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Marquez-Colon v. Reagan

Citation: 12 ELR 20286
No. Nos. 81-1041, -1334, 668 F.2d 611/17 ERC 1138/(1st Cir., 12/23/1981) Injunction vacated

The First Circuit vacates the district court's injunction, 11 ELR 20424, against the transfer of Cuban and Haitian refugees to Fort Allen, Puerto Rico. Subsequent to the district court's decision, a consent agreement was reached between appellee Commonwealth of Puerto Rico and the federal government, who agreed (1) to limit the number of Fort Allen residents to 1,500, (2) not to dispose of any solid waste generated at the fort in Juana Diaz, and (3) to dispose of such waste in compliance with Puerto Rican law. Initially, the court finds that the consent agreement undermines the factual basis for certain of the district court's legal conclusions and, therefore, vacates as moot the district court's rulings that the construction at and operation of Fort Allen would violate the substantive provisions of the Coastal Zone Management Act (CZMA), the Solid Waste Disposal Act, and the federal common law of nuisance. Next, the court rules that an injunction against operation of the fort based upon the federal government's past violations of the National Historic Preservation Act (NHPA) and the notice provisions of the CZMA is inappropriate in light of the Commonwealth's acceptance of the government's archeological report and literature search as compliance with the NHPA and its concurrence in the government's consistency determination. The court turns next to appellee's contention that the Refugee Education Assistance Act of 1980 (REAA) which exempts the project from the environmental impact statement requirement of § 102(2)(C) of the National Environmental Policy Act (NEPA), does not exempt activities at Fort Allen from § 102(2)(E) of NEPA. The court first notes that it is unlikely that Congress intended to exclude § 102(2)(E) from the REAA's NEPA exemption. Furthermore, based upon the minimal environmental impacts expected to arise under the terms of the consent agreement, that section's applicability to the proposal to use Fort Allen is uncertain. But even if § 102(2)(E) were to apply to the Fort Allen proposal and the federal government had violated that section, the court would not approve a broad injunction against the fort's use as a refugee center. In balancing the equities, the court finds that any past damage caused by the construction of the fort cannot be alleviated by injunctive relief, that the environmental impact of operating the fort as a refugee center under the conditions of the consent agreement will be relatively minor, and that the federal government's need to use the fort for this purpose weighs heavily against issuance of a broad injunction.

Counsel for Appellees
Michael J. Henke, Richard G. Wilkins, Ann M. Ashton
Vinson & Elkins
1101 Connecticut Ave. NW, Washington DC 20036
(202) 862-6500

Gerardo A. Carlo, Luis R. Davila Colon, Nester Ramirez
Department of Justice, P.O. Box 192, San Juan PR 00902
(809) 722-0116

Pedro J. Varela
613 Ponce de Leon Ave., Hato Rey PR 00917
(809) 751-6351

Pedro Saade Llorens
Puerto Rico Legal Services
P.O. Box CM, Rio Pedras PR 00927
(809) 726-5532

Counsel for Appellants
David C. Shilton, Peter R. Steenland Jr., Dorothy Burakreis, William Want; Anthony C. Liotta, Acting Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2737

Before Coffin, Van Dusen,* and Bownes, JJ.