In the spring of 1953, the Atomic Energy Commission detonated 11 atomic explosions at its Nevada test site. AEC technicians then knew more about the effects of radioactive fallout than any experts in the world; thus they certainly realized it was highly improbable that sheep could safely graze on their customary pasture lands, downwind less than 50 miles from ground zero.
But the AECs orientation was that nothing must stop the tests, and no attempt was made to evacuate the downwind area.This disregard for public health would, in later years, lead to hundreds of cancer deaths among the downwinders living in Arizona, Nevada and Utah. The first "guinea pigs" to die as a consequence of this experiment would not be humans, but sheep.
As the AEC's test organization prepared the shots, about 2,000 sheep were grazing in an area 40 miles north to 160 miles east of the test site.
Two brothers, McRae and Kern Bulloch, were tending a large herd of sheep near Coyote Pass, northeast of the test site.
A combination of factors would make the 1953 shots, code-named "Upshot Knothole," the most hazardous detonations ever conducted in the United States. Three of these explosions were twice the force of the bomb that obliterated Hiroshima. Firing them on low, 300-foot platforms guaranteed that hundreds of tons of vaporized soil and steel would magnify the fallout over downwind areas.
Beginning on March 17, 1953, there was an average of one blast a week for almost three months. During that period, while the Bullochs trailed their sheep east from the winter range at Coyote Pass to lambing yards at Cedar City, they and their animals were exposed to large quantities of radioactive fallout.
As the animals grazed, their wool sponged radiation particles from the air. But these external doses were just a tiny fraction of the total the animals received. Due in part to the way they feed and in part to their unusual stomach structure, sheep were highly vulnerable to radioactive poisons.
Near the end of the 1953 tests, when the sheep reached the lambing yards near Cedar City, the Bullochs and other herdsmen knew something was wrong. Wool sloughed off in clumps, most of the adult sheep had blisters and sores on their faces, and the new lambs were either stillborn with grotesque deformities or were so weak they were unable to nurse and died soon after birth. The mysterious malady claimed nearly 5,000 lambs and lambing ewes within a few days.
In testimony presented in April 1979 to a joint congressional hearing in Salt Lake City, Kern Bulloch recalled the scene: "When they started to lamb, the lambs were born with little legs, kind of pot-bellied. Some of them didn't have any wool. And we started losing so many lambs that my father just about went crazy."
There was an easy scientific explanation for the disaster, but 26 years would elapse before the sheepmen understood what had occurred. They had witnessed the power of concentrated doses of radioactive fallout. By the end of the hearing, they had a clear idea of the network of lies the AEC had used to conceal this simple truth.
The expert witness who helped the sheepmen understand the AEC's masterpiece of mendacity was Dr. Harold Knapp, a stubborn operations analyst who caused consternation in AEC circles in 1962 when he discovered that dairy cows in the downwind zone were ingesting fallout and concentrating it in their milk. Thus huge, hidden doses of radiation were delivered to milk drinkers. Knapp's findings concerning the dangers of internal doses were a bombshell. He was, in effect, accusing the AEC of covering up an acute hazard.
When news of the sheep die-off reached Washington, the AEC sent a team of radiation experts, led by Dr. Paul Pearson, to Cedar City to investigate. The most significant members of Pearson's team were two veterinarians, R.E. Thompsett of Los Alamos and Marine Lt. Col. Robert Veenstra, who had previously performed research for the AEC involving animals exposed to radiation.
During the initial phase of the investigation, as the two veterinarians listened to the ranchers' stories and examined their dead and dying animals with radiation detection devices, the ranchers sensed the visitors were convinced that the die-off was caused by fallout.
Thompsett's and Veenstra's field reports concluded that radiation had been a contributing cause of the sheep die-off. Col. Veen-stra's opinion was influenced by the radiation he found in the spleen, kidneys, ribs and liver of the dead animals he examined. Thompsett had studied the cattle and horses injured by fallout from the wartime 1945 Trinity explosion in southern New Mexico, and his opinion was based in part on a finding that the lesions on the Utah sheep were identical to the radiation burns he had observed on the Trinity animals.
Once Pearson and his superiors in Washington realized that the sheepmen thought they were entitled to reimbursement for their losses, a systematic campaign was launched to crush their expectations. Steve Brower, a young county agricultural agent who was trying to help the ranchers understand the issues, watched with dismay as the campaign of deceit unfolded. His first inkling of the AEC's hard-line stance came when Dr. Thompsett, who had promised to send him a copy of his field report, informed him that this document was "picked up" by a superior who told him "to rewrite it and eliminate any references to speculation about radiation damage or effects."
Because he was perceived as a neutral party who had influence with the sheepmen, Brower's office in Cedar City became a prime destination in the fall of 1953 for "a battery of people . . . constantly bombarding us with expert opinions . . . that the levels of radiation could not have caused the damage." A conversation still etched in Brower's memory 26 years later involved a confidential appeal that there could be no payment to the ranchers because the AEC had a policy that "under no circumstances could allow the precedent to be established in court that the AEC was liable for radiation damages to either animals or humans."
Brower was not surprised when, a few months later, the AEC announced that its experts had concluded that fallout had not harmed the Utah sheep. What caught my attention as I listened to Brower's testimony was the evidence he presented that the cover-up was dictated by an "official policy" that had been adopted by the AEC.
