Sibblings: Thomas Quenton Cannon 1906 - 1994 and Margaret Louise Cannon 1912 - 1919
Marriage: Temple marriage: 1936 to Margaret Gardiner, daughter of Clarence Gardiner and Edna Jackson
Died: May 19, 1980
Dr. Cannon was a physician in Salt Lake City for many years. He inherited land from his father which was involved in a number of lawsuits because the US government did some testing in the area and may have contaminated the land. Eventually his children inherited the land.
1910 census:
1936 Aug 07 SL Margaret Cannon Telegram
1936 Aug 13 SL Telegram Cannon
1936 aug 22 SL Telegram Cannon
1936 August 17 SL Telegram
1941 June 14 SL Tribune, Cannon
1944 Aug 15 SL Tribune:
1944 June 28 SL Telegram Cannon
1944 Dep 30 SL telegram
1945 Feb 21 SL Tribune:
1951 july 16 sl tribune
1956 July 20 SL Tribune:
1957 Sons of Am Revolution App
SL Directory, 1944:
1953 SL Directory:
1958 SL Directory:
1963 June 4 Letter from Hope to JHG:
Do you want to hear more?
The day before F____ and I left SLC some one took M___’s wallet out of
her purse with early $100 in it. She had
it in a drawer of the desk at the office.
She just stepped out of the office room and walked down the flight of
stairs and back up. She said she knows
she wasn’t gone 2 minutes. She notices a
guy going down the hall when she got back but never thought of her purse until
she looked for it at noon. She had been
to the bank for money for rent etc. and
still had it in her purse when she went to work. Dr. Cannon and Margaret insisted on giving
her a check to replace what she lost.
The guy had been doing quite a business stealing purses but they have
him in jail now.
The Government vs the Cannons
DUGWAY RANGE FLUORITE LEASING PROBLEM Tooele County, Utah
At the request of D. G. Prince of the Utah State Land Board, I ac- companied him to a fluorite deposit located in section 32, Twp. 9 S. , Rge. 12 W . in Tooele County. En route he explained that this parcel of state property is leased by a Dr. J. Floyd Cannon of Salt Lake City for the pur- pose of mining valuable metals. According to state law non-metallic min- erals, such as fluorite, require a separate lease if they can be extracted separately. A Mr. C. L. Whitelock of Payson, Utah, filed to obtain a lease for extracting the fluorite only. M y assignment would be to make a field examination to determine whether metals and fluorite might be mined separately or not. The date of our visit was November 6, 1972. M r . Whitelock was present and preceded us in his vehicle from Vernon. On the property we met Bob Rucksacker and Frank Cook, sublessees of the property controlled by Dr. Cannon, who were in the midst of developing a mine.
The location of the area is indicated by figures 1 and 2. Figure 1 is a road map showing the area in relation to Salt Lake City with the easiest access plainly marked. The large rectangle is identical with the area shown by figure 2. It shows the local access roads in more detail and the location of the property in relation to local geographic features. The Dugway Range is a northwest-trending mass of Lower Paleozoic rocks (Cambrian to Mississippian). It is broken up by numerous faults, a few of considerable displacement. At the northwest end of the range are a group of lead-zinc-copper-si 1ver deposits, most of which are presently abandoned. The
mineralization occurs mostly in fissure veins with oxide and sulfide minerals of lead, zinc, copper, and iron and gangue minerals of quartz, fluorite, and calcite.
.jpg)
The property and the problem are centered about one of these fissure veins. The topography and geology are shown on figure 3. The area is the western-most projection of the range. The fissure vein is located along a fault trending roughly north-south and paralleling a structure in the salient produced by a pair of opposing gulches. The country rock is tan, green, and purple medium to very coarse grained orthoquartzite in medium to thick beds. The quartzite is formally known as the Prospect Mountain Quartzite and is of Cambrian age. The quartzite produces a talus of large rounded cobbles and boulders that collects in the gulches. This talus has effectively covered the fissure vein in most places, in fact the vein is obscured everywhere except where mine development has taken place. The strike and dip of the quartzite in the immediate vicinity of the fissure vein is N. 35°W. and about 40°SW. The vein itself, as measured at the Glory tunnel is N. 15° E. and dips 60° to the southeast.
