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

Document 60-1

Filed 05/11/2007

Page 1 of 14

1 2 3 4 5 6 7 8 9 10 11
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 May 11, 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 TIMIBISHA SHOSHONE TRIBE, Plaintiffs, v. ) ) ) ) ) ) ) ) ) ) ) )
)

E-filed on January 29, 2007

12
910 PARR BLVD., #8 RENO, NV 89512 (775) 329-5800; FAX (775) 329-5819

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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. ) __________________________) I.

PLAINTIFFS’ RESPONSE TO MOTION TO DISMISS

Plaintiffs’ do not oppose dismissal of certain claims. Plaintiffs’ do not oppose the dismissal of the First through Ninth causes of action. The Plaintiffs’ non-opposition to the dismissal of those claims was stated by Plaintiffs’ lead counsel Hager to Defendants’ counsel Blanco and Culley, and confirmed thereafter during the last status conference herein on April 11, 2007.
Winnemucca Indian Colony et al. v U.S. et al,2:06cv00497LDG-PAL, Response to Motion to Dismiss

-1-

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

Document 60-1

Filed 05/11/2007

Page 2 of 14

1 2 3 4 5 6 7 8 9 10 11
LAW OFFICE OF HAGER & HEARNE

Plaintiffs oppose the dismissal of the Tenth Cause of Action in the Second Amended Complaint (“the downwinders’ injunction cause of action”), which seeks injunctive relief to prevent the surface detonation of high explosives at the Nevada Test Site (NTS), for the reasons set forth below. At the evidentiary hearing scheduled to commence herein at 8:30 a.m. on June 27, 2007, Plaintiffs will present testimony and documentary evidence which relates to both the need for continuing judicial oversight of the Defendants’ dangerous plans to detonate high explosives on the surface of the NTS, and the Plaintiffs’ pending Motion for attorneys’ fees and costs. Inasmuch as the Court has the authority to allow Plaintiffs an opportunity to amend their Complaint to conform to the proof at that evidentiary hearing, and given the extremely serious public health implications of the re-suspension of deadly radioactivity by Defendants’ threatened actions, it is necessary and proper that the Court reserve ruling on the dismissal of the downwinders’ injunction cause of action until after the evidentiary hearing. II. The Court does not lose jurisdiction because a defendant voluntarily ceases a challenged practice. A. The Plaintiffs’ litigation initiative is what precipitated the cancellation of Divine Strake. Plaintiffs set forth the following chronology of events relevant to the argument that the Defendants voluntarily withdrew their decision because their decisions to detonate 700 tons of high explosives on the surface of the ground at the Nevada Test Site (NTS) were unreasonable and without substantial justification as a matter of fact and law. It is also relevant to a determination of the resolution of this litigation that the Defendants were thwarted in their intentions and efforts to detonate that huge bomb solely as a direct result of the
Winnemucca Indian Colony et al. v U.S. et al,2:06cv00497LDG-PAL, Response to Motion to Dismiss

