Petition — Romero-Barcelo v. Weinberger

Supreme Court brief1981

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IN THE a

Supreme Court of the United States

OCTOBER TERM, 1980

CARLOS ROMERO-BARCELO, GOVERNOR OF PUERTO RICO,

et al., Petitioners,

we.

CASPAR M. WEINBERGER, SECRETARY OF DEFENSE,

et al., Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

HECTOR REICHARD DE CARDONA

Secretary of Justice

THOMAS R. LINCOLN

Department of Justice

GERARDO A. CARLO

Special Counsel to the Governor

JoHN A. HopGEs

(Counsel of Record)

TirmoTHy L. HARKER

JEFFREY N. MARTIN

PEABODY, RIVLIN, LAMBERT &

MEYERS

A Professional Corporation

1150 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 457-1000

Of Counsel

ee Counsel for Petitioners

Lewis A. RIVLIN

1150 Connecticut Ave., N.W.

Washington, D.C. 20036

May 28, 1981

EC ST TT eT TS

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

QUESTIONS PRESENTED

1. Whether the Government of Puerto Rico may ob-

tain judicial review under the Administrative Procedure

Act, 5 U.S.C. § 551 et seg. (1976), of violations of

Military Construction Authorization Acts that do not ex-

pressly provide any means for public or private

enforcement?

2. Whether the Government of Puerto Rico has an

implied right of action for injunctive and declaratory

relief — not damages — to prevent violations of these

Acts?

3. Whether, under the Noise Control Act of 1972,

42 U.S.C. § 4901 et seq. (1976), a state may seek injunc-

tive relief against a federal agency for violations of a

state nuisance law that proscribes excessive noise?

LIST OF ALL PARTIES

The Petitioners, Appellants in the Court below, are

Governor Carlos Romero-Barcelé on behalf of the Gov-

ernment of Puerto Rico, Radames Tirado Guevara,

Mayor of Vieques, Puerto Rico, and the Environmental

Quality Board of Puerto Rico.

The Respondents, Appellees in the Court below, are

Caspar M. Weinberger, Secretary of Defense, John F.

Lehman, Jr., Secretary of the Navy, Thomas B.

Hayward, Chief of Naval Operations, Harry D. Train,

Il, Commander in Chief of the Atlantic Fleet, and

Robert H. Barrow, Commandant of the Marine Corps.'

' The Respondents. Defendants in the trial court, are all officials

of the Department of Defense who are sued in their official

capacities. The Respondents named above have been substituted for

the originally named Defendants pursuant to Rule ~~ of the

Federal Rules of Civil Procedure.

TABLE OF CONTENTS

PAGE

Br een eee i

ER ES a a i

ES 1s aso Gude s's'veih 4.0 $-5.60 ede 0wewadee’s iii

CLS ive sys enands Civd'eeuedeeeds iv

EG abi ibd Ss ws.eb¥ yiedeeceboceees ]

OL hase nds bess ccna vesiocceariedecseee l

i rhc ia bys cle bea be cece sees ee'e 2

DM ccEtcEh ne sins eanieghesseteevieeesbeces 2

REASONS FoR GRANTING THE PETITION .............05% 7

TABLE OF AUTHORITIES

CASES: PAGE

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967).. 8,

Aluli v. Brown, 437 F.Supp 602 (D. Haw. 1977), revers-

ed in part, 602 F.2d 876 (9th Cir. 1979) ........... 9

Atlantic Richfield Co. v. Federal Energy Administration,

556 F.2d $42 (Em. Ct. App. 1977)......6.. cseeeee 8

Association of Data Processing Service Organizations,

Inc. v. Federal Home Loan Bank Board, 568 F.2d

Se EG PEPER oo bie ccdh cnn dvowipeseeviaeceed 1}

Barlow v. Collins, 397 U.S. 159 (1970) ............0445. 11

California v. Sierra Club, _... US. _., 49

Fikes ts ONE COREE Ae EOED oc vcsadcecescseces 13

Cannon v. University of Chicago, 441 U.S. 677 (1979) .10, 13

Carson v. Alvord, 487 F.Supp. 1049 (N.D. Ga. 1980)... = 11

Chrysler Corp. v. Brown, 441 U.S. 281 (1979)......... 7, 10

Citizens to Preserve Overton Park, Inc. v. Volpe, 401

SEED wa Sa cinace sda teuruscdeadece seen 12

City of Highland Park v. Train, 519 F.2d 681 (7th Cir.

1975), cert. denied, 424 U.S. 927 (1976) ........... 17

Cort ¥. Ame, G2 US; GE CTGTS) o cc cttncvecnseces 12, 13, 14

Federal Trade Commission v. Standard Oil Co. of

California, U.S. , 66 L.Ed. 2d 416,

EE Ty DEEN b'ks 05) cadubstoakes¥erebaadks 7

Hayes International Corp. v. McLucas, 509 F.2d 247

(Sth Cir.), cert. denied, 423 U.S. 864 (1975)........ 10

Kitchens v. Department of the Treasury, 535 F.2d 1197

Ss SN Wine one eRe shite Kale badoaWs ba.ecice 10

Local Division No. 714, Amalgamated Transit Union,

AFL-CIO v. Greater Portland Transit District of

Portland, Maine, 589 F.2d 1 (ist Cir. 1978)........ 11

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ..... 12

National Automatic Laundry & Cleaning Council v.

a 143 U.S. App. D.C. 274, 443 F.2d 689

EA OA fe Bete: BRS Ear 2 ee 8

Table of Authorities Continued

CASES: PAGE

National Helium Corp. v. ene: 455 F.2d 650 (10th

as MOREE Nh Sse Sdn OD wks s tA dalam ad oe vaw’e 8

National Sea Clammers Association v. City of New

York, 616 F.2d 1222 (3d Cir.), cert. granted sub

nom. Middlesex County Sewerage Authority v. Na-

tional Sea Clammers Association, —._—U:S..

_.., 101 S. Ct. 314 (Oct. 14, 1980) (No. 79-1760) 16

Natural Resources Defense Council, Inc. v. Callaway,

Ee ls, BEDE chek ee he ee icivesadcves 16

Natural Resources Defense Council, Inc. v. Train, 166

U.S. App. D.C. 312, 510 F.2d 692 (1974).......... 17

Northwest Airlines, Inc. v. Transport Workers Union of

America, AFL-CIO, U.S. », 49

U.S.L.W. 4383 (April TIRE ae cdtkaveras es 13

Nuclear Data, Inc. v. Atomic Energy Commission, 344

Fis Fee CPE De OUTED sic bvaverstednevanses 8

Bee VCs wee Ghee GET CAPE) cc tiescvnsivcesntcnss 12

Save the Courthouse Committee v. Lynn, 408 F.Supp.

Soe EEL URTORS cacti kdccade datveespardede 9

Shannon vy. United States Department of Housing and

Urban Development, 409 F.Supp. 1189 (E.D. Pa.

1976), aff'd, 577 F.2d 854 (3rd Cir.), cert. denied,

ne DE CG ei howd eke ie apkhckanncccec 11

Sierra Club v. Morton, 405 U.S. 727 (1972)............ 9

Touche Ross & Co. v. Redington, 442 U.S. 560 (1979) .. 13

Transamerica Mortgage Advisors, Inc. v. Lewis, 444

SAE CM ie uted ohh ed Dud ade veh eediinls besa: 11, 13

United States v. Nixon, 418 U.S. 683 (1974) ........... 12

United States v. Students reat By AViTHeA Agency

Procedures (SCRAP), 412 U.S. 669 (1973).........

Universities Research Association, Inc. v. ee : :

—.._.» 49 U.S.L.W. 4354 (April 6, 1981)... .11, 13

Table of Authorities Continued

STATUTES: PAGE

The Administrative Procedure Act, 5 U.S.C. § 551 ef

SE Peet T He eWay dais cc ausee cece es aosecee passim

Section 2(g), 5 U.S.C. § SS51(13)........ cee eees 2, 7,8

Res O PEEP ap ccbcesscccsecccces 2

RES F Oi PE din cac see vcsavicceces 2, 11

UE HOME, OEP d ee POR cs ccc ccvecbetcncece 2, 10

ection 10le), 5 US.C. OPOGis cee ccccccccncsens 2, 11

The Clean Air Act, as amended, 42 U.S.C. § 7604 (1976) 16

The Federal Water Pollution Control Act, 33 U.S.C. §

ESE OF Gils CIS FO Oe OOD ED ccc ccc cccccccccccccs

RAO Cais kn 6 Wid b CAVRA e's CDAD ec ccecece 16

The Military Construction Authorization Act of 1971,

Pub.L.No. 91-511, 84 Stat. 1204 (1970)............ a2

The Military Construction Authorization Act of 1972,

Pub.L.No. 92-145, 85 Stat. 394 (1971) ............. 2,3

The Military Construction Authorization Act of 1974,

Pub.L.No. 93-166, 87 Stat. 611 (1973)............. a. 3

The National Environmental Policy Act of 1969, 42

es EL, CED b's Sc kic cewsveccosisccee 5,8

The National Historic Preservation Act of 1966, 16

U.S.C. § 470 et seq., as amended (1976)........... 5,8

The Noise Control Act of 1972, 42 U.S.C. § 4901 ef seq.

adits tuawilds< deta tub oad booed’ i, 3, 5, 6, 14

Bec 4, 42 US. OGRE vices ccc cca. 2, 6, 15, 16

Section 12, 42 U.S.C. § 4911 ..... 2, 6, 7, 15, 16, 17, 18

MISCELLANEOUS:

S. Rep. No. 92-1160, 92d Cong., 2d Sess. (1972),

ad in [1972] U.S. Code Cong. & Ad. ee -

rere eke i. De eS 17,

5 B. Mezines, J. Stein & J. Grurr, ADMINISTRATIVE

Ten ee es cee 9

IN THE

Supreme Court of the United States

OcTOBER TERM, 1980

No. 80-_____

CARLOS ROMERO-BARCELO, GOVERNOR OF PUERTO RICO,

et al., Petitioners,

Vv.

CaspaR M. WEINBERGER, SECRETARY OF DEFENSE,

et al., Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

The Governor of Puerto Rico, Carlos Romero-

Barceld, ef al. (hereinafter ‘Puerto Rico’’), petitions for

a writ of certiorari to review a portion of the judgment

of the United States Court of Appeals for the First

Circuit.

OPINIONS BELOW

The slip opinion of the Court of Appeals for the

First Circuit (App. A, infra, pp. la-54a) was issued on

January 26, 1981. The prior decision and order of the

trial court sitting in the United States District Court for

the District of Puerto Rico (App. C, infra, pp. 57a-178a)

is reported at 478 F. Supp. 646.

JURISDICTION

The Judgment of the Court of Appeals for the First

Circuit was entered on January 26, 1981 (App. B, infra,

pp. 55a-56a), and a request for rehearing was denied on

February 27, 1981 (App. D, infra, p. 179a). The jurisdic-

tion of this Court is invoked under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

The pertinent sections of the statutes involved in this

petition are reproduced in Appendix E. These statutory

sections are as follows:

Section 2(g) of the Administrative Procedure

Act, 5 U.S.C. § 551(13);

Section 10 of the Administrative Procedure

Act, 5 U.S.C. § 701(a);

Section 10(a) of the Administrative Procedure

Act, 5 U.S.C. § 702;

Section 10(c) of the Administrative Procedure

Act, 5 U.S.C. § 704;

Section 10(e) of the Administrative Procedure

Act, 5 U.S.C. § 706;

The Military Construction Authorization Act

oe Pub. L. No. 91-511, 84 Stat. 1204

The Military Construction Authorization Act

of 1972, Pub. L. No. 92-145, 85 Stat. 394 (1971);

The Military Construction Authorization Act

of 1974, Pub. L. No. 93-166, 87 Stat. 611 (1973);

Section 4 of The Noise Control Act

of 1972, 42 U.S.C. § 4903 (1976);

Section 12 of The Noise Control Act

of 1972, 42 U.S.C. § 4911 (1976).

STATEMENT

This petition arises out of the military training ac-

tivities conducted by the Navy on the Puerto Rican

island of Vieques. Subject matter jurisdiction for the

original complaint and this petition is based upon the

federal question statute, 28 U.S.C. § 1331. The federal

questions raised by Puerto Rico arise under several

federal environmental statutes, including the Noise Con-

trol Act of 1972, 42 U.S.C. § 4901 ef seg. (1976), and

three separate Military Construction Authorization Acts:

Pub. L. No. 91-511, 84 Stat. 1204 (1970), Pub. L. No.

92-145, 85 Stat. 394 (1971), and Pub. L. No. 93-166, 87

Stat. 611 (1973).

During the height of the Vietnam era, the United

States Navy conducted air-to-ground bombing and ship-

to-shore shelling of targets on the sparsely populated

Puerto Rican island of Culebra. By 1970, substantial

civilian and governmental opposition had developed to

the military operations on Culebra. The opposition

became so intense that Congress addressed the subject in

three different Military Construction Authorization Acts

promulgated in the early 1970's.

These Acts required the Navy to consult with Puerto

Rico and report to Congress prior to any proposed shift

of these bombing and shelling activities to an alternate

site in Puerto Rico. Congress, in response to the con-

siderable controversy generated by the bombing and

shelling of Culebra, intended to prevent such a con-

troversy from developing at a new target site.

Contrary to the statutory requirements of these

Acts, the Navy in 1971 began methodically and clan-

destinely to transfer the Culebra training activities to the

nearby Puerto Rican island of Vieques. By the end of

1975, the Navy had transferred to Vieques all of the

Culebra military activities that could be moved to Vie-

ques. Internal documents prepared by the Navy not only

admitted that a clandestine transfer of activities was oc-

curring but also emphasized the need for coniinued

secrecy in order to avoid sparking opposition by the

residents of Vieques and the Government of Puerto

Rico.

Prior to the transfer of bombing and shelling ac-

tivities, Vieques was a tranquil island with a population

of approximately 7,000 — nearly 10 times the population

of Culebra. The Navy possessed title to over 79 percent

of the land on Vieques and, before the build-up in the

mid-1970’s, used this land principally for small-scale ar-

tillery training. Vieques was never used as a target for

the sort of socially and environmentally disruptive bomb-

ing and shelling activities that had been conducted on

Culebra.

The character and quality of life on Vieques were

drastically affected by the Navy’s clandestine transfer of

Culebra bombing and shelling to Vieques. Noise levels

increased. Fishermen were denied access to the island’s

best fishing grounds. Coral reefs and other forms of

aquatic life were destroyed. Archeological sites were

devastated. Wildlife were killed and harassed. Residents

were exposed to the frightening and dangerous risk of

errant ordnance — some of which have missed their

targets on this tiny island by at least six miles. The

Navy's transfer of military training operations to Vie-

ques has provoked controversy throughout Puerto Rico.

Individuals have been injured in protests over these Navy

activities.

In an effort to compel the Navy to comply with

statutory restrictions against the transfer of Culebra ac-

tivities to Vieques, and with the requirements of several

federal environmental statutes, the Petitioners filed this

action in the United States District Court for the District

of Puerto Rico on March 1, 1978, against the Secretary

of Defense and officials of the Navy. The case was tried

between September and December of 1978 before the

Honorable Judge Juan R. Torruella.

Judge Torruella ruled in favor of Puerto Rico on

several of its claims. He found that the Navy had

violated the Federal Water Pollution Control Act, as

amended, 33 U.S.C. § 1251 ef seq. (1976 & Supp.I)

(App. C, infra, pp. 83a-86a), the National Environmen-

tal Policy Act of 1969, 42 U.S.C. § 4321 et seq. (1976)

(App. C, infra, pp. 165a-170a), and the National

Historic Preservation Act of 1966, 16 U.S.C. § 470 ef

seq. (1976) (App. C, infra, pp. 142a-147a). Judge Tor-

ruella, however, rejected Puerto Rico’s claim that the

Navy had violated the Noise Control Act of 1972, 42

U.S.C. § 4901 ef seq. (1976) (App. C, infra, pp.

107a-118a). Judge Torruella also rejected the clairn rais-

ed by Puerto Rico under the Military Construction

Authorization Acts (App. C, infra, pp. 147a-158a).

There were a number of alternative grounds for the

lower court’s ruling on the Military Construction

Authorization Acts claim. Judge Torruella first conclud-

ed that these Acts did not constitute an ‘‘agreement’’ by

the Navy not to transfer Culebra training to Vieques

(App. C, infra, pp. 153a-154a). He also ruled that the

several directives and Presidential orders that im-

plemented these Acts did not give rise to a private cause

of action in favor of Puerto Rico (App. C, infra, p.

154a). He further held that Puerto Rico had not stated a

cognizable claim under the First or the Fifth Amend-

ments to the Constitution (App. C, infra, p. 158a).

Puerto Rico then appealed portions of the decision

of Judge Torruella to the United States Court of Ap-

peals for the First Circuit. With respect to the unlawful

transfer issue, Puerto Rico asserted that the trial court

had misinterpreted Puerto Rico’s arguments and

therefore had failed to reach the merits of Puerto Rico’s

claim that the Navy had violated the Military Construc-

tion Authorization Acts. Puerto Rico never argued that

the Navy executed some sort of agreement not to

transfer Culebra training to Vieques. Instead, Puerto

Rico raised only the narrower, more limited argument

that the Acts established a procedure for the selection of

an alternative site. Puerto Rico further argued that the

uncontroverted evidence demonstrated that the Navy did

not comply with the procedure required by these Acts.

Puerto Rico and the Navy both briefed and argued

the transfer issue in the Court of Appeals for the First

Circuit. Following oral argument, the Court of Appeals

sua sponte requested the parties to brief the additional

issue Of whether any of the appellants could assert a

cause of action for violation of the Acts. After receiving

the requested supplemental briefs, the Court of Appeals,

like the trial court, declined to decide the precise issue

raised by Puerto Rico.

