Testimony of Jonathan M. Weisgall

Legal Counsel for the People of Bikini

Testifying on Behalf of the Peoples of Bikini, Enewetak, Rongelap and
Utrik

Before the Senate Energy and Natural Resources Committee

September 25, 2007

Thank you, Mr. Chairman. I am Jonathan Weisgall, and I have served as
legal counsel for the people of Bikini for 34 years. In order to best
use the committee's time this morning, you have asked to hear from one
representative from the four nuclear affected atolls in the Marshall
Islands, so I am testifying today on behalf of those four atolls: Bikini
and Enewetak -- which were Ground Zero for the 67 atomic and hydrogen
bombs tests that the United States conducted in the Marshall Islands --
as well as Rongelap and Utrik -- whose inhabitants and islands were
showered with fallout from the U.S. nuclear weapons tests, most notably
the infamous March 1, 1954 Bravo shot, the largest nuclear test ever
conducted by the United States.

The four atoll groups support S. 1756. Let me share their specific views
on the four provisions of the bill and then request a modification to
address what we believe is missing from it.

First, though, I want to raise an issue that concerns the people of
Utrik. In 2003, the Department of Energy established a Whole Body
Counting (WBC) facility for radiological testing of the people of Utrik.
Due to insufficient power supply on Utrik Atoll, the Department of
Energy located the Utrik WBC on Majuro. As a result, the people who live
on Utrik Atoll must travel to Majuro, which is approximately 250 miles
away, in order to be tested at the WBC facility. The significant cost of
air transportation and inconvenience to travel to Majuro from Utrik has
led to infrequent and sporadic WBC testing of the inhabitants of Utrik.
Congress acknowledged this problem when it passed legislation in 2004 to
transfer a decommissioned NOAA vessel to Utrik Atoll for the purpose of
helping to alleviate this transportation issue. While Utrik supported
and welcomed that Congressional gesture, a professional analysis showed
that if Utrik took possession of the vessel it would be a heavy
financial burden, so unfortunately the NOAA vessel was not the solution.

So today, with only a portion of the Utrik community being tested, many
are left unexamined. This is extremely problematic because recent WBC
data gathered by Lawrence Livermore Laboratory has demonstrated that the
people living on Utrik have received the highest body burdens of
radionuclides of any group in the Marshall Islands. The people of Utirk
strongly feel that relocating the WBC facility to Utrik is the right
solution and is long overdue. They therefore request that language be
added to S. 1756 that grants the Department of Energy the authority and
funding necessary to construct a WBC facility with an adequate power
supply on Utrik Atoll. While the people of Utrik do not have an exact
cost estimate at this time, they believe this can be achieved with a
relatively modest expenditure.

Let me now turn to the four provisions in S. 1756. With regard to
Section 2, the four atolls strongly support a long-term U.S. program to
monitor the dome at Runit Island, which was created as an above-ground
nuclear waste storage site during the radiological cleanup of Enewetak
Atoll in the 1970s and now houses more than 100,000 cubic yards of
radioactive material, including plutonium, scraped from other parts of
the atoll. The United States should monitor and treat the Runit dome and
surrounding area as it would any nuclear waste storage site in the
United States. We would therefore urge you to specify in report
language, or in the statute itself, that this monitoring should cover
the following:

-   Monitoring of the land and water around the Runit dome, including
    soil around the dome.

-   Gathering and analysis of the marine life in the proximity to the
    dome.

-   Collection and analysis of groundwater from monitoring wells around
    the dome.

-   A re-suspension study of air and soil samples in the Fig/Quince area
    of Runit Island. This is where plutonium particles were dispersed,
    left in place, covered with a few inches of dirt in the late 1970s,
    and never cleaned up.

-   Monitoring the dome to assure its structural integrity and to
    determine the extent of leaching. The radioactive isotopes in that
    dome will last for thousands of years; the dome won't.

-   Placement of signs and fencing to warn of danger and prevent access
    to contaminated areas.

The peoples of the four atolls support Section 3, which would close the
loophole under the Energy Employees Occupational Illness Compensation
Program Act and thus permit Marshallese citizens who worked as
Department of Energy contract employees at Bikini and Enewetak Atolls to
qualify for eligibility under the Department of Labor's compensation and
medical care program established pursuant to the Act. Just as Section 2
would treat Runit like a U.S. nuclear waste site, Section 3 would give
these eligible Marshallese workers the same access and benefits that
eligible U.S. citizens and nationals currently enjoy.

