Plaintiff's Post-hearing reply brief

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Winnemucca Indian Colony et al. v U.S. et al, Plaintiff’s Post Hearing Brief

Robert R. Hager, SBN 1482HAGER & HEARNE910 Parr Blvd., #8

E-filed on August 7, 2007

Reno, NV 89512Tel: 775.329.5800Fax: 775.329.5819email: parrlawoffices@sbcglobal.net Attorney for Plaintiffs

UNITED STATES DISTRICT COURTDISTRICT OF NEVADA

WINNEMUCCA INDIAN COLONY,)THOMAS WASSON, JUDY ROJO,)SHARON WASSON, ELVERINE)CASTRO, PETER LITSTER, )STEPHEN ERICKSON, VIRGINIA)SANCHEZ, JACK MALOTTE, KIM)TOWNSEND, ARVILLA )MASCARENAS, PATRICIA)Case No: 2:06-cv-00497-LDG-PAL AXELROD, and TIMBISHA)SHOSHONE TRIBE)Plaintiffs,)

) v.))

PLAINTIFFS’ POST HEARING

)

REPLY BRIEF

UNITED STATES OF AMERICA, )DONALD RUMSFELD, Secretary)of the United States Department )of Defense, LINTON BROOKS,)Director of the National Nuclear)Security Administration, JAMES)TEGNELIA, Director of the Defense)Threat Reduction Agency, ))Defendants.) __________________________)

I.The Plaintiffs know that something hashappened since the first announcementof Divine Strake.

The agency argues that the Plaintiffs don’t know this case is over. Yes, thePlaintiffs know this case is over because this Court stopped the detonation of Divine Strake based upon the Plaintiffs filing a complaint and motions.

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Winnemucca Indian Colony et al. v U.S. et al, Plaintiff’s Post Hearing Brief

Notwithstanding the agency’s vague explanations of why it withdrew the decisionto detonate Divine Strake, a quick review of the timing tells the entire story:

Time between first Plaintiffs’ filing and cancellation

:

13 daysTime between second Plaintiffs’ filing and cancellation

:

4 daysTime between third Plaintiffs’ filing and cancellation

:

16 daysII.In order for this Court to have gone about thereview of the agency decision in an orderly fashion,the agency had to have obeyed the law when making the decision.

The agency argues that the jurisdiction can only be achieved when theproper procedural steps of NEPA are followed. In order for that to occur, theagency itself had to first obey the law and regulations of NEPA, i.e., notice of thedecision, make the environmental record available for public review andcomment, prepare a report with the public comment incorporated and respondedto, and finally a final report.Instead the agency took the “bull in a china shop” approach and justannounced the detonation and announced that there was no health risk. Withoutever presenting to this Court substantial justification for any of the final agency actions that announced the detonation, the detonations were scheduled, notplanned, scheduled for blast.The issue is how this Court stops this Beltway agency defiance of the law from injuring the citizens of Nevada and Utah in the future. There were

final

agency actions to detonate Divine Strake. Facts granted, the final agency actions were a moving target designed by the agency to escape the requiredenvironmental review. The record of abysmal agency action in this matterrequires that the Court grant injunctive and declaratory relief under the

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Westlands Water Dist. V. Firebaugh Canal,

10 F.3d 667, 673 (9

th

Cir. 1993) cited withauthority as the basis for the equitable relief: “In addition, the Court may not refuse to issue an injunction when it is necessary to preserve precisely that which (a) statute seeks to preserve. (In this case NEPA).”

Goldammer v. Veneman,

2007 U.S. Dist. LEXIS (U.S.D.C. Ore. June 14, 2007) Also see,

NationalWildlife Federation v. Espy,

45 F.3d 1337 (9

th

Cir. 1995).

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Winnemucca Indian Colony et al. v U.S. et al, Plaintiff’s Post Hearing Brief

Administrative Procedure Act which is controlled by principles of equity.

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An injunction entered by this Court will make permanent the requirementthat the agency provide general public notice and disclosure of any future effortsto conduct blasts at the NTS. An injunction will remind the agency that realpeople live in Nevada and Utah and they have the right to notice when the agency wants to consider detonating another device that will spew radioactive soils intothe atmosphere for them to breathe.

III.The agency presented no support forits environmental documentation whatsoever.

The Plaintiffs spent hours and days preparing reports with experttestimony to demonstrate the agency’s rash decision-making process. Now, theagency refers to Plaintiffs’ experts as “alleged” experts when the agency made notone objection to the credentials of Plaintiffs’ expert witnesses at hearing.This Court did not hear from any contractor who prepared theenvironmental documentation. The only evidence supporting the environmentaldocumentation that has been presented is by the United States Department of Justice now testifying in its responsive brief which is completely inappropriateand should be stricken. (Agency’s Brief, page 9).

IV.Conclusion

The Plaintiffs submit the agency’s responsive brief as the best example of the skewed agency thinking that gave rise to the Divine Strake debacle. ThePlaintiffs pray that this Court will enter an injunction and declaration that

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