Antolok v. U.S.
| Decision Date | 28 April 1989 |
| Docket Number | No. 87-5324,87-5324 |
| Citation | 873 F.2d 369 |
| Parties | Cathelina ANTOLOK, et al., Appellants v. UNITED STATES of America. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (Civil Action No. 83-02471).
Abram Chayes, Cambridge, Mass., with whom E. Cooper Brown, Takoma Park, Md., Kathleen M. Tucker, and Fred Baron, Washington, D.C., were on the brief, for appellants.
Gregory C. Sisk, Atty., Dept. of Justice, with whom John R. Bolton, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., Robert S. Greenspan, Atty., Dept. of Justice, Washington, D.C., and Howard L. Hills, Atty., Dept. of State, were on the brief, for appellee.
Before WALD, Chief Judge, and STARR and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Circuit Judge SENTELLE announced the judgment of the Court in an opinion as to which Circuit Judge STARR concurs in all except Part IIB. Chief Judge WALD filed a separate opinion concurring in the result.
Residents and former residents of the northern atolls of the Marshall Islands appeal from a District Court judgment dismissing tort claims arising out of nuclear testing conducted by the United States on those islands. The District Court dismissed these tort claims for lack of justiciability, concluding that the complaint raised nonjusticiable political questions. Since we find that the District Court committed no error in its dismissal, we affirm for the reasons set out more fully below.
The relationship between the United States and the Marshall Islands traces to the end of World War II, when the United States liberated the islands from Japan, which had administered them under a League of Nations mandate. From 1944 until July 18, 1947, the United States governed the islands under a temporary military occupation government. On July 18, 1947, the United Nations brought the Marshall Islands and other islands of Micronesia within the U.N. trusteeship system. The United States and the United Nations Security Council approved a trusteeship agreement designating the United States as "administering authority" over a trust territory comprised of the Marshall Islands, the Mariana Islands, and the Caroline Islands, all of which were commonly referred to as Micronesia. Trusteeship Agreement for the Former Japanese Mandated Islands, approved Apr. 2-Jul. 18, 1947, United Nations-United States, 61 Stat. 3301, T.I.A.S. No. 1665. As administering authority, the United States assumed full responsibility for governmental functions of Micronesia, including executive, legislative, and judicial powers, see id., art. 3, and agreed to assist in the development of the Micronesian islanders toward self-government and independence. See id., art. 6; see also United Nations Charter, art. 76(b). Under the Trusteeship Agreement, the United States retained the necessary control and authority over the Marshall Islands to continue nuclear testing begun during the period of military occupation pursuant to the Atomic Energy Act of 1946, Pub.L. No. 79-585, 60 Stat. 755 (1946), Atomic Energy Act of 1954, Pub.L. No. 83-703, 68 Stat. 919 (1954). Plaintiffs in the present litigation are residents and former residents of the northern Marshall Islands claiming injury to their persons or property by radioactive fallout from the nuclear tests.
During the twenty years following the commencement of the trusteeship arrangement, the Secretary of the Interior, by authority of the President and with the advice and consent of the Senate, appointed a High Commissioner to serve as senior administrator of the trust territory. See Department of Interior Secretarial Order No. 2876, 29 Fed.Reg. 1855 (1964), superseded by Secretarial Order No. 2918, 34 Fed.Reg. 157 (1969). The High Commissioner reviewed both domestic and foreign governmental affairs of the trust territories. In the 1960's, the United States initiated progress toward Micronesian self-government. In 1965 a congress of Micronesia came into being. Elected leaders from throughout the trust territory met to discuss concepts of independence and political unity.
After the Micronesian Congress had considered various options, all parties agreed that cultural and geographic factors dictated a division of the trust territory into four independent governmental units, the Federated States of Micronesia, the Republic of Palau, the Commonwealth of the Northern Mariana Islands, and the Republic of the Marshall Islands ("RMI" or "Marshall Islands"), the only government whose citizens are plaintiffs in the present litigation. 1 The RMI ratified a new constitution by referendum of March 1, 1979, and initiated a parliamentary government on May 1 of the same year. By order of April 25, 1979, the Secretary of the Interior, on behalf of the United States, acknowledged the existence of the governments of the Federated States of Micronesia, the Republic of Palau, and the RMI. 2 Secretarial Order No. 3039, 44 Fed.Reg. 28,116 (1979). This order delegated to the new governments most functions of government pending the termination of the trusteeship agreement but, subject to limitations contained in the order, retained in the United States residual authority for trusteeship obligations, including oversight of budget functions and administrative power to "suspend" legislation, amounting to a veto in the High Commissioner, subject to an appeal to the Secretary. Id. at Secs. 3-6, 44 Fed.Reg. 28,117-18.