The peoples of the four atolls also support Section 4, which authorizes
the appropriation of \$2 million annually through fiscal year 2023 to
fund the four-atoll health care program, which has provided health care
on a shoestring budget since the Compact first came into effect 20 years
ago. We would urge you, though, to make the following changes in this
section:

-   Using the committee's logic of adjusting the \$2 million for
    inflation, we urge you to start with a significantly higher number,
    such as the \$4.5 million figure proposed by the Marshall Islands
    Government, because this program has been stuck at \$2 million for
    21 years, since the Compact first went into effect in 1987. In light
    of population growth and inflation over the last two decades, that
    program cannot accomplish the same goals today that it was intended
    to accomplish. To put it bluntly, funding for this program is
    embarrassingly low. A more realistic number will also help ensure
    that these Marshall Islanders do not become a burden on public
    health services in the United States.

-   We urge you to split these funds evenly among the four atoll
    communities.

-   We urge you to add language that would permit each atoll, at its
    discretion, to use its funds for tertiary care.

The last provision of this bill, Section 5, authorizes a National
Academy of Sciences assessment of the health impacts in the Marshall
Islands of the U.S. nuclear testing program. The four atolls do not
oppose this provision, but instead defer to the Marshall Islands
Government, because this is a national rather than a four-atoll issue.
We would merely observe that numerous studies have been conducted on
this question, ranging from a nationwide radiological survey to reports
prepared by private contractors, U.S. government laboratories, the
International Atomic Energy Agency, and, most recently, the National
Cancer Institute, which just prepared a report for this committee in
September 2004 estimating the number of incremental cancers to be
expected in the Marshalls as a result of the testing program. If you
know there is a problem -- and everyone knows there is -- why study it
over and over? Why not act on it?

Which leads me to what is missing from this bill. We commend you for
addressing part of the nuclear legacy, but this bill ignores the skunk
at the garden party, which is the failure of the U.S. Government to
provide the Nuclear Claims Tribunal with the funding needed to pay the
awards it made to the peoples of the four atolls.

Let me briefly walk you through the process: At the time Congress passed
the Compact of Free Association Act in 1986, Marshallese plaintiffs had
numerous lawsuits pending against the United States in what is now the
U.S. Court of Federal Claims for the takings of their lands and other
damages. The Compact states that the United States accepts its
responsibility for compensating the Marshallese for damages resulting
from nuclear weapons testing, and its sets up an alternative mechanism
for adjudicating damages claims, the Nuclear Claims Tribunal. The
pending claims were dismissed pursuant to the Compact Act --
specifically the Section 177 Agreement -- which established a trust fund
to pay compensation. That agreement also states that it constitutes the
full settlement of all nuclear claims against the United States and
further provides for the dismissal of all such claims pending in U.S.
courts.

The Marshallese plaintiffs challenged this scheme in U.S. courts,
arguing that giving limited funding to the Tribunal and cutting off
federal court review of the adequacy of just compensation was
unconstitutional. The court, however, ruled that it was premature to
decide these questions until the plaintiffs had exhausted their remedies
under the Tribunal.

The Marshallese plaintiffs spent most of the next 19 years litigating
their claims before the Nuclear Claims Tribunal, which has issued awards
for the four atolls totaling more than \$2.2 billion. However, because
of its limited funding, the Tribunal was only able to pay out \$3.9
million, which represents less than 2/10 of one percent of its awards.

Having exhausted their remedies and having received such small awards,
the people of Bikini and Enewetak returned to the Court of Federal
Claims in 2006 raising the same constitutional questions from 20 years
ago.

Where does the U.S. Government stand on providing the Nuclear Claims
Tribunal with the funding needed to pay the awards it made to the
peoples of the four atolls? The Compact says the United States accepts
its responsibility to pay compensation, and the Fifth Amendment on its
own requires just compensation. Yet just compensation has not been paid.
To put it bluntly, all three branches have played a shell game on this
issue. More than seven years ago, the Marshall Islands Government
presented this committee with a petition filed under the "Changed
Circumstances" provisions of Article IX of the Section 177 Agreement
that specifically requested Congress to appropriate additional funds to
cover unpaid Nuclear Claims Tribunal property claims based on new
radiation standards adopted by the U.S. Environmental Protection Agency.
Seven years later, you have yet to act on that petition.

