Opposition — Romero-Barcelo v. Weinberger

Office -Suprome Court, U.

BILLED

AUGS 1981

aR L. STEVAS,

CLERK

In the Supreme Court of the United Statex—

OCTOBER TERM, 1980

No. 80-2033

CARLOS ROMERO-BARCELO, GOVERNOR OF

PUERTO RICO, ET AL., PETITIONERS

v.

CASPAR M. WEINBERGER,

SECRETARY OF DEFENSE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

LAWRENCE G. WALLACE

Acting Solicitor General

ANTHONY C, LIOTTA

Deputy Assistant Attorney General

Epwarp J. SHAWAKER

ANNE S. ALMY

Attorneys

Department of Justice

Waehington, D.C, 20580

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the Governor of Puerto Rico may

obtain judicial review of his claim that the Navy

has failed to comply with provisions of Military Con-

struction Authorization Acts.

2. Whether the Noise Control Act of 1972 grants

consent to a suit seeking to enjoin the use of federal

government facilities under a state criminal nuisance

statute.

(1)

TABLE OF CONTENTS

Opinions below

UIE ccssicncscascnvecisrsieciisisindvasuinsidbbibuhesendisnngiathianeiamnces

SINE. sctcnsiresansiscaiasinicenuniiestcsnaiediiallsiciaimenbicaaanehabieaamtis

Argument

Conclusion

TABLE OF AUTHORITIES

Cases:

Abbott Laboratories v. Gardner, 387 U.S. 186 ......

Arcelay v. Sanchez Martinez, 77 P.R.R. 782 ........

Atlantic Richfield Co. v. Federal Energy Adminis-

Sf RE ae ee ee

California v. Sierra Club, No. 79-1252 (Apr. 28,

STEED siciichaicstamsiitcindshens Senetiieincahietihnipiienaidaatganictiales te

Casiano Sales v, Lozada Torres, 91 PRR. 473...

Chrysler Corp. v. Brown, 441 U.S, 2811 ..................

Cort ¥. Aah, 4BB UB. 66 ...ccccoccccccccccccescccssccscesccceeceee

EPA V. California ex rel. State Water Resources

Control Board, 426 U.S. 200 .............c-.c-cseeeeeeseeeees

FTC v. Standard Oil Co, of California, No. 79-900

Re ree a Fane EE ae

Feliciano Vv. United States, 297 F. Supp. 1356, aff'd,

EE EE TE sichesisanisetclitialenicinmiidiiteniniaceenatiatiekeniens

Gilligan V. Morgan, 418 U.S. 1 .......:cccccccccceeseeseeeeeees

Hancock V. Train, 426 U.S. 167 ...........c0cccecceeeseeeeeeeee

International Engineering Co. v. Richardson, 512

F.2d 5738, cert. denied, 423 U.S, 1048 ..................

Middlesex County Sewerage Authority v. National

Sea Clammers Association, No. 79-1711 (June

SOUND * ‘issiiisisascontsitshsbcbihiablenenbisitasinianncabldcbssonsenntieitiiiat

National Automatic Laundry & Cleaning Council

v. Shultz, 448 F.2d 689 he

Orloff v. Willoughby, 345 U.S. 88 ..0.0.......ccccecceeeeee

Rostker v. Goldberg, No. 80-251 (June 25, 1981)..

(111)

10

18-14

10

11

11

Statutes: Page

Administrative Procedure Act, 5 U.S.C. 551 et

seq:

3 |) TRIER nero 10

SIRES oe aie 10

SRR ee orerereeeeeen 8,9

5 U.S.C. 701(a) (2) ........ - 11

le ae ae aero 18

83 U.S.C. (& Supp. III) 1365 12

Clean Air Amendments of 1970, Pub. L. No.

