193 F. Supp.2d 424 (2002) | Cited 0 times | D. Puerto Rico | April 4, 2002



Before the Court is a "Motion to Dismiss and Memorandum of Lawin Support of Motion to Dismiss and Opposition to Request forInjunctive Relief" ("Mot. to Dismiss") (Docket No. 5) filed onApril 1, 2002. The complaint in this case was originally filedin the Court of First Instance of the Commonwealth of PuertoRico, Fajardo Part, on Thursday, March 21, 2002. It was removedto this Court on Tuesday, March 26, 2002 pursuant to28 U.S.C. § 1441, 1442 and 1442(a) (See Docket No. 1). Plaintiffs bringthis lawsuit against 1) Gregory Cooper in his official capacityas Commanding Officer of the Atlantic Fleet Weapons TrainingFacility of the United States Navy; 2) Gordon England, Secretaryof the United States Navy; 3) Donald Rumsfeld, Secretary of theUnited States Department of Defense; 4) Kevin Green,Rear-Admiral of the United States Navy; and 5) several unnameddefendants. In their complaint, Plaintiffs request preliminaryand permanent injunctions under the laws of the Commonwealth ofPuerto Rico to forestall naval training and activities on theisland of Vieques.

On March 27, 2002 this Court dismissed all but one of thePlaintiffs from this lawsuit for lack of standing. (Docket No.3). Therefore, the only remaining Plaintiff is Hon. DamasoSerrano-Lopez, Mayor of the municipality of Vieques. For thereasons stated below this Court GRANTS Defendants' Motion toDismiss, and therefore, DENIES Plaintiffs request for apreliminary and permanent injunction. In summary, the Courtfinds that the factors to be considered pursuant to a requestfor injunctive relief weigh against granting such relief in thiscase. Moreover, several procedural faults in Plaintiffscomplaint weigh in favor of dismissing it. First and foremost,there has been no waiver of sovereign immunity and therefore,the court does not have subject matter jurisdiction to hear thiscase. Second, the act which forms the basis of Plaintiffscomplaint, the Coastal Zone Management Act ("CZMA"), codified asamended at 16 U.S.C. § 1451-1465 (1972), does not provide himwith a direct cause of action to bring this lawsuit. Third, evenif we assume arguendo, that Plaintiff could and is bringing thisaction under the Administrative Procedure Act ("APA"), codifiedas amended at 5 U.S.C. § 551-559, 701-706 (1994), Plaintiffstill lacks standing to bring this lawsuit. Finally, the Courtalso finds that Defendants have complied with the requirementsof the CZMA and that the alleged violations of Plaintiffsconstitutional rights are not traceable to and will not resultfrom Defendants' activities.



Beginning on April 1, 2002 the Navy plans to conduct aComposite Training Unit Exercise ("COMPTUEX") which is expectedto run for a period of three weeks. (See Mot. to Dismiss, Ex.I, Declaration of Captain Michael Vitale, Chief of Staff forCommander, Carrier Group FOUR). Other Multiple Unit LevelTraining ("ULT") activities will also take place at the ViequesInner Range. Some ofthese exercises are being conducted in an effort to prepare USSGEORGE WASHINGTON (CVN 73) Aircraft Carrier Battle Group for anupcoming assignment overseas in which it will join other Groupsfrom the Atlantic Fleet in their intensive combat operationsagainst terrorism. (See Mot. to Dismiss, Ex. II, Declarationof Admiral Lidnell G. Rutherford, ¶ 9). The training exercisesin Vieques will involve different scenarios and activitiesincluding: 1) air-to-ground bombing, 2) Naval Surface FireSupport, 3) Close Air Support strikes, Combat Search and Rescue,4) and Naval Special Warfare unit level training. (See Mot. toDismiss, Ex. I).


On July 29, 2001 the residents of the island of Vieques wentto the polls to cast their vote in a referendum held on whetherthe Navy should be allowed to continue their military trainingexercises on the island. The majority voted against the Navycontinuing its operations in Vieques. This referendum took placepursuant to a bill signed on June 13, 2001 by Hon. Sila MarfaCalderón, Governor of the Commonwealth of Puerto Rico. See2001 P.R. Laws 34. ("Law 34").

