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IN THE NINTH CIRCUIT COURT OF APPEALS

WINNEMUCCA INDIAN COLONY; SHARON WASSON; THOMAS WASSON; JUDY ROJO; ELVERINE No. 09-15176 CASTRO; PETER LITSER; STEPHEN D.C. No. 2:06-cv-00497- LDG- ERICKSON; KIM TOWNSEND; PAL VIRGINIA SANCHEZ; JACK District of Nevada, MALOTTE; ARVILLA MASCARENAS; PATRICIA AXELROD;

Plaintiffs - Appellants, v.

UNITES STATES OF AMERICA; ROBERT M. GATES, Secretary of the United States Department of Defense; LINTON BROOKS, Director of the National Nuclear Security Administration; JAMES TEGNELIA, Director of the Defense Thread Reduction Agency,

Defendants - Appellees, ______/

APPELLANT’S OPENING BRIEF

HAGER & HEARNE U.S. ATTORNEY’S OFFICE Robert R. Hager, SBN 1482 Michael Thomas Gray, SBN____ Treva J. Hearne, SBN 4450 P.O. Box 23795 245 E. Liberty Street, Ste. 110 L’Enfante Plaza Station Reno, NV 89501 Washington, D.C. 20026-3795 Tele: 775-329-5800 Tele: (202) 305-4903 Attorneys for Plaintiffs-Appellants Case: 09-15176 04/27/2009 Page: 2 of 41 ID: 6896712 DktEntry: 7

U.S. ATTORNEY’S OFFICE Blaine T. Welsh, SBN______333 Las Vegas Blvd., So. Suite 5000 Las Vegas, NV 89101 Tele: (702) 388-6336 Case: 09-15176 04/27/2009 Page: 3 of 41 ID: 6896712 DktEntry: 7

TABLE OF CONTENTS

I. Statement of Subject Matter and Appellate Jurisdiction 1

Jurisdiction of the Court of Appeals 1

II. Statement of the Case 2

III. Statement of the Issues 3

IV. Summary of Argument 3

V. Argument 4

A. The Chronology of the litigation in this matter demonstrates that Plaintiffs’ are the prevailing parties . 4

B. Plaintiffs were the prevailing party in that the objective of the Plaintiffs’ injunction claim was met by Defendants’ permanent cancellation of a 700 ton open-air detonation at the . 15

C. The District Court was in error in denying the Plaintiffs’ request for attorneys’ fees and costs because the Plaintiffs were the prevailing party. 17

1. The District Court did change the legal relationship of the parties. 18

2. The Plaintiffs were the prevailing party because the objective they sought received judicial sanction 23

3. The Plaintiffs are entitled to attorney’s fees and costs because they are substantially prevailing parties under NEPA, the Clean Water Act, and the Endangered Species Act because the Government had no substantial justification for its position. 28, 29

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VI. Conclusion 30

VII. Certificate of Compliance 33

VIII. Certificate of Service 34

IX. Statement of All Known Related Case and Appeals, Certification Required by BAP Rule 8010(a)-1(c) 35

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TABLE OF AUTHORITIES

FEDERAL CASES

Buono v. Norton, 371 F.3d 543, 546 (2003) 27

Californians for Alternatives to Toxics v. U.S. Fores Service, 2007, U.S. Dist. LEXIS 78424 (2007) citing Carbonnel at page 901) 22

Carbonell v. INS, 429 F.3d 894 (9th Cir. 2005) 22, 23, 23

FOE v. Laidlaw, at page 172 citing Whitmore v. Arkansas 27

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. 26

Klamath Siskiyou Wildlands Center v. BLM, 522 F. Supp. 2d 1302 (D. Ore. 2007) 22

Li v. Keisler, 505 F.3d 913, 919 (9th Cir. 2007) 29

Lohn, 522, F.Supp, 1295(D. Ore. 2007) 23, 24

Oregon Natural Desert Ass’n v. Lohn, 522 F.Supp. 1295 (D. Ore 2007) 23

Salmon River Concerned Citizens et al. v. California Coalition for Alternatives to Pesticides, 32 F.3d 1346 (1994) 27

Sullivan v. Hudson, 490 U.S. 877, 109 S.Ct. 2248, 104 L.Ed. 2nd 941 (1980) 17

United States v. Concentrate Phosphate Export Assn.,

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Inc., 393 U.S. 199, 203, 21 L.Ed. 2d 344, 89 S.Ct., 361 (1968) 26, 27

