The U.S. District Court for the District of Utah initially permitted the sheepherders’ claims in Bulloch v. United States to proceed despite objections from the government that such suits were barred by the Federal Tort Claims Act because they involved the discretionary functions of the federal government, Szymendera said. The government enjoys sovereign immunity and cannot be sued without its consent.
In his testimony before the House subcommittee, Kern Bulloch, (or “Bullock”) a sheep rancher and plaintiff in the case, outlined his family’s plight:
“We were on the trail home from our Nevada range into our Utah range, and I was out on the saddle horse with this herd of sheep, just sitting … kind of watching the sheep. They were grazing, and these airplanes came over … and all at once this bomb dropped.
“I wasn’t expecting it … it just was an atomic bomb … And of course, the cloud came up and drifted over us … And it was a little bit later that day that some of the Army personnel that had four-by-four jeeps … came through here … and they said, ‘Boy, you guys are really in a hot spot.”
Moving as fast as the sheep could walk, “and that’s not very fast,” Bulloch said, they trailed into Cedar City, more than 200 miles away.
When the sheep started lambing, the lambs were born with “little legs, kind of pot-bellied,” he said. “As I remember, some of them didn’t have any wool, kind of a skin instead of wool. … And we just started to losing so many lambs that my father – who was alive at that time – just about went crazy. He had never seen anything like it before. Neither had I; neither had anybody else.”
Ultimately, the court ruled against the plaintiffs, and downwinders and other civilians in future cases often found their paths to recovery in the courts blocked by the discretionary function exception clause in the Federal Tort Claims Act, Szymendera said.
One possible way around the immunity offered the federal government by the exception clause was for downwinders and others to bring suit against the federal contractors who played various roles in the testing at Nevada Test Site. That remedy was removed by Congress in 1985 with the enactment of the “Warner Amendment,” named for the bill’s sponsor, Sen. John Warner, R-Va., as part of the Defense Authorization Act.
The Warner Amendment provided that the Federal Tort Claims Act was the sole remedy available to plaintiffs for alleged injuries arising from atomic weapons testing, effectively leaving many plaintiffs without any legal remedy, Szymendera said.
Bombarded with experts
Dr. Stephen Brower, Iron County [Utah] Agricultural Agent, 1950-’54, testified before Oversight and Investigations that he was present at the time the first Atomic Energy Commission veterinarians and personnel arrived to investigate the sheep deaths.
Brower said the Chief of the Biological Branch of the Division of Biological Medicine of the Atomic Energy Commission, Dr. Paul Pearson, told him:
“[T]he AEC could under no circumstances afford to have a claim established against them and have that precedent set. And he further indicated that the sheepmen could not expect under any circumstances to be reimbursed for that reason. … [T]here was a clear mandate that under no circumstance would they do research …that involved radiation.”
Brower said that by the end of 1954, they had a battery of people coming through telling them that the levels of radiation could not have caused the damage. “We were just constantly bombarded with expert opinions. [Yet] during the first month or two of the initial investigation, the scientists who were there were, in fact, … saying and specifying this was radiation damage.”
Those scientists were taken off the case, Brower recounted, adding that Dr. [R.E.] Thompsett – a veterinarian on contract to the AEC, in private practice at Los Alamos – said he would give him a copy of the report and provide a copy to the livestock men indicating the readings and the appearance of the animals definitely were similar to experimental radiation damage done on animals.
Brower testified that Thompsett later told him that his report “was picked up – even his own personal copy” – and he was told to rewrite it and eliminate any reference to speculation about radiation damage or effects.
Miller wrote in “Under the Cloud,” that when Thompsett, and Dr. Robert Veenstra, from the U.S. Navy base in San Francisco, arrived at Cedar City 10 weeks after the “Nancy” shot, most of the affected sheep had already died, so they decided to look at a few surviving lambs.
Like humans, sheep store radioactive Iodine-131 in the thyroid gland. If Iodine- 131 was involved, the sheep’s thyroid would be highly radioactive, Miller wrote. “When the AEC vets placed a Geiger counter to the sheep’s neck, the site of the thyroid, the needle of the instrument pegged to the right,” he said.
