Monday, May 5, 2008

DIVINE STRAKE: Judge rejects downwinders' request

Revival of bunker-buster bomb test a possibility

Once declared dead by politicians and environmental activists, the non-nuclear Divine Strake bunker-buster bomb test has hope for resurrection after a federal court ruling.

A defense agency's director had canceled the blast months after his reference to a "mushroom cloud over Las Vegas" sparked a lawsuit and criticism.

But in a ruling late last month, Senior U.S. District Judge Lloyd George granted the Justice Department's request to strike as moot a motion by the downwinders' attorney that the court should allow them to present evidence of "the need for continuing judicial oversight" of the agency's "dangerous plans to detonate high explosives" on the surface of the Nevada Test Site.

"The plaintiffs are no longer subject to any alleged harm from the experiment, as it has been canceled, and thus they now lack standing, and the matter has been rendered moot," George wrote in his Feb. 21 ruling for the U.S. District Court in Las Vegas.

"At its core, the defendants assert that this court lacks jurisdiction to require them to complete an environmental impact statement for an experiment that will not occur and, even if this court had such jurisdiction, there is no longer any controversy for the court to resolve or harm for the court to remedy," his ruling said.

The blast was to be the last and largest in a series of bunker-buster experiments using conventional chemical explosives designed to crush tunnels deep in limestone where an enemy could store weapons of mass destruction.

Miners had dug a 36-foot-deep pit near the top of Syncline Ridge at the test site, 85 miles northwest of Las Vegas, to hold an explosive slurry that when detonated would send shock waves through a 100-foot-thick block of bedded limestone to crumble a tunnel in the ridge.

George also granted the Justice Department's motion to strike and exclude the downwinders' exhibits and testimony in support of their request for continuing judicial oversight.

Also, he denied awarding attorney's fees to the plaintiffs' counsel, Reno attorney Robert Hager, because the request was premature given that a final judgment on Hager's motion for a temporary restraining order had not been made when the downwinders sought declaration as the prevailing party.

George left open the possibility for Hager to appeal.

"While a final judgment will be entered contemporaneous with the filing of this order, in connection with the granting of the defendants' motion to dismiss, the judgment will remain appealable until the expiration of the time to appeal, or until the completion of the appeal if the plaintiffs choose to appeal," George wrote.

Hager was traveling in Europe and could not be reached for comment late Monday.

In the lawsuit, he represented downwinders and Western Shoshones from the Winnemucca Indian Colony.

The lawsuit, with concerns voiced by some elected officials in Nevada and Utah, prompted a series of postponements of the detonation, originally scheduled for June 2, 2006.

The test was canceled Feb. 22, 2007, when James Tegnelia, director of the Pentagon's Defense Threat Reduction Agency, issued a one-page statement, saying, "I have become convinced that it's time to look at alternative methods that obviate the need for this type of large-scale test."

The statement remained posted late Monday on the agency's Web site, and a spokeswoman had not responded to a request for comment on George's ruling.

After the test was announced in 2006, Tegnelia apologized for saying the blast from a 700-ton slurry of ammonium nitrate and fuel oil would send a "mushroom cloud over Las Vegas."

But his statement last year stopped short of saying public outcry and thousands of comments made at public meetings opposing the Divine Strake detonation persuaded him to cancel the test.

At the time of Tegnelia's Feb. 22, 2007, statement, members of Nevada's congressional delegation said they were relieved that the blast was finally canceled.

They said Defense Department planners failed to quell fears expressed by Nevadans and their neighbors in Utah and Idaho.

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