divine strake - march 21, 2008 motion

8/14/2019 Divine Strake - March 21, 2008 Motion

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- 1 -Winnemucca Indian Colony et al. v U.S. et al,2:06cv00497LDG-PAL, Motion for Fees

ROBERT R. HAGER, SBN 1482HAGER & HEARNE910 Parr Blvd., #8 E-f i led M ar ch 2 1, 20 0 8Reno, NV 89512Tel: 775.329.5800Fax: 775.329.5819

email: [email protected] for Plaintiffs

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 ) Case No: 2:06-cv-00497-LDG-PALSHOSHONE TRIBE, )

)Plaintiffs, )

)v. )

)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. )

____________________________)

MOTION TO DECLARE PLAINTIFFS THE PREV AILING PARTIES

AND FOR ATTORN EYS FEES AND COSTS

Plaintiffs, by and through their lead counsel herein, Robert R. Hager,

hereby move the Court under LR 54-16 for a declaration that they are the

prevailing parties, and for an award of attorneys fees and costs as the prevailing

Case 2:06-cv-00497-LDG-PAL Document 73 Filed 03/21/2008 Page 1 of 22


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parties in this action. This Motion is made and based on all the pleadings and

papers on file herein, the matters set forth herein and attached hereto, and the

evidence and argument heard in support of this Motion on June 27, 2007.

POINTS AND AUTHORITIESThe sequen ce of events in this case proves that it was this action an dthe written opinions ofPlaintiffs experts that forced the Defendants

each time to cancel the Divine Strake blast and w ithdraw theirinadequate environmental docum entation.

Plaintiffs set forth the following chronology of relevant events in support of

their request that the Court find that the Defendants decisions to detonate 700

tons of 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,

and that the Defendants were thwarted in their intentions and efforts to detonate

that huge bomb solely as a direct result of this litigation.

Chronology

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

2. January 30, 2006: Defendants issue 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

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

6. May 5, 2006: DIVINE STRAKE Revised EA

7. May 9, 2006: Defendants Revised FONSI approving 6/23/06 blast

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

9. 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



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281 U .S . v . H a l lm a r k Co n s t r u c t io n Co ., 200 F.3d 1076, 1080 (7th Cir. 2000)


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 DivineStrake bomb and the Defendants cancellation of their decisions:

Time betw een first Plaintiffs filing and ca ncellation : 13 days

Time betwe en se cond Plaintiffs filing and cancellation: 4 days

Time betw een 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 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 any substantial justification.1

What is not reflected by the above chronology and the quick cancellations

by Defendants of their blast plans is 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 is reflected by the attached Exhibits, and the

factual and legal reasons for why an award of fees and costs to Plaintiffs is proper

in this case are set forth below.



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2Id. 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 circumstancesof the case from a different perspective than that used at any other stage of the proceeding. . . At page 1080


I.

Plaintiffs are the pr evailing par ty in that the objective of theinjunction claim has been m et by Defendants perma nent cancellationof their plans for a 700 ton open -air explosive detonation at the NTS.

Plaintiffs by this Motion seek fees and costs for having successfullyprevented Defendants from carrying through with their plans to detonate 700

tons of high explosives on the surface at the NTS. 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 governments 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. The matters of evidentiary

hearing support this motion for fees.2

Plaintiffs have presented evidence that proved the Defendants decisions to

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

discussion to test the impacts to the environment and the governments

consultants report was prepared without adherence to basic scientific procedures.

Plaintiffs have proved 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. While an award of fees and

costs to Plaintiffs is proper where Defendants have decided to act under such



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circumstances, such a finding and award are also important in this case 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, particularlywhen they portend great risk to public health.

Based upon the testimony of Plaintiffs experts and the arguments of

counsel at the hearing on June 27, 2007, which provided the scientific basis, the

Court will find that an award of fees and costs to Plaintiffs is proper. Plaintiffs

counsel also points out that representation of Plaintiffs in successfully stopping

the dangerous Divine Strake bomb blast has placed a significant financial burden

on Plaintiffs counsel and expert witnesses. Plaintiffs lead counsel was compelled

to seek an extension of time in numerous trials and other court appearances

during the period from April 5, 2006, to June 8, 2006, and to decline new clients

during that period in order to assemble the team and coordinate the efforts

necessary to successfully stop Divine Strake.

