deny relief, this Court acknowledged that, as a general

rule, courts are “not mechanically obligated to grant an in-

junction for every violation of law” (437 U.S. at 193). But

this Court determined that, in the ESA, Congress “has de-

cided the order of priorities” and has made it “abundantly

clear that the balance has been struck in favor of affording

endangered species the highest of priorities” (id. at 194).

Accordingly, the Court ruled that a federal court was pow-

erless to strike a different balance between competing in-

terests. The source of the congressional ordering of priori-

ties was found in Section 7 of the Endangered Species Act,

which contains a clear congressional ordering of priorities

between two distinct interests: federal actions and the con-

tinued existence of endangered species.

Since the court’s decision did not turn on the particular language of

the Clean Water Act (App. A, infra, 48a-Aga), the same rationale may

require the injunction of technical violations of other environmental

statutes.

7

The federal action at issue in TVA v. Hill, supra, moreo-

ver, would have directly and irrevocably harmed interests

protected by the ESA. The purposes of the ESA include “to

provide a means whereby the ecosystems upon which en-

dangered species and threatened species depend may be

conserved” and “to provide a program for the conservation

of such endangered species * * *” (Section 2(b), 16 U.S.C.

1531(b)). Another purpose was to direct federal agencies to

use their authorities to protect endangered species (Section

2(c), 16 U.S.C. 1531(c)). See H.R. Rep. No. 93-412, 93d

Cong., ist Sess. 10 (1973); S. Rep. No. 93-307, 93d Cong.,

Ist Sess. 6 (1973). Closing the gates of the Tellico Dam, and

destruction of the snail darter, would have been directly

and fundamentally in conflict with the purposes of the Act.

In sum, the result in TVA v. Hill, supra, was dictated

by two factors. First, Congress had already considered,

and specifically provided for, a conflict between the needs

of endangered species and other interests of the federal

government. It had struck the balance in favor of the listed

species and the courts were powerless to reconsider that

decision. Second, the violation of Section 7 was substantial.

The TVA action would not only have failed to comply with

the terms of Section 7, but also would have destroyed an

endangered species and its critical habitat. Thus, to imple-

ment the purposes and policies of the ESA, an injunction

restraining the TVA action had to be issued. The court of

appeals’ broad application of the analysis of TVA v. Hill,

supra, to violations of the Clean Water Act is unsupported

by either of these two factors.

a. There is no congressional “ordering of priorities”

here. The Clean Water Act does not contain any explicit

congressional statement, similar to Section 7 of the ESA,

subordinating other federal interests to the preservation of

water purity. In contrast to the flat ban on the destruction

of critical habitats in Section 7, the Clean Water Act is de-

signed to control discharges of pollutants by subjecting

them to a licensing program (Section 301(a) of the Act, 33

U.S.C. 1311(a)). And Section 313(a), 33 U.S.C. (Supp. III)

1323(a), imposes a duty on federal agencies to comply with

water pollution abatement requirements “in the same man-

ner, and to the same extent as any non-governmental entity

.“ Neither Section 301(a) nor Section 3180) imposes

any duty on federal agencies or restrictions on federal ac-

tions that do not apply equally to all other dischargers of

pollutants, Thus, unless the restrictions of Section 301(a)

are deemed to override every competing interest held by

anyone in the Nation, the Clean Water Act does not contain

an “ordering of priorities” which the Courts are powerless

to alter,

The Act cannot reasonably be read as imposing such

overriding restrictions. While Congress expected the Clean

Water Act to be vigorously enforced, there is nothing in

the Act or its history to suggest that Congress intended to

limit the traditional role of the courts in the enforcement

process, Cf. TVA v. Hill, supra, 487 U.S, at 198-194,"

There is instead strong evidence the Congress contem-

plated that the federal courts would exercise their usual eq-

uitable discretion in fashioning “appropriate relief,

including a permanent or temporary injunction” against vi-

olations of the Act (Section 309(b) of the Act, 33 U.S.C,

1319(b).®

The legislative history shows that in developing the enforcement

acheme of the Act, Congress intentionally drew on the enforcement

mechaniams developed under Section 18 of the Rivers and Harbors Ap-

propriation Act of 1899 (the Refuse Act), 33 U.S.C, 407, See 8, Rep.

No, 92-414, 92d Cong., lat Seas, 63 (1971), reprinted in A Legislative

History of the Water Pollution Control Act Amendments of 1972, 98d

Cong., lat Seas, 1481 (1978) (“Legislative History”), See also Legisla-

tive History 1306, Under that Act, injunctions requiring immediate

cessation of discharges in violation of the Act were not automatic, In-

stead, courts carefully fashioned appropriate relief to vindicate the

purposes of the statute with due regard to the surrounding facts and

circumstances, See, ¢.g., Reserve Mining Co, v. EPA, 614 F.2d 492,

635-587 (8th Cir, 1975); United States v. Rohm & Haas Co,, 500 © Dd

167, 196 (6th Cir, 1974), cert, denied, 420 U.S, 962 (1975); United

States v. Kennebec Log Driving Co., 491 F.2d 562, 571 (let ir, 1978),

on remand, 399 F. Supp. 754, 759 (D. Me. 1975).

*Congress did specify certain circumstances when discharges of

pollutants were to be immediately enjoined. In Section 504(a), 33

U.S.C, (Supp, II] 1364(a), it authorized the Adininistrator of the En-

vironmental Protection Agency to bring suit “to immediately restrain”

9

The entire structure of the Clean Water Act confirms the

need for flexibility in developing “appropriate” enforcement

mechanisms, and the history of the development of the cur-

rent version of the Act confirms congressional recognition

of that need, The Act sets out a complicated and phased

system of pollution abatement punctuated with statutory

deadlines, When the statute was first enacted in 1972, Con-

gress was aware that the deadlines might prove to be

unattainable, See Legislative History 174-175, In fact, the

original deadlines, requiring the best practicable control

technology and secondary treatment by 1977 (Section

801(b)(1), 33 U.S.C, 1811(b)(1)), were not met by approxi-

mately 20% of major industrial dischargers and 60% of

major municipal dischargers in the nation, Environmental

Quality—1979 at 118-114, As the 1977 deadline ap-

proached, the EPA realized that many dischargers would

not be able to comply with the requirements of the Act

through no fault of their own, EPA, however, was not au-

thorized to issue NPDES permits that delayed compliance

beyond July 1, 1977, See Republic Steel Corp, v. Costle,

581 F. 2d 1228, 1232 (6th Cir, 1978), The Agency developed

a program of extending the compliance period through

prosecutorial restraint, It issued an Extended Compliance

Schedule Letter (ECSL) to deserving dischargers, pledging

not to bring an enforcement action as long as the discharger

complied with the extended schedule of progress, See

Monongahela Power Co, v. EPA, 586 F.2d 318, 320 (4th

Cir, 1978).

When Congress considered the 1977 Amendments to the

Act, administration spokesmen recommended against a

broad extension of the date of compliance, They argued

that prosecutorial discretion in federal enforcement would

discharges of pollutants that he finds to be causing or contributing to

“an imminent and substantial endangerment to the health of persons or

to the welfare of persons * .“ This provision is the only section of

the Clean Water Act that approaches the congressional ordering of pri-

orities this Court found in Section 7 of the Endangered Species Act, It

also is strong evidence that Congress did not expect that a rule of au-

tomatic, immediate restraint would be applied to other violations of

the Act,

10

protect a discharger unable to comply despite reasonable

efforts, They also suggested that courts deciding citizens

suits to enforce the Act (see 83 U.S.C, 1865(b)(1)(B)) would

not take “drastic action” against such a polluter if the fed-

eral and state authorities had decided that enforcement was

not appropriate, Hearings on Federal Water Pollution

Control Act Amendments of 1977 Before the Subcomm., on

Bnvironmental Pollution of the Sen te Comm, on Envi-

ronment and Public Works, 95th Cong., Ist Seas, (Pt. 9)

649 (1977), See State Water Control Board v. Train,

supra, 659 F.2d at 927; Consolidation Coal Co, v. Costle,

supra, 604 F.2d at 246, Based on these representations,

Congress codified the ECSL program by amending 33

U.S.C, 1819, which governs enforcement and remedies for

violations of the Act, to authorize the EPA to grant exten-

sions to April 1, 1979 (Section 809(A)(5)(B), 38 U.S.C,

(Supp. III) 1819(a)(5)(B)). See Monongahela Power Co, v.

EPA, supra, 586 F.2d at 820-821,

This legislative history demonstrates that neither EPA

nor the Congress believed that the Clean Water Act re-

quires the issuance of an injunction to terminate every

technical violation of its requirements, If distriet courts

lacked discretion to refuse to require immediate cessation

of discharges in violation of the Act, prosecutorial restraint

by the government would be of little value, Citizens, either

by filing a suit or intervening in an ongoing federal action,

could overturn the government's discretionary decision

simply by demanding that the court issue an immediate ces-

sation order, If Congress had so interpreted the Act, it

would have been forced to take emergency action in 1977 to

prevent the possibility of wholesale shutdowns of major in-

dustries and municipal wastewater treatment works,

b. An injunction forbidding unlicensed discharges into

the coastal waters is not necessary to vindicate the policies

of the Clean Water Act.

Equitable relief of some sort is presumptively appropri-

ate to remedy violations of the Clean Water Act, The con-

tent of the equitable decree, however, is not necessarily im-

mediate cessation of discharges violating the Act, Instead,

courts must fashion “appropriate” relief (83 U.S.C.

11

1319(b)): relief that adequately vindicates the purposes and

policies of the Clean Water Act with due regard to equita-

ble principles. See Realty Income Trust v. Eckerd, 564

F.2d 447, 456-457 (D.C. Cir. 1977); see generally Hecht

Co. v. Bowles, 321 U.S. 321, 329-330 (1944); United States

ex rel. Greathouse v. Dern, 289 U.S. 352, 360-361 (1933); 7

Moore’s Federal Practice J 65. 1813] at 65-133 to 65-140.1

(2d ed. 1980).

If the EPA is a party to the civil action, either as the

plaintiff in a federal enforcement action or as an intervenor

in a citizens suit (see 33 U.S.C. 1365(c)(2)), the court will

have the recommendation of the Administrator as to the ap-

propriate form of equitable relief.“ Ordinarily, we would

expect a district court to defer to the EPA’s judgment of an

appropriate remedial order absent a finding that the EPA’s

request is arbitrary or capricious or ignores relevant fac-

tors. In cases such as this, where the EPA is not a party to

an action and has not otherwise addressed the question of

an appropriate remedy (through, for example, a compliance

order (33 U.S.C. (Supp. III) 1319(a)(1)), a district court

must fashion a remedy independently. The touchstone of

any order must be to attempt to bring the discharger into

compliance with the Act. But the surrounding facts and cir-

cumstances should be evaluated to create an equitable rem-

edy that both vindicates the purposes and policies of the

Clean Water Act and applies general equitable principles.

The remedy ordered by the district court satisfies these

standards. Although the court directed the Navy to apply

for a NPDES permit, it declined to enjoin the Navy activity

which results in discharges pending issuance of the permit.

This order vindicates the purposes of the Clean Water Act

„In developing a remedial program, the Administrator considers

such factors as the practicality of a time schedule for compliance, good

faith of the discharger, national uniformity of treatment for classes and

categories of dischargers and competing interests in health, safety and

welfare. And, while lack of environmental damage is not a defense to

violation of the Clean Water Act, the likelihood of irreparable degrada-

tion of water quality would suggest rigorous remedial action. Cf., 40

C. F. R. 123. ge).

12

by bringing the Navy into compliance with the Act, and re-

flects a proper balance of the equitable factors involved.

The overall purpose of the Clean Water Act is to “restore

and maintain the chemical, physical and biological integrity

of the Nation’s waters” (Section 101(a), 33 U.S.C. 1251(a)).

The word integrity “refers to a condition in which the natu-

ral structure and function of ecosystems is maintained”

(H.R. Rep. No. 92-911, 92d Cong., 2d Sess. 76 (1972), re-

printed in Legislative History 763. An ecosystem whose

structure and function is natural was defined as “one whose

systems are capable of preserving themselves at levels be-

lieved to have existed before irreversible perturbations

caused by man’s activities” (H.R. Rep. No. 92-911, supra,

at 77, reprinted in Legislative History 764. The district

court found that “the activities of defendant Navy are not

causing any appreciable harm to the Vieques ecology”

(App. C, infra, 162a). The evidence presented at trial es-

tablished that the Navy’s activity on Vieques—including

the occasional, inadvertant release of ordnance into the

coastal waters—does not adversely modify the ability of

the waters to sustain animal or plant life through turbidity,

sedimentation or changes in chemical composition (App. C,

infra, 80a, 115a—126a). The coral reef and seagrass sys-

tems in waters surrounding the island were found to be

healthy, functioning components of the marine environ-

ment. Therefore, an injunction was not necessary to pro-

tect the aquatic environment.

There was, moreover, no evidence that the Navy activity

violated any standards and limitations of the Clean Water

Act other than the permit requirement. The district court

found, and the court of appeals affirmed, that the Navy ac-

tivity complied with Puerto Rico water quality standards

(App. A, infra, 18a-22a; App. C, infra, 8la-86a). The

EPA has not issued effluent limitations for occasional de-

posits of ordnance pursuant to Sections 301(b) and 304(b) of

the Act, 33 U.S.C. (& Supp. III) 1311(b) and 1314(b). See

E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112,

130-133 (1977). In fact, no effluent limitations have been

promulgated for activities resembling depositing ordnance

unintentionally in coastal waters. See 40 C. F. R. Part 400 et

13

seq. In these circumstances, an injunction restraining the

Navy activity would prohibit what the agency adminis-

tering the Clean Water Act ultimately may find acceptable

in issuing an NPDES permit.

In addition, the Navy has acted in good faith to comply

with the requirements of the law. It had not been con-

tended by anyone, prior to this suit, that the incidental re-

lease of ordnance into the coastal waters is subject to the

permit requirements of the Clean Water Act. The EPA

made several inspection visits to Vieques to ascertain the

Navy’s compliance with various environmental laws. The

Puerto Rico Environmental Quality Board communicated

with the EPA concerning the Navy’s compliance with the

Act, but did not suggest that a NPDES permit was re-

quired for the release of ordnance. In fact, the first inkling

the Navy received that anyone thought that a NPDES per-

mit was required was the complaint which was filed in this

suit without satisfying the sixty-day notice requirement of

Section 505(b)(1)(A), 33 U.S.C. 13650b)(1) (A). 1% After the

district court decision, the Navy expeditiously filed an ap-

plication for a NPDES permit with the EPA. The delay in

issuing the permit has rested with the EPA, which has to

devise ad hoc conditions for the permit pursuant to Section

402(a), 33 U.S.C. 1342(a); that delay may continue due to

Puerto Rico’s reluctance to certify compliance with local

water quality standards. See Section 401, 33 U.S.C. (Supp.

IIT) 1341(a).

Finally, there are significant and exceptionally strong eq-

uitable considerations arguing against the imposition of an

injunction in this case. The district court properly declined

to enter injunctive relief that would have a profound ad-

10 In a somewhat similar situation, problems associated with the de-

posit of shot into the water by duck hunters who miss their targets

have been regulated by the Secretary of the Interior under the Migra-

tory Bird Treaty Act, 16 U.S.C. 703 et seq. See National Rifle Ass’n

v. Kleppe, 425 F. Supp. 1101 (D.D.C. 1976), aff'd, 571 F.2d 674 (D.C.

Cir. 1978). The EPA aided the Department of the Interior in devel-

oping these regulations; there was no suggestion that duck hunters

need an NPDES permit to comply with the Clean Water Act.