Although the Court of Appeals ruled that Puerto

Rico had standing to raise the transfer issue, the Court

decided that no private right of action in favor of Puerto

Rico could be implied from the texts of these Acts (App.

A, infra, pp. 9a-17a). As an alternative basis for its deci-

sion, the Court stated that the alleged transfer of

Culebra training to Vieques was not an ‘‘agency action’’

that could be reviewed under the Administrative Pro-

cedure Act, 5 U.S.C. § 551 ef seg. (1976) (App. A, in-

fra, p. 18a).

The Court of Appeals also ruled that it lacked sub-

ject matter jurisdiction to consider Puerto Rico’s claim

that the Navy had violated the Noise Control Act of

1972, 42 U.S.C. § 4901 et seq. (1976) (App. A, infra, p.

40a). The Court reasoned that the citizens suit provision

in Section 12 of the Act, 42 U.S.C. § 4911, did not pro-

vide a means for the enforcement of state noise control

laws (App. A, infra, p. 34a). The Court also reasoned

that the other asserted basis for subject matter jurisdic-

tion, Section 4 of the Act, 42 U.S.C. § 4903, was

specifically limited to the same sort of quantitative noise

limits referenced in Section 12 of the Act and therefore

did not encompass Puerto Rico’s nuisance statute (App.

A, infra, pp. 35a-40a).

REASONS FOR GRANTING THE PETITION

1. The Decision Below Conflicts With Consistent Judicial

Interpretations Of Agency Action That Is Subject To

Judicial Review Under The Administrative Procedure

Act.

The ruling of the Court of Appeals for the First

Circuit severely restricted the right of all parties such as

Puerto Rico to seek judicial review of Executive Branch

decisions under the Administrative Procedure Act, 5

U.S.C. § 551 et seq. (1976) (‘‘APA’’). In an un-

precedented interpretation of the APA, the Court found

that the Act provided only for the review of agency

rulemakings, agency adjudications or agency sanctions

(App. A, infra, p. 18a). This interpretation is flatly con-

trary to the Act’s express application to agency actions

such as administrative ‘‘orders’’ and to ‘‘failures to act’’

in compliance with statutory or regulatory requirements.

5 U.S.C. § 551(13). It is also contrary to several deci-

sions of this Court and abundant precedent in the lower

courts.

Review under the APA is triggered only if there is

‘‘agency action’’ as that term is defined in Section 2(g)

of the Act, 5 U.S.C. § 551(13). Prior to the First Cir-

cuit’s decision, ‘‘agency action’’ subject to review under

the APA was not limited to formal rulemakings, ad-

judications, or sanctions. Instead, the APA was inter-

preted to encompass a great variety of agency decisions,

ranging from discrete orders to consistent patterns of

conduct. See, e.g., Federal Trade Commission v. Stan-

dard Oil Co. of California, U.S. , 66

L.Ed. 2d 416, 423 n.7 (Dec. 15, 1980); Chrysler Corp. v.

Brown, 441 U.S. 281 (1979); Atlantic Richfield Co. v.

Federal Energy Administration, 556 F.2d 542, 552 (Em.

Ct. App. 1977); National Automatic Laundry & Clean-

ing Council v. Schultz, 143 U.S. App. D.C. 274, 443

F.2d 689, 698-702 (1971); National Helium Corp. v.

Morton, 455 F.2d 650, 654 (10th Cir. 1971); Nuclear

Data, Inc. v. Atomic Energy Commission, 344 F. Supp.

719, 722-23 (N.D. Ill. 1972). In the words of this Court,

“{he legislative material elucidating that seminal act

manifests a congressional intention that it cover a broad

spectrum of administrative actions...’’ Abbott

Laboratories v. Gardner, 387 U.S. 136, 140 (1967).

The physical movement of Culebra training ac-

tivities to Vieques and the intensification of shelling and

bombing activities on Vieques must be ‘‘agency action.”’

Agency action also was involved in the numerous deci-

sions and directives issued by the Secretary of the Navy

and the Secretary of Defense to implement this transfer.

These decisions and directives clearly were ‘‘orders’’

within the meaning of Section 2(g) of the APA, 5

U.S.C. § 551(13). The Navy also failed to negotiate with

Puerto Rico or consult with Congress prior to the selec-

tion and utilization of an alternate site for the Culebra

bombing and shelling activities. This constituted a

‘failure to act’’ in compliance with the law within the

meaning of Section 2(g) of the APA, 5 U.S.C. § 551(13).

The Court of Appeals’ interpretation of ‘‘agency ac-

tion’’ not only conflicts with consistent judicial prece-

dent but also conflicts with other rulings in this same

case. Puerto Rico successfully obtained APA review for

its claims arising out of the same Navy activities under

two other statutes: the National Environmental Policy

Act of 1969, 42 U.S.C. § 4321 ef seg. (1976) (‘“‘NEPA’’)

and the National Historic Preservation Act of 1966, as

amended, 16 U.S.C. § 470 et seq. (1976) (“‘NHPA’”’). It

is well settled that the APA is the basis for reviewing

violations of these statutes. See, e.g., United States v.

Students Challenging Regulatory Agency Procedures

(SCRAP), 412 U.S. 669, 684-90 (1973) (NEPA); Sierra

Club v. Morton, 405 U.S. 727, 733 (1972) (NEPA); Aluli

v. Brown, 437 F.Supp 602, 608-09 (Db. Haw. 1977),

reversed in part on other grounds, 602 F.2d 876 (9th Cir.

1979) (per curiam) (NHPA); Save the Courthouse Com-

mitte v. Lynn, 408 F.Supp. 1323, 1330-31 (S.D.N.Y.

1975) (NHPA). If the bombing and shelling activities

challenged by Puerto Rico were ‘‘agency action’’ for the

purposes of these statutes, then these same activities

must be ‘‘agency action’’ for the purpose of the Military

Construction Authorization Acts.

The decision of the Court below has implications

that extend far beyond the case at bar. ‘‘Agency action’’

is the threshold requirement for all cases brought under

the APA. At issue, therefore, is whether the ‘‘broad

spectrum of administrative actions’’ that were intended

to be encompassed within the APA can be narrowed by

a restrictive interpretation of ‘agency action.’’ This

Court has not explictly defined this most significant

term. 5 B. Mezines, J. Stein & J. Grurr, Ap-

MINISTRATIVE LAW § 43.01, at 43-10 (1978). The instant

petition offers an appropriate opportunity to do so and

thereby advise all lower courts arid litigants of the types

of administrative activities that may be reviewed under

the APA,

Il. The Decision Below Raises The Significant Unresolved

Issue Of Whether The Absence Of An Implied Private

Right Of Action Is A Basis For The Preclusion Of

Review Under The Administrative Procedure Act.

This petition and the decision of the Court of Ap-

peals also implicate the significant, unresolved legal rela-

tionship between judicial review under the APA and the

absence of an implied private right of action under other

federal statutes. The APA expressly authorizes the

review of “final agency action for which there is no

other adequate remedy in a court.’’ 5 U.S.C. § 704, Ab-

bott Laboratories v. Gardner, 387 U.S. 136, 140 (1967).

Puerto Rico submits that where, as here, a court rules

that a party does not have a private right of action, the

presumption in favor of judicial review militates strongly

in favor of APA review. The Court of Appeals,

however, improperly reasoned that the same factors that

suggested that Congress did not intend to create a

private right of action also affirmatively demonstrated

that Congress intended to preclude judicial review (App.

A, infra, pp. 18a-19a). This ruling confused the strict

private right of action requirements with the more relax-

ed standards for APA review.

Judicial review may not be precluded unless ‘‘clear

and convincing evidence discloses that Congress had

both considered and prohibited judicial review of the

agency action in question.’’ Kitchens v. Department of

the Treasury, 535 F.2d 1197, 1199 (9th Cir. 1976) (per

curiam). Accord, Abbott Laboratories v. Gardner, 387

U.S. 136, 140 (1967); Hayes International Corp. v.

McLucas, 509 F.2d 247, 258-59 (Sth Cir.), cert. denied,

423 U.S. 864 (1975). Contrary to the reasoning of the

Court below, the absence of an intent to create a private

remedy cannot be ‘‘clear and convincing evidence’’ that

Congress intended to preclude review.

This Court recently recognized that a party who

does not have an implied private right of action for

damages nevertheless may obtain APA _ review of

challenged federal agency action. Cannon v. University

of Chicago, 441 U.S. 677, 707 n. 41 (1979) ("*. . . if no

private remedy exists, the complainant is relegated to a

suit under the Administrative Procedure Act. . .’’);

Chrysler Corp. v. Brown, 441 U.S. 281, 317-18 (1979),

The lower courts consistently have applied this rule. See,

e.g., Local Division No. 714, Amalgamated Transit

Union, AFL-CIO v. Greater Portland Transit District of

Portland, Maine, 589 F.2d 1, 14 (1st Cir. 1978); Associa-

tion of Data Processing Service Organizations, Inc. v.

Federal Home Loan Bank Board, 568 F.2d 478, 483 (6th

Cir. 1977); Carson v. Alvord, 487 F.Supp. 1049, 1053

(N.D. Ga. 1980).

The threshold for obtaining APA review is lower

than the threshold which must be satisfied for enforce-

ment of an implied right of action. Shannon v. United

States Department of Housing and Urban Development,

409 | .Supp. 1189, 1192 n. 14 (E.D. Pa. 1976), aff'd, 577

F.2d 854 (3d Cir.), cert. denied, 439 U.S. 1002 (1978).

The party seeking APA review does not have to

demonstrate that Congress intended to create the private

remedy for its special benefit. Cf. Transamerica Mor-

tgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16 (1979)

(implied right of action); Universities Research Associa-

tion, Inc. v. Coutu, U.S. , 49 U.S.L.W.

4354, 4358 (April 6, 1981) (implied right of action).

Rather, the party need only demonstrate that it is ag-

grieved by final agency action within the meaning of

Section 10(a) of the APA, 5 U.S.C. § 702. See, e.g.,

Barlow vy. Collins, 397 U.S. 159 (1970); Abbott

Laboratories v. Gardner, 387 U.S. 136 (1967).

Most parties who are aggrieved by final agency ac-

tion under a federal statute will not have an implied

private right of action. Yet Congress plainly did not in-

tend to limit the opportunities for these parties to obtain

judicial review. Instead, Congress left them with a nar-

rower choice of remedies: under the APA they could en-

join illegal agency actions but they could not obtain

damages to redress their injuries. 5 U.S.C. § 706.

The decision of the Court below heralds a merging

of implied right of action standards with the more relax-

ed standards for APA review. This approach may

significantly restrict the opportunities for judicial review.

Only those parties with express or implied private rights

of action under federal statutes would then be able to

secure judicial review. This result would contravene the

clear intent of Congress in enacting the APA and the

well-established presumption in favor of judicial review

of administrative decisions under the APA. Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410

(1971); Abbott Laboratories v. Gardner, 387 U.S. 136,

140 (1967); Rusk v. Cort, 369 U.S. 367, 379-80 (1962).

The APA is a vital mechanism for ensuring that Ex-

ecutive Branch decisions comply with the laws passed by

Congress. In this regard, the Act is rooted in fundamen-

tal principles of judicial review that are traceable to this

Court’s landmark decisions in Marbury v. Madison, 5

U.S. (1 Cranch) 137 (1803), and United States v. Nixon,

418 U.S. 683 (1974). The interpretation of the Act by the

Court of Appeals for the First Circuit in this case

significantly undermines this ingrained system of judicial

review and should not be permitted to stand.

Ill. The Decision Below Was A Significant And Unwar-

rented Extension Of The Standards Governing The Im-

plication Of Private Rights Of Action.

In a recent series of decisions, this Court has

substantially developed the law that governs the implica-

tion of a right of action for damages under federal

statutes that do not expressly provide a damage remedy

for violations of the statute. The seminal decision in

Cort v. Ash, 422 U.S. 66 (1975), established a four-part

test for the implication of a private right of action. This

test was subsequently refined in the decisions in Califor-

nia v. Sierra Club, if Bre RRP

4441 (April 28, 1981); Northwest Airlines, Inc. v.

Transport Workers Union of America, AFL-CIO,

U.S. , 49 U.S.L.W. 4383 (April 20, 1981);

Universities Research Association, Inc. v. Coutu,

U.S. , 49 U.S.L.W. 4354 (April 6, 1981); Trans-

america Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11

(1979); Touche Ross & Co. v. Redington, 442 U.S. 560

(1979); and Cannon v. University of Chicago, 441 U.S.

677 (1979).

The Cort v. Ash test, as refined by its progeny, left

open the questions that are raised in this petition. How

should the Cort v. Ash analysis be applied to an action

that: (1) seeks declaratory and injunctive relief rather

than damages, (2) is brought by a sovereign under

statutes that expressly recognize the interests of the

sovereign, and (3) involves statutes that provide no

means for public or private enforcement?

This Court has not previously authorized the exten-

tion of the Cort v. Ash standards to an action by a

sovereign for injunctive relief, rather than damages, in a

situation where there was no alternative mechanism for

enforcement of the federal law in question. Nevertheless,

the Court below unquestioningly applied the Cort v. Ash

analysis.

This Court in its recent decisions has cautioned

against a mechanistic interpretation of the Cort v. Ash

requirements. See, e.g., Transamerica Mortgage Ad-

visors, Inc. v. Lewis, 444 U.S. 11, 15-16 (1979); Touche

Ross & Co. v. Redington, 442 U.S. 560, 575-76 (1979).

Consistent with this admonition, the Cort v. Ash

analysis should be sensitive to the type of relief sought,

the nature of the party seeking relief, and whether there

are alternative opportunities for enforcement of the

federal statute in question. Each of these legally signifi-

cant considerations militates in favor of a private right

of action.

Actions for injunctive or declaratory relief are not

designed to enrich private parties with funds from the

public treasury. Rather, these actions serve the important

law enforcement purpose of ensuring that federal agen-

cies comply with the legal restrictions imposed upon

these agenvies by the Congress. This interest should be

viewed as particularly acute where, as here, there is no

express enforcement mechanism provided in the statute.

An action by a sovereign also presents a more com-

pelling need for the implication of a cause of action than

an action by a private party. One of the responsibilities

of a sovereign is the enforcement of laws — both local

and federal. A sovereign also is responsible for the pro-

tection of its citizens and environment. These dual

responsibilities cannot be fully exercised unless the

sovereign can bring legal actions to enjoin violations of

federal law. This is a particularly compelling concern

where, as here, the federal laws in issue expressly refer to

the interests and welfare of a sovereign such as Puerto

Rico.

Puerto Rico respectfully submits that this petition is

the proper case for the consideration of these issues and

the necessary further clarification of the Cort v. Ash

standards.

IV. The Decision Of The Court Below Nullified The Re-

quirement In The Noise Control Act Of 1972 That

Federal Facilities Comply With State Noise Laws.

This Court has not yet interpreted the enforcement

provisions of the Noise Control Act of 1972, 42 U.S.C.

§ 4901 ef seq. (1976). The instant petition presents a

compelling case for review of this important en-

vironmental statute because the Court below radically

disturbed the Congressional scheme for the abatement of

noise. The decision of the Court below also is legally

significant because it exacerbates a conflict among the

Circuit Courts of Appeal concerning the right of private

parties to enforce federal environmental laws.

The Court of Appeals ruling effectively nullifies

Section 4 of the Noise Control Act of 1972, 42 U.S.C. §

4903, which requires federal agencies and facilities to

‘‘comply with Federal, State, interstate and local re-

quirements respecting control and abatement of en-

vironmental noise to the same extent that any person is

subject to such requirements.’’ The Court below rea-

soned that the citizens suit provision contained in Section

12 of the Act, 42 U.S.C. § 4911, authorized only actions

for the review and enforcement of federal administrative

regulations promulgated under the Act (App. A, infra,

p. 34a). The Court therefore held that a citizens suit

could not be maintained under Section 12 of the Act to

enforce an agency’s violation of the Section 4 require-

ment that federal facilities comply with state noise laws.

However, the Court neglected to observe that the Act

also does not provide for the enforcement of Section 4

by the federal government. The Court’s decision

therefore leaves no entity with the right to enforce the

Congressional mandate in Section 4 of the Act that

federal facilities comply with state noise laws.

The Court’s nullification of Section 4 was at-

tributable to its exclusive focus upon the ‘‘noise control

requirements’’ that may be enforced through the citizens

suit provision of Section 12 of the Act. The Section 12

definition of ‘‘noise control requirements,’’ 42 U.S.C. §

4911(f), does not refer to the state noise laws described

in Section 4. In focusing its attention exclusively upon

this definition, the Court below overlooked the savings

clause in the immediately preceding subsection, 42

U.S.C. § 4911(e). The savings clause provides that

**({njothing in this [citizens suit] section shall restrict any

right which any person (or class of persons) may have

under any statute or common law to seek enforcement

of any noise control requirement or to seek any other

relief (including relief against an Administrator).’’ This

savings clause clearly authorizes the private enforcement

of noise laws in addition to the ‘‘noise control re-

quirements’’ that are expressly defined in Section 12, 42

U.S.C. § 4911(f). This savings clause of Section 12

therefore is the basis for citizen enforcement against

federal facilities of the state noise laws referred to in

Section 4, 42 U.S.C. § 4903. Any other reading of the

citizens suit provision would nullify Section 4.

