Case 67

Puerto Rico v. Muskie, 507 F. Supp. 1035 (D.P.R.), injunction vacated sub nom. Marquez-Colon v. Reagan, 668 F.2d 611 (1st Cir. 1981).

The Commonwealth of Puerto Rico and various citizens challenged the Federal Government's decision to transfer Haitian and Cuban refugees from Florida to an abandoned Department of Defense facility in Puerto Rico known as Fort Allen. The Government had done nothing to comply with the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), Executive Order No. 11593, or the regulations of the Advisory Council on Historic Preservation implementing Section 106 of NHPA prior to beginning construction on the camp to ready it for refugee occupancy, although it had commissioned an archeological survey of the area after construction began.

The district court found that construction of the camp was a major Federal action requiring an environmental impact statement (EIS) under NEPA and preliminarily enjoined the project. 507 F. Supp. at 1026. A few days later, the Refugee Education Assistance Act, Public Law No. 96-422, and Executive Order No. 12246 were signed into law, exempting the activity from the requirement that an EIS be prepared. The court lifted the preliminary injunction's requirement that an EIS be prepared, but continued the injunction on other grounds, including violation of NHPA. Id. at 1056.

The court found that Section 106 of NHPA and the Council's regulations required the Federal Government to identify historic properties before beginning construction. The archeological survey done after construction began did not exonerate the Government from this duty. Moreover, the Federal Government did not consult with the State Historic Preservation Officer or conduct a literature search to determine what historic properties were known to be within the area.

The court found that "these requirements go to the heart of NHPA‹for without compliance, an archeological survey may fail to uncover existing cultural resources for the simple reason that the archeologist may not know what he/she is looking for." Id. at 1061.

The Federal Government and the Commonwealth of Puerto Rico, one of the plaintiffs, then entered into a consent agreement. Under this agreement, the Commonwealth accepted the Federal Government's archeological report, updated by a literature search, as substantial compliance with NHPA. The Commonwealth also indicated that it knew of no historic sites listed in or eligible for the National Register of Historic Places that would be harmed by the planned use of Fort Allen.

On appeal, the First Circuit found that injunctive relief could not cure any harm that might have resulted from the completed construction. Furthermore, in the absence of evidence that the fort's operation would threaten any historic sites, injunction barring the use of the fort because of past violations of Federal law would be inappropriate. 668 F.2d at 614. The court vacated the injunction on the understanding that the Federal Government would comply with all the conditions in the consent decree. Id. at 616.

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