91-604, Section 118, 84 Stat. 1689 ...................... 13

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

(Supp. III) 7401 et seq. 6

Ge Tie CI BED FOO ecccccsncdecticicccnetscvcces 12

4B UB. (Bepp. THT) TEIB 2... .cccccccccccessccceccesece 13

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

Ts satiescahicieidtaasinisansiatatabicacicuideinibepteletainiiconnatipsiceabiaintes 6, 7

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

Be Ct watch bina icilevintieceiidedtiimnipicanpoeatceiineatiaalaadmonsieies 6

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

EAN EE RL Sern 6

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

1 OO, siecnetibiicicsecninneiniietintaisdigitiickidealinediediassdinabpeiipanttihs 6

Military Construction Authorization Act of 1971

Pub. L, No. 91-511, 84 Stat. 1204 et seq. .............. 3

Military Construction Authorization Act of 1972,

Pub, L. No. 92-145, 85 Stat. 394 et seq. .............. 3

Military Construction Authorization Act of 1974,

Pub. L. No. 93-166, 87 Stat. 661 et seq. .............. 3,4

Section 204(a), 87 Stat. 668 0.000.000.0000... 3

Section 204(b), 87 Stat. 668 .....0..000..-.. ee 3

National Environmental Policy Act of 1969, 42

U.S.C. (& Supp. III) 4821 et seq. .2.2...2...22ccccceeeee 6,7

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

BI; ssccicenenibvessenciernttcenecniaptinegeabdtinabimbininadatenenitaes 6,7

Noise Control Act of 1972, 42 U.S.C, 4901 et seq... 6,7

SE ly IE actilicsancnctectioginateasutbbbesshlipimbedieedes 12, 18

42 U.S.C. 4903 (b) _ 7

Statutes—Continued Page

Be i TEE: cists osisicaivinensancsusieuninbsiincdetpbiginteaptecnsie 12

a te GED patnitneschiintitindpectsantncksenbanvecrscems 12

Resource Conservation and Recovery Act, 42 U.S.C.

SE 0 NE ciniicteintnnrdiceenitivcnuniibindinaniianeinennntn 6

Rivers and Harbors Appropriation Act of 1899,

Oe ts TU CII waksihtidetesctomnsinecbeimreneceomneccninens 6

Supplemental Appropriations and Rescission Act,

Pub, L. No. 96-304, 94 Stat. 857 et seq. ............ 4

ay IEE, SUIPIEDY » vcsicdbicchibicliceaihidasaeascgiSeecniicadsastaedeioatiedaclpledetas 11

10 U.S.C. 5018 ................ 11

Miscellaneous :

A Legislative History of the Noise Control Act of

1972, 98d Cong., 2d Sess. (Comm, Print 1974).. 13

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

reprinted in 16 U.S.C. 470 note .00.......0...::cccceecee 6, 7,10

Iu the Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-2033

CARLOS ROMERO-BARCELO, GOVERNOR OF

PUERTO RICO, ET AL., PETITIONERS

v.

CASPAR M. WEINBERGER,

SECRETARY OF DEFENSE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-

54a) is reported at 643 F.2d 835. The opinion of the

district court (Pet. App. 57a-178a) is reported at

478 F.Supp. 646.

JURISDICTION

The judgment of the court of appeals was entered

on January 26, 1981 (Pet. App. 55a-56a). A timely

(1)

2

petition for rehearing was denied on February 27,

1981 (Pet. App. 179a). The petition for a writ of

certiorari was filed on May 28, 1981. The jurisdic-

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

STATEMENT

1. This case concerns the Navy’s use of part of

Vieques Island, Puerto Rico, as a range for air-to-

ground, naval gunfire support and amphibious weap-

ons training. The island, located off the southeast

coast of Puerto Rico, is approximately 20 miles long

and has an average width of 4 miles. It consists of

approximately 33,000 acres, of which the United

States owns more than 25,000 acres. (Pet. App. 2a-

3a.) Portions of the eastern end of the island are

used by the Navy for weapons training (Pet. App.

6a-7a).

The weapons training areas on Vieques are part

of a larger complex known as the Atlantic Fleet

Weapons Training Facility, headquartered at Roose-

velt Roads Naval Station in Ceiba, Puerto Rico. This

complex consists of four ranges: (1) the outer range,

a large area of ocean lying to the north and south

of Vieques,’ (2) the underwater range, located off

the western shore of St. Croix, (3) the electronic

warfare range consisting of a series of threat sim-

ulator platforms located on Puerto Rico, Vieques and

other neighboring islands, and (4) the inner range.

(Pet. App. 5a-6a.) Prior to 1975, the inner range

consisted of naval gunfire, bomb and missile targets

on Culebra, an island located nine miles north of

Vieques, as well as on Vieques (ibid.). In 1969, a

suit was filed to modify or enjoin Navy use of

1 At its closest points, the outer range is 35 miles north of

Vieques, and 20 miles to the south.

