Noel Hudson

April 4, 2009

In 1945, Utah resident Jesse Fox Cannon rented his land to the Department of Defense for "exploratory purposes," having secured an agreement from the DOD to return the land in the condition in which it was found. The DOD then used the Cannon's land for Project Sphinx, and turned it into a testing ground for a broad range of military explosives, including chemical weapons. Over 3,000 bombs were dropped, releasing gasoline, napalm, exfoliants, phosgene, hydrogen cyanide, and mustard gas. The volume of chemical agents dropped amounted to twenty-three tons. The minimal post-operation cleanup left visible debris and residue on the land, including significant quantities of unexploded ordinance. After years of ineffective haggling with the DOD over the costs of cleanup, Cannon's descendants turned to the federal Courts for help.

Both the U.S. District Court and the Court of Appeals for the Tenth Circuit have proven inhospitable to the Cannon family's claims, and now the U.S. Supreme Court refused to hear the Cannons' case as well. At all stages of the litigation, the federal courts have pointed to the EPA's designation of the property as a Superfund site, which removes jurisdiction over the matter from the federal courts. According to the courts, removal was accomplished once the EPA took modest steps to process the case, which amounted to a drafted memo. The Cannons argue that the EPA cannot be found to have removed the site from the jurisdiction of the courts, given that the agency has deliberately allowed their case to languish. As has become customary over the past eight years, the EPA failed to follow its own regulations, which in these circumstances would require a site inspection, an engineering evaluation, a cost assessment report, a public comment, and a final decision based on the administrative record, none of which has happened. The Bush-era EPA and now the Roberts Court have ensured that the U.S. Military will not be responsible for the degradation of the Cannon's land. Perhaps the Cannons will have better luck with a reconstituted EPA under the new administration.

Sources:

Family's WWII-Era Pollution Claims Are Rebuffed by Supreme Court, Rita Cicero, Andrews Publications (Apr. 3, 2009), http://news.findlaw.com/andrews/en/haz/20090403/20090403_cannon.html (last visited Apr. 4, 2009).

Utah Family Seeks Supreme Court Review of Bombing Site Case, Mountain States Legal Foundation (Nov. 21, 2008),

http://www.mountainstateslegal.org/press_releases.cfm?pressreleaseid=791 (last visited Apr. 4, 2009).

Ordinance and Explosive Waste Chemical Surety Materials, Archive Search Report Findings for Yellow Jacket Ranges Tooele Couty, UT, http://home.comcast.net/~dpgsurvivors/YJR_FUDS_Site.htm (last visited Apr. 4, 2009).

The Cannons' appeal to the Tenth Circuit:

http://www.okcu.edu/law/newsandevents/usappeals08/pdfs/07_4107appellantBrief.pdf (last visited Apr. 4, 2009).