# Joint Appendix — Weinberger v. Romero-Barcelo

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Joint Appendix
- **Published:** January 1, 1982
- **Citation:** 456 U.S. 305

## Text

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,
v.

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
c

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

20
50

71

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

82

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)

2

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
Register of Historic Places, and/or seek the opinion of
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.

3

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
v.

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

I.
NATURE OF THE ACTION

1. Plaintiffs seek a declaration that certain actions of
officers of the Department of Defense (“DoD”) and the

4

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.

5

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.

6

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.

7

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.

9
V.

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.

10

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)

d)

11

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-

12

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

13

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 ;

(c) Pursued policies resulting in a significant increase
in the military operations on and around Vieques as
described in paragraphs 18 through 27 inclusive;

14

(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

15

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

16

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,

(C) Enter an Order declaring that Defendants are
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,

17

() 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

18

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,

(C) Preliminarily and permanently enjoin Defendants
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.

19

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

20

(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,

(C) Preliminarily and permanently enjoin Defendants
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

21

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.”

22

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.)

23

“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

24

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,

(C) Preliminarily and permanently enjoin Defendants
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.

25

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,

(C) Grant Plaintiffs their costs and disbursements;
and,

(D) Grant Plaintiffs such further relief as the Court
may deem appropriate.

26

X.
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,

27

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,

(C) Grant Plaintiffs their costs and disbursements;
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,

28

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.

(C) Preliminarily and permanently enjoin Defendants,
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.

80

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,

(c) Defendants have neglected to take necessary ac-
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.

31

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,

(C) Grant Plaintiffs their costs and disbursements;
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
Register. The head of any such Federal agency shall
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
Register (36 C. F. R. § 800.4 (a));

(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-

84

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,

(C) Grant Plaintiffs their costs and disbursements;
and,

(D) Grant Plaintiffs such further relief as the Court
may deem appropriate.

87
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,

(C) Grant Plaintiffs their costs and disbursements;
and,

(D) Grant Plaintiffs such further relief as this Court
may deem appropriate.

38

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.

39

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,

(C) Grant Plaintiffs their costs and disbursements;
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.

40

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.

41

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.

42

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,

(C) Grant Plaintiffs their costs and disbursements in
this matter; and,

(D) Grant Plaintiffs such other and further relief
as the Court may deem appropriate.

43
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

44
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]

45

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

Civil Action No. 78-323

CARLOS ROMERO-BARCELO, ET AL., PLAINTIFFS
V.
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

46

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,

47

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.

49

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 ;

50

(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,

(C) the period during which the permit is
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.

51

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,

(C) Grant Plaintiffs their cost and disbursements;
and,

(D) Grant Plaintiffs such further relief as the Court
may deem appropriate.

52
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

53
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]

54
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

55

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

U.

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.

56

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

57

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.

58

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

59

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

60

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.

61

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

63

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

64

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.

65

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.

66

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.

67

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.

69
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

70

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

71

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

v.
HAROLD BROWN, ET AL., DEFENDANTS

Civil Action No. 78-377

Luis MEDINA, ET AL., PLAINTIFFS
v.

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

72

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.

73

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),

74

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

75

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

76

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-

77

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.) (FA

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2169%3A2. Public record. Not legal advice.