Cannon v. Gates

• Decision Date: 26 August 2008
• Docket Number: No. 07-4107.,07-4107.
• Citation: 538 F.3d 1328
• Parties: F. Douglas CANNON; Margaret Louise Cannon; Allan Robert Cannon, Plaintiffs-Appellants, v. Robert M. GATES, Secretary, United States Department of Defense; United States Department of Defense; United States Department of the Army; United States of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

538 F.3d 1328

F. Douglas CANNON; Margaret Louise Cannon; Allan Robert Cannon, Plaintiffs-Appellants, v. Robert M. GATES, Secretary, United States Department of Defense; United States Department of Defense; United States Department of the Army; United States of America, Defendants-Appellees.

No. 07-4107.

United States Court of Appeals, Tenth Circuit.

August 26, 2008.

Ronald Walter Opsahl (Joshua D. McMahon and William Perry Pendley with him on the brief), Mountain States Legal Foundation, Lakewood, CO, for Plaintiffs-Appellants.

Stacey W. Person, U.S. Department of Justice, Environment and Natural Resources Division (Ronald J. Tenpas, Acting Assistant Attorney General, Daniel Pinkston and Elizabeth A. Peterson, U.S. Department of Justice, Environment and Natural Resources Division, and Tracy Gruis, of Counsel, Office of the Chief Counsel, U.S. Army Corps of Engineers, with her on the brief), Washington, D.C., for Defendants-Appellees.

Before LUCERO, HOLLOWAY, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Plaintiffs-Appellants F. Douglas Cannon, Allan Robert Cannon, and Margaret Louise Cannon (the "Cannons") brought suit against the Defendants-Appellees claiming two violations of the Solid Waste Disposal Act and one violation of the Administrative Procedures Act. The district court dismissed the case for lack of subject matter jurisdiction pursuant to the jurisdiction-stripping provision at 42 U.S.C. § 9613(h). We conclude that the district court properly applied § 9613(h) because the Cannons' suit constitutes a challenge to the Government's selected removal action, and therefore AFFIRM the dismissal.

I.

Jesse Fox Cannon owned over 1,416 acres of land in Tooele County, Utah. Cannon's land was adjacent to the Army's Dugway Proving Grounds.¹ In 1945, Cannon entered into a six-month lease with the United States War Department, which provided that, in return for one dollar, Cannon would permit the Government to enter onto his land "in order to survey and carry out such other exploratory work as may be necessary in connection with the property; to erect buildings and any other type of improvement; and to perform construction work of any nature." The Government agreed that, at the expiration of the lease, it would "leave the property of the owner in as good condition as it is on the date of the government's entry."

Government officials then entered onto Cannon's land to conduct Project Sphinx, which was designed to test "means of battling Japanese forces entrenched in caves in the Pacific Islands." Cannon v. United States, 338 F.3d 1183, 1184 (10th Cir.2003). As part of that testing, the Government used incendiary weapons, including aviation fuel, butane, gasoline, napalm, PT jell, and napalm-gas mixtures. The Government also used chemical weapons, such as phosgene, hydrogen cyanide, mustard gas, and defoliants. Finally, the Government dropped conventional bombs on Cannon's property, including 12,000-pound Fall Boy bombs and Tiny Tim rockets. In all, the Government used at least 3,000 rounds of ammunition and twenty-three tons of chemical weapons in the tests it conducted on Cannon's property. See Cannon, 338 F.3d at 1185 n. 1.

After completing its tests, "[t]he Army failed to keep its promise to clean up Cannon's property." Cannon, 338 F.3d at 1185. When Cannon reentered the land in September 1945, "the entire area [was] liberally covered with shell, rocket, and bomb fragments...." Id. at 1185 & n. 2 (internal quotation marks omitted). In September and October 1945, Cannon filed two administrative claims with the Government. For the first claim, the Government paid Cannon $755.48 for disrupting mining activities, and for the second, the Government paid Cannon $2,064 for the destruction of mine shaft timbering. See id. at 1185. Cannon then filed a third claim with the Government in 1950, asserting that he had been unable to lease his mines because they were still filled with what appeared to be poisonous gas. See id. The Government denied that claim. See id.

