Attorney loses bid for fees

A federal judge has denied attorneys fees to a Reno lawyer who argued that his lawsuit on behalf of downwinders caused a Defense Department agency to cancel plans for a non-nuclear bomb test at the Nevada Test Site.

In a ruling Friday in Las Vegas, Senior U.S. District Judge Lloyd George denied fees to the plaintiffs' attorney, Robert Hager, and cited a Supreme Court ruling.

To be a prevailing party, and therefore possibly entitled to attorneys fees, a party "must obtain an enforceable judgment or comparable relief through a consent decree or settlement," George wrote.

"The Supreme Court squarely rejected the 'catalyst theory' as a permissible basis to find a plaintiff to be a prevailing party. Rather, the court reiterated that a prevailing party 'is one who has been awarded some relief by the court,'" George wrote.

In Hager's effort to block the Defense Threat Reduction Agency from conducting the Divine Strake bunker-buster bomb test, the agency decided not to proceed with its plans. That caused George in February to strike down as moot a motion by Hager to enter evidence and expert testimony on the need for continuing judicial oversight on future attempts to conduct the test.

Hager, who represents downwinders and Western Shoshone from the Winnemucca Indian Colony, said Monday he will appeal the fees decision to the Ninth Circuit Court of Appeals in San Francisco.

"There's no doubt if it weren't for the lawsuit, that bomb would have gone off," Hager said.

He estimates he has spent more than $500,000 in attorneys fees and costs.

Hager said he thinks his legal team, which financed the plaintiffs' case, should be compensated "if the government chickens out and backs out of an ill-conceived effort." He said precedent exists to award fees under such circumstances.

Nevertheless, "If we had to do it over again, we would do the same thing. That bomb had to be stopped to keep people from getting cancer."

Attempts to reach officials late Monday for the Defense Threat Reduction Agency were unsuccessful. In the past they have declined to comment on Divine Strake legal issues.

The lawsuit, and concerns voiced by some elected officials in Nevada and Utah, prompted postponements of the detonation, originally scheduled for June 2, 2006.

The test was canceled Feb. 22, 2007, when James Tegnelia, director of the Pentagon's Defense Threat Reduction Agency, issued a one-page statement that said, "I have become convinced that it's time to look at alternative methods that obviate the need for this type of large-scale test."

After the test was announced in 2006, Tegnelia apologized for saying the blast from a 700-ton, high-explosives slurry of ammonium nitrate and fuel oil would send a "mushroom cloud over Las Vegas."

Contact reporter Keith Rogers at krogers@reviewjournal.com or 702-383-0308.