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

governments decision.

II .

The Defendants actions in issuing the FONSI on Januar y 30,2006, based upon a Pr e-Approval Dra ft EA, without any m eaningful

opportunity for public comment w ere un reasonable.

The Defendants issued a Pre-Approval Draft EA in November, 2005. There

were no public hearings or public meetings ever held, nor any publication or other



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283 42 U.S.C. 4321 - 4347.


notice to inform the public that the Defendants were considering detonating a

huge bomb on the surface at the NTS, nor that Defendants had issued any Pre-

Approval Draft EA regarding Divine Strake. This procedural failure created a risk

of harm to the public.The Defendants then on January 30, 2006, issued a FONSIbased o n the

Pre-Approval Draft EA that was ne ver appro ved as a Final EA. The

public was never notified by any publication or other means that this FONSI had

been issued. This procedural failure created a risk of harm to the public and

denied the participatory right guaranteed by the National Environmental Policy

Act.3 After this series of unlawful acts that deprived the public of the very

protections of NEPA intended to protect the public, the government then argued

that this Court had no jurisdiction because no final administrative act had

occurred. The government cannot disobey the administrative process in failing to

appropriately arrive at a final administrative decision, threaten the final decision

and then argue to this Court that the final administrative act was not completed.

The government argued that it could violate the law and defeat public

participation and now, after an incredible effort by Plaintiffs, want to claim that it

withdrew its unlawful behavior after three attempts, so no harm, no foul.

On April 4, 2006, Defendant Tegnelia issued a Press Release announcing in

part that DTRA will conduct an experiment, DIVINE STRAKE, on the U.S.

Department of Energys Nevada Test Site on June 2, 2006. . . The NNSA has

determined that radioactively contaminated soils are not present within the

vicinity of the planned DIVINE STRAKE detonation site. . . No adverse impact on

the environment or health of exercise participants or local residents is anticipated

from this experiment. DIVINE STRAKE activities are in compliance with the

National Environmental Policy Act. (See Exhibit 1 attached hereto) These



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4Lan ds Coun c il v . Sw i ck , 2005 U.S. Dist. LEXIS 344469, at page 14. . . . this was a case where

Defendants simply ignored straightforward and important statutory obligations and forced Plaintiffs to bringthe matter to court to have the errors corrected. Citing T h o m a s v . P e te r s o n , 841 F.2d 332, 335 (9th Cir1988).


gratuitous conclusory statements by Defendant Tegnelia in that Press Release did

not satisfy the public notice requirements of NEPA, and his false assurances of no

radioactivity in the soil and no adverse impact on public health created a risk of

harm to the public who might have erroneously concluded that the Director ofDTRA had a scientific basis for those statements. Conclusory statements do not

support the environmental process. 4

The media coverage of Defendant Tegnelias April 4, 2006, Press Release

resulted in Plaintiffs lead counsel being informed of the Defendants decision to

detonate the DIVINE STRAKE bomb. Had it not been for the media coverage of

that Press Release, the Plaintiffs and their counsel herein might never have

learned of the huge DIVINE STRAKE bomb until after it was detonated as then

scheduled for June 2, 2006.

The procedure utilized by Defendants in this first stage of DIVINE

STRAKE, to-wit, the issuance of a FONSI based on a Pre-Approval Draft EA

without proper notice or an opportunity for public comment, was inapposite to

the spirit and letter of NEPA to foster both informed decision-making and

informed public participation. Substantively, the Defendants knew full well that

the standard scientific protocol for determining whether there exists deadly

radionuclides in the soil had not been followed. Accordingly, from both a

procedural and substantive perspective, the Defendants actions in this first stage

were either the result of incompetence or dishonesty.

