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Army tests ravaged family's land

Military blasted mines owned by Utahns with tons of chemical agents

By Lee Davidson
Deseret Morning News

Published: Friday, Nov. 26 2004 12:00 a.m. MST

Douglas Cannon shows a picture of his father, Floyd Cannon, looking for minerals north of the Bertha Mine near Dugway Proving Ground in western Tooele County.

Paul Barker, Deseret Morning News

Siblings Louise, Douglas and Allan Cannon inherited a gold mine. But they say the Army is giving them the shaft, figuratively, as some of its old, dark secrets have turned their dream of rich income into a nightmare.

They found belatedly that the Army's nearby Dugway Proving Ground attacked the old family mines with 3,000 rounds of chemical arms at the end of World War II. The purpose was to simulate what the Army would face against Japanese bunkers and caves.

The Army also bombed the surface of 1,425 acres of Cannon family-owned land above the mines with more than 23 tons of chemical arms, including deadly mustard agent, hydrogen cyanide and the choking agent Phosgene, plus high explosives and incendiary arms that included napalm, butane and gasoline (from flame throwers).

"They bombed the heck out of it and contaminated our lands — and the surrounding (public) lands. And they won't clean it up," Louise says.

She worries that a new Army proposal to expand Proving Ground boundaries is an attempt "to try to surround us and landlock us," making it impossible to access and work the mines, eliminating the need to clean up the Cannons' land or lowering the value if the government were to take it under eminent domain provisions.

Also, it turns out that the Cannons had been quietly discussing the possibility of a repository for nuclear waste on their contaminated lands if a similar plan for the Skull Valley Goshute Reservation fails. The Dugway expansion also could block their proposal for a waste site.

It all prolongs years of frustration, lawsuits, threats and counterthreats among the Cannons, the Army and the state of Utah and related but unheeded pleas to Congress for help.

Family inheritance

The siblings' grandfather, Jesse Cannon, "patented," or bought, the land from the government in the 1920s (and his father had started working the land years earlier). Miners have sought gold, silver, lead and copper on those claims in the Dugway mountains. The inheritors say that when Jesse died in 1954, he did not pass along any knowledge of Army contamination there to their father, Floyd.

Floyd made his children partial owners of the mine areas in 1957. They became full owners when he died in 1980. Douglas, one of the siblings, said neither his father nor grandfather ever mentioned to him any knowledge about heavy bombardment of the area.

Louise said her father "did find some (chemical arms) canisters in a tunnel. He didn't know what they were. He called the Proving Ground to see if they had been doing anything in the area, and they said they had not been over there."

Court documents later said Army records showed that the father called Dugway several times to ask for cleanup of unexploded ordnance and weapon fragments he found. Louise says, "He was told they were strays from testing on the base."

Secrets begin to leak

In 1988, the Deseret News obtained and reported on Army documents that suspected public U.S. Bureau of Land Management areas in the "Southern Triangle" near the Cannons' land were likely heavily contaminated by weapons testing. Also subjected to the tests, according to the report, was the so-called "Yellow Jacket" area (the name of one of the Cannons' 86.5 patented mining claims in the region).

The Deseret News also wrote stories about how the Army then wanted to expand its boundaries to absorb such dangerous BLM areas, which the BLM opposed, preferring that the Army clean up the land instead.

The expansion never occurred. But Army officials said last month in response to Deseret Morning News inquiries that expansion has again been proposed internally. Officials have offered no further details, nor specifics on what boundaries are sought.

Despite early Deseret News stories, the Cannons said they did not truly suspect heavy contamination of their lands until the Army Corps of Engineers requested official permission in 1994 to enter their property "to determine whether . . . these lands have been impacted by unexploded ordnance."

Louise said she later happened to be at the Tooele County Courthouse on Aug. 30, 1994, filing paperwork on a mining claim when a worker told her the Army was holding an information session downstairs about possible contamination on desert lands.

"I signed in, picked up the fact sheets and left," she says. "The fact sheets said they were checking for contamination in the Southern Triangle and on private property, but did not name the Cannon property."

However, by signing in there, courts would later rule that Louise had enough knowledge about potential contamination on the Cannon lands that she unwittingly started a clock ticking toward a two-year deadline to file any lawsuits against the government. She would not learn about that deadline until it was too late.

