Joint Appendix — Weinberger v. Romero-Barcelo

Supreme Court brief1982

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Office - Su — Court. U.S.

FILED

No. 80-1990 NOV 20 198)

ALEXANDER L. STEVAS,

CLERX

In the Supreme Court of the United States

OCTOBER TERM, 1981

CASPAR WEINBERGER, ET AL.,

Petitioners,

CARLOS RoMERO-BARCELO, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

JOINT APPENDIX

PETITION FOR CERTIORARI FILED, MAY 26, 1981

CERTIORARI GRANTED OCTOBER 5, 1981

TABLE OF CONTENTS

Chronological List of Relevant Docket Entries ................

ND NAA (

1 . ann... oss nsecsscsessccceccsccsncces

— —. ikteominne

— — œꝙ, .

Excerpts from Plaintiffs’ Proposed Findings of Fact.

Excerpts from Plaintiffs’ Post-trial Brief ....................

Plaintiffs’ Exhibits

CRB-3 1974 Letter from Governor to Secretary of

Navy VVT

CRB-11 1974 Memo from Deputy Chief of Naval Oper-

ations to Vice Chief of Naval Operation

CRB-38 1974 Letter from Ramage to Clifford

CRB-58 1972 Telegram re Culebra Relocation

CRB-67 1971 Memo to Secretary of the Navy, with

CRB-87 1974 Excerpt from Memo Me Corvey

CRB-100 1975 Enclosure to Notice from Commander-

in-chief, U.S. Atlantic Fleet

CRB-114 1973 Memo to Secretary of Navy ....................

CRB-116 1974 Memo to e of Defense et al from

d ͤ ͤ . TOR Oe F WMAROe er

CRB-117 1975 Memo to Wickham from Scowcraft ........

CRB-118 1972 Memo from Laird

CRB-120 1970 Letter from Nixon to Governor

CRB-123 Charts: U.S. Navy N e re

Vieques .

CRB-126 1973 Telegram from CND Washington to

CINCLANTFLT Norfolk .......

111

114

117

119

120

126

132

135

137

138

139

142

145

153

ii TABLE OF CONTENTS

Page

CRB-234 1975 Letter from Governor to Secretary of

/ alpsonsseeudboehscccerescasinbnsbbicssioosuccoes 159

CRB-243 1975 Telegram from CND Washington to

CINCLANTFLT Norfolk 168

CRB-332 1971 Letter from Governor to Secretary of

e ssstasccansonsifnasoes 172

CRB-417 Excerpts from Answers to Interrogatories— 174

CRB-419-421 Five Year Development Plans 176

Order Allowing Certior aii 186

CHRONOLOGICAL LIST OF

RELEVANT DOCKET ENTRIES

1 March 1, 1978 Complaint for declaratory and injunctive

relief, filed.

March 21, 1978 Amendment to complaint, filed.

May 17, 1978 Answer of defts. Harold Brown, Sec. of

Defense, W. Graham Claytor Jr., Sec. of the Navy, etc.,

filed.

July 18, 1978 Plff's Carlos Romero Barcelo et als mot.

for leave to file supplemental complaint filed, with memo.

in support thereof, supplemental complaint, tendered.

Aug. 17, 1978 Order at foot of plffs’ mot. for leave to file

supplemental complt.: GRANTED. (J. Torruella) s/c

Geigel, Hodges, Sec. of Justice, Berkan & Varela, U.S.

Atty Carlo, Saade.

Aug. 17, 1978 Supplemental complaint, filed.

Aug. 17, 1978 Order at foot of plffs.’ Luis Medina et als. for

leave to file amended complaint, filed on 7-24-78:

GRANTED. (J. Torruella) s/cs to Geigel, Hodges, Sec.

of Justice, Berkan & Varela, U.S. Atty., Carlo, Saade.

Aug. 29, 1978 Plff's, Carlos Romero Barcelo mot. for

amendment of complaint and memo, in support thereof,

filed. Second amendment to complaint, tendered

215 Sept. 17, 1979 Decision and Order, dtd. 9-17-79, that

the Ct. is of the opinion that under the present circum-

stances the continued use of Vieques by Deft. Navy for

naval training activities is essential to the defense of

the Nation and that enjoining of said activities is not

an appropriate relief for the correction of the cited stat-

utory violations. It is ordered that the Navy “with all

deliberate speed” file for and seek a NPDES permit for

release of firing of ordinance into the waters of Vieques;

Nominate to the Sec. of Interior sites in Vieques that

may be eligible for listing in the National Register of

Historic Places, etc., comply with provisions of 42 USCA

(1)

4332 (c). All other claims are dismissed as well as all

claims against deft. in their individual capacities and

against John Doe, Deft. A s.c. shall be held before Mag.

within 20 days for the establishment of a written time-

table for compliance with this Order, which time table

shall be subject to approval of the Ct. Clerk shall enter

Judgment accordingly, filed and entered (J. Torruella)

S/cs to U.S. Atty., G. Carlo, P. Saade, J. Berkan, W.

Geigel and J. L. Cordova.

229 Nov. 14, 1979 PIff’s notice of appeal of ct’s judgmt.

ent’d on 9-17-79, fld. S/se to Appeal Clerk

230 Nov. 19, 1979 Judgment that U.S. Navy “with all

deliberate speed” proceed to: file for and see a NPDES

permit for the release of firing ordinance into the waters

of Vieques nominate to the Sec. of the Interior sites in

Vieques that may be eligible for listing in the National

the Sec. respecting said eligibility and further take

appropriate action for the protection of any such pro-

spective sites pending decision as to their eligibility etc.

and that all other claims be and are hereby dismissed as

well as all claims against defts. in their individual capaci-

ties and against John Doe defts. fld. and ent’d (Clerk)

S/cs to J.A. Hodges, Harker, Rivlin, Geigel, G. Carlos,

Sec. of Justice, P. Saade, P. Varela and J. Berkan.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

Civil Action No. 78-323

CARLOS ROMERO BARCELO, Governor of Puerto Rico, on

his own behalf and on behalf of the Commonwealth

of Puerto Rico and THE PEOPLE OF PUERTO RICO,

and

THE COMMONWEALTH OF PUERTO Rico,

and

BOARD ON ENVIRONMENTAL QUALITY OF PUERTO RICO,

and

RADAMES TIRADO GUEVARA, Mayor, Vieques, PLAINTIFFS

HAROLD BROWN, Secretary of Defense,

and

W. GRAHAM CLAYTOR, JR., Secretary of the Navy,

and

JAMES L. HOLLOWAY, Chief of Naval Operations,

and

I. C. Kipp, IR., Commander-in-Chief, Atlantic Fleet,

and

Louis H. WILSON, Commandant,

United States Marine Corps, DEFENDANTS

COMPLAINT FOR DECLARATORY AND

INJUNCTIVE RELIEF

NATURE OF THE ACTION

1. Plaintiffs seek a declaration that certain actions of

officers of the Department of Defense (“DoD”) and the

Department of the Navy (“Navy”) and their agents that

result in ongoing and increasing significant adverse en-

vironmental effects on the island of Vieques, its sur-

rounding waters, and its people, constitute violations of

various federal and local laws. Plaintiffs also seek pre-

liminary and permanent injunctive relief requiring De-

fendants to comply fully with such laws and to cease

their illegal activities.

II.

JURISDICTION

2. The jurisdiction of this Court is invoked pursuant

to 28 U.S.C. 1331 (Federal Question); 28 U.S.C.

§ 1882 (Diversity); 28 U.S.C. § 1361 (Mandamus) ; 28

U.S.C. § 1887 (Commerce); 28 U.S.C. §§ 2201-02 (De-

claratory Judgment); 5 U.S.C. §§ 701-06 (Administra-

tive Procedure); 16 U.S.C. §470 (Historic Preserva-

tion); 16 U.S.C. § 1651 (Coastal Zone Management);

16 U.S.C. § 1540 (Endangered Species); 33 U.S.C. 5 466

(Water Pollution); 33 U.S.C. §1415 (Marine Protec-

tion) ; 42 U.S.C. § 4821 (National Environmental Policy

Act); 42 U.S.C. § 4911 (Noise); 42 U.S.C. § 6961 (Re-

source Recovery); 42 U.S.C. § 7401 (Clean Air). The

amount in controversy herein exceeds Ten Thousand Dol-

lars, exclusive of interest and costs.

8. There exists between the parties an actual contro-

versy, justiciable in nature, with respect to which Plain-

tiffs require relief by this Court.

PARTIES

4. Plaintiff Carlos Romero-Barcelé is Governor of the

Commonwealth of Puerto Rico.

5. Plaintiff the Commonwealth of Puerto Rico in-

cludes the island of Vieques.

6. Plaintiff the People of the Commonwealth of Puerto

Rico are the “citizens” of Puerto Rico within the mean-

ing of 28 USC 1332.

7. Plaintiff Radamés Tirado Guevara is the Mayor

of the island of Vieques, a Municipal Division of the

Commonwealth of Puerto Rico.

8. Plaintiff the Board on Environmental Quality is an

agency of the Commonwealth of Puerto Rico created by

legislation and empowered to protect environmental

quality.

9. Defendant Harold Brown is the United States Sec-

retary of Defense and has control and authority over

the Department of Defense including its military opera-

tions on or in the vicinity of Vieques. Defendant Brown

is sued individually and in his official capacity.

19. Defendant W. Graham Claytor, Jr., is the Sec-

retary of the Navy under the direction and control of

the Secretary of Defense and has control and authority

over all Navy operations including those on or in the

vicinity of Vieques. Defendant Claytor is sued in-

dividaully and in his official capacity.

11. Defendant James L. Holloway is the Chief of

Naval Operations under the direction and control of

the Secretary of the Navy and exercises command over

the Operating Forces of the Navy including Navy op-

erations on or in the vicinity of Vieques. Defendant

Holloway is sued individually and in his official capacity.

12. Defendant I. C. Kidd, Jr. is an Admiral, United

States Navy, and the Commander in Chief United States

Navy Atlantic Fleet and is in charge of Navy operations

on or in the vicinity of Vieques. Defendant Kidd is sued

individually and in his official capacity.

18. Defendant Louis H. Wilson is a General, United

States Marine Corps, and the Commandant of the United

States Marine Corps and is in charge of Marine Corps

operations on or in the vicinity of Vieques. Defendant

Wilson is sued individually and in his official capacity.

14. No defendant is a “citizen” of Puerto Rico, with-

in the meaning of 28 USC 1332.

IV.

VIEQUES, PUERTO RICO

15. Vieques is an island approximately ten miles off

the southeastern coast of the island of Puerto Rico. It

has over 9,000 inhabitants. The island is approximately

20 miles long and four mils wide and consists of ap-

proximately 33,000 acres of land. It has two towns,

Isabel Segunda and Esperanza.

16. The coastal areas of Vieques contain beautiful

beaches, coral reefs, mangrove swamps, and rare, en-

vironmentally fragile phosphorescent bays. The island

contains rich and varied flora and fauna, including rare

and endangered species. It has numerous birds, semi-

wild horses, and rich marine life supported by coral

reefs, mangrove swamps, marine grasses, and beach

habitats.

17. Vieques has a long and varied cultural history.

The first inhabitants were Carib Indians who came from

South America by way of the Lesser Antilles, occupying

the island on their way to Puerto Rico and beyond.

Other Indians moved to Vieques to escape the Spaniards

during the Spanish Conquest of Puerto Rico. During the

17th and 18th centuries the island was occupied by the

French, English, Danish and Spanish. The 19th century

saw a substantial increase in social and economic de-

velopment on the island. As a result of the Spanish-

American War, Vieques, along with the rest of Puerto

Rico, came under the political control of the United

States.

18. The Navy has acquired title over 70 percent of the

land on Vieques. The Defendants use the major part of

the island for weapons training, shore bombardment, air-

craft weapons firing, missile launching exercises, and

ammunition storage. The coastal waters surrounding

Vieques are also used for maneuvers, weapons training,

and amphibious operations under the control of De-

fendants.

19. Navy (which term hereinafter includes the Ma-

rine Corps) facilities and operations on Vieques are

adjacent to the inhabited areas of the island, which

areas are used for residential, educational, recreational,

religious, cultural, and commercial activities.

20. Military operations under the control of the De-

fendants are regularly conducted in coastal waters

around Vieques, including waters used for commercial

fishing and sport fishing by residents of Vieques and

of other areas. Fishing is severely limited because of

such operations. Cattle grazing, agriculture and other

activities are severely limited because of military opera-

tions on and around Vieques. Numerous cattle have been

killed by such operations.

21. Aerial bombing, target practice by Navy artil-

lery, strafing attacks by military aircraft, amphibious

landings, missile fire, ground force attacks and gunfire

and other military operations on and around Vieques

(hereinafter some times collectively referred to as “mili-

tary operations”), all under the control and authority

of Defendants, cause water pollution and irreparable

damage to the ocean waters, the coastal waters, the coral

reefs, mangrove swamps, rare phosphorescent bays,

beaches, and bluffs of Vieques and otherwise harm and

endanger the natural, historical and archeological re-

sources of Vieques, the coastal zone and the ocean around

Vieques.

22. The residents of Vieques, other citizens of Puerto

Rico, tourists and others who visit Vieques or its vi-

cinity, are exposed to loud, raucous, excessive and of-

fensive noises and to offensive air pollutants caused by

jet aircraft flights, bombing maneuvers, helicopter sorties,

aerial strafing, rocket fire, shelling, missile launchings,

demolition operations, mortar fire, tank and anti-tank

fire, and other gunfire under the control of Defendants.

Said noises interfere with human speech, sleep, and

other normal and reasonable activities of the residents,

inhabitants and vistors of Vieques and others, create

shock waves and are destructive of the property and

comfort, enjoyment and health of said persons. Said

noise and air pollution deprive Plaintiffs and the resi-

dents of Vieques of the full, normal and reasonable en-

joyment, use and value of their property.

23. Military activities and operations on and around

Vieques have imposed restrictions on and contributed to

the increased cost of a safe and plentiful drinking water

supply for the residents of the island.

24. Military activities and operations on and around

Vieques impose severe restrictions on and unreasonably

interfere with the use and development of the island

and are thereby destructive of the economic, social and

cultural well-being and progress of the residents of

Vieques.

25. Artillery target practice, aerial bombings and

strafing operations, missile fire and gunfire and other

military operations under the control of Defendants on

and around Vieques pose a significant hazard of im-

mediate injury to the citizens of Puerto Rico and others

who reside, work, visit or otherwise frequent Vieques

or the water : djacent to it and pose long-term insidious

risks to human safety because of the accumulation of

hidden unexploded ordnance and because of long-term

physical and psychological effects.

26. Military activities and operations under the con-

trol of Defendants on and around Vieques adversely

affect the health, safety and welfare of the citizens of

Puerto Rico and others who reside, work, visit or other-

wise frequent Vieques or the waters adjacent to it.

27. Military activities and operations under the con-

trol of Defendants on and around Vieques are highly

controversial among residents of Vieques, other citizens

of Puerto Rico and others because of environmental

aspects.

FIRST CLAIM FOR RELIEF

Defendants Have Failed to Prepare Adequate, De-

tailed Environmental Impact Statements With Re-

spect to Military Activities and Operations on

Vieques as Required by the National Environmental

Policy Act

28. Plaintiffs reallege and incorporate by reference

herein preceding paragraphs 1 through 27 inclusive.

29. Section 102 (2) (C) of the National Environmental

Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4332 (2) (C),

directs that all agencies of the Federal government shall,

to the fullest extent possible:

“(C) Include in every recommendation or report on

proposals for legislation and other major Fed-

eral actions significantly affecting the quality

of the human environment, a detailed state-

ment by the responsible official on—

(i)

(ii)

(iii)

(iv)

(v)

The environmental impact of the proposed

action,

Any adverse environmental effects which

cannot be avoided should the proposal be

implemented,

Alternatives to the proposed action,

The relationship between local short-term

uses of man’s environment and the main-

tenance and enhancement of long-term

productivity, and

Any irreversible and irretrievable commit-

ments of resources which would be in-

volved in the proposed action should it be

implemented.

80. Section 102(2)(C) and all other provisions of

NEPA became effective on January 1, 1970.

31. Guidelines issued by the Council on Environmental

Quality, 40 C.F.R. Part 1500 (“CEQ Guidelines”), Reg-

ulations adopted by the Department of Defense, 32

C.F.R. Part 214 (“DoD Regulations”), and Chief of

Naval Operations Instructions 6240.2B (“Navy Instruc-

tions”) apply to Defendants.

82. CEQ Guidelines require: (a) that each federal

agency make a detailed assessment of the potential en-

vironmental effects of any proposed action and file en-

vironmental impact statements for action sincluding “re-

quests for appropriations” that may significantly affect

the quality of the human environment (40 C.F.R.

§§ 1500.2, 1500.5), and (b) that the statutory clause

“major Federal actions significantly affecting the quality

of the human environment” is to

“be construed by agencies with a view to the over-

all, cumulative impact of the action proposed, related

Federal actions and projects in the area, and fur-

ther actions contemplated. Such actions may be

localized in their impact, but if there is potential

that the environment may be significantly affected,

the statement is to be prepared. Proposed major ac-

tions, the environmental impact of which is likely

to be highly controversial, should be covered in all

cases.” (Emphasis added.) (40 C.F.R. § 1500.6 (a).)

33. DoD Regulations require that

(a) DoD Components shall

“(1) Assess at the earliest practical stage in

the planning process and in all instances

prior to the first significant point of

decision, the environmental consequences

of proposed actions.

(2) Review those continuing actions in-

itiated prior to enactment of Pub. L.

(b)

(e)

91-190 for which the environmental con-

sequences have not been assessed and

ensure that any of the remaining ac-

tions are consistent with the provisions

of this Part.” (32 C.F.R. §§ 214.3(b)

(1), (2).)

“DoD Components shall insure that a decision

is not made until the environmental conse-

quences of the decision have been assessed.

If the assessment indicates that the decision

will either affect the environment on a large

geographical scale or have a serious environ-

mental effect in a more restricted geographical

area, the proposed action shall be consid-

ered a Major Action Significantly Affecting

the Quality of the Human Environment

(MASAQHE), and the decision shall be de-

ferred until Federal agencies possessing spe-

cial expertise or persons affected by the en-

vironmental effects of the decision have had

an opportunity to present their views.” (82

C.F.R. § 214.7(b).) (Emphasis added.)

