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Assistant Attorney General COLLECTION Land and Natural Resources Division /23+ / General Litigation Section FOLDER 0~119% Department of Justice THE PEOPLE OF BIKINI, et al. v. SEAMA??S,et al., CIVIL NO. 75-348, been able to secure definitive resolution--from the Office of ltanagement and Budget or otherwise--of the outstanding questions regarding the funding of the desired aerial survey of certain islands in the Northern Marshalls including Bikini Atoll. We recognize that the conduct of this survey appears to be the principal ciemandof plaintiffs in this litigation, and ray even provide a basis for settlement of the lawsuit. A brief recapitulation of the Pacific involvement of the defendant agencies may be useful before a discussion of the present During the period 1946 to 1958, the United States Government conducted nuclear weapons tests at the Pacific Atolls of Bikini and Enewetak. Before the tests were begun, the U.S. evacuated the island people. The testing program and the use of these Pacific Atolls for testing were approved by ~he President. All but one of the test series were performed by Joint Task Force that reported jcintly to the Atcnic Energy Commission and to the Department of Defense. The exception predated the establishment of the AEC and was the first post L’orld War II series of tests perfoi-medat Bikini in 1946, to study the effects of the atomic bomb on Naval ships. For many years, the Bikini people were dissatisfied with their living conditions and were asking to return home. Following a radiological survey by the Atomic ?h~ergyCommission and an evaluation of safety aspects of resettlement, a cleanup and rehabilitation program was undertaken at Bikini Atoll jointly by the Atomic Energy Commission and the Department of Defense in 1969. This was in response to President Johnson’s letter of August 12, 1968. (Exhibit A to the OL.UT15$mp1ain t in this action)
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During the cleanup of Bikini Atoll, the Department of Defense, the Atomic Energy Commission, and the Department of the Interior cooperated in the safety studies, and in the cleanup and rehabilitation activities. The Atomic Energy Commission was primarily responsible for the radiological surveys, safety evaluations, and advice and recommendations on radiological matters related to cleanup and rehabilitation. The Department of Defense performed the cleanup and disposal of radioactive debris and the Department of the Interior and Trust Territory were responsible for-the rehabilitation of the islands and return of the people. The specific division of responsibility between the Atcmic Energy Commission and the Department of Defense for this cleanup was set forth in the February 11, 1969, Memorandum of Understanding, Attachment 1 to this In 1974, the Department of the Interior, Office of Trust Territories, requested ERDA assistance in reviewing plans for the second phase of housing construction on Bikini Island. To facilitate this review, and ‘because of the difficllltyin surveying so large an island on foot, an aerial survey was proposed. Such a survey would also provide the Department of the Interior with needed data on interior portions of other islands in the Atoll for long-range planning. The Department of Defense was requested bv the Department of the Interior to provide the necessary logistics suppo;t to ERDA. In our view$ provision of this logistic support by the Department of Defense at no cost wouid be entirely consistent with Paragraph 8 of the Memorandum of Understanding, and the continuing responsibility of that Department for the residual evidence or its operations in the Pacific. The Department of Defense advised that they were unable to provide the necessary logistics support, ~’ithout cost reimbursement. Because of the need for timely advice to the Department of the Interior, ERDA fielded a limited survey using ground monitoring. ‘I’hiswas sufficient to answer specific questions about home locations on Bikimi and Eneu Islands, but did not provide any new data on other islands in the Atoll, and did not provide the same amount of detailed data on Bikini and Eneu Islands as an aerial survey would. It has become increasingly apparent that the U.S. will soon end the Trust Territory Agreement. We believe that before the U.S. does this, a complete and comprehensive radiological survey ought to be conducted of all of the Pacific Islands which were subjected to testing and closeIn fallout to document the status today. For its part, ERDA is prepared to fund the F’Y1976 operating costs for the technical aspects of the survey. The Department of the Interior and ERDA have repeatedly requested the Department of Defense to provide logistic support for this survey. That Department has requested financial reimbursement as a condition of such support. Neither ERDA nor the Department of Defense has programmed, nor otherwise has available, funds for this logistic support. Requests for such funds have not survived budgetary reviews.