This same legal issue has arisen in the context of

similarly worded citizens suit provisions of the Clean Air

Act, as amended, 42 U.S.C. § 7604 (1976), and the

Federal Water Pollution Control Act, 33 U.S.C. § 1365

(1976 and Supp. 1). Although there is a conflict among

the Circuit Courts of Appeal concerning the rights con-

ferred upon private parties under the savings clause,

most of the decided cases support Puerto Rico’s inter-

pretation. The Court of Appeals for the Second, Third

and District of Columbia Circuits have ruled that the

savings clause in the citizens suit provision preserves the

rights of injured parties to enjoin violations of the

Federal Water Pollution Control Act. National Sea

Clammers Association v. City of New York, 616 F.2d

1222, 1225-31 (3d Cir.), cert. granted sub nom. Mid-

dlesex County Sewerage Authority v. National Sea

Clammers Association, __._~ U.S. , 101 S. Ct.

314 (Oct. 14, 1980) (No. 79-1760); Natural Resources

Defense Council, Inc. v. Callaway, 524 F.2d 79, 83-84

(2d Cir. 1975); Natural Resources Defense Council, Inc.

v. Train, 166 U.S. App. D.C. 312, 510 F.2d 692,

698-703 (1974). The Seventh Circuit, however, has re-

jected this interpretation with respect to the similarly

worded citizens suit provision of the Clean Air Act. City

of Highland Park v. Train, 519 F.2d 681, 690-93 (7th

Cir. 1975), cert. denied, 424 U.S. 927 (1976). Now the

First Circuit, in the context of the citizens suit provision

of the Noise Control Act, has sided with the Seventh

Circuit’s reasoning.

Puerto Rico submits that these citizens suit provi-

sions cannot reasonably be interpreted to prevent states

and private citizens from enforcing the very laws they

enacted to protect themselves from the degradation of

their environment. This anomalous result is completely

inimical to Congress’ express directive that federal

facilities should comply with state noise laws. This result

also contravenes Congress’ stated purpose of retaining

for state governments the primary responsibility for con-

trolling noise. See S. Rep. No. 92-1160, 92d Cong., 2d

Sess. (1972), reprinted in [1972] U.S. Code Cong. & Ad.

News 4655.

V. The Decision Of The Court Below Impermissibly Nar-

rowed The Scope Of The Noise Control Act Of 1972.

As an alternative basis for its decision, the Court

below held that federal facilities have no obligation

under the Noise Control Act to comply with state

nuisance laws that are used to control noise (App. A, in-

fra, pp. 35a-39a). This ruling also was based upon the

incorrect assumption that Congress intended to permit

private parties to enforce only the sort of noise control

requirements that were defined in Section 12 of the Act

(App. A, infra, pp. 38a-39a). The savings clause,

however, expressly refers to noise control requirements

under ‘‘any statute or common law.’’ 42 U.S.C. § 4911

(e(emphasis supplied). A nuisance statute containing

noise control criteria clearly would be enforceable under

the Act. This interpretation also is directly supported in

the language in the Senate Report that ‘*. . . States may

reach or maintain levels of environmental noise which

they desire through ... nuisance laws.’’ S. Rep. No.

92-1160, 92d Cong., 2d Sess. 6-7 (1972), reprinted in

{1972] U.S. Code Cong. & Ad. News 4655, 4660.

The decision of the Court below necessarily means

that the numerous state noise laws containing nuisance

criteria cannot be enforced against federal facilities. This

result will weaken the integrity and scope of the Act. As

a result, many who live near federal facilities will con-

tinue to be exposed to excessive noise levels.

Vi. The Decision Below Raises Unresolved Issues Of Vital

Concern To The People And Environment Of Puerto

Rico.

A most compelling reason for granting the petition

is the vital importance of the issues raised in this petition

to the people and environment of Puerto Rico. The

record adduced at trial disclosed that the noise created

by the use of live ordnance is excessive and significantly

intrudes upon the daily life of Vieques’ residents. The

record also unequivocally documents the Navy’s transfer

of Culebra training activities to the island of Vieques.

These actions contravened the Congressional mandate

that the Navy consult with Puerto Rico and report to

Congress prior to any transfer. This procedural require-

ment, which the Navy did not even attempt to satisfy,

was plainly designed to protect the interests of Puerto

Rico and to prevent the disruptive and dislocative effects

of bombing and shelling from occurring at an alternative

site in Puerto Rico.

The intrusion and hardship inflicted upon Puerto

Rico and its island municipality of Vieques cannot be

lightly dismissed. The Navy must be required to comply

with the rule of law. The only way to protect the citizens

of Vieques from ongoing Navy encroachment is to en-

force the express requirements imposed by Congress. To

decline review of Puerto Rico’s case, already shunted

aside improperly by the Court below on narrow jurisdic-

tional grounds, would be to perpetuate this injury and

foster the appearance that Congressional measures aimed

at protecting Puerto Rico’s citizens are unenforceable.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Hector ReEICHARD De CARDONA

Secretary of Justice

THOMAS R, LINCOLN

Department of Justice

GERARDO A. CARLO

Special Counsel to the

Governor

Joun A. HopGeEs

(Counsel of Record)

TimoTHy L. HARKER

JerrReY N. MARTIN

PEABODY, RIVLIN, LAMBERT &

MEYERS

A Professional Corporation

1150 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 457-1000

Of Counsel i

Counsel for Petitioners

Lewis A. RIVLIN

1150 Connecticut Ave., N.W.

Washington, D.C. 20036

May 28, 1981

APPENDIX

APPENDIX A

United States Court of Appeals

For the First Circuit

No. 79-1626

CARLOS ROMERO-BARCELO, ETC., er At.,

PLAINTIFFS-APPELLANTS,

»,

HAROLD BROWN, er At.,

DEFENDANTS- APPELLEES.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan R. Torrvueiia, U.S. District Judge)

(478 F. Supp. 646)

Before Corrin, Chief Judge,

CampnBe_t and Bowness, Circuit Judges.

Timothy L. Harker and John A. Hodges, with whom Peabody,

Rivlin, Lambert & Meyers, Lewis A, Rivlin, Miguel Gimenez

Munoz, Secretary of Justice, Government of Puerto Rico, Thomas

L. Lincoln, Department of Justice, Gerardo A. Carlo, Special

Counsel to the Governor of Puerto Rico, Jorge L. Cordova,

Lawrence White, and Jeffrey N. Martin were on brief, for ap-

pellants.

Anne S. Almy, Attorney, Department of Justice, with whom

Capt. Thomas E. Flynn, Lt. Cmdr. Eugene M. Pinkelmann, Jr.,

Office of the Judge Advocate Ceneral, Department of the Navy,

Richard M. Cornelius, Assistant General Counsel, Department of

the Navy, Sanford Sayalkin. Acting Assistant Attorney General,

Peter RK. Steenland, Jr., Dorothy R. Burakreis, and Edward J.

Shawaker, Attorneys, Department of Justice, were on brief, for ap-

pellees.

January 26, 1981

Bownes, Circuit Judge. ‘The Commonwealth of Puerto Rico

appeals from the district court's denial of its request for a com-

prehensive injunction against the United States Navy's

inilitary training operations on the Island of Vieques, a muni-

cipality of the Commonwealth, Armed with a battery of

federal and state laws, Puerto Rico! alleged that the Navy's*

activities in and around Vieques cause irreparable injury to

the island's ecology and its inhabitants. More specifically,

Puerto Rico claimed that the Navy's operations pollute the

island's air and its coastal waters, threaten the habitats of en-

dangered species and many of the island's irreplaceable

historical sites, and diminish the productivity of the island's

fishing and agricultural resources. The Commonwealth also

claimed that the Navy transferred certain training activities

from the island of Culebra to Vieques, contrary to congres-

sional and executive directives, After an extensive trial, the

district court ordered the Navy to obtain a NPDES permit,

prepare an environmental impact statement and obtain a

determination on the eligibility of certain historical and

prehistorical sites on the island for inclusion in the National

Kegister of Historic Places. The court otherwise ruled in the

Navy's favor and refused to enjoin the training operations,

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

turning to the issues raised by Puerto Rico on appeal, we brief-

ly sketch some basic characteristics of the island and the Navy's

activities,

Vieques

The island of Vieques lies six miles off the southeastern coast

of Puerto Rico and approximately nine miles directly south of

the island of Culebra, Situated on an east-west axis, Vieques

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

Commonwealth of Puerto Rico; Radames Tirado Guevara, Mayor

of Vieques; and the Board on Environmental Quality — are

hereinafter collectively referred to either as Puerto Rico or the Com-

monwealth.

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

Claytor, Jr., Secretary of the Navy; James L. Holloway, Chief of

naval Operations; 1,.C, Kidd, Jr., commander in Chief of the Atlan-

tic Fleet; and Louis H, Wilson, Commandant of the Marine Corps

— are hereinafter collectively referred to as the Navy.

is nearly twenty miles long with an average width of four

miles. Of a total area of approximately 33,000 acres, the Navy

owns 25,231.72 acres, or slightly more than 76% of the island,

Certain features of the island's ecology deserve particular

mention. Fringe and offshore coral reefs are found ins the

coastal waters of Vieques, primarily off the northern, castern

and southern shores, Seagrass flourishes along the ocean floor

adjacent to the coasts: the largest concentration runs from

Punta Caballo on the north coast eastward around Punta

Arenas to the southwest coast, There are also several large

mangrove stands located along the shores; in the west near

Punta Arenas and in the south around Puerto Mosquite, Puer-

to Ferro and Ensenada Honda, Three of the seven biolumines-

cent bays known to exist in the world are located along the

southern coast ~~ Puerto Mosquito, Puerto Ferro, and Bahia

Tapon,

Of the animal species living on Vieques, six are designated

by the U.S, Fish and Wildlife Service as either “endangered”

of “threatened,” 50 C.F.R, § 17.11, The “endangered” are the

manatees, the brown pelicans, the leatherback turtles and the

hawksbill turtles. Considered “threatened” are the green

turtles and the loggerhead turtles, At least some of the nesting

sites favored by the pelicans and the turtles are located within

the areas where the Navy conducts its training operations.

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

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

stop in the migration of Arawak Indians from the Orinoco

Basin in South America (Venezuela) to Puerto Rico and

Hispaniola (Haiti and the Dominican Republic), At the time

of Columbus’ “discovery” of Vieques in 1493, the island was

used by the Carib Indians as a temporary base from which

they carried out raids against the people of Puerto Rico.

* Incenclusive archeological evidence suggests the presence of a

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

Spain's movement into the Caribbean during the sixteenth

century resulted in the first permanent habitation of Vieques

by Indians who sought to escape the Spanish occupation of

Puerto Rico and St. Croix. Although Spain apparently never

attempted to colonize Vieques, it periodically sent military ex-

peditions to the island throughout the seventeenth and eigh-

teenth centuries to maintain its !egemony over the island,

The early years of the nineteenth century mark the begin-

ning of Vieques’ modern history. In 1816 colonists from St.

Croix ai, | St. Thomas established the first livestock ranches,

thus beginning what is today the island's primary agricultural

activity. Soon thereafter, one of the colonists organized the

construction of a fort at Isabel Segunda. In addition to ranch-

ing, the economy of Vieques at this time involved timber

harvesting for export to the Virgin Islands, subsistence farming

and fishing. By the second half of the century, sugar cane had

become the leading cash crop.

After the Spanish American War of 1898, Vieques, together

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

States. The island's economy continued to be dominated

through the early 1940's by sugar cane cultivation, ranching,

and fishing. Since the mid 1940's, however, the sugar cane in-

dustry has declined to a point where it is of no current impor-

tance to the island. Thus, the islanders now derive their

livelihood from the same sources relied upon by their ancestors

more than one hundred fifty years ago - fishing, subsistence

farming and ranching.

During the early 1940's the Navy acquired title to most of its

present holdings on Vieques. As a result of these acquisitions,

civilians now occupy an area of about 7,000 acres, bounded on

both the east and the west by Navy property.‘ The present

population distribution reflects the island's cconomy. Of a

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

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

Puerto Rico.

total population of approximately 8,000, close to 5,000 people

live in a rural environment outside the two coastal towns.

Located on the northern coast of the civilian sector is the

capital. Isabel Segunda, which has between 2.400 and 2,500

inhabitants. Esperanza, the island's other town, located on the

southern coast, has a population of approximately 600,

Navy Operations on Vieques

The Naval Ammunition Facility (NAF) encompasses the en-

tire area of Vieques west of the civilian zone. The Navy uses

the facility for deep storage of conventional ammunition. Ships

delivering the ordnance® dock at Mosquito Pier, located on the

northern coast of the NAF. From there, it is transported by

truck to bunkers distributed throughout the NAF. Most of the

ammunition is destined for off-island use by the Navy, the

Marines and the Puerto Rican National Guard. Occasionally,

ammunition is transferred overland from the NAF to the

ground maneuver area located east of the civilian zone.

The Navy's installations on the eastern half of Vieques are

part of a large military complex known as the Atlantic Fleet

Weapons Training Facility, headquartered at Roosevelt Roads

Naval Station in Ceiba, Puerto Rico. The facility consists of

four firing ranges of which only two are related to Vieques.

The outer range, a large area of ocean, at its closest points to

Vieques lies thirty-five miles to the north and twenty miles to

the south. Within this range, the Navy conducts exercises in

ship to ship weapons fire, ship to air missile fire and air to air

weapons fire. The underwater range, located off the western

shore of St. Croix, involves training in three dimensional

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

the civilian sector. It has since been conveyed to the Commonwealth

of Puerto Rico,

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

and “ordnance” interchangeably, Although we accept this usage for

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

weapons as well as ammunition.

tracking of surface and underwater objects. The electronic

warfare range is a network of “threat platform” simulators

located in Puerto Rico and nearby islands. These are used to

train shipboard and airborne electronic warfare teams and

provide tactical electronic order of battle support for opera-

tions conducted on the other ranges. One simulator is posi-

tioned at the western end of Vieques atop Monte Pirata. Until

recently, the inner range consisted of air to ground bomb and

missile targets and naval gunfire support targets on Culebra,

and air to ground, artillery and naval gunfire support targets

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

operations. Thus, the Vieques installations now comprise the

entire inner range.

The inner range is divided into four distinct areas. The

ground maneuver area (GMA) extends from the civilian sector

eastward for approximately seven miles to a cattle fence which

runs the width of the island. Located at the southwestern cor-

ner of the GMA is Camp Garcia, a Marine Corps camp which,

although able to accommodate several thousand troops, is oc-

cupied by one marine. The principal use of the GMA is for

Marine amphibious landings. These are conducted throughout

the year, primarily on the southern beaches between Punta

Conejo and Punta Negra. A typical landing will require the

use of large attack transports from which are launched the lan-

ding craft and amphibious tracked vehicles. These smaller

craft carry troops, tanks and other equipment to the beaches.

Once landed, the troops perform maneuvers throughout the

GMA, which at times include artillery fire. Upon completion

of the land exercise the troops embark from the beaches and

return to the attack transports. An amphibious landing usually

is accompanied by low-level support flights by fixed wing jet

aircraft and helicopter gunships. An amphibious exercise may

involve anywhere from two to twenty thousand troops; it may

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

part of a single large-scale maneuver in concert with the

Navy's sea and air forces.

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

the cattle fence and extends approximately two and one-half

miles cast to a “firebreak” designated as the western friendly

front line. Artillery training, strafing and air to ground bomb-

ing, the latter two using inert ammunition only, occur within

this area. The artillery is positioned near the western border of

the SIA — about six miles from the nearest point in the civilian

zone — loaded with live ammunition and fired at targets

located in the eastern part of the SIA. Air to ground bombing

is directed at two bullseye targets. Target #2 is situated about

one-half mile east of the SIA’s western boundary; target #1 is

on a point along the northern half of the western friendly front

line. The strafing targets are located at the southern most

point of the firebreak,

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

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

eastward for about two miles to the eastern friendly front line.

This area, in which live ammunition is used, contains as

targets mockups of two surface to air missile sites, an airstrip,

a fuel farm and an ammunition dump. There are also two

remote controlled moving targets inland and six naval gunfire

support targets along the southern coast of the AIA. No targets

exist in the area between the eastern friendly front line and

Punta Este, the easternmost point of Vieques. An infrequently

used water target lies about one mile east of this point.

Air and sea operations in the inner range occur «oout 200

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

Operations are directed by observers positioned in an observa-

tion post on Cerro Matias, located in the southeastern part of

the SIA. Aircraft taking off from the Roosevelt Roads airfield

or a carrier located north of Vieques first fly north of Vieques

and then circle around the eastern coast to approach the range

from the south. Aircraft taking off from carriers located south

of Vieques use a straight approach from that direction. Any

aircraft carrying ammunition, whether live or inert, is prohi-

bited from flying over the civilian area. As best as can be

estimated, an aircraft training in the range would ordinarily

come no closer than within five and three-quarters miles of the

civilian zone.

Ship to shore gunnery directed at the naval gunfire support

targets in the AIA is also restricted to a southern approach.

When firing, the ships are usually positioned between three

and eleven miles off the southern shore of the AIA. All ship to

shore firing occurs within a designated danger zone, which

permits the Navy to prohibit all civilian navigation while the

area is in use.

The Issues on Appeal

Puerto Rico challenges the district court’s rulings on the

following issues:°

1. Did the Navy “transfer” training activities from

Culebra to Vieques in violation of certain Military Construc-

tion Authorization Acts?

2. Does the dropping of ordnance into the coastal waters

of Vieques violate the Puerto Rico Water Quality Standards,

contrary to the requirements of § 313 of the Federal Water

Pollution Control Act Amendments of 1972, 33 U.S.C. §

1323(a)?

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

tion to enforce § 13 and § 15 of the Rivers and Harbors Act of

1899, 33 U.S.C. §§ 407, 409?