The Plaintiffs commenced this action by the filing of their Complaint and

Motion for Temporary Restraining Order and Preliminary Injunction on April 20,

2006. Thirteen days later, on May 3, 2006, Plaintiffs counsel was informed by

phone by Defendants counsel that the blast scheduled for June 2, 2006, was



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cancelled and the FONSI issued on January 30, 2006, would be withdrawn. That

cancellation of the June 2 blast and withdrawal of the January 30 FONSI were

solely the direct and proximate result of the Plaintiffs aggressive pursuit of

injunctive relief in this action.On May 3, 2006, the Defendants cancelled the June 2 blast and withdrew

the January 30 FONSI. Amazingly, two days later on May 5, 2006, Defendant

Brooks and NNSA issued a Revised EA and then another FONSI four days later

on May 9. Here again, the form, content and preparation of the Revised EA were

designed to prevent informed decision-making and informed public participation.

The Defendants knew full well that the standard scientific protocol for

determining whether there exists deadly radionuclides in the soil had not been

followed. Nonetheless, the Defendants again made the same unsubstantiated

assurances that there existed no radioactively contaminated soils at the blast site

and that the 10,000 foot high mushroom cloud the blast would create would pose

no risk to public health. These unreasonable actions by Defendants in this second

stage of DIVINE STRAKE created a risk of harm to the public.

At the time of the Defendants issuance of their FONSI of May 9, 2006, the

Defendants were under this Courts Order requiring the production of the

administrative record on which the agencies final decisions were purportedly

based. This production was to be made by May 11 to the Plaintiffs counsel and the

Court. The administrative record filed in CD format with the Court and produced

in CD format and hard copy to Plaintiffs counsel consisted of approximately

33,000 pages of government documents on which the Defendants assurances of

the safety of the blast were alleged to be based. The Defendants proposed a

schedule for the Court to order that Plaintiffs counsel would have a total of

four da ys to review the entire 33,000 page administrative record,

consult w ith Plaintiffs experts to obtain their wr itten opinions, and

file any Second Amended Com plaint and Second Am ended Motion for



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an injunction to stop the blast.

As reflected by the attached Declaration of Robert R. Hager in support of

Motion for Attorneys Fees, Plaintiffs counsel were compelled to read the

approximately 33,000 pages of administrative record in order to identify therelevant facts on which the agencies appeared to have based their repeated

allegations that radioactively contaminated soils are not present at the planned

blast site, and that there would be no adverse health effect on downwind

populations from the 10,000 foot high mushroom cloud that the blast would

create. From the entire administrative record, it appeared that there were a total

of 22 pages of data related to radioactivity in the soils in the general vicinity of the

planned blast, and that data reflected inappropriate testing techniques and

protocol from which it could not be honestly stated by anyone to a reasonable

degree of scientific certainty that radioactively contaminated soils are not

present.

Concurrent with the huge burden of reviewing the administrative record,

Plaintiffs counsel began working closely with Richard L. Miller, probably the

worlds leading expert on nuclear testing at the NTS, in an effort to determine

whether it could be proven from documents previously published by the

government that there exists radioactively contaminated soils at the blast site.

Government documents possessed by Mr. Miller, but not produced by Defendants

as part of the administrative record, reflected radioactive fallout at the blast site

in Area 16 from six atmospheric nuclear tests in the 1950's.

Richard Miller and Dr. Diane M. Stearns provided written opinions

regarding the appropriate sampling protocol to determine the extent of

radioactivity in the soil likely to become airborne from the blast, and regarding

the testing by the agencies for radioactivity in the vicinity of the blast. As a result

of a great amount of time expended in a coordinated effort by Plaintiffs counsel

and experts, the Second Amended Complaint and Second Amended Motion for



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Temporary Restraining Order and for Preliminary Injunction was filed on May

22, 2006. Those pleadings so effectively proved that the Defendants second

FONSI had been issued unreasonably and without substantial justification, that

four days later on May 26, the Defendants withdrew their second FONSI andannounced an indefinite postponement of the Divine Strake blast. The Plaintiffs

thereby again prevailed by stopping the Defendants in stage two of their final

decisions to detonate the huge bomb.

III.

In all three stages of Defendan ts efforts to vouch for the safety ofthe Divine Strake blast, the Defenda nts acted w ithout su bstantial

justification wh ich makes pro per an aw ard of fees and costs.