Plaintiff requests relief for the Navy's failure to observethe majority vote in this referendum. However, nothing inPlaintiffs complaint would support his proposal that thisreferendum is binding on either the Government of theCommonwealth of Puerto Rico or the United States. Neither isthere any support in the law itself for this proposition. Infact, the only effect of the law is set out in its Statement ofMotives wherein it says that "[i]n the event that the majorityof voters choose the option that asks for the immediate andpermanent cessation of the Navy's military exercises andbombarding in Vieques, the population of Vieques will be clearlyexpressing their democratic will and their desire for thepermanent cease of any kind of military training in themunicipality." (See Statement of Motives of Law 34)(translation ours). Like the title of the law suggests,1the referendum was simply an "electoral consultation" to thepeople of Vieques regarding their views about the presence ofthe Navy in the island.

In making reference to another referendum where the residentsof Puerto Rico were asked to express their views with regards tothe political status of the Commonwealth, this Court stated that"[it was] mindful that any referendum, such as this one, is notbinding on Congress." Popular Democratic Party v. Commonwealthof Puerto Rico, 24 F. Supp.2d 184, 195 (P.R. 1998); see alsoNew Progressive Party v. Colon, 779 F. Supp. 646, 662 (P.R.1991). Ultimately, the Supremacy Clause of the United StatesConstitution forbids us from embracing Plaintiffs suggestionthat the Navy is obliged to cease operations in Vieques pursuantto the results of the July 2001 referendum. See United Statesv. Chester, 144 F.2d 415, 419-20 (3rd Cir. 1944) (the exemptionof the federal government from state and local zoning laws stemsfrom the Supremacy Clause). A referendum cannot halt the Navy'sendeavor to fulfill their duties under the United States Codewhich entail the military practices in Vieques scheduled forthis month. As Defendants correctly point out, "[a] statestatute, a local enactment or regulation or a city ordinance,even if based on the valid police powers of a state, must yieldin case of direct conflict with the exercise by the governmentof the United States of any power it possessesunder the Constitution." Pan American Health Organization v.Montgomery County, Md., 889 F. Supp. 234, 238-39 (Md. 1994).

Therefore, even if we found Law 34 was intended to somehow bebinding, we here find it cannot be binding on Congress or theNavy under the Supremacy Clause of the U.S. Constitution.Additionally, any intended effects of the results of thereferendum must surrender against the "operations of theconstitutional laws enacted by Congress to carry into executionthe powers vested in the general government." City of LosAngeles v. United States, 355 F. Supp. 461, 464 (C.D.Cal. 1972).For these reasons we find that any claims Plaintiff is making onthe basis of the Navy's or the United States' failure to observeand abide by the wishes of majority of voters in the July 29,2001 referendum are without merit. Equitable relief on thisbasis is hereby DENIED.


Plaintiff's causes of action are brought under theConstitution of the Commonwealth of Puerto Rico and the CZMA.The CZMA is a "federal law administered by the NationalOceanographic and Atmospheric Administration [(`NOOA')], which,in turn, has delegated some authority for administration to theStates." United States v. San Juan Bay Marina, 239 F.3d 400,404 (1st Cir. 2001). Puerto Rico is considered a state for thesepurposes. Id.

The general purpose behind the enactment of the CZMA was forthe federal government to assist coastal states in effectivelyexercising their management responsibilities in an effort topreserve, protect, and develop the nation's coastal zone.16 U.S.C. § 1452. States are responsible for developing a CoastalManagement Plan ("CMP") and the NOAA decides whether to approveeach state's CMP. A designated local agency which serves asliaison between the NOAA and the state is responsible fordeveloping the CMP. In Puerto Rico this agency is the PuertoRico Planning Board ("Junta de Planificación Ambiental")("PRPB") and they have had a NOAA approved CMP since 1978. Inreturn for carrying out the management programs of their coastalzones, states are eligible for federal grants as determined bythe Secretary of Commerce. States also gain the right toinfluence activities carried out by federal agencies that mightaffect a coastal zone or its resources. The Act requires thatall federal agencies carry out their activities "in a mannerwhich is consistent to the maximum extent practicable with theenforceable policies of approved State management programs."16 U.S.C. § 1456(C)(1)(A).

