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H:\Western Shoshone\DIVINE STRAKE\OPENINGBRIEF9THCIR.Wpd Case: 09-15176 04/27/2009 Page: 1 of 41 ID: 6896712 DktEntry: 7 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, Las Vegas 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 explosive detonation at the Nevada test site. 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 i Case: 09-15176 04/27/2009 Page: 4 of 41 ID: 6896712 DktEntry: 7 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 ii Case: 09-15176 04/27/2009 Page: 5 of 41 ID: 6896712 DktEntry: 7 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., iii Case: 09-15176 04/27/2009 Page: 6 of 41 ID: 6896712 DktEntry: 7 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 iv Case: 09-15176 04/27/2009 Page: 7 of 41 ID: 6896712 DktEntry: 7 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 v Case: 09-15176 04/27/2009 Page: 8 of 41 ID: 6896712 DktEntry: 7 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 /// - 1 - Case: 09-15176 04/27/2009 Page: 9 of 41 ID: 6896712 DktEntry: 7 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 explosives 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) - 2 - Case: 09-15176 04/27/2009 Page: 10 of 41 ID: 6896712 DktEntry: 7 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 downwinders, residents of Nevada and Utah, filed - 3 - Case: 09-15176 04/27/2009 Page: 11 of 41 ID: 6896712 DktEntry: 7 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.
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