3

Culebra. Feliciano v. United States, 297 F. Supp.

1356 (D.P.R. 1969), aff’d, 422 F.2d 943 (1st Cir.

1970). As the district court commented in this case:

“The Navy won that legal battle but lost the political

war that ensued, which culminated in the cessation

in 1975 of all weapons training activities in Culebra

Island” (Pet. App. 148a).

The Military Construction Authorization Acts of

1971 and 1972, Pub. L. No. 91-511, 84 Stat. 1204

et seq., and Pub. L. No. 92-145, 85 Stat. 394 et seq.,

contained provisions directing the Secretary of De-

fense to prepare reports concerning the use of, and

alternatives to the Navy facilities on Culebra (Pet.

App. 10a-12a). On submitting these reports to Con-

gress, Secretary Laird recommended that the Navy

retain its training targets on Culebra (id. at 12a).

Nevertheless, in 1973, the new Secretary of De-

fense, Elliot Richardson, concluded that it was in the

Defense Department’s long-range interest to transfer

Culebra training activities to the islands of Desecheo

and Monita in the Mona Passage.’ This relocation was

to occur only after Congress had appropriated the

necessary funds and the Navy had reached “a satis-

factory overall arrangement with the government of

Puerto Rico * * * for insuring the long-term continu-

ation of the Atlantic Fleet Weapons Range * * *”

(Pet. App. 12a). Congress thereupon enacted the

Military Construction Authorization Act of 1974,

Pub. L. No. 93-166, 87 Stat. 661 et seg. Section 204 (a)

of the Act, 87 Stat. 668, authorized the appropriation

of $12 million for the “construction and equipage of

substitute facilities in support” of the relocation of

2The selection of these islands as the new site for the

Culebra targets was overturned in 1974 due to the status

of the Mona Passage as an international strait.

4

operations from the island of Culebra. Section 204(b)

of the Act, 87 Stat. 668, however, expressly condi-

tioned the relocation on the conclusion of an agree-

ment between the Navy and Puerto Rico, which was

to be “reported to the Committees on Armed Services

of the Senate and the House of Representatives prior

to execution of such agreement.” The agreement was

to include a provision committing the Commonwealth

to make available lands “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” (ibid).

In 1974, although no relocation site had been se-

lected and no agreement with Puerto Rico concluded,

the Secretary of State informed the Secretary of De-

fense of the President’s decision to terminate training

activities on Culebra and its surrounding cays by

the end of 1975 (Pet. App. 13a). This decision left

the targets and facilities on Vieques as the sole com-

ponents of the inner range (Pet. App. 6a). None of

the $12 million appropriated pursuant to the Military

Construction Authorization Act of 1974, was ex-

pended in improving the facilities on Vieques;’*

prior to this suit in 1978, negotiations continued be-

tween the Commonwealth and the Navy over the

selection of a site to replace Culebra (Pet. App. 13a-

14a).

The targets of Vieques consist of artillery targets,

two bull’s-eye targets for inert air-to-ground bombing

practice, strafing targets, a series of mock targets of

3 In fact, in 1980 Congress, recognizing that the $12 million

appropriation had never been spent, reallocated the amount to

another Navy construction project in the Indian Ocean. Sup-

plemental Appropriations and Rescission Act, Pub, L. No.

96-304, 94 Stat. 857 et seq. (see Pet. App. 14a n.10).

5

opportunity (¢.g., mock surface to air missile sites,

fuel farm, ammunition dump and airstrip) for live

air-to-ground bombing practice, and two remote con-

trolled moving targets. There are also six naval gun-

fire targets. (Pet. App. 7a.)* These targets are all in

the eastern portion of the island. The artillery tar-

gets, the bull’s-eye inert bombing targets, and the

strafing targets are located in an area known as the

Surface Impact Area (SIA). The western boundary

of the SIA is nine kilometers from the closest portion

of the civilian occupied area of Vieques. (Jbid.) The

remaining targets are located to the east of the SIA,

in an area known as the Air Impact Area or Close

Air Support Zone (AIA/CAS). The closest point

of the civilian zone is about 13 kilometers from the

border of AIA/CAS. The area between the civilian

zone and the SIA is occasionally used for amphibious

landing exercises; it is also leased to the local cattle

association for grazing purposes. (See Pet. App.