14

verse impact on the ability of the Atlantic Fleet to satisfy

its national security obligations. The Navy weapons train-

ing facilities in and around Vieques are unique in the Atlan-

tic. They provide the Atlantic Fleet with the opportunity to

train under conditions resembling actual combat. The quali-

ty of training experience offered by the Vieques facilities

cannot be duplicated by use of other Navy target ranges. In

addition, every vessel from the Atlantic Fleet assigned to

active duty in the Mediterranean or the Indian Ocean must

qualify its guns on the Vieques NGFS range. (See App. C,

infra, 164a—165a.)

In light of these considerations, the court of appeals’ jus-

tification of an injunction on the grounds that the permit

process might turn up evidence of more extensive environ-

mental harm is chimerical. It is the primary purpose of the

NEPA to develop and disclose information on the environ-

mental impacts of federal activities. An EIS has been pre-

pared, see note 2, supra, and it discloses no significant ad-

verse effects on the coastal waters from the challenged

deposits of ordnance. There is no reason to expect a differ-

ent result in the permit process.

In sum, the court of appeals’ opinion reflects a clear mis-

understanding not only of TVA v. Hill, supra, but also of

the purposes, policies and procedures of the Clean Water

Act.

2. Contrary to the court of appeals’ somewhat cavalier

assumption (App. A, infra, 49a), the possibility of a presi-

dential exemption pursuant to Section 313(a), 33 U.S.C.

(Supp. III) 1323(a), does not adequately protect the various

federal interests involved. Section 313(a) aut vizes the

President to “exempt any effluent source of a..y depart-

ment * * * in the executive branch from compliance with

any * * * requirement if he determines it to be in the para-

mount interest of the United States to do so * * *.”1! This

11The exemption may not exceed a year, but may be renewed if a

new presidential determination is made. Annual reports to Congress

are required. In addition, the President may “issue regulations ex-

empting from compliance with the requirements of this section any

weaponry, equipment, aircraft, vessels, * * * or other classes or cate-

15

provision is evidently intended to provide for relief only in

extraordinary circumstances, when the requirements of the

Act are inconsistent with essential federal activities. 12 Ac-

cordingly, Exec. Order No. 12088, 43 Fed. Reg. 47707,

47709 (1978), provides that the EPA Administrator and the

Director of the Office of Management and Budget will me-

diate exemption requests submitted by agency heads. Ex-

emptions are granted by the President only if the conflict

between pollution control standards and crucial federal ac-

tivities cannot be resolved through the development of a

practicable remedial program.

The court of appeals’ decision seriously undermines this

policy of accommodation. If violations of the Clean Water

Act—and of other similar environmental statutes (see note

6, supra)—result in automatic immediate cessation orders,

federal agencies will be strongly motivated to apply for

presidential exemptions at the first indication that their

critical facilities or activities may be in violation of applica-

ble statutes or regulations. To wait until efforts at accom-

modation are completed would hazard an abrupt disruption

of federal programs that may be vital to the health, safety

and welfare of the American people.

gories of property * * * which are owned or operated by the Armed

Forces of the United States * * * and which are uniquely military in

nature” (Section 313a, 33 U.S.C. (Supp. III) 1323(a)). The President

must reconsider the need for any such regulations at three year inter-

vals; none have been issued to date (ibid.).

12For example, the Act expressly provides “{njo such exemptions

shall be granted due to lack of appropriation unless the President shall

have specifically requested such appropriation * * * and the Congress

shall have failed to make available such requested appropriation” (33

U.S.C. (Supp. IIT) 1323(a)).

1 The federal agency is required to certify in the exemption request

that it cannot meet the applicable pollution control standards. Because

the EPA has not yet developed general effluent limitations to apply to

the occasional deposit of ordnance into coastal waters, and military

needs preclude awaiting the development of particularized limitations

pursuant to Section 402 (33 U.S.C. 1342), the non-existence of any ap-

plicable standards would probably satisfy that requirement in this

case.

16

Finally, the reliance of the court below on the possibility

of an exemption shifts the burden of devising an equitable

and practical remedial program from the courts to the Of-

fice of the President. Exemptions, of course, may be uncon-

ditional; such exemptions may, however, unnecessarily

delay federal agency compliance with the requirements of

the Clean Water Act. If, for that reason, the Office of the

President conditions an exemption on compliance with re-

medial action, it will in effect be formulating an equitable

decree to satisfy the purposes and policies of the Clean

Water Act. It is the role of the courts to fashion appropri-

ate equitable relief for violations of federal law. The federal

courts should not abdicate that responsibility and shift it to

the Office of the President in the absence of a clear con-

gressional direction to do so.

CONCLUSION

The petition for a writ of certiorari should be granted.

The Court may wish to consider summary reversal.

Respectfully submitted.

WADE H. MCCREE

Solicitor General

ANTHONY C. LIOTTA

Acting Assistant Attorney General

EDWARD J. SHAWAKER.

ANNE S. ALMY

Attorneys

MAV 1981

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 79-1626

CARLOS ROMERO-BARCELO, ETC., ET AL.,

PLAINTIFFS-APPELLANTS,

V.

HAROLD BROWN, ET AL.,

DEFENDANTS-APPELLEES.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[HoN. JUAN R. TORRUELLA, U.S. District Judge]

(478 F. Supp. 646)

Before CoFFIN, Chief Judge,

CAMPBELL AND BOWNES, Circuit Judges.

January 26, 1981

BOWNES, Circuit Judge. The Commonwealth of Puerto

Rico appeals from the district court’s denial of its request

for a comprehensive injunction against the United States

Navy’s military training operations on the Island of

Vieques, a municipality of the Commonwealth. Armed with

a battery of federal and state laws, Puerto Rico! alleged

1 Appellants—Governor Carlos Romero-Barcelo on behalf of the

Commonwealth of Puerto Rico; Radames Tirado Guevara, Mayor of

Vieques; and the Board on Environmental Quality—are hereinafter

collectively referred to either as Puerto Rico or the Commonwealth.

la

2a

that the Navy’s? activities in and around Vieques cause ir-

reparable injury to the island’s ecology and its inhabitants.

More specifically, Puerto Rico claims that the Navy’s oper-

ations pollute the island’s air and its coastal waters, threat-

en the habitats of endangered species and many of the is-

land’s irreplaceable historical sites, and diminish the

productivity of the island’s fishing and agricultural re-

sources. The Commonwealth also claimed that the Navy

transferred certain training activities from the island of

Culebra to Vieques, contrary to congressional and execu-

tive directives. After an extensive trial, the district court

ordered the Navy to obtain a NPDES permit, prepare an

environmental impact statement and obtain a determina-

tion on the eligibility of certain historical and prehistoric

sites on the island for inclusion in the National Register of

Historie Places. The court otherwise ruled in the Navy's

favor and refused to enjoin the training operations. Barcelo

v. Brown, 478 F. Supp. 646 (D.P.R. 1979). Before turning

to the issues raised by Puerto Rico on appeal, we briefly

sketch some ‘basic characteristics of the island and the

Navy’s activities.

VIEQUES

The island of Vieques lies six miles off the southeastern

coast of Puerto Rico and approximately nine miles directly

south of the island of Culebra. Situated on an east-west

axis, Vieques is nearly twenty miles long with an average

width of four miles. Of total area of approximately 33,000

acres, the Navy owns 25,231.72 acres, or slightly more than

76% of the island.

Certain features of the island’s ecology deserve particu-

lar mention. Fringe and offshore coral reefs are found in

the coastal waters of Vieques, primarily off the northern,

2Appellees—Harold Brown, Secretary of Defense; W. Graham

Claytor, Jr., 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—are herein-

after collectively referred to as the Navy.

ga

eastern and southern shores. Seagrass flourishes along the

ocean floor adjacent to the coasts: the largest concentration

runs from Punta Caballo on the north coast eastward

around Punta Arenas to the southwest coast. There are

also several large mangrove stands located along the

shores: in the west near Punta Arenas and in the south

around Puerto Mosquito, Puerto Ferro and Ensenada

Honda. Three of the seven bioluminescent bays known to

exist in the world are located along the southern

coast—Puerto Mosquito, Puerto Ferro, and Bahia Tapon.

Of the animal species living on Vieques, six are desig-

nated by the U.S. Fish and Wildlife Service as either “en-

dangered” of “threatened.” 50 C. F. R. § 17.11. The “endan-

gered” are the manatees, the brown pelicans, the

leatherback turtles and the hawksbill turtles. Considered

“threatened” are the green turtles and the loggerhead tur-

tles. At least some of the nesting sites favored by the peli-

cans and the turtles are located within the areas where the

Navy conducts its training operations.

The human history of the island dates back at least to the

ninth century A. D. At that time, Vieques served as a

transit stop in the migration of Arawak Indians from the

Orinoco Basin in South America (Venezuela) to Puerto Rico

and Hispaniola (Haiti and the Dominican Republic). At the

time of Columbus’ “discovery” of Vieques in 1493, the is-

land was used by the Carib Indians as a temporary base

from which they carried out raids against the people of

Puerto Rico. Spain’s movement into the Caribbean during

the sixteenth century resulted in the first permanent habi-

tation of Vieques by Indians who sought to escape the

Spanish occupation of Puerto Rico and St. Croix. Although

Spain apparently never attempted to colonize Vieques, it

periodically sent military expeditions to the island through-

out the seventeenth and eighteenth centuries to maintain

its hegemony over the island.

The early years of the nineteenth century mark the be-

ginning of Vieques’ modern history. In 1816 colonists from

*Inconclusive archeological evidence suggests the presence of a

preceramic Indian culture as early as the second century A. D.

4a

St. Croix and St. Thomas established the first livestock

ranches, thus beginning what is today the island’s primary

agricultural activity. Soon thereafter, one of the colonists

organized the construction of a fort at Isabel Segunda. In

addition to ranching, the economy of Vieques at this time

involved timber harvesting for export to the Virgin Is-

lands, subsistence farming and fishing. By the second half

of the century, sugar cane had become the leading cash

crop.

After the Spanish American War of 1898, Vieques, to-

gether with the rest of Puerto Rico, became a Territory of

the United States. The island’s economy continued to be

dominated through the early 1940’s by sugar cane cultiva-

tion, ranching, and fishing. Since the mid 1940's, however,

the sugar cane industry has declined to a point where it is

of no current importance to the island. Thus, the islanders

now derive their livelihood from the same sources relied

upon by their ancestors more than one hundred fifty years

ago—fishing, subsistence farming and ranching.

During the early 1940’s the Navy acquired title to most of

its present holdings on Vieques. As a result of these acqui-

sitions, civilians now occupy an area of about 7,000 acres,

bounded on both the east and the west by Navy property.“

The present population distribution reflects the island’s

economy. Of a total population of approximately 8,000,

close to 5,000 people live in a rural environment outside the

two coastal towns. Located on the northern coast of the ci-

vilian sector is the capital, Isabel Segunda, which has be-

tween 2,400 and 2,500 inhabitants. Esperanza, the island’s

other town, located on the southern coast, has a population

of approximately 600.

NAVY OPERATIONS ON VIEQUES

The Naval Ammunition Facility (NAF) encompasses the

entire area of Vieques west of the civilian zone. The Navy

At the time of trial, the Navy also owned a small parcel within the

civilian sector, It has since been conveyed to the Commonwealth of

Puerto Rico.

5a

uses the facility for deep storage of conventional ammuni-

tion. Ships delivering the ordnance® dock at Mosquito Pier,

located on the northern coast of the NAF. From there, it is

transported by truck to bunkers distributed throughout the

NAF. Most of the ammunition is destined for off-island use

by the Navy, the Marines and the Puerto Rican National

Guard. Occasionally, ammunition is transferred overland

from the NAF to the ground maneuver area located east of

the civilian zone.

The Navy’s installations on the eastern half of Vieques

are part of a large military complex known as the Atlantic

Fleet Weapons Training Facility, headquartered at

Roosevelt Roads Naval Station in Ceiba, Puerto Rico. The

facility consists of four firing ranges of which only two are

related to Vieques. The outer range, a large area of ocean,

at its closest points to Vieques lies thirty-five miles to the

north and twenty miles to the south. Within this range, the

Navy conducts exercises in ship to ship weapons fire, ship

to air missile fire and air to air weapons fire. The under-

water range, located off the western shore of St. Croix, in-

volves training in three dimensional tracking of surface and

underwater objects. The electronic warfare range is a net-

work of “threat platform” simulators located in Puerto Rico

and nearby islands. These are used to train shipboard and

airborne electronic warfare teams and provide tactical elec-

tronic order of battle support for operations conducted on

the other ranges. One simulator is positioned at the west-

ern end of Vieques atop Monte Pirata. Until recently, the

inner range consisted of air to ground bomb and missile tar-

gets and naval gunfire support targets on Culebra, and air

to ground, artillery and naval gunfire support targets on

Vieques. In 1975, however, the Navy ceased its Culebra

operations. Thus, the Vieques installations now comprise

the entire inner range.

‘Both the parties and the district court refer to “ammunition” and

“ordnance” interchangeably. Although we accept this usage for pur-

poses of this case, it is our understanding that “ordnance” includes

weapons as well as ammunition.

6a

The inner range is divided into four distinct areas, The

ground maneuver area (GMA) extends from the civilian sec-

tor eastward for approximately seven miles to a cattle

fence which runs the width of the island. Located at the

southwestern corner of the GMA is Camp Garcia, a Marine

Corps camp which, although able to accommodate several

thousand troops, is occupied by one marine. The principal

use of the GMA is for Marine amphibious landings. These

are conducted throughout the year, primarily on the south-

ern beaches between Punta Conejo and Punta Negra. A

typical landing will require the use of large attack trans-

ports from which are launched the lending craft and am-

phibious tracked vehicles, These smaller craft carry troops,

tanks and other equipment to the beaches, Once landed, the

troops perform maneuvers throughout the GMA, which at

times include artillery fire. Upon completion of the land ex-

ercise the troops embark from the beaches and return to

the attack transports. An amphibious landing usually is

accompanied by low-level support flights by fixed wing jet

aircraft and helicopter gunships. An amphibious exercise

may involve anywhere from two to twenty thousand troops;

it may be independent of other inner range operations, or it

may be part of a single large-scale maneuver in concert

with the Navy’s sea and air forces.

The surface impact area (SIA) begins about one mile east

of the cattle fence and extends approximately two and one-

half miles east to a “firebreak” designated as the western

friendly front line. Artillery training, strafing and air to

ground bombing, the latter two using inert ammunition

only, occur within this area, The artillery is positioned near

the western border of the SIA—about six miles from the

nearest point in the civilian zone—loaded with live ammu-

nition and fired at targets located in the eastern part of the

SIA. Air to ground bombing is directed at two bullseye tar-

gets. Target #2 is situated about one-half mile east of the

SIA’s western boundary; target #1 is on a point along the

northern half of the western friendly front line, The

strafing targets are located at the southern most point of

the firebreak.

Ta

The Air Impact Area (AIA), also known as the Close Air

Support Zone (CAS), runs from the western friendly front

line eastward for about two miles to the eastern friendly

front line. This area, in which live ammunition is used, con-

tains as targets mockups of two surface to air missile sites,

an airstrip, a fuel farm and an ammunition dump. There are

also two remote controlled moving targets inland and six

naval gunfire support targets along the southern coast of

the AIA. No targets exist in the area between the eastern

friendly front line and Punta Este, the easternmost point of

Vieques. An infrequently used water target lies about one

mile east of this point.

