Despite High Court Denial, Battle Over Bikini Atoll Bombing Endures

Despite High Court Denial, Battle Over Bikini Atoll Bombing Endures
Congress may be the next venue for attorney Jonathan Weisgall’s 35-year fight on behalf of displaced Bikini Atoll residents

Jonathan Weisgall was a new associate at Covington & Burling in 1975 when a partner asked him to take a call about a possible new pro bono client. “Something about atomic bombs,” he was told.

Ever since, Weisgall has been representing, part time or full time, the displaced residents of the Bikini Atoll in the South Pacific, site of dozens of U.S. nuclear bomb tests from 1946 to 1958. Their land was not just taken; some of it was vaporized, and high radioactive levels to this day have kept residents from returning.

The long court battle to secure compensation for their losses ended on April 5 when the U.S. Supreme Court denied review of the Bikinians’ appeal and a related appeal by residents of a nearby atoll. But Weisgall is ready for the next phase — going to Congress to seek justice. “We exhausted the judicial branch option, but I am not exhausted at all,” said Weisgall, now 61. “The story is not over until these people are safely back on their island.”

Late Mayor Kataejar Jibas, Councilman WIlson Note, Johnny Johnson, Senator Tomaki Juda with Jon Weigall in 2008 at the US Federal Claims Court (photo Jack Niedenthal)

It’s rare for a single client or piece of litigation to span decades for a lawyer, but that has been Weisgall’s fate — and his chosen path. In photos from his early days on the case, you see drawings by his children on the walls of his Washington, D.C., office. Those children are grown, and now instead of the drawings, he displays artifacts from his Bikinian clients.

“When I first took that call,” he said, “I thought it would take a long time to resolve, but not quite this long.”

FROM WASHINGTON TO BIKINI

At first, the Bikinians hired Weisgall pro bono to seek funds for an environmental study of the lingering effects of the nuclear testing. But it evolved into a larger effort to seek compensation under the Fifth Amendment takings clause. The 23-island atoll is part of the Marshall Islands, which became a U.S. trust territory in 1947, thereby extending U.S. constitutional rights, if not U.S. citizenship, to its residents. Many of the displaced residents have since become U.S. citizens.

Weisgall took his first trip to see his clients early in his representation in 1975 — a laborious journey involving several planes and boats after landing in Honolulu. Most of the Bikinians were relocated to Kili Island, which Weisgall described as a tiny “New Yorker-cartoon island” with no harbor. For the final part of the journey, he boarded a Boston Whaler and was advised to protect his briefcases with plastic bags. Sure enough, a big wave knocked him over, and “I dog paddled to shore holding my litigation bags above my head.”

What was planned as a brief trip turned into a weeklong visit in a part of the world that is immune from any Washington-style sense of urgency. When he returned home, Weisgall said, office mates had already claimed his furniture, thinking he would never return.

Since then, he has gone back to the area more than 50 times. Along the way he has written a book about their plight and helped produce “Radio Bikini,” an award-winning documentary. “I love the people I represent dearly,” he said in his office this month. But he quickly added, “When you get attached to your clients, you have to pull back professionally.”

Some of the young children he met on his early visits have now become leaders of the displaced Bikinian community, which has grown from the 167 who were first moved in 1946 to several thousand now. “They have lots of kids,” he said.

After 10 years of representing the Bikinians pro bono, Weisgall worked out an hourly fee of $135 — it’s now $200 — drawn from a trust fund for the islanders. But he does not bill all of the time he spends and worked on the Supreme Court petition in People of Bikini v. U.S. for free.

The volume of work has waxed and waned over the years. He took a “day job” in 1995 as vice president and lobbyist for MidAmerican Energy Holdings, Warren Buffett’s energy company. “I’m paid to worry about climate change and natural gas,” Weisgall said. “When I joined the company, I told them I could not get rid of these clients. They mean a great deal to me.”

Other firms have taken up the cause of Marshall Islanders affected by the nuclear testing. Various lawyers at Wilmer Cutler Pickering Hale and Dorr have represented natives of the Enewetak atoll for years, and Weisgall recalls working side by side with the legendary Lloyd Cutler on the case years ago. But no one has been with it longer than Weisgall. “He is vastly familiar with the case, and if anybody can get it through Congress now, it’s him,” said Wilmer partner Paul Wolfson, who filed a companion petition before the Supreme Court that was also denied.