Part 930 of the Code of Federal Regulations sets out theprocedural framework for implementing the CZMA and achievingfederal consistency with approved coastal management programs.If a federal agency foresees it will engage in activities thatwill affect any coastal use or resource, it must develop andsubmit a consistency determination to the state agency, the PRPBin Puerto Rico, with "sufficient information to reasonablydetermine the consistency of the activity" with the local CMP.15 C.F.R. § 930.34(A)(1) & 930.36(B)(1) Note (2001). Ultimately,it is the federal agency which determines whether its activityaffects the coastal zone and whether it will be actingconsistent to the maximum extent practicable with the local CMP.15 C.F.R. § 930.32(A); § 930.33, § 930.34(A), § 930.43(D)(1) &(2) & § 930.43(E) Note (2001). States, nevertheless, can objectto a federal agency's determinations. 15 C.F.R. § 930.43 Note(2001). In objecting to the federal agency's consistencydetermination report, the state must identify the enforceablepolicies it believes the agency's activities areinconsistent with, and also explain how the proposed activity isinconsistent with the those policies and the CMP. Id. Thestate should also describe the alternative measures that wouldallow the activity to proceed in a manner consistent with theCMP to the maximum extent practicable. Id. If the state andthe federal agency still disagree as to the consistency of theactivities with the CMP, mediation services through theSecretary of Commerce are available. 15 C.F.R. § 930.44 Note(2001).


On October 15, 2001 the Navy submitted an Application forCertification of Consistency with the Puerto Rico CoastalManagement Program ("Application for Certification ofConsistency") to the PRPB to continue its military training andexercises up and until May 1, 2003. (See Mot. to Dismiss, Ex.III). The PRPB was required to review such application within asixty (60) day period which, due to their own request forresubmission of the application, began to run on October 17,2001. (See Mot. to Dismiss, Ex. IV). On December 13, 2001 thePRPB rejected the application as inconsistent with the PuertoRico CMP, including in its rejection letter commentaries andrecommendations from agencies, organizations, and other "pointsof contact" that had been consulted about the application.(See Mot. to Dismiss, Ex. V). The letter also outlined PRPB'sown conclusions upon reviewing the application, and thepertinent legal provisions of the PRPB's Objectives and PublicPolicies of the Land Use Plan of Puerto Rico ("PRPB's Objectivesand Public Policies").2 Several other correspondence wasexchanged between the Navy and the PRPB during the months ofDecember and January. Plaintiff claims that on December 21, 2001the President of the PRPB informed the Navy that it had failedto comply with several requirements of the Application forCertification of Consistency such as preparing a declaration ofthe complete environmental impact of the exercises, obtainingauthorization form the Department of Natural Resources,preparing a declaration of compliance with the localenvironmental laws, and conducting certain archeologicalstudies. The record does not indicate or provide evidentiarysupport of how this communication took place.

Plaintiff alleges that mediation between the Navy and PRPBshould have begun on February 5, 2002 ninety (90) days aftersubmission of the application. It is unclear how these dates andnumbers were calculated3 but in any event, on February 22,2002, the Navy wrote PRPB explaining that it had failed toproperly object to the Application for Certification ofConsistency and that moreover, the Navy's actions wereconsistent with policies enforceable against them, or at least,"consistent to the maximum extent practicable" as required underthe CZMA, 16 U.S.C. § 1456(c)(1), and under NOAA regulations,15 C.F.R. § 930.112 Note (2001). (See Mot. to Dismiss, Ex. VIII).The Navy also expressed its concurrence with PRPB's suggestion,in a letter dated January 4, 2002 (See Mot. to Dismiss Ex.VII), of making an attempt to settle the remaining issues,preferably prior to the commencement of the nexttraining exercises in Vieques. Plaintiff alleges, again withoutproviding any evidentiary support for this allegation on therecord, that on March 15, 2002 the Navy officially announced itsintention to conduct the April 2002 training exercises inVieques.

