REPUBLIC OF MARSHALL ISLANDS v. U.S.

No. 15-15636.

865 F.3d 1187 (2017)

REPUBLIC OF the MARSHALL ISLANDS, a non-nuclear-weapon State party to the Treaty on the Non Proliferation of Nuclear Weapons, Plaintiff-Appellant, v. UNITED STATES of America; Donald J. Trump, The President of the United States of America; Department of Defense; James Mattis, Secretary, Department of Defense; Department of Energy; Rick Perry, Secretary, Department of Energy; National Nuclear Security Administration, Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

Filed July 31, 2017.


Attorney(s) appearing for the Case

Laurie B. Ashton (argued) and Alison Chase , Keller Rohrback LLP, Phoenix, Arizona; Juli E. Farris and Lynn Lincoln Sarko, Keller Rohrback LLP, Seattle, Washington; for Plaintiff-Appellant.

Sushma Soni (argued) and Douglas N. Letter , Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., for Defendants-Appellees.

Scott Yundt , Livermore, California, as and for Amicus Curiae Tri-Valley Communities Against a Radioactive Environment.

Henry M. Willis , Schwartz Steinsapir Dohrmann & Sommers LLP, Los Angeles, California; Margot Nikitas , Staff Attorney; Joseph Cohen , General Counsel; United Electrical, Radio and Machine Workers of America, Pittsburgh, Pennsylvania; for Amici Curiae United Electrical, Radio and Machine Workers of America (UE), International Commission for Labor Rights, and Labor and Employment Committee of the National Lawyers Guild.

Janet Benshoof , New York, New York, as and for Amicus Curiae Global Justice Center.

Randy Baker , Seattle, Washington; Anabel Dwyer , Elizabeth Shafer , and John Burroughs , Lawyers Committee on Nuclear Policy, New York, New York, for Amicus Curiae Lawyers Committee on Nuclear Policy.

Daniel U. Smith , Smith & McGinty, San Francisco, California, for Amici Curiae Physicians for Social Responsibility, International Physicians for the Prevention of Nuclear War, and Pax Christi International.

Andrea R. St. Julian , San Diego, California, for Amici Curiae Hans M. Kristensen, Robert Alvarez, Dr. James E. Doyle, and Nuclear Watch New Mexico.

Before: M. Margaret McKeown and Jay S. Bybee, Circuit Judges, and Susan Oki Mollway, District Judge.


OPINION

Not all treaties are created equal in terms of enforceability. Although the Supremacy Clause guarantees that "all Treaties... shall be the supreme Law of the Land," U.S. Const. art. VI, cl. 2, paradoxically not every treaty provision is enforceable in our domestic courts. Article VI of the Treaty on the...

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