Air and sea operations in the inner range occur about 200

days out of a year, usually between 7:30 a.m. and 10:00

p.m. Operations are directed by observers positioned in an

observation post on Cerro Matias, located in the southeast-

ern part of the SIA. Aircraft taking off from the Roosevelt

Roads airfield or a carrier located north of Vieques first fly

north of Vieques and then circle around the eastern coast to

approach the range from the south. Aircraft taking off from

carriers located south of Vieques use a straight approach

from that direction. Any aircraft carrying ammunition,

whether live or inert, is prohibited from flying over the ci-

vilian area, As best as can be estimated, an aircraft train-

ing in the range would ordinarily come no closer than with-

in five and three-quarters miles of the civilian zone.

Ship to shore gunnery directed at the naval gunfire sup-

port targets in the AIA is also restricted to a southern ap-

proach, When firing, the ships are usually positioned be-

tween three and eleven miles off the southern shore of the

AIA, All ship to shore firing occurs within a designated

danger zone, which permits the Navy to prohibit all civilian

navigation while the area is in use.

THE ISSUES ON APPEAL

Puerto Rico challenges the district court's rulings on the

following issues:“

„The Navy did not appeal the district court's order requiring the

Navy to obtain a NPDES sewage discharge permit, prepare an

8a

1. Did the Navy “transfer” training activities froin

Culebra to Vieques in violation of certain Military Con-

struction Authorization Acts?

2. Does the dropping of ordnance into the coastal waters

of Vieques violate the Puerto Rico Water Quality Stand-

ards, contrary to the requirements of § 313 of the Federal

Water Pollution Control Act Amendments of 1972, 33

U.S.C. § 1828(a)?

8. Did Congress intend to permit a private cause of ac-

tion to enforce § 18 and § 15 of the Rivers and Harbors Act

of 1899, 38 U.S.C. 58 407, 4097

4. Does the danger zone regulation promulgated by the

Corps of Engineers, 33 C. F. R. § 204,284, unreasonably re-

strict the food fishing industry of Vieques contrary to 33

U.S.C. § 3?

5. Do the Navy's training activities generate such noise

as to create a public nuisance in violation of Puerto Rico's

criminal nuisance statute, P. R. Laws Ann, tit. 33, § 13665,

and the requirements of § 4 of the Noise Control Act, 42

U.S.C. § 4908(a)?

6. Do the Navy’s activities on Vieques violate the En-

dangered Species Act of 1978, 16 U.S.C, §§ 1531-1543?

7. Does the Navy's survey of historical sites on Vieques

satisfy the requirements of § 106 of the National Historic

Preservation Act, 16 U.S.C, § 470f, Executive Order 11598

and 36 C. F. R. § 800.4?

8, Should the Navy be enjoined from conducting training

operations on Vieques?

After oral argument, we requested that the parties sub-

mit supplemental briefs on the question of whether any of

the plaintiffs have a right of action to challenge the alleged

violations of certain military authorization acts and execu-

tive branch directives related to training activities on

environmental impact statement and obtain a determination on the eli-

gibility of certain historical and prehistorical sites for inclusion in the

National Register of Historic Places.

9a

Culebra and Vieques. With the benefit of briefs from both

parties, we first address that question.“

RIGHT TO CHALLENGE THE ALLEGED TRANSFER OF

MILITARY TRAINING ACTIVITIES

Puerto Rico alleged that the Navy “clandestinely” has

transferred training operations from Culebra to Vieques,

contrary to the “clear command” of the Military Construc-

tion Authorization Acts of 1971, 1972 and 1974. The district

court rejected this contention, ruling that the statutes do

not establish an enforceable mandate, and expressed seri-

ous doubt that a transfer of activities actually had occurred.

On appeal, Puerto Rico argues that the trial court’s narrow

view of the acts ignores Congress’ “carefully crafted” statu-

tory “procedure” intended to protect the interests of the

Commonwealth; Puerto Rico also challenges the court’s

finding that a transfer did not in fact occur. Our initial task

is to ascertain whether Congress intended to permit the

Commonwealth,® or any other party, to seek judicial en-

Because we understand the district court’s decision on this question

to include a determination that Puerto Rico had failed to state a claim

upon which relief can be granted, we reject the Commonwealth’s con-

tention that the issue is not properly before us. The Navy raised this

issue in its answer and the district court ruled, inter alia, that Puerto

Rico had failed to establish the existence of a judicially enforceable

mandate. 478 F. Supp. at 697-700.

Although the Commonwealth’s standing as parens patriae in an ac-

tion against the Navy may be questioned, compare Commonwealth of

Pennsylvania v. Kleppe, 533 F.2d 668 (D.C. Cir. 1976) with Washing-

ton Utilities & Transp. Comm'n v. F. C. C., 513 F.2d 1142 (9th Cir.

1975), we think the Commonwealth certainly has standing to raise this

issue on the basis of the alleged injuries to its quasi-sovereign interest

“in all the earth and air within its domain,” an interest that is “inde-

pendent of and behind the titles of its citizens ....” Georgia v.

Tennessee Copper Co., 206 U.S. 230, 237 (1907). Cf. Massachusetts v.

Mellon, 262 U.S. 447, 482 (1923) (acknowledging the distinction be-

tween a state’s quasi-sovereign interest in the environment and its sta-

tus as parens patriae). See also Missouri v. Holland, 252 U.S. 416,

431 (1920). Because we conclude that Puerto Rico has alleged “a ‘dis-

tinct and palpable injury’ . . fairly traceable’ .. . to the challenged

conduct” of the Navy, Duke Power Co. v. Carolina Env. Study

Group, 438 U.S. 59, 73 (1978) (citations omitted), we need not decide

10a

forcement of the three authorization acts. As with any

question of statutory interpetation, we begin with an exam-

ination of the language of the statutes and the related exec-

utive branch directives. Transamerica Mortgage Advisors,

Inc. v. Lewis, 444 U.S. 11, 16 (1979); Touche Ross & Co. v.

Redington, 442 U.S. 560, 568 (1979).

In October 1970 Congress adopted the Military Construc-

tion Authorization Act of 1971, Pub. L. No. 91-511, 84

Stat. 1204. Section 611(a) of the Act directed the Secretary

of Defense “to prepare a report of the weapons training

now being conducted in the Culebra complex ....” The

Secretary was order.d to evaluate “all possible alterna-

tives, geograp}.cal and technological,’’ and make

“recommendaticus for . . . moving all or part of such activi-

ties to a new sii? or sites,” giving particular consideration

to six factors:

(1) the safety and well-being of the people who live

on Culebra;

(2) the natural and physical environment of Culebra

and adjoining cays and their recreational value;

(3) the development of a sound, stable economy in

Culebra;

(4) the unique political relationship of Culebra and

Puerto Rico to the United States;

(5) the operational readiness and proficiency of the

Atlantic Fleet; and

(6) national security.

Section 611(b) provided that the report was to be prepared

in consultation “with the people of Culebra, the Govern-

ment of Puerto Rico, and all appropriate federal agencies.”

Finally, the Navy was directed to “avoid any increase or

expansion of the present weapons range activities in the

Culebra complex and, wherever possible, without degrad-

ing the activities, to institute procedures which will mini-

whether the Mayor of Vieques or the Board on Environmental Quality

have standing to litigate this case. See Village of Arlington Heights v.

Metropolitan Housing Development Corp., 429 U.S. 252, 263-64

(1977).

lla

mize interference with the normal activities and the soli-

tude of the people of Culebra.”®

On April 1, 1971, Secretary of Defense Laird transmitted

to Congress and the President the mandated report. In a

press release issued the same day, the Secretary an-

nounced that he had ordered the Navy “to institute imme-

diately a number of actions which will enhance the safety

and well being of the residents of Culebra and reduce the

irritants to them resulting from Navy training.” The Secre-

tary also expressed his intention to reappraise the situation

by the end of 1972 and make a final decision about where to

relocate the Culebra operations.

With the enactment in 1971 of § 207 of the Military Con-

struction Authorization Act of 1972, Pub. L. No. 92-145, 85

Stat. 394, Congress directed the Secretary of Defense to

prepare a new study of “the most advantageous alternative

{to the Culebra training complex] on the basis of investiga-

tions which consider cost, national security, the operational

readiness and proficiency of the Atlantic Fleet, the impact

on the environment, and other relevant factors.” On De-

cember 27, 1972, Secretary Laird submitted his report and

recommendations to the President and Congress. In an ac-

companying letter he identified Vieques as the best of the

available alternative sites but concluded “that the Culebra

complex offers such advantages over all other alternatives

studied that none of these other alternatives can be consid-

ered reasonable.” Relocation to Vieques “would significant-

ly reduce the capability of the Inner Range and would

transfer the training activity from an island with 700 inhab-

itants to one with 7,000 inhabitants,” an “[im)prudent

course of action.” Thus, he recommended “that the Navy

retain its training targets in the Culebra complex,” yet “re-

main abreast of developments that would modify ... the

Navy’s need” for the Culebra range.

On January 11, 1971, the Navy entered into an agreement with the

Government of Puerto Rico which imposed certain restrictions on the

Culebra operations and also contained the Navy’s assurance that it

would “continue to investigate both technological and geographical

alternatives to the training done around Culebra.”

12a

In the following spring of 1973, Secretary Laird’s succes-

sor, Elliot Richardson, informed the Secretary of the Navy

that it was in the Defense Department’s long-range inter-

ests to transfer the Culebra training activities to the is-

lands of Desecheo and Monito by July 1, 1975. This

relocation was to occur, however, only after Congress had

appropriated the necessary funds and the Navy had

achieved a “satisfactory overall arrangement with the gov-

ernment 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.” a

Congress responded to this change in the Defense De-

partment's position with the enactment in 1973 of the Mili-

tary Construetion Authorization Act of 1974. Pub. L. No.

93-166, 87 Stat. 668. Section 204(a) of the Act authorized

the appropriation of $12,000,000 to facilitate the relocation

of the Culebra training operations. But § 204(b) “expressly

conditioned [the relocation] upon the conclusion of a satis-

factory agreement to be negotiated by the Secretary of the

Navy ... with the Commonwealth of Puerto Rico and re-

ported to the Committees on Armed Services of the Senate

and the House of Representatives prior to execution of

such agreement.” Congress directed that “the agreement

shall provide, among other things, that the Commonwealth

of Puerto Rico shall insure that (1) Commonwealth lands

suitable for carrying out operations of the type referred to

in subsection (a) will be made available for the long-term

continued use of the Atlantic Fleet Weapons Range and

Fleet Marine Forces training areas by the Navy, including,

but not limited to, present areas and facilities on the island

of Vieques... .”

Despite the absence of an agreement between the Navy

and Puerto Rico, on June 22, 1974, Secretary of State

Kissinger, acting as National Security Adviser, informed

the Secretary of Defense of the president’s decision to ter-

minate the training activities on Culebra by July 1, 1975,

and those on the Culebra Cays by December 31, 1975.

Kissinger directed the Secretary of Defense “to consider

and select alternative sites for the weapons range activi-

a

13a

ties” and stated that t he selection of the new site, if it is

in Puerto Rico, will be contingent on its being acceptable to

the Commonwealth... . The Navy has ceased its opera-

tions on Culebra and negotiations continue over the selec-

tion of a new site.

When Congress has not expressly provided for the pri-

vate enforcement of a statute, there is little likelihood that

the legislative history will disclose whether Congress

nonetheless intended that result. Cannon v. University of

Chicago, 441 U.S. 677, 694 (1979). Thus, the statutory lan-

guage becomes the best evidence of Congress’ intent. As

the Supreme Court recently recognized, in each of its

earlier cases that did imply a private cause of action the

statute in question either conferred a federal right on pri-

vate parties or proscribed certain conduct. Touche Ross &

Co. v. Redington, 442 U.S. at 569. Implicit in this observa-

tion is that the absence of statutory language that either

prohibits some action or confers rights weighs heavily

against implication of a private cause of action.

Neither the Military Construction Authorization Act of

1971 nor the 1972 Act creates rights or proscribes conduct

of any relevance to this case. The 1971 Act’s partial restric-

tion of the Navy’s activities in Culebra was unrelated to

Navy operations on the other islands of the Common-

wealth. In contrast, the 1974 Act made the relocation of the

Navy’s Culebra operations contingent on the execution of

an agreement between the Navy and Puerto Rico. But even

if we characterize this as a limited prohibition,’ it appears

from the language of the pertinent provision and the accom-

panying committee report that the condition was imposed

to benefit the Navy rather than Puerto Rico. Section 204(b)

10Congress’ requirement of an agreement prior to relocation was ef-

fectively a prohibition only with respect to the expenditure of the

$12,000,000. Without mention of the 1974 Act, President Nixon subse-

quently ordered the termination of the Culebra operations, ignoring

the safeguards required by the Act. The Navy never expended the

$12,000,000 appropriation and the Congress eventually reallocated the

amount to a Navy construction project in the Indian Ocean area. See

Supplemental Appropriation and Recission Act, Pub. L. No. 96-304,

94 Stat. 857 (July 8, 1980).

l4a

required that the agreement contain assurances from the

Commonwealth “that Commonwealth lands suitable for car-

rying out operations . . . will be made availabe for the long

term continued use of the . . . Navy, including, but not lim-

ited to, present areas and facilities on the island of Vieques

.. . . Not only does this language impose an obligation on

the Commonwealth rather than the Navy, but it forecloses

negotiation over the training areas and facilities on

Vieques. In the same vein, the joint conference report that

accompanied the final draft of the Act states:

The restrictive language in Section 204 is a result of

discussion with the Governor and others and the con-

ferees believe it provides sufficient protection to the

Navy upon relocation of ship-to-shore gunfire opera-

tions from Culebra to the other Islands mentioned.

H.R. Rep. No. 634, 93d Cong., Ist Sess. 35 (1973). If Con-

gress had intended to ereate a private right of aetion, it

would have provided first for a right or duty upon which

private enforcement could be based. But the authorization

acts leave Puerto Rico without a place to hang its hat; the

statutes grant no right to the Commonwealth, nor do they

impose an obligation on the Navy for the benefit of the

Commonwealth.

Puerto Rico argues that the authorization acts reflect

Congress’ intention to obligate the Navy to confer with

other parties, particularly the Commonwealth, prior to any

transfer of the Culebra operations. As part of that argu-

ment, Puerto Rico maintains that Congress anticipated that

the agreement mandated by the 1974 Act would provide for

“other things” beyond the Commo:iwealth’s assurances of

an adequate alternative site. The Commonwealth contends

that this phrase undoubtedly was intended to encompass

provisions for the protection of its environment and the

welfare of its citizens; Congress impliedly sought to pre-

vent a recurrence of the ecological and political problems

created by the Navy’s use of Culebra. Puerto Rico con-

cludes that as the party most to be benefitted from this

inferred congressional prohibition of unilateral Navy ac-

tion, it must be granted a cause of action to vindicate Con-

gress’ intent.

15a

Other than the phrase “among other things,” however,

Puerto Rico is unable to direct us to one provision in any of

the three acts that establishes the mandate it seeks to en-

force. Instead, it relies primarily on the “necessary” infer-

ences to be drawn from the statutes and the executive

branch directives; Puerto Rico interprets the latter docu-

ments to corroborate its position. But the expansive infer-

ences drawn by Puerto Rico, which we do not find to be

free from doubt, must be contrasted with the limited na-

ture of the legislation. The 1971 Act and the 1972 Act, as

related to Vieques, directed the Secretary of Defense to

prepare two feasibility reports; that is all. The 1974 Act did

mandate execution of an agreement prior to relocation from

Culebra. So far as the statute provides, however, we know

only that Congress intended by this condition to protect the

Navy’s training capacity. Congress may have had a clear

collective understanding of what “other things” were at

issue, and the preferred resolution, but it chose not to re-

flect this in its 1974 legislation. Instead, it left to the par-

ties the task of hashing out an agreement, subject to con-

gressional, not judicial, review. The absence of any

enforcement scheme in the authorization acts reinforces our

conclusion that Congress intended that the controversy

surrounding the Navy’s training activities in Puerto Rico

be resolved in the political sphere. Implication of a private

cause of action would be contrary to the apparent intent of

Congress, and, given the lack of a judicially enforceable

mandate, a futile gesture.

