lewetak i
4 ERC 1928.
Trust Te
could be used as a nuclear test site. From that
time until the voluntary nuclear test morato-
constru
ute—suc
rium wentinto effect in 1958, more than thirty
nuclear devices were detonated on the islets
and reef ledge of the atoll including, in 1952,
tes in whi
2 Trust 11
¥ (Aleohe
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
itation P
» (Commit
vices of t
in 71 Envy
Congress
» October :
; Federal
» L. 92-5:
101, 512:
, overridin
72), 15 I
‘ch and S
b upp. |
Disease }
'y (Intern.
‘nile Delin
CG. $403.
Control A
Environn
tober 18, |
1972); 42°
C. § 3002
5.C. § 807
Programs
U.S.C. $1
th Institut
lity Conti
p. 1972) {
eal Prope:
|
Federall
(Supp. 19
tutes in w
ding the T
tol of Sew
]
"
ad
a
i Bt
p. 1972) |
TSC. 4 ddicapped).
ly Plannin
cide Cont
d
Ae
dities); 4
ister Rell
pressed for permission to return to Enewetak.
a
1; 42 U
ning and
2) (Com:
USC. §
‘or Noncal
Complaint FF 9, 10. On April 18, 1972, Ambassador Franklin Williams,* 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 byplainuffs.
Approximately Apni 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 notentirelyclear,
but it appears that plainuffs were given a copy
of the April 18th DESsoon after their arrival.
On the basis of this document and observa-
tions made during the visit, disputes arose between plaintiffs and the Air Force and the Nu-
clear Defense Agency which culminated in this
suit.
According to the April 18th DES, attached
as Exhibit A to the complatnt, 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 at-
tack. Its specific purposeis 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 explosives.” In addi-
tion, large areas on the islands will be cleared
of “overburden” (vegetation and_ topsoil)
preparatoryto the detonations.
The core drilling and seismic studies which
Ipp. 1972)
defendants wish to exempt from the operation
of the preliminary injunction are procedures
il
and the nuclear craters located there. While
2949 (Sup
ams); 22 |
Travel)
anctuaries
Environn
tober 17, 1
1972); 33 1
ind Contr
‘1972, Put
Rptr. 594
(Supp. 19
| (Supp.
there is on
ig the Tru
ate.” See z
. Teacher §
used to gather information concerning the
makeupof the subsoil and strata of the atoll
‘Special Representative of the People of the
United States to the Micronesian Political Status
Talks.
> Testimony at the hearing showed that PACEinvolves three integrated and concurrent test programs: (1) ‘Micro Atoll” consisting of fifteen 1,000
pound detonations of high explosives (twelve of
which took place before the issuance of a temporary
restraining order on September 22, 1972), three 5
ton detonations and four 20 ton detonations, (2)
“Mine Throw IP’, a 220 ton detonation, and (3)
“Coral Sands”, a 500 ton detonation.
People ofEnewetak v. Laird
this information has a generalvalueto the sci-
entific 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 plan-
ning and evaluating other phases of the
project.
The core drilling involves digging holes of
four to eight inches in diameter andten 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 stuchtes.
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).° Phe charges are
detonated in holes three feet deep and the velocity of the sound waves passing through the
surrounding earth is measured byelectronic
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 NEPAis applicable
to federal action in the Trust Territory of the
Pacific Islands (hereinafter ‘“Trust Territory”’) and therefore to Enewetak is one offirst
impression for this court. Although the United
States, pursuant to Article 3 of the Trustee-
ship Agreement with the United Nations, has
“full powers of administration, legislation,
and jurisdiction” over the Trust Territory
subject only to the uncertain limitations of the
Trusteeship Agreement, federal legisiation 1s
not automatically applicable to the Trust Territory.’ 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 in-
dicated by defining the term “State” or
“United States’? as used in the legislation to
§ According to affidavits submitted by the defend-
ants, for seismic studies such as these. the sound
waves are normally preduced by a hammerimpacting on a metal plate placed on the surface of the
ground. However, testimony at the hearing indicated that the use of smali explosive charges is the
usual practice on Enewetak.
7See Article 3 of the Trusteeship Agreement
quoted in footnote 12 infra.
de