The fissure vein was observed at three localities. The first observation was made at the Glory tunnel where it is 6 to 8 feet thick. Close examination proves the vein to consist mainly of apple-green fluorite occuring as laminar to nodular or colloform masses, essentially paralleling the trend of the vein. The apple- green masses are divided by thinner layers of more granular, less coherent material, that is usually rust-stained. This rusty material is mainly fluorite, but calcite and quartz are quite abundant in it. In the area adjacent to the footwall is a zone about 1 to 2 feet in width in which the rusty staining is considerable and the fluorite partings contain visible oxide minerals of lead and copper as well as quartz and calcite. Minerals identified were cerussite, anglesite,
like CaF0 content over 85% and will not accept less than 70% effective Si00 is detrimental and 2^ times the silica content is subtracted from the CaF2 content to produce the effective percentage. The sulfur content must remain under 0.05 percent and no non-ferrous metal can be tolerated. 0.5 percent lead amounts to about 10 pounds per ton. This lead is hopelessly interlaced into the fluorite and there is no way of re- moving one without the other. In order to make this deposit profitable the rock must be milled so that the silica and lead content can be economically removed. In the footwall portion of the vein some silver, zinc, and copper are also present. H. H . Doelling Economic geologist CaF2 .
The Dugway Range is a northwest-trending mass of Lower Paleozoic rocks (Cambrian to Mississippian). It is broken up by numerous faults, a few of considerable displacement. At the northwest end of the range are a group of lead-zinc-copper-silver deposits, most of which are presently abandoned. The mineralization occurs mostly in fissure veins with oxide and sulfide minerals of lead, zinc, copper, and iron and gangue minerals of quartz, fluorite, and calcite. The property and the problem are centered ab out one of these fissure veins .
The topography and geology are shown on figure 3. The area is the westernmost projection of the range. The fissure vein is located along a fault trending roughly north-south and paralleling a structure in the salient produced by a pair of opposing gulches. The country rock is tan, green, and purple medium to very coarse grained orthoquartzite in medium to thick beds. The quartzite is formally known as the Prospect Mountain Quartzite and is of Cambrian age. The quartzlte produces a talus of large rounded cobbles and boulders that collects in the gulches. This talus has ef- fectively covered the fissure vein in most places, in fact the vein is ob- scured everywhere except where mine development has taken place. The strike and dip of the quartzite in the immediate vicinity of the fissure vein is N 35° W and about 40° SW. The vein itself, as measured at the Glory tunnel, Is N 15° E and dips 60° to the southeast.
JUDGING THE FEDS: EVERY BENEFIT OF EVERY DOUBT
In May 1945, the United States asked Jesse Fox Cannon of Toole County, Utah, to sign a “Construction, Survey & Exploration Permit” to allow the Army upon 1,425 acres of mining claims Jesse Fox Cannon owned near the Army Dugway Proving Grounds in west-central Utah. Jesse Fox Cannon agreed; after all, a war was on; plus, the Army promised that, within 60 days of finishing, it would “leave the property in as good condition as it is on the date of the government’s entry.” In September 1945, Jesse Fox Cannon reentered his property and discovered that, instead of surveying and exploring the property, the Army had used it for “Project Sphinx,” under which it dropped tons of high explosives and bombs, and incendiary and chemical weapons on Cannon’s property. Notwithstanding the demands by Jesse Fox Cannon and later his son, Dr. J. Floyd Cannon, that the United States fulfill its legal obligation to clean up their property, the federal government refused. In 1980, Dr. Cannon died, leaving the property to his children, who took up the crusade to have their land reclaimed and restored. In 1993, nearly 50 years after the Army left the property, the United States began a paper shuffling exercise purportedly to determine something the Cannon family already knew: whether the Cannon land was a “formerly used defense site” that presented safety concerns for federal and state government agencies. In 1996, the federal government concluded that the Cannon property was one of the most contaminated sites in the country and would cost $12.7 million to reclaim. Then, the United States did nothing....