All governments contemplated the evolution of the new entities toward self-governance with a view to the entry of each new government into a Compact of Free Association with the United States. In the case of the RMI, the negotiations leading to the Compact proceeded over the course of the next five years. Much of the negotiation concerned the settlement of nuclear claims giving rise to the present litigation. On June 25, 1983, the two governments executed the final version of the Compact of Free Association, Oct. 1, 1982-Jun. 25, 1983, United States-Micronesia-Marshall Islands, 99 Stat. 1800, T.I.A.S. No. ____ ("Compact"), with an accompanying nuclear testing claims settlement, Agreement for the Implementation of Section 177 of the Compact of Free Association, Jun. 25, 1983, United States-Marshall Islands ("settlement agreement" or "Section 177 Agreement"), reprinted in Joint Appendix ("J.A.") 67, which we will discuss below. The RMI approved the Compact including the settlement agreement in a U.N.-monitored plebiscite in September of 1983 by 58 percent vote of the Marshall Islanders.
The President submitted the Compact and settlement agreement to Congress on March 30, 1984. After the 98th Congress failed to complete ratification, the President resubmitted the agreements to the 99th Congress on February 20, 1985. The House of Representatives approved final modified versions on December 11, 1985, and the Senate on December 13, 1985. See Juda v. United States, 13 Cl.Ct. at 673.
On February 18, 1986, the Nitijela, the constitutionally established legislative body of the RMI, enacted the Compact of Free Association Resolution of 1986, Res. No. 62 N.D.-2 (1986), declaring "for purposes of ... Article V of the Constitution [of the RMI], the Nitijela hereby approves the Compact and its subsidiary agreements, as they relate to the Republic of the Marshall Islands...." Id. Sec. 3.
Thereafter the United States presented the Compact to the Trusteeship Council of the United Nations. On May 29, the Council adopted Resolution 2183 recalling the Trusteeship Agreement and
Not [ing ] that the peoples of the ... Marshall Islands [and the surrounding Micronesian states] ... have freely exercised their right to self-determination in plebiscites observed by the visiting missions of the Trusteeship Council and have chosen free association with the United States of America.... [and]
....
Consider [ing ] that the Government of the United States, as the Administering Authority, ha[d] satisfactorily discharged its obligations under the terms of the Trusteeship Agreement and that it [was] appropriate for that Agreement to be terminated with effect [from the effective date of full entry in the Compact]....
Examination of the annual report of the Administering Authority for the year ended 30 September 1985: Trust Territory of the Pacific Islands. T.C. Res. 2183, 53 U.N. TCOR (1617th mtg). The Resolution further declared the awareness of the Trusteeship Council that the process "of facilitating the progressive development of the peoples in Micronesia toward self-government or independence ... has been successfully completed." Id. On January 14, 1986, President Reagan signed into law the Compact of Free Association Act of 1985, Pub.L. No. 99-239, 99 Stat. 1770 (1986) () ("Compact Act").
On November 3, 1986, the President declared the Compact of Free Association with the Republic of the Marshall Islands in full force and effect retroactive to October 21, 1986. Proclamation No. 5564, Sec. 3(a), 3 C.F.R. 149 (1987), reprinted in 48 U.S.C. Sec. 1681 note at 658 (Supp. IV 1986). The United States and the Republic of the Marshall Islands subsequently exchanged diplomatic notes of formal recognition and established diplomatic missions headed by representatives ranked with other ambassadors. Juda, 13 Cl.Ct. at 677.
On August 22, 1983, while the Compact and settlement were in negotiation, approximately three thousand present and former residents of the northern Marshall Islands and atolls directly downwind from the nuclear test sites filed the present action in...
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