An example of an action that should be

classified as a MASAQHE because of a local-

ized effect is an extremely noisy activity to be

conducted by a DoD Component near a resi-

dential area, where the resulting noise might

seriously affect the comfort of residents of the

area over an extended period. In keeping with

the intent of NEPA, no decision should be

made to take any actions until those residents

have been given an opportunity to present their

views and their views have been carefully

considered.” (32 C.F.R. § 214.7 (b) (3).)

(Emphasis added.)

“Certain types of actions require close en-

vironmental scrutiny because of the possi-

bility that they may either affect the quality

of the environment or create environmental

controversy. It may be desirable in such cases

to have a complete presentation of the en-

vironmental aspects of the proposed action

available for any interested party. For these

reasons, consideration shall be given to docu-

menting the environmental effect of the

following types of actions in writing:” (Em-

phasis added.) (32 C.F.R. § 214.7(d).)

“Production, storage, transportation, test-

ing or disposal of lethal chemical muni-

tions, pesticides, herbicides and con-

tainers.” (82 C.F.R. § 214.7(d) (6).)

“Mission changes and troop developments

which precipitate long-term population

increases or decreases in any area, with

special attention to the secondary impacts

which may cause indirect environmental

impact.” (32 C. F. R. § 214.7(d) (7).)

“Constructing or installing fences or other

barriers that might prevent migration or

free movement of wildlife.” (32 C.F.R.

§ 214.7 (d) (9).)

“Exercises on or off Federal property,

where significant environmental damage

might occur regardless of unit sizes.” (32

C.F.R. § 214.7(d) (14).)

“Opening areas that were previously

closed to the public or closing or limiting

of areas that previously were open to

public use, such as roads or recreational

areas.” (32 C.F.R. § 214.7(d) (15).)

“Any action which because of real, poten-

tial or purported adverse environmental

consequences, is a subject of controversy

among people who will be affected by the

action, or which, although not the subject

of controversy, is likely to create con-

troversy when the proposed action be-

comes known by the public.” (Emphasis

added.) (32 C.F.R. § 214.7 (d) (21).)

(e) “Even though a written assessment supports

the conclusion that an action is not a

MASAQHE, an environmental impact state-

ment is to be written on a proposed action

which is highly controversial because of en-

vironmental aspects. The environmental state-

ment should be based on the information con-

tained in the assessment.” (Emphasis added.)

(32 C.F.R. § 214.7 (e).)

(f) “For those [budget] items which are identi-

fied as major actions having a significant

effect on the environment, or which are con-

troversial, an environmental impact statement

shall be prepared which will accompany the

[annual] budget request.” (Emphasis added.)

(32 C. F. R. § 214.6 (d) (ii).)

34. Subsequent to January 1, 1970, Defendants or

their predecessors in office have undertaken the follow-

ing federal actions:

(a) Sought Congressional appropriations for the con-

tinuation of and increase in a multitude of military

operations on and around Vieques as described heretofore

in paragraphs 18 through 27 inclusive;

(b) Continued the military operations on and around

Vieques as described in paragraphs 18 through 27 in-

clusive ;

in the military operations on and around Vieques as

described in paragraphs 18 through 27 inclusive;

(d) Undertaken the annual implementation of the

major Navy operations of what is sometimes called

Operation Springboard on and around Vieques, conducted

as described heretofore in paragraphs 18 through 27

inclusive;

(e) Planned Operation Solid Shield 78, “a major joint

service military exercise” using jet fighters, helicopters,

Navy vessels, and ground forces on and around Vieques,

scheduled for May 10 through May 23, 1978 (42 Fed.

Reg. 61049 (Dec. 1, 1977) ; 42 Fed. Reg. 63181 (Dec. 15,

1977) ; N

(f) Refused or otherwise failed to enact regulations,

procedures or policies that would prevent, abate, reduce,

mitigate or otherwise control the significant environ-

mental effects of their continuing and increased military

operations on and around Vieques as described in para-

graphs 18 through 27 inclusive and paragraph 34;

(g) Refused or otherwise failed to evaluate the con-

tinuing and increased military operations on and around

Vieques as described in paragraphs 18 through 27 in-

clusive and paragraph 34 in the light of substantial

environmental legislation and Executive Orders includ-

ing the Endangered Species Act, 16 U.S.C. § 1540; the

National Historic Preservation Act, as amended, 16

U.S.C. § 470; the Federal Water Pollution Control Act,

as amended, 33 U.S.C. § 466; the Marine Protection,

Research and Sanctuaries Act, 33 U.S.C. § 1415; the

Clean Air Act, as amended, 42 U.S.C. § 7401; the Re-

source Conservation and Recovery Act of 1976, 42 U.S.C.

§ 6901; the Noise Control Act of 1972, 42 U.S.C. § 4911;

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

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

and Executive Order 11593.

35. Each of the actions described in paragraph 34 is

individually a “major federal action significantly affect-

ing the quality of the human environment” for which

Defendants and their predecessors in office have been

required to prepare adequate, detailed environmental

impact statements pursuant to the provisions of Section

102 (2) (C) of NEPA, CEQ Guidelines, DoD Regulations,

and Navy Instructions.

86. The actions described in paragraph 34 considered

cumulatively constitute a “major federal action signifi-

cantly affecting the quality of the human environment”

for which Defendants and their predecessors in office

have been required to prepare adequate, detailed envi-

ronmental impact statements pursuant to the provisions

of Section 102(2)(C) of NEPA, CEQ Guidelines, DoD

Regulations and Navy Instructions.

87. Defendants and their predecessors have unlaw-

fully failed to provide an opportunity for Plaintiffs, the

residents of Vieques, and others to present their views

with respect to each of the actions on and around Vieques

as described in paragraph 34.

88. Defendants and their predecessors each year since

1970 and continuing to the present have assisted in the

preparation of budget requests that have included funds

to be used for military activities and operations on and

around Vieques. Defendants and their predecessors have

unlawfully failed to file with such budget requests the

required adequate, detailed environmental impact state-

ments with respect to such activities and operations on

and around Vieques.

89. Defendants and their predecessors have unlaw-

fully failed to prepare adequate, detailed environmental

impact statements on the actions as described in para-

graph 34 that significantly affect the environment or are

controversial.

40. Each of the actions described in paragraph 34 and

each of the unlawful acts in paragraphs 37 through 39

are, individually and cumulatively, therefore unlawful

actions within the meaning of NEPA, applicable regula-

tions, instructions, and the Administrative Procedure

Act, 5 U.S.C. § 706(2).

41. Because of the failure of Defendants and their

predecessors to prepare and circulate a detailed, adequate

statement on the impact of each of the actions described

in paragraph 34, and because of their failure to discuss

alternatives to those actions as required by Section

102 (2) (C) of NEPA, Plaintiffs have been deprived of

their right to review and to comment adequately upon

the proposed actions of Defendants and alternatives to

such actions and have been harmed by the resulting mili-

tary operations.

42. Defendants and their predecessors, having consis-

tently refused or failed to comply with the mandates of

Sections 102(2)(C) of NEPA, CEQ Guidelines, DoD

Regulations, and Navy Instructions with respect to each

action described in paragraph 34, can reasonably be

expected to persist in such illegal conduct in the absence

of an order from this Court.

48. Such a continued refusal or failure to comply

with the requirements of NEPA, CEQ Guidelines, DoD

Regulations, and Navy Instructions would cause Plain-

tiffs irreparable injury for which they have no adequate

remedy at law.

WHEREFORE, Plaintiffs request that this Court grant

the following relief:

(A) Enter an Order declaring unlawful the refusal

or failure of Defendants and their predecessors to pre-

pare an adequate, detailed environmental impact state-

ment with respect to each of the actions described in

paragraph 34; and,

(B) Enter an Order declaring unlawful each of the

actions described in paragraph 34; and,

required to prepare an adequate, detailed environmental

impact statement with respect to each of the actions

described in paragraph 34; and,

(D) Issue a mandatory injunction or writ of manda-

mus directing Defendants to prepare an adequate, detailed

statement as to the environmental impact of each of the

actions described in paragraph 34; and,

() Preliminarily and permanently enjoin Defendants

from continuing each of the actions described in para-

graph 34 unless and until Defendants comply with the

requirements of NEPA, and CEQ Guidelines, DoD Regu-

lations, and Navy Instructions; and,

(F) Grant Plaintiffs their costs and disbursements in

this matter; and,

(G) Grant Plaintiffs such other and further relief as

the Court may deem appropriate.

VI.

SECOND CLAIM FOR RELIEF

Defendants In The Course Of Conducting Military

Operations On And Around Vieques Have Violated

The Federal Water Pollution Control Act

44. Plaintiffs reallege and incorporate by reference

herein paragraphs 1 through 43 inclusive.

45. Section 318 of the Federal Water Pollution Con-

trol Act of 1972, as amended, 33 U.S.C. § 1828, and

Executive Order 11752 require each department and

instrumentality of the executive branch of the federal

government to comply with federal, state and local

requirements respecting control and abatement of water

pollution.

46. Section 301(a) of the Federal Water Pollution

Control Act, as amended, 33 U.S.C. § 1811(a), makes

unlawful “the discharge of any pollutant by any person”

without obtaining a permit pursuant to Section 402 of

the Act, 33 U.S.C. § 1342.

47. The definition of the term “pollutant” in Section

502(6) of the Federal Water Pollution Control Act, as

amended, 33 U.S.C. § 1862(6), includes, inter alia,

“munitions.”

48. Defendants, in the course of conducting military

operations on and around Vieques, cause the discharge

of munitions and other pollutants into the territorial

sea and the contiguous zone surrounding the island, which

discharge has, inter alia, resulted in soil erosion and the

movement of sediment into the coastal waters of Vieques

thereby irreparably harming coral reefs and marine

life.

49. Upon information and belief, Plaintiffs allege that

neither Defendants nor those under their command have

secured any permit from authorities that allows them

to discharge pollutants into the territorial sea and con-

tiguous zone surrounding Vieques.

50. In discharging pollutants into the territorial sea

and contiguous zone surrounding Vieques, Defendants

are in violation of Section 301(a) of the Federal Water

Pollution Control Act, as ..mended, 33 U.S.C. § 1811 (a).

WHEREFORE, Plaintiffs request that this Court grant

the following relief:

(A) Declare that Defendants are in violation of the

Federal Water Pollution Control Act, as amended, and

Executive Order 11752; and,

(B) Preliminarily and permanently enjoin Defendants

and their agents from discharging munitions or other

pollutants into the territorial sea and the contiguous

zone surrounding Vieques until Defendants have complied

with the requirements of the Federal Water Pollution

Control Act, as amended, and Executive Order 11752;

and,

and their agents from failing to perform all acts required

of them by the Federal Water Pollution Control Act, as

amended; and,

(D) Grant Plaintiffs their costs and disbursements;

and,

(E) Grant Plaintiffs such further relief as the Court

may deem appropriate.

VII.

THIRD CLAIM FOR RELIEF

Defendants In The Course Of Conducting Military

Operations On And Around Vieques Have Violated

The Marine Protection, Research and Sanctuaries

Act

51. Plaintiffs reallege and incorporate by reference

herein paragraphs 1 through 50 inclusive.

52. The Marine Protection, Research and Sanctuaries

Act, 38 U.S.C. §§ 1401, 1411, 1412, provides that except

as may be authorized by permit, no agency of the United

States shall transport any material for the purpose of

dumping it into ocean waters.

53. Upon information and belief, Plaintiffs allege

that agents of Defendants, in the course of conducting

military operations on and around Vieques, transport

bombs, ordnance and munitions and cause them to be

dumped into the ocean waters that surround the island.

54. The dumping of bombs, ordnance and munitions

by military personnel under the control of Defendants

adversely ‘affects human health, welfare, and amenities,

the marine environment, ecological systems, and the

economic potentialities of the island.

55. The dumping of bombs, ordnance and munitions

by personnel under the control of Defendants has been

and is being accomplished without the issuance of a

permit by the Administrator of the Federal Environ-

mental Protection Agency.

56. By dumping bombs, ordnance and munitions, in

the aforementioned manner, Defendants are violating the

requirements of the Marine Protection, Research and

Sanctuaries Act of 1972, 33 U.S.C. §§ 1401, 1411, and

1412.

WHEREFORE, Plaintiffs request that this Court grant

the following relief:

(A) Declare that Defendants are in violation of the

Marine Protection, Research and Sanctuaries Act; and

(B) Preliminarily and permanently enjoin Defendants

and their agents from utilizing ordnance, bombs and

munitions on or around the ocean waters surrounding

Vieques until they have complied with the requirements

of the Marine Protection, Research and Sanctuaries Act;

and,

and their agents from failing to perform all acts required

of them by the Marine Protection, esearch and Sanctu-

aries Act; and,

(D) Grant Plaintiffs their costs and disbursements;

and,

(E) Grant Plaintiffs such further relief as the Court

may deem appropriate.

VIII.

FOURTH CLAIM FOR RELIEF

Defendants In The Course Of Conducting Military

Operations On And Around Vieques Have Violated

The Water Pollution Laws Of Puerto Rico And

The Federal Water Pollution Control Act

57. Plaintiffs reallege and incorporate by reference

herein paragraphs 1 through 56 inclusive.

58. Puerto Rico’s “Water Quality Standards Regula-

tion,” duly enacted pursuant to the Laws of Puerto Rico,

Title 24 §598 (“Water Pollution Control Act“) and

Title 12 § 1181 (“Public Policy Environmental Act“),

contains the following definitions in Article 1:

“Pollutants—Any substance, refuse or waste capable

of polluting the waters.

Pollute (to), Pollution—Altering the natural charac-

teristics of a body of water so as to make it in any

way harmful or noxious to human health, or to that

of animals, or plants, or rendering it ill-smelling

or impure or altering adversely its physical, chemi-

cal, microbiological or radioactive condition, in such

a way as to interfere with the enjoyment of life or

property or violate the standards of purity estab-

lished by this Regulation.”

Article 4 of the “Water Quality Standards Regulation”

further provides in part as follows:

“No person shall cause or permit the pollution of

the waters of Puerto Rico, as defined in Article 1

of this Regulation.” (Article 4.1.1)

“No person shall cause or permit the discharge of

any water pollutant in violation of applicable rules

and regulations.” (Article 4.1.2)

“Moreover, such rules and regulations shall be deemed

to prohibit any discharge that, in the judgment of

the Board, prevents or interferes with attainment

or maintenance of applicable water quality standards

established by this Regulation, by other laws or

regulations of the Commonwealth of Puerto Rico, or

by any other requirements established by the United

States Government pursuant to the Federal Water

Pollution Control Act Amendments of 1972 or any

applicable legislation.“ (Article 4.1.2B)

59. The “Water Quality Standards Regulation” of

Puerto Rico (§ 2.2.1A) classifies portions of the coastal

waters of Vieques as Class SA, which is defined as:

“Coastal waters whose existing characteristics should

not be altered in order to preserve the existing nat-

ural phenomena. Toward that end these waters are

not intended to be used for any activity, such as

swimming, boating and skiing, that might be detri-

mental to the existing natural phenomena.”

60. The “Water Quality Standards Regulation” of

Puerto Rico (§ 2.2.2A) classifies portions of the coastal

waters of Vieques as Class SB, which is defined as:

“Coastal waters intended for uses where the human

body may come in direct contact with the water (such

as complete body submergence); and for use in

propagation and preservation of desirable species.”

61. The objective of Class SA waters is that they

remain as nearly as possible in their natural, pristine

state.

62. The uses to be protected in Class SA waters in-

clude the conservation of coral reefs and the support of

shellfish and other marine life.

63. The objective of Class SB waters is that their

use for recreational purposes and aesthetic enjoyment

shall not be limited in any way, and these waters shall

be used in the propagation and preservation of desirable

commercial and other species.

64. The uses to be protected in Class SB waters are

recreational, aesthetic enjoyment, and the support and

propagation of commercially valuable and other desir-

able aquatic life.

65. The “Water Quality Standards Regulation” of

Puerto Rico (§§ 4.7, 2.1.1) provides as follows:

“Anti-degradation statement

Waters, whose existing quality as of the effective

date of these Regulations, is better than the stan-

dards established herein will be maintained at such

quality. These and other waters of the Common-

wealth will not be lowered in quality unless it has

been affirmatively demonstrated to the Board that

such a change is justified as a result of necessary

economic or social development and will not interfere

or become injurious to any assigned uses made of,

or presently possible in, such waters. This will re-

quire that any industrial, public or private project,

or development which would constitute a new source

of pollution, or a modified source of pollution, to a

high quality water body, possess as a part of the

initial project design the best practicable control

technology currently available. This decision of the

Board shall be preceeded by adequate public notice.”

(§ 4.7.)

“Solids and other matter

The waters of Puerto Rico shall not contain materials

attributable to discharges that will settle to form

objectionable deposits. Nor will they contain floating

debris, scum, oil and other floating materials at-

tributable to discharges in amounts sufficient to be

unsightly or deleterious.” (§ 2.1.1.)

66. The discharge of bombs, ordnance and munitions,

and other materials into and around the coastal waters

of Vieques, and the conducting of military operations on

such coastal waters under the direction of Defendants

and their predecessors have created craters and other

major changes in the coastal lands that have resulted

in soil erosion and the movement of sediment into the

coastal waters of Vieques thereby, inter alia, irreparably

harming coral reefs and marine life.

67. The discharge of ordnance, bombs, munitions, oil,

scum, debris and other materials into coastal waters of

Puerto Rico and the conducting of other military opera-

tions on such waters under the direction of Defendants

and their predecessors, render such waters harmful to

human health and to the health of animals and plants

in such a way as to interfere with enjoyment of life

and property in violation of Puerto Rico’s laws for the

control of water pollution.

68. The discharge of bombs, ordnance, munition oil,

scum, debris and other materials into the coastal waters

surrounding Vieques and the conducting of military op-

erations on such waters under the direction of Defendants

and their predecessors have caused bombs, ordnance,

munitions, oil, scum, debris and other materials to con-

taminate the coastal waters surrounding Vieques.