6a-8a).

Air and sea operations in the inner range occur

about 200 days a year, between the hours of 7:30

a.m. and 10:00 p.m. Aircraft training on the range

are forbidden to fly over civilian areas, and ordinarily

come no closer to such areas than five miles. Vessels

shooting at targets in the AIA/CAS are positioned

three to eleven miles south of the island. A danger

zone in the sea surrounding Vieques, which prohibits

civilian navigation in the area, is activated when the

range is in use. (Pet. App. 7a-8a.)

* All these targets were installed prior to 1975. The only

improvements of the facilities on Vieques since 1975 were

a television scoring system for the bull’s-eye targets, installed

in 1976, and ship positioning radar, installed in 1977. (Pet.

App. 157a.)

2. On March 1, 1978, the Governor of Puerto Rico,

Carlos Romero-Barcelo, and others initiated a suit

seeking to enjoin continued use of the island for

weapons training. The complaint charged the Navy

with violations of almost every piece of major envi-

ronmental legislation enacted by Congress in the last

decade, including the National Environmental! Policy

Act of 1969, 42 U.S.C. (& Supp. IIT) 4321 et seq.; the

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

seq.; the Clean Air Act Amendments of 1977, 42

U.S.C. (Supp. III) 7401 et seqg.; the Noise Control

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

Conservation and Recovery Act, 42 U.S.C. 6901 et

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

III) 1581 e¢ seqg.; the National Historic Preservation

Act, 16 U.S.C. 470 et seg. (and Exec, Order No.

11593, 36 Fed. Reg. 8921 (1971), reprinted in 16

U.S.C. 470 note, which implements that Act); the

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

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

1361 et seq. In addition, the complaint claimed viola-

tions of the Rivers and Harbors Appropriation Act

of 1899, 33 U.S.C. 401 et seq., and various amend-

ments to the United States Constitution. Finally, the

complaint charged that the use of Vieques for weap-

ons training violated the congressional and presiden-

tial directives concerning cessation of Navy opera-

tions on Culebra. (See Pet. App. 60a-61a.)

The district court held an extensive hearing on

the merits of these allegations. The hearing on mo-

tions for a preliminary injunction, later consolidated

as a hearing on the merits, lasted approximately 50

days and included testimony by dozens of lay and

expert witnesses. The district court also made two

site visits to Vieques to inspect the inner range and

7

the surrounding waters, and to witness noise-produc-

ing Navy activity. (Pet. App. 61a.)

On September 17, 1979, the district court issued a

comprehensive decision and order (Pet. App. 57a-

178a). The court found the Navy to be in violation

of three environmental statutes and ordered curative

action.’ All other claims were dismissed. In partic-

ular, the district court held that the Navy was not in

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

4901 et seq. It reasoned that the Puerto Rico nuisance

statutes do not establish “requirements respecting

control and abatement of environmental noise” with-

in the meaning of the Noise Control Act, 42 U.S.C.

4903(b), because the Act contemplated federal com-

pliance with specific standards, not a case-by-case in-

quiry concerning the reasonable use of property. (Pet.

App. 109a-110a.) The district court also found (Pet.

App. 110a) that “even under the most liberal inter-

pretation of the Puerto Rican nuisance statute,” the

petitioners had failed to establish a nuisance as a

factual matter (Pet. App. 110a-118a). It found that

most of the sound in the civilian areas of Vieques

comes from natural sources (biota—primarily tree

frogs—rain and thunder) and the activities of the

local residents (Pet. App. 115a). The court reviewed

the evidence and concluded that the Navy activities—

aircraft, bombing, and naval gunfire—added only an

insignificant amount to the overall noise level on the

* It found violations of the National Environmental Policy

Act of 1969 (NEPA), 42 U.S.C, (& Supp. II]) 4321 et seq.;

the Clean Water Act, 33 U.S.C. (& Supp, III) 1251 et seq.;

and Exec, Order No, 11598, supra, which implemented the

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

our petition in Weinberger v. Romero-Barcelo, No, 80-1990,

at pages 3-4, for a further description of the district court’s

findings of violations.

island (Pet. App. 116a-117a). As a result, the court

ruled that the claims under the Noise Control Act,

“lack a basis in fact as well as law” (Pet. App.

118a).

