Judging the Feds: Every Benefit of Every Doubt

William Perry Pendley
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Posted: Mar 30, 2007 12:01 PM

In May 1945, the United States asked Jesse Fox Cannon of Toole County, Utah, to sign a "Construction, Survey & Exploration Permit" to allow the Army upon 1,425 acres of mining claims Jesse Fox Cannon owned near the Army Dugway Proving Grounds in west-central Utah. Jesse Fox Cannon agreed; after all, a war was on; plus, the Army promised that, within 60 days of finishing, it would "leave the property in as good condition as it is on the date of the government's entry." In September 1945, Jesse Fox Cannon reentered his property and discovered that, instead of surveying and exploring the property, the Army had used it for "Project Sphinx," under which it dropped tons of high explosives and bombs, and incendiary and chemical weapons on Cannon's property.

Notwithstanding the demands by Jesse Fox Cannon and later his son, Dr. J. Floyd Cannon, that the United States fulfill its legal obligation to clean up their property, the federal government refused. In 1980, Dr. Cannon died, leaving the property to his children, who took up the crusade to have their land reclaimed and restored.

In 1993, nearly 50 years after the Army left the property, the United States began a paper shuffling exercise purportedly to determine something the Cannon family already knew: whether the Cannon land was a "formerly used defense site" that presented safety concerns for federal and state government agencies. In 1996, the federal government concluded that the Cannon property was one of the most contaminated sites in the country and would cost $12.7 million to reclaim. Then, the United States did nothing.

In 1998, exasperated members of the Cannon family sued the United States. The Utah federal district court awarded them the pittance of $161,000; however, in 2003, the U.S. Court of Appeals for the Tenth Circuit ruled that the family had filed its lawsuit too late. Nonetheless, the Tenth Circuit lamented that the United States "has yet to fulfill its contractual obligations to the Cannon family [or] to recognize and appreciate Jesse F. Cannon's contribution to National Security during World War II." Worse yet, "the only action the Government has taken associated with [its 1996 study] is to defend this lawsuit."

In November 2005, members of the Cannon family, in one final effort to compel the United States to make good on its promise, filed a lawsuit against the United States, which later included Superfund claims. The United States has used Superfund, which seeks "prompt cleanup of hazardous waste sites and imposition of all cleanup costs on the responsible party," to sue hundreds of corporations, governmental entities, and private parties. The Cannons figured the law ought to apply against the federal government as well.

In response, the federal government reinitiated its paper shuffle of a decade earlier by letting contracts, in late 2005 and early 2006, to "prepare" for "site inspections" of the Cannon property. Next, it claimed that, if funds were available, it would conduct "inspection activities" at the Cannon property. Then, alleging that it was engaged in an "ongoing cleanup action" that deprived the court of jurisdiction, the United States moved to dismiss the lawsuit. Weeks before oral arguments, it said it had found $700,000 to spend on the Cannon property.

Last month, the Utah federal district court dismissed the Cannons' lawsuit, deferring to the federal government's interpretation of the Superfund statute, which views its nonexistent cleanup efforts as sufficient to constitute "removal or remedial action" that deprives citizens of their access to federal court. That the federal government has done nothing for more than 60 years was irrelevant, held the court. The dismissal was "without prejudice," however, and, if the United States abandons its "action" and the Cannons sue again, the court told federal lawyers they do not want to appear before him. Those lawyers won't; they will be long gone and the Cannon representatives could well be Jesse Fox Cannon’s great grandchildren!