Puerto Rico relies on the various executive branch di-

rectives principally to corroborate its interpretation of the

authorization acts. As a second line of argument, however,

it maintains that the directives have independent signifi-

cance as sources of a private right of action. Unlike the sit-

uation presented by the three statutes, at least one of the

directives contains a provision which ordered the Navy to

obtain the Commonwealth’s agreement prior to a relocation

of the Culebra operations. In 1974 National Security Advis-

er Kissinger, on behalf of the President, directed the Secre-

tary of Defense to end the Culebra operations and select a

new site contingent on its being acceptable to the Common-

16a

wealth. Puerto Rico contends that this order imposed a

legal obligation on the Navy that is enforceable by the

Commonwealth. We conclude, however, that the Presi-

dent’s order does not have the force and effect of law and

thus is not enforceable by an implied private cause of ac-

tion.

The Commonwealth attempts to cloak the 1974 presiden-

tial order with statutory authority, characterizing it as in

furtherance of the 1974 Act. But in fact the order essential-

ly ignored what we perceive to be the intent of Congress as

evidenced in the Act. Rather than require the Common-

wealth to insure alternative sites prior to a relocation of the

Culebra operations, as Congress mandated, the President

ordered termination of those operations without any prior

assurances from Puerto Rico. Moreover, the order granted

the Commonwealth a veto over the Navy's choice of an

alternative site; nothing in the Act suggests that Congress

intended such a role for the Commonwealth. When the

President issued this order, he necessarily relied not on any

statutory authority, but on his constitutional authority as

the chief executive and the commander in chief of the

armed forces. As such, the President has the power to di-

rect the activities of the military but he is without the au-

thority to legislate. See Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 578, 587-88 (1952). Without some basis

in an act of Congress, the directive cannot constitutionally

be invested with the status of law, see Independent Meat

Packers Ass'n v. Butz, 526 F.2d 228, 234-36 (8th Cir.

1975), thus obviating a decision on the question of an im-

plied cause of action."

11The other executive branch directives invoked by Puerto Rico do

not require extensive comment. The statements of Secretary Laird, to

the extent they pertain to Vieques, contain nothing more than certain

recommendations based on the Department’s evaluation of the island

and the other potential relocation sites. Secretary Richardson's memo-

randum to the Secretary of the Navy does not address the transfer of

Culebra operations to Vieques. He ordered relocation to the

uninhabited islands of Desecheo and Monito and required the Common-

wealth’s participation only with respect to the implementation of the

17a

The Commonwealth's reliance on section 10 of the

Administrative Procedure Act as an alternative source for

a cause of action founders upon the limitations inherent in

the Act. Section 10(a) of the APA provides that “[a] person

suffering legal wrong because of agency action, or adverse-

ly affected or aggrieved by agency action within the mean-

ing of a relevant statute, is entitled to judicial review

thereof.” 5 U.S.C. § 702. But assuming that the Navy did

“transfer” the Culebra activities to Vieques, that action is

not “agency action.”

Section 2 of the APA defines agency action to include

“the whole or a part of an agency rule, order, license, sanc-

tion, relief or the equivalent or denial thereof, or failure to

act. Id. § 651(18). Each of the types of action includ-

ed within this definition is separately defined in § 2. See id.

§ 551(4), (6), (8), (10), (11). All but one of these specific def-

initions refer to one of two forms of regulatory activi-

ty—agency rulemaking or agency adjudication. “Sanction”

is defined to include, in addition to regulatory activity,

“any agency . . . destruction, taking, seizure or with-

holding of property.” Id. § 551(10).

The Navy’s transfer of military training activities did not

remotely involve rulemaking or adjudication, nor, at least

in this case, did it result in the “destruction, taking, seizure

or withholding of property.” We recognize that Congress

intended the APA to span a “broad spectrum of administra-

tive actions.” Abbott Laboratories v. Gardner, 387 U.S.

136, 140 (1967). Nonetheless, the language of § 2 evidences

that Congress intended to reach only actions that are

administrative, and we conclude that the challenged activi-

ties of the Navy do not fall within that spectrum. But see

Standard Oil Co. of Ca. v. F. T. C., 596 F.2d 1381, 1884-85

(9th Cir. 1979).

Even if we were to accept that the “transfer” constituted

agency action, we would characterize it as action “com-

plan and protection of the Atlantic Fleet's interests. Moreover,

Richardson's directive was essentially superseded by the President's

1974 order.

18a

mitted to agency discretion by law,” 5 U.S.C. § 701(a)(2),

and thus unreviewable. This exception to § 10’s broad

entitlement to judicial review applies only “in those rare in-

stances where ‘statutes are drawn in such broad terms that

in a given case there is no law to apply.“ Citizens to Pro-

tect Overton Park v. Volpe, 401 U.S. 402, 410 (1971),

quoting S. Rep. No. 752, 79th Cong., Ist Sess, 26 (1945).

See Chrysler Corp. v. Brown, 441 U.S. 281, 317 (1979).

The question before us presents one of those rare in-

stances. The Commonwealth has cited as the applicable

constraint on the Navy’s training activities the Military

Construction Authorization Acts of 1971, 1972 and 1974.

But, as we have already explained in some detail, those

statutes do not provide the judiciary with any “law to

apply.” “

We affirm the district court’s ruling that with respect to

the alleged transfer of military training activities from

Culebra to Vieques, Puerto Rico has failed to state a claim

upon which relief can be granted.

POLLUTION OF THE COASTAL W* TERS

1. Puerto Rico Water Quality Standards

Section 313 of the Federal Water Pollution Control Act

Amendments subjects every “department, agency, or

instrumentality of the executive, legislative and judicial

branches of the Federal Government” to “all Federal,

‘Because we conclude that the authorization acts are of no rele-

vance to the Navy's authority to conduct the Vieques operations, we

need not undertake the more detailed analysis set forth in Mahn v.

Gottlieb, 480 F.2d 1243, 1249 (1st Cir. 1970), to determine the

applicability of the “committed to agency discretion” exception of 5

U.S.C. § 701(a(2). Cf. Carter v. Colon, No. 80-1666, et al., slip op. at

4-6 (Ist Cir, Oct. 24, 1980) (recent application of the Hahn analysis).

*Our conclusion that the authorization acts do not impose a duty on

the Navy to the benefit of the Commonwealth also undermines the

Commonwealth's reliance on 28 U.S.C. § 1361. That statute grants the

“district courts original jurisdiction of any action in the nature of man-

damus to compel an officer . . of the United States . to perform a

duty owed to the plaintiff.” Jd. See Falzarano v. United States, 607

F. 2d 606, 518 (Ist Cir. 1979).

19a

State, interstate, and local requirements.. respecting

the control and abatement of water pollution in the same

manner and to the same extent as any nongovernmental

entity.” 83 U.S.C. § 1823(a). Puerto Rico alleged that the

Navy, by dropping ordnance into the waters of Vieques,

has violated several water pollution control regulations pro-

mulgated pursuant to the Commonwealth's Water Pollution

Control ts and Public Policy Environmental Control Acts.“

The district court rejected this allegation, finding no viola-

tion of the water quality standards it deemed applicable to

the Navy’s activity. 478 F. Supp. at 664-69. On appeal,

Puerto Rico asserts that, contrary to the trial court’s opin-

ion, there are three germane water quality standards that

the Navy has violated.** We consider each separately.'*

Article 2.1.1 of the Puerto Rico Water Quality Stand-

ards 17 provides:

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 attribu-

table to discharges in amounts sufficient to be unsight-

ly or deleterious.

Puerto Rico argues that the trial court erred in its

interpretation of 2.1.1 by according determinative signifi-

cance to the term “discharges,” contrary to the purposes of

10 P. R. Laws Ann. tit. 24, $$ 591-601.

1% P. R. Laws Ann. tit. 12, §§ 1128-1142.

1 puerto Rico's reliance on the SB waters classification’s prohibition

of solids is misplaced. This prohibition of solids was part of the

pre-1970 regulations, 24 P. R. R. & R. 598-5(a)(A) & (B), and has been

superseded by Article 7.3 of the current Regulation, Puerto Rico

Water Quality Standards.”

% We undertake this examination of the water quality standards

without the benefit of any prior judicial or administrative interpreta-

tion.

*The “Puerto Rico Water Quality Standards” are designated as a

single “Regulation.” Each section of the Regulation is denoted an Au-

ticle.” The Regulation is reprinted in Envir. Rep.—State Water Laws

(BNA) 896:0801—; 0310.

20a

the regulations and statute. We cannot agree. Article 2.1.1

expressly and exclusively addresses materials “attributable

to discharges,” which are defined as “{t]he outflow of

wastewater from any ... source into receiving waters.”

Article 1. Turning to the definition of wastewater, we are

directed to the definition of municipal wastes, which is

AIwlater carrying human and animal wastes from homes,

buildings, industrial establishments and other places alone

or in combination with industrial wastes.” Jd. No fair read-

ing of this language warrants the conclusion that Article

2.1.1. applies to the bombing and shelling of coastal waters.

In contrast, the prohibitions annunciated in Article 2.1.3

are not limited in application to materials attributable to

discharge. Article 2.1.3 directs that At he waters of Puerto

Rico shall not contain substances in concentrations or com-

binations which produce undesirable physiological re-

sponses in human, fish, or other animal life, and plants.”

More specifically, subsection (A) establishes with respect to

the coastal waters the “maximum allowable concentrations”

of iron and certain other inorganic substances. Puerto Rico

contends that the district court ignored the general prohibi-

tion of “substances ... which produce undesirable

physiological responses” and erred in its finding that the

Navy’s activity did not result in a violation of the maximum

allowable concentration of iron.

The weakness in Puerto Rico’s first contention is that it

reads into Article 2.1.3 an unjustifiable breadth in scope.

Article 2.1.3 speaks not simply of “substances,” which, ad-

mittedly, could be construed to encompass solids such as

spent ordnance as well as other refuse. Rather, the regula-

tion addresses “concentrations” or “combinations” of sub-

stances. Those terms appear to refer in this context to the

presence of chemicals and chemical processes rather than

that of solids such as discarded ordnance. For example, the

“maximum allowable concentrations” established by 2.1.3

are expressed in terms of milligrams per liter, hardly a

measurement appropriate to shell casings or bomb rem-

nants. And those limitations are devoted to the specifica-

tion of allowable concentrations of minerals and pesticides,

not those of solids. We conclude that the apparent thrust of

21a

this regulation is the control and abatement of chemical pol-

lution. We therefore agree with the district court that the

sole issue under Article 2.1.3 is whether the Navy’s used

ammunition caused concentrations of iron in certain areas

of the coastal waters to exceed the specified maximum al-

lowable concentration.

With respect to this question, we find nothing in the re-

cord to contradict the trial court’s finding. Although it ap-

pears fairly clear that the concentrations of iron in some

areas near the target range do exceed the Article 2.1.3(A)

standard, Puerto Rico failed to establish that ordnance

dropped by the Navy caused these excessive concentrations

of iron. Thus, the district court correctly found no violation

of Article 2.1.3.

Finally, we turn to the broadly phrased prohibition of

Article 4 of the Water Quality Standards, Article 4.1.1 pro-

vides that Injo person shall cause or permit the pollution of

the waters of Puerto Rico. . . Pollution is defined in Ar-

ticle 1 as

lalltering the natural characteristics of a body of

water so as to make it in any way harmful or noxious

to human heulth, or to that of animals, plants, or ren-

dering it ill-smelling or impure or altering adversely

its physical, chemical, microbiological or radioactive

condition, in such a way as to interfere with enjoyment

of life or property or violate the standards of purity es-

tablished by this Regulation.

Puerto Rico argues that the district court failed to apply

Article 4.1.1 as a “generic” prohibition distinct from the

specific standards set forth in Article 2. We conclude, how-

ever, that Article 4.1.1 does not constitute a “standard” as

referred to in Puerto Rico’s Water Pollution Control Act.

The statutory prohibition of pollution makes it “unlawful

for any person . . . to throw, discharge, pour or dump

into the waters . . . any organic or inorganic matter capable

of polluting” these waters “in such a manner as to place

them out of the minimum standards of purity that the

Board on Environmental Quality] may establish ... .”

P.R. Laws Ann. tit. 24, § 595. Similarly, the statute de-

fines pollution as “making [the waters] in any way noxious

22a

. . all according to the permissible standards of purity . . .

established as provided herein.” P.R. Laws Ann. tit. 24,

§ 591(i). This language evidences the legislature’s judg-

ment that the general prohibition of pollution is not enough;

standards explicating what pollution is must be provided.

The statute anticipates administrative specifications of its

broad proscription in the form of standards by which partic-

ular actions may be evaluated. But Article 4.1.1 merely re-

phrases the general statutory command; it offers no clarifi-

cation of that language, nor, unlike Article 2, does it

provide any additional guidance to those who must conform

to the law. To accept 4.1.1 as a “standard” would render

meaningless the statutory requirement that the regulations

promulgated thereunder further define and clarify the gen-

eral statutory proscription of pollution. Because Article

4.1.1 is not a standard as contemplated by the authorizing

statute, we decline to give it effect separate from the actual

standards of the Regulation.“

We affirm the district court’s conclusion that the Navy

has not violated the applicable Puerto Rico Water Quality

Standards or 33 U.S.C. & 1323(a).

2. The Rivers and Harbors Act of 1899

The second phase of Puerto Rico’s attempt to halt the

Navy’s dropping of ordnance into the coastal waters of

Vieques rests primarily on an alleged violation of Section 13

of the Rivers and Harbors Act of 1899. 33 U.S.C. § 407. As

a complement to that claim, Puerto Rico alleged that the

Navy’s sinking of the U.S.S. Killen in the Bahia Salinas del

Sur violated Section 15 of the same act. 33 U.S.C. § 409.

The district court ruled that neither § 13 nor § 15 give rise

to a private cause of action for injunctive relief. 478 F.

Supp. at 669-72. We affirm that decision with respect to

§ 13, but vacate the court’s ruling with respect to § 15.

Section 13 makes it unlawful to throw, discharge or de-

posit “any refuse matter .. into any navigable water of

1®The statutory provisions that empower the Board to adopt regula-

tions, P. R. Laws Ann. tit. 12. § 1131(18) and tit. 24, 5598, 599, con-

tain nothing contrary to this conclusion.

23a

the United States. without a permit from the Adminis-

trator of the Environmental Protection Agency. 33 U.S.C.

§$§ 407, 1342(a). The “comprehensive language” of this pro-

hibition reflects a broad statutory purpose—the protection

of navigation and the prevention of pollution. United States

v. Standard Oil Co., 384 U.S. 224, 228-30 (1966). See

United States v. Pennsylvania Industrial Chemical Corp.,

411 U.S. 655 (1973). Under § 17 of the Act, it is the duty of

the Department of Justice to “conduct the legal proceedings

necessary to enforce the provisions” of § 13. 33 U.S.C.

§ 413. Although the Act expressly provides for criminal

penalties only, id., courts have recognized the federal gov-

ernment’s implied authority to seek injunctive relief for a

violation of § 13. United States v. Stoeco Homes, Inc., 498

F. 2d 597 (3d Cir. 1974), cert. denied, 420 U.S. 927 (1975).

See Wyandotte Transp. Co. v. United States, 389 U.S. 191

(1967); Connecticut Action Now, Inc. v. Roberts Plating

Co., 457 F. 2d 81 (2d Cir. 1972). Puerto Rico argues that the

broad purposes of § 13 also warrant the implication of a pri-

vate cause of action for injunctive relief. We undertake an

analysis of this claim mindful of the Supreme Court’s recent

adherence “to a stricter standard for the implication of pri-

vate causes of action.. i Touche Ross & Co. v.

