Divine Strake lawsuit, March 21, 2008 Motion

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

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LAW OFFICE OF HAGER & HEARNE910 PARR BLVD., #8RENO, NV 89512(775) 329-5800; FAX(775) 329-5819

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

ROBERT R. HAGER, SBN 1482HAGER & HEARNE910 Parr Blvd., #8 E-filed March 21, 2008

Reno, NV 89512Tel: 775.329.5800Fax: 775.329.5819email: [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, VIRGINIASANCHEZ, JACK MALOTTE, KIMTOWNSEND, ARVILLAMASCARENAS, PATRICIAAXELROD, and TIMBISHASHOSHONE TRIBE,Plaintiffs,)))))

)))))))Case No: 2:06-cv-00497-LDG-PAL)v. )UNITED STATES OF AMERICA,DONALD RUMSFELD, Secretaryof the United States Department

of Defense, LINTON BROOKS,Director of the National NuclearSecurity Administration, JAMESTEGNELIA, Director of the DefenseThreat Reduction Agency,))))))


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)))Defendants.))

____________________________)

MOTION TO DECLARE PLAINTIFFS THE PREVAILING PARTIESAND FOR ATTORNEYS 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 theprevailing parties, and for an award of attorneys fees and costs as the prevailing

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


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

The sequence of events in this case proves that it was this action andthe written opinions of Plaintiffs experts that forced the Defendantseach time to cancel the Divine Strake blast and withdraw theirinadequate environmental documentation.

Plaintiffs set forth the following chronology of relevant events in support oftheir request that the Court find that the Defendants decisions to detonate 700tons 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 detonatethat huge bomb solely as a direct result of this litigation.

Chronology

1. November, 2005: DIVINE STRAKE Pre-Approval Draft EA2. January 30, 2006: Defendants issue FONSI approving blast3. April 4, 2006: DTRA Press Release announcing 6/2/06 blast date4. April 20, 2006: Plaintiffs file Complaint and TRO Motion5. May 3, 2006: Defendants withdraw FONSI and cancel blast6. May 5, 2006: DIVINE STRAKE Revised EA7. May 9, 2006: Defendants Revised FONSI approving 6/23/06 blast

8. May 22, 2006: Plaintiffs file Second Amended Complaint and Motion9. May 26, 2006: Defendants withdraw Revised FONSI and cancel6/23/06 blast10. December 20, 2006: Defendants issue Draft DIVINE STRAKERevised EA, Site Characterization, and related supporting documents11. February 6, 2007: Plaintiffs file their written comments and expertsopinions with Defendants and challenge to Draft Revised EAWinnemucca Indian Colony et al. v U.S. et al,2:06cv00497LDG-PAL, Motion for Fees -2


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12. February 22, 2007: Defendants announce permanent cancellation ofplans for Divine Strake 700 ton detonation

The above brief chronology shows the following time periods between thePlaintiffs written challenges to the Defendants scheme to detonate the Divine Strake bomb and the Defendants cancellation of their decisions:

Time between first Plaintiffs filing and cancellation: 13 daysTime between second Plaintiffs filing and cancellation: 4 daysTime between third Plaintiffs filing and cancellation: 16 days

There are two reasons why the Defendants cancelled their plans to detonate the700 ton bomb very shortly after each written challenge by the Plaintiffs. First,this Court had made clear by its prompt scheduling of evidentiary hearings andcontinued monitoring of this case by regularly scheduled status conferences thatthe 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 thePlaintiffs were prepared to prove that the Defendants had each time falselyvouched for the safety of the huge blast and maintained that the litigation waswithout merit when the government pressed forward with its decision makingprocess without any substantial justification.1

What is not reflected by the above chronology and the quick cancellationsby Defendants of their blast plans is the extent of time and money that wasexpended by Plaintiffs counsel and their experts in successfully stopping theDefendants from carrying out their dangerous plan. That extensive work byPlaintiffs 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 isproperin this case are set forth below.