69. The discharge of bombs, ordnance, munitions, oil,

scum, debris and other materials into coastal waters sur-

rounding Vieques and the conducting of military opera-

tions on such waters under the direction of Defendants

and their predecessors, violate the standards of quality

for coastal waters set out in the laws and regulations

of Puerto Rico.

70. The failure of Defendants to comply with require-

ments of Puerto Rico respecting control and abatement

of water pollution violates Section 313 of the Federal

Water Pollution Control Act, as amended, and Executive

Order 11752.

WHEREFORE, Plaintiffs request that this Court grant

the following relief:

(A) Declare that Defendants are in violation of the

Federal Water Pollution Control Act, as amended, and

Executive Order 11752, the Water Quality Standards

Regulation, the Water Pollution Control Act, and the

Public Policy Environmental Act of Puerto Rico; and,

(B) Preliminarily and permanently enjoin Defendants

and their agents from discharging bombs, ordnance, muni-

tions, oil, scum, debris and other materials on or around

the coastal waters of Vieques until Defendants have

complied with the requirements of the aforesaid laws,

Executive Order, and regulations; and,

and their agents from utilizing bombs, ordnance and

munitions on or around the coastal waters of Vieques

until Defendants have complied with the requirements of

the aforesaid laws, Executive Order, and regulations;

and,

(D) Grant Plaintiffs their costs and disbursements;

and,

(E) Grant Plaintiffs such further relief as the Court

may deem appropriate.

IX.

FIFTH CLAIM FOR RELIEF

Defendants In The Course Of Conducting Military

Operations On And Around Vieques Have Violated

The Clean Air Act

71. Plaintiffs reallege and incorporate by reference

herein paragraphs 1 through 70 inclusive.

72. Section 118 of the Clean Air Act, as amended,

42 U.S.C. § 1857f, requires that each department and

instrumentality of the executive branch of the federal

government shall comply with State requirements respect-

ing control and abatement of air pollution.

73. Section 4 of Executive Order 11752 requires heads

of federal agencies to ensure that all facilities under

their jurisdiction conform to State air quality standards.

74. The “Regulation for Control of Atmospheric Pollu-

tion” of Puerto Rico provides that “no person shall cause

or permit any material to be handled . . . without taking

reasonable precautions to prevent particulate matter

from becoming airborne.” (§ 5.2.1.)

75. The use of ordnance, bombing and munitions on

and around Vieques under the responsibility and control

of Defendants generates airborne particulate matter that

is carried by winds to various areas of Vieques and

elsewhere.

76. The activities of Defendants that cause airborne

particulate matter to be generated on and around the

island of Vieques violate the air pollution standards

promulgated by Puerto Rico and consequently violate

Section 118 of the Clean Air Act and Executive Order

11752.

WHEREFORE, Plaintiffs request that this Court

grant the following relief:

(A) Declare that Defendants are in violation of Puerto

Rico’s laws and regulations for control of airborne partic-

ulate matter, the Clean Air Act, as amended, and Execu-

tive Order 11752; and,

(B) Preliminarily and permanently enjoin Defendants

and their agents from utilizing ordnance, bombs and

munitions on or around the island of Vieques until

Defendants have complied with the requirements of such

laws and Executive Order; and,

and,

(D) Grant Plaintiffs such further relief as the Court

may deem appropriate.

SIXTH CLAIM FOR RELIEF

Defendants In Conducting Military Operations On

And Around Vieques Have Violated The Noise Con-

trol Act of 1972

77. Plaintiffs reallege and incorporate by reference

herein paragraphs 1 through 76 inclusive.

78. Shelling, aerial bombing, artillery practice, straf-

ing attacks by military aircraft, missile fire, ground

force attacks, amphibious maneuvers and gunfire and

other military operations on and around Vieques all

under the control and authority of Defendants create

shock waves and excessive noise that unreasonably inter-

fere with the health and welfare of residents of Vieques

and other areas of Puerto Rico, and of other persons.

79. The Laws of Puerto Rico, 33 L.P.R.A. § 1365,

provide:

“Anything which is injurious to health or is

offensive to the senses or is an obstruction of the

free use of property so as to interfere with the

comfortable enjoyment of life or property by an

entire community or neighborhood, or by any con-

siderable number of persons. . . is a public nui-

sance....” (Emphasis added.)

80. Section 4(b) of the Noise Control Act of 1972, 42

U.S.C. § 4903, and Executive Order 11752 require that

each department of the federal government engaged in

any activity resulting or that may result in the emission

of noise shall comply with State requirements respecting

control and abatement of environmental noise.

81. In taking the actions described in paragraph 78

on and around the island of Vieques in a manner that

is injurious to health, offensive to the senses, and an

obstruction of the free use of property so as to interfere

with the comfortable enjoyment of life and property on

the island of Vieques, and in other areas of Puerto Rico,

Defendants are creating a public nuisance in violation

of 33 L.P.R.A. § 1365 and the Federal Noise Control

Act.

WHEREFORE, Plaintiffs request that this Court grant

the following relief:

(A) Declare that Defendants are in violation of the

Federal Noise Control Act, Laws of Puerto Rico, 33

L.P.R.A. § 1865, and Executive Order 11752; and,

(B) Preliminarily and permanently enjoin Defendants

and their agents from utilizing ordnance, bombs and

munitions or conducting other military operations on or

around Vieques until Defendants have complied with the

requirements of the aforesaid acts and Executive Order;

and,

(D) Grant Plaintiffs such further relief as the Court

may deem appropriate.

XI.

SEVENTH CLAIM FOR RELIEF

Defendants In The Course of Conducting Military

Operations On and Around Vieques Have Violated

The Resource Conservation And Recovery Act

82. Plaintiffs reallege and incorporate by reference

herein paragraphs 1 through 81 inclusive.

83. The Resource Conservation and Recovery Act, 42

U.S.C. § 6961, provides:

“Each department, agency, and instrumentality of

the executive, legislative, and judicial branches of

the Federal Government (1) having jurisdiction over

any solid waste management facility or disposal site,

or (2) engaged in any activity resulting, or which

may result, in the disposal of solid waste or hazard-

ous waste shall be subject to, and comply with, all

Federal, State, interstate, and local requirements,

both substantive and procedural (including any

requirement for permits or reporting or any provi-

sions for injunctive relief and such sanctions as may

be imposed by a court to enforce such relief), respect-

ing control and abatement of solid waste, or hazard-

ous waste disposal in the same manner, and to the

same extent, as any person is subject to such require-

ments, including the payment of reasonable service

charges.” (Emphasis added.)

84. Article 3.1.1 of the “Regulation for the Control

of Solid Waste” of Puerto Rico requires that any person

operating a sanitary landfill must obtain a permit from

the Board on Environmental Quality.

85. Upon information and belief Plaintiffs allege that

the military facilities on Vieques under control of De-

fendants maintain and operate one or more sanitary land-

fill disposal sites.

86. Upon information and belief Plaintiffs allege that

Defendants have failed to obtain a permit from the Board

on Environmental Quality for said sanitary landfill dis-

posal sites.

87. In maintaining and operating sanitary landfill dis-

posal sites on Vieques without a permit from the Board

on Environmental Quality, Defendants are in violation

of the Resource Conservation and Recovery Act.

WHEREFORE, Plaintiffs request that this Court grant

the following relief:

(A) Declare that Defendants are in violation of the

Regulation for Control of Solid Waste and the Resource

Conservation and Recovery Act; and,

(B) Preliminarily and permanently enjoin Defendants

and their agents from operating sanitary landfill disposal

sites on Vieques until Defendants have met the standards

for and obtained a permit as required by Article 3.1.1 of

the “Regulation for the Control of Solid Waste“; and.

and their agents, from failing to perform all acts re-

quired of them by the Resource Conservation and Re-

covery Act; and,

(D) Grant Plaintiffs their costs and disbursements;

and,

(E) Grant Plaintiffs such further relief as the Court

may deem appropriate.

XII.

EIGHTH CLAIM FOR RELIEF

Defendants In The Course of Conducting Military

Operations On And Around Vieques Have Placed In

Jeopardy Endangered Species And Threatened Spe-

cies And Have Otherwise Violated the Endangered

Species Act

88. Plaintiffs reallege and incorporate herein by refer-

ence paragraphs 1 through 87 inclusive.

89. Pursuant to Section 7 of the Endangered Species

Act of 1978, 16 U.S.C. § 1536, Defendants are required

to carry out programs for the conservation of endangered

species and threatened species.

90. Pursuant to Section 7 of the Endangered Species

Act of 1973, Defendants are required to take such actions

as are necessary to insure that actions authorized by

them do not jeopardize the continued existence of en-

dangered species and threatened species.

91. Pursuant to Section 7 of the Endangered Species

Act of 1973, Defendants are required to take such actions

as are necessary to insure that actions authorized by

them do not result in the destruction or modification of

the critical habitat of endangered species and threatened

species.

92. Section 9 of the Endangered Species Act of 1973,

16 U.S.C. § 1588(a) (1) (B), (C), provides that except

as otherwise provided in the Act it is unlawful for any

person to “take” any endangered species of fish or wild-

life within the United States or the territorial sea of the

United States or upon the high seas.

93. Section 3 of the Endangered Species Act of 1973,

16 U.S.C. § 1532 (14), provides that the term “take”

means “to harass, harm, pursue, hunt, shoot, wound,

trap, kill, capture or collect or attempt to engage in any

such conduct.”

94. Section 9 of the Endangered Species Act of 1973,

16 U.S.C. § 1538 (a) (1) (G), provides that except as

otherwise provided by the Act no person may violate

any regulation issued pursuant to the Act pertaining

to endangered species or threatened species of fish or

wildlife.

95. Section 9 of the Endangered Species Act of 1973,

U.S.C. § 1538 (a) (2) (D), provides that except as other-

wise provided by the Act no person may violate any

regulation issued pursuant to the Act pertaining to en-

dangered species or threatened species of plants.

96. On information and belief endangered species and

threatened species of fish, wildlife and plants are found

on and around Vieques, including, inter alia, Hawksbill

Turtle (Eretmochelys imbricata), Leatherback Turtle

(Dermochelys coriacea), and Bruwn Pelican (Pelecanus

occidentalis) .

97. Defendants have violated Section 7 of the En-

dangered Species Act of 1973 with regard to military

operations authorized by them on and around Vieques

in that:

(a) Defendants have neglected to carry out any pro-

gram for the conservation of endangered species and

threatened species that may exist on or near the island;

(b) Defendants have neglected to take necessary ac-

tions to insure that their operations do not jeopardize the

continued existence of endangered species and threatened

species that may exist on or near the island; and,

tions to insure that their operations do not result in the

destruction or modification of the habitat of endangered

species or threatened species that may be critical to said

species.

98. Defendants have violated Section 9 of the En-

dangered Species Act of 1973 in that Defendants' mili-

tary operations on and around the island of Vieques

constitute an unlawful “taking” of endangered species

and a violation of applicable regulations.

WHEREFORE, Plaintiffs request that this Court

grant the following relief:

(A) Declare that Defendants are in violation of the

Endangered Species Act; and,

(B) Preliminarily and permanently enjoin Defendants

and their agents from engaging in military operations

on or around Vieques until Defendants have complied

with the requirements of the Endangered Species Act;

and,

(D) Grant Plaintiffs such further relief as the Court

may deem appropriate.

XIII.

NINTH CLAIM FOR RELIEF

Defendants Have Violated The National Historical

Preservation Act And Executive Order 11593 By

Failing To Take Adequave Steps With Respect To

The Effects of Vieques Military Operations On His-

torical, Cultural and Archeological Resources

99. Plaintiffs reallege and incorporate herein by ref-

erence paragraphs 1 through 98 inclusive.

100. Section 1 of the National Historic Preservation

Act, as amended, 16 U.S.C. § 470 (“NHPA”), states:

“The Congress finds and declares—

(a) that the spirit and direction of the Nation are

founded upon and reflected in its historic past;

(b) that the historical and cultural foundations of

the nation should be preserved as a living part of

our community life and development in order to give

a sense of orientation to the American people.

101. Section 106 of NHPA, as amended, 16 U.S.C.

§ 470f, requires that:

“The head of any Federal agency having direct or

indirect jurisdiction over a proposed Federal or

Federally assisted undertaking in any State and

the head of any Federal department or independent

agency having authority to license any undertaking

shall, prior to the approval of the expenditure of

any Federal funds on the undertaking or prior to

the issuance of any license, as the case may be, take

into account the effect of the undertaking on any

district, site, building, structure, or object that is

included in or eligible for inclusion in the National

afford the Advisory Council on Historic Preserva-

tion . . a reasonable opportunity to comment with

regard to such undertaking.”

102. Executive Order 11593 (May 13, 1971), note

to 16 U.S.C. § 470, requires federal agencies to inventory

and nominate properties under their jurisdiction or con-

trol to the National Register of Historic Places (“Na-

tional Register”). Until such processes are complete,

federal agencies must submit any proposal for the “sub-

stantial alteration” of federally owned properties eligible

for inclusion on the National Register to the Advisory

Council on Historie Preservation for review and comment.

103. Executive Order 11593 directs federal agencies

to do the following:

(a) “[E)xercise caution during the interim period

until inventories and evaluations . . . are com-

plete to assure that any federally owned prop-

erty that might qualify for nomination is not

inadvertently . . . demolished or substantially

altered. The agency head shall refer any ques-

tionable actions to the Secretary of Interior for

an opinion respecting the property’s eligibility

for inclusion on the National Register of His-

toric Places.” (§ 2(b)); and,

(b) “{I]nstitute procedures to assure that Federal

plans and programs contribute to the preserva-

tion and enhancement of non-federally owned

sites, structures and objects of historical, archi-

tectural or archeological significance.” (§ 1(3).)

104. The Advisory Council to the President and Con-

gress has promulgated Procedures for the Protection of

Historic and Cultural Properties (36 C.F.R. Part 800)

pursuant to NHPA and Executive Order 11593. Said

procedures are applicable to federal agencies and provide

in part as follows:

(a) Federal undertakings subject to Section 106 of

NHPA and Executive Order 11593 include requests for

appropriation and any new or continuing project or pro-

gram (36 C. F. R. §§ 800.3 (e) (1), (2));

(b) “At the earliest stage of planning or considera-

tion of a proposed undertaking,” a federal agency shall

take the following steps:

(1) Identify properties within the area of the

undertaking’s potential environmental impact that are

included in or eligible for inclusion in the National

(2) As to such properties, consult with the State

Historic Preservation Office (36 C. F. R. § 800.4 (a) (2));

(e) Federal projects must be designated as having

an adverse effect on properties that are listed on or

eligible for listing on the National Register if any con-

dition of the federal undertaking may cause any change

in the quality of the historical, archeological, architectural

or cultural character that qualifies the property under

the National Register and the change is a result of

alteration or destruction of part of the property, isola-

tion from or alteration of its surrounding environment,

introduction of visual, audible or atmospheric elements

that are out of character with the property or alter its

setting, or neglect of the property resulting in its deteri-

oration or destruction (36 C. F. R. §§ 800.4(b), 800.8,

800.9) ;

(d) As to such projects determined to have an adverse

effect, the Federal agency must notify the Advisory

Council, the State and the public (36 C.F.R. §§ 800.4(e),

800.5 (e)) and evaluate feasible alternatives to the

project to avoid or mitigate adverse effects (36 C.F.R.

§ 800.5(d)).

105. Vieques contains two buildings that are included

on the National Register of Historic Places:

(a) Fuerte de Vieques, and

(b) Frenchman’s House.

106. Vieques contains at least two additional build-

ings that are of historical significance and are eligible

for inclusion on the National Register of Historic Places:

(a) El Faro, and

(b) Tumbas de Le Guidlou.

107. Defendants continuing military activities and

operations on Vieques have an adverse effect on at least

the following buildings that are included or eligible for

inclusion on the National Register:

(a) Fuerte de Vieques,

(b) Frenchman’s House,

(e) El Faro, and

(d) Tumbas de Le Guidlou.

108. Defendants’ proposed new military activities and

operations on Vieques would have an adverse effect on

the buildings described in paragraph 107.

109. Defendants have undertaken continuing military

activities and operations on Vieques in violation of re-

quired procedures to determine whether the undertaking

has an adverse effect on the buildings described in para-

graph 107.

110. Defendants have undertaken new military activ-

ities and operations on Vieques in violation of required

procedures to determine whether the undertaking has

an adverse effect on the buildings described in paragraph

107.

111. Defendants have undertaken continuing military

activities and operations on Vieques that have an adverse

effect on the buildings described in paragraph 107 in

violation of required procedures for public disclosure and

public consideration of such adverse effects.

112. Defendants have undertaken new military activ-

ities and operations on Vieques that have an adverse ef-

fect on the buildings described in paragraph 107 in

violation of required procedures for public disclosure and

public consideration of such adverse effects.

113. Vieques contains sites of historical, cultural or

archeological significance that are located within the area

of potential environn.ental impact of Defendants’ con-

tinuing and new military activities and operations.

114. Defendants have undertaken continuing and new

military activities and operations on Vieques in viola-

tion of required procedures to locate, evaluate, inventory

and nominate to the Secretary of the Interior sites that

are eligible for inclusion on the National Register.

115. Defendants have undertaken continuing and new

military activities and operations on Vieques in viola-

tion of their duty to assure that any federally owned

property that might qualify for nomination to the Na-

tional Register is not destroyed, or substantially altered,

has its surrounding environment altered, or suffers from

visual, audible or atmospheric elements that are out of

character with the property or the setting, before it has

been located and evaluated for eligibility in accordance

with required procedures.

116. Defendants have continued military activities and

operations and have authorized new military activities

and operations on Vieques that are inherently destructive

to and otherwise adversely affect sites of historical, cul-

tural and archeological significance to Plaintiffs without

attempting adequately to locate, evaluate, inventory or

nominate to the Secretary of Interior sites that may

qualify for inclusion on the National Register.

117. Defendants have undertaken military activities

and operations and have continued to authorize military

activities and operations that have substantially altered

and otherwise adversely affect sites that are included on

the National Register and other sites of historical, cul-

tural and archeological significance thui may be eligible

for inclusion on the National Register.

