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Court Ruling Divine Strake February 2008

Court Ruling Divine Strake February 2008

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Published by: scribd3 on Mar 04, 2008
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et al 
et al 
.,Defendants.Case No. 2:06-cv-00497-LDG (PAL)
The plaintiffs brought this action to challenge the Defense Threat Reduction Agency’s decision to conduct the “Divine Strake” test at the Nevada Test Site, a decisionwhich the defendants have since withdrawn. In response to that withdrawal, the plaintiffsmove for attorney’s fees as the prevailing party (#52), which motion the defendants oppose(#56). In connection with their motion, the plaintiffs filed a memorandum and exhibits(#62), and indicated an intent to present evidence during a hearing held before this court.The defendants moved to strike the memorandum and exhibits, and to preclude thepresentation of expert testimony at the hearing (#63), which motion the plaintiffs’ opposed.In addition, the defendants move to dismiss the second amended complaint (#59),to which the plaintiffs have responded (#60).
Case 2:06-cv-00497-LDG-PAL Document 72 Filed 02/22/2008 Page 1 of 5
12345678910111213141516171819202122232425262Motion to DismissThe defendants move for, and the plaintiffs do not oppose the dismissal of, the firstnine causes of action, which were brought only by the Winnemucca Indian Colony. Accordingly, those claims are dismissed.The defendants also move to dismiss the plaintiffs’ tenth cause of action, which theplaintiffs brought as persons residing “downwind” of the Nevada Test Site. In that cause of action, the plaintiffs sought to enjoin the defendants from conducting the Divine Strake testuntil after the defendants first completed an Environmental Impact Statement.Subsequent to the filing of the Second Amended Complaint, the defendants havewithdrawn their decision to conduct Divine Strake, and have stated that they will notconduct the Divine Strake experiment. As such, they argue that dismissal is appropriatebecause (a) there is no longer any agency action upon which this court can exercise jurisdiction pursuant to the relevant waiver of sovereign immunity contained within the Administrative Procedures Act, 5 U.S.C. §701,
et seq
., (b) the plaintiffs are no longer subject to any alleged harm from the experiment, as it has been cancelled, and thus theynow lack standing, and (c) the matter has been rendered moot. At its core, the defendantsassert that this court lacks jurisdiction to require them to complete an Environmental ImpactStatement for an experiment that will not occur and, even if this court had such jurisdiction,there is no longer any controversy for the court to resolve or harm for the court to remedy.The essence of plaintiffs’ response, as stated in the introduction of their opposition,is that the court should (a) first permit the plaintiffs to present evidence of the “need for continuing judicial oversight of the Defendants’ dangerous plans to detonate highexplosives on the surface of the [Nevada Test Site],” and then (b) permit the plaintiffs toamend their complaint to conform to the evidence. This opposition best demonstrates thatthe matter is properly dismissed. The opposition does not rest upon the allegations of thecomplaint, but upon claims and allegations not contained within the Second Amended
Case 2:06-cv-00497-LDG-PAL Document 72 Filed 02/22/2008 Page 2 of 5
12345678910111213141516171819202122232425263Complaint. Further, as suggested by the plaintiffs, the relief they seek does not address anexisting decision to conduct an experiment at the Nevada Test Site, but seeks to governdecisions that the plaintiffs speculate will be made in the future. Accordingly, the court readily concludes that the motion to dismiss is appropriatelygranted. Further, to the extent that the plaintiffs have offered exhibits and testimony insupport of their request for “continuing judicial oversight” over unspecified surfacedetonations at the Nevada Test Site, the court will grant the defendants’ motion to strikeand exclude.Motion for Attorney’s Fees Although the court will dismiss this action, the court retains jurisdiction to determinewhether the plaintiffs are entitled to attorney’s fees pursuant to the Equal Access to Justice Act.Initially, the court must address the issue whether a “final order” had been enteredas to this litigation when the plaintiffs filed their motion for attorneys fees. In relevant part,the Equal Access to Justice Act provides that: A party seeking an award of fees and other expenses shall, within thirty daysof the final judgment in the action, submit to the court an application for feesand other expenses which shows that the party is a prevailing party and iseligible to receive an award under this subsection. . . .”28 U.S.C. §2412(d)(1)(B). As further defined by the EAJA, a “final judgment” is “a judgment that is final and not appealable, and includes an order of settlement.” 28 U.S.C.§2412(d)(1)(G).The plaintiffs fail, in their moving papers, to identify the “final judgment” entered bythis court in this litigation. Plaintiffs’ reply fails to clarify the issue. Plaintiffs suggest thatthe thirty-day filing period was triggered by the defendants’ declaration to the court thatthey had withdrawn their decision to conduct the test. Plaintiffs do not cite to any authority
Case 2:06-cv-00497-LDG-PAL Document 72 Filed 02/22/2008 Page 3 of 5

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