12
910 PARR BLVD., #8 RENO, NV 89512 (775) 329-5800; FAX (775) 329-5819

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

-2-

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

Document 60-1

Filed 05/11/2007

Page 3 of 14

1 2 3 4 5 6 7 8 9 10 11
LAW OFFICE OF HAGER & HEARNE

Complaints filed by the Plaintiffs. Chronology 1. 2. 3. 4. 5. 6. 7. 8. 9. November, 2005: DIVINE STRAKE Pre-Approval Draft EA January 30, 2006: Defendants issue FONSI approving blast April 4, 2006: DTRA Press Release announcing 6/2/06 blast date April 20, 2006: Plaintiffs file Complaint and TRO Motion May 3, 2006: Defendants’ withdraw FONSI and cancel blast May 5, 2006: DIVINE STRAKE Revised EA May 9, 2006: Defendants Revised FONSI approving 6/23/06 blast May 22, 2006: Plaintiffs file Second Amended Complaint and Motion May 26, 2006: Defendants withdraw Revised FONSI and cancel 6/23/06 blast 10. December 20, 2006: Defendants issue Draft DIVINE STRAKE Revised EA, Site Characterization, and related supporting documents 11. February 6, 2007: Plaintiffs file their written comments and experts’ opinions with Defendants and challenge to Draft Revised EA 12. February 22, 2007: Defendants announce permanent cancellation of plans for Divine Strake 700 ton detonation The above brief chronology shows the following time periods between the Plaintiffs’ written challenges to the Defendants’ scheme to detonate the Divine Strake bomb and the Defendants’ cancellation of their decisions: Time between first Plaintiffs’ filing and cancellation: 13 days

12
910 PARR BLVD., #8 RENO, NV 89512 (775) 329-5800; FAX (775) 329-5819

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Time between second Plaintiffs’ filing and cancellation: 4 days Time between third Plaintiffs’ filing and cancellation: 16 days There are two reasons why the Defendants cancelled their plans to detonate the 700 ton bomb very shortly after each written challenge by the Plaintiffs. First, this Court had made clear by its prompt scheduling of evidentiary hearings and continued monitoring of this case by regularly scheduled
Winnemucca Indian Colony et al. v U.S. et al,2:06cv00497LDG-PAL, Response to Motion to Dismiss

-3-

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

Document 60-1

Filed 05/11/2007

Page 4 of 14

1 2 3 4 5 6 7 8 9 10 11
LAW OFFICE OF HAGER & HEARNE

status conferences that the Plaintiffs would be provided an evidentiary hearing to challenge the Defendants’ stated opinions that the blast would not pose any health risk. Second, the Plaintiffs’ pleadings and written expert opinions made clear that the Plaintiffs were prepared to prove that the Defendants had each time falsely vouched for the safety of the huge blast without any valid scientific support for that opinion. The Plaintiffs are prepared to prove that the responsible government agencies, DTRA and NNSA, pressed forward with their decision making process unreasonably and without any substantial justification.1 The procedure that was adopted by the Defendants in order to conduct the Divine Strake detonation was without substantial justification, and the Defendants’ false assurances that the blast would be safe were the result of incompetence or dishonesty. Given the government’s past history of lack of notice and false assurances of safety to downwinders and nuclear veterans, and the resulting horrors of birth defects and tens of thousands of cancers in the downwind American population, it was in the public interest for the agency decision to have been submitted to an appropriate and timely environmental discussion. The government’s documentation produced in the run up to decisions to detonate the Divine Strake bomb on June 2 and June 23, 2006, failed to provide any meaningful opportunity for public comment regarding the effect on the environment and on public health. The Defendants’ first two decisions to detonate the huge blast without proper notice and public comment were particularly egregious and offensive in light of the legacy of past lies regarding the safety of atmospheric nuclear testing at the NTS, and the apology, by the

12
910 PARR BLVD., #8 RENO, NV 89512 (775) 329-5800; FAX (775) 329-5819

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

U.S. v. Hallmark Construction Co., 200 F.3d 1076, 1080 (7th Cir. 2000) The 7th Circuit stated that substantial justification is determined by requiring that the government show that its position was grounded in “(1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the theory propounded; and (3) a reasonable connection between the facts alleged and the legal theory advanced.” At page 1080.
1

Winnemucca Indian Colony et al. v U.S. et al,2:06cv00497LDG-PAL, Response to Motion to Dismiss