4. Does the danger zone regulation promulgated by the

Corps of Engineers, 33 C.F.R. § 204.234, unreasonably

restrict the food fishing industry of Vieques contrary to 33

U.S.C, § 3?

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

Navy to obtain a NPDES sewage discharge permit, prepare an en-

vironmental impact statement and obtain a determination on the

eligibility of certain historical and prehistorical sites for inclusion in

the National Register of Historic Places.

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

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

criminal nuisance statute, P.R. Laws Ann. tit. 33, § 1365, and

the requirements of § 4 of the Noise Control Act, 42 U.S.C. §

4903(a)?

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

dangered Species Act of 1973, 16 U.S.C. §§ 1531-1543?

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

satisfy the requirements of § 106 of the National Historic

Preservation Act, 16 U.S.C. § 470f, Executive Order 11593

and 36 C.F.R. § 800.4?

8. Should the Navy be enjoined from conducting training

operations on Vieques?

After oral argument, we requested that the parties submit

supplemental briefs on the question of whether any of the

plaintiffs have a right of action to challenge the alleged viola-

tions of certain military authorization acts and executive

branch directives related to training activities on Culebra and

Vieques, With the benefit of briefs from both parties, we first

address that question.’

Right to Challenge the Alleged Transfer of Military Train-

ing, Activities

Puerto Rico alleged that the Navy “clandestinely” has

transferred training operations from Culebra to Vieques, con-

trary to the “clear command” of the Military Construction

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

rejected this contention, ruling that the statutes do not estab-

7? Because we understand the district court's decision on this ques-

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

claim upon which relief can be granted, we reject the Com-

monwealth’s contention that the issue is not properly before us. Th

Navy raised this issue in its answer and the district court ruled, inter

alia, that Puerto Rico had failed to establish the existence of a

judicially enforceable mandate, 478 F. Supp. at 697-700.

10a

lish an enforceable mandate, and expressed serious doubt that

a transfer of activities actually had occurred. On appeal, Puer-

to Rico argues that the trial court's narrow view of the acts ig-

nores Congress’ “carefully crafted” statutory “procedure” in-

tended to protect the interests of the Commonwealth; Puerto

Rico also challenges the court's finding that a transfer did not

in fact occur. Our initial task is to ascertain whether Congress

intended to permit the Commonwealth,* or any other party,

to seck judicial enforcement of the three authorization acts. As

with any question of statutory interpretation, we begin with

an examination of the language of the statutes and the related

executive branch directives. Transamerica Mortgage Advisors,

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

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

In October 1970 Congress adopted the Military Construc-

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

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

Defense “to prepare a report of the weapons training now

® Although the Commonwealth's standing as parens patriae in an

action against the Navy may be questioned, compare Com-

monwealth of Pennsylvania v. Kleppe, 533 F.2d 668 (D.C. Cir.

1976) with Washington Utilities & Transp. Comm'n v. F.C.C., 513

F.2d 1142 (9th Cir. 1975), we think the Commonwealth certainly

has standing to raise this issue on the basis of the alleged injuries to

its quasi-sovereign interest “in all the earth and air within its do-

main,” an interest that is “independent of and behind the titles of its

citizens ... .” Georgia v. Tennessee Copper Co., 206 U.S. 230, 237

(1907). Cf. Massachusetts v. Mellon, 262 U.S. 447, 482 (1923)

(acknowledging the distinction between a state's quasi-sovereign in-

terest in the environment and its status as parens patriae). See also

Missouri v. Holland, 252 U.S. 416, 431 (1920). Because we conclude

that Puerto Rico has alleged “a ‘distinct and palpable injury’ ...

‘fairly traceable’ .. . to the challenged conduct” of the Navy, Duke

Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 73 (1978)

(citations omitted), we need not decide whether the Mayor of Vie-

ques or the Board on Environmental Quality have standing to

litigate this case. See Village of Arlington Heights v. Metropolitan

Housing Development Corp. , 429 U.S. 252, 263-64 (1977).

lla

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

was ordered to evaluate “all possible alternatives,

geographical and technological,” and make “recommenda-

tions for ... moving all or part of such activities to a new site

or sites,” giving particular consideration to six factors:

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

Culebra:

(2) the natural and physical environment of Culebra

and adjoining cays and their recreational value;

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

Culebra:

(4) the unique political relationship of Culebra and

Puerto Rico to the United States;

(5) the operational readiness and proficiency of the

Atlantic Fleet; and

(6) national security.

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

consultation “with the people of Culebra, the Government of

Puerto Rico, and all appropriate federal agencies.” Finally,

the Navy was directed to “avoid any increase or expansion of

the present weapons range activities in the Culebra complex

and, wherever possible, without degrading the activities, to

institute procedures which will minimize interference with the

normal activities and the solitude of the people of Culebra.”

On April ', 1971, Secretary of Defense Laird transmitted to

Congress and the President the mandated report. In a press

release issued the same day, the Secretary announced that he

had ordered the Navy “to institute immediately a number of

actions which will enhance the safety and well being of the

residents of Culebra and reduce the irritants to them resulting

from Navy training.” The Secretary also expressed his inten-

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

the Government of Puerto Rico which imposed certain restrictions

on the Culebra operations and aiso contained the Navy's assurance

that it would “continue to investigate both technological and

geographical alternatives to the training done around Culebra.”

12a

tion to reappraise the situation by the end of 1972 and make a

final decision about where to relocate the Culebra operations.

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

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

Stat. 394, Congress directed the Secretary of Defense to

prepare a new study of “the most advantageous alternative [to

the Culebra training complex] on the basis of investigations

which consider cost, national security, the operationai

readiness and proficiency of the Atlantic Fleet, the irnpact on

the environment, and other relevant factors.” On December

27, 1972, Secretary Laird submitted his report and recom-

mendations to the President and Congress. In an accompany-

ing letter he identified Vieques as the best of the available

alternative sites but concluded “that the Culebra complex of-

fers such advantages over all other alternatives studied that

none of these other alternatives can be considered reasonable.”

Relocation to Vieques “would significantly reduce the

capability of the Inner Range and would transfer the training

activity from an island with 700 inhabitants to one with 7,000

inhabitants,” an “[{im)prudent course of action.” Thus, he

recommended “that the Navy retain its training targets in the

Culebra complex,” yet “remain abreast of developments that

would modify ... the Navy's need” for the Culebra range.

In the following spring of 1973, Secretary Laird’s successor,

Elliot Richardson, informed the Secretary of the Navy that it

was in the Defense Department's long-range interest to

transfer the Culebra training activities to the islands of

Desecheo and Monito by July 1, 1975. This relocation was to

occur, however, only after Congress had appropriated the

necessary funds and the Navy had achieved a “satisfactory

overall arrangement with the government of Puerto Rico for

carrying out the proposed move and for insuring the long-term

continuation of the Atlantic Fleet Weapons Range and the

Fleet Marine Force training area.”

13a

Congress responded to this change in the Defense Depart-

ment’s position with the enactment in 1973 of the Military

Construction Authorization Act of 1974. Pub. L. No. 93-166,

87 Stat. 668. Section 204(a) of the Act authorized the ap-

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

Culebra training operations. But § 204(b) “expressly condi-

tioned [the relocation] upon the conclusion of a satisfactory

agreement to be negotiated by the Secretary of the Navy . ..

with the Commonwealth of Puerto Rico and reported to the

Committees on Armed Services of the Senate and the House of

Representatives prior to execution of such agreement.” Con-

gress directed that “the agreement shall provide, among other

things, that the Commonwealth of Puerto Rico shall insure

that (1) Commonwealth lands suitable for carrying out opera-

tions of the type referred to in subsection (a) will be made

available for the long-term continued use of the Atlantic Fleet

Weapons Range and Fleet Marine Forces training areas by the

Navy, including, but not limited to, present areas and facilities

on the island of Vieques ....”

Despite the absence of an agreement between the Navy and

Puerto Rico, on June 22, 1974, Secretary of State Kissinger, ac-

ting as National Security Adviser, informed the Secretary of

Defense of the president's decision to terminate the training

activities on Culebra by July 1, 1975, and those on the Culebra

Cays by December 31, 1975. Kissinger directed the Secretary

of Defense “to consider and select alternative sites for the

weapons range activities” and stated that “[t]he selection of

the new site, if it is in Puerto Rico, will be contingent on its be-

ing acceptable to the Commonwealth ...."” The Navy has

ceased its operations on Culebra and negotiations continue

over the selection of a new site.

When Congress has not expressly provided for private en-

forcement of a statute, there is little likelihood that the

legislative History will disclose whether Congress nonetheless

intended that result. Cannon vy. University of Chicago, 441

l4a

U.S. 677, 694 (1979). Thus, the statutory language becomes

the best evidence of Congress” intent. As the Supreme Court

recently recognized, in each of its earlier cases that did imply a

private cause of action the statute in question either conferred

a federal right on private parties or proscribed certain con-

duet. Touche Ross & Co. v. Redingtoa, 442 U.S. at 569. Im-

plicit in this observation is that the absence of statutory

language that either prohibits some action or confers rights

weighs heavily against implication of a private cause of action.

Neither the Military Construction Authorization Act of 1971

nor the 1972 Act creates rights or proscribes conduct of any

relevance to this case. The 1971 Act's partial restriction of the

Navy's activities in Culebra was unrelated to Navy operations

on the other islands of the Commonwealth. In contrast, the

1974 Act made the relocation of the Navy's Culebra operations

contingent on the execution of an agreement between the

Navy and Puerto Rico. But even if we characterize this as a

limited prohibition,’ it appears from the language of the per-

tinent provision and the accompanying committee report that

the condition was imposed to benefit the Navy rather that

Puerto Rico. Section 204(b) required that the agreement con-

tain assurances from the Commonwealth “that Com-

monwealth lands suitable for carrying out operations ... will

be mantle available for the long term continued use of the |. .

Navy, including, but not limited to, present areas and facilities

on the island of Vieques ... .“ Not only does this language im-

pose an obligation on the Commonwealth rather than the

Congress’ requirement of an agreement prior to relocation was

effectively a prohibition only with respect to the expenditure of the

$12,000,000. Without :nention of the 1974 Act, President Nixon

subsequently ordered the termination of the Culebra operations, ig-

noring the safeguards required by the Act. The Navy never expend-

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

reallocated the amount to a Navy construction project in the Indian

Ocean area. See Supplemental Appropriation and Recission Act,

Pub. L. No. 96-304, 94 Stat. 857 (July 8, 1980).

1Sa

Navy, but it forecloses negotiation over the training areas and

facilities on Vieques. In the same vein, the joint conference

report that accompanied the final draft of the Act states:

The restrictive language in Section 204 is a result of

discussion with the Governor and others and the con-

ferees believe it provides sufficient protection to the Navy

upon relocation of ship-to-shore gunfire operations from

Culebra to the other Islands mentioned.

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

had intended to create a private right of action, it would have

provided first for a right or duty upon which private enforce-

ment could be based. But the authorization acts leave Puerto

Rico without a place to hang its hat; the statutes grant no right

to the Commonwealth, nor do they impose an obligation on

the Navy for the benefit of the Commonwealth.

Puerto Rico argues that the authorization acts reflect Con-

uress’ intention to obligate the Navy to confer with other par-

ties, particularly the Commonwealth, prior to any transfer of

the Culebra operations. As part of that argument, Puerto Rico

maintains that Congress anticipated that the agreement man-

dated by the 1974 Act would provide for “other things”

beyond the Commonwealth's assurances of an adequate alter-

native site. The Commonwealth contends that this phrase un-

doubtedly was intended to encompass provisions for the pro-

tection of its environment and the welfare o! its citizens; Con-

gress impliedly sought to prevent a recurrence of the ecological

and political problems created by the Navy’s use of Culebra.

Puerto Rico concludes that as the party most to be benefitted

from this inferred congressional prohibition of unilateral Navy

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

gress’ intent.

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

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

three acts that establishes the mandate it seeks to enforce. In-

stead, it relies primarily on the “necessary” inferences to be

16a

drawn from the statutes and the executive branch directives;

Puerto Rico interprets the latter documents to corroborate its

position. But the expansive inferences drawn by Puerto Rico,

which we do not find to be free from doubt, must be con-

trasted with the limited nature of the legislation. The 1971 Act

and the 1972 Act, as related to Vieques, directed the Secretary

of Defense to prepare two feasibility reports; that is all. The

1974 Act did mandate execution of an agreement prior to

relocation from Culebra. So far as the statute provides,

however, we know only that Congress intended by this condi-

tion to protect the Navy's training capacity. Congress may

have had a clear collective understanding of what “other

things” were at issue, and the preferred resolution, but it

chose not to reflect this in its 1974 legislation. Instead, it left to

the parties the task of hashing out an agreement, subject to

congressional, not judicial, review. The absence of any en-

forcement scheme in the authorization acts reinforces our con-

clusion that Congress intended that the controversy surroun-

ding the Navy's training activities in Puerto Rico be resolved in

the political sphere. Implication of a private cause of action

would be contrary to the apparent intent of Congress, and,

viven the lack of a judicially enforceable mandate, a futile

esture,

Puerto Rico relies on the various executive branch directives

principally to corroborate its interpretation of the authoriza-

tion acts. As a second line of argument, however, it maintains

that the directives have independent significance as sources of

a private right of action. Unlike the situation presented by the

three statutes, at least one of the directives contains a provision

which ordered the Navy to obtain the Commonwealth's agree-

ment prior to a relocation of the Culebra operations. In 1974

National Security Adviser Kissinger, on behalf of the Presi-

dent, directed the Secretary of Defense to end the Culebra

operations and select a new site contingent on its being accep-

table to the Commonwealth. Puerto Rico contends that this

17a

order imposed a legal obligation on the Navy that is en-

forceable by the Commonwealth. We conclude, however,

that the President's order does not have the force and effect of

law and thus is not enforceable by an implied private cause of

action.

The Commonwealth attempts to cloak the 1974 presidential

order with statutory authority, characterizing it as in fur-

therance of the 1974 Act. But in fact the order essentially ig-

nored what we perceive to be the intent of Congress as

evidenced in the Act. Rather than require the Conimonwealth

to insure alternative sites prior to a relocation of the Culebra

operations, as Congress mandated, the President ordered ter-

mination of those operations without any prior assurances

from Puerto Rico. Moreover, the order granted the Com-

monwealth a veto over the Navy’s choice of an alternative site;

nothing in the Act suggests that Congress intended such a role

for the Commonwealth. When the President issued this order,

he necessarily relied not on any statutory authority, but on his

constitutional authority as the chief executive and the corm-

mander in chief of the armed forces. As such, the President has

the power to direct the activities of the military but he is

without the authority to legislate. See Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 578, 587-88 (1952). Without

some basis in an act of Congress, the directive cannot constitu-

tionally be invested with the status of law, sce independent

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

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

cause of action."

'' The other executive branch directives invoked by Puerto Rico

do not require extensive comment. The statements of Secretary

Laird, to the extent they pertain to Vieques, contain nothing more

than certain recommendations based on the Department's evalua-

tion of the island and the other potential relocation sites. Secretary

Richardson's memorandum to the Secretary of the Navy does not ad-

dress the transfer of Culebra operations to Vieques. He ordered

relocation to the uninhabited islands of Desecheo and Monito and

18a

The Commonwealth's reliance on section 10 of the Ad-

ministrative Procedure Act as an alternative source for a cause

of action founders upon the limitations inherent in the Act.

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

legal wrong because of agency action, or adversely affected or

ayyrieved by agency action within the meaning of a relevant

statute, is entitled to judicial review thereof.” 5 U.S.C. § 702.

But assuming that the Navy did “transfer” the Culebra ac-

tivities to Vieques, that action is not “agency action.”

Section 2 of the APA defines agency action to include “the

whole or a part of an agency rule, order, license, sanction,

relief or the equivalent or denial thereof, or failure to act... .”

ld. § 551(13). Each of the types of action included within this

definition is separately defined in § 2. See id. §551(4), (6), (8),

(10), (11). All but one of these specific definitions refer to one of

two forms of regulatory activity — agency rulemaking or

agency adjudication. “Sanction” is defined to include, in addi-

tion to regulatory activity, “any agency . . . destruction, taking,

seizure or withholding of property.” Jd. § 551(10).

The Navy's transfer of military training activities did not

remotely involve rulernaking or adjudication, nor, at least in

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

withholding of property.” We recognize that Congress intend-

ed the APA to span a “broad spectrum of administrative ac-

tions.” Abbott Laboratories v. Gardner, 387 U.S. 136, 140

(1967). Nonetheless, the language of § 2 evidences that Con-

yress intended to reach only actions that are administrative,

aud we conclude that the challenged activities of the Navy do

not fall within that spectrum. But see Standard Oil Co. of Ca.

v. F.i.C., 596 F.2d 1381, 1384-85 (9th Cir. 1979).

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

agency action, we would characterize it as action “committed

required the Commonwealth's participation only with respect to the

implementation of the plan and protection of the Atlantic Fleet's in-

terests. Moreover, Richardson's directive was essentially superseded

by the President's 1974 order.

19a

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

unreviewable. This exception to § 10's broad entitlement to

judicial review applies only “in those rare instances where

‘statutes are drawn in such broad terms that in a given case

there is no law to apply.’ ""* Citizens to Protect Overton Park

v. Volpe, 401 U.S. 402, 410 (1971), quoting S. Rep. No. 752,

79th Cong., Ist Sess. 26 (1945). See Chrysler Corp. v. Brown,

441 U.S. 281, 317 (1979). The question before us presents one

of those rare instances. The Commonwealth has cited as the

applicable constraint on the Navy's training activities the

Military Construction Authorization Acts of 1971, 1972 and

1974. But, as we have already explained in some detail, those

statutes do not provide the judiciary with any “law to apply.”*

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

alleged transfer of military training activities from Culebra to

Vieques, Puerto Rico has failed to state a claim upon which

relief can be granted.

