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Test victims sought compensation for Bikini, Enewetak tests

By Giff Johnson MAJURO, Marshall Islands (Marianas Variety, April 5, 2010) - Marshall Islands nuclear test victims are in a countdown in their final United States Supreme Court appeal, with slim hopes that America’s highest court will accept their cases for review. But they say that if the Supreme Court allows a lower court ruling to stand, it will set a dangerous precedent making the U.S. Constitution’s Fifth Amendment provision of just compensation for property taking "an empty promise."

[PIR editor’s note: According to the Christian Science Monitor, The U.S. Supreme Court on Monday declined to take up the case without comment. The action upholds a decision by the U.S. Court of Appeals for the Federal Circuit dismissing two lawsuits seeking fair payment from the US government for the people of Bikini Atoll and Enewetak Atoll.]

A decision by the Supreme Court whether to hear the nuclear compensation claims is expected by mid-April. But there is just a one in 100 chance that the Supreme Court will take on the appeals of lower court rejections by people from Bikini and Enewetak atolls, the former ground zeroes for 67 American nuclear tests that vaporized six islands and left many of the rest toxically radioactive for generations.

Even the Bikinians’ lawyer is less than optimistic about the islanders’ chances in the Supreme Court. "Don’t hold out too much hope," Washington, D.C.-based attorney Jonathan Weisgall warned Bikini leaders. The Bikinians filed their responses this week to a U.S. Justice Department brief that says the Supreme Court should reject the islanders’ appeal. "The Supreme Court only takes about one percent of the appeals it gets," Weisgall said. "We should have a decision by mid-April."

In a 25-page legal brief, the U.S. Justice Department attempts to nail shut every possible avenue for appeal that the American legal teams assembled to represent Bikini and Enewetak islanders have put forth.

Attorneys for the islanders argue that the U.S. has failed to pay just compensation for rendering these islands uninhabitable and U.S. courts should enforce U.S. Constitution Fifth Amendment requirements for compensation.

A Nuclear Claims Tribunal established by a U.S.-Marshall Islands government agreement paid less than one percent of the US$563 million and US$384 million awarded to Bikini and Enewetak, respectively, for nuclear clean up, hardship and damages.

Enewetak said the U.S. Congress acted properly in passing legislation establishing the Tribunal as an "alternate forum" to settle Marshall Islands nuclear test compensation claims. "Such alternate forums are permissible, if they ensure reasonable, certain and adequate provision for obtaining compensation," Enewetak lawyers said.

"Here, that alternate forum has been tried and found utterly wanting, yet still the government refuses to pay."

But the Justice Department says the compensation claims were settled in a government-to-government agreement in 1986. "In Section 177 of the Compact (of Free Association) the government of the Marshall Islands espoused the claims of its citizens and agreed to settle them," the U.S. Justice Department brief to the Supreme Court says. "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 Marshall Islands government — then a United Nations Trust Territory administered by the U.S. — was under the control of the U.S. when the compensation deal 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 U.S. as part of the Trust Territory of the Pacific Islands," attorneys for Enewetak said.

The issue, said Enewetak lawyers, "is whether the courts must accept the (U.S.) government’s assertion that the constitution claims of private individuals can be validly Osettled’ not by the claimants themselves but by an entity that is not sovereign, but is under U.S. government control."

The Justice Department says simply that the two governments "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 Bikinians challenge this in their appeal to the Supreme Court. "If the (U.S.’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."

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