As stated above, and as reflected by the pleadings and papers on file herein,

and particularly as proven by the testimony of the experts, the two FONSIs issued

by the Defendants were unreasonable. For the Defendants, to have contemplated

this project without a full EIS and full public participation, then to represent to

this Court that the delays were to reassess, were unreasonable acts by the agency

and made without substantial justification. Prior to the issuance by Defendants

of the two FONSIs, there had been absolutely no soil sampling performed to

determine to what extent the soil which the Defendants knew would go airborne

was radioactively contaminated. Since this failure to properly test the soil for

deadly radioactivity could only be explained as the result of the intent to hide the

basis of the decision or incompetence, Plaintiffs requested in their Second

Amended Motion for Temporary Restraining Order or Preliminary Injunction

that the Court enter an Order prohibiting the Defendants as follows:

3. From conducting any further surveys or alleged sampling of soilslikely to become airborne as a result of Divine Strake or any otherdetonation of explosives at the Nevada Test Site without the directparticipation and involvement of some independent, qualified scientist whois not operating under the conflict of interest which has to date constrainedthe Defendants and their contractor, Bechtel of Nevada, from fulfilling theirobligations in an objective manner;

When the Defendants were faced with a hearing scheduled for June 8,



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2006, at which Plaintiffs would present evidence of the unreasonableness of

Defendants decisions to issue two FONSIs without the public participation that

would have revealed the scientific inaccuracies, Defendants withdrew the decion

to go forward with Divine Strake. Without utilizing standard scientificradioactivity sampling techniques, the Defendants withdrew their second FONSI

and cancelled the blast. This action was taken by Defendants in order to prevent

the Court from hearing the unreasonableness of Defendants final agency

decisions and the lack of any substantial justification for the conclusions stated in

the two EAs theretofore published by Defendants.

Defendants actions after the May 26, 2006, withdrawal of the second

FONSI were even more unreasonable, and their later refusal to allow the

involvement of independent scientists to assure that the proper sampling

techniques were used, resulted in the waste of a reported additional $2 Million to

$3 Million on a third Draft Revised Environmental Assessment issued

December 20, 2006. Even worse than the waste of that large sum of taxpayers

money was the risk of harm posed by Defendants once again unreasonably and

falsely assuring the public that their third EA had conclusively established the

blast would not adversely impact the environment and that there was no risk to

public health. In other words, rather than do the right thing and agree to the

involvement of independent scientists to keep the Defendants and Bechtel of

Nevada honest, the Defendants once again initiated a process that was designed

to result in the detonation of the huge bomb without regard for the birth defects

and cancers that would be caused by the blast in downwind populations.

It was again left to Plaintiffs counsel and experts to identify the specific

deficiencies in this third EA, and to stop the Defendants from proceeding with

their stated intention of detonating the bomb. On February 6, 2007, again after a

great deal of time and effort by the Plaintiffs legal team, their written comments

and expert opinions were filed with the agencies. Also submitted was a letter



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5H e l l s Can y on Preserva t i on Counc i l v . Un i t ed S t a t e s Fores t Se rv i ce , 2004 U.S. LEXIS

17113 (U.S.D.C. Ore. 2004) The position of the government includes the agencys actions or failures to acton which the civil litigation is based, and the governments litigating position. At page 3.


informing the Defendants that Plaintiffs would seek an injunction against the

blast based on proof that the radionuclides once airborne would cause increased

incidents of birth defects and cancers in the downwind population. Sixteen days

later, on February 22, 2007, Defendant Tegnelia issued a Press Releaseannouncing the Cancellation of the Proposed Divine Strake Experiment.

(Exhibit 2)

In that Press Release, Defendant Tegnelia states as to the cancellation of

Divine Strake that (T)his decision was not based on any technical information

that indicates the test would produce harm to workers, the general public, or the

environment. When an agency fails or refuses to admit the deficiencies in its

scientific studies and NEPA documents in connection with its withdrawal of those

decisions or documents, that denial makes proper an award of fees and costs to

the Plaintiffs where it can be shown that the agencys actions were unreasonable

or without substantial justification.5 The Court heard evidence by the testimony

of the experts on whether the Defendants actions were reasonable and

substantially justified given the extreme risk of harm posed by Defendants

actions, and the history of birth defects, cancer, and lies by the government

related to past weapons testing at the NTS.

