[CPEO-MEF] Yellow Jacket and Dugway

[Lenny Siegel <lsiegel@cpeo.org>]

Submitted by Floyd Cannon <Doug.Cannon@siinet.ngc.com>

I have read with great interest the results of the Spring Valley
litigation described in the article "From Death Valley to Spring Valley:
A Case Study of Contamination in Washington, D.C." by Marguerite E.
McLamb.  The Cannon Family had a similar experience with our Mining
Claims property in the Dugway Mining District in western Tooele County,
Utah.  The litigation documents are attached below in a PDF file (titled
Environmental Law).  

The Cannon Family owns 89 * patented mining claims (1425 acres)
immediately south of the Army Dugway Proving Grounds.  This land package
represents 90% of all privately owned property in the mining district. 
My grandfather, Jesse Fox Cannon was asked by the U.S. Army during World
War II to use the mining claims immediately on and around the Yellow
Jacket patented mining claim.  The Army had a contract with my
grandfather which state that the Army was only to 1) test in a corner of
the property around the Yellow Jacket patented claim. However, the Army
bombed the entire property-all patented claims; 2) use only explosive
munitions.  The Army used Chemical munitions including phosgene and
mustard agent and possibly defoliants as well as explosives; 3) restore
and leave the property in the same condition that it was in before their
testing and were given 60 days to perform the clean up. Instead, they
did no reclamation.  My grandfather made a claim against the Army for
$3000.00, which the Army denied.    

The Army called the testing Project Sphinx and it was completed on
mineshafts to simulate Japanese cave fortifications.  A video of Project
Sphinx was shown in District Court and showed bombing of the whole
property package.  The Army subsequently used the property until the
1960's without permission.  We received a request from the Sacramento
Corps of Engineers in August 1994 for permission to enter the property
to conduct surveys of the extent of damage. I consulted my attorney and
he told me to give permission, which I did. The Army at Dugway Proving
Grounds has tried to shift the clean up responsibility and costs from
non-stockpile management to the Corps of Engineers.  The Corps of
Engineers made a preliminary report which described some for the damage
for the FUDS (formerly used defense sites) used as test activity impact
areas from the late 1940's until the mid 1960's with numerous chemical
and conventional munitions through various delivery systems.     

It has been estimated by Montgomery Watson (hired to evaluate by the
Corp of Engineers) that it will cost about $12 Million to reclaim just 3
or 4 patented mining claims on and around the Yellow Jacket patented
mining claim (the Yellow Jacket Range) and more if underground cleanup
is involved.  No estimates have been made for reclaiming our entire
ownership but reclamation costs could be substantial into the 10's of
$millions. 

I feel that our litigation was bungled.  The law firm employed had no
expertise in environmental law and also has no Washington, D.C. office. 
As a consequence the litigation included only Tort law and was filed in
District Court and not the Court of Claims in Washington, D.C.  Since no
environmental law violations were claimed, the Defendants claimed
Statute of Limitations issues.  Luckily the Judge ruled that the
unexploded ordnance constitutes continuous trespass.  We filed for
compensatory damages but the Judge didn't award any and said, "if you
don't ask for compensatory damage you can't get any".  I guess the Judge
didn't read the allegations carefully since Compensatory Damages were
included in the litigation claim.  But the lawyers should have also
filed a claims that included negligence, breech of contract, public and
private nuisance, private trespass or "continuous trespass", failure to
warn, deceit and misrepresentation, outrageous conduct and fraud, unjust
taking, etc. With environmental law there is not a problem with Statute
of Limitations and unexploded ordnance outside a designated bombing
range is by definition hazardous waste under CRCLA and maybe even RCRA. 
  The Defendant lawyer (Gay Kang) outside of court questioned whether
District Court was the proper venue for us.  

The property is a FUDS site and is subject to DOD cleanup authority. 
The Corp of Engineers sent a witness to court and she said that our
property is scheduled for cleanup in 8 to 10 years. The Judge asked for
specifics and she stated that it is dependent on Congress funding and as
of now, no funding is available.

The Army has admitted in Court that, "there is a very real possibility
that unexploded ordnance is present".  Therefore, the Army possibly
stores munitions outside of their control improperly on private
property; violates Section 1450 of the Safe Drinking Water Act, 42
U.S.C. 300j-9(i); Section 322(a) of the Clean Air Act, 42 U.S.C. 7622;
Section 110(a) of the Comprehensive Environmental Response,
Compensation, and Liability Act 42 U.S.C. 9610; Section 507(a) of the
Federal Water Pollution Control Act, 33 U.S.C. 1367; Section 7001(a) of
the Solid Waste Disposal Act, 42 U.S.C. 6971; and Section 23(a) of the
Toxic Substance Control Act, 15 U.S.C. 2622.  Other regulations were
probably violated but the Army has never released information of their
tests after Project Sphinx.  Possibly Lewisite tests were made but the
Government made no mention of Lewisite tests in Court. 

My brother Allan and my sister, Louise litigated with a local  law firm
in Salt Lake.  A claim for damage, injury or death (Standard Form 95
prescribed by the Dept. of Justice, 28CFR14.2) was filed with the Dept.
of Army in Colorado and after the Army denied it, a complaint was filed
which asked for damages only (see attachment).  I did not enter the
litigation in Third District Federal Court in Salt Lake until later
since my attorney, Mr. Melvin Leslie said that he thought that the
litigation suffered from Statute of Limitation problems.  My siblings
for summary judgment filed a motion and the Judge ruled that the U.S.
was liable and guilty of continuous trespass with military munitions and
that only damage amounts were in dispute.  After Judge Jenkins ruled
that the U.S. was guilty of continuous trespass, my attorney made a
Motion to Intervene in the case and it was granted.  The U.S. attorney
filed a motion to have my intervention into the case reversed because I
had not made a claim using Standard Form 95 as my siblings had
previously done.  The Government stated, and Judge Jenkins agreed, that
I must first file a Claim to the Army and so I sent in a Claim on
Standard Form 95 on 8/2/01 to the Army in Fort Carson Colorado, which
was similar to the Claim submitted by Louise and Allan.  Judge Jenkins
instructed the U.S. to expedite my claim.  In the meantime, Judge
Jenkins awarded Louise and Allan $166,000.00 in damages (see
attachment), but the U.S. attorneys appealed the case to the 10th
Circuit in Denver. Judge Jenkins said that he would not make the
Government pay more to clean up than the property was worth.  However,
that provision was never part of the original contract between the Army
and my grandfather.

The Court of Appeals, by ruling that the issues involved should be
remediated by legislative action, may have been making a political
statement.  In a similar situation involving the "down winders" , who
litigated for compensation for nuclear exposure had their claim decided
by Judge Sam in their favor.  The 10th Circuit Court of Appeals
overturned this decision.  Senator Orrin Hatch introduced legislation to
compensate victims.  I guess the 10th Circuit Court of Appeals feels
that similar legislative action should be made in our case.      

The property is now useless to us.  In Court the Army declined interest
in purchasing of the property, ironically, since it is "contaminated"
and "a significant threat to human health and the environment exists." 
The Government posted warning signs on our property, which deters
potential developers to even enter onto the property.  No development or
potential sale can take place because of the danger and because
necessary insurance cannot be obtained inexpensively to protect
personnel from injury or death.  

-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 278-A Hope St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/961-8918
<lsiegel@cpeo.org>
http://www.cpeo.org
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