Redington, 442 U.S. 560, 578 (1979).

1 None of the courts of appeals that have previously considered this

question were willing to imply a private cause of action under § 13.

See National Sea Clammers Ass'n v. City of New York, 616 F.2d 1222

(8d Cir.), cert. granted, 49 U. S. L. W. 3281 (Oct. 14, 1980) (No.

79-1760); Sierra Club v. Andrus, 610 F.2d 581 (9th Cir. 1979) (die-

tum), cert. granted sub nom., Kern County Water Agency v. Sierra

Club, 49 U.S.L.W. 3212 (Oct. 7, 1980) (No. 79-1502); City of

Evansville, Inc. v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008

(7th Cir. 1979); Connecticut Action Now, Inc. v. Roberts Plating Co.,

457 F.2d 81 (2d Cir. 1972 (qui tam action); Guthrie v. Alabama By-

Products Co., 456 F.2d 1294 (5th Cir. 1972) (per curiam), cert. denied,

410 U.S. 946 (1973); Bass Anglers Sport man's Society of America,

Inc. v. Koppers Co., 447 F.2d 1804 (5th Cir. 1971) (per curiam). See

also Parsell v. Shell Oil Co., 421 F. Supp. 1275 (D. Conn. 1976), aff'd

mem, sub nom. East End Yacht Club, Inc. v. Shell Oil Co., 573 F.2d

1289 (2d Cir. 1977); Loveladies Property Owners Ass'n v. Raab, 430 F.

Supp. 276 (D.N.J. 1975), aff'd mem. 647 F.2d 1162 (3d Cir. 1976), cert

24a

The touchstone of this inquiry is whether Congress in-

tended that the statute be enforced by private parties.

Transamerica Mortgage Advisers, Inc. v. Lewis, 444 U.S.

11, 15 (1979); Touche Ross & Co. v. Redington, 442 U.S. at

568. That intent usually can best be ascertained by ad-

dressing four factors. See Cort v. Ash, 422 U.S. 66, 78

(1975). First, it must be determined from the statutory lan-

guage “whether the statute was enacted for the benefit of a

special class of which the plaintiff is a member.” Cannon v.

University of Chicago, 441 U.S. 677, 689 (1979). The duties

imposed by § 13 benefit the public at large: nothing in the

statutory language identifies any special class as the princi-

pal intended beneficiary.2° Rather, if there is a principal

beneficiary of § 13’s proscription, it is the “Government it-

self.” Wyandotte Transp. Co. v. United States, 389 U.S. at

201. With a statute such as § 13, one which creates “duties

on the part of persons for the benefit of the public at large,”

the Supreme Court “has been especially reluctant to imply

causes of actions.” Cannon v. University of Chicago, 441

U.S. at 691-92 n. 13.

The second factor requires an investigation of the legisla-

tive history. As the Supreme Court has recognized, howev-

er, little is likely to be learned from the legislative history

of a statute which is silent on the question of private en-

forcement. Jd. at 694. The debates and reports preceding

§ 13’s enactment at most evidence that Congress had no in-

tent with respect to this question. See Touche Ross & Co.

v. Redington, 442 U.S. at 571.

denied, 482 U.S. 906 (1977). Although the district court thought that

the Fourth circuit may have recognized a private cause of action in

Rucker v. Willis, 484 F.2d 158 (4th Cir. 1973), River v. Richmond

Metropolitan Authority, 481 F.2d 1280 (4th Cir. 1973), and Lauritzen

v. Chesapeake Bay Bridge and Tunnel District, 404 F.2d 1001 (4th

Cir. 1968), we do not find those decisions to support that conclusion.

*°That the Commonwealth of Puerto Rico is one of the plaintiffs in

this case does not alter our conclusion. Section 18 “no more evidences

an intent to ‘especially’ benefit a class of [state governments) or their

agents than a class of private parties City of Evanaville, Ind. v.

Kentucky Liquid Recycling, Inc., 604 F. 2d 1008, 1012 n.7 (7th Cir.),

cert. denied, 444 U.S. 1025 (1979).

25a

The third factor is whether it is “consistent with the un-

derlying purposes of the legislative scheme to imply such a

remedy ... . 1 441 U.S. at 688-89 n.9. Section 17 of the

Act provides that Atlhe Department of Justice shall con-

duct the legal proceedings necessary to enforce” § 13. 33

U.S.C. § 413. The only role expressly created for private

persons in the enforcement scheme is as informants; section

17 provides for the payment of one-half of a levied fine “to

the person or person giving information which shall lead to

conviction.” Id. § 411. In one respect, a private cause of ac-

tion is clearly consistent with the legislative scheme. It

would positively augment the government’s enforcement

efforts, thus better effectuating the ultimate objectives of

§ 13. But notwithstanding the remedial advantages to be

gained from such implication, the language of these provi-

sions establishes that Congress vested in the federal gov-

ernment the primary responsibility for enforcement.?? To

*1 Later in the Cannon opinion the court rephrased this factor as a

question of whether “a private remedy . . . would frustrate the under-

lying purpose of the legislative scheme” and observed that “when that

remedy is necessary or at least helpful to the accomplishment of a stat-

utory scheme, the Court is decidedly receptive to its implication... .”

441 U.S. at 703. To the extent that this rephrasing weighs more favor-

ably towards implication of a private cause of action, we think it re-

flects the Court’s previous conclusion that the statute at issue was in-

tended to benefit a special class. The potential remedial advantages of

an implied cause of action no longer hold the sway they once did, Tou-

che Ross & Co. v. Redington, 442 U.S. at 578, even when the statute

at issue does benefit a special class, Transamerica Mortgage Advisors,

Inc. v. Lewis, 444 U.S. at 15-16, 19-20, 23-24.

a puerto Rico puts great store in the fact that the Department of

Justice is obligated to represent federal agencies charged with a viola-

tion of the Act and thus is “in no position to enforce the Act” against

those same federal agencies. Natural Resources Defense Council, Inc.

v. Grant, 355 F. Supp. 280, 290 (E. D. N. C. 1973). The Commonwealth

maintains that a private parties must be allowed to vindicate the pub-

lie's interest in environmental protection. Id. See People of the State of

Illinois ex rel Scott v. Hoffman, 425 F. Supp. 71 (S.D. III. 1977). See

also Sierra Club v. Andrus, 610 F.2d 581, 590-91 (9th Cir. 1979), cert.

granted, 49 U.S.L.W. 3212 (Oct. 7, 1980) (No. 79-1502). But whether

or not this situation presents an insuperable conflict, our responsibility

is to ascertain Congress’ intent, not to improve upon its enforcement

scheme. Touche Ross & Co. v. Redington, 442 U.S. at 578. Moreover,

26a

the extent that this decision involved factors other than the

protection of navigation and the prevention of pollution, im-

plication of a private cause of action could very well frus-

trate Congress’ intent. See Connecticut Action Now, Inc.

v. Roberts Plating Co., 457 F.2d at 89.

Finally, we must consider “whether implying a federal

remedy is inapprorpiate because the subject matter in-

volves an area basically of concern to the States.” Cannon

v. University of Chicago, 441 U.S. at 709. The federal in-

terest in navigation and the control of pollution cannot be

doubted. Congress’ power under the Commerce clause

gives that body virtually plenary authority over the naviga-

ble waters of the United States. See, e.g., Gilman v.

Philadelphia, 70 U.S. (3 Wall.) 713 (1865); Gibbons v.

the absence of an implied private cause of action under § 13 does not

mean that federal agencies are effectively free to ignore their

responsibilities with respect to the control of water pollution. Section

$13 of the Federal Water Pollution Control Act Amendments subjacts

every federal agency to “all Federal, State, interstate, and local re-

quirements . . . respecting the control and abatement of water pollu-

tion ... .” 88 U.S.C. § 1882(a). Under § 505 of the same Act, id.

§ 1365, Puerto Rico may sue to enforce that obligation, as it has done

in this case. The similarity in purpose between the Rivers and Harbors

Act and the Federal Water Pollution Control Act is reflected in the

fact that the permit requirement imposed by § 13 is now implemented

by the Administrator of the EPA under § 402 of the Federal Water

Pollution Control Act. See 33 U.S.C. § 1342(a)(1)(2). Because no issue

is presented here in which the substantive requirements of § 13 might

differ from those of the Federal Water Pollution Control Act, we need

express no view on the availability of a right of private enforcement

against federal defendants in a situation in which they did.

20 Section 17 requires the Department of Justice “to vigorously pros-

ecute all offenders . . . when requested to do so by the Secretary of the

Army or by any of the officials hereinafter designated . . . .” 38 U.S.C.

413. It vests in the appropriate administrative officials, if not also

the Attorney General, the discretion to decide whether § 13 should be

enforced in a particular case. As a provision for prosecutorial discre-

tion, it reflects a legislative decision to husband the enforcement re-

sources of the federal government, including those of the judiciary.

The government’s decision not to enforce § 13 against a particular

party, perhaps in anticipation of an informal resolution of the matter,

could be frustrated by a private party armed with an implied cause of

action.

27a

Ogden, 22 U.S. (9 Wheat.) 1 (1824). Since the enactment of

the Rivers and Harbors Act in 1899, Congress has expand-

ed federal efforts to control the pollution of navigable

waters with the adoption of the Federal Water Pollution

Control Act, as amended, 33 U.S.C. §§ 1251-1376. The en-

actment in 1969 of the National Environmental Policy Act,

42 U.S.C. 88 4321-4369, underscores the federal commit-

ment to combat pollution. We perceive no federalism-

comity problems militating against the implication of a pri-

vate cause of action under § 13.

Of the four factors we have analyzed to ascertain Con-

gress’ intent, only the last clearly favors implication of a

private cause of action. Although we recognize the private

enforcement of § 13 might be conducive to the protection of

navigation and the control of pollution, Atjhe ultimate

question is one of congressional intent, not one of whether

this Court thinks that it can improve upon the statutory

scheme. Touche Ross & Co. v. Redington, 442 U.S.

at 578. What evidence there is does not warrant a conclu-

sion that Congress intended to create a private cause of ac-

tion under § 13.24

Section 15 of the Rivers and Harbors Act makes it unlaw-

ful “to voluntarily, or carelessly sink, or permit or cause to

be sunk, vessels or other craft in navigable channels

33 U.S.C. § 409. Puerto Rico maintains that the Navy’s in-

tentional sinking of a target ship, the U.S.C. Killen, in the

Bahia Salinas del Sur, violated this prohibition. We con-

clude that Puerto Rico is without standing to assert this

claim.

24T wo of the decisions relied upon by Puerto Rico rest, in principle if

not by name, on an application of § 10(a) of the Administrative Proce-

dure Act, 5 U.S.C. § 702. See Citizens Committee for Hudson Valley

v. Volpe, 425 F. 2d 97 (2d Cir.), cert. denied, 400 U.S. 949 (1970); Peo-

ple of the State of Ill. ex rel Scott v. Hoffman, 425 F. Supp. 71 (S.D.

Ill. 1977). That statute creates a right to judicial review for persons in-

jured by “agency action,” the definition of which does not encompass

the Navy’s dropping of ordnance into the coastal waters of Vieques.

See 5 U.S.C. § 551(13). See pp. 18-19, supra.

28a

“The essence of the standing inquiry is whether” the

plaintiff has alleged “a ‘distinct and palpable injury’...

‘fairly traceable’ ... to the challenged conduct.” Duke

Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 73

(1978) (citations omitted). Puerto Rico failed to allege that

the sinking of the U.S.S. Killen resulted in any form of

harm to the island or its inhabitants. Nor does the relief

requested—an injunction against the Navy’s training activ-

ities on Vieques—implicitly suggest the harm which Puerto

Rico might have alleged. An injunction against current

Navy activities hardly would remedy any injury to the en-

vironment or navigation caused by a sunken vessel. Re-

moval of the ship would be the appropriate remedy for

harm resulting from the ship’s presence, but Puerto Rico

did not request that relief.25 The failure to allege a distinct

and palpable injury renders Puerto Rico’s claim under § 15

nonjusticiable. See Simon v. Eastern Kentucky Welfare

Rights Org., 426 U.S. 26, 39 (1976); Linda R.S. v. Richard

D., 410 U.S. 614, 617 (1973). Thus we vacate the district

court’s decision with respect to this claim, and remand with

instructions to dismiss for lack of jurisdietion. 2

RESTRICTIONS ON FISHING

“In the interest of the national defense, and for the bet-

ter protection of life and property,” section 1 of the Army

Appropriation Act of 1918 authorizes the Secretary of the

Army “to prescribe such regulations as he may deem best

for the use and navigation of any portion or area of the nav-

igable waters ... under the jurisdiction of the United

States endangered or likely to be endangered by Artillery

25Puerto Rico correctly argues that a violation of § 15 can be estab-

lished without proof that navigation has been actually obstructed by

the voluntary sinking of a vessel. This does not, however, obviate the

jurisdictional requirement that a private party seeking relief under

§ 15 allege some injury to fact to itself.

26Given our disposition of this claim, we need not decide whether a

private cause of action for injunctive relief should be implied from

§ 15. Nonetheless, we think it appropriate to observe that our analysis

of that issue with respect to § 13 is equally applicable to § 15.

29a

fire in target practice or otherwise. . . 33 U.S.C. § 3.

The sole express restraint imposed by the statute on the

Secretary’s power provides “that the authority conferred

shall be so exercised as not unreasonably to interfere with

or restrict the food fishing industry ....” Id. Pursuant to

this authority, the Secretary has promulgated danger zone

regulations individually tailored to the particular area of

water in question. See 33 C. F. R. § 204.

In 1974 the Secretary of the Army promulgated the fol-

lowing regulation:

Carribean Sea and Vieques Sound in vicinity of East-

ern Vieques, bombing and gunnery target area.

(a) The Danger Zone. From Punta Conejo on the

south coast of Vieques at latitude 18°06'30’, longitude

65°22'33"; thence to latitude 18°03'00", longitude

65°21'00"; thence to latitude 18°03'300", longitude

65°15'30"; thence to latitude 18°11"30", longitude

65°14'30"; thence to latitude 18°12'00", longitude

65°20'00"; and thence to Cabellos Colorados on the

north coast of Vieques at latitude 18°09'49”, longitude

65°23'27”".

(b) Regulations. (1) It will be open to navigation at

all times except when firing is being conducted. At

such times no surface vessels, except those patrolling

the area, shall enter or remain within the danger area.

Prior to conducting each firing or dropping or ord-

nance the danger area will be patrolled to insure that

no watercraft are within the danger area. Any water-

craft in the vicinity will be warned that practice firing

is about to take place and advised to vacate the area.

(2) The regulations will be enforced by the Com-

mander. Caribbean Sea Frontier, San Juan, P.R., and

such agencies as he may designate.

33 C. F. R. § 204.234 (1979).

At trial, Puerto Rico contended that the Navy’s use of

this area for bombing and gunnery practice unreasonably

interfered with the island’s food fishing industry, in viola-

tion of 33 U.S.C. § 3. In rejecting this claim, the district

court ruled that:

30a

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) ... 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.

478 F. Supp. at 701.

On appeal Puerto Rico argues that the district court

failed to consider the needs of Vieques’ fishing industry, in

disregard of the statutory requirement that the danger

zone regulation not unreasonably interfere with or restrict

the food fishing industry. We conclude, however, that the

only question properly before the court was whether the

Navy had complied with the danger zore regulation.