Pollution of the Coastal Waters

1. Puerto Rico Water Quality Standards

Section 313 of the Federal Water Pollution Control Act

Amendments subjects every “department, agency, or instru-

'? Because we conclude that the authorization acts are of no

relevance to the Navy's authority to conduct the Vieques operations,

we need not undertake the more detailed analysis set forth in Hahn

v. Gottlieb, 430 F.2d 1243, 1249 (1st Cir. 1970), to determine the

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

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

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

analysis).

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

on the Navy to the benefit of the Commonwealth also undermines

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

grants the “district courts original jurisdiction of any action in the

nature of mandamus to compel an officer ... of the United States

... to perform a duty owed to the plaintiff.” Id. See Falzarano v.

United States, 607 F.2d 506, 513 (Ist Cir. 1979).

20a

mentality of the executive, legislative and judicial branches of

the Federal Government” to “all Federal, State, interstate,

and local requirements ... respecting the control and abate-

ment of water pollution in the same manner and to the same

extent as any nongovernmental entity.” 33 U.S.C. § 1323(a).

Puerto Rico alleged that the Navy, by dropping ordnance into

the waters of Vieques, has violated several water pollution

control regulations promulgated pursuant to the Com-

monuwealth’s Water Pollution Control'® and Public Policy En-

vironmental Control Acts.'* The district court rejected this

wlegation. finding no violation of the water quality standards

it deemed applicable to the Navy's activity. 478 F. Supp. at

664-69. On appeal, Puerto Rico asserts that, contrary to the

trial court’s opinion, there ure three germane water quality

standards that the Navy has violated.'® We consider each

separately."

Article 2.1.1 of the Puerto Rico Water Quality Standards!”

provides:

The waters of Puerto Rico shall not contain materials at-

tributable to discharges that will settle to form objec-

tionable deposits. Nor will they contain floating debris,

scunn, oil and other floating materials attributable to

discharges in amounts sufficient to be unsightly or

deleterious.

| POR. Laws Ann. tit. 24, §§ 591-601,

'* PLR. Laws Ann. tit. 12, §§ 1128-1142.

'° Puerto Rico's reliance on the SB waters classification’s prohibi-

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

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

heen superseded by Article 7.3 of the current Regulation, “Puerto

Kico Water Quality Standards.”

We undertake this examination of the water quality standards

without the benefit of any prior judicial or administrative inter-

pretation,

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

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

“Article.” The Regulation is reprinted in Envir. Rep. — State Water

Laws (BNA) 896:0301—-: 0310.

2la

Puerto Rico argues that the trial court erred in its iuterpreta-

tion of 2.1.1 by according determinative significance to the

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

and statute. We cannot agree. Article 2.1.1 expressly and ex-

clusively addresses materials “attributable to discharges,”

which are defined as “[t]he outflow of wastewater from any

. source into receiving waters.” Article 1. Turning to the

definition of wastewater, we are directed to the definition of

municipal wastes, which is “[wJater carrying human and

animal wastes from homes, buildings, industrial

establishments and other places alone or in combination with

industrial wastes.” Id. No fair reading of this language war-

rants the conclusion that Article 2.1.1 applies to the bombing

and shelling of coastal waters.

In contrast, the prohibitions annunciated in Article 2.1.3

are not limited in application to materials attributable to

discharge. Article 2.1.3 directs that “(t]he waters of Puerto

Rico shall not contain substances in concentrations or com-

binations which produce undesirable physiological responses

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

specifically, subsection (A) establishes with respect to the

coastal waters the “maximum allowable concentrations” of

iron and certain other inorganic substances. Puerto Rico con-

tends that the district court ignored the general prohibition of

“substances ... which produce undesirable physiological

responses” and erred in its finding that the Navy’s activity did

not result in a violation of the maximum allowable concentra-

tion of iron.

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

reads into Article 2.1.3 an unjustifiable breadth in scope. Arti-

cle 2.1.3 speaks not simply of “substances,” which, admitted-

ly, could be construed to encompass solids such as spent ord-

nance as well as other refuse. Rather, the regulation addresses

“concentrations” or “combinations” of substances. Those

terms appear to refer in this context to the presence of

22a

chemicals and chemical processes rather than that of solids

such as discarded ordnance. For example, the “maximum

allowable concentrations” established by 2.1.3 are expressed

in terms of milligrams per liter, hardly a measurement ap-

propriate to shell casings or bomb remnants. And those limita-

tious are devoted to the specification of allowable concentra-

tions of minerals and pesticides, not those of solids. We con-

clude that the apparent thrust of this regulation is the control

and abatement of chemical pollution. We therefore agree with

the district court that the sole issue under Article 2.1.3 is

whether the Navy's used ammunition caused concentrations of

iron in certain areas of the coastal waters to exceed the

specified maximum allowable concentration.

With respect to this question, we find nothing in the record

to contradict the trial court's finding. Although it appears fair-

ly clear that the concentrations of iron in some areas near the

target range do exceed the Article 2.1.3(A) standard, Puerto

Rico failed to establish that ordnance dropped by the Navy

caused these excessive concentrations of iron. Thus, the

district court correctly found no violation of Article 2.1.3.

Finally, we tura to the broadly phrased prehibition of Arti-

cle 4 of the Water Quality Standards. Article 4.1.1 provides

that “[nJo person shall cause or permit the pollution of the

waters of Puerto Rico ... .” Pollution is defined in Article 1 as

{a|ltering the natural characteristics 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,

chemical, microbiological or radioactive condition, in

such a way as to interfere with enjoyment of life or pro-

perty or violate the standards of purity established by this

Regulation.

Puerto Rico argues that the district court failed to apply Arti-

cle 4.1.1 as a “generic” prohibition distinct from the specific

standards set forth in Article 2. We conclude, however, that

23a

Article 4.1.1 does not constitute a “standard” as referred to in

Puerto Rico's Water Pollution Control Act.

The statutory prohibition of pollution makes it “unlawful

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

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

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

of the minimum standards of purity that the [Board on En-

vironmental Quality] may establish ....” P.R. Laws Ann. tit.

2A, § 595. Similarly, the statute defines pollution as “making

[the waters] in any way noxious ... all according to the per-

missible standards of purity ... established as provided

herein.” P.R. Laws Ann tit. 24, § 591(i). This language

evidences the legislature’s judgment that the general prohibi-

tion of pollution is not enough; standards explicating what

pollution is must be provided. The statute anticipates ad-

ministrative specification of its broad proscription in the form

of standards by which particular actions may be evaluated.

But Article 4.1.1 merely rephrases the general statutory com-

mand; it offers no clarification of that language, nor, unlike

Article 2, does it provide any additional guidance to those who

must conform to the law. To accept 4.1.1 as a “standard”

would render meaningless the statutory requirement that the

regulations promulgated thereunder further define and clarify

the general statutory proscription of pollution. Because Article

4.1.1 is not a standard as contemplated by the authorizing

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

standards of the Regulation.'®

We affirm the district court's conclusion that the Navy has

not violated the applicable Puerto Rico Water Quality Stan-

dards or 33 U.S.C. § 1323(a).

1 The statutory provisions that empower the Board to adopt

regulations, P.R. Laws Ann. tit. 12, § 1131(13) and tit. 24, §§ 598,

599, contain nothing contrary to this conclusion.

24a

2. The Rivers and Harbors Act of 1899

The second phase of Puerto Rico's attempt to halt the Navy's

dropping of ordnance into the coastal waters of Vieques rests

primarily on an alleged violation of Section 13 of the Rivers

and Harbors Act of 1899, 33 U.S.C. § 407. As a complement to

that claim, Puerto Rico alleged that the Navy's sinking of the

U.S.S. Killen in the Bahia Salinas del Sur violated Section 15 of

the same act, 33:U.S.C. § 409. The district court ruled that

neither § 13 nor § 15 give rise to a private cause of action for

injunctive relief. 478 F. Supp. at 669-72. We affirm that deci-

sion with respect to § 13, but vacate the court's ruling with

respect to § 15.

Section 13 makes it unlawful to throw, discharge or deposit

“any refuse matter... into any navigable water of the United

States ...” without a permit from the Administrator of the

Environmental Protection Agency. 33 U.S.C. §§ 407, 1342(a).

The “comprehensive language” of this prohibition reflects a

broad statutory purpose — the protection of navigation and

the prevention of pollution. United States v. Standard Oil Co.,

384 U.S, 224, 228-30 (1966). See United States v. Pennsylvania

Industrial Chemical Corp., 411 U.S. 655 (1973). Under § 17 of

the Act, it is the duty of the Department of Justice to “conduct

the legal proceedings necessary to enforce the provisions” of §

13. 33 U.S.C. § 413. Although the Act expressly provides for

criminal penalties only, id., courts have recognized the federal

government's implied authority to seek injunctive relief for a

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

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

Wyandotte Transp. Co. v. United States, 389 U.S. 191 (1967);

Connecticut Action Now, Inc. v. Roberts Plating Co., 457

F.2d 81 (2d Cir. 1972). Puerto Rico argues that the broad pur-

poses of § 13 also warrant the implication of a private cause of

action for injunctive relief, We undertake an analysis of this

claim mindful of the Supreme Court's recent adherence “to a

stricter standard for the implication of private causes of action

25a

2." ™ Touche Ross & Co. v. Redington, 442 U.S. 560, 578

(1979).

The touchstone of this inquiry is whether Congress intended

that the statute be enforced by private parties. Transamerica

Mortyage Advisers, Inc. v. Lewis, 444 U.S. 11, 15 (1979);

Touche Ross & Co. v. Redington, 442 U.S. at 568. That intent

usually can best be ascertained by addressing four factors. See

Cort v. Ash, 422 U.S. 66, 78 (1975). Firs! it must be deter-

mined from the statutory language “whether the statute was

enacted for the benefit of a special class of which the plaintiff

is a member.” Cannon v. University of Chicago, 441 U.S. 677,

689 (1979). The duties imposed by § 13 benefit the public at

large; nothing in the statutory language identifies any special

class as the principal intended beneficiary.*° Rather, if there is

' None of the courts of appeals that have previously considered

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

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

1222 (3d Cir.), cert. granted, 49 U.S.L.W. 3281 (Oct. 14, 1980)

(No. 79-1760); Sierra Club v. Andrus, 610 F.2d 581 (9th Cir. 1979)

(dictum), cert. granted sub nom., Kern County Water Agency v.

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

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

1008 (7th Cir. 1979); Connecticut Action Now, Inc. v. Roberts

Plating Co., 457 F.2d 81 (2d Cir. 1972 (qui tam action); Guthrie v.

Alabama By-Products Co., 456 F.2d 1294 (5th Cir. 1972) (per

curiam), cert. denied, 410 U.S. 946 (1973); Bass Anglers Sportman’s

Society of America, Inc. v. Koppers Co., 447 F.2d 1304 (5th Cir.

1971) (per curiam). See also Parsell v. Shell Oil Co., 421 F. Supp.

1275 (D. Conn. 1976), aff'd mem. sub nom. East End Yacht Club,

Inc. v. Shell Oil Co., 573 F.2d 1289 (2d Cir. 1977); Loveladies Pro-

perty Owners Ass'n v. Raab, 430 F. Supp. 276 (D.N.J. 1975), aff'd

mem. 547 F.2d 1162 (3d Cir. 1976), cert. denied, 432 U.S. 906

(1977). Although the district court thought that the Fourth circuit

may have recognized a private cause of action in Rucker v. Willis,

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

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

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

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

%” That the Commonwealth of Puerto Rico is one of the plaintiffs

in this case does not alter our conclusion. Section 13 “no more

26a

a principal beneficiary of § 13's proscription, it is the “Govern-

ment itself.” Wyandotte Transp. Co. v. United States, 389

U.S. at 201. With a statute such as § 13, one which creates

“duties on the part of persons for the benefit of the public at

large,” the Supreme Court “has been especially reluctant to

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

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

‘The second factor requires an investigation of the legislative.

history. As the Supreme Court has recognized, however, little

is likely to be learned from the legislative history of a statute

which is silent on the question of private enforcement. Id. at

604. The debates and reports preceding § 13's enactrnent at

most evidence that Congress had no intent with respect to this

question. See Touche Ross & Co. v. Redington, 442 U.S. at

571.

The third factor is whether it is “consistent with the

underlying purposes of the legislative scheme to imply such a

remedy ...."*! 441 U.S, at 688-89 n.9. Section 17 of the Act

provides that “(t]he Department of Justice shall conduct the”

legal proceedings necessary to enforce” § 13. 33 U.S.C. § 413.

evidences an intent to ‘especially’ benefit a class of [state govern-

ments] or their agents than a class of private parties ...." City of

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

1012 n.7 (7th Cir.), cert. denied, 444 U.S. 1025 (1979).

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

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

underlying purpose of the legislative scheme” and observed that

“when that remedy is necessary or at least helpful to the accomplish-

ment of the statutory scheme, the Court is decidedly receptive to its

implication... "441 U.S. at 703. To the extent that this rephrasing

weighs more favorably towards implication of a private cause of ac-

tion, we think it reflects the Court's previous conclusion that the

statute at issue was intended to benefit a special class. The potential

remedial advantages of an implied cause of action no longer hold the

sway they once did, Touche Ross & Co. v. Redington, 442 U.S. at

578, even when the statute at issue does benefit a special class, Tran-

samerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. at 15-16,

19-20, 23-24,

27a

The only role expressly created for private persons in the en-

forcement scheme is as informants; section 17 provides for the

payment of one-half of a levied fine “to the person or person

giving information which shall lead to conviction.” Id. § 411.

In one respect, a private cause of action is clearly consistent

with the legislative scheme. It would positively augment the

governments enforcement efforts, thus better effectuating the

ultimate objectives of § 13, But notwithstanding the remedial

advantages to be gained from such implication, the language

of these provisions establishes that Congress vested in the

federal government the primary responsibility for enforce-

ment.” To the extent that this decision involved factors other

“Puerto Rico puts great store in the fact that the Department of

Justice is obligated to represent federal agencies charged with a

violation of the Act and thus is “in no position to enforce the Act”

ayainst those same federal agencies. Natural Resources Defense

Council, Inc. v. Grant, 355 F. Supp. 280, 290 (E.D.N.C. 1973).

The Commonwealth maintains that private parties must be allowed

to vindicate the public's interest in environmental protection. Id.

See People of the State of Illinois ex rel Scott v. Hoffman, 425 F.

Supp. 71 (S.D. Ill. 1977). See also Sierra Club v. Andrus, 610 F.2d

581, 590-91 (9th Cir. 1979), cert. granted, 49 U.S.L.W. 3212 (Oct.

7, 1980) (No. 79-1502). But whether or not this situation presents an

insuperable conflict, our responsibility is to ascertain Congress’ in-

tent, not to improve upon its enforcement scheme. Touche Ross &

Co. v. Redington, 442 U.S. at 578. Moreover, the absence of an im-

plied private cause of action under § 13 does not mean that federal

agencies are effectively free to ignore their responsibilities with

respect to the control of water pollution. Section 313 of the Federal

Water Pollution Control Act Amendments subjects every federal

agency to “all Federal, State, interstate, and local requirements . . .

respecting the control and abatement of water pollution ....” 33

U.S.C. § 1332(a). Under § 505 of the same Act, id. § 1365, Puerto

Rico may sue to enforce that obligation, us it has done in this case.

The similarity in purpose between the Rivers and Harbors Act and

the Federal Water Pollution Control Act is reflected in the fact that

the permit requirement imposed by § 13 is now implemented by the

Administrator of the EPA under § 402 of the Federal Water Pollu-

tion Control Act. See 33 U.S.C. § 1342(a)(1)(2). Because no issue is

presented here in which the substantive requires nts of § 13 might

differ from those of the Federal Water Pollution Control Act, we

need express no view on the availability of a right of private enforce-

ment against federal defendants in a situation in which they did.

28a

than the protection of navigation and the prevention of pollu-

tion, implication of a private cause of action could very well

frustrate Congress’ intent.” See Connecticut Action Now, Inc,

v. Roberts Plating Co., 457 F.2d at 89.

Finally, we must consider “whether implying a federal

remedy is inappropriate because the subject matter involves an

area basically of concern to the States.” Cannon v. University

of Chicago, 441 U.S, at 709. The federal interest in navigation

aud the control of pollution cannot be doubted. Congress’

power under the Commerce clause gives that body virtually

plenary authority over the navigable waters of the United

States. See, «.g., Gilman v. Philadelphia, 70 U.S. (3 Wall.)

713 (1865); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).

Since the enactment of the Rivers and Harbors Act in 1899,

Congress has expanded federal efforts to control the pollution

of navigable waters with the adoption of the Federal Water

Pollution Control Act, as amended, 33 U.S.C. §§ 1251-1376.

The enactment in 1969 of the National Environmental Policy

Act, 42 U.S.C. §§ 4321-4369, underscores the federal commit-

iment to combat pollution. We perceive no federalism-comity

problems militating against the implication of a private cause

of action under § 13.

Of the four factors we have analyzed to ascertain Congress’

intent, only the last clearly favors implication of a private

cause of action. Although we recognize that private enforce-

prosecute all offenders ... when requested to do so by the Secretary

of the Army or by any of the officials hereinafter designated ... .”

33: U.S.C. § 413, It vests in the appropriate administrative officials,

if not also the Attorney General, the discretion to decide whether §

13 should be enforced in a particular case. As a provision for pros-

ecutorial discretion, it reflects a legislative decision to husband the

enforcement resources of the federal government, including those of

the judiciary. The government's decision not to enforce § 13 against

a I aot party, perhaps in anticipation of an informal resolution

of the matter, could be frustrated by a private party armed with an

implied cause of action.

