Montijo-Reyes v. United States

United States Court of Appeals
For the First Circuit
____________________
No. 05-1353

CLARA MONTIJO-REYES; JORGE PIMENTEL-MILANES;
ROHALDO VELAZQUEZ-GALARZA; ILUMINADA SERRANO-REYES;
ANA AVILES-SANTIAGO; EMMA RUIZ-LLANEZA;
XAVIER I. GONZALES; IRMA JIMENEZ; ESTEBAN MALTES,

Plaintiffs, Appellants,

v.

UNITED STATES OF AMERICA,

Defendant, Appellee.

__________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, U.S. Senior District Judge]

________________________________

Before

Selya and Lynch, Circuit Judges,
Restani*, Judge.
__________________________________

Miguel Sarriera-Roman for appellants.
Isabel Muñoz-Acosta, United States Attorney, with whom
Miguel A. Fernandez, Assistant United States Attorney, and H.S.
Garcia, Assistant United States Attorney, were on brief, for
appellee.

January 24, 2006

*
The Honorable Jane A. Restani, Chief Judge of the United
States Court of International Trade, sitting by designation.
 RESTANI, Judge. Plaintiffs-Appellants, owners of

properties located near La Marginal Beach in Puerto Rico, bring

this action pursuant to the Federal Tort Claims Act ("FTCA") for

damages to their homes resulting from the disposal of dredged

material on La Marginal Beach under the direction of the U.S. Corps

of Engineers ("Corps"). Plaintiffs appeal the district court's

grant of summary judgment in favor of the United States holding

that (1) the Corps' disposal activity is protected by the

discretionary function exception to the FTCA, and (2) there is no

causal connection between the violation of a specific requirement

and the injuries caused by the discharge of dredged material. We

agree with the district court that there is no jurisdiction for it

to entertain this suit under the FTCA, and we affirm its judgment.

BACKGROUND1

By public notice dated January 20, 1999, the Corps

proposed emergency maintenance dredging involving approximately

60,000 to 80,000 cubic yards of shoal material from the federally

authorized navigation channel in Arecibo Harbor. For disposal of

the dredged material, the Corps proposed placement upland on Port

1
This case shares much of its factual background with a case
decided by the United States District Court for the District of
Puerto Rico, Surf & Environment Conservation Coalition v. United
States, 322 F. Supp. 2d 126 (D.P.R. 2004), in which the district
court determined that the Corps violated numerous provisions of the
Clean Water Act ("CWA") and Puerto Rico's Water Quality Standards
Regulations ("WQSR") by discharging dredged material from Arecibo
Harbor into open waters.

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Authority property, with nearshore placement as the next

alternative. By letter dated March 1, 1999, the Puerto Rico

Environmental Quality Board ("EQB") required the Corps to submit

additional dredging project documentation and to obtain a water

quality certificate.

In response the Corps submitted an Environmental

Assessment, which increased the estimated cubic yards of dredged to

150,000. The Assessment explained that upland disposal was

discarded because it was a more costly alternative. Instead, the

Corps concluded that

the material to be removed is considered suitable for
downdrift beach and shore nourishment. Erosion, partly
related to sea level rise, has been an ongoing problem
along the Arecibo coast for many years . . . Therefore,
it is appropriate and beneficial to dispose of the dredge
material back into the natural littoral drift of the
region.

By letter dated July 27, 1999, the Corps requested a

waiver of water quality certificate from the EQB for the nearshore

disposal of dredged material from Arecibo Harbor. The EQB granted

an exemption to the water quality certificate on August 6, 1999,

for deposit of the dredged material "in the Arecibo river banks, in

order to help combat the erosion problems that exist in the beaches

along the Arecibo coast." An environmental survey of the nearshore

disposal site revealed that the site consisted of hardbottom

habitats of invertebrates, fish, and marine reptiles, so the Corps

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revised its plan to beach only disposal.2

Nonetheless, on June 19, 2000, the Corps began disposal

in the open waters of the United States, which had never been

suggested as an alternative. Soon thereafter, disposal was halted

because the United States Fish and Wildlife Service ("USFWS")

discovered that the dredged material was being deposited on a coral

hard-ground community.3 The Corps proposed a new disposal method

along the shoreline instead of the near-shore disposal site to

minimize the impact to hardground habitats and potential marine

life. By the July 2001 project completion date, almost all of the

dredged material had been placed directly on La Marginal Beach, in

front of Paseo Victor Rojas and across from Plaintiffs' properties.

