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 1482

HAGER & HEARNE
910 Parr Blvd., #8 E-filed March 21, 2008
Reno, NV 89512
Tel: 775.329.5800
Fax: 775.329.5819
email: parrlawoffices@sbcglobal.net
Attorney 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
SHOSHONE TRIBE,
Plaintiffs,
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)
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Case No: 2:06-cv-00497-LDG-PAL
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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,
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)
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Defendants.
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)

____________________________)

MOTION TO DECLARE PLAINTIFFS THE PREVAILING PARTIES

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

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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 AUTHORITIES

The sequence of events in this case proves that it was this action and
the written opinions of Plaintiffs� experts that forced the Defendants
each time to cancel the Divine Strake blast and withdraw their
inadequate environmental documentation.

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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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 Divine
Strake bomb and the Defendants� cancellation of their decisions:

Time between first Plaintiffs� filing and cancellation: 13 days

Time between second Plaintiffs� filing and cancellation: 4 days
Time between 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.

1 U.S. v. Hallmark Construction Co., 200 F.3d 1076, 1080 (7th Cir. 2000)
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I.
Plaintiffs are the prevailing party in that the objective of the
injunction claim has been met by Defendants� permanent cancellation
of their plans for a 700 ton open-air explosive detonation at the NTS.

Plaintiffs by this Motion seek fees and costs for having successfully
prevented 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 government�s past history of lies to downwinders and
nuclear veterans, and the resulting horrors of birth defects and tens of thousands

of cancers in the downwind American population, it was in the public interest for
the agencies� blatant disregard for science and truth to have been submitted to an

appropriate and timely environmental discussion. 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 government�s
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

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 the
proceeding. . .� At page 1080.

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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, particularly
when 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
government�s decision.

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

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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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 FONSI based on the
Pre-Approval Draft EA that was never approved 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 Energy�s 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

3 42 U.S.C. �� 4321 - 4347.

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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 of
DTRA had a scientific basis for those statements. Conclusory statements do not
support the environmental process. 4

The media coverage of Defendant Tegnelia�s 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

4 Lands Council v. Swick, 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 bring
the matter to court to have the errors corrected. Citing Thomas v. Peterson, 841
F.2d 332, 335 (9th Cir.
1988).

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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 Court�s 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 days to review the entire 33,000 page administrative record,
consult with Plaintiffs� experts to obtain their written opinions, and
file 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 of

Motion for Attorney�s Fees, Plaintiffs� counsel were compelled to read the
approximately 33,000 pages of administrative record in order to identify the
relevant 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
world�s 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 and
announced 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 Defendants� efforts to vouch for the safety of
the Divine Strake blast, the Defendants acted without substantial
justification 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 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 FONSI�s, 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 soils

likely to become airborne as a result of �Divine Strake� or any other
detonation of explosives at the Nevada Test Site without the direct
participation and involvement of some independent, qualified scientist who
is not operating under the conflict of interest which has to date constrained
the Defendants and their contractor, Bechtel of Nevada, from fulfilling their
obligations 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 FONSI�s without the public participation that
would have revealed the scientific inaccuracies, Defendants withdrew the decion
to go forward with Divine Strake. Without utilizing standard scientific
radioactivity 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 EA�s 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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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 Release
announcing 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 agency�s 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 government�s 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

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 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 award of fees and costs
in the amount set forth in the attached Statements
from Plaintiffs� counsel and expert witnesses
as 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 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 d�Errico reflecting an
itemization and description of the work performed by Plaintiffs� legal consultant
Peter d�Errico. 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 d�Errico,
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 from
Harvey 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 summary 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
at
the 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 obtained.

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
FONSI�s 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 required.

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 at

the Nevada Division of Environmental Protection. The expert witnesses spent

many hours educating counsel on the specific scientific challenges to the
government�s 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 requisite to perform the legal service properly.

This case called upon counsel�s 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 employment by the attorney 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 soil

and 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 customary 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.) 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 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 deadline
for 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 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 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 involving
environmental 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 undesirability 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 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 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 the
NTS 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 professional 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 similar 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

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 Property
known 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 case
Plaintiffs prevailed because the Defendants withdrew their FONSI�s and their
EA�s, and permanently cancelled the detonation of the 700 ton Divine Strake
bomb 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 1482
910 Parr Blvd., #8
Reno, NV 89512
Tel: 775.329.5800
Fax: 775.329.5819
email: parrlawoffices@sbcglobal.net
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 of

HAGER & HEARNE, 910 Parr Boulevard, Suite 8, Reno, Nevada 89512, and that
on this date, I served the foregoing Motion to Declare Plaintiffs the
Prevailing Parties and for Attorneys� Fees and Costs 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: 202-305-0267

Natural Resources Section
United States Department of Justice
Washington, D.C. 20044-0663

S. Jay Govindan
Via Facsimile: 702-388-6787
333 Las Vegas Blvd., South
5th Floor
Las Vegas, Nevada 89101

Blaine T Welsh

U.S. Attorney's Office

333 Las Vegas Blvd So
Suite 5000
Las Vegas, NV 89101-
Caroline M. Blanco

United States Department of Justice

P.O. Box 663

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

/s/ Bobbie Meyer

Bobbie Meyer

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