“‘This is hotter than a two-dollar pistol,’ Thompsett exclaimed. ‘The needle tried to go past the post.’ Examining the sores on the mouth of the animal, he told the Iron County agricultural agent that it was ‘just like the ones at Trinity,’” Miller wrote.
Holes and inconsistencies
U.S. Sen. Paul Gosar, R-Ariz., in an op-ed published in December in the Kingman Miner, wrote: “RECA is a valuable program but it has gaping holes and inconsistencies that have left communities neglected … for decades.”
None of the communities were warned of the health risks associated with exposure, Gosar said. “What’s worse, the federal government knew the risk to our communities, and not only did nothing, but denied these risks and continued to put people at risk.
“Crueler yet, the federal government told families that the tests were safe and encouraged people to have 'watch parties’ to view the bombs. Studies linking cancer and lung disease to the nuclear testing were withheld from the public.”
A 2015 report from the Arizona Radiation Regulatory Agency found that currently excluded Arizona counties such as Mohave received similar or higher levels of radiation exposure compared to currently covered counties, Gosar said.
The report concluded that since Congress had made the decision that compassionate payments were appropriate for certain areas of Arizona, “it is an inequity to not provide the same payments in areas with the same or higher risk.”
“It is a tragic fact that in an effort to protect us from our enemies, the U.S. government poisoned its own people,” Gosar said.
Speaking to the House in September 2022, Gosar stated that “legal malpractice in drafting the statute” led to the exclusion of residents in Clark County and a portion of Mohave County.
Radioactive fallout was documented across the United States, Gosar said. “It is not just Mohave County that should be included under RECA, but all contiguous 48 states. There is evidence of fallout in every state. Only the furthest West areas, such as L.A., [Los Angeles] escaped radiation. But Eastern California was exposed.
“The government sacrificed its people to test the bombs. Moralists can argue if that was the right thing to do at the time. But today, 70 years later, the moral debate is irrelevant. The people have been hurt. Families devastated. They were unwittingly sacrificed as foot soldiers in a war they did not sign up for.”
At a minimum, the federal government today has the moral obligation to recognize the sacrifice and compensate the victims, he said.
The National Cancer Institute estimates that 11,000 to 212,000 cases of thyroid cancer across the country are linked to exposure to radioactive fallout from the nuclear tests at Nevada Test Site, according to Rep. Susie Lee, D-Nev.
As the final bell tolled for RECA on June 10, she held a news conference at the Atomic Museum in Las Vegas, where she called on Speaker Johnson to let the House vote. Among those joining her was Linda Chase, a Nevada downwinder who lived 70 miles from the test site in Clark County, which is not among the 22 counties covered by RECA.
“I guess they figured the radiation came to the county line, then went around it,” Chase said.
“The message was clear to me and to all the residents of Clark County and other excluded areas: ‘Your sacrifice does not count; you do not matter,’” she said. Chase has autoimmune disease attributed to radiation exposure.
Dr. Laura Shaw, principal investigator in the Radiation Exposure Screening and Education Program, said many of the patients they see are very ill and have personal and extensive family histories of cancer. “Just last week we screened a mom, daughter and aunt, all with cancer. It’s heartbreaking to hear these stories, and we want to help in any way we can,” she said.
Unfortunately, when RECA died, the RESEP program died too.
The National Cancer Institute states that the average cost of cancer is $150,000 per case, Shaw said. RECA provided $50,000 per downwinder.
‘Justice v. Whitewashing’?
Like lawmakers who signed on to the Hawley-Lújan bill and refused to budge, Tina Cordova of the Tularosa Basin Downwinders Consortium had grown tired of politicians kicking the proverbial can down the road while watching friends and new generations of relatives become ill or die of cancer.
She couldn’t in good conscience support another two-year extension of RECA without something in the bill for downwinders and uranium workers. She was still doing a slow burn over the missing link in Christopher Nolan’s Oscar award-winning film, “Oppenheimer,” which she highlighted in May at a meeting of the Southwest Uranium Miners Post ’71 Coalition at Cubero, N.M.
