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First Circuit Dismisses Lawsuit by Plaintiffs Over Pollution from Navy Training Exercises

Deferring to the federal government’s discretion in matters of military policy, the U.S. Court of Appeals for the First Circuit dismissed tort claims brought by several thousand residents of the Puerto Rican island of Vieques who claimed they were harmed by hazardous and toxic waste emitted by the U.S. Navy during the several decades that it conducted training exercises on the island. Sanchez v. United States, No. 10-1648 (1st Cir. Feb. 14, 2012), available at www.bdlaw.com/assets/attachments/Sanchez.pdf. The First Circuit concluded that the government’s decision not to warn residents about pollution relating to the Navy’s activities was driven by "policy-related judgments," and was therefore covered by the discretionary function exception to the Federal Tort Claims Act’s ("FTCA") waiver of sovereign immunity. Sanchez, slip op. at 37-38.  

The Navy’s operations on the island included live-munitions training (including with depleted uranium bullets) and other combat-simulation exercises as well as the incineration and detonation of unused ordinance. Id. at 6-7. Pursuant to the FTCA, the 7,125 named plaintiffs asserted various causes of action under Puerto Rico law against the United States. Among the claims was that the government negligently failed to warn the plaintiffs of harmful pollution related to years of live-fire training exercises and the disposal of unused ordnance about the pollution. Id. at 7-8. The plaintiffs also claimed that the Navy’s actions violated the Clean Water Act ("CWA"), various federal permits, and internal regulations and policies. Id. at 7.

The court dismissed the lawsuit for lack of jurisdiction on two principal grounds. With respect to plaintiffs’ tort claims, the court found that they were barred by the "discretionary function exception" to the FTCA, "which precludes FTCA actions against government conduct which is both within the discretion of the relevant government party and susceptible to policy-related judgments." Id. at 4. The court held that the Navy’s challenged conduct on Vieques constituted an exercise of its discretion, and noted the great deference courts must give to the military in weighing competing interests between "secrecy and safety, national security and public health." Id. at 32, 38. As to the CWA-related claims, the court found that "Congress did not intend that the CWA authorize civil tort actions against the federal government for damages." Id. at 18.

The court nevertheless noted the "serious health concerns" raised by the plaintiffs’ claims, and took the unusual step of directing the court clerk to send a copy of its opinion to the leadership of the House of Representative and the Senate. Id. at 39. In addition, Circuit Judge Juan R. Torruella, a Puerto Rican native, wrote a stinging dissent in which he faulted the majority’s reasoning and placed it in the context of the "turbulent history" of the U.S. government’s relationship with Vieques and a neighboring island, Culebra. Id. at 40.

On March 29, the plaintiffs filed a petition for rehearing en banc; the court has not yet ruled on the petition.