Pay nothing policy
I found this revelation fascinating because the AEC's pay-nothing-to-radiation-victims policy appeared to explain many things about the burgeoning atomic-age tragedies in the West. When I learned that the sheepmen would have quietly settled their claims for a total of the $220,000 value of their lost animals, as a personal injury lawyer I was flabbergasted to learn that the government had refused to enter into negotiations with the Utah ranchers. And this pay-nothing, admit-nothing policy appeared to explain why, over the years, AEC functionaries had spun webs of deceit to avoid responsibility for the tragedies of the uranium miners and the citizens who lived downwind from the Nevada test site.
In the 1950s, when outsiders didn't know enough about radiation issues to ask probing questions, any official pronouncement by the AEC was accepted as a truth vouchsafed by its stable of great scientists. Thus, when AEC press officers issued a final report in January 1954, affirming that secret "scientific studies" had absolved fallout as a cause of the sheep die-off, AEC leaders in Washington were certain that their findings would douse the embers of this dispute.
The AEC's final report was accepted everywhere except Cedar City, where a band of livestockmen were certain of the report's inaccuracy. Kern Bulloch and his friends were not well educated, but they had a sense of fair play and were stubborn adversaries when they felt they had been treated unfairly. In the weeks that followed, they garnered the support of a tenacious young local lawyer, Dan Bushnell, who, along with his colleagues, would watch in disbelief as government officers corrupted the American system of justice.
David and Goliath
When he filed Bulloch vs. U.S. in federal court in Salt Lake City in 1955, Bushnell knew he was a David challenging a government Goliath with unlimited resources, but as a staunch Mormon he was guided by a belief that the truth and fairness would eventually prevail. Bushnell operated on the assumption that the two veterinarians, Veenstra and Thompsett, were honest men who, under oath, would uphold their professional opinions and testify that fallout was implicated in the demise of the sheep. He also assumed that when government lawyers studied the facts they would do the honorable thing and agree to a settlement covering the value of the lost sheep.
These assumptions were naive. The settlement option was never discussed, and the need to suppress or alter the opinions of Veenstra and Thompsett was given a high priority soon after they finished their inspections at the Cedar City lambing pens. From the day the Bulloch case was filed, the single-minded goal of the government lawyers, scientists and physicians was to win the lawsuit by fair means or foul.
The federal team ran circles around a country lawyer who had neither the resources to conduct a wide-ranging investigation nor access to the government's secrets. With power to intimidate witnesses and manufacture evidence, the federal legal team worked unceasingly on a strategy to provide an airtight defense for the government and to destroy the foundation of the sheepmen's case.
The federal lawyers' case persuaded Judge Sherman A. Christensen to conclude that "the maximum amount of radioactive fallout in any area in which the sheep could have been, would have caused no damage."
Bushnell was crushed, but he realized that an appeal would be an exercise in futility. The odds were probably 100,000 to 1 that any future court would ever stir the ashes of this case.
But in 1979, these odds were changed, and Bulloch vs. U.S. was resurrected when a public outcry brought two congressional committees to Salt Lake City. It acquired credibility in medical circles when a cautious Utah epidemiologist, Dr. Joseph Lyon, published a study in The New England Journal of Medicine, which disclosed that five years after the inception of the Nevada tests, an epidemic of leukemia was killing children in the downwind zone.
Testimony presented by witnesses who appeared before the congressional committees told Bushnell that the government had perpetrated a fraud on Christensen's court in the Bulloch case.
The most vivid evidence presented at the Salt Lake hearings came from Steve Brower, now a professor at Brigham Young University's Graduate School of Management. Brower's cover-up accusations had special force because he had watched the deceptions of the AEC's damage-control as a neutral observer.
In 1982 , when Bushnell lodged a motion to reopen the Bulloch case and charged that U.S. officials had perpetrated a fraud on Chris-ten-sen's court, the distinctive facts surrounding this motion converted it into a landmark of American law. It simultaneously charged that government's lawyers had engaged in highly unethical conduct, that crucial evidence had been concealed from the court, and that federal officials had conspired to alter and/or suppress the testimony of crucial witnesses.
This motion was followed by a four-day hearing at which Bushnell spread the hidden documents on the record and had Knapp summarize his findings.
A few months later, Christensen issued a 56-page opinion that made judicial history. No other federal judge this century has adjudged, 26 years after his initial decision, that high-level federal lawyers abetted by high-level federal employees defrauded his court.
Christensen condemned Pearson and other AEC officials who had concealed a contemporaneous Hanford experiment involving irradiated fetal lambs, which had produced "signs and conditions almost identical" to those exhibited by the Utah sheep.
When Christensen granted the sheepmen's motion for a new trial, Bushnell assumed that the settlement he had sought for a quarter of a century was at hand. The judicial precedents were clear that the government had only a remote chance of persuading an appellate court to overturn this verdict. It made sense for the federal government in the 1980s to clear the slate by admitting that overzealous officials in the 1950s felt it was more important to shield the atomic establishment from criticism than to deal justly with citizens who were harmed by its activities. An appeal was promptly initiated, but Bushnell was shocked when he realized that officials in the Justice Department had decided to discredit Christensen's expose of the 1950s cover-up.
In what can only be described as a grotesque episode of American jurisprudence, the 10th U.S. Circuit Court of Appeals in Denver rejected Christensen's findings and canceled the new trial he had ordered. The 10th Circuit's opinion looms as a prime candidate for any future "Legal Hall of Irrational Opinions" because it scorned one of the most honored precedents of American law - the rule that a court of appeals should sustain a trial judge's decision to grant a new trial.
Tomorrow: "Death and Deceit Downwind."