Two more letters were sent by PRPB on March 19, 2002 one tothe Secretary of Commerce requesting mediation and the other tothe addressed to the Navy requesting a meeting prior to thecommencement of the April 1, 2002 training exercises. (SeeMot. to Dismiss Ex. IX and Ex. X).

Finally, five (5) days after the complaint in this case wasfiled in local court, the Navy wrote PRPB a letter on March 26,2002 indicating their desire to resolve their issues viainformal negotiations and proposing therein a meeting during theweek of April 8, 2002. (See Mot. to Dismiss Ex. XI). In thisletter, the Navy emphasized PRPB's continued failure to properlyset out their objections and identify the enforceable policieswhich the Navy was not in compliance with. The Navy claims thislast letter fulfilled the notice requirements under15 C.F.R. § 930.43(e) Note (2001), of their intentions to proceed with theupcoming exercises.


The essence of Plaintiffs complaint is that the Navy failed tocomply with its duty under the CZMA to provide a consistencydetermination to PRPB that this agency approved of, and carryout its activities in a manner "consistent to the maximum extentpracticable with the enforceable policies of approved Statemanagement programs." 16 U.S.C. § 1456(c)(1)(A). Moreover,Plaintiff argues that the Navy's training exercises will beconducted in complete disregard of the July 29, 2001 referendumwhere the people of Vieques expressed their views as to whetherthey wanted the Navy to cease the military exercises on theisland.

In its Motion to Dismiss, the Navy argues that: 1) the localreferendum held on July 29, 2001 is not binding and therefore,Plaintiff has no basis whatsoever to claim relief as a result ofthe Navy's failure to abide by it; 2) there being no waiver ofsovereign immunity, Plaintiff has failed to establish subjectmatter jurisdiction; 3) there being no direct cause of actionunder the CZMA, the Act under which Plaintiff brings thislawsuit, he lacks standing; 4) that even if the Court were tofind it had subject matter jurisdiction and Plaintiff hadstanding, the Navy as a federal agency has complied with itsduties under CZMA and therefore, Plaintiff has failed to state aclaim for which equitable relief in the form of preliminary andpermanent injunctions can be granted.


The standard for preliminary injunction is well settled.

[T]rial courts must consider (1) the likelihood of success on the merits; (2) the potential for irreparable harm if the injunction is denied; (3) the balance of relevant impositions, i.e., the hardship to the nonmovant if enjoined as contrasted with the hardship to the movant if no injunction issues; and (4) the effect (if any) of the court's ruling on the public interest.

Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12,15 (1st Cir. 1996) (cited in Pharmaceutical Research and Mfrs.of America v. Concannon, 249 F.3d 66, 2001 WL 505645 (1st Cir.2001)).

We will begin by examining the likelihood of success on themerits of Plaintiffs claims by in turn reviewing Defendants'Motion to Dismiss.


When ruling on a 12(b)(6) motion a court must accept allwell-pled factual averments as true and must draw all reasonableinferences in the plaintiffs' favor. Berezin v. Regency SavingsBank, 234 F.3d 68, 70 (1st Cir. 2000); Negron-Gaztambide v.Hernandez-Torres, 35 F.3d 25, 27 (1st Cir. 1994). A Courtshould not dismiss a complaint for failure to state a claim orfor lack of subject matter jurisdiction unless it is clear thatplaintiff will be unable to recover under any viable theory.See LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 508(1st Cir. 1998); Negron-Gaztambide, 35 F.3d at 27; Carney v.Resolution Trust Corp., 19 F.3d 950, 954 (5th Cir. 1994);Garita Hotel Ltd. Partnership v. Ponce Fed. Bank, 958 F.2d 15,17 (1st Cir. 1992). However, a court will not accept plaintiffs"unsupported conclusions or interpretations of law". WashingtonLegal Foundation v. Massachusetts Bar Foundation, 993 F.2d 962,971 (1st Cir. 1993).

