Cannon v. U.S.

• Decision Date: 11 August 2003
• Docket Number: No. 02-4066.,No. 02-4059.,02-4059.,02-4066.
• Citation: 338 F.3d 1183
• Parties: M. Louise CANNON and Allan Robert Cannon, Individuals, Plaintiffs-Appellees/Cross-Appellants, v. UNITED STATES of America, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

338 F.3d 1183

M. Louise CANNON and Allan Robert Cannon, Individuals, Plaintiffs-Appellees/Cross-Appellants, v. UNITED STATES of America, Defendant-Appellant/Cross-Appellee.

No. 02-4059.

No. 02-4066.

United States Court of Appeals, Tenth Circuit.

August 11, 2003.

Ryan M. Harris (Anthony L. Rampton with him on the briefs), of Jones, Waldo, Holbrook & McDonough, Salt Lake City, UT, for Plaintiffs-Appellees/Cross-Appellants.

Gay Elizabeth Kang, Trial Attorney, Torts Branch, Civil Division (Paul M. Warner, United States Attorney, Daniel D. Price, Assistant United States Attorney, Robert D. McCallum, Jr., Assistant Attorney General, J. Patrick Glynn, Director, Torts Branch, Civil Division, Joann J. Bordeaux, Deputy Director, Torts Branch, Civil Division, and David S. Fishback, Assistant Director, Torts Branch, Civil Division, with her on the brief), United States Department of Justice, Washington, DC, for Defendant-Appellant/Cross-Appellee.

Before LUCERO, BALDOCK, and O'BRIEN, Circuit Judges.

BALDOCK, Circuit Judge.

The Federal Tort Claims Act (FTCA) waives the sovereign immunity of the United States for certain tort claims "accruing on or after January 1, 1945 ... under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act ... occurred." 28 U.S.C. § 1346(b). Under the FTCA's limited waiver of sovereign immunity, "[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues...." Id. § 2401(b). This Government appeal presents the question of whether § 2401(b) bars Plaintiffs' FTCA claim against the United States for damages to mining property caused by World War II weapons testing. While not condoning the Government's abysmal failure over the past half-century to clean up the test site, we hold § 2401(b) bars Plaintiffs' FTCA claim for money damages. Accordingly, the district court erred in entering judgment for Plaintiffs. We reverse and remand with directions to dismiss the complaint for lack of subject matter jurisdiction.

I.

In 1945 near the end of World War II, the United States Army conducted conventional high explosive, chemical, and incendiary weapons testing on Jesse F. Cannon's property located in the remote Dugway Mining District of Tooele County, Utah. The property is a part of the "Yellow Jacket Area," and sits adjacent to the Army's Dugway Proving Ground (DPG). The property consists of over 1,416 acres encompassing 86.5 patented mining claims. The purpose of the Army's testing was to explore means of battling Japanese forces entrenched in caves in the Pacific Islands. Prior to testing, Cannon secured a written agreement from the Army in which Cannon agreed to the Army's use of his property in exchange for the Army's promise to "leave the property of the owner in as good condition as it is on the date of the government's entry."¹

The Army failed to keep its promise to clean up Cannon's property. In September 1945, Cannon reentered his property and found the testing had damaged his mines.² That same month, Cannon successfully filed an administrative claim against the Government to compensate him for cessation of mining operations "due to the use of toxic chemical agents and explosive munitions." The Government paid Cannon $755.48 on his first claim. In October 1945, Cannon filed a second successful administrative claim for destruction of mine shaft timbering due to "the use of toxic chemical agents, incendiaries, and explosive munitions." The Government paid Cannon $2,064 on his second claim. Nearly five years later in July 1950, Cannon submitted a third claim against the Government. To support his third claim, Cannon submitted a statement which read in part:

I realize that when I accepted this $2064 payment from the Government it constituted full satisfaction for the claim against the Government for damages done to the Yellow Jacket Mine. However, 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 of the underground workings.... It is now five years since the Army dropped their poison gas bombs on the mine and I am certain that there is still a concentration of poison gas present in the mine that would preclude its operation by anybody without some sort of decontamination. I do not know if the gas is present in dangerous quantities or even if the odorous material present is a poison gas but I do know that the miners who have looked at the property with a view of taking a lease have shied away when they learned of the Army's use of the mine.... I believe[] that it would require about $5000 to put the mine in condition to be worked again.

In 1951, the Government denied Cannon's third claim without further complaint.