118. Defendants’ continuing and new military activ-

ities and operations on and around Vieques are in viola-

tion of the requirements of the Section 106 of NHPA, of

Executive Order 11593, and of regulations issued there-

under.

WHEREFORE, Plaintiffs request that this Court

grant the following relief:

(A) Declare that Defendants are in violation of the

National Historic Preservation Act, as amended, Ex-

ecutive Order 11593 and 36 C.F.R. Part 800; and,

(B) Preliminarily and permanently enjoin Defendants

and their agents from engaging in military activities and

operations until Defendants have complied with the re-

quirements of the aforesaid statute, Executive Order, and

regulations; and,

and,

(D) Grant Plaintiffs such further relief as the Court

may deem appropriate.

XIV.

TENTH CLAIM FOR RELIEF

Defendants In the Court of Conducting Military

Operations On And Around Vieques Have Violated

The Coastal Zone Management Act

119. Plaintiffs reallege and incorporate by reference

herein paragraphs 1 through 118 inclusive.

120. The Coastal Zone Management Act, 16 U.S.C.

§§ 1451-64, requires that federal activity affecting areas

subject to an approved coastal management program must

to the maximum extent practicable be consistent with

that program. 16 U.S.C. § 1456(c).

121. The Commonwealth of Puerto Rico has de-

veloped and submitted for approval to the United States

Department of Commerce a coastal zone management pro-

gram (hereinafter “the program“). The program is de-

signed to protect coastal areas of Vieques and other

coastal areas of Puerto Rico.

122. Approval of the program by the Department of

Commerce is expected shortly.

123. Military operations on Vieques under the direction

of Defendants are inconsistent with the program and

threaten irreparable harm to certain coastal zone areas

covered by it.

124. Such harm would render nugatory the approval

of the program with respect to the affected coastal zone

areas of Vieques.

WHEREFORE, Plaintiffs request that this Court grant

the following relief:

(A) Declare that Defendants are in violation of the

Coastal Zone Management Act; and,

(B) Preliminarily and permanently enjoin Defendants

and their agents from military operations that would

harm coastal zone areas subject to the program; and,

and,

(D) Grant Plaintiffs such further relief as this Court

may deem appropriate.

XV.

ELEVENTH CLAIM FOR RELIEF

Defendants Have So Planned, Authorized, Directed

And Conducted Military Operations On And Around

Vieques As To Maintain A Public Nuisance

125. Plaintiffs reallege and incorporate by reference

herein paragraphs 1 through 124 inclusive.

126. Defendants’ actions affecting Vieques as described

in paragraphs 18 through 27 and 34 have been con-

ducted in such a manner, under such circumstances and

to such an extent as to harm the environment of Vieques

and to unreasonably interfere with Plaintiffs’ use and

enjoyment of their houses and property and of the en-

vironment of Vieques and of other areas of Puerto

Rico.

127. Defendants have conducted and continue to con-

duct said operations in such a manner as to greatly im-

pair and diminish the value of Plaintiffs’ property.

128. Defendants have conducted and continue to con-

duct said operations as described in paragraphs 18

through 27 and 34 so as to present an unreasonable

hazard to the health and safety of residents of Vieques

and of other areas of Puerto Rico and of those persons

who visit Vieques and the waters adjacent to it.

129. All acts and facts as set forth in paragraphs 18

through 27 and 34 have been with the knowledge of De-

fendants and their predecessors in office.

130. All acts as described in paragraphs 18 through

27, 34, and 125 through 129 and in the First through

Twelth Claims for Relief of this Complaint constitute a

public nuisance under the federal common law and the

law of Puerto Rico.

131. Plaintiffs have frequently requested Defendants of

their agents to abate said public nuisance but Defendants

have neglected and refused to do so.

132. Defendants threaten to continue and intend to

continue to maintain said public nuisance and unless

restrained therefrom will continue so to maintain it.

133. The continuation of said public nuisance would

cause Plaintiffs irreparable injury for which they have no

adequate remedy at law.

WHEREFORE, Plaintiffs request that this Court

grant the following relief:

(A) Declare that military activities and operations

under the control of Defendants on and around Vieques

constitute a public nuisance under federal common law

and the law of Puerto Rico; and,

(B) Preliminarily and permanently enjoin Defendants

and their agents from maintaining military activities and

operations on and around Vieques in such a manner as to

constitute a public nuisance; and,

and,

(D) Grant Plaintiffs such other and further relief as

the Court may deem appropriate.

XVI.

TWELFTH CLAIM FOR RELIEF

Defendants’ Military Operations On and Around

Vieques Violate The First and Fifth Amendments

To the Constitution and Are Otherwise Unlawful

134. Plaintiffs reallege and incorporate by reference

herein preceding paragraphs 1 through 133.

135. The island of Culebra is a Municipality of the

Commonwealth of Puerto Rico and is approximately 10

miles from Vieques. Vieques and Culebra are within

the Inner Range of the Atlantic Fleet Weapons Range

of Defendants.

136. Defendants prior to about July 1975 conducted

military operations on Culebra. On or about July 1975,

Defendants ceased military operations on Culebra.

137. Military operations of Defendants on Vieques

have increased since the time Defendants ceased military

operations on Culebra.

138. Defendants have increased military operations on

Vieques in whole or in part by transferring to Vieques

directly or indirectly all or some of the military opera-

tions formerly conducted on Culebra.

139. Such increased military operations on Vieques

are in whole or in part the result of, are due to, or

have otherwise been caused or brought about by De-

fendants’ termination of the use of Culebra for military

operations.

140. Before terminating military operations on

Culebra and on subsequent occasions, Defendants agreed

with and otherwise made commitments to the Common-

wealth of Puerto Rico not to transfer its Culebra mili-

tary operations to Vieques.

141. The President of the United States as Com-

mander-in-Chief ordered Defendants not to transfer

military operations on Culebra to an alternate site in

Puerto Rico without approval of the Commonwealth of

Puerto Rico.

142. Defendants have neither requested nor obtained

approval from the Commonweath of Puerto Rico to move

military operations from Culebra to Vieques.

143. Defendants have transferred military operations

from Culebra to Vieques without first evaluating the im-

pact of such transfer of the life, liberty and property of

the citizens of Puerto Rico.

144. Defendants have transferred military operations

from Culebra to Vieques without conforming to Congres-

sional restrictions.

145. Defendants are conducting on Vieques military

operations formerly conducted on Culebra in violation of

agreements and commitments that Defendants have made

to the Commonwealth of Puerto Rico.

146. Defendants have conducted and continue to con-

duct on Vieques military operations formerly conducted

on Culebra in the dangerous, harmful, disruptive, offen-

sive and unlawful manner described in the First through

Twelfth Claims for Relief of this Complaint.

147. Defendants have transferred military operations

from Culebra to Vieques, as described in paragraphs

138 and 139 in violation of the President's Order and

Congrezsional restrictions relating to any transferral of

military activities from Culebra.

148. The transfer to Vieques of military operations

formerly conducted on Culebra constitutes unlawful fed-

eral action.

149. Transferring to Vieques military operations for-

merly conducted on Culebra and conducting such military

operations in the manner described in paragraphs 138

through 146 constitutes federal action that has caused and

is causing irreparable harm to the health and welfare of

residents of Vieques so as to constitute a denial of due

process of law as guaranteed by the Fifth Amendment

to the United States Constitution.

150. Transferring to Vieques of military operations

formerly conducted on Culebra and conducting such

military operations in the manner described in para-

graphs 138 through 146 and without seeking the required

approval of the Commonwealth of Puerto Rico constitutes

arbitrary federal action that has caused and is causing

irreparable harm to the health and welfare of residents

of Vieques in violation of procedural due process of law

as guaranteed by the Fifth Amendment to the United

States Constitution.

151. Transferring to Vieques military operations for-

merly conducted on Culebra and conducting such military

operations in the manner described in paragraphs 138

through 146 without seeking the required approval of

the Commonwealth of Puerto Rico and without first eval-

uating the resulting impact of such federal action on the

life, liberty and property of plaintiffs and without first

giving an opportunity for public comment on such action

and on alternatives to such action constitute arbitrary

federal action contrary to law, including, inter alia, due

process of law guaranteed by the Fifth Amendment to the

United States Constitution.

152. Transferring to Vieques military operations for-

merly conducted on Culebra and conducting such military

operations in the manner described in paragraphs 138

through 146 have deprived Plaintiffs of the value of their

property so as to constitute a taking of property without

just compensation, contrary to the Fifth Amendment

to the United States Constitution. ,

158. Defendants’ conducting of continuing and in-

creased military operations on Vieques deprives, prevents,

restrains and severely interferes with the ability of the

residents of Vieques and others to use and to travel freely

or without undue restraint around the public portions of

the island of Vieques, including but not limited to its

public beaches and the territorial sea of the Common-

wealth of Puerto Rico.

154. The federal action taken as described in para-

graph 153 constitutes a denial of freedom of travel as

guaranteed by the First Amendment of the United States

Constitution.

WHEREFORE, Plaintiffs request that this Court

grant the following relief:

(A) Enter an Order declaring unlawful each of the

actions described in paragraphs 135 through 154; and,

(B) Preliminarily and permanently enjoin Defend-

ants from continuing each of the actions in paragraphs

135 through 154 until Defendants comply with the re-

quirements of law; and,

this matter; and,

(D) Grant Plaintiffs such other and further relief

as the Court may deem appropriate.

Respectfully submitted,

/8/ Miguel Gimenez Munoz

MIGUEL GIMENEZ MUNOZ

Secretary of Justice

. Commonwealth of Puerto Rico

San Juan, Puerto Rico

/s/ Gerardo A. Carlo

GERARDO A. CARLO

Special Counsel to the Governor

Commonwealth of Puerto Rico

La Fortaleza

San Juan, Puerto Rico

/s/ John A. Hodges

JOHN A. HODGES

1150 Connecticut Avenue, N.W.

Washington, D.C. 20036

7s, Timothy L. Harker

TIMOTHY L. HARKER

1150 Connecticut Avenue, N.W.

Washington, D.C. 20036

Attorneys for Plaintiffs

PEABODY, RIVLIN, LAMBERT & MEYERS

1150 Connecticut Avenue, N.W.

Washington, D.C. 20036

LEWIS A. RIVLIN

1150 Connecticut Avenue, N.W.

Washington, D.C. 20036

Of Counsel

JORGE L. CORDOVA, JR.

Office of the Commonwealth of Puerto Rico

1625 Mass. Ave., N.W.

Washington D.C. 20036

Of Counsel

VERIFICATION

Carlos Romero-Barcelé, being first duly sworn, on oath

does depose and state that he has read the foregoing

Complaint, that he has knowledge of all the matters there-

in stated and that the same are true in substance and in

fact, according to the best of his knowledge, information

and belief.

/s/ Carlos Romero-Barcelo

CARLOS ROMERO-BARCELO

Subscribed and sworn to before me this lst day of

March, 1978,

/s Jose Manuel Rodriguez Viejo

Notary Public

My commission expires:

[SEAL]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

Civil Action No. 78-323

CARLOS ROMERO-BARCELO, ET AL., PLAINTIFFS

HAROLD BROWN, ET AL., DEFENDANTS

AMENDMENT TO COMPLAINT

TO THE HONORABLE COURT:

Come now plaintiffs in the above captioned case and

through their undersigned attorneys hereby amend their

complaint by amending paragraphs 46, 48, 49, 84, 85, 86

and 87 to read as set forth below and by adding to the

complaint a thirteenth claim for relief as set forth below:

46. Section 301 (a) of the Federal Water Pollution

Control Act, as amended, 33 U.S.C. § 1311 (a), makes

unlawful “the discharge of any pollutant by any person”

except in compliance with a permit obtained pursuant to

Section 402 of the Act, 33 U.S.C. § 1342.

48. (a) Defendants operate a sewage treatment fa-

cility on Vieques subject to a National Pollution Dis-

charge Eliminatien System (“NPDES”) permit issued

under Section 402 of the Act. The effluent discharge from

said sewage treatment plant into the coastal waters of

Vieques has been and continues to be in violation of said

NPDES permit.

(b) Defendants, in the course of conducting military

operations on and around Vieques, cause the discharge of

munitions and other pollutants into the territorial sea

and the contiguous zone surrounding the island, which

discharge has, inter alia, resulted in soil erosion and the

movement of sediment into the coastal waters of Vieques

thereby irreparably harming coral reefs and marine

life.

49. Except for the NPDES permit for the sewage

treatment plant, upon information and belief, Plaintiffs

allege that neither Defendants nor those under their

command have secured any permit from authorities that

allows them to discharge pollutants into the territorial sea

and contiguous zone surrounding Vieques.

84. The “Regulation for the Control of Solid Waste”

of Puerto Rico requires as follows:

a. “No person shall establish or cause the es-

tablishment of any new solid waste facility without

previously obtaining a permit from the Board.”

(Article 3.1.1).

b. “No person shall operate or cause the opera-

tion of a solid waste facility without applying to the

Board for a permit to operate.” (Article 3.1.2 A.1).

ce. “No person shall operate or cause the operation

of any new solid waste collection service without first

obtaining a permit to operate from the Board.”

(Article 3.1.3).

d. “No person shall operate or cause the opera-

tion of an existing solid waste collection service with-

out applying for a permit to operate such service,

within 60 days of the effective date of this Regula-

tion.” (Article 3.1.3).

e. “No person shall cause or permit the occur-

rence of a solid waste activity . . . without first

obtaining a permit from the Board.” (Article 3.1.4).

f. “Storage of toxic, hazardous and pathological

waste shall be handled in accordance with standards

and guidelines of this Board.” (Article 4.5).

g. “No person shall cause or permit land pollu-

tion...” (Article 2.1.1).

h. Land pollution is defined as:

“The presence in and on the land of any solid

waste in such quantity, of such nature and duration,

or under such conditions as is or could be injurious

to human health or welfare, animal or plant life,

or property life, or property, or which interferes

with the enjoyment of life or of such property, sur-

face or underground waters, or creates air conta-

minants, or causes environmental degradation.”

(Article 1).

i. “No person shall cause or permit the deposit,

storage or final disposal of solid waste at any place

other than the following:”

“At a final disposal site authorized by a

permit.

„At a solid waste facility authorized by a

permit. (Article 2.1.3).

j. “No person shall cause or permit the abandon-

ment of a junk vehicle. . .”

k. Daily operational records for sanitary land-

fills and submission of periodic reports to the Board

are required. (Article 2.2).

I. Representatives of the Board shall .. . have

the right of entry to, upon, or through any premises

in which a solid waste facility is located or in which

any place required to be maintained under this Regu-

lation is located.” (Article 2.2.2).

85. Upon information and belief Plaintiffs allege as

follows:

a. Defendants have established, maintained and op-

erated one or more solid waste facilities on Vieques with-

out required permits;

b. Defendants have previously operated a solid waste

collection service and currently operate a new solid waste

collection service on Vieques without the required permits;

ce. Defendants have caused or permitted the occurrence

of solid waste activities on Vieques without the required

permits;

d. Defendants have stored, handled and otherwise dis-

posed of toxic, hazardous and pathological waste on

Vieques without the required permits and otherwise con-

trary to standards and guidelines of the Board;

e. Defendant have caused or permitted land pollution

on Vieques;

f. Defendants have caused or permitted the deposit,

storage or final disposal of solid waste at unauthorized

places on Vieques ;

g. Defendants have caused or permitted the abandon-

ment of junk vehicles on Vieques;

h. Defendants have failed to maintain required op-

erational records and have failed to submit required peri-

odie reports to the Board for its sanitary lanfill oper-

ations on Vieques;

i. Defendants have denied, prevented, and otherwise

refused to permit entry by one or more authorized repre-

sentatives of the Board to, upon or through premises on

Vieques used by defendants as solid waste facilities or

for solid waste disposal. Said denial of authorized access

has occurred on or about March 6, 1978 and on other

occasions.

86. In causing solid waste activities, disposing of

hazardous waste and establishing and operating solid

waste facilities and a solid waste collection service on

Vieques without the permits required by the Board on

Environmental Quality defendants are in violation of

the Regulation for the Control of Solid Waste of Puerto

Rico and the Resource Conservation and Recovery Act.

87. In causing or permitting land pollution, the deposit

or final disposal of solid waste at unauthorized places,

and the abandonment of junk vehicles on Vieques; in

failing to maintain operational records, and submit peri-

odic reports to the Board on Environmental Quality

with respect to sanitary landfill operations on Vieques;

and in denying access to solid waste disposal facilities

by representatives of said Board defendants are in viola-

tion of the Regulation for the Control of Solid Waste of

Puerto Rico and the Resource Conservation and Recovery

Act.

XVII.

THIRTEENTH CLAIM FOR RELIEF

Defendants’ Military Operations On and Around

Vieques Violate the Marine Mammal Protection Act

of 1972

155. Plaintiffs reallege and incorporate by reference

herein paragraphs 1 through 154 inclusive.

156. Under the Marine Mammal Protection Act of

1972, 16 U.S.C. § 1861 et seq., except as otherwise pro-

vided in the Act, it is unlawful to “take” marine mam-

mals. The term “take” means “to harass, hunt, capture,

or kill, or attempt to harass, hunt, capture or kill any

marine mammal.” 16 U.S.C. § 1362 (13).

157. The Secretary of Commerce in the case of por-

poises and other cetaceans and pinnipediae (other than

walruses) and the Secretary of Interior (in the case

of other marine mammals) on the basis of the best scien-

tific evidence available and in consultation with the

Marine Mammal Commission, is to prescribe such regula-

tions with respect to the taking and importing of marine

mammals as he deems necessary and appropriate to insure

that such taking will not be to the disadvantage of the

marine mammal species and population stocks and will

be consistent with the purposes and policies of the Act.