-4-

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

Document 60-1

Filed 05/11/2007

Page 5 of 14

1 2 3 4 5 6 7 8 9 10 11
LAW OFFICE OF HAGER & HEARNE

government specifically incorporated in the legislation, to downwinders and nuclear veterans in the Radiation Exposure Compensation Act. There can absolutely be no doubt that, but for this lawsuit and the Court’s prompt scheduling of evidentiary hearings at which Plaintiffs were to be afforded an opportunity to challenge the Defendants’ decisions to detonate the huge bomb in June, 2006, the Divine Strake “test” would have occurred at that time and downwind American populations would now be suffering increased birth defects and cancers. Plaintiffs will prove that each and every one of the three separate Environmental Assessments (EA’s) prepared and published by the Defendants and their contractors was prepared without adherence to basic scientific procedures. Plaintiffs can and will further prove that, to a reasonable degree of scientific and medical certainty, the detonation of the bomb by Defendants as planned would have resulted in increased incidents of cancer and birth defects in downwind populations hundreds or thousand of miles away. Where Defendants have decided to act under such circumstances, a finding in this case is important so that this Court makes clear to these agencies that unsubstantiated decisions made in flagrant disobedience to the letter and the spirit of the environmental laws, approving dangerous major federal actions will not be tolerated, particularly when they portend great risk to public health. B. The Defendants will return to their old ways without a clear directive from this Court. The Court does not lose jurisdiction of an issue just because a defendant voluntarily ceases its challenged practice. This would leave the defendant free to return to its old ways. Thus, the determination of whether a case is moot based

12
910 PARR BLVD., #8 RENO, NV 89512 (775) 329-5800; FAX (775) 329-5819

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Winnemucca Indian Colony et al. v U.S. et al,2:06cv00497LDG-PAL, Response to Motion to Dismiss

-5-

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

Document 60-1

Filed 05/11/2007

Page 6 of 14

1 2 3 4 5 6 7 8 9 10 11
LAW OFFICE OF HAGER & HEARNE

upon the defendant’s voluntary conduct is stringent.

2

The Defendants have the

burden of showing that (1) subsequent events have made it absolutely clear that the allegedly wrongful behavior cannot reasonably be expected to recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. 3 Voluntary reform will always suffice to prevent injunctive relief only if it is irrefutably demonstrated, total reform by the defendants. 4 The Defendant Tegnelia announced in his press release that the Defendants have every intention of sneaking past the environmental requirements by conducting surface detonations of high explosives in an unspecified amount of less than 700 tons. In a DTRA press release of February 22, 2007, when Divine Strake was cancelled, Defendant Tegnelia stated: “(T)he agency will develop advanced analysis techniques and conduct confirmatory experiments at a much smaller scale to assist in developing new capabilities to defeat underground facilities.”5 A “smaller scale experiment” is not defined, but the agency’s decision that such smaller surface explosions will be conducted is clear and unequivocal from that press release. The effect of the re-suspension of radioactive contaminated soil and its downwind dispersion are still and always will be an issue because of the nature and character of the soils at the NTS. The report of the Plaintiffs’ expert witnesses explain that concern.6 The Court has monitored the 700 ton blast only to have the agencies state

12
910 PARR BLVD., #8 RENO, NV 89512 (775) 329-5800; FAX (775) 329-5819

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Friends of the Earth, Inc. Et al v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed. 2d 610 (2000) citing United States v. Concentrated Phosphate Export Assn., Inc. 393 U.S. 199, 203, 21 L.Ed.2d 344, 89 S.Ct. 361 (1968).
2

The Ninth Circuit has adopted the principles of Concentrated Phosphate in Buono v. Norton, 371 F.3d 543, 546 (2003).
3

Covenant Media of California v. City of Huntington Park, California, 377 F. Supp.2d 828, 834 (U.S. D.C. E. Ca. 2005).
4 5

Exhibit 1, Press Release of DTRA, February 22, 2007. Exhibit 2, Report of Expert witnesses.