Jesse F. Cannon's son, Dr. J. Floyd Cannon, acquired the property in 1954 with knowledge of ordnance contamination on the property. Around 1957, Dr. Cannon conveyed a 75% interest in the property to his four children, retaining a 25% interest. Over the next few years, Dr. Cannon made numerous trips onto the property and each time found exploded and unexploded surface bombs and weapon fragments. Dr. Cannon reportedly requested the DPG to clean up the property on multiple occasions, but never filed any claim or grievance against the Government.

In the late 1970s, the Government conducted a comprehensive study of contaminated lands at the DPG. In 1979, the Government issued a detailed report of its study. United States Army Toxic and Hazardous Materials Agency, Report No. 140, Installation Assessment of Dugway Proving Ground (1979). The report noted testing had occurred in the Yellow Jacket Area adjacent to DPG: "The Yellow Jacket Area ... was used in the 1940's ... to test munitions containing chemical agents, incendiaries, and high explosives. Complete documentation is lacking in this area." The report recommended that (1) "DPG better define the hazards and problems of UXO [unexploded ordnance] at ... the Yellow Jacket Area," and (2) "action by DPG be expedited to better define the extent of the test site[] within the ... Yellow Jacket Area[], and to bring [this] area[] under proper control." Dr. Cannon apparently was not aware of the report upon his death in 1980.

In 1980, Dr. Cannon's four children, Mary Alice, Margaret Louise, Allan Robert, and Douglas F. Cannon, inherited the remainder of the property. In 1988, the Government issued an update to its 1979 report. United States Army Toxic and Hazardous Materials Agency, Update of the Initial Installation Assessment of Dugway Proving Ground (1988). Regarding the Yellow Jacket Area, the unclassified report stated the area —

was identified in the [1979 report] as a test area for various unidentified chemical agents, fire bombs, rockets, and smoke and mortar rounds during the 1940s.... Discussion with long-time employees indicate that the surface UXOs [unexploded ordnance] and empty containers were cleared from the area but some subsurface UXOs could exist.... Due to an absence of records, DPG has not been able to better define the activities or exact locations where they occurred in the Yellow Jacket Area. The installation is to withdraw this area from... the Public Domain, and permanently add it to the current DPG land holdings because it is potentially contaminated from past Army activities....

The report reiterated the Yellow Jacket Area was "potentially contaminated with hazardous materials," and was subject to an ongoing "environmental assessment."

On July 13, 1994, the United States Army Corp of Engineers (COE), in cooperation with the DPG, notified the Cannons that the Government was conducting a "geophysical survey of property known as the Yellow Jacket Mines." The purpose of the survey was "to determine whether... these lands have been impacted by unexploded ordnance." The letter provided a contact if the Cannons "wish[ed] to discuss the project in greater detail." Margaret Louise and Allan Robert Cannon signed access agreements on July 22 and August 28, respectively.³ The agreements authorized the Government to inspect the Cannons' property "under the remedial design phase of the Defense Environmental Restoration Program for Formerly Used Defense Sites" (FUDS) to "[d]etermine [the] presence or absence of Ordnance and Explosive Wastes (OEW) contamination."⁴

On August 23, 1994, the COE issued a press release announcing "an informal Availability Session" to be held the following week on August 30, 1994, at the Tooele County Courthouse. The release stated the COE was undertaking an "Engineering Evaluation/Cost Analysis (EE/CA)" to determine risks associated with former defense sites including the Yellow Jacket Area.⁵ The release explained that testing in and around the area during the 1940s involved "toxic, smoke, and flame agents in bombs, mortar and artillery shells, rockets, and ... light case tanks. Gasoline, butane, the non-persistent agents Phosgene, Hydrogen Cyanide, and Cyanogen Chloride, and the persistent agent Mustard Gas were used in the tests." The release further explained that once testing ended, "the cleanup process involved a sweep of the areas to clear remaining surface ordnance." The release specifically noted the possibility that "some soil contamination and subsurface OEW may still exist."

Margaret Louise Cannon attended the public "Session" and obtained three "Fact Sheets." One of those sheets, entitled "Yellow Jacket Ranges," reiterated much of the information contained in the press release. A portion of the fact sheet labeled "Potential Hazards" read:

A study by the [COE] in 1993 ... reported that it is highly probable that these mine areas are contaminated with hazardous ordnance and explosive waste (OEW). It is suspected that there is...