People of Enewetak v. Laird

• Citation: 353 F. Supp. 811
• Decision Date: 19 January 1973
• Docket Number: Civ. No. 72-3649.
• Parties: The PEOPLE OF ENEWETAK et al., Plaintiffs, v. Melvin R. LAIRD, Secretary of Defense, et al., Defendants.
• Court: U.S. District Court — District of Hawaii

353 F. Supp. 811

The PEOPLE OF ENEWETAK et al., Plaintiffs, v. Melvin R. LAIRD, Secretary of Defense, et al., Defendants.

Civ. No. 72-3649.

United States District Court, D. Hawaii.

January 19, 1973.

Theodore R. Mitchell, Edward C. King and James E. Duggan, Saipan, Mariana Islands, Dennis F. Olsen and Hamlet J. Barry, III, Micronesian Legal Services Corp., Majuro, Marshall Islands, Boyce R. Brown, Jr., Mattoch, Edmunds, Kemper & Brown, Honolulu, Hawaii, of counsel, for plaintiffs.

Jon T. Miho, Asst. U. S. Atty., District of Hawaii, Honolulu, Hawaii, for defendants.

DECISION AND ORDER

KING, District Judge.

This suit is brought by the hereditary and elected leaders of the people of Enewetak Atoll¹ seeking a preliminary injunction against defendants Melvin R. Laird, Robert C. Seamens, Philip N. Whittaker, Noel Gayler and Caroll H. Dunn. Defendants are respectively, Secretary of Defense, Secretary of the Air Force, Assistant Secretary of the Air Force, Commander in Chief of the United States Military Forces in the Pacific Ocean area and Director of the Defense Nuclear Agency. The complaint alleges that defendants have not complied with the provisions of the National Environmental Policy Act of 1969 (hereinafter "NEPA"), 42 U.S.C. § 4321 et seq. (Supp.1972), and other laws of the United States,² in the manner in which they initiated and conducted the Pacific Cratering Experiments (hereinafter "PACE") on Enewetak Atoll. The jurisdiction of this court is invoked under 5 U.S.C. §§ 701-706 and 28 U.S.C. §§ 1331 and 1361 (Supp.1972).

Prior to the hearing on plaintiffs' motion for a preliminary injunction, defendants acknowledged that the Draft Environmental Statement prepared for the PACE project and filed with the Council on Environmental Quality on April 18, 1972 (hereinafter "April 18th DES") was inadequate under NEPA, and it was agreed that a new Statement would be prepared. It was stipulated that a preliminary injunction would issue pending final determination of this action after trial on the merits; reserving, however, the question whether the scope of the injunction should preclude the defendants from continuing core drilling and seismic studies on the atoll. This and certain questions relative to standing and jurisdiction are the only issues before the court at this time.

Factual Background

Enewetak is a Pacific atoll administered by the United States under a "Trust Agreement" with the United Nations pertaining to the Trust Territory of the Pacific Islands, the former Japanese Mandated Islands.³ It is the home of the plaintiffs, whose ancestors settled there long before there was any European exploration of the Pacific region. They resided on Enewetak without significant interruption until 1947 when they were moved to Ujelang Atoll by the United States so that Enewetak could be used as a nuclear test site. From that time until the voluntary nuclear test moratorium went into effect in 1958 more than thirty nuclear devices were detonated on the islets and reef ledge of the atoll including, in 1952, the world's first explosion of a hydrogen bomb.

Since their removal, the Enewetakese have repeatedly complained that Ujelang does not afford satisfactory living conditions, and pressed for permission to return to Enewetak. Complaint ¶¶ 9 and 10. On April 18, 1972, Ambassador Franklin Williams,⁴ on behalf of the United States, agreed to their return by the end of calendar 1973—following the completion of certain unspecified activities then under way on the atoll. It seems clear that these activities were and are the PACE project sought to be enjoined by plaintiffs.

Approximately April 24, 1972, the plaintiffs made an aerial survey of Enewetak, and on May 17, 1972, they were allowed to visit the atoll for the first time in twenty-five years. The events that followed are not entirely clear, but it appears that plaintiffs were given a copy of the April 18th DES soon after their arrival. On the basis of this document and observations made during the visit, disputes arose between plaintiffs and the Air Force and the Nuclear Defense Agency which culminated in this suit.