6

Winnemucca Indian Colony et al. v U.S. et al,2:06cv00497LDG-PAL, Response to Motion to Dismiss

-6-

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

Document 60-1

Filed 05/11/2007

Page 7 of 14

1 2 3 4 5 6 7 8 9 10 11
LAW OFFICE OF HAGER & HEARNE

that they have changed course and decided to detonate smaller bombs. There has never been any scientific analysis of the effect of these smaller surface detonations on the environment or on downwind populations. The legacy of lies and incalculable suffering of downwinders, and the sham EA’s and dishonest assurances of safety of Divine Strake, do justify and mandate continued vigilance by Plaintiffs’ counsel and monitoring by this Court. The NTS is different from other land, and the radioactive soil there justifies a heightened scrutiny of proposed large surface detonations of high explosives. The Defendants’ repeated failure and refusal to adequately assess the serious and devastating harm portended by resuspension and dispersion of radioactive fallout from Divine Strake justify and require the Court to order certain preconditions to any large surface explosions in order to prevent the clear and present danger of birth defects and cancer in downwind populations. The Plaintiffs ask that the Court defer ruling on the dismissal of the downwinders’ injunction cause of action until after the evidentiary hearing scheduled for June 27, 2007. After the presentation of evidence at that hearing, the Court can then determine whether the interests of the downwinders is best served by allowing Plaintiffs to amend their Complaint to request an injunction requiring certain preconditions to any future large surface detonations at the NTS. The past acts of the Defendants send a clear message that they do not believe they are subject to the requirements of the law, and that they can falsely vouch for the safety of weapons testing at the NTS without evaluating or disclosing the birth defects and cancers that such weapons testing portends. The past acts of the Defendants establish a pattern and practice of failure to notify the citizens of the United States that their health and safety is at risk. The past acts of the Defendants remind us of the cost to the American public of the government’s lies about the safety of weapons testing at the NTS. While these Defendants in this action are not responsible for the tens of thousands of cancers and birth
Winnemucca Indian Colony et al. v U.S. et al,2:06cv00497LDG-PAL, Response to Motion to Dismiss

12
910 PARR BLVD., #8 RENO, NV 89512 (775) 329-5800; FAX (775) 329-5819

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

-7-

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

Document 60-1

Filed 05/11/2007

Page 8 of 14

1 2 3 4 5 6 7 8 9 10 11
LAW OFFICE OF HAGER & HEARNE

defects perpetrated on our fellow Americans from atmospheric testing in the 1950's and 1960's, these Defendants have nonetheless demonstrated in the run up to Divine Strake the identical callous disregard of the public health consequences that caused that incalculable suffering to so many good people. Only this Court in this case can determine whether to exercise its discretion and authority to require the government to (1) provide actual notice to those most likely to be harmed by any future surface explosions at the NTS, and (2) require a minimum time period between any agency decision to conduct a surface detonation at the NTS and the actual detonation so that judicial review of any such decision can be sought. III. This case is not moot because the Defendants chose the “no action” alternative approved in the NEPA process. Section 1502.14 (d) of NEPA requires the agencies to choose and consider alternatives including a “no action” alternative. One of the significant interpretations of the “no action” alternative is that the proposed plan or experiment will not occur, as in this case. Thus the Defendants argue that they have withdrawn the decision, but more accurately the Defendants have chosen a “no action” alternative. Accordingly then, this litigation is not moot, but instead the Plaintiffs have prevailed by obtaining the relief they requested. The Defendants further argue that this was a withdrawal of the project, therefore, no federal action occurred. Quite the contrary, the Defendants argument could only be construed that they opted for the “no action” alternative under NEPA, but, yet again, the Plaintiffs must demonstrate that the Defendants have violated the “no action” alternative by their promise of future acts. A “no action” alternative necessarily requires that no action be taken.7 The press

12
910 PARR BLVD., #8 RENO, NV 89512 (775) 329-5800; FAX (775) 329-5819

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The Colorado Off-Highway Vehicle Coalition v. U.S. Forest Service, 2007 U.S. Dist. LEXIS 13051 (U.S.D.C. Co. 2007) wherein the Court explained that the “no action” alternative is the “impact of maintaining the status quo.” At page 22. In discussing another surface disturbing activity proposed by the Federal government, the 9th Circuit cautioned the federal agency that
7

Winnemucca Indian Colony et al. v U.S. et al,2:06cv00497LDG-PAL, Response to Motion to Dismiss

