National security defense cut from Groom lawsuits

Keith Rogers
Review-Journal

Government attorneys retreated Thursday from their plan to use national security as a defense to prevent two lawsuits from proceeding against the secret Groom Lake air base in Lincoln County.

In a conference hearing in Las Vegas, U.S. District Judge Philip Pro granted a request by Justice Department lawyer Richard Sarver to withdraw the government's defense, which was based on the military and state-secrets privilege.

It was the first time the government has tried to use the secrets privilege to dismiss a case on jurisdictional grounds, said plaintiffs' attorney Jonathan Turley, a George Washington University law professor who directs the Environmental Crimes Project at the university's National Law Center.

Sarver acknowledged during the hourlong, pretrial conference that invoking the privilege was premature, because no evidence had been presented that could be challenged on the grounds it needs protection for national security reasons.

Sarver, as he was leaving the Foley Federal Building, declined to comment on his strategy change. He offered only a general comment, saying the United States supports and abides by all environmental laws at its federal facilities.

He also declined in court proceedings to acknowledge the existence of the base, sometimes called Area 51, 35 miles west of Alamo on the Groom Dry Lake bed.

Pro asked Sarver, "What about the existence of the facility?"

Sarver replied, "That is a subject probably better taken up at another time.

This is not the right time to do it."

Air Force officials, however, released a statement Thursday saying, "There is an operating location near Groom Dry Lake," but some operations in the Nellis Range Complex "remain classified and cannot be discussed."

Sarver also told Pro that the government's negotiations with Turley for an out-of-court settlement were "almost DOA" _ dead on arrival _ for Thursday's pretrial conference.

Turley said, "The admission of the Department of Justice that the use of the privilege was premature will clear the way for discovery."

As for Sarver's comments about all government facilities abiding by the nation's environmental laws, Turley said, "I have plaintiffs with injuries who would strongly disagree. The injuries were not brought about by compliance with federal laws."

Turley represents the family of Helen Frost, a Las Vegas widow of one former Groom Lake base worker, and six other former workers at the base. The former workers, who the court has allowed to use fictitious names, claim they were injured from toxic chemicals that were burned at the base during the 1980s in defiance of environmental laws that prohibit open-pit burning of hazardous wastes.

The first case, described in court papers as "the EPA case," was filed Aug. 2 in federal court in the District of Columbia on behalf of six John Does. It names U.S. Environmental Protection Agency Administrator Carol Browner as a defendant, claiming she failed to inspect the base for compliance with the Resource Conservation and Recovery Act.

The other lawsuit, "the Air Force case," filed Aug. 15 in federal court in Las Vegas, names as defendants Defense Secretary William Perry, National Security Adviser Anthony Lake, and Air Force Secretary Sheila Widnall. It claims these officials used secrecy to hide hazardous waste violations that resulted in injuries to Frost's late husband, Robert, and six John Does.

At Thursday's conference, Pro denied Sarver's request to postpone the EPA case even though Sarver suggested the government could "render the EPA case moot" by performing the inspections Turley had requested.

Sarver said he intends to file a motion to dismiss the EPA case.

Pro set a May 10 deadline for the parties to complete discovery. He also referred Sarver and Turley to U.S. Magistrate Judge Roger Hunt to schedule a settlement conference and gave the government an extension until Wednesday to respond to Turley's change-of-venue motion.