divine strake (robert hager) plaintiff's post-hearing reply brief

8/15/2019 Divine Strake (Robert Hager) Plaintiff's Post-hearing reply brief

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- 1 -Winnemucca Indian Colony et al. v U.S. et al, Plaintiffs Post Hearing Brief

Robert R. Hager, SBN 1482HAGER & HEARNE910 Parr Blvd., #8 E -f il ed on Au gu s t 7 , 20 0 7 Reno, 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 ) Case No: 2:06-cv-00497-LDG-PAL

AXELROD, and TIMBISHA )SHOSHONE TRIBE )

Plaintiffs, ))

v. )) PLAINTIFFS POST HEARING) REPLY BRIEF

UNITED STATES OF AMERICA, )DONALD RUMSFELD, Secretary )of the United States Department )of Defense, LINTON BROOKS, )Director of the National Nuclear )Security Administration, JAMES )TEGNELIA, Director of the Defense )Threat Reduction Agency, )

)Defendants. )

__________________________)

I.The Plaintiffs know that something hashappened since the first announcem ent

of Divine Strake.

The agency argues that the Plaintiffs dont know this case is over. Yes, the

Plaintiffs know this case is over because this Court stopped the detonation of

Divine Strake based upon the Plaintiffs filing a complaint and motions.

Case 2:06-cv-00497-LDG-PAL Document 71 Filed 08/07/2007 Page 1 of 4


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Notwithstanding the agencys vague explanations of why it withdrew the decision

to detonate Divine Strake, a quick review of the timing tells the entire story:

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

Time betwe en se cond Plaintiffs filing and cancellation: 4 daysTime betw een third Plaintiffs filing and cancellation : 16 days

II .

In order for this Court to have gone about the

review o f the agency decision in an or derly fashion,

the agency had to have obeyed the law whe n m aking the decision.

The agency argues that the jurisdiction can only be achieved when the

proper procedural steps of NEPA are followed. In order for that to occur, the

agency itself had to first obey the law and regulations of NEPA, i.e., notice of the

decision, make the environmental record available for public review and

comment, prepare a report with the public comment incorporated and responded

to, and finally a final report.

Instead the agency took the bull in a china shop approach and just

announced the detonation and announced that there was no health risk. Without

ever presenting to this Court substantial justification for any of the final agency

actions that announced the detonation, the detonations were scheduled, not

planned, scheduled for blast.

The issue is how this Court stops this Beltway agency defiance of the law

from injuring the citizens of Nevada and Utah in the future. There were f inal

agency actions to detonate Divine Strake. Facts granted, the final agency actions

were a moving target designed by the agency to escape the required

environmental review. The record of abysmal agency action in this matter

requires that the Court grant injunctive and declaratory relief under the



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1 W e s t la n d s W a t e r D is t . V . F ir e b a u g h Ca n a l , 10 F.3d 667, 673 (9th Cir. 1993) cited with

authority as the basis for the equitable relief: In addition, the Court may not refuse to issue an injunctionwhen it is necessary to preserve precisely that which (a) statute seeks to preserve. (In this case NEPA).G old a m m e r v . V en e m a n , 2007 U.S. Dist. LEXIS (U.S.D.C. Ore. June 14, 2007) Also see, Na t i ona lW i ld l i fe Federa t i on v . Espy , 45 F.3d 1337 (9th Cir. 1995).


Administrative Procedure Act which is controlled by principles of equity. 1

An injunction entered by this Court will make permanent the requirement

that the agency provide general public notice and disclosure of any future efforts

to conduct blasts at the NTS. An injunction will remind the agency that realpeople live in Nevada and Utah and they have the right to notice when the agency

wants to consider detonating another device that will spew radioactive soils into

the atmosphere for them to breathe.

III.

The agency presented no suppor t for

its environ me ntal docum entation wh atsoever.

The Plaintiffs spent hours and days preparing reports with expert

testimony to demonstrate the agencys rash decision-making process. Now, the

agency refers to Plaintiffs experts as alleged experts when the agency made not

one objection to the credentials of Plaintiffs expert witnesses at hearing.

This Court did not hear from any contractor who prepared the

environmental documentation. The only evidence supporting the environmental

documentation that has been presented is by the United States Department of

Justice now testifying in its responsive brief which is completely inappropriate

and should be stricken. (Agencys Brief, page 9).

IV.

Conclusion

The Plaintiffs submit the agencys responsive brief as the best example of

the skewed agency thinking that gave rise to the Divine Strake debacle. The

Plaintiffs pray that this Court will enter an injunction and declaration that



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- 4 -Winnemucca Indian Colony et al. v U.S. et al, Plaintiffs Notice of Agreement

protects the downwinders from any further threat from the Defense Threat

Reduction Agency.

Dated this 7th day of August, 2007.

/s/ Treva J. HearneRobert R. Hager, SBN 1482Treva J. Hearne, SBN 4450HAGER & HEARNE910 Parr Blvd., #8Reno, NV 89512Tel: 775.329.5800Fax: 775.329.5819email: [email protected]

Attorney for Plaintiffs


divine strake (robert hager) plaintiff's post-hearing reply brief

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