1 U.S. v. Hallmark Construction Co., 200 F.3d 1076, 1080 (7th Cir. 2000)Winnemucca Indian Colony et al. v U.S. et al,2:06cv00497LDG-PAL, Motion for Fees -3


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I.Plaintiffs are the prevailing party in that the objective of the

injunction claim has been met by Defendants permanent 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 700tons of high explosives on the surface at the NTS. Moreover, as proven at theevidentiary hearing on this Motion by the testimony of Plaintiffs experts, theDefendants procedure that was adopted in order to conduct the Divine Strakedetonation was without substantial justification, and the Defendants falseassurances that the blast would be safe were the result of incompetence ordishonesty. Given the government s past history of lies to downwinders andnuclear 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 forthe agencies blatant disregard for science and truth to have been submitted to an

appropriate and timely environmental discussion. The matters of evidentiaryhearing support this motion for fees.2

Plaintiffs have presented evidence that proved the Defendants decisions todetonate the Divine Strake bomb failed to include the public in a meaningfuldiscussion to test the impacts to the environment and the government sconsultants report was prepared without adherence to basic scientific procedures.Plaintiffs have proved that, to a reasonable degree of scientific and medicalcertainty, the detonation of the bomb by Defendants as planned would haveresulted in increased incidents of cancer and birth defects in downwind

populations hundreds or thousand of miles away. While an award of fees andcosts to Plaintiffs is proper where Defendants have decided to act under such

2 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 theproceeding. . . At page 1080.

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circumstances, such a finding and award are also important in this case so thatthis 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 ofcounsel at the hearing on June 27, 2007, which provided the scientific basis, theCourt will find that an award of fees and costs to Plaintiffs is proper.Plaintiffscounsel also points out that representation of Plaintiffs in successfully stopping

the dangerous Divine Strake bomb blast has placed a significant financial burdenon Plaintiffs counsel and expert witnesses. Plaintiffs lead counsel was compelled

to seek an extension of time in numerous trials and other court appearancesduring the period from April 5, 2006, to June 8, 2006, and to decline new clientsduring that period in order to assemble the team and coordinate the effortsnecessary to successfully stop Divine Strake.

The complexity of the public health issues related to the re-suspension ofradioactivity and the need for highly-qualified expert witnesses in thisspecializedarea of science and medicine both caused this action to be time-consuming anddifficult for Plaintiffs counsel. Plaintiffs counsel were required to locate and

obtain experts who are world renown in their field. Plaintiffs counsel likewisehad to make certain that these experts had unimpeachable qualifications for the

conclusions, reports and testimony provided to this Court regarding thegovernment s decision.

II.The Defendants actions in issuing the FONSI on January 30,2006, based upon a Pre-Approval Draft EA, without any meaningfulopportunity for public comment were unreasonable.

The Defendants issued a Pre-Approval Draft EA in November, 2005. Therewere no public hearings or public meetings ever held, nor any publication or other



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notice to inform the public that the Defendants were considering detonating ahuge 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 riskof harm to the public.

The Defendants then on January 30, 2006, issued a FONSI based on thePre-Approval Draft EA that was never approved as a Final EA. Thepublic was never notified by any publication or other means that this FONSI hadbeen issued. This procedural failure created a risk of harm to the public anddenied the participatory right guaranteed by the National Environmental PolicyAct.3 After this series of unlawful acts that deprived the public of the veryprotections of NEPA intended to protect the public, the government then arguedthat this Court had no jurisdiction because no final administrative act hadoccurred. The government cannot disobey the administrative process in failing toappropriately arrive at a final administrative decision, threaten the final

decisionand then argue to this Court that the final administrative act was not completed.The government argued that it could violate the law and defeat publicparticipation and now, after an incredible effort by Plaintiffs, want to claimthat itwithdrew its unlawful behavior after three attempts, so no harm, no foul.