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 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–
===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 "wished 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
"determine the presence or absence of Ordnance and Explosive Wastes
(OEW) contamination."4
Posted by: Louise Cannon - Salt Lake City, , UT - daughter of Dr. J. Floyd Cannon Jun 29, 2010
Whenever Dr. Clark was in town, (while he was taking care of Howard Hughes)
he would come into my father's office (Dr. J. Floyd Cannon) and use my
father's back office to see some of his patients. He always had a smile,
a quick wit, and a great story to tell. He and my father shared a great love
for art and Dr. Clark gave my father several of his own paintings--2 of
which still hang in my home. After my father's death
he would come into my father's office (Dr. J. Floyd Cannon) and use my
father's back office to see some of his patients. He always had a smile,
a quick wit, and a great story to tell. He and my father shared a great love
for art and Dr. Clark gave my father several of his own paintings--2 of
which still hang in my home. After my father's death
0
Research: Summary of Lawsuit regarding Cannon property:
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 (1) During the testing known as "Project Sphinx," the Army, according to therecordin this case, dropped over 3,000 rounds of ammunition containing either chemicalor incendiary weapons. Over twenty-three tons of chemical weapons were dropped. Theincendiary weapons tested included butane, gasoline, and napalm. Thechemical weapons tested included the choking agent phosgene, the blood agent hydrogencyanide,and the blistering agent mustard. The Armyalso dropped conventionaltypebombs filled withhigh explosive materials. (2) Cannon walked the property with the Army Post Engineer and an Army Claims Officer. The site visit report states the purpose of the walk was "toobserve damage that may have resulted from CWS [Chemical Warfare Services] operations in the area." The report further states the "entire area is liberally covered withshell, rocket, and bomb fragments," and notes that "[j]ust outside [a] cabin are 10Butane filled dud bombs."
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 J. Floyd Cannon's Brother:
Birth: Apr. 29, 1906
Salt Lake City
Salt Lake County
Utah, USA Death: May 18, 1994
Murray
Salt Lake County
Utah, USA 
Son of Jesse Fox Cannon and Margaret Ann McKeever
Married Katherine Bowman, 26 Aug 1934, Salt Lake City, Salt Lake, Utah
Obituary - Thomas Quentin Cannon passed away peacefully at home May 18, 1994 shortly after celebrating his 88th birthday.
Born April 29, 1906 in Salt Lake City, Utah to Jesse Fox and Margaret McKeever Cannon. Married Katherine Bowman August 26, 1934 in the Salt Lake Temple. This summer would have been their 60th wedding anniversary.Attended public schools for twelve years without ever being absent or tardy. B.A. degree, University of Utah. Awarded law degree from George Washington University, and Juris Doctorate from Georgetown University. He was a practicing attorney in Washington D.C. and Salt Lake City for 50 years.
A capable and devoted civic servant, he served twelve years in the Utah House of Representatives where he chaired the Judiciary Committee. He strove to improve his community as president of the Salt Lake City Board of Education and president of the Salt Lake County Recreation Board. He chaired the building committee for the new vocational school, later known as Utah Technical College. He was appointed to the National Highway Safety Advisory Committee by then-president, Gerald Ford.
Awarded the Patriot Medal and Meritorious Service Award by the Sons of the American Revolution. Member of the Sons of Utah Pioneers, Holladay Rotary Club, and Bonneville Knife & Fork Club.
A Utah State Fair exhibitor since 1915, he won many honors including champion Shetland ponies, champion Bantam chickens, and champions in floriculture & horticulture. He was an expert gardener and loved nothing more than to share his lovely home and yard with friends and family. He received awards for his exceptional gardens and Christmas lighting displays.
He devoted many years of service to the Church of Jesus Christ of Latter-day Saints. He served as Bishop of the Forest Dale Ward for ten years, was President of the South German Mission, President of the West German Mission, European Counsel for the LDS Church, a member of the General Melchizedek Priesthood Committee of the LDS Church, and General Board of YMMIA. Coached LDS basketball teams for twelve years.
He lists as his greatest blessings "my wife and my all", Katherine Bowman Cannon; and his children, Thomas Quentin Cannon, Jr. (Gayle), Dr. Richard B. Cannon (Judy), Mrs. Kathleen (Roger B.) Pinnock, and J. F. Cannon (Janet), all of whom survive him. He was a loving granddad to 16 grandchildren and 1 great-grandchild.
Survived by a sister, Mrs. Elvon W. Orme (June). Preceded in death by a sister, Margaret and brother, Dr. J. Floyd Cannon.