A sovereign immunity defense should be brought underFed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction.Murphy v. United States, 45 F.3d 520 (1st Cir. 1995). Inreviewing a 12(b)(1) motion to dismiss, the Court should"construe the complaint liberally and treat all well-pleadedfacts as true, according the plaintiff the benefit of allreasonable inferences." Murphy v. United States, 45 F.3d 520,522 (1st Cir. 1995). "[T]he party invoking the jurisdiction of afederal court carries the burden of proving its existence." Id,(quoting Taber Partners I v. Merit Builders, Inc., 987 F.2d 57,60 (1st Cir.), cert. denied 510 U.S. 823, 114 S.Ct. 82, 126L.Ed.2d 50 (1993)).

Moreover, the First Circuit has stated that "a complaint mustset forth a factual allegation either direct or inferentialrespecting each element necessary to sustain recovery under someactionable legal theory." Berner v. Delahanty, 129 F.3d 20, 25(1st Cir. 1997); see also O'Brien v. DiGrazia, 544 F.2d 543,546 n. 3 (1st Cir. 1976), cert. denied 431 U.S. 914, 97 S.Ct.2173, 53 L.Ed.2d 223 (1977).("[w]hen a complaint omits factsthat, if they existed, clearly would dominate the case, it isfair to assume that those facts do not exist."); Roth v. UnitedStates, 952 F.2d 611, 613 (1st Cir. 1991) (stating that in hiscomplaint a plaintiff is obliged to allege facts regarding eachessential element necessary to entitle him to recovery under anactionable legal theory); Aulson v. Blanchard, 83 F.3d 1, 3(1st Cir. 1996) (the court is not obliged to accept "baldassertions, unsupportable conclusions, periphrasticcircumlocutions and the like.").



Under the doctrine of sovereign immunity the federalgovernment cannot be sued by private parties, states and/ortheir agencies unless the United States has expressly consentedto be sued. See Block v. North Dakota, 461 U.S. 273, 280, 103S.Ct. 1811, 75 L.Ed.2d 840 (1983); United States v. Testan,424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); Misrav. Smithsonian Astrophysical Observatory, 248 F.3d 37, 39 (1stCir. 2001). In any suit filed in federal court against theUnited States, there must be both a waiver of sovereign immunityand accordingly, subject matter jurisdiction. Commonwealth ofPuerto Rico v. Rumsfeld, 180 F. Supp.2d 145, 150 n. 11 (D.C.2002); FDCI v. Meyer, 510 U.S. 471, 484, 114 S.Ct. 996, 127L.Ed.2d 308 (1994); see also United States v. Mitchell,463 U.S. 206, 218, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). In thesecases, the plaintiff bears the burden ofproving that subject matter jurisdiction exists. Kokkonen v.Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128L.Ed.2d 391 (1994); Puerto Rico Tel. v. Telecom. RegulatoryBd., 189 F.3d 1, 7 (1st Cir. 1999).

Plaintiff has not alleged and the Court has no reason tobelieve that the United States has waived sovereign immunity inthis case. The CZMA does not waive the sovereign immunity of theUnited States by creating a cause of action. N.J. Dep't ofEnvtl. Prot. & Energy v. Long Island Power Auth., 30 F.3d 403,421 (3rd Cir. 1994); Cal. v. Watt, 683 F.2d 1253, 1270-71 (9thCir. 1982), rev'd on other grounds, 464 U.S. 312, 104 S.Ct.656, 78 L.Ed.2d 496 (1984). Therefore, Plaintiff's suit hasthree major procedural faults: 1) lack of waiver of sovereignimmunity; 2) lack of subject matter jurisdiction; and 3) thelack of a cause of action under which to argue its claims. Todefeat these shortcomings, Plaintiff's only recourse to preservethese claims would be the Administrative Procedure Act or APA.


The APA waives the sovereign immunity of the United States fornon-monetary suits against federal agencies under specifiedconditions. 5 U.S.C. § 702. Section 10(a) of the Act states inpart:

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.