-8-

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

Document 60-1

Filed 05/11/2007

Page 9 of 14

1 2 3 4 5 6 7 8 9 10 11
LAW OFFICE OF HAGER & HEARNE

release of DTRA on February 22, 2007 (Exhibit 1) indicates that DTRA did not exactly choose the “no action” alternative, but instead chose a lesser action that had not been among the alternatives analyzed by the environmental documentation (EA), and thus violates NEPA. In other words, the Defendants have chosen an alternative of detonating smaller bombs without ever considering evaluating that alternative. NEPA’s regulations require agencies to “rigorously explore and objectively evaluate all reasonable alternatives.” 8 The existence of a viable but unexamined alternative renders an environmental impact statement inadequate.”9 DTRA appears to have chosen an alternative that does not exist. The agency has the responsibility to “study, develop, and describe appropriate alternatives.”10 The Defendants utterly failed to make any reasonable study, development or description of the alternatives. The future program described by the February 22, 2007, was an alternative that sprung full grown from the brow of Tegnelia and had never been even remotely mentioned prior to that in any environmental documentation. As a result of DTRA’s announcement of its decision to “conduct smaller scale detonations,” this action continues to be ripe for adjudication. // // // // //
merely mentioning a “no action” alternative is not sufficient, a consideration that takes a “hard look at the “no action” alternative is required for an adequate EIS. See, Pit River Tribe v. U.S. Forest Service, 469 F.3d 768 (9th Cir. 2006).
8

12
910 PARR BLVD., #8 RENO, NV 89512 (775) 329-5800; FAX (775) 329-5819

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

40 C.F.R. § 1502.14

Resources Ltd. v. Robertson, 35 F.3d 1300, 1307 (9th Cir. 1994) citing Idaho Conservaton League v. Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992).
9 10

42 U.S.C. § 4332(2)(E).

Winnemucca Indian Colony et al. v U.S. et al,2:06cv00497LDG-PAL, Response to Motion to Dismiss

-9-

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

Document 60-1

Filed 05/11/2007

Page 10 of 14

1 2 3 4 5 6 7 8 9 10 11
LAW OFFICE OF HAGER & HEARNE

III. The Defendants’ argument that the Plaintiffs do not have standing must fail. A. The past acts of the Defendants and the proposed future acts give the Plaintiffs standing. The Plaintiff must have established standing at the first or the Court would not have monitored this matter. With the expansive standing the Supreme Court recently gave to the States in requiring the United States Environmental Protection Agency (EPA) to adopt rules to slow global warming, 11 the direct potential of deposition of harmful nuclear particulate over the very homes and lungs of the Plaintiffs in this matter is very strong support for standing. The Defendants have attempted to direct the jurisdictional arguments towards the Administrative Procedure Act and that final agency action did not occur. This is not the standard and the Court should disregard the analysis of the Defendants as irrelevant. The standard reiterated by the Supreme Court for standing is that the plaintiff’s burden in a lawsuit brought to force compliance, to establish standing is to prove that, “if unchecked by litigation, the defendant’s allegedly wrongful behavior will likely occur or continue and that the threatened injury is certainly impending.”12 The issues in this matter, the detonation of explosives at the Nevada Test Site where radioactive particulate exists and will continue to exist for the next several thousand years, is ripe for judicial intervention.

12
910 PARR BLVD., #8 RENO, NV 89512 (775) 329-5800; FAX (775) 329-5819

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Massachusetts et al, v. Environmental Protection Agency, 2007 U.S. LEXIS 3785 (April 2, 2007)
11

FOE v. Laidlaw, at page 172 citing Whitmore v. Arkansas, 495 U.S. 149, 158, 109 L.Ed. 2d 135, 110 S.Ct. 1717. The 9th Circuit adopted the same approach and cited Whitmore favorably in Salmon River Concerned Citizens et al v. California Coalition for Alternatives to Pesticides, 32 F.3d 1346 (1994).
12