U.S. v. Hallmark Construction Co., 200, F.3d 1076, 1080 (7th Cir. 2000) 14, 28

Whitmore v. Arkansas, 495 U.S. 149, 158, 109 L.Ed. 2d 135, 110 S.Ct. 1717. 27

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RULES & STATUTES

5 U.S. C. 702 1

28 U.S.C. §§ 1331, 1362, 1367 and 2201 1

42 U.S.C. § 4321 1

16 U.S.C. § 1536(a)(2) 1

28 U.S. C. § 1391 1

Title 28 U.S.C. 41 1

28 U.S.C 1291 2

42 U.S.C. § 4332 7

33 U.S.C. § 1251 10

16 U.S.C § 1536 (a)(2) 11

Clean Air Act, 42 U.S.C 7412 9, 10

Equal Access to Justice Act (EAJA) 17, 22, 23, 30

Migratory Bird Act, 16 U.S.C. § 793 11

National Environmental Policy Act (NEPA), 42 U.S.C. 4223 7, 8, 9, 27, 31. 32

Radiation Exposure Compensation Act, 42 U.S.C. § 2210 6, 8, 31 (RECA)

Wild and Free Roaming Hose and Burro Act, 16 U.S.C § 1331 11

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I.

STATEMENT OF SUBJECT MATTER AND APPELLATE

JURISDICTION

This District Court had jurisdiction over the subject matter of this action pursuant to the Constitution and laws of the United States, including, but not limited to, 5 U.S.C. 702, 28 U.S.C. §§ 1331, 1362, 1367, and 2201, 42 U.S.C.§ 4321, et seq.. 16 U.S.C.§ 1536(a)(2) and the Constitution, treaties and laws of the

United States, including federal common law. This is a civil action brought by a

Native American or Indian Nation, and by individuals who are members of that

Nation, and other citizens of the United States of America, and the claims arise under the Constitution, treaties and laws of the United States.

2. The venue of this action was properly placed in the District of

Nevada pursuant to 28 U.S.C. § 1391 because Plaintiffs’ claims arise in this district, more particularly, at the Nevada Test Site totally contained within the State of Nevada.

JURISDICTION OF THE COURT OF APPEALS

The jurisdiction of this Appeal is properly with the Ninth Circuit

Court of Appeals pursuant to Title 28 U.S.C. 41. The Court of Appeals has jurisdiction from final decisions of the District Court pursuant to 28

///

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U.S.C.§ 1291. This appeal is taken from an Order dismissing the claims of the Plaintiffs for attorneys’ fees and costs.

II.

STATEMENT OF THE CASE

The Defendants’ decision to detonate seven hundred (700) tons of on the surface of the ground at the Nevada Test Site (NTS) was unreasonable and without substantial justification and the Defendants were thwarted in their intentions and efforts to detonate that huge bomb solely and as a direct result of the litigation filed by the Plaintiffs. The Plaintiffs have requested attorneys’ fees because they materially changed the legal relationship between the Plaintiffs and the government by Court intervention.

The Defendants announced in the press that the Divine Strake would be detonated at the Nevada Test Site making a mushroom cloud over Las

Vegas without first submitting an adequate environmental document for public review. The Plaintiffs’ litigation caused the postponement and finally the cancellation of the detonation. The government had no substantial justification for its actions to schedule the detonation nor for its failure to submit environmental documentation for public review.

The Court dismissed the Plaintiffs’ complaint after over twelve (12)

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months of litigation to thwart the government each time it re-scheduled the detonation until it finally cancelled the test. The Plaintiffs’ applied for attorneys’ fees which the District Court denied. This appeal followed.

III.

STATEMENT OF ISSUES

1. Did the District Court err in determining that the Plaintiffs were not

prevailing parties because there had not been judicial sanction of the relief

sought?

2. Did the District Court alter the legal relationship of the parties in a

material way by ordering the status quo and ordering thirty days notice of

the rescheduling of any detonation of Divine Strake?

3. Did the District Court err in not considering the substantial justification

of the federal Defendants’ position when determining the prevailing party

status of the Plaintiffs?

IV.

SUMMARY OF ARGUMENT

When the federal Defendants announced in the newspaper that the

Divine Strake bomb would be tested in the radioactive soils of the Nevada

Test Site, the Plaintiffs, a band of the Western Shoshone of eastern and

southern Nevada and the , residents of Nevada and Utah, filed

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a Complaint and Motion for Temporary and Preliminary Injunction to stop the detonation. The Court held an immediate hearing and imposed the status quo and ordered that the federal Defendants give thirty (30) days notice to the Court and to the Plaintiffs prior to rescheduling any detonation of Divine Strake at the Nevada test site. This judicial intervention led to the ultimate withdrawal of the decision to detonate

Divine Strake. The Plaintiffs should have been determined prevailing

parties and awarded their attorneys’ costs and fees.

V.

ARGUMENT

A.

The Chronology of the litigation in this matter

demonstrates that Plaintiffs’ are the prevailing parties.