5 U.S.C. § 702.

The APA is the sole avenue for actions challenging thelegality of federal agency action where the federal law that isallegedly being violated, in this case the CZMA, does not confera private right of action. Clouser v. Espy, 42 F.3d 1522, 1528n. 5 (9th Cir.), cert. denied, 515 U.S. 1141, 115 S.Ct. 2577,132 L.Ed.2d 827 (1995); see also Hoefler v. Babbitt,139 F.3d 726 (9th Cir.), cert. denied, 525 U.S. 825, 119 S.Ct. 70, 142L.Ed.2d 55 (1998). It is therefore, the only basis for thisCourt to inquire into whether the Navy's actions are incompliance with CZMA requirements. Long Island Power Auth., 30F.3d at 421. Therefore, the only avenue which Plaintiffcould potentially use to bring this lawsuit would be the APA.Assuming arguendo that he had, we proceed to consider theviability of his causes of action under the APA.

Defendants suggest that Plaintiff Serrano-López lacks standingto bring suit under the CZMA via the APA. A prudential standingrequirement is imposed by the APA "in addition to therequirement, imposed by Article III of the Constitution, that aplaintiff have suffered a sufficient injury in fact." NationalCredit Union Admin. v. First Nat. Bank & Trust Co.,522 U.S. 479, 488, 118 S.Ct. 927, 140 L.Ed.2d 1 (1998). "For plaintiff tohave prudential standing under [the] judicial review provisionof the Administrative Procedure Act (APA), [the] interest thatplaintiff seeks to protect must be arguably within zone ofinterests to be protected or regulated by statute in question."Id.; see also 5 U.S.C. § 702.

As the Ninth Circuit has suggested, "[t]o have standing underthis section both of the following questions must be answeredaffirmatively:

1. Has the party seeking standing suffered a legal wrong, or been adversely affected or aggrieved by the agency action (i.e., has he been `injured in fact'), and

2. Are the interests sought to be protected by the party seeking standing `arguably within the zone of interests to be protected or regulated' by the statute in question."

See Cal. v. Watt, 683 F.2d at 1270; see also Association ofData Processing Service Organizations v. Camp, 397 U.S. 150,151-153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).4

Defendants suggests that Plaintiff Serrano-López lacksstanding because the injuries he alleges are not within the zoneof interests to be protected by the CZMA, as defined in theAct's statement of purposes. (See 16 U.S.C. § 1452). In orderfor the Court to make a determination on the issue of standing,we must examine Plaintiffs alleged injuries.


The only remaining Plaintiff in this case, Hon. DámasoSerrano-López, alleges that if the training exercises takeplace, the people of Vieques will suffer irreparable harmthrough: 1) water poisoning and contamination; 2) destruction ofarcheological deposits; 3) destruction of animal life in thecoastal zone; 4) disturbance of ecological systems such as reefsand algae; 5) serious illnesses in the population; and accordingto Plaintiff, most significantly 6) the cumulative effects ofmore than 60 years of usage.

Plaintiff Serrano-López also claims that the Navy's actionsare in violation of the Constitution of the Commonwealth ofPuerto Rico and will result in the following injuries to thepeople of Vieques, inter alia: 1) the deterioration of theirconstitutional function; 2) a violation of their freedom ofassociation; and 3) a hindrance on their right to redress theirgrievances.5 (Compl. 31). He claims the Defendants'neglect of the July 29, 2001, referendum along with theirneglect of their duty to obtain a permit prior to undertakingthe challenged actions on April 1, 2002, will bring about theseinjuries. Id.


In dismissing the remaining Plaintiffs in this action for lackof standing, the Court refrained from making a finding as toPlaintiff Serrano-López's fulfillment of the general standingrequirements. A review of the complaint revealed that if any ofthe Plaintiffs in this case had standing, it could only be theHon. Dámaso Serrano-López on behalf of the people of Vieques.Upon reviewing the Defendants' arguments for dismissal however,we have ascertained that Plaintiff Serrano-López also lacksstanding to bring this action giventhe standing requirements applicable to the APA.