As is apparent from the statutory language, the provi-

sion against unreasonable interference with the food fishing

industry applies to the Secretary of the Army’s exercise of

his authority to prescribe and regulate. Assuming that the

Navy has acted in accordance with 33 C.F.R. § 204.234, to

decide whether the Navy has unreasonably interfered with

fishing would necessarily draw into question the validity of

the regulation under the enabling statute, 33 U.S.C. § 3.

Yet Puerto Rico has not named the Secretary of the Army

as a defendant in this case. Thus, if we, or the district

court, were to define a standard of reasonableness for 33

U.S.C. § 3 and apply it to the facts of this case, we would

do so in the absence of the agency responsible for the ad-

ministrative determination that 33 C. F. R. § 204.234 com-

ports with the statutory command. None of the record rele-

vant to the formulation of this regulation is part of the

record in this ease.“ Nor, of course, has the Secretary had

the opportunity, at trial or on appeal, to defend the propri-

ety of the regulation.

27 The current regulation, 36 C. F. R. § 204.234, was promulgated

only after the Corps of Engineers had provided public notice of the

proposed regulation and an opportunity for comments. 39 Fed. Reg.

13889, 27133 (1974).

31a

Had the district court ruled on whether 33 C. F. R.

§ 204.234 unreasonably interferes with the food fishing in-

dustry, we would vacate that ruling for the reasons stated

above.?® We conclude, however, that the court’s decision is

only a determination that the Navy has complied with 33

C.F.R. § 204.234. We need offer no opinion on this because

Puerto Rico has not challenged it on appeal.

NOISE POLLUTION

In its complaint, Puerto Rico contended that the Navy’s

training activities generate “shock waves and excessive

noise that unreasonably interfere with the health and wel-

fare of residents of Vieques. . . It sought to enjoin these

activities as a violation of the Commonwealth’s criminal

nuisance statute, 2 P. R. Laws Ann. tit. 33, § 1365,%° al-

leged to be applicable to the Navy’s operations through

Section 4 of the Noise Control Act, 42 U.S.C. § 4903(b)

(the Act). 1 The district court denied the request for an in-

28 When necessary to protect the interests of an absent party, a

court of appeals should consider sua sponte whether a claim should be

dismissed for failure to join an indispensable party. See Provident

Bank & Trust Co. v. Patterson, 390 U.S. 102, 111 (1968); NLRB v.

Doug Neal Management Co., 620 F.2d 1133, 1139 (6th Cir. 1980);

Kimball v. Florida, 537 F.2d 1305, 1307 (5th Cir. 1976).

2® Although Puerto Rico does not seek to impose criminal penalties

on the Navy, it chose to base its case on its criminal nuisance law rath-

er than its very similar civil nuisance statute, P. R. Laws Ann Tit. 32,

§ 2761, perhaps because the latter does not expressly refer to public

nuisances. See note 40 infra. The choise of statute relied upon does not

affect our analysis or conclusion.

30 P. R. Laws Ann. tit. 33, § 1365 provides in pertinent part:

Anything which is injurious to health, or is indecent or offen-

sive to the senses, or is an obstruction to the free use of proper-

ty, so as to interfere with the comfortable enjoyment of life or

property by an entire community or neighborhood, or by any con-

siderable number of persons, or unlawfully obstructs the free

passage or use, in the customary manner, of any navigable lake,

river, bay, stream, canal or basin, or any public park, square,

street or highway is a public nuisancel.]

31 42 U.S.C. § 4903(b) provides in pertinent part:

(b) Each department, agency, or instrumentality of the execu-

32a

junction, ruling that the Act does not apply because the

nuisance statute does not establish noise control “require-

ments” as that term is used in Section 4. 478 F. Supp. at

675. Despite this ruling, the court proceeded to consider

the evidence and determined that the noise attributable to

the Navy’s activities does not interfere with the quality of

life on Vieques. Id: at 680. We conclude that the district

court was without jurisdiction to entertain Puerto Rico’s

claim.

A careful reading of the Noise Control Act’s citizen suit

provision, section 12, 42 U.S.C. § 4911, discloses that Con-

gress expressly created a private cause of action only with

respect to the enforcement of federal noise control require-

ments. Subsection (a) permits “any person,” including a

state, to bring suit in federal district court against any fed-

eral agency that has violated a “noise control requirement.”

That term is defined in subsection (f) by reference to other

sections of the Act, all of which concern the granting of

regulatory powers to the Administrator of the EPA or the

Secretary of the Treasury, and the enforcement of regula-

tions promulgated thereunder. Section 12 has no provision

for citizens’ suits to enforce a federal agency’s duty to com-

ply with state and local requirements regarding the control

and abatement of environmental noise. Thus, Puerto Rico’s

claim, premised on a violation of state law, cannot be main-

tained under § 12 of the Act, 42 U.S.C. § 4911.

In the absence of an alternative basis in federal law, the

unavailability of § 12 warrants dismissal of this state law

claim for lack of jurisdiction because it is otherwise barred

by sovereign immunity. See United States v. Testan, 424

tive, legislative, and judicial branches of the Federal Govern-

ment—

(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 require-

ments respecting control and abatement of environmental noise

to the same extent that any person is subject to such require-

ments.

33a

U.S. 392 (1976); Larson v. Domestic & Foreign Commerce

Corp., 337 U.S. 682 (1949). We recognize, however, that

§ 4, to the extent it subjects every federal agency to state

noise control requirements, arguably permits suit against

an officer of a federal agency for a violation of those re-

quiremenis.*? If § 4 requires the Navy to comply with

Puerto Rico’s criminal nuisance statute, this responsibility

may be enforceable by an implied cause of action under

§ 4.33 We reach the latter question, however, only if we

2 The doctrine of sovereign immunity bars suit against a federal

agency eo nomine in the absence of an express congressional waiver.

See United States v. Testan, 424 U.S. 392 (1976); United States v.

King, 395 U.S. 1 (1969); Commonwealth of Massachusetts v. United

States Veterans Administration, 541 F.2d 119 (1st Cir. 1976). In con-

trast, a federal officer is subject to suit despite the lack of express leg-

islative waiver if that officer has acted outside the legal limitations on

his authority. Larson v. Domestic & Foreign Commerce Corp., 337

U.S. 682, 689 (1949). The federal mandate provided in 42 U.S.C.

§ 4903(b) constitutes such a limitation. See Westinghouse Flec. Corp.

v. Schlesinger, 542 F.2d 1190, 1214 (4th Cir. 1976), cert. denied, 431

U.S. 924 (1977).

33 A determination of whether Puerto Rico’s nuisance statute consti-

tutes a requirement under § 4 will aiso determine whether the district

court had subject matter jurisdiction over this claim. This question of

jurisdiction should be resolved prior to a decision of whether Puerto

Rico has stated a claim upon which relief can be granted. With respect

to the latter issue, we observe only that implication of a cause of action

is plausible. Although no court has previously decided whether § 12

exclusively defines the available causes of action under the Act, sever-

al courts of appeals have considered, and disagreed, about the implica-

tion of a cause of action in an analogous statutory context. Both the

Clean Air Act and the Federal Water Pollution Control Act (FWPCA)

contain citizen suit provisions quite similar to § 12. See 42 U.S.C.

§ 7604; 33 U.S.C. § 1365. The Courts of Appeals for the Second, Third

and District of Columbia Circuits have held that 33 U.S.C. § 1365 does

not preclude, inter alia, implication of a cause of action under different

substantive provisions of the FWPCA. National Sea Clammers Ass’n

v. City of New York, 616 F.2d 1222, 1228-31 (3d Cir.), cert. granted,

49 U.S.L.W. 3281 (Oct. 14, 1980) (No. 79-1760); Natural Resources

Defense Council, Inc. v. Callaway, 524 F.2d 79, 83-84 (2d Cir. 1975);

Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692,

698-703 (D.C. Cir. 1974). The Seventh Circuit has rejected this conclu-

sion with respect to the Clean Air Act. City of Highland Park v.

Train, 519 F. 2d 681, 690-93 (7th Cir. 1975). cert. denied, 424 U.S. 927

34a

first determine that Puerto Rico’s nuisance statute estab-

lishes “requirements” that would trigger the application of

§ 4.

The key issue, therefore, is the definition of “require-

ments.” As used in § 4 of the Noise Control Act, the term

stands unexplicated by Congress or the courts. But the

model from which § 4 was drawn,“ section 118 of the Clean

Air Act (currently codified at 42 U.S.C. § 7604), has re-

ceived intense scrutiny. Judicial interpretation of the term

“requirement” as used in § 118, and Congress’ response to

that interpretation, sheds considerable light on the defini-

tion of “requirements” as used in & 4.55

Section 118 of the Clean Air Act underwent its most im-

portant dissection at the hands of the Supreme Court in

Hancock v. Train, 426 U.S. 163 (1976). Two steps in the

(1976). In a case involving the FWPCA, this court expressly reserved

decision of the question. Commonwealth of Massachusetts v. United

States Veterans Administration. 541 F.2d 119, 122-23 & n.4 (Ist Cir.

1976).

Although the legislative history of § 4 does not identify § 118 as

the prototype of § 4, there is a close similarity in the language of the

two provisions. And the legislative history does establish expressly the

overall importance of the Clean Air Act as a model for the drafters of

the Noise Control Act. See S. Rep. No. 1160, 92d Cong., 2d Sess., re-

printed in 11972] U.S. Code Cong. & Ad. News 4658, 4661, 4667.

35 Section 313 of the Federal Water Pollution Control Act, 33 U.S.C.

§ 1323, also tracks the language of § 118 and has been similarly con-

strued. See Environmental Protection Agency v. California ex rel

State Water Resources Board, 426 U.S. 200 (1976).

36 Congress legislatively reversed the actual holding of Hancock

with the enactment of the Clean Air Act Amendments of 1977, Pub. L.

No. 95-95, 91 Stat. 685. See H.R. 6161, 95th Cong., Ist Sess. 12, re-

printed in [1977] U.S. Code Cong. & Ad. News 1089-90. Neither the

amendments nor the committee reports undermine that part of the

Court’s reasoning upon which we rely. The companion case to

Hancock, Environmental Protection Agency v. California ex rel State

Water Resources Board. 426 U.S. 200 (1976), suffered like treatement

with the enactment of the Clean Water Act of 1977, Pub. L. No.

95-217, § 60, 91 Stat. 1597, 1598. See S. Rep. No. 370, 95th Cong., Ist

Sess. 67, reprinted in [1977] U.S. Code Cong. & Ad. News 4392. The

apparent purpose of these amendments was to ensure the enforceabili-

35a

Court’s analysis are particularly apposite to the question

before us. First, the Court’s reading of § 118’s legislative

history disclosed that the various preliminary drafts and

the cummittee reports used “requirements” interchange-

ably with “emission requirements” and “emission stand-

ards.” Id. at 188-89 & n.2. Congress apparently under-

stood “requirements” to refer to standards specifying the

permissible emission levels for various point sources and

pollutants.*? Though hardly conclusive, the court’s observa-

tion presents some evidence of the legislative use of the

term in the pollution control context, and particularly in the

drafting of the prototype for § 4.

The second step in Hancock pertinent to our inquiry

rested on the Court’s recognition of the close relationship

between § 118 and § 304, the citizen suit provision of the

Clean Air Act. 42 U.S.C. § 7604. “§ 118 establishes the

duty of federal installations to comply with state ‘require-

ments,’ and § 304 provides the means of enforcing that

duty in federal court.” 426 at 196. Section 304 restricts the

area subject to enforcement by suit to emission limitations

or standards, standards of performance, and compliance

schedules. The Court concluded that the scope of the § 304

enforcement power defined the scope of the § 118 duties

because “it seems most unlikely that in providing that a

State might bring suit in district court to enforce the duties

of federal installations under § 118, the Congress would not

make all those duties enforceable. .. .” Jd. at 197.

We recognize a similar relationship between the “re-

quirements” of § 4 and those of § 12 of the Noise Control

ty of the applicable substantive control requirements. We find no evi-

dence that the amendments were intended to expand the category of

applicable substantive requirements.

87 The Senate Committee report that accompanied the final draft of

the Noise Control Act offers some evidence of a similar understanding

with respect to the control of noise. See S. Rep. No. 1160, 92nd cong.,

2d Sess., reprinted in [1972] U.S. Cong. & Ad. News 4655. In particu-

lar, the Committee concluded that the federal noise control require-

ments that would be enforceable under § 12 should be “technologically-

based standards” rather than the more open ended standard of the

“public health and welfare,” Jd. at 4659.

36a

Act. The primary objective in our attempt to clarify the

term “requirements” is to ascertain Congress’ intent and

§ 12 contains the sole legislative definition of that term in

the Act. More importantly, that definition occurs in the

provision for private enforcement of the Act. Section 12,

unlike § 304 of the Clean Air Act, does not allow for suit by

a state to enforce a state pollution control requirement.

Thus, unlike the scheme of the Clean Air Act, § 12 does not

define specifically which state requirements are incorpora-

ted in § 4 But it does permit a state to bring suit against a

federal agency for violation of certain federal requirements.

Considered together, the federal requirements enforceable

under § 12 are the best evidence of the type of noise con-

trol requirement that Congress intended to be enforceable

by suit against a federal agency.

Section 12 authorizes suit by a state to enforce “any noise

control requirement,” as defined in subsection (f). 42

U.S.C. § 4911(a). That definition in turn refers to several

provisions of the Act which provide for (a) standards, rules

or regulations controlling the noise emissions of motor car-

riers, railroads and aircraft, id. §§ 4916, 4917; 49 U.S.C.

§ 1431, (b) labelling regulations, 42 U.S.C. § 4907, and (e)

noise emission standards applicable to specified domestic and

imported products, id. §§ 4905, 4908. From these various

provisions of the Act we can abstract the type of legal con-

trol contemplated by the statutory term “requirement.”

The appointed agency establishes a standard that sets

forth, specifically, the allowable intensity, duration and

character of sounds from a certain type of source, and

then measures the noise emissions of such sources against

that standard. See 40 C.F.R. Parts 201-205. This type of

control relies on relatively precise standards capable of uni-

form application to similar sources of sound. We conclude

that when Congress used the term “requirements” in the

Noise Control Act, it was in reference to regulations of this

type.*®

38 See 42 U.S.C. § 4902(11) (definition of environmental noise).

Puerto Rico relies on a statement in the Senate Committee’s re-

port that the Noise Control Act does not affect the authority of the

37a

The final question is whether Puerto Rico's criminal nui-

sance statute embodies the kind of “requirements” with

which the Navy must comply pursuant to § 4. The statute

broadly proscribes as a public nuisance:

Anything which is injurious to health, or is indecent or

offensive to the senses, or is an obstruction to 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.

P. R. Laws Ann. tit. 33, § 1365. Although the criminal

nuisance statute has not yet been subjected to judicial seru-

tiny, the Supreme Court of Puerto Rico has interpreted the

similarly worded civil nuisance statute.“ It perceived as

the essential purpose of that statute the maintenance of a

balance between the defendant’s right to the free use of his

property and the rights of others to the comfortable enjoy-

ment of life or property: To strike that balance requires a

case by ease determination of the reasonableness of a de-

fendant’s activity. See Cusiane Sales v. Lozada Torres, 91

P. R. R. 473, 477-78, 482 (1964); Arcelay v. Sanchez, 77

P. R. R. 782, 790 (1955). This form of decisionmaking, pecu-

liarly sensitive to the facts of a single case, permits no role

for the type of specific, uniform standard characteristic of

states “to reach or maintain levels of environmental noise . . . through

{inter alia) nuisance laws.” S. Rep. 1160, 92d Cong., 2d Sess., re-

printed in U.S. Code Cong. & Ad News 4660, But this statement is not

part of the Committee’s commentary on §§ 4 or 12, Rather, it ad-

dresses to what extent § 6 (42 U.S.C. § 4905), and regulations promul-

gated thereunder, would preempt state law as applied to products in

the hands of the user. Id. Section 6 authorizes the adoption of noise

emission standards to be applied to products at the manufacturing

stage. Establishing that state law is not preempted in this particular

context does not answer the distinct question of to what extent Con-

gress intended to waive the federal government's sovereign immunity.