On April 4, 2006, the Defendants, the United States of America,

Robert M. Gates, the Secretary of the United States Department of Defense,

Linton Brooks, the Director of the National Nuclear Security

Administration and James Teglia, the Director of the Defense Threat

Reduction Agency, announced as a final decision that they would conduct

“Divine Strake,” an above-ground detonation of 700 tons of high explosives

at the Nevada Test Site, and that the resulting “mushroom cloud . . . may

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reach an altitude of 10,000 feet.” (EOR 00085) The “mushroom cloud” resulting from “Divine Strake”would contain poisonous, toxic, radioactive nuclear debris which was, and continues to be, found in the soil at the

Nevada Test Site solely as a proximate result of Defendant United States having conducted atmospheric and underground nuclear testing at the Site in the 1950's and 1960's.(EOR 00097 - 00099, 00114 - 00116, 00118 -

00137, 00151 - 00172, 00173 - 00203). The Plaintiffs alleged in the

Complaint filed in this matter that the Defendants contemplated and knew the announced “mushroom cloud” caused as a result of the detonation of

Divine Strake would travel in the direction of the downwinder Plaintiffs.

(EOR 00013, paragraph 20, EOR 00015, paragraph 29; and EOR 00029, paragraph 116).

The Plaintiffs further alleged that the Defendant United States was fraudulently and maliciously vouching for the safety of “Divine Strake,” with knowledge that the “mushroom cloud” would disseminate deadly, highly radioactive debris across the United States and the world, and that the radiation exposure to humans posed a clear and present danger of irreparable harm to the cellular RNA and DNA of persons exposed to that

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radioactive material, including without limitation, the health problems 1

(EOR 00049 - 00203) which were admitted to be so caused by Defendant

United States in the Radiation Exposure Compensation Act, 42 U.S.C. §

2210. Residents of the States of Utah and Nevada were exposed to wind- borne radioactive fallout and debris caused by the atmospheric above- ground testing of nuclear weapons at the Nevada Test Site during the 1950's and 1960's by Defendants and their predecessors in interest, again, as admitted in the Radiation Exposure Compensation Act.

The Plaintiffs alleged that the “Divine Strake” explosion was a major federal action which significantly affected the quality of the human environment in that, inter alia, the reasonably foreseeable dissemination of wind-borne radio nuclides will cause significant adverse effects to the quality of the human environment and the health of the Plaintiffs. The

Defendants knew or should have known that the “Divine Strake” comprised a “major federal action” with reference to NEPA, such that the Defendants

1 The Plaintiffs alleged, based upon the reports prepared by the expert witnesses, that serious, permanent and fatal health risks to those affected by radiation exposure from such tests would occur, including without limitation, leukemia, multiple myeloma, lymphoma, primary cancer of the thyroid, male or female breast, esophagus, stomach, pharynx, small intestine, pancreas, bile ducts, gall bladder, salivary gland, urinary bladder, brain, colon, ovary, liver and lung, and, genetic problems, sterility, and birth defects.

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were required to satisfy the statutory mandates by preparing an

Environmental Impact Statement (EIS), including a written statement by

Defendants on:

(1) the environmental impact of the proposed action;

(2) any adverse environmental effects which cannot be avoided should the proposal be implemented;

(3) alternatives to the proposed action;

(4) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity; and

(5) any irreversible and irretrievable commitments of resources

which would be involved in the proposed action should it be implemented.2

(EOR00092 - 00095).

The Plaintiffs alleged that the Defendants failed to give adequate and legal notice of their plan to conduct “Divine Strake,” including without limitation, failed to publish notice in the Federal Register, failed to give notice reasonably designed to inform groups and individuals which

Defendants knew would be affected and would voice the same objections as

2 42 U.S.C. § 4332

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the Plaintiffs had to the proposed “Divine Strake” during the comment period required by law, and failed to give notice to those persons already known by Defendants to have contracted certain cancers and other serious diseases in geographic areas known to Defendants as reflected by Radiation

Exposure Compensation Act (RECA), 42 U.S.C.§ 2210. The Plaintiffs alleged that the Defendants were responsible for making the proper decision under the National Environmental Policy Act (NEPA), 42 U.S.C.

4223 and the Defendants had been aware of the objections of the Western

Shoshone Plaintiffs and the Downwinders Plaintiffs prior to Defendants having made their final agency decision to conduct “Divine Strake”.

The crux of the Plaintiffs’ Complaint was that the Defendants failed to complete the steps prior to a proper final agency decision to conduct

“Divine Strake,” and they failed and refused to perform any EIS or a programmatic EIS (which would evaluate the cumulative effects of the more

than single test which was misrepresented in the Environmental Analysis

Report of this project, but admitted to the State of Nevada), or to conduct

the necessary evaluation of “Divine Strake” as required under the National

Environmental Policy Act (NEPA). EOR 00008 - EOR 00203). Further, the

Plaintiffs alleged that the Defendants failed to comply with the

requirements of NEPA which would require that there be a proper and

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meaningful publication of the intent to conduct this test; and, this

notification is intended by the Act to provide an opportunity for public, federal and state agency comment and evaluation of those comments and a proposal for mitigation of any significant impacts in the final environmental analysis all to be completed before a Finding of No Significant Impact was adopted. After these allegations, the Defendants published the

environmental documentation to which the Plaintiffs commented with the

expert reports that thoroughly criticized the superficial and plainly

incorrect analysis by the Defendants’ contractor of the environmental

impacts of the proposed detonation. After these comments, when they were

finally allowed after this litigation was filed, the Defendants, rather than

responding, withdrew the plans to detonate Divine Strake.

