Army could be off the hook for cleanup of land near Dugway
Posted: 11:57 AM- It was 1945 when the U.S. Army took out a five-month lease on private property adjacent to Dugway Proving Ground for training purposes - about the same time the United States was preparing to invade Japan.
More than 60 years later, the Cannon family is still trying to get the U.S. military to clean up chemical and incendiary weapons exploded in 86 working mines, as well as conventional bombs dropped on 1,425 acres of Tooele County land their grandfather had leased to the government.
U.S. District Judge Dee Benson last week threw out the lawsuit brought by siblings Louise, Allan and Douglas Cannon, saying an Army study of the site satisfies requirements in the law that remedial action be taken by the government.
"This is a warning to anyone who is approached by state or federal government to come onto your private land," Louise Cannon says. "I don't care what you have to do. Keep them out or you'll wind up in the same boat we're in."
It's undisputed that the Army promised to return the property to the owner "in as good condition as it is on the date of the government's entry," according to court documents.
But so far, nothing has been done to dispose of incendiary weapons that had tested butane, gasoline and napalm, or of lethal chemical weapons filled with the choking agent phosgene, the blood agent hydrogen cyanide and the blistering agent mustard.
Army attorney Daniel Pinkston said the government has set aside $600,000 to hire contractors and another $300,000 for the Army Corps of Engineers to conduct a study of the property, which may begin this summer. He said until that study is completed, cleanup discussions would be premature.
Douglas Cannon called this latest study "an attempt to put off doing anything" for a clean-up project that could cost the government as much as $380 million. He said the Army had commissioned another study in the 1990s but rather than use that information, military officials are "starting all over."
"By this time," he said, "it should be very clear that the Army does not want to compensate us, buy us out or clean up our property."
This is not the first case lost by the Cannons. Five years ago the 10th U.S. Circuit Court of Appeals threw out another claim, saying that despite the government's "abysmal failure" to clean up the site, the family filed that suit too late.
"The result the law dictates in this case does not diminish the harm to the Cannon's property," wrote the three-judge panel in 2003, noting that the statute of limitations "may permit a rogue to escape."
For his part, Judge Benson said that as long as the government is studying the problem, the federal Superfund law requires that courts do not interfere or cause delays - even though though the Army has no immediate cleanup plans or money set aside to implement rehabilitation work.
Doug Cannon said that in the meantime, the family cannot even pick up a spent cannister "because whatever the Army fired onto our property belongs to the U.S. military. We would be treated like we were terrorists."
Nor can the Cannons refuse to pay taxes because if the property reverted to the state, all cleanup costs would be charged to the family.
The Cannons have suggested that the land be used for a commercial nuclear waste dump, but that idea has gone nowhere. Family members also say they began a letter-writing campaign 12 years ago to the Utah congressional delegation, but have received no concrete responses.