The district court also dismissed the petitioners’

claims that the Navy had violated congressional and

presidential directives concerning, the cessation of ac-

tivities on Culebra by using the facilities on Vieques.

After reviewing the history of the Culebra controversy,

the court ruled that there was no Navy-Common-

wealth agreement restricting use of Vieques (Pet.

App. 158a-154a), that internal executive directives

were not enforceable through the judicial system (Pet.

App. 154a), and that the Authorization Acts did not

grant “the Commonwealth a veto power over Naval

operations in Vieques” (Pet. App. 156a). The dis-

trict court further concluded that the level and con-

tent of training necessary for military readiness were

political questions and nonjusticiable (Pet. App. 162a-

165a).

8. On appeal, the court of appeals ruled that noise

abatement requirements applicable to federal facil-

ities under the Noise Control Act are limited to “rel-

atively precise standards capable of uniform applica-

tion to similar sources of sound” (Pet. App. 39a).

It found no jurisdiction under the Noise Control Act,

either express or implied, to enforce the Puerto Rico

criminal nuisance statute against a federal facility

(Pet. App. 40a).

The appellate court also ruled that a cause of ac-

tion could not be implied in favor of the Common-

wealth to enforce the provisions of the Military Con-

struction Authorization Acts (Pet. App. 18a-17a).

It held that the Administrative Procedure Act, 5

U.S.C. 701 et seqg., did not provide an alternative

source for the cause of action to enforce the Acts

because the Navy use of Vieques did not constitute

agency action within the meaning of the APA (Pet.

App. 18a). Even if agency action were involved,

moreover, the court ruled that it would be unreview-

able as action “committed to agency discretion by

law” within the meaning of 5 U.S.C. 701(a) (2),

because the statutes cited by the Commonwealth did

not provide the judiciary with any law to apply

(Pet. App. 19a).

ARGUMENT

So far as challenged by the present petition, the

decision of the court of appeals is correct, does not

conflict with any decision of this Court or any court

of appeals, and does not warrant review by this

Court.°

1, Petitioners contend that the court of appeals’

decision is in conflict with numerous cases of this

Court and of other courts of appeals because it found

no “agency action”, subject to the Administrative Pro-

cedure Act, 5 U.S.C. 701 et seq., in the Navy’s use

of its training facilities on Vieques. The “agency

action” in cases cited by petitioners include bringing

a complaint against private business, F7'C v. Stand-

ard Oil Co, of California, No. 79-900 (Dec. 15, 1980) ;

revealing information supplied by private companies,

Chrysler Corp. v. Brown, 441 U.S. 281 (1979); and

administrative interpretations of the application of

* The issues raised by petitioners are not related to the issue

raised by the government’s petition in Weinberger v.

Romero-Barcelo, No. 80-1990. It is accordingly appropriate

to consider the two petitions separately, even though they

arise from the same case, Petitioners do not suggest other-

wise, either in the instant petition or in their opposition

in No, 80-1990,

10

statutes to private business, Atlantic Richfield Co. v.

Federal Energy Administration, 556 F.2d 542 (Temp.

Emer. Ct. App. 1977) ; National Automatic Laundry

& Cleaning Council v. Shultz, 443 F.2d 689 (D.C.

Cir. 1971). These actions bear little resemblance to

an agency’s continued use of its own property.’ While

the term “agency action” covers a “broad spectrum”

of administrative actions, Abbott Laboratories v.

Gardner, 387 U.S. 136, 140 (1967), it is not so

broad that it includes every action of every federal

employee. International Engineering Co. v. Richard-

son, 512 F.2d 578, 580 (D.C. Cir. 1975), cert. denied,

423 U.S. 1048 (1976). As the court of appeals noted

(Pet. App. 18a), the statute defines “agency action”

in terms that fundamentally involve administrative

adjudication or rulemaking. The claimed “agency ac-

tion” in this case does not remotely involve either of

these administrative functions.*

7 Petitioners claim (Pet. 8-9) that the availability in this

case of APA review under the National Environmental Policy

Act and the National Historic Preservation Act contradicts

the court’s interpretation of “agency action.” But the court

of appeals did not consider any issue arising under NEPA,

and only an NHPA issue involving a duty to locate historic

sites under Exec, Order No, 11593, 36 Fed. Reg. 8921 (1971).