29a

ment of § 13 might be conducive to the protection of naviga-

tion and the control of pollution, “|[t)he ultimate question is

one of congressional intent, not one of whether this Court

thinks that it can improve upon the statutory scheme ....”

Touche Ross & Co. v. Redington, 442 U.S. at 578. What

evidence there is does not warrant a conclusion that Congress

intended to create a private cause of action under § 13."

Section 15 of the Rivers and Harbors Act makes it unlawful

“to voluntarily, or carelessly sink, or permit or cause to be

sunk, vessels or other craft in navigable channels ....” 33

U.S.C. § 409. Puerto Rico maintains that the Navy's inten-

tional sinking of a target ship, the U.S.S. Killen, in the Bahia

Salinas del Sur, violated this prohibition. We conclude that

Puerto Rico is without standing to assert this claim.

“The essence of the standing inquiry is whether” the plain-

tiff has alleged “a ‘distinct and palpable injury’ ... ‘fairly

traceable’... to the challenged conduct.” Duke Power Co. v.

Carolina Env. Study Group, 438 U.S. 59, 73 (1978) (citations

omitted). Puerto Rico failed to allege that the » nking of the

U.S.S. Killen resulted in any form of harm to the island or its

inhabitants. Nor does the relief requested — an injunction

against the Navy's training activities on Vieques — implicitly

suggest the harm which Puerto Rico might have alleged. An

injunction against current Navy activities hardly would

remedy any injury to the environment or navigation caused by

a sunken vessel. Removal of the ship would be the appropriate

* Two of the decisions relied upon by Puerto Rico rest, in princi-

ple if not by name, on an application of § 10(a) of the Ad-

ministrative Procedure Act, 5 U.S.C. § 702. See Citizens Committee

for Hudson Valley v. Volpe, 425 F.2d 97 (2d Cir.), cert. denied, 400

U.S. 949 (1970); People of the State of Ill. ex rel Scott v. Hoffman,

425 F’. Supp. 71 (S.D. Ill, 1977). That statute creates a right to

judicial review for persons injured by “agency action,” the defini-

tion of which does not encompass the Navy's dropping of ordnance

into the coastal waters of Vieques. See 5 U.S.C. § 551(13). See pp.

18-19, supra.

30a

remedy for harm resulting from the ship's presence, but Puerto

Rico did not request that relief.2* The failure to allege a

distinct and palpable injury renders Puerto Rico's claim under

§ 15 nonjusticiable. See Simon v. Eastern Kentucky Welfare

Rivhts Org.. 426 U.S. 26, 39 (1976): Linda R.S. v. Richard D..

410 U.S, G14, G17 (1973). Thus, we vacate the district court's

decision with respect to this claim, and remand with instruc-

tions to dismiss for lack of jurisdiction.”

Kestrictions on hishing

“In the interest of the national defense, and for the better

protection of life and property,” section 1 of the Army Ap-

propriation Act of 1918 authorizes the Secretary of the Army

“to prescribe such regulations as he may deem best for the use

and navigation of any portion or area of the navigable waters

. under the jurisdiction of the United States endangered or

likely to be endangered by Artillery fire in target practice or

otherwise ...." 33 U.S.C. § 3. The sole express restraint im-

posed by the statute on the Secretary's power provides “that

the authority conferred shall be so exercised as not

unreasonably to interfere with or restrict the food fishing in-

dustry ...." /d. Pursuant to this authority, the Secretary has

promulgated danger zone regulations individually tailored to

the particular area of water in question. See 33 C.F.R. § 204.

“® Puerto Rico correctly argues that a violation of § 15 can be

established without proof that navigation has been actually

obstructed by the voluntary sinking of a vessel. This does not,

however, obviate the jurisdictional requirement that a private party

seeking relief under § 15 allege some injury in fact to itself.

* Given our disposition of this claim, we need not decide whether

a private cause of action for injunctive relief should be implied from

§ 15. Nonetheless, we think it appropriate to observe that our

analysis of that issue with respect to § 13 is equally applicable to §

15.

3la

In 1974 the Secretary of the Army promiulated the follow-

ing regulation:

Carribean Sea and Vieques Sound in vicinity of Eastern

Vieques, bombing and gunnery target area.

(a) The Danger Zone. From Punta Conejo on the

south coast of Vieques at latitude 18°06'30", longitude

65°22'33"; thence to latitude 18°03'00", longitude

65°21'00"; thence to latitude 18°03'00", longitude

65°15'30"; thence to latitude 18°11"30", longitude

65°14'30"; thence to latitude 18°12'00", longitude

65°20'00"; and thence to Cabellos Colorados on the

north coast of Vieques at latitude 18°09'49", longitude

65°23'27".

(b) Regulations. (1) It will be open to navigation at all

times except when firing is being conducted. At such

times no surface vessels, except those patrolling the area,

shall enter or remain within the danger area. Prior to

conducting each firing or dropping or ordnance the

danger area will be patrolled to insure that no watercraft

are within the danger area. Any watercraft in the vicinity

will be warned that practice firing is about to take place

and advised to vacate the area.

(2) The regulations will be enforced by the Com-

mander, Caribbean Sea Frontier, San Juan, P.R., and

such agencies as he may designate.

33 C.F.R. § 204.234 (1979).

At trial, Puerto Rico contended that the Navy's use of this

arca for bombing and gunnery practice unreasonably in-

terfered with the island's food fishing industry, in violation of

33 U.S.C. § 3. In rejecting this claim, the district court ruled

that:

The Plaintiffs herein have presented absolutely no

evidence that Defendant Navy has impermissibly or

unilaterally expanded the areas authorized as a danger

zone (33 C.F.R § 204.234) ... The navigable waters con-

tizuous to Defendant Navy's weapons training range at

32a

Vieques are navigable waters of the United States, and

they have been restricted in exactly the manner intended

by law and regulations,

478 F. Supp. at 701,

On appeal Puerto Rico argues that the district court failed

to consider the needs of Vieques’ fishing industry, in disregard

of the statutory requirement that the danger zone regulation

not unreasonably interfere with or restrict the food fishing in-

dustry. We conclude, however, that the only question prop-

erly before the court was whether the Navy had complied with

the danger zone regulation.

As is apparent from the statutory language, the provision

against unreasonable interference with the food fishing in-

dustry applies to the Secretary of the Army's exercise of his

authority to prescribe and regulate. Assuming that the Navy

has acted in accordance with 33 C.F.R. § 204.234, to decide

whether the Navy has unreasonably interfered with fishing

would necessarily draw into question the validity of the

regulation under the enabling statute, 33 U.S.C. § 3. Yet Puer-

to Rico has not named the Secretary of the Army as a defen-

dant in this case. Thus, if we, or the district court, were to

define a standard of reasonableness for 33 U.S.C. § 3 and ap-

ply it to the facts of this case, we would do so in the absence of

the agency responsible for the administrative determination

that 33 C.F.R. § 204.234 comports with the statutory com-

mand. None of the record relevant to the formulation of this

regulation is part of the record in this case.2’ Nor, of course,

has the Secretary had the opportunity, at trial or on appeal, to

defend the propriety of the regulation.

Had the district court ruled on whether 33 C.F.R. § 204.234

unreasonably interferes with the food fishing industry, we

* The current regulation, 36 C.F.R. § 204.234, was promulgated

only after the Corps of Engineers had provided public notice of the

proposed regulation and an opportunity for comments. 39 Fed. Reg.

13889, 27133 (1974).

33a

would vacate that ruling for the reasons stated above.”* We

conclude, however, that the court's decision is only a deter-

inination that the Navy hos complied with 33 C.F.R. §

204.234. We need offer no opinion on this because Puerto Rico

has not challenged it on appeal.

Noise Pollution

In its complaint, Puerto Rico contended that the Navy's

training activities generate “shock waves and excessive noise

that unreasonably interfere with the health and welfare of

residents of Vieques ....” It sought to enjoin these activities as

a violation of the Commonwealth's criminal nuisance

statute,” P.R. Laws Ann. tit. 33, § 1365,°° alleged to be ap-

plicable to the Navy's operations through Section 4 of the

* When necessary to protect the interests of an absent party, a

court of appeals should consider sua sponte whether a claim should

be dismissed for failure to join an indispensable party. See Provident

Bank & Trust Co. v. Patterson, 390 U.S, 102, 111 (1968); NLRB v.

Doug Neal Management Co., 620 F.2d 1133, 1139 (6th Cir. 1980);

Kimball v. Florida, 537 F.2d 1305, 1307 (5th Cir. 1976).

*” Although Puerto Rico does not seek to impose criminal penalties

on the Navy, it chose to base its case on its criminal nuisance law

rather than its very similar civil nuisance statute, P.R. Laws Ann

Tit. 32, § 2761, perhaps because the latter does not expressly refer to

public nuisances. See note 40 infra. The choice of statute relied upon

does not affect our analysis or conclusion. —

” P.R. Laws Ann. tit. 33, § 1365 provides in pertinent part:

Anything which is injurious to health, or is indecent or of-

fensive to the senses, or is an obstruction to the free use of prop-

erty, so as to interfere with the comfortable «ijoyment of life

or property by an entire community or neighborhood, or by

any considerable number of persons, or unlawfully obstructs

the free passage or use, in the customary manner, of any

navigable lake, river, bay, stream, canal or basin, or any

public park, square, street or highway is a public nuisance[.]

34a

Noise Control Act, 42 U.S.C. § 4903(b)(the Act)."! The district

court denied the request for an injunction, ruling that the Act

does not apply because the nuisance statute does not establish

nvise control “requirements” as that term is used in Section 4.

478 F. Supp. at 675. Despite this ruling, the court proceeded

to consider the evidence and determined that the noise at-

tributable to the Navy's activities does not interfere with the

quality of life on Vieques. Id. at 680. We conclude that the

district court was without jurisdiction to entertain Puerto

Rico's claim.

A careful reading of the Noise Control Act's citizen suit pro-

vision, section 12, 42 U.S.C. § 4911, discloses that Congress ex-

pressly created a private cause of action only with respect to

the enforcement of federal noise control requirements. Subsec-

lion (a) permits “any person,” including a state, to bring suit

in federal district court against any federal agency that has

violated a “noise control requirement.” That term is defined in

subsection (f) by reference to other sections of the Act, all of

which concern the granting of regulatory powers to the Ad-

ministrator of the EPA or the Secretary of the Treasury, and

the enforcement of regulations promulgated thereunder. Sec-

tion 12 has no provision for citizens’ suits to enforce a federal

agency's duty to comply with state and local requirements

regarding the control and abatement of environmental noise.

Thus, Puerto Rico’s claim, premised on a violation of state

law, cannot be inaintained under § 12 of the Act, 42 U.S.C. §

11.

42 U.S.C. § 4903(b) provides in pertinent part:

(b) Each departinent, agency, or instrumentality of the ex-

ecutive, legislative, and judicial branches of the Federal

Government —

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

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

result, in the emission of noise,

shall comply with Federal, State, interstate and local re-

quirements respecting control and abatement of environmen-

tal noise to the same extent that any person is subject to such

requirements.

35a

In the absence of an alternative basis in federal law, the

unavailability of § 12 warrants dismissal of this state law claim

for lack of jurisdiction because it is otherwise barred by

sovereign immunity. See United States v. Testan, 424 U.S, 392

(1976); Larson v. Domestic & Foreign Commerce Corp., 337

U.S. 682 (1949). We recognize, however, that § 4, to the ex-

tent it subjects every federal agency to state noise control re-

quirements, arguably permits suit against an officer of a

federal agency for a violation of those requirements.” If § 4 re-

quires the Navy to comply with Puerto Rico’s criminal

nuisance statute, this responsibility may be enforce:ble by an

implied cause of action under § 4.%° We reach the latter ques-

® ‘The doctrine of sovereign immunity bars suit against a federal

agency co nomine in the absence of an express congressional waiver.

See United States v. Testan, 424 U.S. 392 (1976); United States v.

Kiny, 395 U.S. 1 (1969); Commonwealth of Massachusetts v. United

States Veterans Administration, 541 F.2d 119 (ist Cir. 1976). In

contrast, a federal officer is subject to suit despite the lack of express

legislative waiver if that officer has acted outside the legal limita-

tions on his authority. Larson v. Domestic G Foreign Commerce

Corp., 337 U.S. 682, 689 (1949). The federal mandate provided in

42 U.S.C. § 4903(b) constitutes such a limitation. See Westinghouse

Elec. Corp. v. Schlesinger, 542 F.2d 1190, 1214 (4th Cir. 1976),

cert. denied, 431 U.S. 924 (1977).

% A determination of whether Puerto Rico's nuisance statute con-

stitutes a requirement under § 4 will also determine whether the

district court had subject matter jurisdiction over this claim. This

question of jurisdiction should be resolved prior to a decision of

whether Puerto Rico has stated a claim upon which relief can be

granted. With respect to the latter issue, we observe only that im-

plication of a cause of action is plausible. Although no court has

previously decided whether § 12 exclusively defines the available

causes of action under the Act, several courts of appeals have con-

sidered, and disagreed, about the implication of a cause of action in

an analogous statutory context. Both the Clean Air Act and the

Federal Water Pollution Control Act (FWPCA) contain citizen suit

provisions quite similar to § 12. See 42 U.S.C. § 7604; 33 U.S.C. §

1365. The Courts of Appeals for the Second, Third and District of

Columbia Circuits have held that 33 U.S.C. § 1365 does not

preclude, inter alia, implication of a cause of action under different

substantive provisions of the FWPCA. National Sea Clammers Ass'n

36a

tion, however, only if we first determine that Puerto Rico's

nuisance statute establishes “requirements” that would trigger

the application of § 4.

The key issue, therefore, is the definition of “requirements.”

As used in § 4 of the Noise Control Act, the term stands unex-

plicated by Congress or the courts. But the model from which

§ 4 was drawn,” section 118 of the Clean Air Act (currently

codified at 42 U.S.C. § 7604), has received intense scrutiny.

Judicial interpretation of the term “requirement” as used in §

118, and Congress’ response to that interpretation, sheds con-

siderable light on the definition of “requirements” as used in §

4,"

Section 118 of the Clean Air Act underwent its most impor-

tant dissection at the hands of the Supreme Court in //ancock

v. Train, 426 U.S. 163 (1976).°° Two steps in the Court's

v. City of New York, 616 F.2d 1222, 1228-31 (3d Cir.), cert.

granted, 49 U.S.L.W. 3281 (Oct. 14, 1980) (No. 79-1760); Natural

Resources Defense Council, Inc. v. Callaway, 524 F.2d 79, 83-84

(2d Cir. 1975); Natural Resources Defense Council, Inc. v. Train,

510 F.2d 692, 698-703 (D.C. Cir. 1974). The Seventh Circuit has re-

jected this conclusion with respect to the Clean Air Act. City of

Highland Park v. Train, 519 F.2d 681, 690-93 (7th Cir. 1975), cert.

denied, 424 U.S. 927 (1976). In a case involving the FWPCA, this

court expressly reserved decision of the question. Commonwealth of

Massachusetts v. United States Veterans Administration, 541 F.2d

119, 122-23 & n.4 (Ist Cir. 1976).

% Although the legislative history of § 4 does not identify § 118 as

the prototype for § 4, there is a close similarity in the language of the

two provisions. And the legislative history does establish expressly

the overall importance of the Clean Air Act as a model for the

drafters of the Noise Control Act. See S. Rep. No, 1160, 92d Cong.,

2d Sess., reprinted in [1972] U.S. Code Cong. & Ad. News 4658,

4661, 4667,

* Section 313 of the Federal Water Pollution Control Act, 33

U.S.C. § 1323, also tracks the languaye of § 118 and has been

similarly construed. See Environmental Protection Agency v.

California cx rel State Water Resources Board, 426 U.S. 200 (1976).

” Congress legislatively reversed the actual holding of Ilancock

with the enactment of the Clean Air Act Amendments of 1977, Pub.

I.. No. 95-95, 91 Stat. 685. See H.R. 6161, 95th Cong., Ist Sess. 12,

37a

analysis are particularly apposite to the question before us.

First, the Court's reading of § 118’s legislative history disclosed

that the various preliminary drafts and the committee reports

used “requirements” interchangeably with “emission re-

quirements” and “emission standards.” Id. at 188-89 & n.2.

Congress apparently understood “requirements” to refer to

standards specifying the permissible emission levels for

various point sources and pollutants.*” Though hardly con-

clusive, the court’s observation presents some evidence of the

legislative use of the term in the pollution control context, and

particularly in the drafting of the prototype for § 4.

The second step in Hancock pertinent to our inquiry rested

on the Court's recognition of the close relationship between §

118 and § 304, the citizen suit provision of the Clean Air Act.

42 U.S.C. § 7604. “§ 118 establishes the duty of federal in-

stallations to comply with state ‘requirements,’ and § 304 pro-

vides the means of enforcing that duty in federal court.” 426 at

196. Section 304 restricts the area subject to enforcement by

reprinted in (1977] U.S. Code Cong. & Ad. News 1089-90. Neither

the amendments nor the committee reports undermine that part of

the Court's reasoning upon which we rely. The companion case to

Hancock, Environmental Protection Agency v. California ex rel

State Water Resources Board, 426 U.S. 200 (1976), suffered like

treatement with the enactment of the Clean Water Act of 1977,

Pub. L. No. 95-217, § 60, 91 Stat. 1597, 1598. See S. Rep. No. 370,

95th Cong., Ist Sess. 67, reprinted in [1977] U.S. Code Cong. & Ad.