The Plaintiffs alleged that the Defendants failed and refused to

comply with the requirements that they demonstrate, pursuant to the

Clean Air Act, 42 U.S.C. 7412 et seq., that federal and state air contaminant

levels would not be exceeded before a Finding of No Significant Impact

was adopted. (EOR 00031, paragraphs 122 - 124) . The Plaintiffs alleged

that the Defendants failed and refused to comply with the requirements of the Clean Air Act in that they applied for a Class 2 permit from the State of

Nevada and failed to file an application with the United States

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Environmental Protection Agency as is required. Rather than respond to

these comments, the Defendants withdrew the plans to detonate Divine

Strake.

The Plaintiffs further alleged that the Defendants failed and refused

to comply with the requirements of the Clean Water Act, 33 U.S.C. § 1362 et

seq., which prohibited the discharge of any pollutant, of which radio

nuclides was a pollutant according to 33 U.S.C.§ 1251 et seq., into waters of

the United States without an National Pollutant Discharge Elimination

Systems (NPDES) permit. (EOR 0031, paragraphs 125 - 128; EOR 0032,

paragraph 129). The Plaintiffs pointed out that the detonation of this

massive amount of explosives as was contemplated by the Divine Strake

project would have caused potential discharge into the wetlands, bodies of

water and groundwater in and around the Nevada Test Site, including but

not limited to, bodies and water sources miles from the detonation. Rather

than respond to these allegations, the Defendants cancelled the detonation

of Divine Strake.

The Plaintiffs alleged that the Defendants had failed to seek

consultation regarding the desert tortoise, those animals protected by the

Wild and Free Roaming Horse and Burro Act, 16 U.S.C.§ 1331, and the

Migratory Bird Act, 16 U.S.C.§ 703, and the bird species protected by the

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State of Nevada, all in violation of 16 U.S.C.§ 1536 (a)(2). (EOR 00032, paragraphs 130 - 132). The Defendants, rather than respond to these allegations, cancelled the detonation of Divine Strake.

Chronology critical to understanding the series of events that led to

the cancellation of Divine Strake. (EOR 001 - 004; EOR 00205 generally for

the dates admitted by the federal Defendants and specifically as indicated):

1. November, 2005: DIVINE STRAKE Pre-Approval Draft EA;

2. January 30, 2006: Defendants issued FONSI approving blast;

3. April 4, 2006: DTRA Press Release announcing 6/2/06 blast

date;

4. April 20, 2006: Plaintiffs file Complaint and TRO Motion

(Docket No. 1, EOR 00537);

5. May 3, 2006: Defendants’ withdraw FONSI and cancel blast;

6. May 5, 2006: DIVINE STRAKE report a Revised EA;

7. May 9, 2006: Defendants adopts a Revised FONSI approving

6/23/06 blast;

8. May 22, 2006: Plaintiffs file Second Amended Complaint and

Motion (Docket No. 25, EOR 00539);

9. May 26, 2006: Defendants withdraw Revised FONSI and

abandon 6/23/06 blast at this time (Docket No. 29, EOR

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00539-00540);

10. The District Court holds a status conference where the

Defendants are required by the Court to announce the status of

the blast and the government reported that there was no

authorization for blast. (Docket No. 39, EOR 00541);

10. December 20, 2006: Defendants issue Draft DIVINE STRAKE

Revised EA, Site Characterization, and related supporting

documents;

11. January 31, 2007: The Court requests from the government

that any filings be provided to the Court’s chambers along with

electronic filing. The government states that it will notify the

Plaintiff and the Court with 30 days notice if a test is to be

performed. (Docket No. 45, EOR 00542);

12. February 6, 2007: Plaintiffs file their written comments and

experts’ opinions with Defendants and challenge to Draft

Revised EA with the Court; and

12. February 22, 2007: Defendants announce permanent

cancellation of plans for Divine Strake 700 ton detonation,

which is confirmed to the Court on March 2, 2007. (Docket No.

50, EOR 00542-00543).

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The above brief chronology shows the following time periods between

the Plaintiffs’ written challenges to the Defendants’ scheme to detonate the

Divine Strake bomb, the Court requiring a response, and the Defendants’

cancellation of their decisions:

Time between 1st Plaintiffs’ filing and cancellation: 13 days

Time between 2nd Plaintiffs’ filing and cancellation: 4 days

Time between 3rd 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, the District Court had made clear by its prompt scheduling

of evidentiary hearings and continued monitoring of this case by regularly

scheduled 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 and maintained that the litigation was without merit when

the government pressed forward with its decision making process without

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any substantial justification.3

What was not reflected by the above chronology and the quick

cancellations by Defendants of their blast plans was the extent of time and

money that was expended by Plaintiffs’ counsel and their experts in

successfully stopping the Defendants from carrying out their dangerous

plan. That extensive work by Plaintiffs’ counsel and their experts was

reflected by the filings in the District Court, the day- long hearing before the

District Court, and the response each and every time the Defendants

attempted their ill conceived and unjustified detonation.

