Back to Court, Decades After Atomic Tests

Back to Court, Decades After Atomic Tests

By JOHN SCHWARTZ

New York Times

August 6, 2008

http://www.nytimes.com/2008/08/07/washington/07bikini.html?th&emc=th

Correction Appended

The Bikini islanders are coming to court. Again.

The latest round in a series of long-running lawsuits

will be heard on Thursday at the United States Court of

Appeals for the Federal Circuit.

The former residents of Bikini Atoll agreed to be

removed from their homes in the 1940s so the United

States could test atomic weapons there. The tests at

Bikini took place from 1946 to 1958, when the atoll,

part of the Marshall Islands , was an American trust

territory. The residents, fewer than 200 at the time,

were placed on nearby Pacific islands.

Although it has been 50 years since the testing ended,

Bikini Atoll will be radioactive for years. Many of the

islanders have developed illnesses resulting from the

fallout of the testing, and from an attempt to resettle

the atoll in the 1970s after the government mistakenly

told them it was safe to go home.

The United States granted sovereignty to the Marshall

Islands, including Bikini , in the 1980s. Part of the

diplomatic compact included a $150 million payment that

Congress, in ratifying the compact, called a "full and

final settlement" of claims across the Marshall Islands .

But the compact also seemed to leave a door open to

further payments as another part of the agreement

created a tribunal to judge legal claims as "a means to

address past, present and future consequences of the

nuclear testing program including the resolution of

resulting claims." It includes a provision that allows

the tribunal to petition Congress for additional

financing in the case of "changed circumstances."

The tribunal, after hearing years of evidence, said in

2001 that the islanders deserved $563 million. The

figure includes money for soil remediation.

At the time, however, the tribunal only had about $2

million to pay out to the islanders, so the Bikinians

and their lead lawyer for 33 years, Jonathan Weisgall,

went to federal court to ask for the rest of the money.

"They want to go home," said Mr. Weisgall, who wrote a

book on their fight, "Operation Crossroads: The Atomic

Tests at Bikini Atoll," and produced a documentary in

1998, "Radio Bikini ."

Last August, the United States Court of Federal Claims

dismissed the suit seeking the rest of the $563 million.

In her decision, Judge Christine Odell Cook Miller said

that the islanders had brought their lawsuit past the

six-year statute of limitations for filing claims under

the Tucker Act, a law pertaining to suits against the

United States, and that they had jumped the gun by

filing a suit in a case that Congress might still act

upon.

Mr. Weisgall hews to the basic language of the Fifth

Amendment, which states that private property cannot be

taken without just compensation. He brought in an

appellate lawyer, Patricia Millett, to take the case to

the appeals court. When Ms. Millett read the judge's

opinion, she recalled, she phoned him, aghast.

"Did she say, 'You filed too late and too early?' That

can't be right." That was the reasoning of the judge,

who was appointed in 1982 by President Ronald Reagan,

along with a determination that the case involved

political issues that the courts have no jurisdiction

over. The seeming Catch-22, Ms. Millett said, "really

encapsulates what's been going on for half a century."

A spokesman for the Justice Department declined to

comment specifically on the case but sent the

government's briefs, which lay out arguments similar to

those made in Judge Miller's decision. The briefs state

that in creating the compact with the Marshall Islands ,

"Congress intended the agreement to accomplish a full

and final settlement of claims."

Meanwhile, the community ages. Of the original 167

islanders who were moved in 1946, 45 are alive. The

community has grown, however, and now numbers more than

4,000, most living on the Marshall Islands .

Mr. Weisgall said he was committed to the fight, which

he began as a 25-year-old lawyer.

"It's a long black eye against the United States ," he

said.

A leader of the Bikinians, Tomaki Juda, said in a

telephone interview that his people had been moved from

island to island over the years and just wanted to

return safely to a place that they think of as paradise

and a homeland.

"We are like the people of Israel ," he said. "We wander

in the desert with Moses for 40 years, until the return

to the promised land."

This article has been revised to reflect the following

correction:

Correction: August 8, 2008 An article on Thursday about

lawsuits filed by former residents of Bikini Atoll who

agreed to be removed in the 1940s so the government

could test atomic weapons there misidentified the court

in which the suits will be heard. It is the United

States Court of Appeals for the Federal Circuit, not the

District of Columbia Circuit.