In the Radiation Exposure Compensation Act, our government apologized

to downwinders for having caused cancer by atmospheric nuclear testing at the

NTS in the 1950's and 1960's, and created a program for compassionate

compensation to the victims of our governments actions at the NTS and the false

assurances by government officials about the safety of those weapons tests. These

admissions of harm to public health and misrepresentations of safety by the U.S.

government justify a heightened scrutiny of the public health risks of weapons



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testing at the NTS, and whether the Defendants actions in the prospective blast

of Divine Strake were based on faulty or intentionally misleading information was

the basis for the decisive actions of the Plaintiffs in this litigation.

IV.Plaintiffs are entitled to an aw ard o f fees and costsin the am ount set forth in the attached Statem ents

from Plaintiffs counsel and e xpert witnessesas re flected by the following Lodes tar analysis.

Fees are appropriately awarded to the prevailing party pursuant to 28

U.S.C. 2412(d)(1)(A). The following are the factors the Court should consider in

its award of fees and costs.

1.) A reason able item ization an d description of the work

performed.

Attached hereto as Exhibit 3 is a summary of the Plaintiffs Attorneys and

Expert Witness Fees and costs incurred in this action. Attached as Exhibit 4 is

the Statement from Hager & Hearne reflecting an itemization and description of

the work performed by plaintiffs counsel Robert R. Hager and Treva J. Hearne.

Attached as Exhibit 5 is the Statement from Peter dErrico reflecting an

itemization and description of the work performed by Plaintiffs legal consultant

Peter dErrico. Attached as Exhibit 6 is the Statement from Terry J. Lodge

reflecting an itemization and description of the work performed by Plaintiffs

counsel Terry J. Lodge. Attached as Exhibit 7 is the Statement from Randall K.

Edwards reflecting an itemization and description of the work performed by

Plaintiffs counsel Randall K. Edwards.

Attached as Exhibits 8, 9, 10 and 11, are the Declarations or Affidavits of

Robert R. Hager, Terry J. Lodge, Randall K. Edwards, and Peter dErrico,

respectively, reflecting their expertise and experience as it relates to the requested

award of attorneys fees.

Attached as Exhibit 12 is the Statement from Legis Corp reflecting an



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itemization and description of the work performed by Plaintiffs expert witness

Richard L. Miller. Attached as Exhibit 13 is the Statement from Thomas M. Fasy,

M.D., Ph.D., reflecting an itemization and description of the work performed by

Plaintiffs expert witness Dr. Fasy. Attached as Exhibit 14 is the Statement fromHarvey Bigelsen, M.D., reflecting an itemization and description of the work

performed by Plaintiffs expert witness Dr. Bigelsen. Attached as Exhibit 15 is the

Statement from Diane M. Stearns, Ph.D., reflecting an itemization and

description of the work performed by Plaintiffs expert witness Dr. Stearns.

Attached as Exhibit 16 is the Statement from Michael E. Ketterer, Ph.D.,

reflecting an itemization and description of the work performed by Plaintiffs

expert witness Dr. Ketterer.

2.) An itemization of all costs sought to be charged.

A record of reasonably and necessarily incurred costs is set forth in the

Statement of Hager & Hearne attached hereto as Exhibit 4.

3). A brief summ ary of:

(A.) The nature of the case.

This case began with a request for an emergency order, included requests

for a temporary restraining order and a preliminary injunction. The complaint

requested the United States to prepare an adequate and truthful environmental

assessment of the proposed detonation of 700 tons of explosive material at the

Nevada Test Site. All pleadings sought to prohibit the detonation of DIVINE

STRAKE because of the threat to the public health and safety and irreparable

harm to the environment. A detailed history of this action is set forth above.

(B.) The difficulty of the case.