The litigation began in 1975, when Weisgall filed suit in Hawaii seeking the radiation study on the condition of the Bikini Atoll. He won, high levels of radiation were found and Bikinians who had gravitated back were evacuated again.

The atoll had been exposed, on average, to the equivalent of 1.5 Hiroshima bombs daily from 1946 to 1958, Weisgall said, so the residual damage was not surprising. (Yes, the bathing suit was named after the atoll, by a French designer hoping to capitalize on publicity about the nuclear tests in 1946.)

The publicity surrounding the litigation, including some press interviews he did, caused trouble for Weisgall at Covington at a time when law firms did not seek the spotlight. “I was brought in by the partners and told, ‘we do our work quietly,’ ” Weisgall said. He moved to a smaller firm in 1980 and went solo in 1983.

In 1981, Weisgall filed the takings claim in what was then called the U.S. Court of Claims. The court found the claims timely and said they could be pursued.

COMPACT CHANGES CASE

But two years later, the entire landscape of the case changed when the United States signed a compact with the government of the Marshall Islands. The Marshall Islands was established as an independent republic, though still under U.S. protection for security and defense matters. The agreement included some initial compensation for Bikinians and created a claims tribunal for more, but also removed jurisdiction from the federal courts.

“We were set for trial when the treaty was signed,” Weisgall said. Because of the new pact, the claims court litigation was dismissed, and the U.S. government began to treat the compensation of Bikinians more as a diplomatic matter between nations than as an obligation to people with U.S. constitutional rights.

The Bikinians dutifully turned to the tribunal and after a lengthy process won a significant award in 2001: $563 million, including $278 million for “past and future loss” of their land and $251 million to restore the land to safety. The tribunal said, “nothing can compensate for … all of the attendant intangible damage, loss, and hardship suffered by the Bikini community over the years.” But the tribunal has paid out only about $2.2 million so far. In 2006, the tribunal said it had no more money to give out. “It is the form of an administrative remedy, but not the reality of one,” said Wilmer’s Wolfson.

That is when Weisgall went back to court with a renewed claim for compensation, asserting that, under the Tucker Act and Supreme Court precedent, court jurisdiction had not totally been foreclosed. The suit also argued that, by failing to fund the tribunal, Congress had again deprived the Bikinians of property without just compensation. But the claims court dismissed the case, and the U.S. Court of Appeals for the Federal Circuit affirmed. The high court then denied review.

“It’s very sad. The Bikinians have done everything they were told to do, and the door has been slammed shut,” said Patricia Millett, co-chairwoman of Akin Gump Strauss Hauer & Feld’s appellate practice. Weisgall brought her on, pro bono, for the appellate briefing. Of Weisgall, Millett said, “He’s absolutely dogged on this — he has devoted so much to this litigation.”

Alson Kelen, leader of the Bikini community, wrote in an e-mail. “Everyone here in the Marshall Islands has a tremendous amount of respect for Mr. Weisgall and what he has done for the people of Bikini.” The Supreme Court’s action, Kelen said, has been hard to explain. “Our elders feel that they were cheated because the U.S. promised that they would look after them forever, that we would be like the children of the US. Now after 64 years, we are still not back on Bikini.”

Weisgall said he had hoped the U.S. government would change its steadfast opposition to the Bikinians’ claims under the Obama administration. “There is a moral component to this case,” Weisgall said. “I had hope.” The government’s position, he said, amounts to viewing the just compensation clause as “just a suggestion” that can be eviscerated by failure to fund the compensation.

The U.S. brief is devoid of empathy, asserting that “this case involves a foreign country that has espoused and settled its nationals’ claims in the context of an international compact.” In a footnote, it points out that bills are pending in Congress that would fund more compensation for the Marshall Islanders. Sen. Jeff Bingaman, D-N.M., introduced a bill in January.

“The Bikinian people have given the U.S. everything they had — their land — on the premise that they would be able to return,” he said. “The U.S. has an obligation to take care of them.”

Tony Mauro

The National Law Journal

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~ by bikinijack on April 26, 2010.

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