Funeral services will be held Saturday, May 21, 11 a.m., Cottonwood Second Ward, 2080 East 5165 South. Friends may call at Larkin Mortuary, 260 East South Temple, Friday, 6-8 p.m., and at the ward Saturday, 9:30-10:30 a.m., prior to services. Interment, Salt Lake City Cemetery.
2008
CANNON v. GATES
538 F.3d 1328 (2008)
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.
[ 538 F.3d 1330 ] 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.
[ 538 F.3d 1331 ] 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").2The Cannons pursued their first SWDA claim under 42 U.S.C. § 6972(a)(1)(A), which permits "any person" tocommence 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" cancommence 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.
[ 538 F.3d 1332 ] 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 County of Denver, 100 F.3d at 1514. "[T]he obvious meaning of § 9613(h) is that when a remedy has been selected, no challenge to the cleanup may occur prior to completion of the remedy." Gen. Elec., 467 F.3d at 1249 (internal quotation marks omitted). Section 9613(h), however, does not preclude actions to challenge a remedial plan after that plan has been completed. See id.This case implicates § 9613(h) because the Cannons asserted claims under federal law — RCRA and the APA. The parties concede that none of § 9613(h)'s exceptions apply. Further, the parties agree that this case involves agency action taken under 42 U.S.C. § 9604, rather than 42 U.S.C. § 9606(a).3 Therefore, we must resolve two questions to determine whether § 9613(h)'s jurisdictional bar applies to this case: (i) whether the United States has "selected" a "removal or remedial action" under 42 U.S.C. § 9604; and, if so, (ii) whether the Cannons' claims present a
"challenge" to that removal or remedial action.
[ 538 F.3d 1333 ] B. Our analysis of whether the United States selected a removal or remedial action "begin[s] and end[s] with the language of [§ 9613(h)]...." Gen. Elec., 360 F.3d at 191; see also Colorado, 990 F.2d at 1577 (reviewing only the "plain language" of § 9613(h)). "This `clear and unequivocal' provision is a `blunt withdrawal of federal jurisdiction' over challenges to ongoing CERCLA removal actions...." APWU v. Potter,343 F.3d 619, 624 (2d Cir.2003) (quoting McClellan, 47 F.3d at 328). According to its plain language, § 9613(h) strips federal court jurisdiction once the Government has begun a removal action. See, e.g., Boarhead Corp. v. Erickson,923 F.2d 1011, 1023 (3d Cir.1991).In the instant case, the Government's authority to begin removal actions depends on 42 U.S.C. § 9604, which enables the Government to respond to releases, or the substantial threat of a release, of hazardous substances into the environment. Section 9604(a)(1) authorizes the President to take removal or other remedial action which the President "deems necessary to protect the public health or welfare or the environment."4 Section 9604(b)(1) provides that,[w]henever the President is authorized to act pursuant to subsection (a) ... he may undertake such investigations, monitoring, surveys, testing and other information gathering as he may deem necessary or appropriate to identify the existence and extent of the release or threat thereof, the source and nature of the hazardous substances, pollutants or contaminants involved, and the extent of danger to the public health or welfare or to the environment. In addition, the President may undertake such planning, legal, fiscal, economic, engineering, architectural, and other studies or investigations as he may deem necessary or appropriate to plan and direct response actions, to recover the costs thereof, and to enforce the provisions of this chapter.42 U.S.C. § 9604(b)(1) (emphasis added).In turn, CERCLA defines removal actions as:The terms "remove" or "removal" mean[ ] the cleanup or removal of released hazardous substances from the environment, such actions as may be necessary taken in the event of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release. The term includes, in addition, without being limited to, security fencing or other measures to limit access, provision of alternative water
supplies, temporary evacuation and housing of threatened individuals not otherwise provided for, action taken under section 9604(b) of this title, and any emergency assistance which may be provided under the Disaster Relief and Emergency Assistance Act [42 U.S.C. § 5121 et seq.].