2
In Surf, the court found that by letter dated February 18,
2000, the Corps sought to "return[] to the plan originally
described in the public notice of early 1999 which entailed
disposal of dredge material via a pipeline to an existing beach and
beach placement of material." Surf, 322 F. Supp. 2d at 134. While
the court apparently concluded that La Marginal Beach was the new
proposed beach disposal site, see id., the court did not find that
the Corps sought an exemption based on that disposal site. In
fact, the court described the Corps' August 6, 1999 EQB exemption
for the nearshore disposal site as the "one and only resolution and
notice from the EQB . . . related to the exemption request for
water quality certification for the dredging of the Arecibo
Harbor." Id. at 137.
3
Richard Bonner, the Corps official in charge, declares that,
in response to the discovery of the hardbottom habitat, "[w]ork was
halted while the Corps consulted with the [USFWS] and National
Marine Fisheries Service, and obtained an exemption to the Water
Quality Certificate from the Environmental Quality Board for Puerto
Rico, allowing disposal of sand on the beach itself." Despite this
reference to an exemption pertaining to the dumping of sand on the
beach, no documentary evidence of such an exemption appears in the
record appendix.

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As a result, the beach height increased approximately fifteen feet

along the entire beach area and was leveled with Paseo Victor Rojas

to an estimated width of 1000 feet. The street was protected from

blowing sand by a stone concrete wall and silt fence.

On September 25, 2001, Plaintiffs filed a complaint

pursuant to the provisions of the FTCA, alleging damages resulting

from sand and dust carried from the Corps' disposal site. The

complaint alleged that the Corps discharged dredged materials in

violation of both the CWA and the WQSR because the Corps did not

receive a water quality certificate or an exemption from the EQB

for the specific disposal site as required by the WQSR.4

The government filed a motion for summary judgment on the

grounds that Plaintiffs' FTCA claims are precluded by the

discretionary function exception to the FTCA and are not based on

viable tort claims under Puerto Rico law. While the court agreed

with Plaintiffs that "local law establishes a permit or waiver

requirement from the Puerto Rico EQB for depositing [dredged

4
In their amended complaint, Plaintiffs describe the Corps'
disposal project as involving, "the discharge of dredge materials
in waters of the United States." Plaintiffs allege that the Corps
"disposed 196,000 cubic yards of dredged material . . . in an area
close to the shore." While such language could refer to either
beach or open water disposal in describing the cause of their
damages, Plaintiffs state that "[t]he project was finish[ed] on or
about July 6, 2000 and the dredged material was left "exposed to
the strong winds that regularly occur in the area." Moreover,
Plaintiffs state that the damages have ceased because "the waves
and wind have removed almost all the sand and fine sediment from
the place where the material was disposed." Thus, the complaint
seems to claim damages from beach placement alone.

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material] along the Arecibo coastline," it did not agree "that this

condition totally abrogates the discretion envisioned in §

2680(a)." Montijo-Reyes v. United States, No. 01-2282, slip. op.

at 10 (D.P.R. Dec. 13, 2004). The court concluded that the

discretionary function exception applied because "the permit or

waiver requirement was but one of many factors that the Corps had

to take into its calculus in making its site selection." Id.

Moreover, the court concluded that Plaintiffs did not show "the

necessary causal connection between the Corps' failure to comply

with the [CWA] and the losses complained of in the complaint." Id.

at 11.

