Back to Court, Decades After Atomic Tests
By JOHN SCHWARTZ
New York Times
August 6, 2008
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
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
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: 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.
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