16 U.S.C. 8 1373 (a). Such regulations are to be made

on the record after an opportunity for an agency hearing

on both the Secretary’s determination to lift the prohi-

bition of taking and on the regulations. 16 U.S.C. § 1373

(d). In addition to any other requirement of law with

respect to agency rulemaking, the Secretary must publish

and make available to the public either before or concur-

rent with the publication of notice in the Federal Register

of his intention to prescribe such regulations:

“(1) a statement of the estimated existing levels

of the species and population stocks of the marine

mammal concerned ;

(2) a statement of the expected impact of the

proposed regulations on the optimum sustainable

population of such species or population stock;

(3) a statement describing the evidence before the

Secretary upon which he proposes to base such reg-

ulations; and

(4) any studies made by or for the Secretary or

any recommendations made by or for the Secretary

or the Marine Mammal Commission which relate to

the establishment of such regulations.” 16 U.S.C.

§ 1373 (d).

158. The Secretary may issue permits that authorize

the taking of marine mammals. 16 U.S.C. § 1374 (a).

Any such permit shall:

“(1) be consistent with any applicable regulation

established by the Secretary under section 1373 of

this title, and

(2) specify

(A) the number and kind of animals which

are authorized to be taken or imported.

(B) the location and manner (which manner

must be determined by the Secretary to be

humane) in which they may be taken, or from

which they may be imported,

valid, and

(D) any other terms or conditions which

the Secretary deems appropriate.” 16 U.S.C.

§ 1374 (b).

159. On information and belief, military operations on

and around Vieques result in the “taking” of marine

mammals within the meaning of 16 U.S.C. § 1362 (13).

160. On information and belief, Defendants have not

obtained a permit to take marine mammals on and around

Vieques.

160. On information and belief, Defendants have not

obtained a permit to take marine mammals on and

around Vieques.

161. On information and belief, the Secretary has

promulgated no regulations with respect to the taking of

marine mammals on and around Vieques.

162. Defendants have violated the Marine Mammal

Protection Act of 1972 in that they have unlawfully taken

marine mammals on and around Vieques without a permit.

WHEREFORE, Plaintiffs request that this Court

grant the following relief:

(A) Declare that Defendants are in violation of the

Marine Mammal Protection Act of 1972; and

(B) Preliminarily and permanently injoin Defendants

and their agents from engaging in military operations on

or around Vieques until Defendants have complied with

the requirements of the Marine Mammal Protection of

1972; and,

and,

(D) Grant Plaintiffs such further relief as the Court

may deem appropriate.

Respectfully submitted,

/s/ Miguel A. Gimenez Munoz

MIGUEL A, GIMENEZ MUNOZ

Secretary of Justice

Commonwealth of Puerto Rico

San Juan, Puerto Rico

/s/ Gerardo A. Carlo

GERARDO A. CARLO

Special Counsel to the Governor

Commonwealth of Puerto Rico

La Fortaleza

San Juan, Puerto Rico

/s/ John A. Hodges

JOHN A. HODGES

1150 Connecticut Avenue, N.W.

Washington, D.C. 20036

/s8/ Timothy L. Harker

TIMOTHY L. HARKER

1150 Connecticut Avenue, N.W.

Washington, D.C. 20036

Attorneys for Plaintiffs

PEABODY, RIVLIN, LAMBERT & MEYERS

1150 Connecticut Ave. N.W.

Washington, D.C. 20036

LEWIS A. RIVLIN

1150 Connecticut Avenue, N.W.

Washington, D.C. 20036

JORGE L. CORDOVA, JR.

Office of the Commonwealth of Puerto Rico

1625 Massachusetts Avenue, N.W.

Washington, D.C. 20036

Of Counsel

VERIFIC ATION

I, Carlos Romero-Barcelé, being first duly sworn, on

oath do depose and state that I have read the foregoing

Amendment to Complaint, that I have knowledge of all

the matters therein stated and that the same are true in

substance and in fact, according to the best of my knowl-

edge, information and belief.

/s/ Carlos Romero-Barcelé

CARLOS ROMERO-BARCELO

Aff. No. 2,065

Subscribed and sworn to before me this 21 day of

March, 1978.

7s Felix Fumero Pugliessi

Notary Public

[SEAL]

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Amend-

ment To Complaint have on this 2lst day of March,

1978, been served on Julio Morales Sanchez, Esq., U.S.

District Attorney, San Juan, Puerto Rico; on Pedro J.

Varela, Esq., Attorneys for Luis Medina, et al; and on

Pedro J. Saade, Esq., Attorney for Carlos A. Zenén, et

al, by first class mail, postage prepaid.

/s/ Miguel A. Gimenez Muiioz

MIGUEL A, GIMENEZ MUNOZ

Secretary of Justice

Commonwealth of Puerto Rico

San Juan, Puerto Rico

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

Civil No. 78-323

CARLOS ROMERO-BARCELO,

Governor of Puerto Rico, ET AL., PLAINTIFFS

HAROLD BROWN,

Secretary of Defense, ET AL., DEFENDANTS

ANSWER

The defendants, 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, Atlantic Fleet, United States Navy;

and Louis H. Wilson, Commandant, United States Ma-

rine Corps, for their answer to the amended complaint

filed herein plead as follows:

FIRST AFFIRMATIVE DEFENSE

Any and all actions by defendants, of which plaintiffs

complain, were done by them as officials of the United

States Department of Defense or United States Depart-

ment of the Navy, in the course of their official duties

and were within the scope of those duties, and for this

reason they cannot be sued in their individual capacities.

SECOND AFFIRMATIVE DEFENSE

This Court lacks jurisdiction over the persons of de-

fendants in their individual capacities.

THIRD AFFIRMATIVE DEFENSE

Defendants, not having been served personally with

process in a proper manner, are not properly before this

Court as parties in their individual capacities.

FOURTH AFFIRMATIVE DEFENSE

Plaintiffs’ First, Second, Third, Fourth, Fifth, Sixth,

Eighth, Ninth, Tenth, Twelfth, and Thirteenth Claims

for Relief fail to state claims upon which relief can be

granted.

FIFTH AFFIRMATIVE DEFENSE

Plaintiff Radames Tirado Guevara lacks standing to

raise his Fourth Claim for Relief.

SIXTH AFFIRMATIVE DEFENSE

Plaintiffs’ Sixth and Eleventh Claims for Relief are

barred by the doctrine of laches as the result of the

passage of time and resulting prejudice to the defend-

ants, to the Federal Government, and to the general

public.

SEVENTH AFFIRMATIVE DEFENSE

This Court lacks jurisdiction over plaintiffs’ Second,

Third, Fourth, Fifth, Sixth, Seventh, and Eighth Claims

for Relief because of plaintiffs’ failure to comply with

applicable statutory notice provisions.

EIGHTH AFFIRMATIVE DEFENSE

Piaintiffs have failed to exhaust their administrative

remedies relative to their Fourth Claim for Relief. Plain-

tiffs have also failed to exhaust the administrative reme-

dies prescribed by the Federal Tort Claims Act for all

their claims sounding in tort.

NINTH AFFIRMATIVE DEFENSE

Plaintiffs’ Fourth and Tenth Claims for Relief do not

present a case or controversy ripe for judicial resolution.

TENTH AFFIRMATIVE DEFENSE

Even if the Puerto Rican public nuisance statute were

construed to be a “state . . . requirement respecting con-

trol and abatement of environmental noise” within the

context of the Noise Control Act of 1972, such a require-

ment would be unconstitutionally void for vagueness.

ELEVENTH AFFIRMATIVE DEFENSE

This Court lacks subject matter jurisdiction over plain-

tiffs’ Fourth, Fifth, Sixth, Eleventh, and Thirteenth

Claims for Relief, those portions of plaintiffs’ Ninth

Claim for Relief alleged under Executive Order 11593,

and all claims for the award of costs and attorneys’ fees

except where specifically authorized by statute.

TWELFTH AFFIRMATIVE DEFENSE

The defendants answer the numbered paragraphs of

the complaint as follows:

1. This paragraph contains plaintiffs’ characteriza-

tion of their action to which no answer is required, but

insofar as an answer may be required, denied.

2. Denied.

3. This paragraph contains conclusions of law to which

no answer is required, but insofar as an answer may be

required, denied.

4-5. Admitted.

6. This paragraph contains a conclusion of law to

which no answer is required.

7-8. Admitted.

9. Admitted, except to deny that defendant Harold

Brown is before the Court in his individual capacity.

10. Admitted, except to deny that defendant W.

Graham Claytor is before the Court in his individual

capacity.

11. Admitted, except to deny that defendant James

L. Holloway is before the Court in his individual capacity.

12. Admitted, except to deny that defendant I. C.

Kidd, Jr. is before the Court in his individual capacity.

13. Admitted, except to deny that defendant Louis H.

Wilson is before the Court in his individual capacity.

14. This paragraph contains a conclusion of law to

which no answer is required.

15. Admitted.

16. Admitted, except to state that defendants are

without knowledge or information sufficient to form a

belief as to the presence, if any, of endangered species

or the degree, if any, to which birds, horses, and marine

life are supported by coral reefs, mangrove swamps,

marine grasses, and beach habitats.

17. Admitted.

18. The first sentence is admitted. The second sen-

tence is denied, as the major portion of the Navy’s

property on the island is utilized only as a buffer zone

for safety reasons. The last sentence is admitted, except

to deny that more than a limited portion of the coastal

waters surrounding the island is utilized for the de-

scribed purposes.

19. Denied.

20. The first two sentences are denied, except to ad-

mit that some coastal waters around Vieques are peri-

odically utilized for military operations. The third sen-

tence is denied. The last sentence is denied, except to

admit a few cattle have been killed by military opera-

tions when the animals were improperly present on

restricted property owned by the United States.

21. Defendants are without knowledge or informa-

tion sufficient to form a belief as to the precise nature

or amount, if any, of water pollution; damage, harm,

and danger alleged in this paragraph, except to deny

the characterization of damage to the ocean waters as

irreparable.

22. Defendants are without knowledge or information

sufficient to form a belief as to the truth of the averments

in this paragraph, except to deny that the noise caused

by the described operations is unreasonably destructive to

the property, comfort, enjoyment, and health of plaintiffs,

or unreasonably deprives plaintiffs of the full and normal

enjoyment, use and value of their property.

23.-27. Denied

FIRST CLAIM

28. Defendants reallege and incorvorate their answers

to paragraphs 1 through 27 of the complaint.

29.-33. These paragraphs contain conclusions of law

to which no answer is required, but insofar as an answer

may be required, denied.

34. Denied, except to admit that defendants have as-

sisted in the preparation of budget requests which con-

tained funds for operations on Vieques, though not as dis-

crete budget items, except to admit that Operation Spring-

board has been undertaken each year, and except to admit

that Operation Solid Shield 78 was planned, but has

now been cancelled.

35.-36. These paragraphs contain conclusions of law

to which no answer is required, but insofar as an answer

may be required, denied.

37. Denied.

38. Denied, except to admit that defendants have as-

sisted in the preparation of budget requests which con-

tained funds for operations on Vieques, though not as

discrete budget items, and that no environmental impact

statements were filed. Whether an environmental im-

pact statement is required in such circumstances is a

conclusion of law to which no answer is required, but in-

sofar as an answer may be required to that averment,

denied.

39. Denied, except to admit that no environmental im-

pact statement has been filed.

40. This paragraph contains a conclusion of law to

which no answer is required, but insofar as an answer

may be required, denied.

41. This paragraph contains mixed averments of law

and fact. All factual averments are denied. Insofar as

an answer may be required to the legal conclusions con-

tained in this paragraph, denied.

42. This paragraph contains a conclusion of law to

which no answer is required, but insofar as an answer

may be required, denied, except to admit that they have

no plans to cease military training operation on

Vieques.

43. This paragraph contains conclusions of law to

which no answer is required, but insofar as an answer

may be required, denied.

The remaining paragraphs of plaintiffs’ First Claim

for Relief contain plaintiffs’ prayer for relief to which

no answer is required, but insofar as an answer may be

required, denied.

SECOND CLAIM

44. Defendants reallege and incorporate their answers

to paragraphs 1 through 43 of the complaint.

45.-47. These paragraphs contain conclusions of law

to which no answer is required, but insofar as an answer

may be required, denied.

48. (a) Denied, except to admit that defendants oper-

ate a sewage treatment facility on Vieques.

(b) Denied, except to admit that occasionally ordnance

accidentally falls into the waters surrounding Vieques.

Defendants are without knowledge or information suffi-

cient to form a belief as to the precise environmental

effects, if any, of such occurrences,

49. Admitted.

50. This paragraph contains a conclusion of law to

which no answer is required, but insofar as an answer

may be required, denied.

The remaining paragraphs of plaintiffs’ Second Claim

for Relief contain plaintiffs prayer for relief to which

no answer is required, but insofar as an answer may be

required, denied.

THIRD CLAIM

51. Defendants reallege and incorporate their answers

to paragraphs 1 through 50 of the complaint.

52. This paragraph contains a conclusion of law to

which no answer is required, but insofar as an answer

may be required, denied.

53. Denied, except to admit that occassionally ord-

nance accidentally falls into the ocean waters around

Vieques while defendants are conducting military train-

ing operations.

54. Denied, except to admit that occassionally ord-

nance accidently falls into the ocean waters around

Vieques while defendants are conducting military train-

ing operations, and conducting military training opera-

tions, and except to state that defendants are without

knowledge or information sufficient to form a belief as to

the precise environmental effects, if any, of such acci-

dental occurrences,

55. Denied, except to admit that occasionally ord-

nance accidentally falls into the ocean waters around

Vieques, and that no permit has been issued by the En-

vironmental Protection Agency.

56. This paragraph contains a conclusion of law to

which no answer is required, but insofar as an answer

may be required, denied.

The remaining paragraphs of plaintiffs’ Third Claim

for Relief contain plaintiffs’ prayer for relief to which

no answer is required, but insofar as an answer may be

required, denied.

FOURTH CLAIM

57. Defendants reallege and incorporate their answers

to paragraphs 1 through 56 of the complaint.

58.-65. These paragraphs contain conclusions of law

to which no answer is required, but insofar as an answer

may be required, denied.

66. Defendants are without knowledge or information

sufficient to form a belief as to the truth of the averments

in this paragraph, except to deny plaintiffs’ characteri-

zation of the alleged harm as irreparable.

67.-68. Defendants deny that oil, scum, or debris is

released into the coastal waters of Vieques. Defendants

are without knowledge or information sufficient to form

a belief as to the truth of the remaining averments of

these paragraphs.

69.70. These paragraphs contain conclusions of law

to which no answer is required, but insofar as an answer

may be required, denied.

The remaining paragraphs of plaintiffs’ Fourth Claim

for Relief contain plaintiffs’ prayer for relief to which

no answer is required, but insofar as an answer may be

required, denied,

FIFTH CLAIM

71. Defendants reallege and incorporate their answers

to paragraphs 1 through 70 of the complaint,

72.-74. These paragraphs contain conclusions of law

to which no answer is required, but insofar as an answer

may be required, denied.

75. Defendants are without knowledge or information

sufficient to form a belief as to the truth of the aver-

ments in this paragraph.

76. This paragraph contains a conclusion of law to

which no answer is required, but insofar as an answer

may be required, denied.

The remaining paragraphs of plaintiffs’ Fifth Claim

for Relief contain plaintiffs’ prayer for relief to which

no answer is required, but insofar as an answer may be

required, denied.

SIXTH CLAIM

77. Defendants reallege and incorporate their answers

to paragraphs 1 through 76 of the complaint.

78. Defendants are without knowledge or information

sufficient to form a belief as to the precise level or effects,

if any, of shock waves and noise caused by military

operations on Vieques, except to deny plaintiffs’ charac-

terization of such noise as excessive and the interference

caused as unreasonable,

79.-80. These paragraphs contain conclusions of law

to which no answer is required, but insofar as an answer

may be required, denied.

81. This paragraph contains mixed averments of law

and fact. The factual averments are denied, except to

state that defendants are without knowledge or informa-

tion sufficient to form a belief as to the precise nature

and effects, if any, of shock waves and noise caused by

military operations on Vieques. Insofar as an answer

may be required to the legal conclusions contained in this

paragraph, denied.

The remaining paragraphs of plaintiffs Sixth Claim

for Relief contain plaintiffs’ prayer for relief to which no

answer is required, but insofar as an answer may be

required, denied.

SEVENTH CLAIM

82. Defendants reallege and incorporate their answers

to paragraphs 1 through 81 of the complaint.

83.-84. These paragraphs contain conclusions of law

to which no answer is required, but insofar as an answer

may be required, denied.

85. Denied, except to admit that defendants have oper-

ated and continue to operate a solid waste collection

service and sanitary landfill without securing a permit,

maintaining the operational record referred to, or sub-

mitting periodic reports, and except to admit that de-

fendants refused to allow certain individuals to enter

property owned by the Navy until those individuals

presented credentials esting that they were authorized

representatives of the Board. Defendants presently are

in the process of obtaining a permit and otherwise com-

plying with Puerto Rican requirements respecting the

described solid waste collection service and sanitary land-

fill, and authorized representatives of the Board have

beer. allowed to enter Navy property since presenting

cheir credentials.

86.-87. These paragraphs contain conclusions of law

to which no answer is required, but insofar as an answer

may be required, denied, except to admit that defendants

have operated a solid waste collection service and sani-

tary landfill without a permit, without maintaining the

operational records referred to, and without submitting

periodic reports to the Board. Defendants presently are

in the process of securing a permit and otherwise comply-

ing with Puerto Rican requirements respecting the solid

waste collection service and sanitary landfill.

The remaining paragraphs of plaintiffs’ Seventh Claim

for Relief contain plaintiffs’ prayer for relief to which

no answer is required, but insofar as an answer may be

required, denied.

EIGHTH CLAIM

88. Defendants reallege and incorporate their answers

to paragraphs 1 through 87 of the complaint.

89.-95. These paragraphs contain conclusions of law

to which no answer is required, but insofar as an answer

may be required, denied.

96. Defendants are without knowledge or information

sufficient to form a belief as to the truth of the aver-

ments in this paragraph.

97. This paragraph consists of a single compound

sentence which states a conclusion of law to which no

answer is required. Insofar as separate allegations of

fact are contained therein, they are denied. Defendants

have been and are in the process of performing the actions

this paragraph alleges they have not taken.

98. This paragraph contains a conclusion of law to

which no answer is required, but insofar as an answer

may be required, denied.