Meanwhile, as the 15-year Compact expired in 2001, the Marshall Islands
Government sought to engage the executive branch in negotiations over
this issue, but that branch also failed to act, using as an excuse the
fact that the issue was pending before Congress. As the U.S. Compact
negotiator wrote to the Marshall Islands Government in 2002: "We
cannot...address requests for any additional assistance related to the
Nuclear Testing Program since this issue is on a separate track. It is
now before Congress via the \[RMI Government's\] request submitted under
the changed circumstances provision" of the Section 177 Agreement.

The judicial branch has also failed to act -- at least while the ball is
in the legislative branch's court. As part of her ruling on August 2,
2007, dismissing the Bikini and Enewetak lawsuits without prejudice,
Judge Miller of the U.S. Court of Federal Claims found that "litigation
on this issue is still premature...because Congress has failed to act on
the Changed Circumstances Request." She went on: "Congress has made no
final determination on plaintiffs' petition, and the apparent lack of
action...cannot establish a taking until plaintiffs can show that
Congress no longer is considering their petition." In finding that
"Congress has not yet exercised its option" under the changed
circumstances petition, she ruled that "the court is in no position to
find that the \[Nuclear Claims Tribunal\] procedure...has run its
course. Congress must consider the Changed Circumstances Request and
take such action as it deems appropriate." A more complete excerpt from
Judge Miller's ruling on this issue is included at the end of this
statement.

What can this committee do? The peoples of the four atolls ask you to
break this Gordian Knot. Of course, they would like you to act on the
petition and move forward with an authorization to pay these claims.
However, if you determine that this request falls outside the criteria
of the changed circumstances provisions, please state this in your
report language on this bill together with the fact that this issue is
now up to the courts to resolve.

It's time for Congress to resolve this issue -- one way or the other.
The Tribunal has completed its review of the largest claims, and the
true extent of the compensation due can now be determined. This legacy
goes back 61 years -- to 1946, when the U.S. Navy moved the people of
Bikini off their atoll to facilitate the nuclear testing program. One
branch of the U.S. Government should honor the constitutional, statutory
and moral obligations to the people it damaged and the others who, with
no real options, gave up their lands to help the United States win the
Cold War. Thank you.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Excerpt from Judge Christine Odell Cook Miller's August 2, 2007 ruling
in

[The People of Bikini v. The United States]{.underline}

Docket No. 96-288C (U.S. Court of Federal Claims)

pp. 30-37

In Count I of their Amended Complaint, plaintiffs allege that
defendant's "failure and refusal to fund adequately the award issued" by
the NCT constitutes a Fifth Amendment taking of plaintiffs' claims
before the NCT for public use. Am. Compl. ¶ 104. Framed another way,
plaintiffs allege that the Government took their claims in violation of
their Fifth Amendment right to just compensation because Congress has
failed to act on the Changed Circumstances Request. A report to Congress
does not constitute a governmental action that could be considered a
taking of any interest. A report merely supplies Congress with
information that may justify or prompt further action. Congress has made
no final determination on plaintiffs' petition, and the apparent lack of
action after two years cannot establish a taking until plaintiffs can
show that Congress no longer is considering their petition. Therefore,
the court finds that no government act has taken place within the last
six-years that relates to the asserted taking of plaintiffs' private
property interest.

In Count II of their Amended Complaint, plaintiffs allege that
"\[d\]efendant's failure and refusal adequately to fund the award issued
by the Nuclear Claims Tribunal on March 5, 2001 constitutes a breach of
the fiduciary obligations imposed upon it in 1946 by the creation of a
contract implied in fact between defendant and plaintiffs." Am. Compl. ¶
112. As in Count I, plaintiffs have not alleged any action on the part
of the United States Government occurring within the last six years that
could be considered a breach of plaintiffs' claimed implied-in-fact
contract with the United States. While Congress has not yet acted on the
Changed Circumstances Request, that circumstance does not constitute an
action on the part of the Government sufficient to meet the requirements
of the statute of limitations.