Over the years, Cannon's son, Dr. J. Floyd Cannon, unsuccessfully requested that the Government clean up the property. Id. Beginning in the 1970s, the Government initiated efforts to study the contamination at the adjacent Dugway Proving Grounds, and included the Cannon property in some of these efforts. See id. at 1185-86. The Government, however, did not clean up the Cannon property at that time, and has yet to do so. Id. at 1188.

Frustrated by the slow progress in the Government's clean up efforts, two of Dr. Cannon's children, who then owned 75% of the Cannon property at issue here, sued the United States in 1998 under the Federal Tort Claims Act ("FTCA"). See id. Following a bench trial, the district court found that the Government had diminished the value of the Cannons' land from $176.26 to $25 an acre, and awarded them $160,937 in damages. See id. at 1189. This court, however, reversed that judgment and held that the statute of limitations barred the Cannons' FTCA claims. See id. at 1184, 1189-94.

In November 2005, the Cannons tried a different approach. Three of Dr. Cannon's children who currently own the land at issue — F. Douglas Cannon, Allan Robert Cannon and Margaret Louise Cannon — sued the United States, the Department of Defense, the Department of the Army, and the Secretary of Defense (collectively "the United States"), seeking to use federal environmental protection laws to force the United States to clean up the Cannons' property. To that end, the Cannons alleged two claims under the Solid Waste Disposal Act ("SWDA").²

The Cannons pursued their first SWDA claim under 42 U.S.C. § 6972(a)(1)(A), which permits "any person" to

commence a civil action on his own behalf —

(1)(A) against any person (including (a) the United States, and (b) any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment of the Constitution) who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter....

42 U.S.C. § 6972(a). In support of this claim, the Cannons alleged that the United States was in violation of federal and Utah regulations applicable to generators of hazardous waste.

The Cannons asserted their second SWDA claim under 42 U.S.C. § 6972(a)(1)(B), which provides that "any person" can

commence a civil action on his own behalf

....

(B) against any person, including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution, and including any past or present generator, past or present transporter, or past and present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment....

42 U.S.C. § 6972(a)(1)(B). In support of this claim, the Cannons alleged that the United States has contributed to conditions on their property that endanger the Cannons, other individuals mining on the property, and members of the general public who come onto the Cannons' property. Those dangers include unexploded ordnance and poisonous chemical agents.

In addition to their two SWDA claims, the Cannons also asserted a claim under the Administrative Procedures Act ("APA"), 5 U.S.C. § 706. That APA provision permits a court to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1).

The district court dismissed the Cannons' claims, holding that 42 U.S.C. § 9613(h) deprived federal courts of jurisdiction to consider those claims. Briefly stated here, § 9613(h) deprives federal courts of jurisdiction to consider "any challenges to removal or remedial action selected" under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). In dismissing these claims, the district court concluded that the United States had already "selected" a "removal" action addressing the Cannons' property through the United States' preliminary efforts to investigate whether clean up efforts were needed. The Cannons appeal that decision.

II.

The district court dismissed this action at the summary-judgment stage of this litigation. This court, therefore, will review the district court's decision de novo. See New Mexico v. Gen. Elec. Co., 467 F.3d 1223, 1241 (10th Cir.2006); see also Gen. Elec. Co. v. EPA, 360 F.3d 188, 191 (D.C.Cir.2004).

A.

"Congress enacted CERCLA to provide a mechanism for the prompt and efficient cleanup of hazardous waste sites." United States v. City and County of Denver, 100 F.3d 1509, 1511 (10th Cir.1996). "CERCLA protects the execution of a CERCLA plan during its pendency from lawsuits that might interfere with the expeditious cleanup effort." Gen. Elec., 467 F.3d at 1249 (internal quotation marks omitted) (quoting McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325, 329 (9th Cir.1995)). CERCLA accomplishes this through 42 U.S.C. § 9613(h), which provides, in pertinent part:

No Federal court shall have jurisdiction under Federal law other than under section 1332 of Title 28 (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under section 9621 of this title (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under 9606(a) of this title, in any action except [if certain listed exceptions apply]....

42 U.S.C. § 9613(h) (emphasis added).

"In enacting this jurisdictional bar, Congress intended to prevent time-consuming litigation which might interfere with CERCLA's overall goal of effecting the prompt cleanup of hazardous waste sites." City and...