[ 538 F.3d 1334 ] 42 U.S.C. § 9601(23) (footnote omitted) (emphasis added). On the other hand, CERCLA defines[t]he terms "remedy" or "remedial action" [to] mean[ ] those actions consistent with permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment....Id. § 9601(24).The statutory definition of a removal action dictates that a removal action is ongoing and thus, that § 9613(h)'s jurisdiction strip applies, even if the Government has only begun to "monitor, assess, and evaluate the release or threat of release of hazardous substances."See Razore v. Tulalip Tribes of Washington,66 F.3d 236, 239 (9th Cir.1995) (holding that § 9613(h) stripped federal jurisdiction because the EPA had completed a remedial investigation and feasibility study, which constituted "such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances");Boarhead, 923 F.2d at 1016, 1023 (concluding that § 9613(h) applied because the EPA had given the plaintiff notice that it intended to study the release of hazardous substances at the plaintiff's farm).In the instant case, the Government's removal actions are therefore sufficient to trigger § 9613(h). The Government has already undertaken several steps toward determining how it will address the contamination present on the Cannons' property. First, the Government has completed a preliminary assessment of the property. As part of this preliminary assessment, the Government conducted an "Archive Search Report" that compiled historical records, interviews, and site surveys to determine the exact nature of the military testing conducted on the Cannons' property. Based on the Archive Report, the Government then prepared and issued a "Draft Formerly Used Defense Site Engineering Evaluation/Cost Analysis Report." This draft report indicated that the Cannons' property was in fact highly contaminated.5Cannon, 338 F.3d at 1187-88. Finally, the record also indicates that the Government was planning its site inspection while this suit was pending before the district court.6 These steps constitute the Government's efforts thus far to "monitor, assess, and evaluate" the hazardous substances on the Cannons' land, and therefore qualify as an ongoing removal action. Accordingly, we conclude that the Government has selected a removal action and thus triggered § 9613(h).Contrary to this conclusion, the Cannons assert that the Government's conduct up to this point does not trigger § 9613(h)
because the Government has not officially selected a removal or remedial action pursuant to the applicable regulations. The Cannons specifically contend that the Government has not selected a removal action until it has complied with the full panoply of the applicable regulations, which require the Government to conduct a site inspection, issue an engineering evaluation and cost assessment report, take public comments, and finally make a decision about the removal action based on the administrative record. See 40 C.F.R. § 300.415. We find this argument to be unpersuasive because it unduly restricts the plain language of § 9613(h). That section is a "blunt withdrawal" of the jurisdiction of federal courts, which applies once the Government has begun its removal action. See Potter, 343 F.3d at 624. Nothing in the statutory language suggests that Congress intended this jurisdiction-stripping provision to apply only once the Government has completed a substantial portion of its removal proceedings. See Razore, 66 F.3d at 239 (concluding that an interim step in the removal selection process — the preparation of an remedial investigation/feasibility study report — constituted an ongoing removal action sufficient to trigger § 9613(h)); Boarhead, 923 F.2d at 1023 (holding that § 9613(h) applied because the EPA had begun sufficient removal proceedings once it had communicated its intent to conduct a remedial investigation/feasibility study).7 Therefore, we remain convinced that the district court properly concluded that the Government had selected a removal action pursuant to its authority under § 9604.8
[ 538 F.3d 1335 ] C. Section 9613(h) applies only to "challenges to removal or remedial action." 42 U.S.C. § 9613(h) (emphasis added). A lawsuit challenges a removal action if it "calls into question [that removal] plan." Gen. Elec., 467 F.3d at 1249. In other words, a suit challenges a removal action if it "interferes with the implementation of a CERCLA remedy" because "the relief requested will impact the [removal] action selected." Broward Gardens Tenants Ass'n v. EPA,311 F.3d 1066, 1072 (11th Cir.2002); see also Costner v. URS Consultants, Inc.,153 F.3d 667, 675 (8th Cir. 1998) (holding that a qui tam suit for monetary damages only against contractors engaged in a clean-up effort was not a challenge because it would not impact the removal action selected).Turning to the instant case, there is no doubt that the Cannons' suit constitutes a challenge. The Cannons requested injunctive relief ordering the remediation of their property. Such relief would undoubtedly interfere with the Government's ongoing removal efforts. See Alabama v. EPA,871 F.2d 1548, 1559 (11th Cir.1989)
(holding that a suit requesting injunctive relief constituted a challenge for the purposes of § 9613(h)). Therefore, we conclude that the Cannons' suit challenges the Government's ongoing removal action for the purposes of § 9613(h).