The case was very difficult both legally and factually because of the inherent

secrecy that surrounded the protocol and procedures employed by the

Department of Defense who filtered this project through DTRA, the agency

charged with detonating the weapon at the Nevada Test site. In order to



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successfully advocate against the detonation, counsel for the plaintiffs had to

learn the scientific history as well as interview persons affected by the earlier

detonations. The Plaintiffs counsel were educated by the expert witnesses about

the effects of radiation and the hundreds of different radio-isotopes that exist atthe Nevada Test Site. The Plaintiffs counsel was served with approximately

33,000 pages of administrative record that was produced by the United States,

and were required to obtain and read thousands of pages of other government

publications and other documents. The Plaintiffs counsel had to review these

documents in order to ferret out the inconsistencies and failures of the United

States in accurately evaluating the effects of detonating such a massive explosion

at the site while understanding the physics of the manner and dynamics of the

proposed bomb that was to be detonated.

The Plaintiffs counsel was required to know the application of the

environmental laws to this event. The Plaintiffs counsel interviewed numerous

expert witnesses to find those witnesses who could best address the issues posed

by the detonation. The Plaintiffs counsel had to review the nuclear proliferation

treaties entered into by the United States to determine if the detonation violated

the terms of those treaties.

(C. ) The results o bta ined.

The Plaintiffs sought an injunction to stop the detonation or require the

Defendants to provide an adequate and truthful environmental document that

examined the health effects and environmental damage of such a detonation. As

a direct result of this action by Plaintiffs, the Defendants have withdrawn two

FONSIs previously issued to authorize the blast, and then were forced to

permanently cancel the 700 ton detonation. The objectives of the litigation in

preliminarily and permanently preventing the Defendants from detonating the

Divine Strake bomb have been achieved.

//



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(D.) The time and labor requ ired.

The time and labor required included review of the administrative record

and other documents, review of the history of the Nevada Test Site, research of

the law on the environmental documentation and the treaties, review of the file atthe Nevada Division of Environmental Protection. The expert witnesses spent

many hours educating counsel on the specific scientific challenges to the

governments proposal. This law firm has two partners. This work was complex

and required that Hager & Hearne seek assistance from other attorneys with the

expertise and contacts with expert witnesses and with the Plaintiffs that would

not have been possible without further assistance.

(E.) The novelty and difficulty of the questions involved.

The arguments in I, II, and III above examine the novelty and difficulty of

the questions involved. The issues involved were also difficult in light of the

procedural machinations of Defendants during the litigation which were intended

to divest this Court of jurisdiction while Defendants continued in secret with their

efforts to detonate the bomb.

(F.) The skill requ isite to perform the legal service properly.

This case called upon counsels extensive experience. Mr. Hager has a great

deal of experience in federal litigation, including representation of Plaintiffs

against the Department of Defense against the MX racetrack missile system

proposed for Nevada in the early 1980's. He has extensive experience in complex

litigation and litigation against the government. This experience was essential in

understanding the issues and the strategy to prosecute this matter. Ms. Hearne

has been involved in environmental law issues for the past 28 years. The

declarations reflecting the expertise and experience of Plaintiffs counsel are

attached.

//

//



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(G.) The preclusion of other em ploymen t by the attorn ey due to

acceptance of this case.

This case required counsel to spend many hours to research the law and the

scientific and medical issues related to the presence of radionuclides in the soiland the harm to public health portended by re-suspension of that radioactive

material. Counsel could not use any other prior case that was relevant to the facts

in this exact circumstance, so there was no other case that could be done at the

same time. Counsel was precluded from other employment by the acceptance of

this case in that the obligation of counsel to very quickly become proficient in the

facts and law made it necessary for counsel to postpone work on other matters

and not take on new clients during the period from April 5, 2006, through may

22, 2006, and from December 20, 2006, through February 6, 2007.

(H.) The customa ry fee.

Robert R. Hager charges a standard rate of Three Hundred Dollars per

hour for litigation work, with a higher fee charged for work performed on an

emergency basis, on weekends or holidays, or which places an additional burden

due to obligations owed other clients. Hager & Hearne is a two lawyer law firm,

and the firm does not have a different fee for the type of work performed, except

in the case of representation for flat rate fees, which typically is limited to

criminal defense. All time is billed at the same hourly rate of Three Hundred

Dollars per hour by Treva J. Hearne. The usual and ordinary hourly rate for

attorneys in the Reno area with the experience of Robert R. Hager and Treva J.