Counts III and IV of the Amended Complaint allege that the United States
breached the implied duties and covenants of their implied-in-fact
contract and the implied duties and covenants owed to plaintiffs as
third-party beneficiaries by

> \(a\) failing or refusing to seek from Congress additional funds for
> the Nuclear Claims Tribunal sufficient to satisfy the March 5, 2001
> award; (b) interfering with plaintiffs' efforts to secure additional
> funds for the Tribunal to satisfy that award; and (c) failing and
> refusing to fund adequately the award issued by the Nuclear Claims
> Tribunal on March 5, 2001.

Am. Compl. ¶ 116; Am Compl. ¶ 120 (same). On both counts, plaintiffs do
not allege government action within the last six years that meets the
requirements of the six-year statute of limitations. If the
implied-in-fact contract or duties or covenants under a third-party
beneficiary theory were breached, that event would have occurred in 1986
when the Act became effective. Nothing has changed since 1986 when all
of the events occurred to fix the alleged liability of the Government.

Although, plaintiffs argue that their "first four causes of action are
based on the failure of the alternative claims procedure to provide
adequate compensation for the loss of their lands \[and
that\]...\[t\]his failure was unknowable until after March 5, 2001, the
date of the NCT decision...," Pls.' Br. filed Dec. 18, 2006, at 36,
plaintiffs have not shown that the claims differ substantively from the
breach of contract claims in [Juda I]{.underline} and [Juda
II]{.underline}. The susbstance of plaintiffs' dispute with the United
States has been the same for the last twenty-one years: plaintiffs seek
additional compensation for damages caused by the Nuclear Testing
Program. The amounts specified in the settlement agreement also were
known to plaintiffs in 1986. The terms and conditions of the Changed
Circumstances provision were known to plaintiffs in 1986. The court
cannot find now -- twenty-one years after the Compact was entered into
-- that plaintiffs' claims are timely.

In Count V plaintiffs allege a takings claim for the use and occupation
of Bikini Atoll by the Government based on the passage of the Compact in
1986 and the failure adequately to fund the NCT. In [Juda
II]{.underline} Judge Harkins held open the possibility of future
litigation on the adequacy of the alternative remedy provided for in
Compact Act:

> Whether the compensation, in the alternative procedures provided by
> Congress in the Compact Act, is adequate is dependent upon the amount
> and type of compensation that ultimately is provided through those
> procedures. Congress has recognized and protected plaintiffs' right to
> just compensation for takings and for breach of contract. The
> settlement procedure, as effectuated through the Section 177
> Agreement, provides a "reasonable" and "certain" means for obtaining
> compensation. Whether the settlement provides "adequate" compensation
> cannot be determined at this time.

[Juda II]{.underline} at 689. The Federal Circuit endorsed this analysis
in [People of Enewetak]{.underline}, again acknowledging a possibility
of future litigation on plaintiffs' Fifth Amendment takings claims. 864
F.2d at 136 ("\[W\]e are unpersuaded that judicial intervention is
appropriate at this time on the mere speculation that the alternative
remedy may prove to be inadequate.").

Plaintiffs maintain that these takings claims are now ripe for
litigation because they have exhausted the alternative procedure
mandated in the Compact Act. "Having obtained the dismissal of the
*Juda* case as premature, the government cannot invoke the statute of
limitations now. *Alliance of Texas Land Grants v. United States*, 37
F.3d 1478 (Fed. Cir. 1994)...is inapposite, because plaintiffs in that
case were not told that their claims were premature and to return to
court after exhausting an alternative remedy." Pls.' Br. filed Dec. 18,
2006, at 36. The court finds that litigation on this issue is still
premature. The alternative procedure in the Compact Act and in Article
IX of the Section 177 Agreement included a Changed Circumstances
provision, which allocated to Congress the option to "authorize and
appropriate funds" in the event that "loss or damage to property and
person of the citizens of the Marshall Islands, resulting from the
nuclear testing program arises or is discovered after the effective
date" of the Compact Act and Changed Circumstances provision.