Contamination aplenty

In 1996, a government contractor finished a draft study that said the Cannon property was heavily contaminated. Visits by the contractor had found intact, high-explosive mortar shells and burster tubes from chemical-filled rockets and bombs.

According to court documents, the study said a full-scale removal of munitions and debris in the Yellow Jacket claim area alone — only a small part of the Cannons' property — would cost $12.3 million.

It also said record searches showed at least 3,004 rounds of chemical weapons had been fired into some of the Cannon mines, and it listed the other weapon types tested on the property. It found chemical munitions residue and chemical agent contamination throughout the area and said it was likely the entire 1,425 acres of Cannon property was contaminated.

It recommended buying the land, fencing it, posting warning signs, doing some limited munitions removal and sealing the mines.

Douglas Cannon says a gold company that had a lease on the Cannon mines abandoned it for fear of the contamination. He said other companies that had shown interest in leasing it also backed away quickly once they learned about the Army's testing and contamination.

Louise says she had been anxiously awaiting the study that confirmed the contamination, and often called the Army Corps of Engineers seeking it. "They kept saying it would come in 30 days. Then in another 30 days," she said.

She says one employee there finally warned her that she only had two years from the time she learned of potential contamination to file a suit. She called an attorney, who confirmed that.

After the Cannons saw the draft study confirming contamination, they filed a claim with the Army, and then a lawsuit in federal court, seeking $8.8 million in damages, the value they put on the land.

Family secrets

As the lawsuit advanced, the Army said it found an old contract it had signed with the siblings' grandfather, Jesse Cannon, that had allowed the military to use the Yellow Jacket area for testing for six months. "We had never known about it," Louise says.

That contract, which gave Jesse just $1, allowed the Army to use a portion of his property in exchange for the Army's promise to "leave the property of the owner in as good condition as it was on the date of the government's entry."

Louise says, "The Justice Department says he did that because he was patriotic" and wanted to help the war effort against the Japanese. "We'll never know," she says. "It (the contract) never mentions any military maneuvers or testing. He wasn't allowed on the property for the six months it was used. I don't think he knew what they planned."

After the Army's "Project Sphinx" testing ended on that land, documents that emerged during court proceedings show that Jesse Cannon was not happy with what he found.

He walked the area with an Army claims officer who found the "entire area is liberally covered with shell, rocket and bomb fragments," and that "just outside a cabin are 10 butane-filled dud bombs."

Jesse filed a first claim for damages, and was paid $755.48. Later, he filed another claim for damages to mine shaft timbers from the testing and was paid $2,064.

He filed a third claim five years later in 1950. He said while he accepted the earlier payment in full for all claims for damages at his Yellow Jacket mine, "I did not believe at that time that the chemical agents used by the Army would remain in the workings and make it impossible for me to ever operate the mine again without some sort of decontamination."

The claim added he found there was "still a concentration of poison gas present in the mine," and said miners who considered leasing it "shied away when they learned of the Army's use of the mine." He never collected money on that claim, and his grandchildren never learned about it from him.

Regardless, Louise says, "The Army was under contractual obligation to clean up the land, and they never have."

Court win, court loss

The younger Cannons initially won $160,937 in damages against the Army in 2002, but the Army appealed to the 10th Circuit Court of Appeals, which reversed the decision.

Despite the reversal, the appeals court's written opinion blasted "the government's abysmal failure over the past half-century to clean up the test site."

It lamented that the law gave the Cannon siblings only two years from when they learned about the possibility of heavy contamination of their property to file suit. The Cannons had contended the clock should have started ticking when the Army's draft study of contamination was released in 1996 (which is also when they filed suit).

But the court agreed with the Army's assertion that it began when Louise attended the information meeting in 1994, and when the Army asked permission to search for unexploded ordnance. That meant the statute of limitations allowed by law had expired, and the Cannons lost.

Still, the court wrote, "The United States government has yet fully to recognize and appreciate Jesse F. Cannon's contribution to national security during World War II. The government should have lived up to its obligations long ago. . . . The Cannons' remedy at this stage is political, however, not legal."

Congress no help

Taking the judges' hint that only political and not legal help was available, the Cannons started asking Congress for compensation for their contaminated land.

"I have written to some members of the Utah congressional delegation and to 200 different members of appropriations or other committees who are over defense or public lands," Louise said. "I have not received one reply."

She said she also wrote to Utah governors, the Environmental Protection Agency and other government agencies she thought would have an interest in cleaning up the area, especially neighboring state-owned school trust land sections that likely had been contaminated as well. She said none showed interest.