The remaining paragraphs of plaintiffs’ Eighth Claim

for Relief contain plaintiffs’ prayer for relief to which

no answer is required, but insofar as an answer may be

required, denied.

NINTH CLAIM

99. Defendants reallege and incorporate their answers

to paragraphs 1 through 98 of the complaint.

100.104. These paragraphs contain conclusions of

law to which no answer is required, but insofar as an

answer may be required, denied.

105. Admitted.

106. Defendants are without knowledge or informa-

tion sufficient to form a belief as to the truth of the aver-

ments in this paragraph.

107.-108. Denied, except to state that defendants are

without knowledge or information sufficient to form a

belief as to the precise effects, if any, of shock waves and

noise generated by their military activities and operations

upon the described buildings.

109.-112. These paragraphs contain conclusions of law

to which no answer is required, but insofar as they con-

tain averments of fact, they are denied, except to state

that defendants are without knowledge or information

sufficient to form a belief as to the precise effects, if any,

of shock waves and noise generated by their military

activities and operations upon the described buildings.

113. Defendants are without knowledge or information

sufficient to form a belief as to the truth of the averments

in this paragraph.

114.-115. Denied.

116. Denied.

117. Denied.

118. This paragraph contains a conclusion of law to

which no answer is required, but insofar as an answer

may be required, denied.

The remaining paragraphs of plaintiffs’ Ninth Claim

for Relief contain plaintiffs’ prayer for relief to which

no answer is required, but insofar as an answer may be

required, denied.

TENTH CLAIM

119. Defendants reallege and incorporate their answers

to paragraphs 1 through 118 of the complaint.

120. This paragraph contains a conclusion of law

to which no answer is required, but insofar as an answer

may be required, denied.

121. Admitted.

122. Defendants are without knowledge or information

sufficient to form a belief as to the truth of the averment

in this paragraph.

123. Defendants admit that there are certain incon-

sistencies between their military operations and the pro-

posed program, but deny the remaining averments of this

paragraph.

124. Denied.

The remaining paragraphs of plaintiffs’ Tenth Claim

for Relief containing plaintiffs’ prayer for relief to

which no answer is required, but insofar as an answer

may be required, denied.

ELEVENTH CLAIM

125. Defendants reallege and incorporate their answers

to paragraphs 1 through 124 of the complaint.

126. Denied, except to state that defendants are

without knowledge or information sufficient to form a

brief as to the precise environmental effects, if any, of

their military operations.

127. Denied.

128. Denied, except to admit that occasionally ordnance

accidentally falls into the waters adjacent to Vieques

while military training operations are taking place. De-

fendants are without knowledge or information sufficient

to form a belief as to the precise effects, if any, of such

occasional occurrences on those who use said waters.

129. Denied.

130. This paragraph contains a conclusion of law to

which no answer is required, but insofar as an answer

may be required, denied.

131. Denied, except to admit that a few complaints

about military operations have been received by defen-

dants.

132. Denied, except to admit that defendants have

no plans to discontinue their military training operations

on and in the vicinity of Vieques.

133. This paragraph contains a conclusion of law

to which no answer is required, but insofar as an

answer may be required, denied.

The remaining paragraphs of plaintiffs’ Eleventh Claim

for Relief contain plaintiffs’ prayer for relief to which

no answer is required, but insofar as an answer may be

required, denied.

TWELFTH CLAIM

134. Defendants reallege and incorporate their an-

swers to paragraphs 1 through 133 of the complaint.

135. Admitted, except to deny that Culebra is within

the Inner Range of the Atlantic Fleet Weapons Range.

136. Admitted.

137. Denied, the types of operations on Vieques have

changed to an insignificant degree since the cessation

of operations on Culebra, but there has been no increase

in the level of milita , activity or operations on Vieques.

138.-140, Denied.

141. Denied, except to admit that Dr. Henry Kissinger

of the National Security Council, acting for the President,

directed that military operations be terminated on Cul-

ebra, and that the Secretary of Defense should consider

and select alternative sites for weapons training activities.

The selection of a new site, if it was in Puerto Rico, was

contingent upon its being acceptable to the Common-

wealth.

142. Admitted, except to deny that such operations

have been transferred.

143. Denied.

144,-145. These pargaraphs contain conclusions of law

to which no answer is required, but insofar as an answer

may be required, denied.

146. Denied.

147.-152. These paragraphs contain conclusions of law

to which no answer is required, but insofar as the para-

graph contains averments of fact, they are denied.

153. Denied.

154. This paragraph contains a conclusion of law to

which no answer is required, but insofar as an answer

may be required, denied.

The remaining paragraphs of plaintiffs’ Twelfth Claim

for Relief contain plaintiffs’ prayer for relief to which

no answer is required, but insofar as an answer may be

required, denied.

THIRTEENTH CLAIM

155. Defendants reallege and incorporate their answers

to paragraphs 1 through 154 of the complaint.

156.-159. These paragraphs contain conclusions of law

to which no answer is required, but insofar as an answer

may be required, denied.

160. Denied, except to admit that no permit has been

obtained.

161. Admitted.

162. This paragraph contains a conclusion of law

to which no answer is required, but insofar as an

answer may be required, denied.

The remaining paragraphs of plaintiffs’ Thirteenth

Claim for Relief contain plaintiffs’ prayer for relief to

which no answer is required, but insofar as an answer

may be required, denied.

The defendants hereby specifically deny each and every

allegation of the complaint not otherwise answered.

Wherefore defendants deny that plaintiffs are entitled

to the relief prayed for in their complaint, and request

that the complaint be dismissed.

Respectfully submitted,

JAMES W. MOORMAN

Assistant Attorney General

/8/ Julio Morales-Sanchez

JULIO MORALES-SANCHEZ

District of Puerto Rico

United States Attorney

/s/ Dorothy R. Burakreis

DoroTHY R. BURAKREIS

Attorney, Lands and Natural

Resources Division

Department of Justice

Washington, D.C. 20530

Attorney for the United States

Dated: May 17, 1978

CERTIFICATE OF SERVICE BY MAIL

I hereby certify that a true copy of the foregoing

motion has been mailed on this date to Geradro A. Carlo,

Esquire, Special Counsel to the Governor, Commonwealth

of Puerto Rico, La Fortaleza, San Juan, P.R.; John A.

Hodges, Esquire, 1150 Connecticut Ave. N.W., Washing-

ton, D.C. 20036; Pedro J. Saade Llorens, Esquire, Puerto

Rico Legal Services, Inc., Environmental Quality Unit,

Box 9134, Santurce, P.R. 00908; Judith Berkan, Esquire,

Calle Mayaguez # 212, Apt. 3-B, Hato Rey, P.R. 00917;

Wilfredo A. Geigel, Esquire, P.O. Box. 9187, Santurce,

P.R. 00908.

/8/ Julio Morales Sanchez

JULIO MORALES SANCHEZ

United States Attorney

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

Civil Action No. 78-323

CARLOS ROMERO-BARCELO,

Governor of Puerto Rico, ET AL., PLAINTIFFS

HAROLD BROWN, ET AL., DEFENDANTS

Civil Action No. 78-377

Luis MEDINA, ET AL., PLAINTIFFS

HAROLD BROWN, ET AL., DEFENDANTS

SUPPLEMENTAL COMPLAINT

TO THE HONORABLE COURT:

Come now plaintiffs in the above-captioned case and

through their undersigned attorneys hereby supplement

their Complaint by adding the following at the end of

Paragraph 2:

More than sixty days have passed (1) since plaintiffs

filed their Complaint and (2) since they notified, by

means of, inter alia, their “Further Notice of Ongoing

Violations,” the Secretaries of Defense, the Navy, In-

terior and Commerce, the Administrator of the Environ-

mental Protection Agency, the Regional Administrator

for E.P.A. Region II, the Commandant of the Marine

Corps, the Chief of Naval Operations and the Commander

in Chief of the United States Atlantic Fleet that mili-

tary operations on Vieques are in violation of the Fed-

eral Water Pollution Control Act, as amended, 33 U.S.C.

§ 1251, et. seq.; the Marine Protection Research and

Sanctuaries Act, 33 U.S.C. § 1401, et. se., the Clean Air

Act, as amended, 42 U.S.C. § 7401 et. seqg.; the Noise

Control Act, 42 U.S.C. § 4911, et seg.; the Resource Con-

servation and Recovery Act, 42 U.S.C. § 6091, et seg.; the

Endangered Species Act, 16 U.S.C. § 1540, et seg.; and

regulations promulgated thereunder.

Respectfully submitted,

/s/ Miguel Gimenez Munoz

MIGUEL GIMENEZ MUNOZ

Secretary of Justice

Commonwealth of Puerto Rico

San Juan, Puerto Rico

/s/ Gerardo A. Carlo

GERARDO A. CARLO

Special Counsel to the Governor

Commonwealth of Puerto Rico

La Fortaleza

San Juan, Puerto Rico

/s/ John A. Hodges

JOHN A. HODGES

1150 Connecticut Avenue, N.W.

Washington, D.C. 20036

/s/ Timothy L. Harker

TiMOTHY L. HARKER

1150 Connecticut Avenue, N.W.

Washington, D.C. 20036

Attorneys for Plaintiffs

PEABODY, RIVLIN, LAMBERT & MEYERS

1150 Connecticut Avenue, N.W.

Washington, D.C. 20036

LEWIS A. RIVLIN

1150 Connecticut Avenue, N.W.

Washington, D.C. 20036

Of Counsel

JORGE L. CORDOVA, JR.

Office of the Commonwealth of Puerto Rico

1625 Massachusetts Avenue, N.W.

Washington, D.C. 20086

Of Counsel

Date: June 80, 1978.

EXCERPTS FROM PLAINTIFFS’ PROPOSED

FINDINGS OF FACT

Intensity of Navy Weapons Training on Vieques

11. Navy weapons fire against the land and waters

of Vieques is intense. In 1977, in and around Vieques,

the Navy:

a. dropped approximately five million pounds of ord-

nance (CRB Exh. 417, Answer to Interrogatory No.

28) ;

b. scheduled 1518 hours of air-to-ground training dur-

ing which jet aircraft dropped 107,206 missiles and bombs

and flew 3488 missions. Each mission involves multiple

runs for each aircraft on and around the target. (CRB

Exh. 417, Answer to Interrogatory No. 1.A) ;

c. scheduled approximately 1017 hours of NGFS train-

ing during which destroyers fired 8700 rounds of three-

inch, five-inch and eight-inch ordnance (CRB Exh. 417,

Answer to Interrogatory No. 1.B.) ;

d. scheduled approximately 40 hours of Marine artil-

lery and amphibious training during which 225 artillery

rounds were fired. Each amphibious operation involves

multiple approaches and departures from the beaches of

Vieques for each amphibious landing craft utilized. (CRB

Exh. 417, Answer to Interrogatory No. l.c.; Barr, Tr.

2802-03.)

12. The Navy has tremendously intensified the level

of weapons firing against Vieques.

a. The Navy dropped approximately 922,000 pounds

of ordance on or around Vieques in the last six months

of 1973 and 3,886,000 pounds in the first six months of

1978. (CRB Exh. 417, Answer to Interrogatory No. 23.)

b. In 1970 the Navy fired against Vieques a total of

approximately 35,000 missiles and bombs in air-to-ground

training and approximately 1000 rounds in NGFS. (CRB

Exh. 123.)

e. Between 1974 and 1977 the Navy increased by over

900 percent the number of 500 (MK82), 1,000 (MK83),

and 2,000 (MK84) pound bombs dropped on and around

Vieques, (CRB Exh. 417, Answer to Interrogatory No.

25.b.)

d. Combined weapons training activity (training of

NGFS and air-to-ground together) on Vieques increased

from five hours in 1970 to 362 hours in 1977, while the

level of combined training decreased on Culebra from

1970 to 1975. (CRB Exhs. 409 and 410.)

The Ordnance Fired at Vieques

13. The ordnance fired at Vieques are generally as

follows:

a. Air-to-ground bombing and strafing uses live bombs

generally of the following sizes: 2,000 pounds (945 Ibs.

TNT equivalent), 1,000 pounds (445 lbs. TNT equiva-

lent), 500 pounds (192 lbs. TNT equivalent), and 250

pounds (100 lbs. TNT equivalent). Strafing and rocket

fire utilize high explosive rockets and machine gun fire

that the military considers “inert” ordnance, Air-to-

ground bombing and strafing use other types of “inert”

ordnance besides machine gun fire, some of which (e. g.,

the 500 Ib. “practice bomb“) contains an explosive charge.

(CRB Exh, 417, Answer to Interrogatory No. 28; Barr,

Tr. 2877-78.)

The Lack of Appropriate Safety and

Environmental Restriction on the Manner in

Which the Navy Bombards, Shells and Strafes Vieques.

15. The evidence shows lack of appropriate safety and

environmental restriction on the manner in which the

Navy bombards, shells and strafes Vieques:

a. Evidence abounds that the Navy frequently misses

target areas causing great risk to safety and environ-

mental destruction. (Findings passim.)' However, the

Navy has no reliable knowledge of the frequency, range

or magnitude of its misses. In the brief period since the

filing of this lawsuit plaintiffs were able to discover evi-

dence of the following extraordinary misses.

1) On October 16, 1973 a Navy destroyer overshot the

AIA sending a live projectile approximately six miles to

the northeast of Vieques. That projectile landed in the

vicinity of a private vessel, (Court’s Exh. 6.)

2) In June 1976 a 2,500 pound missile misfired and

landed near the town of Isabel Segunda. (CRB Exh.

154.) This missile possesses the speed range of 350 to

550 knots. (CRB Exh. 37; CRB Exh. 417, Interrogatory

Answer 185; CRB Exh. 154; Barr, Tr. 2909-10.) The

Navy defines this drone missile as being “inert” by vir-

tue of the same criteria utilized to conclude that machine-

gun bullets and certain other rockets, bombs and missiles

fired at Viques are inert, i.¢., it allegedly does not con-

tain an explosive warhead, although some “inert” ordi-

nance do contain an explosive charge and other chemical

composition. (CRB Exh. 417, Answer to Interrogatory

No. 23 a.)

3) Admiral Kinnear testifled that the miss potential

for air-to-ground bombing is in terms of miles. (Kin-

near, Tr. 3274-75.)

4) Former Range Commander Barr testified that

NGFSS shells and air-to-ground bombs are fired at Vieques

that are “lost,” i.e. no one knows where they went.

(Barr, Tr. 2956.) He testified that he is personally

aware of a four-mile NGFS overshot. (Barr, Tr. 2957.)

5) Range Officer Lee testified that during air-to-

ground bombing, bombs are also lost, i.¢., no one knows

where they went. (Lee, Tr. 6392.) Lee also testified

that during air-to-ground bombing, if, for example, one

aircraft drops five or six bombs during one approach, if

any one bomb hits the target area, the Navy scores the

run as a “hit” even if the other bombs miss the target.

During the October 18, 1978 site visit by the Court one

such incident was observed in which a bomb was dropped

into the coastal waters but was not scored as “off-target”

because other bombs dropped in that run on the target

hit the target area. (Lee, Tr. 6392.)

6) The Navy admits that:

“However, in view of the large amount of live

ordnance dropped in the water in the Surface Dan-

ger Area surrounding eastern Vieques and the re-

sultant amount of unexploded ordnance ending up

on the ocean bottom, it should be considered para-

mount for safety that steps be taken to forbid at

all times, diving, anchoring, botton. fishing and

trapping within at least one mile of the Vieques

coast inside the Surface Danger Aren.“ (CRB Exh.

233, Enel. 1 p. 5.)

Defendants Have Admitted Damaging E ffects

With Respect to The Reefs of Vieques.

114. Defendants have admitted that continued and

expanded range use on Vieques “would cause a subtle

and adverse impact to the total marine environment of

these [Vieques] waters.” (FAAH Exh. 15, p. 3-104.)

115. Defendants have also admitted the potential for

a sediment problem with respect to a runoff of sediment

from the impact area affecting the marine environment,

including coral. Thus, they have admitted that the deeper

slopes within the impact area are subject to erosion

initiated by ordnance impacts. (FAAH Exh. 15, p. 3-

89.) They then went on to admit that:

“Surface runoff from these areas would tend to

increase sediment-loading in the island’s peripheral

lagoons and other coastal waters with resultant en-

vironmental damage to aquatic marine ecology, espe-

cially the coral reef systems.” (Emphasis added.)

(Id.)

“Continuous detonation of explosives above or below

surface target areas will eventually cause pulveri-

zation of soil with resultant erosion from wind and

surface waters. This would limit the restoration of

growth in these areas. . Aerial and ship-to-shore

bombardment of impact zones is usually accompanied

by some ordnance falling long or short of the target

areas. The potential adverse impact from this

threatens damage to thalassia grass beds and man-

grove zones. . Direct fish kills from the impact

of stray ordnance may be expected, however, a more

serious consequence is the long-term damage to

aquatic life forms resulting from the explosive de-

struction of habitat, turbidity that reduces the pho-

tosynthesis in turtle grass zones and the sedimenta-

tion of live coral systems.” (FAAH Exh. 15, p. 3-

94.)

Defendants have also admitted that a transfer from

Culebra to Vieques would result in irreparable damage

to coral reefs. “Although much of the resulting ecologi-

cal damage may be repaired by nature in time, some

damage to coastal zones, and reef systems in particular,

is irreparable.” (Emphasis added.) (FAAH Exh. 15,

p. 3-115.)

116. Defendants’ own maps and written materials

admit specifically that reef and water areas around the

eastern portion of Vieques are saturated with ordnance.

For example, defendants admit in a map they prepared

in 1978 that the northeast coast of Vieques, including its

waters and reef areas from Punta Este to a point ap-

proximately half way between Puerto Diablo and Punta

Goleta, is “saturated” with ordnance. (CRB Exh. 181,

Appendix 1 hereto.) They also admit that the south

coast of Vieques, including water and its reef areas from

Punta Este to a point in the ocean just east of Laguna

Matias is “saturated” with ordnance. (Id.) This “satu-

rated” area includes Roca Alcatraz and most of Cayo

Conejo. In addition, in the same map defendants admit

that ordnance might be present almost to Punta Goleta on

the north and to the middle Ensenada Honda in the

south. (CRB Exh. 181.)