According to the April 18th DES, attached as Exhibit A to the Complaint, PACE is one part of a larger program designed to provide new data on the vulnerability of certain elements of our strategic defenses to nuclear attack. Its specific purpose is to test the "cratering" effect of nuclear blasts by simulating such blasts with high explosives. Testimony at the hearing on the Order to Show Cause indicated that these detonations will range upward in size to 500 tons of high explosive.⁵ In addition, large areas on the islands will be cleared of "overburden" (vegetation and topsoil) preparatory to the detonations.

The core drilling and seismic studies which defendants wish to exempt from the operation of the preliminary injunction are procedures used to gather information concerning the makeup of the subsoil and strata of the atoll and the nuclear craters located there. While this information has a general value to the scientific community, testimony at the hearing on the Order to Show Cause indicated that its primary purpose is to further the PACE project. Indeed, it is a necessary base for planning and evaluating other phases of the project.

The core drilling involves digging holes of four to eight inches in diameter and ten to one hundred feet in depth. Approximately two hundred such holes were drilled prior to the issuance of the Temporary Restraining Order on September 22, 1972. The holes provide geologic samples for examination, and additionally some are used in the seismic studies. According to testimony at the hearing, the drill holes do not cause significant environmental damage because they fill up and disappear in a relatively short time.

The seismic studies are done in conjunction with the core drilling and involve the propagation of sound waves by the detonation of small charges of high explosives (none in excess of one fourth pound of TNT).⁶ The charges are detonated in holes three feet deep and the velocity of the sound waves passing through the surrounding earth is measured by electronic equipment suspended in nearby drill holes. From this information and that obtained by the core drilling a geologist can accurately predict the geologic makeup of the area tested.

NEPA Is Applicable To The Trust Territory

The question whether NEPA is applicable to federal action in the Trust Territory of the Pacific Islands (hereinafter "Trust Territory") and therefore to Enewetak is one of first impression for this court. Although the United States, pursuant to Article 3 of the Trusteeship Agreement with the United Nations, has "full powers of administration, legislation, and jurisdiction," federal legislation is not automatically applicable to the Trust Territory.⁷ Instead, Congress must manifest an intention to include the Trust Territory within the coverage of a given statute before the courts will apply its provisions to claims arising there. Such an intention is usually indicated by defining the term "State" or "United States" as used in the legislation to include the Trust Territory.⁸ Hence a problem of statutory construction arises when a given federal statute—such as NEPA—is silent on the extent of its coverage. In such instances, the courts must find the lawmakers' intent by an investigation of the history, character and general aim of the legislation.⁹

By its own terms, NEPA is not restricted to United States territory delimited by the fifty states. In contrast to the usual practice, the term "United States" is left undefined and used only twice in the entire statute, and in both of these instances, it serves the limited purpose of identifying certain policies, regulations and public laws that would otherwise remain ambiguous. See §§ 4332(1) and 4332(2)(E). Where one would have expected "United States" to have been used, the lawmakers substituted the much broader term "Nation." For example, section 4331(b) declares that:

. . . In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may . . . . (Emphasis added.)

This substitution is even more pronounced in section 4341 which requires the President to submit to the Congress an Environmental Quality Report setting forth:

. . . (1) the status and condition of the major natural, manmade, or altered environmental classes of the Nation . . . (2) current and foreseeable trends in the quality, management and utilization of such environments and the effects of those trends on the social, economic, and other requirements of the Nation; (3) the adequacy of available natural resources for fulfilling human and economic requirements of the Nation in the light of expected population pressures; (4) a review of the programs and activities (including regulatory activities) of the Federal Government, the State and local governments, and nongovernmental entities or individuals . . . . (Emphasis added.)

See also, 42 U.S.C. §§ 4321, 4342 and 4344.

Moreover, NEPA is framed in expansive language that clearly evidences a concern for all persons subject to federal action which has a major impact on their environment—not merely United States' citizens located in the fifty states. In its declaration of purpose, for example, the Congress used the following language:

The purposes of this chapter are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation;

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