On April 4, 2006, Defendant Tegnelia issued a Press Release announcing inpart that DTRA will conduct an experiment, DIVINE STRAKE, on the U.S.Department of Energy s Nevada Test Site on June 2, 2006. . . The NNSA hasdetermined that radioactively contaminated soils are not present within thevicinity of the planned DIVINE STRAKE detonation site. . . No adverse impact onthe environment or health of exercise participants or local residents is

anticipatedfrom this experiment. DIVINE STRAKE activities are in compliance with theNational Environmental Policy Act. (See Exhibit 1 attached hereto) These

3 42 U.S.C. 4321 - 4347.Winnemucca Indian Colony et al. v U.S. et al,2:06cv00497LDG-PAL, Motion for Fees -6


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gratuitous conclusory statements by Defendant Tegnelia in that Press Release didnot 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 notsupport the environmental process. 4

The media coverage of Defendant Tegnelia s April 4, 2006, Press Releaseresulted in Plaintiffs lead counsel being informed of the Defendants decision to

detonate the DIVINE STRAKE bomb. Had it not been for the media coverage ofthat Press Release, the Plaintiffs and their counsel herein might never havelearned 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 DIVINESTRAKE, to-wit, the issuance of a FONSI based on a Pre-Approval Draft EAwithout proper notice or an opportunity for public comment, was inapposite tothe spirit and letter of NEPA to foster both informed decision-making andinformed public participation. Substantively, the Defendants knew full well thatthe standard scientific protocol for determining whether there exists deadlyradionuclides in the soil had not been followed. Accordingly, from both aprocedural and substantive perspective, the Defendants actions in this first stagewere either the result of incompetence or dishonesty.

The Plaintiffs commenced this action by the filing of their Complaint andMotion for Temporary Restraining Order and Preliminary Injunction on April 20,2006. Thirteen days later, on May 3, 2006, Plaintiffs counsel was informed byphone by Defendants counsel that the blast scheduled for June 2, 2006, was

4 Lands Council v. Swick, 2005 U.S. Dist. LEXIS 344469, at page 14. . . . this was a case whereDefendants simply ignored straightforward and important statutory obligations andforced Plaintiffs to bringthe matter to court to have the errors corrected. Citing Thomas v. Peterson, 841F.2d 332, 335 (9th Cir.1988).



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cancelled and the FONSI issued on January 30, 2006, would be withdrawn. Thatcancellation of the June 2 blast and withdrawal of the January 30 FONSI were

solely the direct and proximate result of the Plaintiffs aggressive pursuit ofinjunctive relief in this action.

On May 3, 2006, the Defendants cancelled the June 2 blast and withdrewthe January 30 FONSI. Amazingly, two days later on May 5, 2006, DefendantBrooks and NNSA issued a Revised EA and then another FONSI four days lateron May 9. Here again, the form, content and preparation of the Revised EA weredesigned to prevent informed decision-making and informed public participation.The Defendants knew full well that the standard scientific protocol fordetermining whether there exists deadly radionuclides in the soil had not beenfollowed. Nonetheless, the Defendants again made the same unsubstantiatedassurances that there existed no radioactively contaminated soils at the blastsite

and that the 10,000 foot high mushroom cloud the blast would create would poseno risk to public health. These unreasonable actions by Defendants in this secondstage 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, theDefendants were under this Court s Order requiring the production of theadministrative record on which the agencies final decisions were purportedlybased. 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 producedin CD format and hard copy to Plaintiffs counsel consisted of approximately33,000 pages of government documents on which the Defendants assurances ofthe 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 offour days to review the entire 33,000 page administrative record,consult with Plaintiffs experts to obtain their written opinions, andfile any Second Amended Complaint and Second Amended Motion for



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an injunction to stop the blast.

As reflected by the attached Declaration of Robert R. Hager in support ofMotion for Attorney s 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 repeatedallegations that radioactively contaminated soils are not present at the planned

blast site, and that there would be no adverse health effect on downwindpopulations from the 10,000 foot high mushroom cloud that the blast wouldcreate. 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 vicinityof theplanned blast, and that data reflected inappropriate testing techniques and

protocol from which it could not be honestly stated by anyone to a reasonabledegree of scientific certainty that radioactively contaminated soils are notpresent.