Congress has not yet exercised its option to "authorize and appropriate
funds" for the Marshall Islands. The court is in no position to find
that the alternative procedure, as contemplated by the Compact Act, has
run its course. Congress must consider the Changed Circumstances Request
and take such action as it deems appropriate. That Congress has not
acted in the seven years after the Changed Circumstances Request was
first submitted would not warrant a finding of either futility or *de
facto* rejection, given the court's alternate ruling on the political
question that this matter presents.

Finally, in Count VI plaintiffs allege that the Compact constituted a
breach of fiduciary duties created by an implied-in-fact contract. "This
cause of action did not first accrue, or the applicable statute of
limitations was equitably tolled, until defendant, on January 24, 2005,
refused to adequately fund the award issued by the Nuclear Claims
Tribunal on March 5, 2001." Am. Compl. ¶ 128. Submission of the Report
from the United States State Department to Congress without further
action by the Government or Congress is insufficient to trigger the
statute of limitations. Plaintiffs have not alleged any Government
action within the last six years that would be actionable as a breach of
the Government's alleged fiduciary duties.

1.  [Equitable estoppel]{.underline}

Plaintiffs would estop defendant from arguing that the statute of
limitations bars their claims. They insist that (1) a dismissal based on
the statute of limitations would be an unconstitutional "bait and
switch," because the court in [Juda II]{.underline} dismissed
plaintiffs' claims as premature, and (2) the Government cannot invoke
the statute of limitations now that the alternative procedure has run
its course. Pls.' Br. filed Dec. 18, 2006, at 36.

"Estoppel is an equitable doctrine invoked to avoid injustice in
particular cases." [Heckler v. Cmty. Health Servs.]{.underline}, 467
U.S. 51, 59 (1984). To succeed on the grounds of equitable estoppel,
generally a plaintiff must show that it "relied on its adversary's
conduct 'in such a manner as to change his position for the worse,' and
that reliance must have been reasonable in that the party claiming the
estoppel did not know nor should it have known that its adversary's
conduct was misleading." [Id.]{.underline} (footnotes omitted). This
general rule, however, is not applicable against the Government: "\[I\]t
is well settled that the Government may not be estopped on the same
terms as any other litigant." [Id.]{.underline}

> Although the Supreme Court has not adopted a per se rule prohibiting
> the application of equitable estoppel against the government under any
> circumstances, ...the Court has suggested that if equitable estoppel
> is available at all against the government some form of affirmative
> misconduct must be shown in addition to the traditional requirements
> of estoppel... While the Supreme Court has not squarely held that
> affirmative misconduct is a prerequisite for invoking equitable
> estoppel against the government, this court has done so.

[Zacharin v. United States]{.underline}, 213 F.3d 1366, 1371 (Fed. Cir.
2000) (internal citations omitted); [see also]{.underline} [Frazer v.
United States]{.underline}, 288 F.3d 1347, 1352-53 (Fed. Cir. 2002);
[Tefel v. Reno]{.underline}, 180 F.3d 1286, 1303 (11th Cir. 1999);
[Henry v. United States]{.underline}, 870 F.2d 634, 637 (Fed. Cir.
1989).

Plaintiffs contend that "the government cannot consistent with due
process argue that it is premature to challenge the adequacy of the
\[NCT's\] process and then declare that such a challenge necessarily
comes too late." Pls.' Br. filed Dec. 18, 2006, at 36 (citing [Reich v.
Collins]{.underline}, 513 U.S. 106, 108 (1994)).

> Had plaintiffs done what the government now suggests -- sue based on
> the Compact itself and challenge the alternative remedy before the NCT
> had issued its award -- this Court would have found, as did the courts
> in *Juda II*, 13 Cl. Ct. at 689, and *People of Enewetak*, 864 F.2d at
> 136, that the alternative procedure could not be challenged until it
> had run its course. That is precisely what the Supreme Court concluded
> in \[[Dames & Moore v. Regan]{.underline}, 453 U.S. 654 (1981)\], when
> it held out the prospect of later adjudication of takings claims in
> this Court. Having obtained the dismissal of the *Juda* case as
> premature, the government cannot invoke the statute of limitations
> now. *Alliance of Texas Land Grants v. United States*, 37 F.3d 1478
> (Fed. Cir. 1994)...is inapposite, because plaintiffs in that case were
> not told that their claims were premature and to return to court after
> exhausting an alternative remedy.