///

///

///

B.

Plaintiffs were the prevailing party in that the objective of the Plaintiffs’ injunction claim was met by Defendants’ permanent cancellation of a 700 ton open-air explosive detonation at the Nevada test site.

Plaintiffs sought attorneys’ fees and costs for having successfully

prevented Defendants from carrying through with their plans to detonate

3 U.S. v. Hallmark Construction Co., 200 F.3d 1076, 1080 (7th Cir. 2000)

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700 tons of high explosives on the surface at the NTS. (EOR 00451 -

00526). Moreover, as proven at the evidentiary hearing on this Motion by

the testimony of Plaintiffs’ experts, the Defendants procedure that was

adopted 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 lies 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

agencies’ blatant disregard for science and truth to have been submitted to

an appropriate and timely environmental discussion.4 The District Court

failed to make any findings whatsoever regarding the substantial

justification of the government based upon the evidence provided by the

Plaintiffs.

Plaintiffs presented evidence that proved the Defendants’ decisions

to detonate the Divine Strake bomb failed to include the public in a

4 Id. at page 1079, “. . .the government bears the burden of proving that its position meets the substantially justified standard. . . “ ”. . . the district court must reexamine the legal and factual circumstances of the case from a different perspective than that used at any other stage of the proceeding. . .” At page 1080.

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meaningful discussion to test the impacts to the environment and the government’s consultants report was prepared without adherence to basic scientific procedures. While an award of fees and costs to Plaintiffs is proper where Defendants have decided to act under such circumstances, such a finding and award are also important in this case so that it is made clear to agencies like the federal Defendants herein, 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.

The complexity of the public health issues related to the re- suspension of radioactivity and the need for highly-qualified expert witnesses in this specialized area of science and medicine both caused this action to be time-consuming and difficult for Plaintiffs’ counsel. Plaintiffs’

counsel were required to locate and obtain experts who are world renown

in their field. Plaintiffs’ counsel likewise had to make certain that these

experts had unimpeachable qualifications for the conclusions, reports and testimony provided to this Court regarding the government’s decision.

The Plaintiffs had to review 30,000 pages of administrative record allegedly prepared by the Defendants but was, in fact, the history of the

Nevada Test Site and minimal environmental studies by the Defendants.

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None of this would have been brought to the District Court’s attention without the expert witness reviews and reports and the Plaintiffs’ aggressive litigation of this matter.

C.

The District Court was in error in denying the

Plaintiffs’ request for attorneys’ fees and costs because

the Plaintiffs were the prevailing party.

The Equal Access to Justice Act (EAJA) was passed by Congress in

1980 in response to concerns that persons would be deterred from seeking

review of, or defending against, unreasonable governmental action becasue

of the expense involved securing the vindication of their rights. 5 The

District Court determined that the Plaintiffs were not the prevailing parties

based upon the fact that there was no judicial sanction that changed the

relationship of the parties. This is an erroneous interpretation of the law in

this matter.

1. The District Court did change the legal relationship of the parties.

The District Court did change the relationship of the parties by

5 Sullivan v. Hudson, 490 U.S. 877, 109 S.Ct. 2248, 104 L.Ed. 2d 941(1980)

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monitoring the actions of the federal Defendants, ordering the federal

Defendants to give thirty (30) days’ notice of any scheduled detonation of

the Divine Strake to the Court and to the Plaintiffs and by ordering the

status quo which was in effect stopping the federal Defendants from

scheduling any further detonations of Divine Strake. The fact that the

Plaintiffs succeeded by court intervention to stop the Defendants march to

detonation makes them the prevailing parties. This was more than a

catalyst to stop the Defendants, it was judicial sanction to stop the

Defendants and cause the withdrawal of the detonation.

There can absolutely be no doubt that, but for this lawsuit and the

District 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. The federal

Defendants could not go forward when there was an opportunity to

scrutinize their environmental findings.

The government asserted that it cancelled the Divine Strake in the

planning process, a statement which was incredible given the fact that the

government rescheduled the detonation three times during the course of

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the litigation. The government would have detonated Divine Strake the first time without this intervening litigation, there was no further planning contemplated. The date had been set. Not even thirty (30) days after the announcement of the detonation, the blast was to take place. Only after these Plaintiffs raised substantive issues of lack of credible scientific inquiry by the government was the detonation cancelled, not the planning, not the consideration, the detonation itself.