News 4392. The apparent purpose of these amendments was to en-

sure the enforceability of the applicable substantive control re-

quirements. We find no evidence that the amendments were intend-

ed to expand the category of applicable substantive requirements.

%” The Senate Committe report that accompanied the final draft

of the Noise Control Act offers some evidence of a similar

understanding with respect to the control of noise. See S. Rep. No.

1160, 92nd cong., 2d Sess., reprinted in [1972] U.S. Cong. & Ad.

News 4655. In particular, the Committee concluded that the federal

noise control requirements that would be enforceable under § 12

should be “technologically-based standards” rather than the more

open ended standard of the “public health and welfare.” Id. at

4659.

38a

suit to emission limitations or standards, standards of perform-

ance, and compliance schedules. The Court concluded that

the scope of the § 304 enforcement power defined the scope of

the § 118 duties because “it seems most unlikely that in pro-

viding that a State might bring suit in district court to enforce

the duties of federal installations under § 118, the Congress

would not make all those duties enforceable ....” Id. at 197.

We recognize a similar relationship between the “re-

quirements” of § 4 and those of § 12 of the Noise Control Act.

The primary objective in our attempt to clarify the term “re-

quirements” is to ascertain Congress’ intent and § 12 contains

the sole legislative definition of that term in the Act. More im-

portantly, that definition occurs in the provision for private

enforcement of the Act. Section 12, unlike § 304 of the Clean

Air Act, does not allow for suit by a state to enforce a state

pollution control requirement. Thus, unlike the scheme of the

Clean Air Act, § 12 does not define specifically which state re-

quirements are incorporated in § 4, But it does permit a state

to bring suit against a federal agency for violation of certain

federal requirements. Considered together, the federal re-

quirements enforceable under § 12 are the best evidence of the

type of noise control requirement that Congress intended to be

enforceable by suit against a federal agency.

Section 12 authorizes suit by a state to enforce “any noise

control requirement,” as defined in subsection (f). 42 U.S.C. §

4911(a). That definition in turn refers to several provisions of

the Act which provide for (a) standards, rules or regulations

controlling the noise emissions of motor carriers, railroads and

aircraft, id. §§ 4916, 4917; 49 U.S.C. § 1431, (b) labelling

regulations, 42 U.S.C. § 4907, and (c) noise emission standards

applicable to specified domestic and imported products, id. §§

4905, 4908. From these various provisions of the Act we can

abstract the type of legal control contemplated by the

statutory term “requirement.” The appointed agency

establishes a standard that sets forth, specifically, the

39a

allowable intensity, duration and character of sounds” from a

certain type of source, and then measures the noise emissions

of such sources against that standard. See 40 C.F.R. Parts

201-205. This type of control relics on relatively precise stan-

dards capable of uniform application to similar sources of

sound. We conclude that when Congress used the term “re-

quirements” in the Noise Control Act, it was in reference to

regulations of this type.”

The final question is whether Puerto Rico's criminal

nuisance statute embodies the kind of “requirements” with

which the Navy must comply pursuant to § 4. The statute

broadly proscribes as a public nuisance:

Anything which is injurious to health, or is indecent or of-

fensive to the senses, or is an obstruction to the free use of

property, so as to interfere with the comfortable enjoy-

ment of life or property by an entire community or

neighborhood, or by any considerable number of

persons| . |

P.R. Laws Anon. tit. 33, § 1365. Although the criminal

nuisance statute has not yet been subjected to judicial scrutiny,

the Supreme Court of Puerto Rico has interpreted the simi-

% Sev 42 U.S.C. § 4902(11) (definition of environmental noise).

™ Puerto Rico relies on a statement in the Senate Committee's

report that the Noise Control Act does not affect the authority of the

states “to reach or maintain levels of environmental noise ...

through [inter alia) nuisance laws.” S. Rep. 1160, 92d Cong., 2d

Sess., reprinted in U.S. Code Cong. & Ad News 4660. But this state-

ment is nut part of the Committee’s commentary on §§ 4 or 12.

Rather, it addresses to what extent § 6 (42 U.S.C. § 4905), and

regulations promulgated thereunder, would preempt state law as

applied to products in the hands of the user. Id. Section 6 authorizes

the adoption of noise emission standards to be applied to products at

the manufacturing stage. Establishing that state law is not preemp-

ted in this particular context does not answer the distinct question of

to what extent Congress intended to waive the federal government's

sovereign immunity. Neither § 6 nor the Committee's commentary

on § 6 addresses this question.

40a

larly worded civil nuisance statute.”’ It perceived as the essen-

tial purpose of that statute the maintenance of a balance be-

tween the defendant's right to the free use of his property and

the rights of others to the comfortable enjoyment of life or

property: To strike that balance requires a case by case deter-

mination of the reasonableness of a defendant's activity. See

Casiano Sales v. Lozada Torres, 91 P.R.R. 473, 477-78, 482

(1964); Areclay v. Sanchez, 77 P.R.R. 782, 790 (1955). This

form of decisionmaking, peculiarly sensitive to the facts of a

single case, permits no role for the type of specific, uniform

standard characteristic of “requirements,” as described above.

Thus, we conclude that Puerto Rico's criminal nuisance

statute falls outside § 4°s incorporation of “State ... re-

quirements respecting control and abatement of environmen-

tal noise ...." 42 U.S.C. § 4903(b).

Our conclusion renders unnecessary a decision as to whether

a private cause of action should be implied to enforce § 4's

mandate. We see no other tenable ground upon which the

district court had jurisdiction over the state nuisance claim.

Therefore, we vacate the district court's decision and remand

for dismissal for lack of jurisdiction.

Endangered or Threatened Species

Of the various animal species living in and around Vieques,

four have been designated by the United States Fish and

Wildlife Service as “endangered’*' (of which three are in

issue) and two others have been determined to be threat-

“ PLR. Laws Ann. tit. 32, § 2761 states: “Anything which is in-

jurious to health, or indecent, or offensive to the senses, or an

obstruction to the free use of property, so as to interfere with the

comfortable enjoyment of life or property, is a nuisance ....”

“The term ‘endangered species’ means any species which is in

* danger of extinction throughout all or a significant portion of its

range.” 16 U.S.C. § 1532(6). The endangered species on Vieques in-

clude the brown pelican, the manatee, the leatherback turtle and

the hawksbill turtle. 50 C.F.R. § 17.11. The effects of the Navy's ac-

tivities on the manatee are not at issue in this appeal.

4la

ened,” in accordance with the criteria of § 4 of the En-

dangered Species Act (the Act), as amended, 16 U.S.C. § 1533.

Sec 50 C.F.R § 17.11. The Commonwealth alleged that the

Navy's training operations directly imperil these species and

cause significant adverse changes in their habitats, contrary to

the requirements of § 7 of the Act, id. § 1536, and the prohibi-

tion of § 9, id. § 1538. The district court found that the Navy’s

activities do not adversely affect the five species and in fact in-

advertently create a refuge for these species, protecting them

from local hunters. On appeal, the Commonwealth challenges

the court's findings and urges that the district court

misconstrued the requirements of § 7(a). Because we conclude

that the Navy has not fulfilled its obligations under § 7(a)(2),

we vacate the district court’s decision and remand for further

consideration.

Section 4 of the Endangered Species Act directs the

Secretary of the Interior and the Secretary of Commerce to

determine which, if any, species are endangered or threat-

ened, and to identify the critical habitat of the species so

designated. 16 U.S.C. § 1533. As part of the Act’s comprehen-

sive design to protect such designated species, § 7(a)(2) pro-

vides:

Each Federal agency shall, in consultation with and with

the assistance of the Secretary, insure that any action

authorized, funded, or carried out by such agency .. . is

not likely to jeopardize the continued existence of any en-

dangered species or threatened species or result in the

destruction or adverse modification of [the critical]

habitat of such species ... .

‘2 “The term ‘threatened species’ means any species which is likely

to become an endangered species within the foreseeable future

throughout all or a significant portion of its range.” 16 U.S.C. §

1532(20). The threatened species on Vieques include the loggerhead

turtle and the green turtle. 50 C.F.R § 17.11.

42a

Id. § 1536(a)(2). Regulations promulgated jointly by the

United States Fish and Wildlife Service and the National

Marine Fisheries Service define the duty of a federal agency

under § 7 to consult with those Services. 50 C.F.R § 402,04.

"very agency is required to review its programs and all other

activities to determine whether any of its actions possibly af-

fect endangered or threatened species or their habitats. Id. §

40)2.04(a)(1). Once an agency has discovered that some action

for which it is responsible crosses the low threshold of possible

effect, it must consult formally with the Fish and Wildlife Ser-

vice or the Marine Fisheries Service. Id. § 402.04(a)(3). See id.

§ 402.01. Formal consultation requires that the agency request

a “biological opinion” from the appropriate Service, and sup-

plement the request with the available pertinent information.

Id. In response, the Service issues a written statement that sets

forth (1) its opinion on whether the agency is in violation of §

7(u)(2), (2) the information upon which it based its opinion,

and (3) “recommendations for modifications in the identified

activity program which would enhance the conservation and

protection of a listed species or its critical habitat.” id. §

402.04(e)(4). See 16 U.S.C. § 1536(b).“

” “Secretary,” as used in § 7 and the other provisions of the Act,

refers to the Secretary of Interior or the Secretary of Commerce,

depending on the particular species at issue, Although these two of-

ficials formally share the responsibilities created by the Act, their

duties are actually performed by two departmental agencies — the

United States Fish and Wildlife Service (Interior) and the National

Marine Fisheries Service (Commerce). For the remainder of this

opinion, we refer to the Service rather than the Secretary.

* Although the regulations, promulgated on January 4, 1978,

made optional the offering of recommendations, Congress has since

mandated inclusion of such recommendations in a biological opin-

ion. Pub, L. No. 95-632, 92 Stat. 3751 (1978). See H. Conf. Rep.

1804, 95th Cong., 2d Sess. 18, reprinted in [1978] U.S, Code Cong.

& Ad. News 9486, H.R. Rep. No. 1625, 95th Cony., 2d Sess. 11-12,

reprinted in [1978] U.S. Code Cong. & Ad, News 9461-2.

43a

As of the date that the district court entered judgment, the

Navy had failed to obtain a biological opinion with respect to

the impact of its Vieques operations on the five listed species.

By ignoring the statutory mandate, the Navy has sidestepped

the administrative process that Congress expected would

resolve many of the conflicts between agency action and the

requirements of § 7.*° If the Navy had sought consultation

within a reasonable period following the adoption of the Act,

the burden of litigating Puerto Rico's claim might have been

avoided. The Navy's nonfeasance also has denied the district

court potentially valuable evidence. In considering the 1979

amendments to the Act, Congress found, with approval, that

courts have accorded substantial weight to a sound biological

opinion in determining an agency's compliance with 7(a)(2).

Finally, biological opinions not only address possible violations

of 7(a)(2), but more generally recommend conservation

measures designed to mitigate or remove all adverse effects on

an endangered or threatened species. These recommendations

pertain to the statutory responsibility of agencies to carry out

“programs for the conservation of endangered species or

threatened species ...." 16 U.S.C. § 1536(a)(1).4”7 Although

the district court apparently found that the refugee effect

* Sec H.R. Rep. No. 167, 96th Cong., Ist Sess. 5, reprinted in

[1979] U.S. Code Cong. & Ad. News 4765; H. Conf. Rep. No. 1804,

95th Cong., 2d Sess. 18, reprinted in [1978] U.S. Code Cong. & Ad.

News 9486; H.R. Rep. No. 1625, 95th Cong., 2d Sess. 11, reprinted

in [1978] U.S. Code Cong. & Ad. News 9461.

** H. Conf. Rep. No. , 96th Cong., Ist Sess 12, reprinted in

[1979] U.S. Code Cong. & Ad. News 4780. Compare National

Wildlife Federation v. Coleman, 529 F.2d 359, 372-75 (Sth Cir.

cert. denied sub nom. Boteler v. National Wildlife Fed: vation, 429

U.S. 979 (1976) with Sierra Club v. Frochlke, 534 F.2d 1289,

1301-05 (8th Cir. 1976). Cf. North Slope Borough v. Andrus, 486 F.

Supp. 332, 351-54 (D.D.C.), vacated on other grounds sub nom.

National Wildlife Federation v. Andrus, No, 80-1148, et al. (D.C.

Cir. Sept., 1980) (evaluation of a biological opinion in light of the

statutory purposes).

“ The statute defines “conservation” to mean “the use of all

methods and procedures which are necessary to bring any

44a

created by the Navy's activities satisfied this obligation, sce

478 F. Supp. at 689-90, a biological opinion could alter this

conclusion,

Since entry of judgment, the Navy has received a biological

opinion from the United States Fish and Wildlife Service. But

that opinion is not part of the record and we therefore

disregard it in our decision of this case, See Construction Ag-

yregates Corp. v. Rivera de Vicenty, 573 F.2d 86, 95 2.7 (1st

Cir, 1978); Rosen v. Lawson-Hemphill, Ine., 549 F.2d 205,

206 (ist Cir, 1976). To do otherwise would be contrary to

Federal Rule of Appellate Procedure 10(a) and would preclude

the district court from considering evidence that both this

court, and Congress, deem essential to a complete decision of

the issue. Moreover, the Commonwealth should have the op-

portunity to challenge the adequacy of the biological opinion,

both in terms of its factual basis and its recommendations.

The Commonwealth also challenges the Navy's training ac-

tivities under § 9 of the Endangered Species Act, 16 U.S.C. §

1538. Section 9 prohibits any person, including an officer or

department of the federal government, from taking an en-

dangered species, Id. § 1538(a)(1)(B).“* Taking is defined by

the statute as “to harass, harm, pursue, hunt, shoot, wound,

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

such conduct.” /d, 1532(19). As interpreted by the Fish and

Wildlife Service, harassment includes a significant disruption

endangered species or threatened species to the point at which the

measures provided pursuant to this chapter are no longer

necessary.” 16 U.S.C, § 1532(3),

* Section 9 provides ia pertinent part:

(a)(1) Except as provided in sections 1535(g)(2) and 1539 of

this title, with respect to any endangered species of fish or

wildlife listed pursuant to section 1533 of this title it is

unlawful for any person subject to the jurisdiction of the

United States to —

(B) take any such species within the United States or

the territorial sea of the United States{.]

16 U.S.C. § 1538(a)(1)(B).

45a

of normal behavioral patterns likely to cause injury, and harm

includes significant disruption of essential behavioral patterns

or environmental degradation. 50 C.F.R § 17.3. So far as can

be discovered from the briefs and the record, we understand

Puerto Rico's claim under § 9 to rest on the proscription of

harassment and harm as those terms are defined by the Fish

and Wildlife Service. Because of the close similarity between

this particular prohibition and the requirements of § 7(a), we

conclude that the § 9 claim should be remanded along with the

§ 7 claim. The district court should have the benefit of the

biological opinion in determining whether the Navy's opera-

tions respect the proscription of § 9,

We vacate the district court's decision with respect to the

Endangered Species Act and remand for further consideration

in light of this opinion.

Preservation of Historic and Prehistoric Sites

Puerto Rico alleged in its complaint that the Navy's com-

plete failure to identify and protect all the sites on Navy prop-

erty that are of historical or archeological significance violated

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

470f), Ececutive Order 11593 and regulations issued by the

Advisory Council on Historic Preservation.” After Puerto Rico

had filed its complaint, the Navy undertook a combined

sampling and predictive survey of the island which disclosed

the existence of a number of sites on Navy property at least

some of which may be eligible for inclusion in the National

this survey satisfied the Navy's obligation to locate sites. 478 F.

Supp. at 693, The court also ruled, however, that the Navy

had violated the Executive Order by failing either to nominate

to the Secretary of the Interior those newly dis-

* The Advisory Council on Historic Preservation is an indepen-

dent agency, 16 U.S.C, § 470i, authorized to “promulgate such rules

and regulations as it deems necessary to govern the implementation

of section 470f ..."' Id, § 470s.

46a

covered sites that may be eligible for listing in the Register or

to seck the Secretary's opinion on their eligibility, /d, at 694,

The court ordered the Navy to correct this omission and to

safeguard the potentially eligible sites, Jd. at 708,

On appeal, neither party challenges the district court's rul-

ing with respect to determining the eligibility of known sites,

But the Commonwealth does question the court's decision on

the adequacy of the Navy's survey. According to the Com-

monwealth, testimony by the Navy's own experts establishes

that the survey did not locate all the sites on the island, as is re-

quired by the Act, the Executive Order, and the Advisory

Council's regulations, We agree,

Section 106 of the National Historic Preservation Act, as

amended, imposes a basic responsibility on “the head of any

federal agency” to “take into account the effect” of a proposed

federal undertaking “on any district, site, building, structure

or object that is included in or eligible for inclusion in the Na-

tional Register.” 16 U.S.C. § 470f, With the promulgation of

Executive Order 11593, the President substantially expanded

the mandate of § 106, The order requires that every federal

agency

(a) no later than July 1, 1973, with the advice of the

Secretary of the Interior, and in cooperation with the

liaison olficer for historic preservation for the State or ter-

ritory involved, locate, inventory and nominate to the

Secretary of the Interior all sites, buildings, districts and

objects under their jurisdiction or control that appear to

qualify for listing on the National Register of Historic

Places,

(b) exercise caution during the interim period until in-

ventories and evaluations required by subsection (a) are

completed to assure that any federally owned property

that might qualify for nomination is not inadvertently

transferred, sold, demolished or substantially altered,

36 Fed, Reg, 8921 (May 13, 1971), reprinted in 16 U.S.C, §

470 at 28. The express obligation imposed by the Executive

47a

Order to locate “all” possibly eligible sites has been further

defined within the past two years by the Advisory Council on

Historic Preservation. See 36 C.F.R. § 800.4. The Council's

regulations reaffirm “the responsibility of each Federal agency

to identify or cause to be identified any National Register or

eligible property ... that may be affected by the

undertaking.” Id. § 800.4(a). Moreover, the regulations con-

template an active consultive role for the “State Historic

Preservation Officer” from the inception of a federal agency's

efforts to fulfill its historic preservation responsibilities. See id.