DISCUSSION

I. Clean Water Act and Puerto Rico Water Quality
Requirements

The CWA makes it unlawful to discharge pollutants into

navigable waters outside of the CWA's permit requirements. See 33

U.S.C. § 1311(a) (2000). In order to receive a CWA permit, an

applicant must provide a certification "from the State in which the

discharge originates or will originate." Id. § 1341(a)(1); see 33

C.F.R. § 336.1(a)(1), (8) (the CWA requires the Corps to seek state

water quality certification for discharges of dredged or fill

material into waters of the United States).5 Additional provisions

5
The Commonwealth of Puerto Rico is treated as a state for
purposes of the CWA. See Caribbean Petroleum Corp. v. EPA, 28 F.3d
232, 233 (1st Cir. 1994).

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of the CWA make it clear that "Congress waived the federal

government's sovereign immunity with respect to state regulation of

dredging and water pollution." Friends of the Earth v. United

States Navy, 841 F.2d 927, 934 (9th Cir. 1988). Section 1344(t)

provides:

Nothing in this section shall preclude . . . the
right of any State . . . agency to control the
discharge of dredged or fill material in . . . the
navigable waters within the jurisdiction of such
State, including any activity of any Federal
agency, and each such agency shall comply with such
State or interstate requirements both substantive
and procedural to control the discharge of dredged
or fill material to the same extent that any person
is subject to such requirements.

33 U.S.C. § 1344(t). Section 1323 provides:

Each [federal agency] . . . shall . . . comply
with, all Federal, State, interstate, and local
requirements, administrative authority, and process
and sanctions respecting the control and abatement
of water pollution in the same manner, and to the
same extent as any nongovernmental agency . . .
[This] shall apply (A) to any requirement whether
substantive or procedural (including . . . any
requirement respecting permits and any other
requirement, whatsoever).

Id. § 1323(a).

The WQSR states that it was promulgated by the EQB in

accordance with the Environmental Policy Act, in order "to

preserve, maintain and enhance the quality of the waters of Puerto

Rico in such manner that they be compatible with the social and

economic needs of the Commonwealth of Puerto Rico." WQSR Decl. of

Goals & Purposes. To meet this goal, the WQSR requires a water

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quality certificate prior to the discharge of pollutants into

Puerto Rico's waters, WQSR Art. 6.1.2, 6.11, unless the EQB grants

an exemption under WQSR Art. 6.1.3.

In the instant case, we do not determine whether the

Corps violated the CWA and WQSR by discharging dredged material

from Arecibo Harbor on La Marginal Beach. We do not need to decide

any issue of the scope of the CWA waiver of sovereign immunity, or

whether that waiver extends to actions under the FTCA. Neither do

we need to decide whether state law may provide a mandatory duty

such as to defeat the discretionary function exception. Instead,

we decide the case on the independent ground that there is an

insufficient causal link between the alleged failure to comply with

the Puerto Rico water quality regulations and the alleged harm.

II. Federal Tort Claims Act

The FTCA provides a limited waiver of the United States

government's sovereign immunity "for injury or loss of property

. . . caused by the negligent or wrongful act or omission of any

employee of the Government . . . under circumstances where the

United States, if a private person, would be liable to the claimant

in accordance with the law of the place where the act or omission

occurred." 28 U.S.C. § 1346(b) (2000). This waiver of sovereign

immunity itself has exceptions, which "define the limits of federal

subject matter jurisdiction in this area." Hydrogen Tech. Corp. v.

United States, 831 F.2d 1155, 1161 (1st Cir. 1987). We review de

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novo a district court's dismissal for lack of subject matter

jurisdiction under the FTCA's discretionary function exception.

See Shansky v. United States, 164 F.3d 688, 690 (1st Cir. 1999).

The discretionary function exception immunizes the

federal government from FTCA claims "based upon the exercise or

performance or the failure to exercise or perform a discretionary

function or duty on the part of a federal agency or an employee of

the Government, whether or not the discretion involved be abused."

