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IF THE SENATE WANTS TO APOLOGIZE, THERE IS A FAMILY IN UTAH
 

Dear Theresa,

I thought that, as a friend of Mountain States Legal 
Foundation, you would enjoy reading my monthly column, 
"Summary Judgment".

I welcome your comments and suggestions.

Sincerely,

William Perry Pendley
President and Chief Legal Officer

P.S.  If you would like to support the work of Mountain 
States Legal Foundation, please click here.



IF THE SENATE WANTS TO APOLOGIZE, THERE IS A FAMILY IN UTAH

On June 13, 2005, the U.S. Senate adopted a resolution 
apologizing for failing to override filibusters by 
Democratic Senators and to enact House-passed federal 
anti-lynching legislation on three occasions from 1920 to 
1940.  Syndicate columnist Mora Charen writes, "not a single 
member of today's Senate was even in office" then; but, 
"that's the way we prefer our apologies in American 
politics.  We don't apologize for our own sins."  If 
Senators would like to apologize for things they, not 
others, failed to do, I have a suggestion.

In 1945, as U.S. Marines continued their assault on the 
islands of the Pacific and the units of the Japanese 
Imperial Army massed there, the U.S. government approached 
Jesse Fox Cannon of Toole County, Utah, to obtain permission 
to use 1,425 acres of mining claims he owned near the Army 
Dugway Proving Grounds in west-central Utah.  Jesse Fox 
Cannon quickly agreed and entered into a contract that 
allowed the Army to test explosive munitions in a corner of 
his property on and near his Yellow Jacket mining claim.

The Army's "Project Sphinx" was to be conducted on 
mineshafts to simulate Japanese cave fortifications, like 
those the Marines had encountered on Saipan and Iwo Jima. 
Contrary to terms of the contract, however, the Army not 
only bombed all of Jesse Fox Cannon's claims, it also used 
non-explosive munitions:  phosgene, mustard agent, and 
defoliants.  In total, the Army utilized more than 3,000 
rounds of ammunition, 12,000 pounds of conventional bombs, 
and 23 tons of chemical weapons in the testing project.  To 
make matters worse, the Army continued using Jesse Fox 
Cannon's property, without permission, until the 1960's.

Although the contract between the U.S. government and Jesse 
Fox Cannon provided that, within 60 days from the end of its 
testing, the Army would restore the property to the same 
condition it was in prior to the bombing, the Army did no 
reclamation.  Finally, in desperation, Jesse Fox Cannon 
filed a claim for $3,000, which the Army promptly denied.

To date, the U.S. government has not cleaned up Jesse Fox 
Cannon's property, which is now owned by other members of 
the Cannon family, that is, other than to perform a 1996 
engineering study and to list the property in the Formerly 
Used Defense Site (FUDS) for future cleanup by the U.S. 
Department of Defense.  The Army Corps of Engineers has 
testified that the Cannon property is scheduled for cleanup 
in 2008-2010, that is, if Congress appropriates the funds. 
Congress spends only $2 million annually on the 2,700 FUDS 
properties, whose total cleanup cost is $19 billion.

On April 7, 1998, Margaret and Allan Cannon filed a claim 
with the Army, which the Army summarily rejected.  On 
December 11, 1998, Margaret and Allan Cannon sued the Army 
for $8 million, which the Army opposed arguing that the 
court had no right to hear the case.  Nonetheless, the Utah 
federal district court ruled that the Army's weapons testing 
was a continuing trespass and nuisance and awarded Margaret 
and Allan Cannon $166,000.  The U.S. government appealed 
contending that it could not be sued.  The U.S. Court of 
Appeals for the Tenth Circuit agreed and reversed and 
dismissed the case.

This month, Douglas Cannon will file a claim against the 
United States, this time under the Resource Conservation and 
Recovery Act (RCRA), to force the U.S. government to do 
exactly what it compels others to do, on pain of civil and 
criminal prosecution: clean up its mess.  No doubt, the U.S. 
government will deny that claim too.

All of this is well known to the U.S. Senate, its oversight 
and appropriation committees, and their knowledgeable 
staffs.  For the last 60 years, they have been active 
participants in the refusal of the U.S. government to adhere 
to the contract it entered into and to obey the laws that it 
enforces.  But all is not lost: perhaps in 60 years the 
Senate could apologize.

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