Winnemucca Indian Colony et al. v U.S. et al,2:06cv00497LDG-PAL, Response to Motion to Dismiss

- 10 -

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

Document 60-1

Filed 05/11/2007

Page 11 of 14

1 2 3 4 5 6 7 8 9 10 11
LAW OFFICE OF HAGER & HEARNE

Whether a matter is “fit” for judicial review requires the Court to weigh the interests involved. Fitness for review is a measure of “the interest of the court and the agency in postponing review, and hardship is the measure of the challengers countervailing interest in securing immediate judicial review.”13 In deciding whether the agency decision to withdraw Divine Strake in favor of lesser detonations is ripe, the court is directed to consider: “1) whether delayed review would cause hardship to the plaintiffs; 2) whether judicial intervention would inappropriately interfere with further administrative action; and 3) whether the courts would benefit from further factual development of the issues presented.”14 B. The Plaintiffs had standing because if the Defendants had gone forward with the detonation, the Plaintiffs would have suffered injury in fact. Standing is determined at the commencement of the litigation. 15 The Plaintiffs were in the downwind path of the particulate that would have been sent airborne by the detonation of Divine Strake. The deposition of the particulate would have been toxic to those who lived in the path of the wind carried soils from the Nevada Test Site. The standing requirement of the United States Supreme Court has been met because the Plaintiffs can show (1) it will suffer an injury in fact if the agency decision goes forward, (2) and that injury is not conjectural or hypothetical and the injury is actual or imminent, (3) “the injury is fairly traceable to the challenged action of the defendant; and (4) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable
Blackfeet National Bank v. Rubin, 890 F. Supp. 48, 52-53 (D.D.C.), aff’d 67 F.3d 972 (D.C.Cir. 1995) and cited with authority in Klamath Siskiyou Wildlands Center v. U.S. BLM, 2007 U.S. Dist. LEXIS 20714 (U.S.D.C. Ore. 2007)
13

12
910 PARR BLVD., #8 RENO, NV 89512 (775) 329-5800; FAX (775) 329-5819

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
15

Ohio Forestry Ass’n., Inc. v. Sierra Club, 523 U.S. 726,733, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998) cited in Klamath Siskiyou Wildlands, Id., at page 13.
14

Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L.Ed.2d 351, 112 S.CT. 2130 (1992)

Winnemucca Indian Colony et al. v U.S. et al,2:06cv00497LDG-PAL, Response to Motion to Dismiss

- 11 -

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

Document 60-1

Filed 05/11/2007

Page 12 of 14

1 2 3 4 5 6 7 8 9 10 11
LAW OFFICE OF HAGER & HEARNE

decision.” 16 The Defendants failed to adequately address the environmental impacts of the detonation on the downwinder Plaintiffs. In November 2005 the Defendants announced the detonation and issued a conclusive statement that there would be no environmental impact from the detonation. By January 30, 2006, the Defendants had adopted a Finding of No Significant Impact. (FONSI) There was no opportunity for the public to be timely informed, there was no public announcement of the availability of the environmental documentation for review. Finally, there was no time for meaningful public comment prior to the agency action adopting the FONSI. The purpose of NEPA is to ensure environmentally informed decision-making by federal agencies. 17 Procedural failures in preparation of environmental documentation pursuant to NEPA “create a risk that environmental impacts will be overlooked and provide sufficient ‘injury in fact’ to support standing.”18 The United States Supreme Court clarified further the standing issue by stating that litigants who have been granted a procedural right by Congress “ can assert that right without meeting all the normal standards for redressibility and immediacy.”19 The Supreme Court’s expansion of the injury in fact to include those who have a procedural right extends injury in fact to all the present Plaintiffs who were denied their right to meaningfully comment on the ill conceived notion of the Defendants to detonate 700 tons of explosives into radioactive contaminated soil that would, in the agency’s own words, send a cloud of dirt 10,000 feet high over Las Vegas. //
16