This duty was triggered by the Navy’s ownership and control

of the land; it was not base’ upon the existence of any pro-

posed “agency action”.

® Petitioners also suggest (Pet. 8) that the Navy’s use of

target facilities in Vieques constitutes an “order” within the

meaning of the APA, 5 U.S.C, 551(13). The term “order,”

however, is more fully defined in 5 U.S.C. 551(6), as:

{T]he whole or a part of a final disposition, whether

affirmative, negative, injunctive, or declaratory in form,

of an agency in a matter other than rule making but in-

cluding licensing.

11

In any event, the court of appeals ruled that, even

if “agency action” were present, judicial review un-

der the APA would be precluded by the exception in

5 U.S.C. 701(a) (2) for action committed to agency

discretion by law (Pet. App. 18a-19a). Navy use of

the target facilities on Vieques is authorized by 10

U.S.C. 5012, which directs the Navy to organize,

train and equip a combat-ready fleet and naval avia-

tion forces.’ In general, military decisions concern-

ing training and the use of facilities are political

questions, ones that are committed to agency discre-

tion by law. See Orloff v. Willowghby, 345 U.S. 83,

93-94 (1953); Gilligan v. Morgan, 413 U.S. 1, 10

(1973). The level and type of training necessary to

preserve the national security is not easily suscepti-

ble to judicial determination. Rostker v. Goldberg,

No. 80-251 (June 25, 1981), slip op. 7. The court of

appeals reviewed the Military Construction Authori-

zation Acts invoked by petitioners and found in them

no limitation on Navy discretion that could be ap-

plied to restrict the service’s use of its target facili-

ties on Vieques (Pet. App. 19a). For this reason, it

ruled that the petitioners had no cause of action un-

der the APA for lack of “law to apply” (ibid.).

Petitioners also contend that the court of appeals

impermissibly meshed the tests for implication of the

cause of action to enforce a statute and for the avail-

ability of judicial review of agency action under the

APA (Pet. 9-12). The court’s rejection of a cause

of action under both theories, however, reflects not

a merging of these two forms of action, but the con-

tent of the statutes upon which the petitioners rest

their claims. As explained above, the court exam-

® See also 10 U.S.C. 5018, which provides for the organi-

zation, training and equipping of the Marine Corps.

12

ined the cited Military Construction Authorization

Acts and found no limitation in them enforceable in

an action under the APA to restrain the Navy’s dis-

cretion to conduct necessary military training. The

court also scrutinized these statutes to determine

whether Congress intended to benefit petitioners, and

to make that benefit enforceable through the courts

(Pet. App. 18a-16a). On the basis of that scrutiny,

the court found that the statutes were intended to

safeguard the interests of the Navy rather than those

of the Commonwealth of Puerto Rico (Pet. App.

14a). As a result, it held that no cause of action

could be implied in favor of petitioners. See Cort v.

Ash, 422 U.S. 66, 78 (1975); California v. Sierra

Club, No. 79-1252 (Apr. 28, 1981).

2. Contrary to petitioners’ suggestion (Pet. 15),

the court of appeals’ ruling concerning judicial en-

forcement of the federal facilities compliance provi-

sion of the Noise Control Act of 1972, 42 U.S.C. 4903,

does not create a conflict with decisions of other

courts. The present case represents the only court of

appeals decision considering these provisions of the

Noise Control Act. Also, both the citizens’ suit provi-

sion and the federal facilities compliance provision,

42 U.S.C. 4903 and 4911, differ substantially from

the equivalent provisions of the Clean Air Act Amend-

ments of 1977 and the Clean Water Act.” Accord-

1” As noted by the court of appeals, the citizens’ suit pro-

visions of the Noise Control Act authorize actions only to

enforce certain federal noise limitations or standards and

not suits to enforce the federal facilities compliance pro-

vision, 42 U.S.C, 4911(f) (Pet. App. 34a-38a). The citizens’

suit provisions of the Clean Water Act, 83 U.S.C. (Supp.

III) 1865, and the Clean Air Act Amendments of 1977, 42

13

ingly, the court of appeals’ determination that the

federal courts lacked jurisdiction to entertain peti-

tioners’ Noise Control Act claims does not necessarily

create a conflict with decisions construing these other

statutes.