Louise said that during the trial, she said to a government lawyer that maybe the Cannon family should clean up the land itself, and keep the munitions they find. She said the government informed her that was not allowed because it owned the unexploded ordnance, and only the federal government could remove it. The lawyers also said they considered her suggestion "to be a threat against the United States."

Because she was frustrated, she said she would return any munitions found "in a yellow rental truck parked next to the federal building" (sounding like the Oklahoma City bombing). She said the lawyers also took that as a threat but didn't see leaving the old ordnance on Cannon land as a threat.

Weak actions

Douglas Cannon said Army representatives said in court that there are plans eventually to clean up the area. But the Army cannot do it until it receives funding from Congress, which likely is years away.

He said when the judge asked the Army if it would be interested in buying the land, "They said no because it is contaminated. That is ironic, because they contaminated it. They said they didn't have the budget to handle it," Douglas said.

Amid frustration, Louise said she once called the state to ask what would happen if she did not pay taxes on the contaminated land and let it revert to the government or if she simply deeded it over to the state.

"They said, 'We would sue you.' "

"I said, 'What?' They said, 'If you let property that you knew to be contaminated come back to the state, we would sue you to clean it up.' I said, 'You've got to be kidding. I didn't do this.' And they said, 'It doesn't matter,' " Louise said.

The Cannons said the only effort the Army made on their land was to post some signs warning that it is a Formerly Used Defensive Site, and that no one should pick up munitions they see.

Louise said the Army also accused her of stealing such

signs that disappeared. But when the Army told her the signs had been made of wood, she said, "Anything made of wood out there disappears quickly. They have all theses campers, hikers and motorcyclists out there. They make little campfires. If you leave any wood out there unattended for 24 hours, it disappears," she said.

Louise said that on another occasion, the Army accused her of stealing an old chemical rocket booster that erosion had laid bare on Cannon property. It had been spotted by Army crews in the area.

"They flagged it, and when they returned to Dugway they left orders for others to go get it," she said. "Eleven days later when they went looking for it, they couldn't find it, but saw a lot of tire tracks around the site. So they called me and asked if I had taken it."

She says she replied, "Are you people out of your minds? No I don't have it. There are so many people who go out there (for hiking and four-wheeling) that it's probably sitting on some guy's mantle, and he doesn't know what he has. That's why you need to clean up that area."

She said she then received a lecture on how it would be illegal for her to take such munitions if she finds them.

The waste option

Faced with not being able to clean up the property or mine it safely, Louise said, the siblings considered another option.

"I also had several conversations with the nuclear waste people that were trying to put that storage of nuclear waste in Skull Valley," she says. The state has fought for years to block an above-ground storage area proposal by Private Fuels Storage on the Goshute Reservation. The company is a consortium of Midwest nuclear power utilities.

"Because they've kind of been hitting one roadblock after another to put it in Skull Valley, the Dugway property that is owned by the Cannons is looking better and better to them," she says.

Louise says her family's property is more stable geologically than the Skull Valley site, and the land sits beneath a "no fly zone." The state has fought the Skull Valley site in part by contending it is too near faults and that a plane crash into it could be catastrophic.

If Dugway Proving Ground expansion took the Cannon property — or surrounded it — that would almost surely prevent a private repository there, too.

In a Catch-22

Louise says, "We're in a Catch-22. We can't get the property cleaned up. We can't lease it. We can't even get rid of it. I even worry we might be liable if someone is hurt out there by some of the contamination."

Douglas says, "The property is now useless to us. 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."

They worry that the latest disclosure by the Army that it is considering expanding Dugway boundaries is aimed, at least in part, at them and their property. (The Deseret Morning News has filed a Freedom of Information Act request for specifics about the proposal, but the Army has not yet responded.)

"My fear is that what they are trying to do is surround us and landlock us," preventing access to the mines and any hope of developing them, Louise says. "It's privately owned, and they don't want to clean it up."

She adds, "What I want them to do is clean it up. The price of precious minerals is going up, especially gold. It's not only a large mine, but it has shown promise in the past" and managed to produce $246,000 in lease fees despite the contamination worries between 1969 and 1993. Some promising veins have been identified.

But the Cannons say the jury is still out on whether they will really get the gold mine — or just the shaft.


E-mail: lee@desnews.com

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