Neither § 6 nor the Committee's commentary on § 6 addresses this

question.

4 P. R. Laws Ann. tit. 32, § 2761 states: “Anything which is injuri-

ous to health, or indecent, or offensive to the senses, or an obstruction

to the free use of property, so as to interfere with the comfortable en-

joyment of life or property, is a nuisance, . . .”

38a

“requirements,” as described above. Thus, we conclude

that Puerto Rico’s criminal nuisance statute falls outside

§ 4’s incorporation of “State ... requirements respecting

control and abatement of environmental noise... .” 42

U.S.C. § 4903(b).

Our conclusion renders unnecessary a decision as to

whether a private cause of action should be implied to en-

force § 4’s mandate. We see no other tenable ground upon

which the district court has jurisdiction over the state nui-

sance claim. Therefore, we vacate the district court’s deci-

sion and remand for dismissal for lack of jurisdiction.

ENDANGERED OR THREATENED SPECIES

Of the various animal species living in and around

Vieques, four have been designated by the United States

Fish and Wildlife Service as “endangered”*! (of which

three are in issue) and two others have been determined to

be threatened,” 4? in accordance with the criteria of § 4 of

the Endangered Species Act (the Act), as amended, 16

U.S.C. § 1533. See 50 C. F. R. § 17.11. The Commonwealth

alleged that the Navy's training operations directly imperil

these species ar cause significant adverse changes in their

habitats, contra / to the requirements of § 7 of the Act, id.

§ 1536, and the prohibition of § 9, id. § 1538. The district

court found that the Navy’s activities do not adversely af-

fect the five species and in fact inadvertently create a ref-

uge for these species, protecting them from local hunters.

On appeal, the Commonwealth challenges the court's find-

The term ‘endangered species’ means any species which is in dan-

ger of extinction throughout all or a significant portion of its range.” 16

U.S.C, § 15326). The endangered species on Vieques include the

brown pelican, the manatee, the leatherback turtle and the hawksbill

turtle. 50 C. F. R. § 17.11. The effects of the Navy's activities on the

manatee are not at issue in this appeal.

The term ‘threatened species’ means any species which is likely

to become an endangered species within the foreseeable future

throughout all or a significant portion of its range.” 16 U.S.C.

§ 1532(20). The threatened species on Vieques include the loggerhead

turtle and the green turtle. 50 C. F. R. § 17.11.

39a

ings and urges that the district court misconstrued the re-

quirements of § 7(a). Because we conclude that the Navy

has not fulfilled its obligations under § 7(a)(2), we vacate

the district court’s decision and remand for further consid-

eration.

Section 4 of the Endangered Species Act directs the Sec-

retary of the Interior and the Secretary of Commerce to de-

termine which, if any, species are endangered or threat-

ened, and to identify the critical habitat of the species so

designated. 16 U.S.C. § 1533. As part of the Act’s

comprehensive design to protect such designated species,

§ 7(a)(2) provides:

Each Federal agency shall, in consultation with and

with the assistance of the Secretary, insure that any

action authorized, funded, or carried out by such agen-

cy ... is not likely to jeopardize the continued exist-

ence of any endangered species or threatened species

or result in the destruction or adverse modification of

[the critical] habitat of such species.

Id. § 1586(a)(2).4* Regulations promulgated jointly by the

United States Fish and Wildlife Service and the National

Marine Fisheries Service define the duty of a federal agen-

cy under § 7 to consult with those Services. 50 C. F. R. §

402.04. Every agency is required to review its programs

and all other activities to determine whether any of its ac-

tions possibly affect endangered or threatened species or

their habitats. Id. § 402.04(a)(1). Once an agency has

discovered that some action for which it is responsible

crosses the low threshold of possible effect, it must consult

formally with the Fish and Wildlife Service or the Marine

Fisheries Service. Jd. § 402.04(a)(3). See id. § 402.01.

43 “Secretary,” as used in § 7 and the other provisions of the Act,

refers to the Secretary of Interior or the Secretary of Commerce, de-

pending on the particular species at issue. Although these two officials

formally share the responsibilities created by the Act, their duties are

actually performed by two departmental agencies—the United States

Fish and Wildlife Service (Interior) and the National Marine Fisheries

Service (Commerce). For the remainder of this opinion, we refer to the

Service rather than the Secretary.

40a

Formal consultation requires that the agency request a “bi-

ological opinion” from the appropriate Service, and supple-

ment the request with the available pertinent information.

Id. In response, the Service issues a written statement that

sets forth (1) its opinion on whether the agency is in viola-

tion of § 7(a)(2), (2) the information upon which it based its

opinion, and (3) “recommendations for modifications in the

identified activity program which would enhance the con-

servation and protection of a listed species or its critical

habitat.” Id. § 402.04(e)(4). See 16 U.S.C. § 1586(b).“

As of the date that the district court entered judgment,

the Navy had failed to obtain a biological opinion with re-

spect to the impact of its Vieques operations on the five

listed species. By ignoring the statutory mandate, the

Navy has sidestepped the administrative process that Con-

gress expected would resolve many of the conflicts between

agency action and the requirements of § 7. If the Navy

had sought consultation within a reasonable period follow-

ing the adoption of the Act, the burden of litigating Puerto

Rico’s claim might have been avoided. The Navy’s nonfea-

sance also has denied the district court potentially valuable

evidence. In considering the 1979 amendments to the Act,

Congress found, with approval, that courts have accorded

substantial weight to a sound biological opinion in

determining an agency’s compliance with 7(a)(2).“ Finally,

Although the regulations, promulgated on January 4, 1978, made

optional the offering of recommendations. Congress has since man-

dated inclusion of such recommendations in a biological opinion, Pub.

L. No, 95-632, 92 Stat. 3751 (1978). See H. Conf. Rep. 1804, 95th

Cong., 2d Sess. 18, reprinted in [1978] U.S. Code Cong. & Ad. News

9486; H.R. Rep. No. 1625, 95th Cong., 2d Sess, 11/12, reprinted in

[1978] U.S. Code Cong. & Ad. News 9461-2.

“5 See H.R. Rep. No. 167, 96th Cong., Ist Sess. 5, reprinted in

(1979) U.S. Code Cong. & Ad. News 4765; H. Conf. Rep. No. 1804,

95th Cong., 2d Sess. 18, reprinted in [1978] U.S. Code Cong. & Ad.

News 9486; H.R. Rep. No. 1625, 95th Cong., 2d Sess. 11, reprinted in

[1978] U.S. Code Cong. & Ad. News 9461.

% H. Conf. Rep. No. 697, 96th Cong., Ist Sess 12, reprinted in

[1979] U.S. Code Cong. & Ad. News 4780. Compare National Wildlife

Federation v. Coleman, 529 F. 2d 359, 372/75 (5th Cir. cert. denied sub

41a

biological opinions not only address possible violations of

7(a)(2), but more generally recommend conservation meas-

ures designed to mitigate or remove all adverse effects on

an endangered or threatened species. These recommenda-

tions pertain to the statutory responsibility of agencies to

carry out “programs for the conservation of endangered

species or threatened species... 16 U.S.C.

§ 1536(a)(1).47 Although the district court apparently found

that the refugee effect created by the Navy’s activities

satisfied this obligation, see 478 F. Supp. at 689-90, a bio-

logical opinion could alter this conclusion.

Since entry of judgment, the Navy has received a biolog-

ical opinion from the United States Fish and Wildlife Serv-

ice. But that opinion is not part of the record and we there-

fore disregard it in our decision of this case. See

Construction Agregates Corp. v. Rivera de Vicenty, (1st

Cir. 1978); Rosen v. Lawson-Hemphill, Inc., 549 F.2d 205,

206 (1st Cir. 1976). To do otherwise would be contrary to

Federal Rule of Appellate Procedure 10(a) and would pre-

clude the district court from considering evidence that both

this court, and Congress, deem essential to a complete deci-

sion of the issue. Moreover, the Commonwealth should

have the opportunity to challenge the adequacy of the bio-

logical opinion, both in terms of its factual basis and its ree—

ommendations.

The Commonwealth also challenges the Navy’s training

activities under § 9 of the Endangered Species Act, 16

U.S.C. § 1538. Section 9 prohibits any person, including an

nom. Boteler v. National Wildlife Federation, 429 U.S. 979 (1976)

with Sierra Club v. Froehlke, 534 F.2d 1289, 1301-05 (8th Cir. 1976).

Cf. North Slope Borough v. Andrus, 486 F. Supp. 332, 351-54

(D.D.C.), vacated on other grounds sub nom. National Wildlife Feder-

ation v. Andrus, No, 80-1148, et al, (D.C. Cir. Sept., 1980) (evalua-

tion of a biological opinion fn light of the statutory purposes).

47 The statute defines “conservation” to mean “the use of all meth-

ods and procedures which are necessary to bring any endangered spe-

cies or threatened species to the point at which the measures provided

pursuant to this chapter are no longer necessary.” 16 U.S.C.

§ 1532(3).

42a

officer or department of the federal government, from tak-

ing an endangered species. Id. § 1538(a)(1)(B).** Taking is

defined by the statute as “to harass, harm, pursue, hunt,

shoot, wound, kill, trap, capture, or collect, or to attempt

to engage in any such conduct.” Id. 1532(19). As inter-

preted by the Fish and Wildlife Service, harassment in-

cludes a significant disruption of normal behavioral pat-

terns likely to cause injury, and harm includes significant

disruption of essential behavioral patterns or environmen-

tal degradation, 50 C.F.R. § 17.3. So far as can be discov-

ered from the briefs and the record, we understand Puerto

Rico’s claim under § 9 to rest on the proscription of harass-

ment and harm as those terms are defined by the Fish and

Wildlife Service. Because of the close similarity between

this particular prohibition and the requirements of § 7(a),

we conclude that the § 9 claim should be remanded along

with the § 7 claim. The district court should have the bene-

fit of the biological opinion in determining whether the

Navy’s operations respect the proscription of § 9.

We vacate the district court’s decision with respect to the

Endangered Species Act and remand for further considera-

tion in light of this opinion.

Preservation of Historic and Prehistoric Sites

Puerto Rico alleged in its complaint that the Navy’s com-

plete failure to identify and protect all the sites on Navy

property that are of historical or archeological significance

violated § 106 of the National Historic Preservation Act (16

U.S.C. § 470f), Executive Order 11593 and regulations

4® Section 9 provides in pertinent part:

(a)) Except as provided in sections 1535(g)(2) and 1539 of this

title, with respect to any endangered species of fish or wildlife

listed pursuant to section 1533 of this title it is unlawful for any

person subject to the jurisdiction of the United States to—

(B) take any such species within the United States or the

territorial sea of the United States.]

16 U.S.C. § 1538(a)(1)(B).

43a

issued by the Advisory Council on Historic Preservation.“

After Puerto Rico had filed its complaint, the Navy under-

took a combined sampling and predictive survey of the is-

land which disclosed the existence of a number of sites on

Navy property at least some of which may be eligible for in-

clusion in the National Register of Historic Places. The dis-

trict court concluded that this survey satisfied the Navy’s

obligation to locate sites, 478 F. Supp. at 693. The court

also ruled, however, that the Navy had violated the Execu-

tive Order by failing either to nominate to the Secretary of

the Interior those newly discovered sites that may be eligi-

ble for listing in the Register or to seek the Secretary’s

opinion on their eligibility, Jd. at 694. The court ordered

the Navy to correct this omission and to safeguard the po-

tentially eligible sites. Id. at 708.

On appeal, neither party challenges the district court’s

ruling with respect to determining the eligibility of known

sites. But the Commonwealth does question the court’s do-

cision on the adequacy of the Navy’s survey. According to

the Commonwealth, testimony by the Navy’s own experts

establishes that the survey did not locate all the sites on

the island, as is required by the Act, the Executive Order,

and the Advisory Council’s regulations. We agree.

Section 106 of the National Historic Preservation Act, as

amended, imposes a basic responsibility on “the head of any

federal agency” to “take into account the effect” of a pro-

posed federal undertaking “on any district, site, building,

structure or object that is included in or eligible for inclu-

sion in the National Register.” 16 U.S.C. § 470f. With the

promulgation of Executive Order 11593, the President sub-

stantially expanded the mandate of § 106. The order re-

quires that every federal agency.

(a) no later than July 1, 1973, with the advice of the

Secretary of the Interior, and in cooperation with the

4% The Advisory Council on Historic Preservation is an independent

agency, 16 U.S.C. § 470i, authorized to “promulgate such rules and

regulations as it deems necessary to govern the implementation of sec-

tion 470f. . .” Id. § 470s.

44a

liaison officer for historic preservation for the State or

territory involved, locate, inventory and nominate to

the Secretary of the Interior all sites, buildings, dis-

tricts and objects under their jurisdiction or control

that appear to qualify for listing on the National Reg-

ister of Historic Places.

(b) exercise caution during the interim period until in-

ventories and evaluations required by subsection (a)

are completed to assure that any federally owned

property that might qualify for nomination is not inad-

vertently transferred, sold, demolished or substantial-

ly altered.

36 Fed. Reg. 8921 (May 13, 1971), reprinted in 16 U.S.C.

§ 470 at 28. The express obligation imposed by the Execu-

tive Order to locate “all” possibly eligible sites has been

further defined within the past two years by the Advisory

Council on Historic Preservation. See 36 C.F.R. § 800.4.

The Council’s regulations reaffirm “the responsibility of

each Federal agency to identify or cause to be identified

any National Register or eligible property . . . that may be

affected by the undertaking.” Jd. § 800.4(a). Moreover, the

regulations contemplate an active consultive role for the

“State Historic Preservation Officer” from the inception of

a federal agency’s efforts to fulfill its historic preservation

responsibilities. See id. § 800.4. Thus, the first step in sat-

isfying an agency’s obligations under the Executive Order

and the regulations is to locate, in consultation with the

state’s officer for historic preservation, “all” and “any” sites

that may be eligible for inclusion in the National Regis-

ter.5° The sole question is whether the Navy has satisfacto-

rily completed that first step.

5° Although by its terms § 106 applies only to proposed undertak-

ings, the Navy does not challenge the validity of Executive Order

11593 or the Council’s regulations as applied to current undertakings.

There is good reason for their acquiescence. Executive Order 11593 ex-

pressly derives its statutory authority not only from the National His-

toric Preservation Act but also, inter alia, the National Environmental

Policy Act, 42 U.S.C. §§ 4331 et. seq. Although NEPA refers only to

proposed major federal actions, it has been construed to apply to ongo-

ing federal activities. Jones v. Lynn, 477 F. 2d 885, 889 (Ist Cir. 1973);

45a

The Navy’ survey of Vieques, which in design encom-

passed the entire island, relied on a combination of three

methods. The island was divided into 665 squares, each of

which measured 500 by 500 meters. Ten percent of the

squares were selected randomly as samples. Another group

of samples, approximately ten percent of the squares, were

selected by randomly choosing one square and then se-

lecting every tenth square after the first one choosen. The

third method began with a search by the Navy’s archeolo-

gist of the available literature and interviews with local res-

idents having special knowledge of the island’s history. On

the basis of this inquiry, and his prior experience, he di-

rected the survey team to the squares that he predicted

were most likely to contain archeological remains. The

squares that were selected by these three methods were

then walked by members of the survey team at intervals of

100 meters. Each square was traversed in a criss-cross

fashion, the surveyor walking several times along the line

of each 100 meter point from east to west and then from

north to south.