Concurrent with the huge burden of reviewing the administrative record,Plaintiffs counsel began working closely with Richard L. Miller, probably theworld s leading expert on nuclear testing at the NTS, in an effort to determinewhether it could be proven from documents previously published by thegovernment that there exists radioactively contaminated soils at the blast site.Government documents possessed by Mr. Miller, but not produced by Defendantsas part of the administrative record, reflected radioactive fallout at the blastsitein Area 16 from six atmospheric nuclear tests in the 1950's.

Richard Miller and Dr. Diane M. Stearns provided written opinionsregarding the appropriate sampling protocol to determine the extent ofradioactivity in the soil likely to become airborne from the blast, and regardingthe testing by the agencies for radioactivity in the vicinity of the blast. As aresultof a great amount of time expended in a coordinated effort by Plaintiffs counseland experts, the Second Amended Complaint and Second Amended Motion for



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Temporary Restraining Order and for Preliminary Injunction was filed on May22, 2006. Those pleadings so effectively proved that the Defendants second

FONSI had been issued unreasonably and without substantial justification, thatfour days later on May 26, the Defendants withdrew their second FONSI andannounced an indefinite postponement of the Divine Strake blast. The Plaintiffsthereby again prevailed by stopping the Defendants in stage two of their finaldecisions to detonate the huge bomb.

III.In all three stages of Defendants efforts to vouch for the safety ofthe Divine Strake blast, the Defendants acted without substantialjustification which makes proper an award 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 FONSI s issued

by the Defendants were unreasonable. For the Defendants, to have contemplatedthis project without a full EIS and full public participation, then to representtothis Court that the delays were to reassess, were unreasonable acts by the agencyand made without substantial justification. Prior to the issuance by Defendantsof the two FONSI s, there had been absolutely no soil sampling performed todetermine to what extent the soil which the Defendants knew would go airbornewas radioactively contaminated. Since this failure to properly test the soil fordeadly radioactivity could only be explained as the result of the intent to hidethebasis of the decision or incompetence, Plaintiffs requested in their SecondAmended 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 soils likely to become airborne as a result of Divine Strake or any other detonation 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 ofDefendants decisions to issue two FONSI s without the public participation that

would have revealed the scientific inaccuracies, Defendants withdrew the decionto go forward with Divine Strake. Without utilizing standard scientificradioactivity sampling techniques, the Defendants withdrew their second FONSIand cancelled the blast. This action was taken by Defendants in order to preventthe Court from hearing the unreasonableness of Defendants final agencydecisions and the lack of any substantial justification for the conclusions statedinthe two EA s theretofore published by Defendants.

Defendants actions after the May 26, 2006, withdrawal of the secondFONSI were even more unreasonable, and their later refusal to allow theinvolvement of independent scientists to assure that the proper samplingtechniques 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 taxpayersmoney was the risk of harm posed by Defendants once again unreasonably andfalsely assuring the public that their third EA had conclusively established theblast would not adversely impact the environment and that there was no risk topublic health. In other words, rather than do the right thing and agree to theinvolvement of independent scientists to keep the Defendants and Bechtel ofNevada honest, the Defendants once again initiated a process that was designedto result in the detonation of the huge bomb without regard for the birth defectsand 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 withtheir stated intention of detonating the bomb. On February 6, 2007, again after agreat deal of time and effort by the Plaintiffs legal team, their written commentsand expert opinions were filed with the agencies. Also submitted was a letter



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informing the Defendants that Plaintiffs would seek an injunction against theblast based on proof that the radionuclides once airborne would cause increased

incidents of birth defects and cancers in the downwind population. Sixteen dayslater, 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 ofDivine Strake that (T)his decision was not based on any technical informationthat indicates the test would produce harm to workers, the general public, or theenvironment. When an agency fails or refuses to admit the deficiencies in itsscientific studies and NEPA documents in connection with its withdrawal of thosedecisions or documents, that denial makes proper an award of fees and costs tothe Plaintiffs where it can be shown that the agency s actions were unreasonableor without substantial justification.5 The Court heard evidence by the testimony

of the experts on whether the Defendants actions were reasonable andsubstantially justified given the extreme risk of harm posed by Defendantsactions, and the history of birth defects, cancer, and lies by the governmentrelated to past weapons testing at the NTS.