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, the District Court made clear by its prompt scheduling of evidentiary hearings and continued monitoring of the litigation by regularly scheduled status conferences that the Defendants would not be allowed to go forward without an opportunity for the Plaintiffs to prove by testimony and evidentiary hearing, the lack of environmental documentation supporting the Defendants’ decision. Second, the Plaintiffs’ pleadings, written opinions and testimony of Plaintiffs’ experts at the hearing on June

27, 2007, proved that the Defendants had, at each announcement of the detonation, falsely vouched for the safety of the huge blast, failed to adhere to basic scientific protocols and acted without substantial justification.

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The District Court’s Status Conferences and Bench Stays of action6 required the Defendants to take notice of Plaintiffs’ concerns and proof and constituted Court supervision of the agency’s actions. These District Court actions prevented attempts by the Defendants to detonate the Divine Strake

on at least two separate occasions and required that the status quo be

maintained until Plaintiffs were given the opportunity to have an

evidentiary hearing and that thirty (30) days notice had to be given to the

Court and the Plaintiffs before scheduling any further tests.

In order to qualify for an award of fees and costs under EAJA, five

criteria must be satisfied: 1) the applicant must have been a "prevailing

party" in the suit against the United States; 2) the government's position

msut not have been substantially justified; 3) there cannot be any special

circumstnaces that make an award unjust; 4) any fee application must be

submitted to the court within thirty (30) days of final judgment in the

action and also be supported by an itemized statement; and, 5) meet certain

corporate qualifications not applicable in this litigation. Before the final

6 Docket No. 10, EOR 00538; Docket No 16, EOR 00538; Docket No. 29, EOR 00539; Docket No. 32, EOR 00540; Docket No. 37, EOR 00541; Docket No. 39, EOR 00541; Docket No. 45, EOR 00542; Docket No. 50, EOR 00542 - 00543; Docket No. 57, EOR 00544; and Docket No. 65, EOR 00545.

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four issues can be analyzed, the threshold determination is that Plaintiffs must be considered prevailing parties.

The District Court erred in determining that the Plaintiffs were not prevailing parties. Plaintiffs are to be considered prevailing parties because they succeeded on a significant issue of the litigation, cancellation of the

Divine Strake detonation. The cancellation of Divine Strake was a direct

result of the litigation.

Plaintiffs qualify as prevailing parties because they did obtain some

relief on the merits of their claims. The Plaintiffs had pled that the

Defendants had failed to give adequate notice in order for the Plaintiffs to

comment on the environmental documentation. The Court specifically and

expressly stated that the Defendants would remain at status quo and that

the Defendants were required to give thirty days notice of the rescheduling

of any detonation. (Docket No. 39 and 45), The Plaintiffs were not required

to obtain a final judgment on the merits in order to be a prevailing party

under EAJA. This Court has previously held in Carbonell v. INS, 429 F.3d

894 (9th Cir. 2005), that it is sufficient if the Court’s action “materially

alters the legal relationship between the parties, because the defendants

were required to do something directly benefitting the plaintiffs that they

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otherwise would not have had to do.”7

In 2007 a plaintiff suing the Bureau of Land Management sought an

injunction because of inadequate environmental documentation of a

proposed timber sale. 8 The BLM stipulated to a delay after the Plaintiffs

filed litigation challenging the environmental documentation. When the

District Court of Oregon announced that it would rule on a motion for

summary judgment in favor of the Plaintiffs, the BLM withdrew its decision

to go forward with the timber sale.

///

The federal Defendants herein made a motion for an emergency stay

that was granted by the District Court. That stay was the beginning of the

end of the decision by the Defendants to detonate Divine Strake, and, just

as the BLM withdrew its decision in the Oregon case, the Defendants

withdrew their decision and went back to Washington without detonating

700 pounds of explosives in the radioactive soils of the NTS.

In the Klamath case the District Court of Oregon did not enter

7 Californians for Alternatives to Toxics v. U.S. Forest Service, 2007 U.S.Dist. LEXIS 78424 (2007) citing Carbonnell at page 901)

8 Klamath Siskiyou Wildlands Center v. BLM, 522 F. Supp.2d 1302 (D. Ore. 2007)

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judgment or make any findings. In Oregon Natural Desert Ass'n v.

Lohn, 522 F.Supp. 1295 (D.Ore. 2007), the Court's order was moot before it took effect. Both cases demonstrate that a Court order is not the critical factor in determining the prevailing party. Carbonnel established that a

prevailing party is one that has success in obtaining the desired relief from

the federal court regardless of whether the federal court's order addressed

the merits of the underlying case.

2. The Plaintiffs were the prevailing party because the objective they sought received judicial sanction.

Two factors assist the courts in defining a prevailing party under

EAJA. (1) Plaintiffs’ action in filing the litigation must have resulted in a

"material alteration" in the parties' legal relationship and (2) that alteration

must have been judicially sanctioned. Just as discussed in Lang and

Carbonnel. The District Court of Nevada assumed jurisdiction, had several status conferences and hearings in order to determine what the federal Defendants intended to do. The Plaintiffs ardently sought judicial intervention to stop the federal Defendants from detonating the Divine

Strake without an honest and adequate environmental document. The

District Court did intervene and required the federal Defendants to continue the status quo, meaning no detonation, and not to proceed with

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any schedule of detonation until both the District Court and the Plaintiffs were given thirty (30) days notice.