Pls.' Br. filed Dec. 18, 2006, at 36.

During oral argument and in their first supplemental brief, plaintiffs
argued that defendant misled plaintiffs, and presumably the Federal
Circuit, by assuring the Federal Circuit in 1988 during argument in
[People of Enewetak]{.underline} that, "'should changed circumstances
arise which would prevent the program from functioning as planned,
Congress would need to consider possible additional funding.'" Pls.' Br.
filed May 23, 2007, at 16. "In contrast to its earlier assurances,
despite evidence of substantial uncompensated and unforeseen harm, the
government told Congress that 'the facts . . . do not support a funding
request under the 'changed circumstances' provision...'"
[Id.]{.underline} (quoting 2005 Report Evaluating the Request of the
Government of the Republic of the Marshall Islands Presented to the
Congress of the United States of America).

Review of the Consolidated Brief of Appellee the United States, [People
of Enewetak v. United States]{.underline}, Nos. 88-1206, -1207 & -1208
(Fed. Cir. June 24, 1988) (the "Appellee Brief"), shows that, while he
served as Assistant Attorney General of the Lands and Natural Resources
Division of the United States Department of Justice, Roger J. Marzulla
advocated on behalf of the United States that plaintiffs might avail
themselves of the Changed Circumstances provision in these
circumstances.[^1]

In its brief filed nineteen years ago, defendant argues that the
financial vagaries in the investment program -- arguably including
mismanagement -- could qualify as a separate changed circumstance, apart
from loss or damage. That is because the Appellee Brief acknowledges
depletion of the Fund due to "long-term investment difficulties, or
substantial unforeseen damages." Appellee Brief at 34; [see]{.underline}
note 6 *supra*. Nonetheless, the shift in defendant's position does not
merit its proscription as affirmative misconduct.

The argument in the Appellee Brief certainly includes statements that
could be construed as assurances of the availability of future funding
should the \$150 million trust fund not prove sufficient. Yet, defendant
did not misrepresent the Compact or the Section 177 Agreement.
References to a "permanent alternative remedy," see Appellee Brief at
14, are accompanied by citations, either general or specific, to the
language of the Section 177 Agreement. The language of the Changed
Circumstances provision of Section 177 is not a blanket guarantee of
future funding for the people of the Marshall Islands. The Changed
Circumstances provision provides relief conditioned upon 1) the
discovery of loss or damage to property after the effective date of the
Agreement, 2) an unforeseeable qualifying event and 3) approval of
Congress. While defendant did not misrepresent the terms of the Compact,
the Federal Circuit was persuaded by defendant's argument and arguably
overstated the breadth of the Changed Circumstances provision.
[See]{.underline} [People of Enewetak]{.underline}, 864 F.2d at 135-36.

In any event, this rationale was not the predicate for the appeals
court's affirmance of the Claims Court. Even if defendant was not
forthcoming in its argument, invocation of equitable estoppel is not
warranted. The Compact, in plain language, required a dual showing, not
an alternative one; defendant quoted the Compact accurately; defendant
argued that the Trust Fund was structured to be renewable in perpetuity.
Plaintiffs were well aware of the terms of the Changed Circumstances
provision and had ample opportunity to argue to the Federal Circuit that
the clause did not allow recourse to the courts should the Claims
Tribunal render an award that could not be funded.[^2]

[^1]: For example, the Government stated in the Appellee Brief: "The
    Section 177 Agreement, signed in conjunction with the Compact on
    June 25, 1983, has created a comprehensive, integrated compensation
    plan 'to provide, in perpetuity, a means to address past, present
    and future consequences of the nuclear Testing Program' (App. 332)."
    Appellee Brief at 9.