As regards the first set of alleged injuries, the potentialenvironmental harm, we find Plaintiff does not have standing tobring this action. The injuries he maintains the people ofVieques will endure do not result from the alleged CZMAviolations and are not protected under the CZMA either.Plaintiff sues under the CZMA for harm or injuries that CZMAseeks to protect only to the extent that the Act requiresfederal agencies, such as the Navy, to be "consistent to themaximum extent practicable" with the Puerto Rico CMP. The zoneof interests regulated by the CZMA includes a state's protectionof their coastal zones and not an individual's attempt to seekfurther protection once the CZMA requirements have been compliedwith. (See Section VI.E below). The only party that couldpotentially bring its concerns, interest, and potential injurieswithin the zone of interests of the CZMA under these particularcircumstances is the PRPB, by further contesting the Navy'sconsistency determination. Ultimately, as Defendants correctlysuggest, no provision is made in the CZMA or Part 930 of the C.F.R.for private or local entities and individuals to substitutetheir own interests and judgments for that of the reviewingstate agency.

As regards the second set of injuries arising out ofPlaintiff's rights under the Constitution of the Commonwealth ofPuerto Rico, we find these are not "injuries in fact" that couldresult from the Navy's action and Plaintiff has not been andwill not be adversely affected or aggrieved by those actions.Plaintiff gives the Court no support for his contention that theNavy's actions would result in a deterioration of the people ofVieques' constitutional rights, a violation of their freedom ofassociation, and a hindrance on their right to redress theirgrievances. Neither can we can find any in the factualallegations made in the complaint. In addition to Plaintiffsfailure to square this second set of injuries within the firstprong of the APA's standing requirements, Plaintiff also failsto show how these fit within the zone of interests of CZMA. Wereiterate that even though Plaintiff alleges these areviolations of constitutional rights, he maintains that theseinjuries would result from the Navy's failure to comply withCZMA requirements and its failure to abide by the results of thereferendum. However, there is no connection between theinterests the CZMA intended to protect and the "irreparableharm" this second set of injuries constitute. (See SectionII.C. above). Therefore, we find that Plaintiff fails to fulfillthe APA standing requirements to bring these claims allegingviolations of the constitutional rights of the people ofVieques. (See Compl. ¶ 31).


During the last two years the public debate over the effectsof the Navy's military exercises on Vieques as a whole hasrocketed and the United States Navy as well as the United Stateshave responded to the best of their ability and in a mostreasonable manner to the concerns of the people of Puerto Ricoand the people of Vieques. They have made an effort to addressthe voiced concerns specially, environmental and humanitarianconcerns.

The CZMA and the applicable provisions of the Code of FederalRegulations allow a federal agency to proceed with its plannedactivities even after a state has objected to them if thefederal agency determined that it cannot comply any further withthe state's demands, and provides the state with an explanationto that effect and with a notification of its intention toproceed with the activities.

The Navy complied with all of its duties under the CZMA asevidenced in its continued communications with the PRPB duringthe last six (6) months. The standard for compliance with theCZMA is clear: "consistent [with the CMP] to the maximum extentpracticable." The Navy clearly has made all efforts to reachthat maximum level and PRPB has not voiced its concerns to thecontrary. PRPB does hold the view that the Navy's Applicationfor Certification was deficient but they are not the onesbringing this lawsuit to claim that the CZMA standard has beenviolated. As Defendants repeatedly suggest in their Motion toDismiss, if anyone should be contesting the Navy's adherence tothat standard, it is the PRPB in representation of theCommonwealth of Puerto Rico. In this case, the PRPB made adeficient attempt to contest the Navy's consistencydetermination and has not engaged in any further attempts tocontest that determination as for instance, by joining Plaintiffin this lawsuit. In rejecting the Application for Certificationof Consistency, the PRPB objects on the basis of the Navy'sfailure to comply with PRPB's policies that have not been madepart of the CMP approved by the NOOA. Therefore, these are notvalid objections.

The CZMA, and the implementation framework for it found in theCode of Federal Regulations, clearly set out that challenges toconsistency determinations submitted by federal agencies shallbe made by the state agency enforcing the CMP locally. Thefederal agency, in our case the Navy, has to answer only to thePRPB's concerns and thereon, conduct its activities in a manneras consistent as possible with the CMP.