28 U.S.C. § 2680(a). The basis for the discretionary function

exception was Congress' desire to "prevent judicial

'second-guessing' of legislative and administrative decisions

grounded in social, economic, and political policy through the

medium of an action in tort." United States v. S.A. Empresa De

Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814

(1984).

In considering the application of the exception, first,

the court must identify the conduct at issue. Next, the court asks

two interrelated questions: "(1) Is the conduct itself

discretionary? (2) If so, does the exercise of discretion involve

(or is it susceptible to) policy-related judgments?" Muniz-Rivera

v. United States, 326 F.3d 8, 15 (1st Cir. 2003); see Attallah v.

United States, 955 F.2d 776, 783 (1st Cir. 1992) ("even when the

challenged action is the product of an employee's permissible use

of judgment, a suit is barred only if that judgment is of the kind

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that the discretionary function exception was designed to shield").

If the conduct is both discretionary and policy-related, the

discretionary function exception bars subject matter jurisdiction.

Plaintiffs bring this FTCA action alleging that the Corps

negligently discharged dredged material on La Marginal Beach, which

proximately caused damages to their homes.6 Plaintiffs do not

dispute that the Corps' selection and maintenance of the disposal

site at La Marginal Beach are susceptible to policy related

judgments.7 Rather, in order to overcome the application of the

FTCA's discretionary function exception, Plaintiffs argue that the

discharge of dredged material on La Marginal Beach was

nondiscretionary because the CWA mandated a course of conduct for

the Corps to follow before disposing of dredged material.

6
Plaintiffs contend that the government conduct giving rise to
the claim in question is "the discharge of dredged material in
navigable waters" without necessary water quality permits. This
broad assertion of conduct may cause some confusion because it
potentially covers two distinct actions: (1) open waters disposal,
and (2) direct disposal on La Marginal Beach. Clearly, each
discharge was a distinct occurrence, with distinct consequences and
regulatory requirements. As indicated above, see supra n.4., the
damages alleged in the complaint appear to derive from the direct
beach placement alone.
7
"[T]he law presumes that the exercise of official discretion
implicates policy judgments," so Plaintiffs "bear[] the burden . .
. of demonstrating that the [Corps'] conduct was not at least
susceptible to policy related judgments." Wood v. United States,
290 F.3d 29, 37 (1st Cir. 2002). Here, Plaintiffs do not attempt
to make this showing. To the contrary, the record shows that the
Arecibo Harbor dredging project involved the Corps' consideration
of four distinct disposal choices, each of which required decisions
involving political, economic, and public policy considerations.

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 [T]he discretionary function exception will not apply
when a federal statute, regulation, or policy
specifically prescribes a course of action for an
employee to follow. In this event, the employee has no
rightful option but to adhere to the directive. And if
the employee's conduct cannot appropriately be the
product of judgment or choice, then there is no
discretion in the conduct for the discretionary exception
to protect.

Berkovitz v. United States, 486 U.S. 531, 536 (1988).

Specifically, Plaintiffs argue that the Corps violated

the CWA's prescription to comply with all state water quality

requirements. Plaintiffs assert that under Puerto Rico law, the

Corps was required to obtain a water quality certificate or waiver

from the EQB prior to disposing dredged material into Puerto Rico's

waters. In this case, on August 6, 1999, the EQB granted the

Corps' exemption request for disposal of dredged material in the

Arecibo river banks. Thereafter, the Corps disposed of dredged

material at two sites not approved in the exemption request.

Plaintiffs contend that when the Corps discharged dredged material

outside the scope of its EQB waiver, it violated a nondiscretionary

duty imposed by the CWA to comply with all Puerto Rico water

quality requirements.8

8
This argument involves an issue of first impression in this
circuit as to whether a state regulation can prescribe the conduct
of a federal agency to defeat the discretionary function exception.
While this line of argument has some precedent, see, e.g., Lopez v.
United States, 376 F.3d 1055, 1058 (10th Cir. 2004)(stating that a
United States Postal Service regulation requiring mailboxes to be
"placed to conform to state laws" is a nondiscretionary mandate for
the United States Postal Service to relocate mailboxes that are
(continued...)