    The Government elaborated upon this argument in Section III.A of the
    Appellee Brief, discussing the limited nature of the Changed
    Circumstances provision of the Section 177 Agreement:

    > The objective of the Agreement is "to create and maintain *in
    > perpetuity*, a means to address past, present and future
    > consequences of the Nuclear Testing Program, including the
    > resolution of resultant claims" (App. 331, emphasis supplied). As
    > the cornerstone funding, the United States on October 30, 1986,
    > immediately after the Compact took effect, paid \$150 million to
    > the Marshall Islands government to create the compensation Fund
    > established by Article 1 (App. 1241). The Agreement requires,
    > however, that the Fund be permanently invested, with an investment
    > goal of at least \$18 million per year (App. 332), and with all
    > distributions for compensation programs and claims adjudication to
    > come from the proceeds (App. 332). The Fund's principal may be
    > drawn only if proceeds will not meet annual distribution schedules
    > (App. 336). The Section 177 Agreement's funding structure is thus
    > designed to operate as long as necessary until all consequences of
    > the nuclear testing program are addressed. The United States and
    > Marshall Islands drafted the Agreement to provide continuous
    > funding to *resolve*, not avoid, those consequences.
    >
    > *It is, of course, conceivable that the Fund could become depleted
    > because of radical long-term investment difficulties, or
    > substantial unforeseen damages. The Agreement expressly provides
    > as to "Changed Circumstances," however, that (App. 341-342):*
    >
    > If loss or damage to property and person of the citizens of the
    > Marshall Islands, resulting from the Nuclear Testing Program,
    > arises or is discovered after the effective date of this
    > Agreement, and such injuries were not and could not reasonably
    > have been identified as of the effective date of this Agreement,
    > and if such injuries render the provisions of this Agreement
    > manifestly inadequate, the Government of the Marshall Islands may
    > request that the Government of the United States provide for such
    > injuries by submitting such a request to the Congress of the
    > United States for its consideration. It is understood that this
    > Article does not commit the Congress of the United States to
    > authorize and appropriate funds.
    >
    > *In any case, it was the best judgment of the United States and
    > Marshall Islands government that the compensation plan as
    > structured in the Agreement will equitably address all
    > consequences of the nuclear testing program.* The Agreement is
    > designed to operate "in perpetuity," is currently operating
    > effectively to address long-term needs, and fulfills the intent
    > that complex problems stemming from the testing program be
    > resolved on a permanent basis.

    Appellee Brief at 34-35 (emphasis added; footnotes omitted). Thus,
    defendant told the appeals court that long-term investment
    difficulties might occur to render the Agreement's provisions
    "manifestly inadequate," but then quotes the language of the
    provision that requires that changed circumstances had to be
    unforeseeable. Note 33 of the Appellee Brief appears to assuage
    concerns regarding the adequacy of funding:

    > As appellants note (Br. 44 n.47), disbursements were made from the
    > Fund during its initial year in light of the recent stock market
    > "correction" affecting all investors. That disbursement in no way
    > impairs, nor do appellants suggest that it impairs, the long-term
    > performance and viability of the Fund. Indeed, prior to the stock
    > market disruption, the Fund was achieving an annual return of 20
    > percent. The amounts disbursed have since been partially restored,
    > and it is anticipated will be fully restored in the near future.
    > The Fund continues to operate as a long-term investment program,
    > providing "a perpetual means of addressing the special and unique
    > circumstances" arising from the nuclear testing program. (App.
    > 332).

    [Id.]{.underline} at 34 n.33.

    Among the "changed circumstances" identified by counsel for
    plaintiffs in [People of Bikini]{.underline}, No. 06-288C, was the
    ambitious, if not unrealistic, assumption that the Trust Fund had to
    generate a return of 12% per year to finance the \$18 million
    earmarked for the various programs and specific financial
    commitments for each listed in the Compact, only one of which was
    the NCT. Counsel reasonably speculated that "\[i\]t was pretty hard
    when you've got to throw off 12 percent a year to make that corpus
    grow." Transcript of Proceedings at 146, [People of Bikini v. United
    States]{.underline}, No. 06-288C, and [John v. United
    States]{.underline}, No. 06-289L (Fed. Cl. Apr. 23, 2007).

[^2]: Implicit in plaintiffs' reliance on defendant's advocacy is their
    objection that the RMI did not represent the inhabitants of the
    Marshall Islands, because the RMI had no power or right to accede to
    the Compact until the RMI became a recognized governmental entity.
    Judge Harkins in [Juda II]{.underline} ruled that the validity of
    the espousal in Article X did not impact the withdrawal of claims
    effected by Article XII. [See Juda II]{.underline} at 686-89; [see
    also]{.underline} [People of Entewetak]{.underline}, 864 F.2d at 137
    (adopting Judge Harkins's "more extensive analysis.").