OpEdNews

December 13, 2008

It all began in early spring 2006. That was when a few members of the Western Shoshone Nation and several downwinders called up Reno-lawyer Robert Hager to ask him to put together an injunction to stop Divine Strake. That was the code name given by the Pentagon to a non-nuclear bomb test that was barely a blip on the radar screen of the public. It remained a blip until concerned scientists and radio personality Randi Rhodes, among others, took notice. The scientists found and reviewed the draft environmental study for the 700-ton bomb test slated for the Nevada desert and the popular media heard and rehashed a comment from the director of the Pentagon agency, the Defense Threat Reduction Agency (DTRA), who said 'I don't want to sound glib here but it is the first time in Nevada that you'll see a mushroom cloud over Las Vegas since we stopped testing nuclear weapons.'

While activists, politicians and the media tried to wrap their arms around what this Divine Strake really was about, Hager hit the ground running and his lawsuit played a critical role in delaying the Divine Strake test that year. Hager's lawsuit put into ink the widespread fear in the Intermountain West that the test would eject into the atmosphere--from its ground zero at the Nevada Test Site--radioactive particles that were deposited from several 1950s above-ground nuclear tests.

The lawsuit brought about many test delays. DTRA announced postponements and delays of the test in May (twice), June and August. The planned date of the test got bumped from June 2 to June 23, and then eventually to sometime in 2007. Leading up to both test dates in June 2006 of Divine Strake, the government flatly denied there would be any radioactive exposure to the public, a position they later reversed. In a December 2006 environment assessment they asserted the test would result in radioactive exposure to the public but that it wasn't a danger. During January and February 2007, more than 10,000 concerned Southwesterners and others, in their public comments on the environmental report, expressed grave skepticism over claims that the test was safe. Utah's state government echoed those sentiments and hours after Utah's governor signed a resolution in opposition to the test, he received a call from DTRA that they cancelled the test.

The fight, however, for some, didn't stop then.

When DTRA cancelled Divine Strake, without disclosing the reasons for its decision, they stated in a press release that in lieu of Divine Strake they 'will...conduct confirmatory experiments at a much smaller scale.' These 'confirmatory experiments' were described by a Las Vegas Review Journal reporter who interviewed the Nevada Test Site manager, in a March 12, 2007 article, as a 'series of smaller-scale tests.'

DTRA stated no intention to conduct environmental studies before conducting these smaller tests at the Nevada Test Site. And this worried many. In the article titled 'Ka-boom! Divine Strake critics launch a new fight against plans to set off blasts in Nevada' by Ted McDonough of Salt Lake City Weekly, Rich Miller, an environmental consultant and expert witness for those suing the government, said "The issue of a smaller blast is one of semantics." Miller contended that a blast one-fourth the size of Divine Strake could still carry radioactive material downwind into populated areas, given the right atmospheric conditions.

Hager tried to re-direct the original lawsuit, filed in 2006, to ask the court for judicial oversight over DTRA small and large-scale open-air blasting at the Nevada Test Site, to order advanced notice anytime a blast is proposed, and other remedies. While Miller was convinced from the semantics of DTRA's statement that the word 'smaller' didn't remove the danger to downwinders, Hager was focused on the words 'will...conduct.' Hager noted in a 2007 legal motion that "A 'smaller scale experiment' is not defined, but the agency's decision that such smaller surface explosions will be conducted is clear and unequivocal from that press release." Hager fought for court oversight of DTRA and pave the way to have the court, like a parent, keep DTRA in check. Hager's plea for oversight, however, was ultimately rejected in late February 2008. Hager, however, continued to fight to recoup his legal fees.

Since that February 2008 decision, DTRA has had the green light to continue its experiments at the Nevada Test Site (NTS) in the Tunnel Target Defeat Program of which Divine Strake was to be the 'large-scale' event. DTRA's green light apparently gives it the ability to conduct these non-nuclear tests at any size, as long as they are smaller than Divine Strake. They also can occur without public notice. These tests are in addition to tests in DTRA's other program, the Hard Target Defeat Program (HTDP), that, according to a 2008 NTS environmental document, is 'inactive other than tests of small air-dropped munitions against tunnel targets' that has occurred in Areas 12 and 16 of the NTS. If DTRA does surface testing under either program in Areas 12 or 16, it can pose environmental risks to downwinders because of their proximity to Yucca Flat and various 1950s tests that deposited fallout in a westward direction over those Areas.

Sadly we will not know about it when these tests will happen. Or know about it when they have already happened. That is thanks to a crafty exploitation of 'categorical exclusion' per the National Environmental Policy Act (NEPA), which is a 1960s law that forces the DOE to review actions that may pose a significant environmental or health risk and bring the public into the decision-making process. Categorical exclusion is defined as a category of actions that do not individually or cumulatively have a significant effect on the human environment. The DOE, in a 2002 NEPA document for the Nevada Test Site, contended that its HTDP tests meets NEPA requirements by using a protocol per this "categorical exclusion" that involves a hodgepodge of internal checks. The outcome of these internal checks would be to determine if a basic environmental study (Environmental Assessment) needs to be prepared or the DTRA test can be excluded from further review. It appears that each and every DTRA test - with the exception of the cancelled Tunnel Target Defeat Program 'Divine Strake' test – was categorically excluded from further NEPA review. That means no notice was given to communities, or put in the federal register, or posted even in the NTS annual environmental reports.

Downwinders had the chance to protest this exploited NEPA loophole that lets DTRA continue surface testing on the contaminated soils of the NTS without public involvement or giving proper notice. In spring 2008, the Draft Supplement Analysis for the Final Environmental Impact Statement for the Nevada Test Site and Off-Site Locations in the State of Nevada was released for public comment. I wrote many articles and made numerous pleas to the public to comment on this draft document to pressure the DOE to change its policy regarding these categorically excluded DTRA tests. If the DOE decides in its final document (Final Supplement Analysis), for which it is 2 1/2 months late in completing, to not comprehensively revamp these policies, then we have tougher times ahead.

And those times will not be helped by the media's blunders. For instance, the Las Vegas Review Journal, which has done reporting on the status of the Divine Strake lawsuit, has informed its readers that Hager, since early 2007, had been fighting for continuing oversight on future attempts to conduct the Divine Strake test. There won't be another 700-ton Divine Strake test. DTRA has made that clear. Hager was fighting against Divine Strake's babies, who incidentally could grow up to 3 or 30 or 600-tons.

In early December 2008, Hager learned that his fight to recoup about $500,000 in fees for the lawsuit he initiated in 2006 was defeated. Hager, according to the Review Journal, will appeal the fees decision to the Ninth Circuit Court of Appeals in San Francisco. What I want to know is how will we get continuing judicial oversight of DTRA testing? Why didn't Hager appeal that?

Similarly, why didn't the thousands of citizens who wrote letters and emails against Divine Strake protest those nine words in DTRA's cancellation statement that they 'will...conduct confirmatory experiments at a much smaller scale.'

Divine Strake was the un-stoppable Nevada bomb test that, remarkably, was killed. But it became the un-killable Nevada bomb tests. We must oppose these Nevada bomb blasts like we did Divine Strake and, to put it as Hager once said, send them to boondoggle heaven where they belong.