117. Defendants admit that large areas within the

“sacvurated” areas mentioned above are “super-saturated”

with ordnance. During the April 10, 1978 hearing before

this court, defendants introduced a map, which indi-

cated 10 areas marked on” L 0 9 * , e

„G, H,“ “I” and “J”, (Exh. 1, at April 10, 1978,

hearing (hereafter “April 10 Exh. 1”) (Appendix 2

hereto) ; see transcript of April 10, 1978 hearing (here-

inafter “April 10 Tr. at 113-151.) This exhibit was

sponsored by the defendants with extensive supporting

testimony. Defendants specifically characterized these

as “super-saturated.” (April 10 Tr. 118-119.) These

10 areas include and/or border on important coral reefs

on the eastern end as depicted on April 10 Exh. 1. Each

area is discussed below:

a. Supersaturated Area “A” is a trapezoidal area that

covers most of Bahia, Salina del Sur, including reefs on

its eastern portion. Area “A” extends out to Roca Alca-

traz. (April 10 Exh. 1; April 10 Tr. 124-125.) As

stated by a Navy witness during examination with re-

spect to Area “A:”

“Q. Why is such a large area covered in A as

being extremely dangerous?

A. What we have gone by on here is our previous

experiences and observations in the past along with

A, as we have been in that area, and it was satu-

rated with 2,000 pound bombs and 15,000 pound

bombs.

I am sorry—1,000 pound bombs the last time I

was there.

Q. And that includes all the way up to [Roca

Alcatraz?

A. That is correct.” (Emphasis added.) (April 10

Tr. 134-135.)

b. Supersaturated Area “B” extends from the fore-

reef edge of the reef at Punta Icacos, thence west to the

northern portion of Puerto Diablo, including reefs at

Puerto Diablo as depicted on defendants’ exhibit. (April

10 Exh. 1; April 10 Tr. 130-131.)

ce. Supersaturated Area C“ covers almost the entire

Bahia Icacos and includes Isla Yallis. It includes portion

of or touches on three reef areas as depicted on the de-

fendants’ exhibit. The Navy witness indicated specifically

that ordnance covers “the entire area C.” (April 10

Exh. 1; April 10 Tr. 135.)

d. Supersaturated Area “D” covers Laguna Anones as

well as land areas and a portion of Bahia Salina del

Sur near its northeastern shore. (April 10 Exh. 1.)

e. Supersaturated Area E“ includes Bahia Salinas

on the north of Vieques. It includes or touches three

reef areas as depicted on the defendants’ exhibit. (April

10 Exh. 1; April 10 Tr. 136.)

f. Supersaturated Area “F” is on land just to the

east of Laguna Anones. (April 10 Exh. 1; April 10

Tr. 136.)

g. Supersaturated Area “G” borders Area “A” in and

includes a portion of Bahia Salina del Sur that contains

a reef as depicted on defendants’ exhibit. (April 10 Exh.

1; April 10 Tr. 137-138.)

h. Supersaturated Area “H” is on land to the east of

Laguna Anones. (April 10 Exh. 1; April 10 Tr. 138.)

i. Supersaturated Area “I” is on land near Penasco

Fosil and borders the reef there as depicted on defend-

ants’ exhibit. (April 10 Exh. 1; April 10 Tr. 138-139.)

j. Supersaturated Area “J” touches a reef just to the

east of Punta Salinas, includes another reef farther to

the east, and borders another reef somewhat farther to

the east. (April 10 Exh. 1; April 10 Tr. 138-139.)

118. Additional documents prepared by defendants in-

dicate the presence of ordnance all the way to south of

Cayo Conejo. (See CRB Exh. 212, 12; CRB Exh. 232;

CRB Exh. 233, Encl. 1, p. 5; Finding 15(a) (6).)

* * * *

Evidence Introduced at Trial Confirms the Existence

of Military Damage to The Reefs of Vieques.

120. Items discovered in the waters of Vieques near

the reefs include metal fragments of airborne bombs,

artillery shells, practice ordnance, parachutes, parachute

cables, flares, flaring casings, barges and other military

vessels, machine gun rounds, bazooka rockets and many

unidentifiable ordnance fragments. (See, e.g., G. Cintron,

Tr. 1782-1786, 1805-1808, 1813, 1817, 1819-1820, 1830,

1954; CRB Exhs. 312, 313 (large caliber machine gun

rounds), 314 (metal).)

121. Mr. Cintron described some of the kinds of dam-

age caused by such military activities on Vieques:

a. Shells that detonate in the vicinity of the reef

cause shearing and cleavage of coral structures, thereby

exposing the internal structure of the coral to predatory

organisms. (G. Cintron, Tr. 1786-1787, 1794, 1795, 1807,

1941.) Damage to corals, for example, opens the way

to the growth of blue-green algae, which has concerned

many scientists because of a possible link to ciguatera, a

type of fish poisoning. (G. Cintron, Tr. 1795.) Two

species of coral found off of Vieques, acropora palmata

and the columbus lobate form of montastrea annularis,

are especially susceptible to damage from blasting,

which tends to split the coral open. (Acropora plays an

important role in providing shelter for turtles and fish.

(G. Cintron, Tr. 1787.)) Colonies of these two species

of coral have sustained widespread damage in areas that

are very sheltered and not subject to wave motion.

(G. Cintron, Tr. 1787, 1822.) The blasting also loosens

coral, making them susceptible to toppling from move-

ment of the water. (G. Cintron, Tr. 1789.)

b. Metal fragments that strike a reef cause both me-

chanical breakage and abrasions on the living skin of

coral. Abrasions, by cutting the surface of the coral, in-

crease its vulnerability to infections. Military debris and

coral fragments broken off the reef can be moved by a

swell and cause further damage to adjacent colonies.

This has occurred on Vieques reefs. (G. Cintron, Tr.

1789, 1791, 1793, 1831, 1941-1950.)

e. Ordnance, military hardware and other heavy

debris striking the ocean floor or detonating in the vicin-

ity of a reef puts sediments into suspension, which are

then transported by the current and deposited on nearby

reefs. Sediment from blasting which is deposited on

coral colonies tends to stay there, due to the slightly con-

cave shape of the colonies. Sedimentation damages or

kills living coral. A number of reefs off Vieques bear

evidence of sedimentation damage. (G. Cintron, Tr.

1794, 1799, 1809, 1969.)

d. Shell fragments and other military debris that

come to rest on the surface of a coral reef cause the

death of underlying coral tissues by shading the coral

from necessary sunlight and by impeding feeding mech-

anisms. Such dead areas are sites for infection. (G. Cin-

tron, Tr. 1787-1793.)

e. The waters surrounding Vieques contain para-

chutes and shreds of parachute. (G. Cintron, Tr. 1784

1785; 1954, CRB Exh, 351) Parachutes that fall into

the water and come to rest draped over coral colonies

cause the death of all underlying coral tissues. (G. Cin-

tron, Tr. 1792, 1821.)

122. Photographic evidence and accompanying testi-

mony corroborates the existence of damage in the coral

areas of Vieques. See, e. g., CRB Exhs. 310 (58), 310

(56), 310 (57), 310(6), G. Cintron, Tr. 1802-1804

(highly disturbed reef areas in the north shore area,

with bomb fragments); CRB Exh. 310 (51), G. Cintron,

Tr. 1805-1806 (recently-dropped drag fin in barrier reef

in Bahia Salina del Sur; drag fins are “exceedingly com-

mon” in Bahia Salina del Sur); CRB Exh. 310(52),

G. Cintron, Tr. 1806-1808 (area near Roca Alcatraz con-

taining large circular holes in acropora palmata frame-

work, sometimes more than 20 meters in diameter; air-

craft-delivered object visible near large crater; “exten-

sive” damage to reef); CRB Exhs. 310(30), 310(25),

G. Cintron, Tr. 1808-1809 (drag fin in very disturbed

barrier reef area in Bahia Salina del Sur); CRB Exh.

310 (27), G. Cintron, Tr. 1809-1811 (large metal frag-

ment in Bahia Salina del Sur; sediment damage); CRB

Exh. 310 (53), G. Cintron, Tr. 1812-1813 (ordnance

[perhaps flare casing] in acropora palmata area); CRB

Exhs. 310 (31), 310 (33), G. Cintron, Tr. 1813-1814

(flare casings and cables formerly attached to parachutes

in coral areas); CRB Exhs. 310(50), 310(49), G. Cin-

tron, Tr. 1814-1815 (metallic object, larger than a human

being, resting on coral southwest of Roca Alcatraz) ; CRB

Exhs. 310(19), 310(9), G. Cintron, Tr. 1816 (large

piece of ordnance in reef in Bahia Salinas in north coast

of Vieques; coral damage visible); CRB Exhs. 310 (11),

310(4), G. Cintron Tr. 1816-1817 (large piece of ord-

nance in acropora palmata coral in Bahia Salinas in

north coast of Vieques); CRB Exh. 310 (44), G. Cin-

tron, Tr. 1817 (round of “artillery” ordnance at reef

near Punta Gato); CRB Exhs. 310(55), 310 (54),

G. Cintron, Tr. 1817-1818 (cratered reef area near Roca

Alcatraz, large metal objects near craters); CRB Exh.

810(8), G. Cintron, Tr. 1819 (“artillery” shell lodged in

reef crevice); CRB Exh. 310(20), G. Cintron, Tr. 1819-

1820 (inert ordnance on reef off Punta Gato) ; CRB Exh.

810(29), G. Cintron, Tr. 1820 (“artillery“ round in

highly disturbed site near cr at barrier reef on south

coast of Bahia Salina del Sur); CRB Exhs. 310 (47),

310 (48), G. Cintron, Tr. 1870-1821 (parachutes draped

around coral colonies thus killing the coral); CRB Exh.

310 (3), G. Cintron, Tr. 1822 (effects of probable direct

hit on massive colonies of monastrea annularis; coral

colony split; pieces have lost their orientation and are ly-

ing on their side); CRB Exh. 310 (45), G. Cintron, Tr.

1822-1823 (large colony of montastrea annularis cleaved

by a blast); CRB Exh. 310(2), G. Cintron, Tr. 1823-

1824 (crater off patch reef at Bahia Salinas in north of

Vieques) ; CRB Exh. 310(42), G. Cintron, Tr. 1824-1825

(crack in reef framework); CRB Exh. 310 (10), G. Cin-

tron, Tr. 1826-1827 (coral rubble, including sheared

coral blades) ; CRB Exh. 310 (62), G. Cintron, Tr. 1828

(craters off northeast flank of Roca Alcatraz); CRB

Exh. 310 (61), G. Cintron, Tr. 1828 (sedimentation and

coral rubble in barrier reef in Bahia Salina del Sur) ;

CRB Exh. 310(22), G. Cintron, Tr. 1830 (living coral

cover stripped from patch reef in north coast of Bahia

Salinas; reef framework full of large cracks, rocks loose,

metal fragment visible); CRB Exh. 310(14), G. Cin-

tron, Tr. 1830-1831 (disturbed colony of montastrea an-

nularis at barrier reef in Bahia Salina del Sur); CRB

Exh, 310(15), G. Cintron, Tr, 1831 (large pieces of dis-

lodged montastrea annularis in barrier reef in Bahia

Salina del Sur) ; CRB Exh, 310(28), G. Cintron Tr. 1831

(dislodged colony of montrastrea annularis, more than

10 feet across); CRB Exh. 310 (32), G. Cintron, Tr.

1831-1832 (metal fragment on top of colony of montas-

trea annularis); CRB Exh. 310(46), G. Cintron, Tr.

1832 (dead coral tissue and rust spots on coral tissue

caused by metal fragment); CRB Exh. 310 (13), G. Cin-

tron, Tr. 1832 (large circular piece of metal lodged in

large colony of montastrea annularis in Bahia Salina del

Sur; abrasion to coral seen near metal object); CRB

Exh, 310 (12), G. Cintron, Tr. 1832-1833 (metal piece

on coral in Bahia Salina del Sur with recently abraded,

dead coral nearby); CRB Exh. 310 (46), G. Cintron, Tr.

1833 (erater being filled with debris near base of reef

in patch reef in Bahia Salinas in north of Vieques) ;

CRB Exh, 310(42), G. Cintron, Tr. 1834 (sedimented

coral head at base of reef in Bahia Salinas in north of

Vieques); CRB Exh. 310 (43), G. Cintron, Tr. 1835

(ordnance that defendants planned to blow up intention-

ally on coral reef near Isla Yallis on June 7, 1978 as

part of their trial preparation); CRB Exh. 327 (14),

G. Clinton, Tr. 1851-1852 (holes in fringing reefs off

Punta Gato); CRB Exh. 327 (11), G. Cintron, Tr. 1853

(cratering in barrier reef in Bahia Salina del Sur) ;

CRB Exh, 327 (12), G. Cintron, Tr. 1853 (cratering in

Bahia Salina del Sur); CRB Exh. 327 (3), G. Cintron,

Tr. 1854 (barge sunk at Roca Alcatraz; craters visible

on reef slope); CRB Exh, 327 (8), G. Cintron, Tr. 1854,

1855 (disturbed area with holes in area where there are

large metal fragments); CRB Exh. 327 (10), G. Cintron,

Tr. 1854 (disturbed seagrass bed in proximity to patch

reef off Punta Gato) ; see also CRB Exh. 336, G. Cintron,

Tr. 1856-1860 (locations of certain damage found by

plaintiffs during limited inspection of certain reef areas

of Vieques).

— — — .

131. Defendants’ other coral reef witness Raymond

made several admissions about the deleterious effect

Navy activities have with respect to the Vieques coral

reefs. For example:

(1) “Periodic bombing and bulldozing in the Atlan-

tic Fleet Weapons Range has removed a major por-

tion of the vegetation in the eastern half of the

drainage basin of Bahia Salina del Sur, undoubtedly

increasing the erosion and deposition of , sediments

into Laguna Anones, The result has been that La-

guna Anones is now a dry lagoon with standing

water only in bomb craters, causing increased run-

off of terrigenous sediments into Bahia Salina del

Sur at the northeast corner of the bay. Evidence

exists of recent channelling of sediment through a

narrow gap through the beach during heavy rain-

fall.“ (Emphasis added.) (Def. Exh. "88, pp. 33-34;

Raymond, Tr. 6132.)

(2) “The fringing reefs on both sides of the north

central cove in Bahia Salina del Sur have been ex-

tensively bombed. Several craters in the reefs are

visible in recent color aerial photos (flown August

1978 by the U. S. Navy).” (Emphasis added.)

(Def. Exh. 83, p. 35; Raymond, Tr. 6134.)

(3) “. . . The effect of occasional shortfalls and

overfalls of bombs and projectiles on the marine en-

vironment is a subject of major concern to this in-

vestigation, from a _ sedimentologist’s perspective,

Close examination of several bomb craters up to 10

meters in diameter along the north coast of Punta

Gato has revealed extensive sediment damage from

explosions around the perimeters of the craters. The

craters themselves have become partly filled with

sand.“ (Emphasis added.) (Def. Exh. 83, pp. 33-

85; Raymond, Tr. 6132-6133.)

132. Raymond acknowledged the existence of sedi-

ment on corals in Vieques. (Raymond, Tr. 6071; Def.

Exhs. 82A (sediment on reef S-4 in Bahia Salina del

Sur), 82B (sediment in reef S-4); Raymond Tr. 6082;

Def. Exh, 82 (1-3) (transects A-B); Def. Exh. 83, p.

12.) In addition, he admitted that sediment damage to

Vieques coral has been a relatively recent occurrence:

Defendants’ Military Activities Damage Seagrass

Communities on Vieques.

136. Defendants’ military operations are damaging

seagrass communities of Vieques.

137. Defendants have admitted harm and potential

harm to seagrass and other aspects of the marine eco-

system on and around Vieques caused by their military

operations:

“Continuous detonation of explosives above or below

surface target areas will eventually cause pulveriza-

tion of soil with resultant erosion from wind and

surface waters. . . . This would limit the restoration

of growth in these areas. Aerial and ship-to-shore

bombardment of impact zones is usually accom-

panied by some ordnance falling long or short of the

target areas. The potential adverse impact from

this threatens damage to thalassia grass beds and

mangrove zones. Direct fish kills from the impact

of stray ordnance may be expected, however, a more

serious consequence is the long-term damage to

aquatic life forms resulting from the explosive de-

struction of habitat, turbidity that reduces the pho-

tosynthesis in turtle grass zones and the sedimenta-

tion of live coral systems.” (Emphasis added.)

(FAAH Exh. 15, p. 8-94.)

138. Defendants’ expert Joseph Zieman stated that

there is “no question” that the naval activities on

Vieques have had an impact on the seagrass communi-

ties. The craters in the seagrass beds are the evidence

of this fact. (Def. Exh. 95 [Zieman Report], pp. 42-

43.) The explosion of a bomb in and above seagrass beds

physically removes the grass. (Zieman, Tr. 6643-6644.)

In addition, when a bomb hits, sediment is thrown out,

the rhizome system is destroyed or completely removed.

(Zieman, Tr. 6630-6631.) Zieman noted circular holes

in the seagrass beds, best illustrated, he said, north of

Punta Gato where the sediment was ripped up and torn

out as if “someone had taken a giant cookie cutter and

removed the center of the bed and there was the hole.”

(Def. Exh. 95, pp. 42-43; Zieman Tr. 6650.) Zieman

also testified that there has been considerable bombing

damage in the marine bottom in the eastern part of

Bahia Salina del Sur. (Zieman, Tr. 6651.) Zieman ac-

knowledged that the number of craters have increased

in the Punta Gato area since 1972. (Def. Exh. 95, p. 44;

Zieman, Tr. 6682, 6687.) It is Zieman’s cpinion that

there has been an increase in bombing damage right

off the mock runway. (Zieman, Tr. 6688; see also CRB

Exhs. 355-A, 355-B, 355-C; Jimenez, Tr. 4054-4056.)

139. Other evidence confirms the existence of damage

to the seagrass beds. Plaintiffs’ witness Vance Vicente

confirmed that there are numerous circular disrupted

zones or craters within the thalassia beds on both Bahia

Salina del Sur and Bahia Icacos. (Vicente, Tr. 2063.)

