Case 2:06-cv-00497-LDG-PAL

Document 71

Filed 08/07/2007

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LAW OFFICE OF HAGER & HEARNE

Robert R. Hager, SBN 1482 HAGER & HEARNE 910 Parr Blvd., #8 Reno, NV 89512 Tel: 775.329.5800 Fax: 775.329.5819 email: parrlawoffices@sbcglobal.net Attorney for Plaintiffs

E-filed on August 7, 2007

UNITED STATES DISTRICT COURT DISTRICT 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 AXELROD, and TIMBISHA SHOSHONE TRIBE Plaintiffs,
v.

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) ) ) ) ) ) ) ) ) ) )
) ) ) )

Case No: 2:06-cv-00497-LDG-PAL

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. ) __________________________)

PLAINTIFFS’ POST HEARING REPLY BRIEF

I. The Plaintiffs know that something has happened since the first announcement of Divine Strake. The agency argues that the Plaintiffs don’t know this case is over. Yes, the Plaintiffs know this case is over because this Court stopped the detonation of Divine Strake based upon the Plaintiffs filing a complaint and motions.
Winnemucca Indian Colony et al. v U.S. et al, Plaintiff’s Post Hearing Brief

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Case 2:06-cv-00497-LDG-PAL

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Notwithstanding the agency’s vague explanations of why it withdrew the decision to detonate Divine Strake, a quick review of the timing tells the entire story: Time between first Plaintiffs’ filing and cancellation: 13 days

Time between second Plaintiffs’ filing and cancellation: 4 days Time between third Plaintiffs’ filing and cancellation: 16 days II. In order for this Court to have gone about the review 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 the proper procedural steps of NEPA are followed. In order for that to occur, the agency itself had to first obey the law and regulations of NEPA, i.e., notice of the decision, make the environmental record available for public review and comment, prepare a report with the public comment incorporated and responded to, and finally a final report. Instead the agency took the “bull in a china shop” approach and just announced the detonation and announced that there was no health risk. Without ever presenting to this Court substantial justification for any of the final agency actions that announced the detonation, the detonations were scheduled, not planned, 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 required environmental review. The record of abysmal agency action in this matter requires that the Court grant injunctive and declaratory relief under the

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

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Case 2:06-cv-00497-LDG-PAL

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Administrative Procedure Act which is controlled by principles of equity. 1 An injunction entered by this Court will make permanent the requirement that the agency provide general public notice and disclosure of any future efforts to conduct blasts at the NTS. An injunction will remind the agency that real people 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 into the atmosphere for them to breathe. III. The agency presented no support for its environmental documentation whatsoever. The Plaintiffs spent hours and days preparing reports with expert testimony to demonstrate the agency’s rash decision-making process. Now, the agency refers to Plaintiffs’ experts as “alleged” experts when the agency made not one objection to the credentials of Plaintiffs’ expert witnesses at hearing. This Court did not hear from any contractor who prepared the environmental documentation. The only evidence supporting the environmental documentation that has been presented is by the United States Department of Justice now testifying in its responsive brief which is completely inappropriate and 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. The Plaintiffs pray that this Court will enter an injunction and declaration that

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Westlands Water Dist. V. Firebaugh Canal, 10 F.3d 667, 673 (9th Cir. 1993) cited with authority 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, National Wildlife Federation v. Espy, 45 F.3d 1337 (9th Cir. 1995).
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Winnemucca Indian Colony et al. v U.S. et al, Plaintiff’s Post Hearing Brief

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Case 2:06-cv-00497-LDG-PAL

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protects the downwinders from any further threat from the Defense Threat Reduction Agency. Dated this 7th day of August, 2007.

/s/ Treva J. Hearne Robert R. Hager, SBN 1482 Treva J. Hearne, SBN 4450 HAGER & HEARNE 910 Parr Blvd., #8 Reno, NV 89512 Tel: 775.329.5800 Fax: 775.329.5819 email: parrlawoffices@sbcglobal.net Attorney for Plaintiffs

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Winnemucca Indian Colony et al. v U.S. et al, Plaintiff’s Notice of Agreement

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