In April 2006, the federal Defendants had adopted a Finding of No

Significant Impact based upon half truths, sloppy investigation and a determination that they could proceed without public comment. The filing of this litigation, the mustering of expert witnesses from across the United

States to prepare reports that challenged the faulty decisions of the federal

Defendants stopped this process because the District Court made it very clear immediately after the filing that no detonation would go forward without notice to the Plaintiffs and an opportunity to respond by the

Plaintiffs.

When the federal Defendants recognized that the Court was not going to simply dismiss this action, the Defendants made two more attempts to resolve the dispute raised by the Plaintiffs. When the Plaintiffs continued the litigation based upon the faulty process of environmental inquiry by the federal Defendants, and, in the face of a United States District Court intervening to maintain the status quo, the federal Defendants gave up their decision to detonate Divine Strake. Clearly, the Plaintiffs obtained the objective that they intended, to stop the detonation. Clearly, the Plaintiffs obtained this resolution because of filing the litigation and because the

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District Court assumed jurisdiction and stayed the decision for further comment by the Plaintiffs.

The actions by the Plaintiffs fall squarely within the parameters adopted by the Ninth Circuit regarding prevailing party. Without the

District Court's intervention and maintenance of the status quo and requiring notice to the Plaintiffs, the federal Defendants would have detonated Divine Strake and contaminated the Plaintiffs and others in the

Western United States. The Plaintiffs had no power to stop the federal

Defendants without the intervention of the District Court. The District

Court demonstrated its sanction of the Plaintiffs' request by ordering the

status quo and ordering thirty (30) days notice of the rescheduling of any

detonation and monitoring the progress of the federal Defendants' decision.

The federal Defendants did not deprive the Plaintiffs of prevailing

party status by voluntarily withdrawing the decision to detonate Divine

Strake. As has been repeatedly stated, if the federal Defendants disobeyed

the law, the Plaintiffs’ only effective remedy was with the District Court.

Otherwise, the federal Defendants would be free to return to their old ways.

The case before the District Court was a steady progression of final agency

action that would have resulted in the detonation of Divine Strake had this

litigation not been filed. A determination of mootness when an agency has

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attempted to act but has withdrawn its action based upon voluntary conduct is stringent. 9

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. 10 Without the intervention of the District Court, the wrongful behavior of the federal Defendants would have recurred.

The Plaintiffs 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.”11 The District court accepted the standing of the Plaintiffs and intervened to stop the wrongful

9Friends 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).

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

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).

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behavior of the federal Defendants.

Simply put, because of the federal Defendants’ unreasonable justifications for the detonation of the Divine Strake bomb, their patent disregard for the potential health effects on the downwind public, and their disdain for public participation in reaching an informed decision required by NEPA, the Plaintiffs have standing and the District Court had jurisdiction and exercised it to keep the federal Defendants before the

District Court until the federal Defendants finally withdrew their decision.

The Plaintiffs’ pleadings, written opinions and testimony of Plaintiffs’ experts at the hearing on June 27, 2007, proved that the Defendants had, at each announcement of the detonation, falsely vouched for the safety of the huge blast, failed to adhere to basic scientific protocols and acted without substantial justification.12 Because the District Court erred in declaring that the Plaintiffs were not prevailing parties, the lack of substantial justification of the federal Defendants’ position was not revealed by the District Court’s order. The Plaintiffs have accomplished a bulwark of

12 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.

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protection that will not be repeated when the federal Defendants again run amok if the Plaintiffs cannot recover their fees and costs for protecting the

Western United States from indiscriminate detonations at the Nevada Test

Site where contaminated radioactive dirt will remain for the next 20,000 years.

3. The Plaintiffs are entitled to attorneys’ fees and costs because they are substantially prevailing parties under NEPA, the Clean

Water Act, the Clean Air Act, and the Endangered Species Act because the Government had no substantial justification for its position.

As stated above, all of these allegations were made in the Complaint.

The ready intervention by the District Court in response to the litigation by

the Plaintiffs resulted in the withdrawal of the final decision of the federal

Defendants to detonate Divine Strake. The award of attorneys’ fees is

within the discretion of the Court. This decision should be reversed

because of an incorrect legal determination by the District Court that the

Plaintiffs were not prevailing parties, when, in fact, they were.