[ 538 F.3d 1336 ] The Cannons attempt to avoid the broad standard for what constitutes a challenge by arguing that the cases applying that standard are inapposite because the Government has not yet selected a removal action. This argument merely rehashes the Cannons' earlier contention that a removal action begins only after the Government has selected it pursuant to the regulatory provisions at 40 C.F.R. § 300.415. Accordingly, the argument suffers a similar fate. As we noted above, the broad statutory language indicates that Congress intended to strip federal jurisdiction from any challenge that would interfere with an ongoing removal or remediation process. See, e.g., Potter, 343 F.3d at 624. Here, the Government's conduct constitutes an ongoing removal action, with which the Cannons' suit would undoubtedly interfere. Thus, the case at bar constitutes a challenge.III. The Cannons' suit sought to hasten the Government's cleanup efforts through injunctive relief. We are sympathetic to the Cannons' frustration with the long delays; however, their suit falls within the broad ambit of § 9613(h). Accordingly, we AFFIRM the district court's decision to dismiss the case. In addition, we DENY the Government's motion to take judicial notice of the final inspection plan.
Footnotes
1. The Cannon property is located within the "Yellow Jacket Mines area," which is immediately adjacent to the Proving Grounds.2. The SWDA, 42 U.S.C. §§ 6901-81, amended the Resources Conservation and Recovery Act of 1976 ("RCRA"). See United States v. Colorado,990 F.2d 1565, 1568 (10th Cir.1993). The parties often refer to these claims as RCRA claims. Both of the Cannons' RCRA claims, asserted under 42 U.S.C. § 6972(a), are referred to as RCRA citizen suits. See Colorado, 990 F.2d at 1573 n. 12, 1577-78.3. These two provisions of CERCLA, 42 U.S.C. §§ 9604 and 9606, "authorize the President and his designees to initiate cleanup operations." Pollack v. United States Dep't of Defense,507 F.3d 522, 525 (7th Cir.2007). Section 9604 "allows the President to undertake cleanups," while § 9606 instead "allows the President to command potentially responsible private parties to clean up their own hazardous messes." Id. Section 9606, therefore, involves abatement actions taken by the United States against responsible parties. This case does not implicate § 9606.4. Although the President has delegated most of his authority under CERCLA to the EPA, he has delegated his CERCLA authority over Department of Defense sites instead to the Secretary of Defense ("Secretary"). See Colorado, 990 F.2d at 1571 n. 9. Pursuant to that authority, the Secretary cleans up "formerly used defense sites" pursuant to the Defense Environmental Restoration Program, 10 U.S.C. §§ 2700-08. 10 U.S.C. § 2701(c) requires the Secretary to undertake action in response to such hazardous waste sites in accordance with CERCLA. Therefore, the parties concede that the Defense Environmental Restoration Program "uses a cleanup process consistent with CERCLA and the National Contingency Plan, 40 C.F.R. Part 300," and thus, that 42 U.S.C. §§ 9604 and 9613(h) apply to this case.5. The Government never finalized this draft report due to several concerns, including funding limitations. The failure to finalize this report, however, did not stall the Government's administrative process because the report was merely a collateral step.6. The Government moved for us to take judicial notice of the final site inspection plan. This document is not necessary for the resolution of this appeal, and accordingly, we DENY the Government's motion.7. We recognize that this conclusion splits with the Seventh Circuit's holding in Frey v. EPA,403 F.3d 828 (7th Cir.2005). While we share the Seventh Circuit's concern regarding open ended remedial and removal actions undertaken by the Government, we conclude that the plain language of the statute mandates the result we reach here.8. In their reply brief, the Cannons assert that neither Boarhead nor Razore support the conclusion that a removal action commenced once the Government began monitoring, assessing, and evaluating the Cannons' property. The Cannons attempt to distinguish both cases by noting that those cases involved property that the EPA had previously listed on the National Priorities List ("NPL"). That fact, they assert, implicitly demonstrates that the EPA had completed all of the necessary regulatory steps to select a removal action.
In spite of the Cannons' argument, neither Boarhead nor Razore rely on (or even mention during the analysis) the placement of the properties on the NPL. Thus, we find the Cannons' attempts to distinguish the reasoning from these two cases unpersuasive.