In the Radiation Exposure Compensation Act, our government apologizedto downwinders for having caused cancer by atmospheric nuclear testing at theNTS in the 1950's and 1960's, and created a program for compassionatecompensation to the victims of our government s actions at the NTS and the falseassurances by government officials about the safety of those weapons tests. Theseadmissions 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

5Hells Canyon Preservation Council v. United States Forest Service, 2004 U.S.LEXIS

17113 (U.S.D.C. Ore. 2004) The position of the government includes the agency s actions or failures to act,

on which the civil litigation is based, and the government s litigating position. At page 3.



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testing at the NTS, and whether the Defendants actions in the prospective blastof 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 award of fees and costsin the amount set forth in the attached Statementsfrom Plaintiffs counsel and expert witnessesas reflected by the following Lodestar 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 reasonable itemization and description of the workperformed.

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 isthe Statement from Hager & Hearne reflecting an itemization and description ofthe work performed by plaintiffs counsel Robert R. Hager and Treva J. Hearne.Attached as Exhibit 5 is the Statement from Peter d Errico reflecting anitemization and description of the work performed by Plaintiffs legal consultantPeter d Errico. Attached as Exhibit 6 is the Statement from Terry J. Lodgereflecting 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 byPlaintiffs counsel Randall K. Edwards.

Attached as Exhibits 8, 9, 10 and 11, are the Declarations or Affidavits ofRobert R. Hager, Terry J. Lodge, Randall K. Edwards, and Peter d Errico,respectively, reflecting their expertise and experience as it relates to therequestedaward 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 witnessRichard 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 byPlaintiffs expert witness Dr. Fasy. Attached as Exhibit 14 is the Statement fromHarvey Bigelsen, M.D., reflecting an itemization and description of the workperformed by Plaintiffs expert witness Dr. Bigelsen. Attached as Exhibit 15 is theStatement from Diane M. Stearns, Ph.D., reflecting an itemization anddescription 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 Plaintiffsexpert 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 theStatement of Hager & Hearne attached hereto as Exhibit 4.

3). A brief summary of:

(A.) The nature of the case.

This case began with a request for an emergency order, included requestsfor a temporary restraining order and a preliminary injunction. The complaintrequested the United States to prepare an adequate and truthful environmentalassessment of the proposed detonation of 700 tons of explosive material at theNevada Test Site. All pleadings sought to prohibit the detonation of DIVINESTRAKE 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 inherentsecrecy that surrounded the protocol and procedures employed by theDepartment of Defense who filtered this project through DTRA, the agencycharged 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 tolearn the scientific history as well as interview persons affected by the earlier

detonations. The Plaintiffs counsel were educated by the expert witnesses aboutthe effects of radiation and the hundreds of different radio-isotopes that existatthe Nevada Test Site. The Plaintiffs counsel was served with approximately33,000 pages of administrative record that was produced by the United States,and were required to obtain and read thousands of pages of other governmentpublications and other documents. The Plaintiffs counsel had to review thesedocuments in order to ferret out the inconsistencies and failures of the UnitedStates in accurately evaluating the effects of detonating such a massive explosion

at the site while understanding the physics of the manner and dynamics of theproposed bomb that was to be detonated.

The Plaintiffs counsel was required to know the application of theenvironmental laws to this event. The Plaintiffs counsel interviewed numerousexpert witnesses to find those witnesses who could best address the issues posedby 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 obtained.