From aerial photography it is apparent that the number

of craters in the seagrass plateau at Punta Gato have

at least tripled from 1972 to 1978 (an increase from

5 in 1972 to 15 in 1978). (CRB Exhs. 316, 317;

Vicente, Tr. 2065, 2067-2072.) Additional holes may not

be apparent since some holes can serve as traps for sea-

grass, detritus and algae and thus may not show up

clearly in aerial photographs. (CRB Exh, 316, 317;

Vicente, Tr. 2067-2068, 2072.)

140. There is sediment disturbance in Bahia Icacos

and Punta Gato. This seriously damages seagrass beds

because disturbance of sediment changes not only the

physical, but also the chemical, properties affecting sea-

grasses. (Vicente, Tr. 2118.) This type of sediment dis-

turbance can deteriorate into “blow-outs,” therefore

making these seagrass beds prone to erosion. (Vicente,

Tr. 2063; 2083-2086.) In addition to the present dam-

age that these craters represent, the occurrence of a

severe storm or an extreme high wave energy period

could cause damage to the plateau by erosion. (Vicente,

Tr. 2085-2086.) These disrupted cratered areas are ex-

pected to have a long-lasting effect on seagrass com-

munities and the marine environment generally, since

thalassia rhizomes do not propagate rapidly. (Vicente,

Tr. 2063-2064.)

141. An additional problem caused by the destruction

of seagrasses around Vieques is that highly nutritive

seagrass such as thalassia are being replaced by calcare-

ous green algae such as halimeda, which have almost

no nutritive value and which are not as good sediment

stabilizers as seagrasses. (Vicente, Tr. 2063, 2103-2104;

Zieman, Tr. 6630-6681.)

142. The growth of seagrass is impaired by run-off

from the land caused by defendants’ bombing. Inland

vegetation stabilizes the soil and the sediment in land.

When the vegetation is removed, the soil becomes de-

stabilized. Periods of rain and wind transport sediment

into the water column causing an increase in turbidity.

This increased turbidity diminishes light penetration in

the water column which, in turn, limits the depth to

which seagrasses can grow. (Vicente, Tr. 2083.)

143. Photographic evidence and accompanying testi-

mony bears out the existence of damage to seagrass

areas. See, e. g., CRB Exh. 319 (1), Vicente, Tr. 2099

(ordnance found in in Bahia Salina del Sur, causing

sediment disruption); CRB Exh. 319(3), Vicente, Tr.

2099 (results of ordnance firing); CRB Exh. 319(5),

Vicente, Tr. 2100-2101 (piece of ordnance at in Punta

Gato, which has penetrated into the sediment and caused

sediment disruption around it on the seagrass plateau) ;

CRB Exh. 319(7), Vicente, Tr. 2101 (crater in Bahia

Icacos showing sediment disruption) ; CRB Exh. 319 (9),

Vicente, Tr. 2102 (metal fragment found at crater in

seagrass bed in Punta Gato, causing large sediment dis-

ruption) ; CRB Exh. 319 (12), Vicente, Tr. 2103 (crater

at Punta Gato; rolled up leaves of seagrasses, principally

thalassia inside crater; vegetation surrounding this crater

is a calcareous green algae) ; CRB Exh. 319(13), Vicente,

Tr. 2104 (edge of crater showing exposed rhizomes) ;

CRB Exhs. 319(14), 319(15), Vicente, Tr. 2106 (bombs

at Punta Gato, causing disruption of substrate; principal

vegetation is calcareous algae); CRB Exh. 319 (16),

Vicente Tr. 2106-2107 (crater in Punta Gato with a

bomb lying over thalassia bed; calcareous green algae

evident); CRB Exh. 310(46), Vicente, Tr. 2108-2110

(craters on north coast of Vieques; existence of rolled

up leaves tends to make crater less visible from aerial

photography); CRB Exh. 325, Vicente, Tr. 2109-2110

(craters and substantial sediment disruption) ; CRB Exh.

310 (20), Vicente, Tr. 2110 (bomb lying on marginal

zone that divides crater from seagrass bed plateau) ;

CRB Exh. 320 (7), Jimenez, Tr. 2113 (metal fragment

found under leaves on the seagrass bed pleateau at

Punta Gato); CRB Exh. 320(4); Vicente, Tr. 2118

(shell fragment); CRB Exh. 323 (1); Vicente, Tr. 2119-

2120 (three to four coral patches on the western side

of Bahia Icacos, covered by algae detritus [brown algae

and calcareous green algae] instead of coral) ; CRB Exh.

323(2), Vicente, Tr. 2120-2121 (coral patch in the east-

ern point of Punta Gato; dead thalassia rhizomes) ; CRB

Exh. 323 (3), Vicente, Tr. 2121 (Mortar shell in Bahia

Salina del Sur); CRB Exh. 323 (4), Vicente, Tr. 2122-

2123 (dead coral rubble in Bahia Salina del Sur) ; CRB

Exh. 323 (5), Vicente, Tr. 2124 (ordnance found com-

monly in Bahia Salina del Sur); CRB Exh. 323 (6A),

Vivente, Tr. 2124-2125 (mortar shell in Bahia Salina

del Sur); CRB Exh. 323 (68), Vicente, Tr. 2125

(luminous flare covered with fine sediment) ; CRB Exhs.

318 (1A), 318 (B), 318(C); Vicente, Tr. 2126-2127

(common ordnance, including 500 Ib. bomb, found at

Punta Gato); CRB Exh. 318 (2), Vicente, Tr. 2129

(ordnance at Punta Gato and Bahia Icacos) ; CRB Exhs.

329 (1), 329 (2), 329 (3), Vicente, Tr. 2130 (craters, dead

thalassia leaves trapped in eraters, and large amount of

caleareous green algae surrounding craters).

The Evidence Indicates that

the Disturbance on the East End of

Vieques is Reducing Fish Populations There

144, The disturbance on Vieques has adversely af-

fected fish populations in its seagrass beds. Dr. Zieman

collected fish from the seagrass beds on the east end of

Vieques and compared this information with data col-

lected from Tague Bay on the east end of St. Croix.

Dr. Zieman believes that Tague Bay serves as a reason-

able comparison for the fish data from Vieques. Grass-

beds fish were sampled at each of the stations where

seagrass production was measured. Dr. Zieman found

as follows: twenty-five species collected in Vieques and

35 at St. Croix; and total fish numbers are “vastly dif-

ferent” in Vieques and St. Croix. (Def. Exh. 95, p. 34.)

Species diversities are generally lower for samples col-

lected in Vieques grassbeds than those determined for

Tague Bay grass communities, and total numbers of fish

are “much lower” in Vieques when compared to similar

data from Tague Bay. (Id., p. 39.) Also the mean values

for Vieques at 8.6 percent of daily production of seagrass

grazed are lower than the grazing rate at St. Croix of

14.2 percent; this lower grazing rate corresponds strongly

to the reduced numbers of grassbed fish in Vieques.

(Id., p. 40.) Dr. Zieman acknowledged that losses with

respect to fisheries resources resulting from losses of

seagrass beds can be considerable. (Zieman, Tr. 6668.)

His data gathered on Vieques and St. Croix confirms

this.

It Will Take a Considerable Amount of Time for

the Damaged Seagrass on Vieques to Recover, If

They Recover at All; Continued Bombing and

Shelling Means Continued Stress and the Risk of a

“Collapse” of Seagrass Areas.

145. If disturbed or destroyed, seagrass will take a

long time to recover. (Zieman, Tr. 6669). While Dr.

Zieman indicated that seagrass beds can recover, “the

process sometimes takes considerable time. [T]he

damaged areas must first sediment in. Sediment must

return to the area and then certain chemical processes

must take place to enable the rhizomes to grow back

into the region.” (Zieman, Tr. 6644.) Thalassia has not

recolonized many of its former areas in southern Florida

and in the Caribbean even 50 years after it has been

removed. (Vicente, Tr. 2065; Zieman, Tr. 6662.) Many

areas of thalassia have not recovered after many years

following dredging operations. (Zieman, Tr. 6668.) In

one experiment, thalassia beds denuded of leaves and

rhizomes were not subsequently recolonized. (Vicente,

Tr. 2064.) Tracks resulting from propellers have per-

sisted for 2-5 years. (Vicente, Tr. 2064-2065.) Shot holes

in seagrass beds in British Honduras, caused by oil ex-

4 plosives, could still be seen in aerial photographs after

10-15 years; they were colonized by calcareous green

algae. (Vicente, Tr. 2064.) According to Zieman, the

best estimates at this time indicate that at minimum, two

years are normally required for recolonization even to

commence. According to Zieman, in some instances, re-

colonization has not occurred for 17 years after discrete,

identifiable disturbances. Zieman said that the eastern

part of Bahia Salina del Sur could take 10 years or

longer to recolonize and Punta Gato would normally need

4-6 years (Zieman, Tr. 6680), asswming no further dis-

turbance. (Zieman, Tr. 6681.)

146. According to Zieman, at the slow recovery rate

of seagrass, cessation of the bombing at Vieques would

be the best and quickest way to ensure recovery of the

Vieques seagrass. (Zieman, Tr. 6681.) A continuation

at the present level of bombing would mean a continued

stress on the community. (Zieman, Tr. 6681.) Any sys-

tem can take only a certain amount of stress before a

collapse occurs, he said. For systems such as seagrass

beds, he said, the level required to induce this collapse

is not known except for very few stresses, such as

thermal pollution. He concluded that the seagrass

meadows on Vieques can be productive and functioning

areas only if the stress is curtailed by changes with

respect to military activity there. (Def. Exh. 95, p. 44.)

APPENDIX 1

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APPENDIX 3

* 1 5% ISLAND OF VIEQUES

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O Leatherback sesting site

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APPENDIX 4

Sarre. ee

ISLAND OF VIEQUES

POTENTIAL SEA TURTLE NESTING BEACHES

EXCERPTS FROM PLAINTIFFS’

POST-TRIAL BRIEF

(8) In June 1974 the President ordered the Navy to

terminate its weapons training on Culebra and ordered

that a transfer of that activity to another site, if that

site were in Puerto Rico, was contingent on its being

acceptable to the Government of Puerto Rico. (CRB Exh.

116.)

The Navy’s systematic, unilateral transfer of Culebra

weapons training activity to Vieques from 1971 through

1975, thus violated the mandate of Congress, the Agree-

ment between the Navy and the Government of Puerto

Rico, and the orders of the Secretary of Defense and of

the President.

C. The Navy Transferred Culebra Training Activity

To Vieques.

In 1970 the air-to-ground and ship-to-shore Naval

Gunfire Support (“NGFS”) training conducted by the

Navy in the Atlantic Fleet Weapons Range was almost

entirely aimed at targets on Culebra. Vieques was prin-

cipally used for artillery training and other maneuvers

by the United States Marine Corps. In comparison to

the levels of Navy training conducted on Culebra,

Vieques was little used.

This fact is supported by the 1970 testimony of the

Secretary of the Navy before Congress that,

“Ninety percent of all ship-to-shore gunfire support

training for the entire Atlantic Fleet is done on the

northwest peninsula of Culebra. Eighty percent of

2 The evidence does not substantiate any possible argument that

Vieques in any prior year was utilized for military training nearly

as intensively as it has been in the past few years since the trans-

fer of Culebra training. (CRB Exhs. 123, 417; Answer to CRB

Interrogatories No. 1 and 95.)

the air-to-ground training at the Atlantic Fleet

Weapons Range is done on the rocks and cays to

the east and west of Culebra.” (CRB Exh. 25, p. 3;

CRB Exh. 26, pp. 300, 303-304; CRB Exh. 24, at

unnumbered p. 7).

That Vieques was primarily a Marine training ground

in 1970 is corroborated by the testimony before this

Court of Dr. Harald Leuba, a former Defense Depart-

ment systems analyst who directed a major study (“1971

Study”) for the Secretary of Defense on Navy training

operations in Culebra and Vieques.* Dr. Leube testified

that,

Dr. Leuba’s testimony is also based on an extensive systems

analysis of the Navy’s own data on the levels of weapons training

conducted by the Navy on Culebra and Vieques and on his own

expert knowledge of those training operations. (Leuba, Tr. 65, 74,

78-79) The Navy produced voluminous data on the number of

rounds fired, the number of ships operating, the number of aircraft

sorties (missions) flown, and the number of hours of weapons

training activity on Culebra and Vieques. (Leuba, Tr. 54-158;

CRB Exh. 123) This data was produced by the Navy in response

to plaintiffs’ Motion for Leave to Take Depositions, filed on March

6, 1978. It shows that since 1971 Navy ship-to-shore and air-to-

ground shelling and bombing on Vieques have dramatically in-

creased. (CRB Exhs. 123, 417 [Answer to Interrogatories Nos. 1,

23, 25, 27, 85.]; CRB Exhs. 409, 410.)

Dr. Leuba’s analysis of training levels in Culebra and Vieques

was conducted to determine whether or not the Navy had trans-

ferred training from Culebra to Vieques. (Leuba, Tr. 53-55, 64.)

Dr. Leuba, as an added precaution to assure accuracy in his analysis

and conclusions, compared the Navy data on levels (f training in

Culebra and Vieques with the overall trends since 1970 in Navy

manpower (CRB Exhs. 123, 65-66, 68.) Based on this analysis and

on his own expert knowledge of the training conducted by the

Navy’s Atlantic Fleet, Dr. Leuba concluded that since 1971 the

level of Navy ship-to-shore and air-to-ground activity on Vieques

had increased due to the transfer of Culebra operations since that

date. Dr. Leuba used Navy manpower levels as an indicator of the

overall drop in Navy training while training in Vieques increased.

This makes his conclusion of a transfer from Culebra to Vieques

a very cautious and reliable one because, as he testified, overall

„Q. Now, do I understand it from your testimony

that each island was rather sort of an autonomous

unit within that complex and each one had ascribed

to that autonomous perimeter of land, a certain

and determined type of naval exercise which was

mutually excluded from the other?

A. That was very nearly exactly the case.” (Leuba,

Tr. 116.)

Dr. Leuba testified that the two ranges were not used

interchangeably. He testified:

“(Bly and large there was a clear demarcation on

the use of the two facilities. Culebra ship-to-shore

and Vieques for the Marines.” (Leuba, Tr. 117,

118, 124-126, 135, 157, 159-160.)

However, in each year from 1971 through 1975, the

Navy methodically transferred Culebra air-to-ground and

ship-to-shore NGFS training operations to Vieques, so

that by the end of 1975 the Navy had transferred to

Vieques all of the military training activity that it had

been conducting on Culebra and which could be physically

contained on Vieques. (Leuba, Tr. 56-57, 113, 127-28,

187.)

Dr. Leuba testified clearly and emphatically that mili-

tary operations had been transferred from Culebra to

Vieques in each of the years 1971, 1972, 1973, 1974 and

1975, and that by 1976 “there was nothing left on

Culebra to transfer.” (Leuba, Tr. 56-57, 83, 128.)

Navy training levels actually declined more sharply than man-

power. (Leuba, Tr. 68-70.) Thus, while Navy overall manpower

levels were declining and while Navy training requirements were

declining even more rapidly than manpower levels, the level of

ship-to-shore and air-to-ground training on Vieques was increasing.

This, too, corroborates Dr. Leuba’s conclusion that in each year,

1971 through 1975, the Navy transferred Culebra training to

Vieques. Dr. Leuba’s credentials as an expert on the subject of

the Navy training conducted on Culebre and Vieques are extensive.

(See Leuba, Tr. 49-53, 78, 139.)

100

Dr. Leuba stated:

Based on that analysis, do you have an opinion

as to whether military operations have been

transferred from Culebra to Vieques?

Yes, I do.

What is that opinion?

I believe that activities have been transferred

from Culebra to Vieques.

In 1971 were training operations transferred

from Culebra to Vieques?

Yes, they were.

In 1972 were training operations transferred

from Culebra to Vieques?

Ves.

In 1973 were training operations transferred

from Culebra to Vieques?

Ves.

In 1974 were training operations transferred

from Culebra to Vieques?

Ves.

In 1975 were they transferred?

Ves, they were.

In 1976 were training operations transferred

from Culebra to Vieques?

No, they were not.

Why?

There was nothing left on Culebra to trans-

fer.” (Emphasis added.) (Leuba, Tr. 56-57.)

“It doesn’t matter how you measure, or what you

use in base period. The conclusion is the same.”

(Leuba, Tr. 83.)

101

“[T]he conclusion is inescapable. It [Culebra train-

ing] was moved.” (Leuba, Tr. 128.)

In its Answer to the Complaint, the Navy denied that

it transferred Culebra training operations to Vieques.

Paragraph 138 of the Complaint alleges:

“Defendants have increased military operations on

Vieques in whole or in part by transferring to

Vieques directly or indirectly all or some of the

military operations formerly conducted on Culebra.”

Paragraph 142 of the Complain. alleges:

“Defendants have neither requested nor obtained

approval from the Commonwealth of Puerto Rico to

move military operations from Culebra to Vieques.”

The Navy’s Answer admitted that the Navy had not ob-

tained approval from the Government of Puerto Rico

to move military training from Culebra to Vieques and

denied that operations had been transferred. (Answer

to CRB Complaint M 138 and 142).

However, at the trial defendants offered no evidence

on the transfer issue. Defendants did not contest Dr.

Leuba’s testimony that it had transferred Culebra train-

ing operations to Vieques. Defendants did not attempt

to deny or rebut the overwhelming documentary evi-

dence, grudgingly produced by the Navy itself, that a

transfer to Vieques had transpired.‘ While the Navy

The Navy had listed as defense witnesses on the transfer issue

Admiral John Jenkins and Ronald Kirkpatrick, a Navy statistician.

(See Pretrial Order). Neither ultimately appeared as a witness.

Mr. Kirkpatrick had prepared a report on behalf of the Navy on

the hours of operation in Culebra and Vieques during the period

1970-1975, ostensibly intended to demonstrate that no transfer of

operations occurred. (See Pretrial Order, list of defendants’ ex-

hibits). This report had been submitted to plaintiffs prior to trial

as proposed defendants’ Exhibit 28. Dr. Leuba analyzed this Navy

report and was prepared to testify as to why it did not refut

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