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Romero-Barcelo v. Brown

Citation: 11 ELR 20391
No. No. 79-1626, 643 F.2d 835/16 ERC 1593/(1st Cir., 01/26/1981)

The court affirms in part and remands in part the lower court's decision not to enjoin weapons storage, training, and bombing activities of the United States Navy on the island of Vieques, a municipality of Puerto Rico. The Commonwealth of Puerto Rico alleged that the Navy's activities in and around Vieques caused irreparable injury to the island's ecology and inhabitants, in violation of a number of federal and local laws. The First Circuit Court of Appeals affirms the district court ruling that Puerto Rico has failed to state a claim for relief regarding the transfer of training activities from Culebra to Vieques because plaintiffs do not have a private right of action to sue under certain military construction acts and federal directives. Regarding the alleged pollution of coastal waters, the court first affirms that the Navy has not violated Puerto Rico water quality standards because they are not applicable to spent ordnance. Under the Rivers and Harbors Act, the court agrees that § 13 does not give rise to a private cause of action, and further rules that because Puerto Rico failed to allege a distinct and palpable injury, it does not have standing to raise a § 15 claim regarding the intentional sinking of a target ship. Regarding noise pollution and an alleged violation of the Puerto Rico criminal nuisance statute, the court finds that the district court was without jurisdiction to entertain the claim because the statute is not enforceable via the federal Noise Control Act standards. Thus, it is unnecessary to determine whether there is a private cause of action under the Noise Control Act, and this ruling is vacated and remanded with instructions to dismiss. The Endangered Species Act claims are remanded because the Navy must prepare a biological opinion pursuant to § 7. Regarding the inventory of possible historical sites that are affected by the activities, the court agrees with the district court that the Navy violated the National Historic Preservation Act and Executive Order 11593, directs the Navy to make greater efforts at possible historical sites identification, and remands this issue for reconsideration. The First Circuit directs that no more training activities can occur until a national pollutant discharge elimination system permit or an exemption is obtained, declines to enjoin the activities until an historic sites survey is completed, and finds the environmental impact statement (EIS) issue moot because the Navy has already prepared a presumably adequate EIS.

Counsel for Appellants
Timothy L. Harker, John A. Hodges, Lewis A. Rivlin
Peabody, Rivlin, Lambert & Meyers
12th Floor, 1150 Connecticut Ave. NW, Washington DC 20036
(202) 457-1000

Miguel Gimenez-Munoz, Attorney General; Thomas L. Lincoln
Department of Justice, P.O. Box 192, San Juan PR 00902
(809) 725-8158

Gerardo A. Carlo, Special Counsel to the Governor
Edificio Banco Popular, Oficina 603, San Juan PR 00905
(809) 723-0113

Counsel for Appellees
Anne S. Almy, Sanford Sagalkin, Peter R. Steenland Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4427

Capt. Thomas E. Flynn, Lt. Cmdr. Eugene M. Pinkelmann Jr.
Office of the Judge Advocate General
Department of the Navy, Washington DC 20350
(202) 325-9870

Richard M. Cornelius, Ass't General Counsel
Department of the Navy, Washington DC 20350
(202) 695-6907

Before Coffin, Campbell, and Bownes, JJ.