“You all know the story. People tell me this story everywhere I go:
‘I had a good job, had health insurance, had retirement. My wife and I were looking forward to retirement. I was going to travel with her. We were going to put our kids through college. We were going to do all the things that people get to do in the greatest country on Earth – and what happened?
‘I had this nagging ache in my belly and I ignored it because there's no doctor where I live and I put it off. Then my wife made an appointment for me to see a gastroenterologist in Las Cruces. What did I find out after they ran the tests on me? I have stage 4 cancer. They sent me to El Paso. Five days a week I had to go for my treatment to El Paso. Pretty soon I used all the equity in my house, spent all my retirement. I had to quit my job, I no longer had health care. We were having to travel back and forth. Maxed out three credit cards. Now my kids are sending me Visa gift cards so I can pay for gas. Most days I wish I would die so I wouldn't be a burden to my family anymore.’
“That's what we hear,” Cordova said. “That's the legacy of the Manhattan Project and the Trinity bomb and the uranium mining that has taken place in our state. That's where ‘Oppenheimer’ didn't dare to go.”
New Mexico carries some of the highest medical debt in the country – $881 million or nearly a billion dollars – among its 2 million inhabitants, she said. “That is not sustainable.”
A health study conducted by the Tularosa group found that 47% of the people in New Mexico use Medicaid to access health care. “Why is that?” Cordova asked. “Because when you're too sick to work, you lose your health insurance and you have no choice. I guess if we didn't have Medicaid we'd be dying in the streets.”
Although no information on the Trinity Test was released until after the atomic bomb was used as a weapon against Japan, people in New Mexico knew something had happened, according to a U.S. Army article on the history of the site posted on the White Sands Missile Range website.
“The shock broke windows 120 miles away and was felt by many at least 160 miles away. Army officials simply stated that a munitions storage area had accidentally exploded at the Alamogordo Bombing Range,” the article states.
Historical documents accompanying the article include the evacuation report filed by “Major Palmer” on July 18, 1945. The report indicates that depending on radiation readings after the test, there were two prepared press releases ready to go: “One in case of no evacuation, which stated briefly that an ammunition dump had blown up; and one in case of evacuation, which stated than an ammunition dump had blown up which contained gas shells and the people would be evacuated for 24 hours to protect them from the gas.”
Although the explosion made more of a “small depression” rather than a crater, “The heat of the blast vaporized the steel tower and melted the desert sand and turned it into a green glassy substance,” the article states. “It was called Trinitite and can still be seen in the area. At one time Trinitite completely covered the depression made by the explosion. Afterwards, the depression was filled and much of the Trinitite was taken away by the Nuclear Energy Commission.”
Miller wrote that “Ground Zero had been pounded down into a dish fully 6 feet deep” and that toward the center of the depression, the area looked like something from another planet. “The ground was covered with an eerie green glass; the heat of the explosion had fused the sand into trinitite, a new radioactive mineral.”
Cordova claims that the entire state of New Mexico was downwind of the Trinity Test. “The government, for years, told us that the fallout went off in a northeasterly direction in a very orderly fashion,” she said. “But our elders told us that ash fell from the sky for days afterward. It got on everything.”
Like most of the towns in New Mexico, Cordova said they had no access to running water. “We directed the water off of the roofs of our homes into what are called cisterns. Lots of people in the communities where I'm from still have cisterns. Our water is now completely contaminated.
“We didn't have electricity either, which means there were no grocery stores. You couldn't go buy produce, meat, dairy in a grocery store. What you bought at the mercantile store was flour, rice, coffee, sugar, cereal. We lived farm to table. Everything that we ate, we produced,” she said. “It was contaminated.”
Cordova cited a study released last year in which a Princeton scientist re-created the Trinity blast using today's technology. “He found that in the first 10 days following the blast, the radiation circled over New Mexico for days, irradiating everybody and every thing. Then it ran off and contaminated 46 states, Canada and Mexico,” she said.
“I'm a downwinder. You all are downwinders. You live in a state where they used plutonium that has a half-life of 24,000 years. Ten pounds of plutonium went up in that fireball. You only have to inhale or ingest one particle of plutonium and it remains in your body forever, damaging your cells, your organs, causing you to get sick,” she said. “24,000 years – that's the legacy.”