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The details of the survey, and its merit have been thoroughly discussed at staff levels between all three agencies both before and after the initiation of the instant lawsuit. ERDA has provided extensive briefings for the Assistant Secretary of Defense (Health 6 Environment), to the Department of the Interior, Office of Trust Territories, to staff members of the Office of Management and Budget, and to the Chairman of the Council on Environmental Quality. Since neither ERDA, the Department of the Interior, nor the Department of Defensz, are in a position . to commit the necessary rescurces for such a survey, there is a need for . hkgher-level resolution of agency funding responsibilities. Several methods of informally triggering this resolution have been explored, without s’uccess,since the preliminary conference with Judge King on November 1, 1975. Just as the agencies are unable to agree on where the funding responsibility lies, they are unable to agrez on a joint presentation to the Office of }!anagementand Budget. ERDA’s reluctance to go to the Office of Management and Budget stems from a feeling that the matter will be regarded as an interagency squabble and referred back for resolution by the agencies. This is reinforced by the knowledgz that cognizant Office of Management and Budget examiners have been fully briefed on this issue, but have initiated no action which would lead to a resolution. While ERDA is unwilling to go directly to the Office of Management and Budget--even if it means dzfendi.ngthis suit on the mzrits in lizu of settlement--we would welcome a definitive resolution of the funding situation. Accordingly, we suggest that it might be appropriate for the Department of Justice to seek an Office of Management and Budget determination of this matter, emphasizing that the Departmentfs eff6rts to secure unanimity among its client agencies has been unsuccessful, and pointing out that there is a strong Government interest in szttling Litigation and Legislation cc: As shown on page 4
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Assistant Solicitor - Territories Division of General Law Department of the Interior Department of Defense .
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IIETIVEENTILEDIVISICY OF MILITARY A.?PLICXTIOX, 1. CklAugust 12, 1968, the Pmsidont :’tJq’-”O:ltod that the ~ainnan, Atomic Enqrgy Commission, and the Secretary of G?fonse work with the in planning a comprehensive resettlermnt p.~:;rcn for Bikini Atoll and assist them in carrying It out. 2. l%e Department of Defense (DOD) and the Atomic Energy (AEC) have agreed to cooperate with the Dep afimnt of Interior cleanup of the Bikini Atoll for the return of the native population. The cleanup involves the mxmval of vegetat iva csiorg.mwth,debris, structures Md other materials n?sidual from the use of tho Atoll for atomic testing which could pose radiation or accident h=ards to the population or interZero with their reasonable use of the land. 3. The D@ will manage the cleanup, utilizing the Defense Atoaic Support Agency (lMSA) including the Joint Task Force EIGn (JTP-3) and its existing organizational M)latiOnShipS with the AEC and AEC contractor support. The JCS have designated the Director, DAM to act as Project Manager and have provided hlm appropriate instr~ctions. The project sill provido a unique opportunity for exercising t.k~ readiness capability of JTF-3 in planning and organizing the deployment d men and equipment to undeveloped islands on short notice, at xulniztm dtmmds upon outside resources, in manner sinilar to that which ‘xxld bc+xxsquimd in support of the treaty safogunrds if nuclear testing environments prohibited by the Llmltod Test “WC.P.Yordored resumed in the
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I ,.. ..#*- *4. The DOD and tho AEC have agreed to provide S300,000 each In 1 figcal year 1969 for the cleanup. Total M% funding shall not exceed ! S300,000 for tho entire project and AEC funds shall not be used to I pay costs which accrue mbsequent to June 39, 1969. The DOD funds will be availablo for obligations until June 30, 1S69. The DCO/AZC funds ($600,00~} will be made available by the AECto DASA (Nevada Operations Office to CJTF-8) to provide the Project Maneger with financial msoumas to begin the task. Approximately half of this $600,000 1s attributable to tbe cost of eliminating radiological contamination. Existing DASA1 vialing and accounting for these DUD/AEC funds for papnt of the AEC I contractor, and to defray transportation, nilitary travel, per diem, and I other associated costs attributable to the task and not included under payments to the contractor. It is expected that the same procecluzws will be followed in respect to the $700,000 expected to lx!forthcoming in FY 70 fmm the Department of Interior. 5. ‘lheAEC contractor will provide Flaming, engineering and technfcal staff support and labor for cleanup as well as camp suppoti operations and other tasks as determined by tho Project Manager. Except for matters pertaining to contract admtiistration, CJ17-8 will exercise “operational control over the contractor. C!Ontract administratiat will 1 he performed by the AZC Honolulu men office. 6. The AECWI1l be responsible for detenining that radiological health and tiafetyrequirements are met at tbo completion of this project. I These mquiromonts, as davelopod in projoct plans, will be subject to
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the prograss made and keep interested nge~cies Informed. I 7. The handling =d =~val of conta:~i~at~dscrap will be conducted 1 so that exposures to Persomel will ho within the standafis for workers I established by the Federal Radiation Council. Tho contractor will use I Trust Territory Igland natives as feasibln and as determined between the -1 native residents may not be employed in collecting and removing contaminated 8. Equipment or other assets available to the ASC and DOD nay be used providing this arrangement is in the best interest of the U. S. 1 Gover7um3nt. If mutually agreed between the prOVidi~ party and the Prqject Manager, these assets will be made available to the Bikini clean- ! up project, at no cost other than for transportation, operating, and I maintenance charges, If requirsd. 1 9. The Bikini cleanup will not interfere significantly with mslnI tonanco of the test readhess posture. I .accordance with the provisiom of this mmrandu. Director, DAM Assistant General ~lm~~r