The Navy defends its survey as a responsible and reason-

able good faith effort to locate the archaeological sites that

still exist on Vieques. According to the Navy, when it had

completed the survey it had satisfied the duty imposed by

the Executive order and the regulations to locate all sites

that may be eligible for inclusion in the National Register.

But the testimony of the archeologist responsible for the

design of the Navy’s survey belies this contention. He

testified that there remain to be located a substantial num-

ber of sites of possible archeological value. Thus, he charac-

terized the survey as preliminary and acknowledged the

need for additional work. Given the likelihood of further

discoveries, the Navy’s position flies in the face of the re-

Evironmental Defense Fund v. TVA, 468 F. 2d 1164, 1176-81 (6th Cir.

1972); see TVA v. Hill, 437 U.S. 153, 188 n.34 (1978). More generally,

the reasoning underlying this construction of NEPA supports a similar

conclusion with respect to the scope of § 106 of the National Historic

Preservation Act. See Jones v. Lynn, 477 F. 2d at 889; Environmental

Defense Fund v. TVA, 468 F.2d at 1176-81.

46a

quirement that it locate “all sites that appear to qualify for

listing on the National Register of Historic Places.” Execu-

tive Order No. 11593, 36 F.R. 8921, reprinted in 16 U.S.C.

§ 470 at 28, (emphasis added). We assume without deciding

that the survey methods adequately identified the likely lo-

cations of eligible sites. We cannot condone, however, the

Navy’s failure to gather in all the fruits of its survey.

Far from suggesting that the Navy must perform the im-

possible, we conclude only that it must follow up on the

leads produced by the survey it commissioned.5! Our con-

clusion does not require the Navy to undertake a 100% sur-

vey of Vieques. The current survey not only disclosed the

probable existence of other sites but also established the

archeological sterility of certain areas of the island: further

efforts in those areas would be fruitless. It is not possible

to ascertain from the present record which areas do require

more investigation. Once the survey results are clarified,

the district court, with the aid of the parties, should be able

to define with fair precision what additional action is re-

quired of the Navy. We assume that any proposal made by

the Navy to complete its obligation to locate all sites will be

formulated in consultation with the Commonwealth officer

responsible for historic preservation, as mandated by Exec-

utive Order 11593 and 36 C.F.C. § 800.4. Finally, although

our decision pertains solely to the Navy’s survey efforts,

the district court is not foreclosed from considering on re-

mand whether the Navy has taken sufficient measures to

51 We agree with the Commonwealth that the Navy would be well

advised to emulate the cooperation shown by the Pacific Fleet in the

survey of the Hawaiian island of Kahoolawe. See Aluli v. Brown, 437

F. Supp. 602 (D. Hawaii 1977), rev'd in part on other grounds, 602

F.2d 876 (9th Cir. 1979). This does not mean, however, that an exact

replication of the Kahoolawe survey, which will ultimately cover 100%

of the surface area of the island, is required of the Navy with respect

to Vieques. Unlike Kahoolawe, it appears very unlikely that the entire

island of Vieques would be eiigible as a single district for inclusion in

the National Register. See Aluli v. Brown, 437 F. Supp. at 610. What

impresses us about the Kahoolawe survey is the extensive cooperation

between the Navy and state officials and the good faith effort to locate

all potentially eligible sites.

47a

safeguard any sites which have been or are likely to be lo-

cated and may be eligible for inclusion in the National Reg-

ister. 52

We vacate the district court’s decision on the adequacy of

the Navy’s efforts to locate all sites of historical or archeo-

logical value, and remand for further consideration in light

of this opinion.

The Remedy

We turn finally to a review of the district court’s remedi-

al order with respect to three rulings. The court held as fol-

lows:

(1) That Defendant Navy is in violation of the Feder-

al Water Pollution Control Act, supra, by reason of its

lack of a NPDES permit to cover the occasional release

of firing of ordnance into the waters of Vieques.

(2) The Defendant Navy is in violation of Executive

Order 11593, supra, by reason of its failure to nomi-

nate to the Secretary of the Interior various sites in

Vieques that may be eligible for listing in the National

Register of Historic Places, and/or by its failure to

seek the opinion of the Secretary respecting said eligi-

bility, and

(3) That Defendant Navy is in violation of the Na-

tional Environmental Policy Act, supra. by its failure

to file an environmental impact statement in connec-

tion with its activities in and around Vieques.

52 The Navy urges that the pending Memorandum of Agreement be-

tween it and the Advisory Council obviates any further judicial scruti-

ny of its efforts to comply with the Executive Order and the regula-

tions. But such agreements relate to the mitigation of adverse effects

on sites that already have been located. See 36 C.F.R. § 800.6(b), (c).

The pending agreement would be complete only after the Navy has ful-

filled its obligation to locate all eligible sites. If an agreement has been

executed, we expect that the district court would consider it in

evaluating the adequacy of the Navy’s efforts to protect the eligible

sites.

48a

478 F. Supp at 705. The court ordered the Navy to take the

necessary steps to achieve compliance, but refused to en-

joint » Navy from continuing its training operations. Id. at

708. The Commonwealth challenges the court’s denial of its

request for a prohibitory injunction as mistakenly based on

a balancing of equities. According to the Commonwealth,

having found the Navy in violation of the NEPA, the

FWPCA, and the Executive Order, the court had no choice

but to halt the Navy’s operations until the violations were

cured. We consider this challenge as directed to each of the

three rulings.

1. The NPDES Permit Requirement

With respect to the violation of the Federal Water Pollu-

tion Control Act, we conclude that the district court erred

in undertaking a traditional balancing of the parties’

competing interests. In 7VA v. Hill, the Supreme Court

refused “to strike a balance of equities” where “Congress,

exercising its delegated powers, had decided the order of

priorities in a certain area .. .” 437 U.S. 153, 194 (1978);

see also United States v. City and County of San

Francisco, 310 U.S. 16, 30-31 (1940). Like the statutory

mandate at issue in Hill, the NPDES permit requirement

of the Federal Water Pollution Control Act embodies a con-

gressional ordering of priorities. Congress has prohibited

“the discharge of any pollutant,” 33 U.S.C. §1311(a), which

includes the Navy’s dropping of ordnance into the coastal

waters, unless a NPDES permit has been secured pursuant

to 38 U.S.C. § 1342. Whether or not the Navy's activities

in fact harm the coastal waters, it has an absolute statutory

obligation to stop any discharges of pollutants until the per-

mit procedure has been followed and the Administrator of

the Environmental Protection Agency, upon review of the

evidence, has granted a permit. Thus, regardless of the dis-

trict court’s finding that the Navy’s dropping of ordnance

caused no significant harm to the environment, it erred in

failing to consider the judiciary’s “responsibility to protect

the integrity of the . . . process mandated by Congress.

Jones v. Lynn, 477 F. 2d 885, 892 (Ist Cir. 1973); see Re-

alty Income Trust v. Eckerd, 564 F. 2d 447, 456-57 (D.C.

49a

Cir. 1977).5* Although on this record the district court did

not clearly err in its finding, the permit process “might reveal

substantial environmental consequences,” City of New

York v. United States, 337 F. Supp. 150, 160 (E. D. N. V.

1972), quoted in Realty Income Trust v. Eckerd, 564 F. 2d

at 456, that would lead the Administrator to deny the appli-

cation or grant only a limited permit. Unlike the situation

presented in Essex County Preservation Ass'n v.

Campbell, 536 F.2d 956, 960-61 (Ist Cir. 1976), where the

statutory violation was deemed “technical,” here the Navy

has utterly disregarded the statutory mandate.“ Thus, we

vacate the district court’s order on this question and re-

mand with instructions to order the Navy to take all steps

necessary to insure that no ordnance is discharged into the

coastal waters of Vieques until such time as it obtains a

NPDES permit. If this order significantly interferes with

the Navy’s preparedness, it is free to request the President

to exempt it from the NPDES requirements in the interest

of national security. See 33 U.S.C. § 1323(a).

2. Executive Order 11593

The Commonwealth offers no reason for us to alter the

district court’s order insofar as it requires the Navy to pro-

tect all sites that may be eligible for inclusion in the Nation-

al Register of Historic Places. Given the district court’s

finding that the Navy’s operations do not presently threat-

en the known sites, which is not clearly in error, it was not

58 Although Jones and Eckerd involved the procedural requirements

of the National Environmental Policy Act, we think this responsibility

holds as true with respect to the NPDES permit process. See Save Our

Sound Fisheries Ass'n v. Callaway, 387 F. Supp. 292, 299-300

(D. R. I. 1974).

Unlike the environmental impact statement requirement of the

NEPA, 33 U.S.C. § 1311(a) is not satisfied by the filing of any applica-

tion; only the granting of a NPDES permit releases a party from that

provision's prohibition. Thus, our conclusion is not altered by the fact

that the Navy has now applied for a permit.

55 Insofar as most, if not all, of the Navy's targets are land based,

we doubt that this order will significantly impair the Navy's military

preparedness,

50a

an abuse of the court’s discretion to impose a limited order

rather than a wholesale proscription of the Navy’s opera-

tions. Although, as already discussed, we have decided that

the Navy has yet to satisfy its duty under Executive Order

11598, nothing in the present record suggests that the

training activities as a whole endanger the additional sites

likely to be located. It is open to the district court on re-

mand to modify its order in light of further discoveries or

evidence that the Navy has failed to safeguard the poten-

tially eligible sites.

3. The Environmental Impact Statement

Since entry of the district court’s judgment, the Navy

has prepared a final environmental impact statement (EIS),

as required by the court’s order and 42 U.S.C.

§ 4332(2)(C). As a result, we conclude that the issue of

whether the training operations should be halted for failure

to prepare and file and EIS is moot. Although neither party

raised this question, this court has a responsibility to con-

sider sua sponte whether an issue on appeal has been rend-

ered moot by subsequent events. See North Carolina v.

Rice, 404 U.S. 244, 245 (1971). At oral argument, counsel

for the Navy informed us that a final EIS had been pre-

pared and we assume that it has been filed in accordance

with 42 U.S.C. § 4882(2)(C). See DeFunis v. Odegaard,

416 U.S. 312, 317 (1974). Nothing would be gained by en-

joining the Navy’s operations for failure to do that which it

has done. See id. at 316. Nor is there a “ ‘reasonable expec-

tation that the wrong will be repeated.“ United States v.

W. T. Grant Co. 345 U.S. 629, 632 (1958), quoted in County

of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). Because

our conclusion pertains only to the preparation and filing of

an EIS, it does not foreclose the Commonwealth from

challenging the adequacy of the EIS or the Navy’s response

to the EIS findings. See Crowell v. Mader, 444 U.S. 505,

506 (1979). We therefore vacate the order of the district

court requiring the Navy to prepare and file an environ-

mental impact statement with instructions to dismiss the

claim as moot.

5la

SUMMARY

We affirm the district court’s findings and rulings, as

modified by our opinion, except as follows:

(a) the decision with respect to § 15 of the Rivers

and Harbors Act of 1899, 33 U.S.C. § 409, is vacated

and remanded for dismissal of the claim for lack of ju-

risdiction;

(b) the decision with respect to § 4 of the Noise Con-

trol Act, 42 U.S.C. § 4903(a), and Puerto Rico’s erimi-

nal nuisance statute, P.R. Laws Ann. tit. 33, § 1365,

is vacated and remanded for dismissal of the claim for

lack of jurisdiction;

(c) the findings and ruling with respect to § 7(a) and

§ 9 of the Endangered Species Act, 16 U.S.C.

$§ 1536(a), 1538, are vacated and remanded for fur-

ther consideration;

(d) the ruling with respect to Executive Order 11593

and 36 C.F.R. § 800.4 is vacated and remanded for

further consideration;

(e) the order with respect to the NPDES permit re-

uirement is vacated and remanded with instructions

or further proceedings in accordance with this opinion

is filed this day.

(f) the order with respect the preparation and filing

of an environmental impact statement pursuant to 42

U.S.C. § 4832(2)(C) is vacated and remanded with di-

rections to dismiss.

Affirmed in part, vacated in part and remanded in part.

52a

Appendix B

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 79-1626.

CARLOS ROMERO-BARCELO, ETC., ET AL.,

PLAINTIFFS, APPELLANTS,

CARLOS ZENON, ET AL.,

PLAINTIFFS-INTERVENORS, APPELLEES,

*.

HAROLD BROWN, ET AL.,

DEFENDANTS, APPELLEES.

Before CoFFIN, Chief Judge,

CAMPBELL and BOWNES, Circuit Judges.

ORDER OF COURT

Entered February 27, 1981

The petition for rehearing filed by Carlos Romero-

Barcelo, et al and the petition for rehearing filed by the

Secretary of Defense are hereby denied.

By the Court:

/s/ DANA H. GALLUP

Clerk.

53a

Appendix C

U.S. DISTRICT COURT

DISTRICT OF PUERTO RICO

CARLOS ROMERO-BARCELO, Governor of Puerto

Rico, et al., CARLOS ZENON, et al., Plaintiffs-

Intervenors, v. HAROLD BROWN, et al., LUIS

MEDINA, et al., Plaintiffs, FUNDACION

ARQUEOLOGICA, ANTROPOLOGICA E HISTORICA

DE PUERTO RICO, Plaintiff-Intervenor, v. HAROLD

BROWN, et al., Defendants, Nos. 78-323 and 78-377, Sep-

tember 17, 1979

Full Text of Opinion

DECISION AND ORDER

TORRUELLA, J.

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 multifar-

ious as the issues which they raise.

In Civil Number 78-323 the Plaintiffs‘ are Carlos Rome-

ro Barcelé, who is the Governor of the Commonwealth of

Puerto Rico, Radamés Tirado Guevara, the Mayor of

Vieques, and the Environmental Quality Board, an admin-

istrative agency of the Commonwealth charged by law with

protection of the environment in Puerrto Rico.? The De-

fendants in that suit are Harold Brown, Secretary of De-

1 These Plaintiffs will hereinafter be collectively referred to as

“Plaintiffs Romero-Barcelé ei al.”

2 See 12 L.P.R.A. 1131; Connomwealth of Puerto Rico v. S.S. Zoe

Colocotroni, 456 F. Supp. 1327, 1337 [11 ERC 2107] (D.P.R., 1978).

54a

fense 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 At-

lantic Fleet, and Louis H. Wilson, Commandant of the Ma-

rine Corps.* After the commencement of this suit on March

1, 1978, additional Plaintiffs sought and received permis-

sion to intervene. They were Carlos A. Zenén, Mario Félix,

Mariano Rivera Guishard, Alicio Ayala Soto, Francisco

Medina Meléndez, Esmeraldo Meléndez and Santos Rios,

fishermen who are resident of Vieques, and the “Asociacién

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

fishermen.*

The Plaintiffs in Civil Number 78-377, which was filed on

March 8, 1978, are Luis Medina, Jesus Medina, Mario

Antolino Félix, Cristébal Medina, Severino Ventura

Cintrén, Héctor Medina, Cristébal Medina, Jr., Enrique

Garcia, Antonio Ayala Gonzalez, Angel Ventura, and Dani-

el Medina, all fishermen and/or residents of Vieques, and

Mision Industrial de Puerto Rico, Inc., an entity which is

allegedly interested in advocating environmental causes.“

Intervention was also sought and allowed in this case on be-

half of “Fundacién Arqeuolégica, Antropolégica e Historica

de Puerto Rico”, a non-profit corporation involved in re-

search and preservation of historical and prehistorical cul-

tural resources.“ The Defendants in this suit are the same

as those in Civil Number 78

This text is long and has been trimmed here. Open the source document for the complete record.