Hearne is $300.00 per hour or slightly more.

(I.) W hether the fee is fixed or contingent.

This fee in this case was contingent upon being the prevailing party.

(J.) The time limitations imposed by the circum stances.

This case involved from its commencement the request by Plaintiffs for

emergency injunctive relief. The short time period between learning of the



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Defendants decision to detonate the bomb on April 5, 2006, and the scheduled

detonation on June 2, 2006, imposed an extreme burden on Plaintiffs counsel to

act quickly. The even shorter time period between the Defendants production of

the more than 33,000 pages of administrative record on May 11 and the deadlinefor filing the Plaintiffs Second amended Complaint and Second Amended motion

for Preliminary Injunction on May 22, 2006, imposed an almost impossible

burden on Plaintiffs counsel and expert witnesses. The third attempt by

Defendants to justify the detonation by their December 20, 2006, Revised EA

with a short public comment period that included the Christmas and New Year

holidays also imposed severe time constraints on counsel and the expert

witnesses.

(K.) The experience, reputation and ability of the attorn ey.

Robert R. Hager is well known in the Reno, Nevada area for his experience

in representation of civil rights clients. Certain specific civil rights cases in which

he represented the Plaintiffs were the subject of a 60 Minutes segment that

aired on April 21, 1985. He stopped the use of the carotid chokehold by the Reno

Police Department in the early 1990's, and obtained a special jury verdict in

another excessive force case in 1993 wherein the jury specifically found that the

Reno Police Department had a policy of using excessive force. He represented the

Western Shoshone Nation at the United Nations in Geneva in 2006 in an effort to

encourage the United States government to finally resolve the issues of the Ruby

Valley Treaty of 1863 which have been in litigation since the 1950's. He has

represented licensed professionals, police officers, Indian Tribes and other

individuals in federal district courts and federal appellate courts since the early

1980's. Mr. Hager has a wide range of litigation experience in class action

matters, wrongful death, false imprisonment and other complicated and difficult

litigation in products liability. Mr. Hager has served in the mid-1990's as Special

Prosecutor for the Nevada Commission on Judicial Discipline at the request of the



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Commission. He also was appointed to the Civil Justice Reform Act Committee in

this Court. (See Declaration of Robert R. Hager).

Treva Hearne served as the General Counsel of the Missouri Department of

Natural Resources and spent much of her time in litigation involvingenvironmental matters on behalf of the City of Adelanto, California, several

industries who were attempting to obtain permits and required to prepare

environmental impact statements and environmental impact reports in

California, Missouri, Pennsylvania and South Carolina. She has taught seminars

on environmental law for continuing legal education and to the line agents of the

United States Forestry service.

Ms. Hearne has represented a client against the State of Nevada to

resolution and prevailed in that matter at the United States Supreme Court. She

has three published articles on matters of environmental law, including an article

in the Journal of Natural Resources, Journal of the American Bar Association.

Terry J. Lodge is a well known and respected litigator and environmental

attorney who has been a sole practitioner in Ohio since 1980. He has handled

several NEPA cases as lead or sole counsel in the federal district and applellate

courts, and his expertise in recent NEPA litigation and knowledge of current

requirements of environmental procedures and laws made his involvement in this

case essential for the Plaintiffs team. His standard hourly rate for legal services is

$300.00 per hour. (See Declaration of Terry J. Lodge).

(L.) The undesira bility of this case.

The time and dedication required for this matter did not attract any other

attorneys except the ones that were solicited by Hager & Hearne. The law firm

feels strongly that the involvement in this case was required in order to protect

the citizens of Nevada, Utah, Arizona, Idaho, and other States who would again

have been exposed to radioactive fallout. This case was undesirable because we

had to publicly criticize our governments decisions and appear to be adverse to



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6 28 U .S.C. 2412(d)( 1)(A) .