For all these reasons, we find that Plaintiff is not likely tosucceed on the merits of his claim of violations of the CZMA bythe Navy, neither are they likely to succeed on the merits ofhis claim for Defendant's failure to conform their actions withthe vote of the people of Vieques. The second requirement forissuance of a preliminary injunction is that we find acognizable threat of irreparable harm. As we have suggestedabove, we do not find such threat, either to Plaintiffsinterests in not being harm by alleged environmental damage toresult from the Navy's action much less to Plaintiffsconstitutional rights. We also find that the third factor, thebalance of relevant impositions, unquestionably weighs againstgranting injunctive relief. As has been suggested above, we findthat the threat of irreparable harm with regards to the allegedconstitutional violations is non-existent, and moreover, thethreat of environmental harm that the residents of Vieques wouldallegedly suffer is slim so that the potential hardship to thePlaintiffs if no injunction issues is minimal compared with thehardship to the Navy and its participation in this nation'srecently escalating crusade against terrorism.

As suggested by Defendants, the Navy, now more than ever, hasa duty to train its forces to be ready for conducting warfare atsea. See 10 U.S.C. § 5062. In achieving this through itspractices in Vieques, the Navy has complied to the maximumextent practicable with Puerto Rico's CMP. (See Mot. toDismiss, Ex. XII). Requiring the Navy to further constrain itspractices in Vieques has the potential of interfering with itsduty to train its forces under the United States Code. (SeeMot. to Dismiss Ex. VIII). On the other hand, Plaintiff providesno factual or legal basis for the injuries he claims he willsustain as a consequence of the Navy's failure to comply withCZMA's requirements. Finally, we find that if this Court'sdecision will have any effect in the public interest, it willindisputably be a beneficialone. In his complaint, Plaintiff threatens to call for an upriseof civil disobedience among the people of Vieques if this Courtallows the Navy to commence the exercises without complying withthe CZMA. (See Compl. ¶ 32). The public interest willhopefully benefit by recognizing, even if reluctantly, thereality of the current situation in Vieques. The Navy isobligated and has a statutory duty to train its forces andprepare for conducting warfare at sea, while also abiding by thelaws of the United States as well as those of the Commonwealthof Puerto Rico.


We find that the remaining Plaintiff in this case has notfulfilled the requirements for grant of a preliminary orpermanent injunction. Defendants have also shown that this Courtlacks subject matter jurisdiction to hear this case and thateven assuming the Court had jurisdiction, the Plaintiff lacksstanding. Finally, the Court finds the Navy has in fact compliedwith the CZMA, and as such, Plaintiff has failed to state aclaim for which relief can be granted. For all the reasonsstated above, the request for equitable relief is DENIED andDefendants' Motion to Dismiss is GRANTED.


1. The full title of Law 34 in Spanish is "Ley para ordenaruna consulta electoral en Vieques."

2. We note that nowhere in the record is it suggested thatthe PRPB's Objectives and Public Policies are part of the"enforceable policies of approved State management programs"with which the federal activities must be consistent under theCZMA. (See 16 U.S.C. § 1456(c)(1)(A)). See also SectionVI.E. below.

3. Apparently the PRPB did not consider the applicationsubmitted until November 5, 2001, because they claim it wasimproperly submitted in October 2001 and they had to ask forresubmission. (See Mot. to Dismiss Ex. VII).

4. As stated in this Court's Opinion and Order dated March27, 2002, to satisfy the general standing requirements aplaintiff must show that: (1) he has suffered an `injury infact' that is (a) concrete and particularized and (b) actual orimminent, not conjectural or hypothetical; (2) the injury isfairly traceable to the challenged action of the defendant; and(3) it is likely, as opposed to merely speculative, that theinjury will be redressed by a favorable decision. Friends ofthe Earth, 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610(2000) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). We find thatbecause there are more specific standing requirements under theAPA, which is the only avenue Plaintiff could have used to bringthis lawsuit against Defendants, there is no need to make thestanding inquiry under these general requirements.

5. Since Plaintiff Serrano-López brings this suit on hisbehalf and on behalf of the people of Vieques, the enumeratedclaimed injuries are set forth in the plural.

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