§ 800.4. Thus, the first step in satisfying an agency's obliga-

tions under the Executive Order and the regulations is to

locate, in consultation with the state’s officer for historic

preservation, “all” and “any” sites that may be eligible for in-

clusion in the National Register.” The sole question is whether

the Navy has satisfactorily completed that first step.

The Navy's survey of Vieques, which in design encompassed

the entire island, relied on a con.bination of three methods.

The island was divided into 665 squares, each of which

measured 500 by 500 meters. Ten percent of the squares were

selected randomly as samples. Another group of samples, ap-

proximately ten percent of the squares, were selected by ran-

” Although by its terms § 106 applies only to proposed undertak-

ings, the Navy does not challenge the validity of Executive Order

11593 or the Council's regulations as applied to current undertak-

ings. There is good reason for their acquiescence. Executive Order

11593 expressly derives its statutory authority not only from the Na-

tional Historic Preservation Act but also, inter alia, the National En-

vironmental Policy Act, 42 U.S.C. §§ 4331 et. seq. Although NEPA

refers only to proposed major federal actions, it has been construed

to apply to ongoing federal activities. Jones v. Lynn, 477 F.2d 885,

889 (Ist Cir. 1973); Environmental Defense Fund v. TVA, 468 F.2d

1164, 1176-81 (6th Cir. 1972); see TVA v. Hill, 437 U.S. 153, 188

n.34 (1978). More generally, the reasoning underlying this construc-

tion of NEPA supports a similar conclusion with respect to the scope

of § 106 of the National Historic Preservation Act. See Jones v.

Lynn, 477 F.2d at 889; Environmental Defense Fund v. TVA, 468

F.2d at 1176-81.

48a

domly choosing one square and then selecting every tenth

square after the first one chosen. The third method began with

a search by the Navy's archeologist of the available literature

and interviews with local residents having special knowledge

of the island’s history. On the basis of this inquiry, and his

prior experience, he directed the survey team to the squares

that he predicted were most likely to contain archeological re-

mains. The squares that were selected by these three methods

were then walked by members of the survey team at intervals

of 100 meters. Each square was traversed in a criss-cross

fashion, the surveyor walking several times along the line of

each 100 meter point from east to west and then from north to

south,

The Navy defends its survey as a responsible and reasonable

good faith effort to locate the archaeological sites that still exist

on Vieques. According to the Navy, when it had completed

the survey it had satisfied the duty imposed by the Executive

order and the regulations to locate all sites that may be eligible

for inclusion in the National Register. But the testimony of the

archeologist responsible for the design of the Navy's survey

belies this contention. He testified that there remain to be

located a substantial number of sites of possible archeological

value. Thus, he characterized the survey as preliminary and

acknowledged the need for additional work. Given the

likelihood of further discoveries, the Navy's position flies in the

face of the requirement that it locate “all sites that appear to

qualify for listing on the National Register of Historic Places.”

Executive Order No. 11593, 36 F.R. 8921, reprinted in 16

U.S.C. § 470 at 28. (emphasis added). We assume without

deciding that the survey methods adequately identified the

likely locations of eligible sites. We cannot condone, however,

the Navy's failure to gather in all the fruits of its survey.

Far from suggesting that the Navy must perform the im-

possible, we conclude only that it must follow up on the leads

49a

produced by the survey it commissioned.*' Our conclusion

does not require the Navy to undertake a 100% survey of Vie-

ques. The current survey not only disclosed the probable ex-

istence of other sites but also established the archeological

sterility of certain areas of the island; further efforts in those

areas would be fruitless. It is not possible to ascertain from the

present secord which areas do require more investigation.

Once the survey results are clarified, the district court, with

the aid of the parties, should be able to define with fair preci-

sion what additional action is required of the Navy. We

assume that any proposal made by the Navy to complete its

obligation to locate all sites will be formulated in consultation

with the Commonwealth officer responsible for historic

preservation, as mandated by Executive Order 11593 and 36

C.F.R. § 800.4. Finally, although our decision pertains solely

to the Navy's survey efforts, the district court is not foreclosed

from considering on remand whether the Navy has taken suffi-

cient measures to safeguard any sites which have been or are

likely to be located and may be eligible for inclusion in the Na-

tional Register."*

*' We agree with the Commonwealth that the Navy would be

well advised to emulate the cooperation shown by the Pacific Fleet

in the survey of the Hawaiian island of Kahoolawe. See Aluli v.

Brown, 437 F. Supp. 602 (D. Hawaii 1977), rev'd in part on other

grounds, 602 F.2d 876 (9th Cir. 1979). This does not mean,

however, that an exact replication of the Kahoolawe survey, which

will ultimately cover 100% of the surface area of the island, is re-

quired of the Navy with respect to Vieques. Unlike Kahoolawe, it

appears very unlikely that the entire island of Vieques would be

eligible as a single district for inclusion in the National Register. See

Aluli v. Brown, 437 F. Supp. at 610. What impresses us about the

Kahoolawe survey is the extensive cooperation between the Navy

and state officials and the good faith effort to locate all potentially

eligible sites.

® The Navy urges that the pending Memorandum of Agreement

between it and the Advisory Council obviates any further judicial

scrutiny of its efforts to comply with the Executive Order and the

regulations. But such agreements relate to the mitigation of adverse

effects on sites that already have been located. See 36 C.F.R. § 800.6

(b), (c). The pending agreement would be complete only after the

50a

We vacate the district court's decision on the adequacy of

the Navy's efforts to locate all sites of historical or ar-

cheological value, and remand for further consideration in

light of this opinion,

The Remedy

We turn finally to a review of the district court's remedial

order with respect to three rulings. The court held as follows:

(1) That Defendant Navy is in violation of the Federal

Water Pollution Control Act, supra, by reason of its lack

of a NPDES permit to cover the occasional release or fir-

ing of ordnance into the waters of Vieques,

(2) That Defendant Navy is in violation of Executive

Order 11593, supra, by reason of its failure to nominate

to the Secretary of the Interior various sites in Vieques

that may be eligible for listing in the National Register of

Historic Places, and/or by its failure to seek the opinion of

the Secretary respecting said eligibility, and

(3) That Defendant Navy is in violation of the Na-

tional Environmental Policy Act, supra, by its failure to

file an environmental impact statement in connection

with its activities in and around Vieques.

478 F. Supp at 705. The court ordered the Navy to take the

necessary steps to achieve compliance, but refused to enjoin

the Navy from continuing its training operations. Jd, at 708.

The Commonwealth challenges the court's denial of its request

for a prohibitory injunction as mistakenly based on a balanc-

ing of equities. According to the Commonwealth, having

found the Navy in violation of the NEPA, the FWPCA, and

the Executive Order, the court had no choice but to halt the

Navy's operations until the violations were cured. We consider

this challenge as directed to each of the three rulings.

Navy has fulfilled its obligation to locate all eligible sites. If an

agreement has been executed, we expect that the district court

would consider it in evaluating the adequacy of the Navy's efforts to

protect the eligible sites.

Sla

1. The NPDES Permit Requirement

With respect to the violation of the Federal Water Pollution

Control Act, we conclude that the district court erred in

undertaking a traditional balancing of the parties’ competing

interests. In TVA v. Hill, the Supreme Court refused “to strike

a balance of equities” where “Congress, exercising its

delegated powers, has decided the order of priorities in a cer-

tain area... .” 437 U.S. 153, 194 (1978); see also United States

v. City and County of San Francisco, 310 U.S. 16, 30-31

(1940). Like the statutory mandate at issue in Hill, the NPDES

permit requirement of the Federal Water Pollution Control

Act embodies a congressional ordering of priorities. Congress

has prohibited “the discharge of any pollutant,” 33 U.S.C. §

1311(a), which includes the Navy's dropping of ordnance into

the coastal waters, unless a NPDES permit has been secured

pursuant to 33 U.S.C. § 1342. Whether or not the Navy's ac-

tivities in fact harm the coastal waters, it has an absolute

statutory obligation to stop any discharges of pollutants until

the permit procedure has been followed and the Administrator

of the Environmental Protection Agency, upon review of the

evidence, has granted a permit. Thus, regardless of the district

court's finding that th = Navy's dropping of ordnance caused no

significant harm to the environment, it erred in failing to con-

sider the judiciary’s “responsibility to protect the integrity of

the ... process mandated by Congress ....” Jones v. Lynn,

477 F.2d 885, 892 (Ist Cir. 1973); see Realty Income Trust v.

Eckerd, 564 F.2d 447, 456-57 (D.C. Cir. 1977).® Although on

this record the district court did not clearly err in its finding,

the permit process “might reveal substantial environmental

consequences,” City of New York v. United States, 337 F.

Supp. 150, 160 (E.D.N.Y. 1972), quoted in Realty Income

_ ™ Although Jones and Eckerd involved the procedural re-

quirements of the National Environmental Policy Act, we think this

responsibility holds as true with respect to the NPDES permit pro-

cess. See Save Our Sound Fisheries Ass'n v. Callaway, 387 F. Supp.

292, 299-300 (D.R.1. 1974).

52a

Trust v. Eckerd, 564 F.2d at 456, that would lead the Ad-

ministrator to deny the application or grant only a limited per-

mit. Unlike the situation presented in Essex County Preser-

vation Assn v. Campbell, 536 F.2d 956, 960-61 (Ist Cir.

1976), where the statutory violation was deemed “technical,”

here the Navy has utterly disregarded the statutory mandate.”

Thus, we vacate the district court's order on this question and

remand with instructions to order the Navy to take all steps

necessary to insure that no ordnance is discharged into the

coastal waters of Vieques until such time as it obtains a

NPDES permit.” If this order significantly interferes with the

Navy's preparedness, it is free to request the President to ex-

empt it from the NPDES requirements in the interest of na-

tional security. See 33 U.S.C. § 1323(a).

2. Executive Order 11593

The Commonwealth offers no reason for us to alter the

district court's order insofar as it requires the Navy to protect

all sites that may be eligible for inclusion in the National

that the Navy's operations do not presently threaten the

known sites, which is not clearly in error, it was not an abuse

of the court's discretion to impose a limited order rather than a

wholesale proscription of the Navy's operations. Although, as

already discussed, we have decided that the Navy has yet to

satisfy its duty under Executive Order 11593, nothing in the

present record suggests that the training activities as a whole

endanger the additional sites likely to be located. It is open to

™ Unlike the environmental impact statement requirement of the

NEPA, 33 U.S.C. § 1311(a) is not satisfied by the filing of any ap-

plication: only the granting of a NPDES permit releases a party from

that provision’s prohibition. Thus, our conclusion is not altered by

the fact that the Navy has now applied for a permit.

* Insofar as most, if not all, of the Navy's targets are land based,

we doubt that this order will significantly impair the Navy's military

preparedness.

53a

the district court on remand to modify its order in light of fur-

ther discoveries or evidence that the Navy has failed to

safeguard the potentially eligible sites.

3. The Environmental Impact Statement

Since entry of the district court's judgment, the Navy has

prepared a final environmental impact statement (EIS), as re-

quired by the court's order and 42 U.S.C. § 4332(2)(C). As a

result, we conclude that the issue of whether the training

operations should be halted for failure to prepare and file and

EIS is moot. Although neither party raised this question, this

court has a responsibility to consider sua sponte whether an

issue on appeal has been rendered moot by subsequent events.

See North Carolina v. Rice, 404 U.S. 244, 245 (1971). At oral

argument, counsel for the Navy informed us that a final EIS

had been prepared and we assume that it has been filed in ac-

cordance with 42 U.S.C. § 4332(2)(C). See DeFunis v.

Odcgaard, 416 U.S. 312, 317 (1974). Nothing would be gained

by enjoining the Navy's operations for failure to do that which

it has done. See id. at 316. Nor is there a“ ‘reasonable expecta-

tion that the wrong will be repeated.’ * United States v. W.T.

Grant Co. 345 U.S. 629, 632 (1953), quoted in County of Los

Angeles v,. Davis, 440 U.S. 625, 631 (1979). Because our con-

clusion pertains only to the preparation and filing of an EIS, it

does not foreclose the Commonwealth from challenging the

adequacy of the EIS or the Navy's response to the EIS findings.

See Crowell v. Mader, 444 U.S. 505, 506 (1979). We therefore

vacate the order of the district court requiring the Navy to

prepare and file an environmental impact statement with in-

structions to dismiss the claim as moot.

Summary

We affirm the district court's findings and rulings, as

modified by our opinion, except as follows:

(a) the decision with respect to § 15 of the Rivers and

Harbors Act of 1899, 33 U.S.C. § 409, is vacated and

54a

remanded for dismissal of the claim for lack of jurisdic-

tion:

(b) the decision with respect to § 4 of the Noise Control

Act, 42 U.S.C. § 4903(a), and Puerto Rico's criminal

nuisance statute, P.R. Laws Ann. tit. 33, § 1365, is

vacated and remanded for dismissal of the claim for lack

of jurisdiction;

) of the Endangered Species Act, 16 U.S.C. §§ 1536(a),

1538, are vacated and remanded for further considera-

tion;

(d) the ruling with respect to Executive Order 11593

and 36 C.F.R. § 800.4 is vacated and remanded for fur-

ther consideration;

quirement is vacated and remanded with instructions for

further proceedings in accordance with this opinion is fil-

ed this day.

(f) the order with respect to the preparation and filing

of an environmental impact statement pursuant to 42

U.S.C. § 4332(2)(C) is vacated and remanded with direc-

tions to dismiss.

Affirmed in part, vacated in part and remanded in part.

55a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 79-1626.

CARLOS ROMERO-BARCELO, Etc., Et AL.,

Plaintiffs, Appellants,

CARLOS ZENON, ET AL.,

Plaintiffs-Intervenors, Appellees,

Vv.

HAROLD Brown, ET AL.,

Defendants, Appellees.

CORRECTED JUDGMENT

Entered Nune Pro Tunc January 26, 1981

This cause came on to be heard on appeal from the

United States District Court for the District of Puerto Rico,

and was argued by counsel.

Upon consideration whereof, It is now here ordered, ad-

judged and decreed as follows: The District Court’s Findings

and Rulings as modified by the opinion of this court filed this

day are affirmed except as follows:

(a) the decision with respect to §15 of the Rivers and

Harbors Act of 1899, 33 U.S.C. §409, is vacated and remand-

ed for dismissal of the claim for lack of jurisdiction;

(b) the decision with respect to §4 of the Noise Control

Act, 42 U.S.C. §4903(a), and Puerto Rico’s criminal nuisance

statute, P.R. Laws Ann. tit. 33 §1365 is vacated and remand-

ed for dismissal: of the claim for lack of jurisdiction;

the Endangered Species Act, 16 U.S.C. §§1536(a), 1538, are

vacated and remanded for further consideration;

56a

(d) the ruling with respect to Executive Order 11593 and

36 C.F.R. §800.4 is vacated and remanded for further

consideration;

(e) the order with respect to the NPDES Permit Require-

ment is vacated and remanded with instructions for further

proceedings in accordance with the opinion filed this day; and

(f) the order with respect to the preparation and filing of

an environmental impact statement pursuant to 42 U.S.C.

§4332(2)(C) is vacated and remanded with directions to

dismiss.

No costs.

By the Court:

Dana H. GALLUP

Clerk.

57a

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO.

Carlos Romero-BARCELO,

Governor of Puerto Rico, et al., Plaintiffs,

Carlos Zenon et al., Plaintiffs-Intervenors,

Harold Brown et al., Defendants.

Luis Mepina et al., Plaintiffs,

Fundacion Arqueologica, Antropologica E Historica De

Puerto Rico, Plaintiff-Intervenor,

Vv.

Harold Brown et al., Defendants.

Civ. Nos. 78-323, 78-377.

September 17, 1979

Miguel Gimenez Munoz, Secretary of Justice, Com-

monwealth of Puerto Rico, San Juan, Puerto Rico; Gerardo

A. Carlo, Special Counsel to the Governor, Commonwealth

of Puerto Rico, La Fortaleza, San Juan, Puerto Rico; Lewis

A. Rivlin, John A. Hodges, Sanda M. Kayden, Peabody,

Rivlin, Lambert & Meyers, Washington, D.C.; Timothy L.

Harker, Washington, D.C.; Jorge L. Cordova, Charles R.

Work, Collister Johnson, Theodore A. Miles, Washington,

D.C. (of counsel), for plaintiffs Carlos Romero-Barcelo,

Governor of Puerto Rie», ef al.

Pedro J. Saade Llorens, Servicio Legales, Santurce, Puer-

to Rico, for plaintiffs-intervenors Zenon, ef al.

Judith Berkan and Pedro J. Varela, Hato Rey, Puerto

Rico, for plaintiffs Medina, ef al.

58a

Wilfredo A. Geigel, Santurce, Puerto Rico, for plaintiff-

intervenor Fundacion Arqueologica, Antropologica e

Historica de Puerto Rico.

Julio Morales Sanchez, U.S. Atty., San Juan, P.R., for

defendants.

DECISION AND ORDER

TorrRvueLa, District Judge.

In substance, these suits concern the military use by the

United States Navy of land which it owns in the Island of

Vieques, a civilian municipality of the Commonwealth of

Puerto Rico. They bring into focus the delicate and complex

constitutional interplay that exists between our three branches

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