12
910 PARR BLVD., #8 RENO, NV 89512 (775) 329-5800; FAX (775) 329-5819

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Kootenia Tribe of Idaho v. Veneman, 313 F.3d 1094, 1111, 1112 (9th Cir. 2002)

Kootenia Tribe, Id, at page 1115, 1116 citing Tillamook County v. U.S. Army Corps of Eng’rs, 288 F.3d 1140, 1142 (9th Cir. 2002).
17 18

Oregon Environmental Council v. Kunzman, 817 F.2d 484 (9th Cir. 1987). Masschusetts v. EPA, Cited supra, at page 36, 37.

19

Winnemucca Indian Colony et al. v U.S. et al,2:06cv00497LDG-PAL, Response to Motion to Dismiss

- 12 -

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

Document 60-1

Filed 05/11/2007

Page 13 of 14

1 2 3 4 5 6 7 8 9 10 11
LAW OFFICE OF HAGER & HEARNE

V. Conclusion This case involves very serious issues of tremendous import to the downwind public in Nevada, Utah, Arizona, Idaho, and other areas of this country where tens of thousands of Americans and their families have suffered the horror of birth defects and cancers caused by radioactive fallout that originated at the NTS. This is not a case in which an environmental group has successfully challenged expansion of a highway because of the impact to an endangered frog species, but instead is a case in which Plaintiffs will prove at the hearing on June 27, 2007, that the Defendants misrepresented the presence of radioactivity that would be dispersed upon downwind Americans and the devastating human health injuries portended by such radioactive fallout. This is a case in which the huge blast would have occurred without prior knowledge to the public but for a comment by Defendant Tegnelia to the media that this would be the first time a mushroom cloud would be visible from downtown Las Vegas since the atmospheric nuclear testing of the 1950's and 1960's. This is a case where the Defendants continue to contend that the lack of public notice prior to the blast scheduled for June 2, 2006, was legally proper, and the lack of any public hearings or meeting prior to both the blasts scheduled for June 2 and June 23, 2006, was legally proper. This is a case in which, after expending hundreds of thousands of dollars in attorneys’ and expert witnesses’ time to stop the Defendants’ dangerous plans, the Defendants ask the Court to find that they just “changed their minds” and the case should be dismissed so that the Defendants can return to the same patterns of lack of notice and inadequate environmental documentation that they have just participated in with Divine Strake. This is a case in which the Plaintiffs were able to prevent the Defendants from creating a whole new generation of downwinders only because of the Court’s prompt scheduling of evidentiary hearings at which
Winnemucca Indian Colony et al. v U.S. et al,2:06cv00497LDG-PAL, Response to Motion to Dismiss

12
910 PARR BLVD., #8 RENO, NV 89512 (775) 329-5800; FAX (775) 329-5819

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

- 13 -

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

Document 60-1

Filed 05/11/2007

Page 14 of 14

1 2 3 4 5 6 7 8 9 10 11
LAW OFFICE OF HAGER & HEARNE

Plaintiffs would have been afforded the opportunity to present evidence in order to prevent that from happening. And, finally, this is a case in which the Court has the discretion and power to determine what protections and preconditions should be ordered regarding future surface detonations of high explosives on the most nuked parcel of ground in the entire world, the NTS. Accordingly, Plaintiffs request that the Court await the testimony of Plaintiffs’ world-renown scientific and medical experts before ruling on what preconditions, if any, and what ongoing judicial monitoring, if any, the Court deems just and proper given the great importance of this issue to the downwinder Plaintiffs, and the similarly-situated downwind populations. Dated this 11th day of May, 2007. /s/Robert R. Hager ___________________ 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

12
910 PARR BLVD., #8 RENO, NV 89512 (775) 329-5800; FAX (775) 329-5819

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Winnemucca Indian Colony et al. v U.S. et al,2:06cv00497LDG-PAL, Response to Motion to Dismiss

- 14 -

Sign up to vote on this title
UsefulNot useful