By James C. Rice
Grazing on the public lands of the Great Basin Desert in Nevada, the herds find refuge from the snow. They lumber back home to Cedar City, Utah each spring in time for the arrival of newborn lambs and shearing of wool, and then depart for cool, rich mountain pasture. It is a geographic and biological cycle repeated year in and year out.
But in 1953, the herds returned to Cedar City with a malady trailing alongside. Shot Nancy, a 24-kiloton tower detonation, dropped radioactive fallout just beyond the boundaries of the Nevada Test Site (NTS) on March 24, and several weeks later, by the time the herds reached Cedar City, there was trouble afoot. Many sheep exhibited blisters and scabs around the mouth in tandem with lesions extending up the muzzle, along the head, and down the back underneath the wool which pulled off in chunks during shearing. At lambing time, the ewes were lethargic, and many died in a strikingly abrupt manner. Some lambs were stunted and undersized at birth. Waving a Geiger counter over the animals produced a frenzied clicking.
The Atomic Energy Commission (AEC) assembled teams of researchers. They considered three scenarios: 1) Radioactivity was a direct cause of death; 2) Radioactivity represented a contributing factor exacerbating the stresses of trailing and pregnancy; 3) Radioactivity played no role in the deaths of about 4,400 sheep. After seven months of inquiry, AEC officials settled on the least plausible explanation: fallout played no role in the grisly and anomalous event. The problem was malnutrition.
In 1955, as AEC and military officials were preparing to resume open-air atomic testing in Nevada after a two-year hiatus, another bomb dropped. Ranchers from the Cedar City area were not convinced malnutrition killed their sheep, and they had filed a lawsuit in Federal District Court in Salt Lake City. Bulloch et al. v. United States went to trial in September of 1956 before Judge A. Sherman Christensen, and it constituted a dire threat to open-air atomic detonations at the NTS. The ranchers sought compensation for their losses, but the government refused to negotiate and preferred, instead, to go to trial.
In October of 1956, Judge Christensen announced his decision: the evidence did not support the conclusion that radioactivity was the sole cause or substantively contributed to the injuries exhibited by the sheep. He noted witnesses for the government included the most well-regarded experts in the country.
Judge Christensen was still on the bench 26 years later when the ranchers and their legal counsel unearthed AEC reports and memorandum newly accessible due to civil litigation and congressional inquiry. These documents had been sequestered from public view for decades. The ranchers petitioned Christensen to set aside the original judgment, and after four days of testimony, he concluded the government committed “fraud upon the court” in 1956. Fraud upon the court refers to intentional conduct inhibiting the rendering of an impartial judgment. He argued the lawyers representing the AEC failed to disclose the deaths of sheep exposed to radiation in an experimental setting approximating what occurred on the range; that they presented misleading information at trial about measurements of radioactivity around the NTS after shot Nancy; that they pressured witnesses to testify in a manner consistent with the government’s case; and that they gave misleading and evasive answers to pre-trial interrogatory questions provided to the plaintiff. Christensen vacated the original judgment in Bulloch et al. v. United States and ordered a new trial.
However, in 1983, a three-judge panel of the U.S. Court of Appeals, 10th Circuit, rejected Christensen’s finding of fraud upon the court. Two years later, the full court reaffirmed this ruling by a vote of five to two. In The Myths of August: A Personal Exploration of Our Tragic Cold War Affair with the Atom, Stewart Udall referred to the majority decision of the Tenth Circuit Court of Appeals as a “grotesque episode of American jurisprudence,” suggesting it had more to do with political than legal considerations. Udall represented the State of Arizona in the U.S. House of Representatives (1954-61), served as Secretary of the Interior (1961-1969), and was involved in civil litigation regarding atomic testing in Nevada as well as Navajo uranium miners. Udall had a unique perspective born of working in the federal government as well as finding himself at odds with the government later in his career. He further concluded the Tenth Circuit’s ruling belongs in the “Legal Hall of Irrational Opinions.”
Indeed, David v. Goliath seems tepid compared to Bulloch et al. v. United States. The Cedar City ranchers never received a formal apology from the government nor compensation for their losses. The mysterious deaths of thousands of sheep downwind of the NTS in 1953 continues to generate controversy and suspicion, particularly in the towns just downwind of the AEC’s outdoor atomic proving grounds.