The Plaintiffs sought an injunction to stop the detonation or require theDefendants to provide an adequate and truthful environmental document that

examined the health effects and environmental damage of such a detonation. Asa direct result of this action by Plaintiffs, the Defendants have withdrawn twoFONSI s previously issued to authorize the blast, and then were forced topermanently cancel the 700 ton detonation. The objectives of the litigation inpreliminarily and permanently preventing the Defendants from detonating theDivine Strake bomb have been achieved.//



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(D.) The time and labor required.

The time and labor required included review of the administrative recordand other documents, review of the history of the Nevada Test Site, research ofthe law on the environmental documentation and the treaties, review of the file at

the Nevada Division of Environmental Protection. The expert witnesses spentmany hours educating counsel on the specific scientific challenges to thegovernment s proposal. This law firm has two partners. This work was complexand required that Hager & Hearne seek assistance from other attorneys with theexpertise and contacts with expert witnesses and with the Plaintiffs that wouldnot 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 ofthe questions involved. The issues involved were also difficult in light of theprocedural machinations of Defendants during the litigation which were intendedto divest this Court of jurisdiction while Defendants continued in secret withtheirefforts to detonate the bomb.

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

This case called upon counsel s extensive experience. Mr. Hager has a greatdeal of experience in federal litigation, including representation of Plaintiffsagainst the Department of Defense against the MX racetrack missile systemproposed 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. Hearnehas been involved in environmental law issues for the past 28 years. Thedeclarations reflecting the expertise and experience of Plaintiffs counsel areattached.////



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(G.) The preclusion of other employment by the attorney due toacceptance of this case.

This case required counsel to spend many hours to research the law and thescientific and medical issues related to the presence of radionuclides in the soil

and the harm to public health portended by re-suspension of that radioactivematerial. Counsel could not use any other prior case that was relevant to thefactsin this exact circumstance, so there was no other case that could be done at thesame time. Counsel was precluded from other employment by the acceptance ofthis case in that the obligation of counsel to very quickly become proficient inthefacts and law made it necessary for counsel to postpone work on other mattersand 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 customary fee.

Robert R. Hager charges a standard rate of Three Hundred Dollars perhour for litigation work, with a higher fee charged for work performed on anemergency basis, on weekends or holidays, or which places an additional burdendue 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, exceptin the case of representation for flat rate fees, which typically is limited tocriminal defense. All time is billed at the same hourly rate of Three HundredDollars per hour by Treva J. Hearne. The usual and ordinary hourly rate forattorneys in the Reno area with the experience of Robert R. Hager and Treva J.

Hearne is $300.00 per hour or slightly more.

(I.) Whether 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 circumstances.

This case involved from its commencement the request by Plaintiffs foremergency 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 scheduleddetonation on June 2, 2006, imposed an extreme burden on Plaintiffs counsel to

act quickly. The even shorter time period between the Defendants production ofthe more than 33,000 pages of administrative record on May 11 and the deadlinefor filing the Plaintiffs Second amended Complaint and Second Amended motionfor Preliminary Injunction on May 22, 2006, imposed an almost impossibleburden on Plaintiffs counsel and expert witnesses. The third attempt byDefendants to justify the detonation by their December 20, 2006, Revised EAwith a short public comment period that included the Christmas and New Yearholidays also imposed severe time constraints on counsel and the expertwitnesses.

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

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 inwhichhe 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 RenoPolice Department in the early 1990's, and obtained a special jury verdict inanother excessive force case in 1993 wherein the jury specifically found that theReno Police Department had a policy of using excessive force. He represented theWestern Shoshone Nation at the United Nations in Geneva in 2006 in an effort toencourage the United States government to finally resolve the issues of the RubyValley Treaty of 1863 which have been in litigation since the 1950's. He hasrepresented licensed professionals, police officers, Indian Tribes and otherindividuals in federal district courts and federal appellate courts since theearly

1980's. Mr. Hager has a wide range of litigation experience in class actionmatters, wrongful death, false imprisonment and other complicated and difficultlitigation in products liability. Mr. Hager has served in the mid-1990's asSpecialProsecutor 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 inthis Court. (See Declaration of Robert R. Hager).