More significantly, the source of the conflict peti-

tioners assert is the court of appeals’ failure to find

an implied cause of action to enforce the Noise Con-

trol Act in the savings clause in the citizens’ suit pro-

vision (Pet. 16-17). In Middlesex County Sewerage

Authority v. National Sea Clammers Association,

U.S.C. (Supp. III) 7604, in contrast both specifically authorize

suits to enforce the federal facilities compliance provisions of

those Acts. See Hancock v. Train, 426 U.S. 167, 196 (1976).

The federal facilities compliance provision of the Noise

Control Act of 1972, 42 U.S.C. 4903, was modeled on the

original compliance provision of the Clean Air Amendments

of 1970. Section 118 of the Clean Air Amendments of 1970,

Pub. L. No, 91-604, 84 Stat. 1689. A Legislative History

of the Noise Control Act of 1972, 98d Cong., 2d Sess. 40

(Comm, Print 1974) (remarks of Sen. Tunney). In Han-

cock Vv. Train, supra, this Court construed the original

federal compliance provision of the Clean Air Amendments

of 1970 to require federal compliance with state and lo-

cal substantive standards regarding pollution, but held that

it did not subject federal facilities to state procedural re-

quirements or state jurisdiction. 426 U.S. at 198-199.

See also EPA v. California ex rel. State Water Resources

Control Board, 426 U.S. 200 (1976). Subsequent to Hancock

v. Train, supra, Congress amended the federal facilities com-

pliance provisions of the Clean Air Act Amendments of 1977

(42 U.S.C. (Supp. III 7418) and the Clean Water Act (33

U.S.C. (& Supp. III) 1828), to subject federal facilities to

state procedure and jurisdiction. The compliance provision of

the Noise Control Act of 1972, 42 U.S.C. 4903, however, was

not amended. Therefore, questions relating to enforcement of

the federal facilities compliance provision of the Noise Control

Act are not identical to those concerning the Clean Air Act

and the Clean Water Act, and comparison with cases dealing

with the latter two Acts is not always warranted.

14

No. 79-1711 (June 25, 1981), slip op. 13, this Court

ruled that an implied cause of action to enforce the

provisions of the Clean Water Act cannot be derived

from the savings clause of the citizens’ suit provisions

in that Act. As a result, the conflict postulated by

petitioners no longer exists.

Petitioners’ claim (Pet. 15) that the court of ap-

peals’ decision leaves the federal compliance provision

in the Noise Control Act unenforceable is also with-

out merit. The court held that the Puerto Rico crimi-

nal nuisance statute did not create noise requirements

applicable to federal facilities within the meaning of

the Noise Control Act (Pet. App. 39a-40a). The

opinion, however, left open the possibility of enforce-

ment of uniform standards limiting the allowable

“intensity, duration and character of sounds” against

federal defendants under the APA (Pet. App. 38a-

39a). The appellate court’s distinction between nuis-

ance statutes and uniform noise limitations standards

is well supported. Under the Puerto Rico nuisance

law, a case-by-case determination of the reasonable-

ness of the defendant’s activities is required in order

to maintain “a balance between the defendant’s right

to the free use of his property and the rights of others

to comfortable enjoyment of life or property” (Pet.

App. 40a). See Casiano Sales v. Lozada Torres,

91 P.R.R. 473 (1964); Arcelay v. Sanchez Martinez,

77 P.R.R. 782 (1955).

In any event, the petitioners’ contention (Pet. 18)

that the “noise created by the use of live ordnance is

excessive and significantly intrudes upon the daily life

of Vieques residents” was rejected on the facts by the

district court. That court held a 50-day hearing in

this case, visited the island, and heard extensive testi-

mony on noise from both lay and expert witnesses.

(See Pet. App. 61a.) It meticulously evaluated all this

15

evidence (Pet. App. 110a-118a) and concluded, “even

under the most liberal interpretation of the Puerto

Rican nuisance statute * * * [petitioners] have failed

to establish facts attributable to Defendant Navy

justifying a conclusion that it is generating noise and

shock waves of such magnitude as to interfere with

either the health or property of the civilian residents

of Vieques” (Pet. App. 110a).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

LAWRENCE G. WALLACE

Acting Solicitor General

ANTHONY C. LIOTTA

Deputy Assistant Attorney General

EDWARD J. SHAWAKER

ANNE 8S. ALMY

Attorneys

AvuGusST 1981

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