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Cannon v. Gates

ELR Citation: 38 ELR 20223
Nos. No. 07-4107, (10th Cir., 08/26/2008)

The Tenth Circuit upheld the dismissal of landowners' Solid Waste Disposal Act and Administrative Procedures Act claims filed against the U.S. government for failing to clean up land it leased from the owners' grandfather in the 1940s for military training purposes. Although the court is sympathetic to the owners' frustration with the long delays in cleaning up their property, the suit falls within the broad ambit of Comprehensive Environmental Response, Compensation, and Liability Act §113(h), which deprives federal courts of jurisdiction to consider "any challenges to removal or remedial action selected" under the Act. The statutory definition of a removal action dictates that a removal action is ongoing and, thus, that §113(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." Here, the government has already undertaken several steps toward determining how it will address the contamination present on the property. These removal actions are sufficient to trigger §113(h).