Treva Hearne served as the General Counsel of the Missouri Department ofNatural Resources and spent much of her time in litigation involvingenvironmental matters on behalf of the City of Adelanto, California, severalindustries who were attempting to obtain permits and required to prepareenvironmental impact statements and environmental impact reports inCalifornia, Missouri, Pennsylvania and South Carolina. She has taught seminarson environmental law for continuing legal education and to the line agents of theUnited States Forestry service.

Ms. Hearne has represented a client against the State of Nevada toresolution and prevailed in that matter at the United States Supreme Court. Shehas 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 environmentalattorney who has been a sole practitioner in Ohio since 1980. He has handledseveral NEPA cases as lead or sole counsel in the federal district and applellatecourts, and his expertise in recent NEPA litigation and knowledge of currentrequirements of environmental procedures and laws made his involvement in thiscase 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 undesirability of this case.

The time and dedication required for this matter did not attract any otherattorneys except the ones that were solicited by Hager & Hearne. The law firmfeels strongly that the involvement in this case was required in order to protectthe citizens of Nevada, Utah, Arizona, Idaho, and other States who would againhave been exposed to radioactive fallout. This case was undesirable because wehad to publicly criticize our government s decisions and appear to be adverse to



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our own government. The case was also undesirable in that at the time thedecision 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 theUnited 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 thedetonation on a thirty day prior notice schedule. This meant that the law firmhad to be ready to react within a very, very short time frame.

(M.) The nature and length of the professional relationship with theclient.

None of us had known the Plaintiffs with the exception of some of theWestern Shoshone Plaintiffs which Hager & Hearne had previously represented

or presently represent in other matters.

(N.) Awards in similar cases.

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

V.ArgumentUnder 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 oragainst the United States in any court having jurisdiction of that action. . . 6Generally, Plaintiffs crossed the prevailing threshold if they succeed on any

significant issue of litigation which achieves some of the benefit the partiessoughtin bringing the lawsuit. 7 The touchstone of the prevailing party inquiry must be

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

7 Texas State Teachers Ass n. V. Garland Independent School District, 489 U.S. 782, 789,

103 L.Ed.2d 866, 108 S.Ct. 1486 (1989). See also, United States v. Real Propertyknown as 22249

Dolorosa St., 190 F.3d 977, 981 (9th Cir. 1999).



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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 casePlaintiffs prevailed because the Defendants withdrew their FONSI s and theirEA s, 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 feesand costs. The EAJA requires that a prevailing party include an itemizedstatement for any attorney or expert witness representing or appearing in behalfof 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 areattached hereto.

WHEREFORE THE ABOVE-STATED REASONS, the Plaintiffs respectfullyrequest that they be declared the prevailing parties, and that their counsel beawarded 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

8 28 U.S.C. 2412(d0(1)(B)



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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 foregoing Motion to Declare Plaintiffs thePrevailing Parties and for Attorneys Fees and Costs on the party(s) setforth below by:

____ Placing an original or true copy thereof in a sealed envelope placedfor 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 JusticeWashington, D.C. 20044-0663

S. Jay GovindanVia Facsimile: 702-388-6787333 Las Vegas Blvd., South5th FloorLas Vegas, Nevada 89101

Blaine T Welsh

U.S. Attorney's Office333 Las Vegas Blvd SoSuite 5000Las Vegas, NV 89101-

Caroline M. Blanco

United States Department of Justice

P.O. Box 663Washington, D. 20044-0663(202) 305-0248Fax: (202) 305-0267DATED: March 21, 2008.

/s/ Bobbie Meyer


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Bobbie Meyer



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Documents

Divine Strake lawsuit, March 21, 2008 Motion