This request for attorneys’ fees and costs should be granted because

the Plaintiffs are prevailing parties. The federal Defendants had no

substantial justification for their violation of the environmental laws as pled

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by the Plaintiffs and substantial justification is one of the considerations of prevailing party status. This Court has already looked behind a voluntary withdrawal by the agency, . . .” EAJA’s standards are best served by

considering the likely reason behind the voluntary (action) in question.”13

The reason for such an analysis is that the “clearly stated objective of the

EAJA is to eliminate financial disincentives for those who would defendant against unjustified governmental action and thereby to deter the unreasonable exercise of Governmental authority.” 14

No clearer reason for the provisions of EAJA exists than the unjustified governmental action contemplated by the federal Defendants in this action. The vulnerability of the downwinders to the discharge of radioactive contamination from the 10,000 foot mushroom cloud contemplated by these federal Defendants was the very unreasonable exercise of governmental authority without proper public comment and review of adequate and truthful environmental documentation was what

EAJA was enacted to deter. This is why the District Court’s failure to analyze the lack of substantial justification of the federal Defendants when

13 Li v. Keisler, 505 F.3d 913, 919 (9th Cir. 2007)

14 Id. At page 918-919.

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determining whether the Plaintiffs were prevailing parties was in error.

VI.

Conclusion

The District Court’s Status Conferences and Bench Stays of action required the Defendants to take notice of Plaintiffs’ concerns and proof and constituted Court supervision of the agencies’ actions and sanction of the

Plaintiffs’ request for stay. These District Court actions prevented attempts

by the Defendants to detonate the Divine Strake on at least two separate

occasions.

The parallel of this situation to the circumstances that gave rise to

RECA are a reminder to the courts, and should be to the government as well, that segments of the American population are at risk if radioactive

contaminated soils are made airborne. The danger threatened by the twice-

scheduled Divine Strake extends to the entire United States.

The District Court time and again arrested the agencies’ attempts to

proceed with the test in violation of NEPA. The Plaintiffs achieved their

objective that the federal Defendants withdraw their decision and this

occurred because of the litigation and the intervention of the District Court.

The Plaintiffs should be determined the prevailing parties and awarded their attorneys’ fees and costs because the federal Defendants made no

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///

///

///

///

/// attempt to provide any justification for their blatant and careless disregard

of the provisions of the National Environmental Policy Act.

DATED this 27th day of April, 2009.

HAGER & HEARNE

BY:/s/ TREVA J. HEARNE , ESQ. TREVA J. HEARNE, ESQ. SBN: 4450 245 E. Liberty St., Ste. 110 Reno, NV 89501 Tele: (775) 329-5800 Attorneys for Appellants

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VII.

CERTIFICATE OF COMPLIANCE

I certify that pursuant to Fed. R. App. P 32(a)(7)( C) and the Ninth

Circuit Rules 32-1, the attached opening brief is:

1. Proportionately spaced with a typeface of 14 points or more, in

Georgia font, generated in the WordPerfect 12 word processing

software, and contains approximately 7122 words and 881 lines.

DATED this 27th day of April, 2009.

HAGER & HEARNE

BY: /s/ Treva J. Hearne , Esq. TREVA J. HEARNE, ESQ. Attorney for the Appellants

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CERTIFICATE OF SERVICE

Pursuant to FRCP 5(b), I certify that I am an employee of the law offices of HAGER & HEARNE, 245 E. Liberty Street, Ste. 110, Reno, NV 89501, and that on this date, I deposited in the U.S. Mail, with first class postage fully affixed, the foregoing document(s), described as follows: APPELLANT’S OPENING BRIEF, on the party(s) set forth below by:

_X_ Placing an original or true copy thereof in a sealed envelope placed for collection and mailing in the United States Mail, at Reno, Nevada, postage prepaid, following ordinary business practices.

_X_ E-filing pursuant to 9th Circuit Court of Appeals Electronic Filing Procedures.

Addressed as follows:

Michael Thomas Gray, Esq Chief Appellate Counsel U.S. Attorney’s Office P.O. Box 23795 L’Enfante Plaza Station Washington D.C., 20026-3795

Blaine T. Welsh, Esq. U.S. Attorney’s Office 333 Las Vegas Blvd., So. Suite 5000 Las Vegas, NV 89101

DATED this 27th_ day of April , 2009.

By:/s/ Mercedese Witty MERCEDESE WITTY Legal Assistant

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STATEMEN T OF ALL KNOWN RELATED CASES AND APPEALS CERTIFICATION REQUIRED BY BAP RULE 8010(a)-1(c)

Docket No. 09-15176

Names of Appellants: WINNEMUCCA INDIAN COLONY; SHARON WASSON; THOMAS WASSON; JUDY ROJO; ELVERINE CASTRO; PETER LITSER; STEPHEN ERICKSON; KIM TOWNSEND; VIRGINIA SANCHEZ; JACK MALOTTE; ARVILLA MASCARENAS; and PATRICIA AXELROD.

The undersigned certifies that there are no known related cases and appeals.

DATED this 27th day of April, 2009.

HAGER & HEARNE

BY:/s/ TREVA J. HEARNE , ESQ. TREVA J. HEARNE, ESQ. SBN: 4450 245 E. Liberty St., Ste. 110 Reno, NV 89501 Tele: (775) 329-5800 Attorneys for Appellants

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