Puerto Rico's Suit to Enforce the Noise Control Act Is Dismissed

JANUARY 2, 2002

A federal judge has dismissed a lawsuit filed by Puerto Rico that sought to halt U.S. Navy training exercises on the island of Vieques, citing a lack of jurisdiction in an order released on Wednesday.

Puerto Rico sued the Navy in April to force compliance with a new noise-limit law in the U.S. Caribbean territory and the Federal Noise Control Act, which gives states authority to control noise levels in their jurisdictions.

U.S. District Judge Gladys Kessler threw out Puerto Rico's legal action, saying the territory did not have the right to file a federal lawsuit to force compliance with a local noise law.

"While the political and policy issues raised in this case are complex and involve the clash of many important interests, the legal issue, in contrast, is simple and straightforward," Kessler wrote in the decision, handed down on New Year's Eve but made public on Wednesday.

"The Noise Control Act does not provide the Commonwealth of Puerto Rico with a private right of action to sue in federal district court for the Navy's failure to comply with the peak sound pressure limits established by the Noise Prohibition Act," Kessler wrote.

Calling the decision "erroneous," Puerto Rico Justice Secretary Anabelle Rodriguez said the Caribbean island's government would appeal the decision.

The United States has used Vieques, a 33,000-acre island off eastern Puerto Rico, as a bombing range for more than 50 years, but it has faced increasingly vociferous protests by Puerto Ricans and environmentalists.

Puerto Rico Gov. Sila Calderon filed suit in federal court in Washington after signing the Noise Prohibition Act into law in April 2001. The measure was intended to block Navy ship-to-shore shelling by setting a maximum noise level of 190 decibels.

Calderon said she was acting to protect the health and safety of island residents. She had earlier issued a study saying the bombing put the island's children at risk of developing coronary disease.

The U.S. Navy has been under heavy pressure to abandon the site since the April 1999 death of a civilian security guard in a botched bombing run at the Vieques training ground. The military says island is critical to U.S. battle readiness and President Bush has said the Navy needs to continue using the range until 2003 while it looks for an alternate site.

A Jan. 28 referendum was planned to allow Vieques residents to decide whether they want the Navy to stop training by May 2003 or to continue indefinitely in return for a $50 million economic aid package.

The judge noted that the defendants -- Defense Secretary Donald Rumsfeld, Navy Secretary Gordon England and Chief of Naval Operations Adm. Vernon Clark -- did not dispute that Navy ship-to-shore shelling practices off Vieques exceeded the noise limit.

But she said "it is the federal executive branch, and not the states, that is charged with enforcing the federal duty to comply."

Rodriguez countered that the federal Noise Control Act, which requires that federal agencies comply with local noise regulations, gives states an "implied" right to force compliance through civil lawsuits. "We do not agree with the judge's interpretation that the federal Noise Control Act does not provide for a cause of action to sue in federal district court when federal authorities violate local noise laws," Rodriguez said.

So far, the federal Agency for Toxic Substances and Disease Registry, which is undertaking a series of studies on the island, has found no link between the bombing and health problems among Vieques residents, which include a level of cancer above that of mainland Puerto Rico.

Source: Reuters