7T e x a s S t a t e T e a c h e r s A s s n . V . G a r l a n d I n d e p e n d e n t Schoo l D i s t r i ct , 489 U.S. 782, 789

103 L.Ed.2d 866, 108 S.Ct. 1486 (1989). See also, U n i t e d S t a t e s v . R e a l P r o p e r t y k n o w n a s 2 2 2 4 9

D o l orosa S t . , 190 F.3d 977, 981 (9th Cir. 1999).


our own government. The case was also undesirable in that at the time the

decision was made to take the case, it appeared unlikely that the Defendants

could be stopped from detonating their bomb based in part upon the fact that the

United States government had detonated an admitted 1,028 atomic bombs at theNTS without ever having been previously stopped from doing so.

The law firm had to prepare for the possibility of an announcement of the

detonation on a thirty day prior notice schedule. This meant that the law firm

had to be ready to react within a very, very short time frame.

(M.) The nature and length of the professiona l relationship with the

client.

None of us had known the Plaintiffs with the exception of some of the

Western Shoshone Plaintiffs which Hager & Hearne had previously represented

or presently represent in other matters.

(N.) Awards in s imi lar cases .

Plaintiffs counsel are unaware of any similar cases or awards in similar

cases.

V.

Argument

Under the Equal Access to Justice Act, a court shall award attorney fees,

costs and other expenses to a prevailing party in a civil action brought by or

against the United States in any court having jurisdiction of that action. . . 6

Generally, Plaintiffs crossed the prevailing threshold if they succeed on any

significant issue of litigation which achieves some of the benefit the parties sought

in bringing the lawsuit.7 The touchstone of the prevailing party inquiry must be



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288 28 U.S .C. 2412(d0 (1) (B)


the material alteration of the legal relationship of the parties in a manner which

Congress sought to promote in the fee statute. Id. At 792-93 In this case

Plaintiffs prevailed because the Defendants withdrew their FONSIs and their

EAs, and permanently cancelled the detonation of the 700 ton Divine Strakebomb at the NTS, the very resolution sought by the Plaintiffs.

The Court has the authority to make an immediate award of attorneys fees

and costs. The EAJA requires that a prevailing party include an itemized

statement for any attorney or expert witness representing or appearing in behalf

of the party stating the actual time expended and the rate at which fees and other

expenses were computed.8 The itemized statements of fees and costs are

attached hereto.

WHEREFORE THE ABOVE-STATED REASONS, the Plaintiffs respectfully

request that they be declared the prevailing parties, and that their counsel be

awarded attorneys fees, expert witness fees, and costs of litigation.

Dated this 21st day of March, 2008.

__/s/ Robert R. Hager____Robert R. Hager SBN 1482910 Parr Blvd., #8Reno, NV 89512Tel: 775.329.5800Fax: 775.329.5819email: [email protected]

Attorney for Plaintiffs



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CERTIFICATE OF SERVICE

Pursuant to FRCP 5(b), I certify that I am an employee of the law offices ofHAGER & HEARNE, 910 Parr Boulevard, Suite 8, Reno, Nevada 89512, and thaton this date, I served the foregoingM ot ion to Dec lar e P la in t i f f s th ePr e v a i li ng Par t i e s and f o r A t t o r n e y s Fe e s an d Cos t s on the party(s) set

forth below by:____ 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.

____ Personal delivery.

____ Facsimile (FAX) to: _________________________

____ Federal Express or other overnight delivery.

_xx__ E-filing pursuant to Electronic Filing Procedures.

Sara Culley, Esq.Via Facsimile: 202-305-0267Natural Resources SectionUnited States Department of Justice

Washington, D.C. 20044-0663

S. Jay GovindanVia Facsimile: 702-388-6787333 Las Vegas Blvd., South5th Floor

Las Vegas, Nevada 89101

Blaine T W elshU.S. Attorney's Office333 Las Vegas Blvd SoSuite 5000Las Vegas, NV 89101-

Caroline M. Blanco United States Department of JusticeP.O. Box 663

Washington, D. 20044-0663(202) 305-0248Fax: (202) 305-0267

DATED: March 21, 2008.

/s/ Bobbie MeyerBobbie Meyer


divine strake - march 21, 2008 motion

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