Supreme Court: No review of award for US nuclear weapons tests

US settled a claim more than 25 years ago over damage from its 67 nuclear weapons tests in the South Pacific. But Marshall Islands residents claim compensation was not 'just' under the Constitution and sued. The US Supreme Court on Monday declined to hear their case.

By , Staff writer

The US Supreme Court on Monday declined to take up a challenge by residents of a string of South Pacific islands seeking "just compensation" for losing their homes and their land to US nuclear weapons testing conducted in the islands from 1946 to 1958.

Portions of the coral-fringed atolls were vaporized in 67 nuclear explosions ranging from 0.19 kilotons to a 15-megaton blast equivalent to 1,000 Hiroshima bombs. Nuclear fallout rained down on what remained of the islands.

The justices dismissed the petition without comment.

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The action upholds a decision by the US 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.

The appeals court ruled in January 2009 that the government of the Marshall Islands had settled the same claims more than 25 years earlier in a comprehensive agreement with the US government. Under that agreement, the US paid $150 million into an investment fund administered by officials of the Marshall Islands, with $45.75 million set aside to pay claims.

Island residents voted to approve the agreement in 1983. Congress and the president followed suit in 1986, and the agreement was finalized.

The agreement acknowledged that island officials were authorized to petition Congress for additional funds in the event of “changed circumstances.” But it also said the settlement would provide the final and unreviewable resolution of any claims made by the people of the Marshall Islands against the US for its nuclear testing.

In 2000 and 2001, a Marshall Islands nuclear claims tribunal awarded $563 million in compensation and cleanup costs to residents of Bikini Atoll, and $385 million to residents of Enewetak Atoll. But the tribunal lacked the funds to pay the awards. In 2002 and 2003, the tribunal paid residents of Enewetak $1.6 million of the $385 million award. Residents of Bikini received $2.3 million of the $563 million award.

Marshall Islands officials cited “changed circumstances” and asked Congress to provide more money. Congress refused.

Island residents sued, claiming the US government owed them just compensation under the Constitution’s Fifth Amendment for taking their land and the surrounding sea for the public purpose of nuclear weapons testing.

The Obama administration urged the high court to reject the appeal.

“The United States and the Marshall Islands 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,” wrote US Solicitor General Elena Kagan in the government’s brief.

Ms. Kagan quoted a portion of the 1986 agreement, that the compact between the two countries “constitutes the full settlement of all claims, past, present and future, of the government, citizens, and nationals of the Marshall Islands.”

In addition, she said, the agreement notes: “No court of the United States shall have jurisdiction to entertain such claims, and any such claims pending in the courts of the United States shall be dismissed.”

That can’t be right, countered Washington lawyer Paul Wolfson in his brief on behalf of island residents seeking compensation.

The Fifth Amendment mandates that private property shall not be taken by the government for public use “without just compensation.” Mr. Wolfson said that Congress is free to craft alternative methods to address the payment issue, but that neither the government nor the courts can avoid the constitutional command that fair compensation be paid.

“This case presents an issue essential to the security of all property owners: whether the government may evade the constitutional guarantee of just compensation … by stripping the courts of jurisdiction over any claim that it has not provided just compensation for the taking,” Wolfson wrote.

“Without this court’s review,” he added, “the government will have effectively insulated itself from the fundamental constitutional requirement that it pay just compensation for the taking of property.”

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