Last Chance: The Bikinian’s Supreme Court Case
Last chance for N-case
Marshall Islands nuclear test victims are making their last stand, holding on by the fingernails of one hand to the slimmest of hopes that the United States Supreme Court will accept their cases for review. It is a one in 100 chance that the Supreme Court will agree to consider the Bikini and Enewetak appeals of lower court rejections, and as any Las Vegas bookie will tell you, these are seriously unfavorable odds.
What is more, in a 25-page brief, the US government attempts to nail shut every possible avenue for appeal that the legal teams assembled to represent Bikini and Enewetak islanders have put forth.
To be sure, the nuclear test atolls have good arguments. But are they enough to sway the nine Supreme Court justices to accept the cases?
“We should have a decision by mid-April,” said Bikini attorney Jonathan Weisgall.
The US legal brief, block by block, puts up an apparently insurmountable wall around the appeals.
“In Section 177 of the Compact … the government of the Marshall Islands espoused the claims of its citizens and agreed to settle them,” the US Justice Department said. “To effectuate the settlement, the Compact itself, the Compact Act, and the Section 177 Agreement all provided that the settlement would serve as the final and unreviewable resolution of any claim that the people of the Marshall Islands might have against the United States.”
Attorneys for Enewetak say, however, that the RMI government was under the control of the US at the time the Compact’s Section 177 was negotiated.
“Although the Marshall Islands had a popularly elected government at that time that was competent to enter into agreements with the United States it remained under the control of the US as part of the Trust Territory of the Pacific Islands, for which ‘all executive, legislative and judicial authority’ was ‘vested in such person or persons and…exercised…through such agency or agencies as the President of the United States may direct or authorize.”
The issue, said Enewetak, “is whether the courts must accept the (US) government’s assertion that the constitutional claims of private individuals can be validly ‘settled’ not by the claimants themselves but by an entity that is not sovereign, but is under US government control.”
“Unreviewable,” “full and final,” “claims terminated,” and “claims barred” are phrases that are repeated throughout the US brief to the Supreme Court.
But Bikini and Enewetak say that the US Constitution’s Fifth Amendment requires that just compensation be paid for the taking of property.
“The central problem with all of the (US) government’s arguments is that nowhere in its brief in opposition or in any other brief filed in this case has it explained how, if the Fifth Amendment reserves rights in individuals and thereby withholds that very power from the federal government, the federal government has the power to legislate or contract those rights away without those individuals’ consent,” the Bikinians said.
But the US told the Supreme Court the compensation matter was completely resolved on a government-to-government basis.
“The United States and the Marshall Islands settled all claims including the takings claims, and as part of that settlement agreed to preclude further review of those claims in any federal court,” the US said, adding that the lower court’s ruling “does not warrant further review.”
The Bikinians challenge this in their response: “If the (US’s) foreign or domestic political ends are served by taking individual property, the Constitution says the price for that public use is just compensation. If Congress can escape that command simply by passing a law or contracting with another governmental entity, as the Federal Circuit (court) held, then the Fifth Amendment has become an empty promise not just for petitioners, but for any and all property owners.” The US counters this, saying the US Congressional command that “no court of the US shall have jurisdiction to entertain such claims” is completely clear, leaving no room for court review of these nuclear test claims.
Although the Compact’s Section 177 established the Nuclear Claims Tribunal, the US brief to the Supreme Court says that the “Congress did not create the Claims Tribunal or agree to pay its awards in full,” and the US did not participate in the Tribunal’s proceedings.
“The RMI’s Claims Tribunal therefore cannot plausibly be regarded as a forum for exhausting claims against the United States, as simply one step before a return to the Court of Federal Claims for a suit under the Tucker Act,” the US said.
Attorneys for Enewetak said the US position is that it “may deprive persons of their property for decades and then get away without paying compensation by foisting the problem onto another government that has no money to pay and that supposedly waived the property owners’ right to sue the United States in court.”
In relation to the Nuclear Claims Tribunal, Enewetak said “now that the Tribunal has ruled that petitioners are entitled to compensation, the (US) government says that actually paying is someone else’s problem, and that, when it created the Republic of the Marshall Islands, the government of the United States effectively washed its hands of the whole affair.”
But the US Justice Department maintains that the US government satisfied its nuclear test compensation obligation by providing $150 million to the Marshall Islands in the Section 177 agreement.
Enewetak said the issue is not whether the Congress, in approving legislation establishing the Tribunal, may establish an “alternate forum” to adjudicate compensation. “Such alternate forums are permissible, if they ensure reasonable, certain and adequate provision for obtaining compensation,” Enewetak said.
“Here, that alternate forum has been tried and found utterly wanting, yet still the government refuses to pay.”
Bikini and Enewetak say that the Marshall Islands lacked capacity to “espouse” (adopt) their claims because it was not a sovereign government but was under US control.
“That contention is at odds with the Compact itself, which explains that the Marshall Islands negotiated and entered into the Compact to establish a ‘government-to-government relationship’ with the United States,” the US said, adding that Marshall Islanders voted approval of the Compact.
“Enewetak, citing a US legal ruling, pointed out to the Supreme Court that “constitutional rights can hardly be infringed simply because a majority of the people choose that it be.”
The US brief to the Supreme Court concludes: “The Compact withdraws federal jurisdiction in clear terms and, instead, authorizes the independent government of the RMI to petition Congress for additional relief on behalf of its citizens. The RMI has done so, and its request is pending before Congress.”