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 While the CWA, in combination with the WQSR, specifically

requires that the Corps obtain a certificate or waiver prior to

discharging dredged material in navigable waters, Plaintiffs do not

allege that the Corps' failure to obtain a certificate or waiver

caused the damages to their homes. Reviewing the complaint,

Plaintiffs allege that with knowledge of the constant wind at La

Marginal Beach, the Corps discharged fine sand without adequate

protection. Thus, the harm to Plaintiffs' homes was allegedly

caused by either negligent disposal site selection or negligent

maintenance of the disposal site. We hold that Plaintiffs' failure

to obtain a water quality certificate or exemption did not

proximately cause this harm.

First, Plaintiffs do not allege that the EQB would have

rejected an exemption request by the Corps for disposal on La

Marginal Beach. Therefore, the Corps' failure to follow the CWA's

mandate to comply with state law does not even pass the but for

causation test. Second, neither the CWA nor the WQSR provide any

prescription aimed at preventing private property damage arising

from negligent site selection or site maintenance. See Shansky,

164 F.3d at 691 (holding that Park Service Operating Manual was too

general because it did not "specifically prescribe that any

particular safety measure be employed at any particular place or in

8
(...continued)
placed in violation of state law), we do not reach this issue here.

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any particular facility").

As to the site selection, the Corps made a discretionary

decision to select La Marginal Beach. If the Corps had requested

an EQB exemption, the WQSR would not have required the EQB to

reject that site selection. As to the Corps' maintenance of the

beach disposal site, the Corps made discretionary decisions to

build the beach to a specific height and to protect nearby private

property by installing a concrete wall and a silt fence. The WQSR

does not prescribe any specific measures for maintaining a beach

disposal site, or authorize the EQB to reject an exemption

application based on inadequate site maintenance. Thus, whether or

not the Corps obtained a water quality certificate or exemption,

the negligent conduct that allegedly caused Plaintiffs' damages was

not forbidden.

The legislative intent behind the CWA and WQSR supports

this limited interpretation. The stated purpose of the CWA is "to

restore and maintain the chemical, physical, and biological

integrity of the Nation's waters." 33 U.S.C. § 1251(a). Section

401 shows that "Congress intended to give the states veto power

over the grant of federal permit authority for activities

potentially affecting a state's water quality." United States v.

Marathon Dev. Corp., 867 F.2d 96, 99-100 (1st Cir. 1989). The

WQSR's stated purpose is "to preserve, maintain and enhance the

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quality of the waters of Puerto Rico."9 WQSR Decl. of Goals &

Purposes. There is nothing in the CWA or WQSR that indicates a

legislative intent to protect private homes from the indirect

effects of dredged material disposal. Accordingly, we hold that

the CWA and WQSR do not overcome the discretionary function

exemption where, as here, Plaintiffs fail to allege a causal

connection between the Corps' failure to comply with the CWA and

WQSR and the purported damages for which they seek recovery under

the FTCA.

CONCLUSION

For the foregoing reasons, we conclude that the

discretionary function exception of the FTCA applies to bar subject

matter jurisdiction to consider the Plaintiffs' action for damages

caused by the Corps' disposal of dredged material at La Marginal

Beach. To the extent that Plaintiffs assert that the CWA

specifically prescribes the Corps' course of conduct, Plaintiffs do

not allege a causal connection between the violation and their

asserted damages. We AFFIRM.

9
Further, the WQSR's enumerated purposes are to: "(1) designate
the uses for which the quality of the waters of Puerto Rico shall
be maintained and protected, (2) prescribe the water quality
standards required to sustain the designated uses, (3) identify
other rules and regulations applicable to sources of pollution that
may affect the quality of waters subject to this Regulation and (4)
prescribe additional measures necessary for implementing, achieving
and maintaining the prescribed water quality." Marathon Dev.
Corp., 867 F.2d at 99-100.

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