The Downwinders and Judge Jenkins

U.S. District Judge Bruce S. Jenkins shares in this episode recorded in 2023 his recollections at age 95 about the most important case he ever worked on—the hard-fought Utah “Downwinders” lawsuit.  

 The U.S. Atomic Energy Commission (AEC) conducted above-ground testing of nuclear devices in 1953 in southern Nevada. Ranchers living southern Utah, downwind of the Nevada nuclear testing filed five lawsuits against the United States government in 1955-56, seeking damages for harm to their sheep herds from exposure to radioactive fallout. In the lead case, U.S. District Judge Sherman Christensen rejected the claims, ruling the plaintiffs failed to prove the government was negligent.  Bulloch v. United States, 145 F.Supp. 824 (D. Utah. 1956).

 Judge Christensen reopened the case more than 20 years later after evidence of AEC deception in 1956 came to light in 1979 congressional hearings, but the Tenth Circuit reversed that decision, and the Supreme Court declined to review the case.. See Bulloch v. United States, 95 F.R.D. 123 (D. Utah 1982), and 763 F.2d 1115 (10th Cir. 1985) (en banc), cert denied, 474 U.S. 1086 (1986).

 Meanwhile, in 1979 a group of nearly 1,200 plaintiffs filed a new lawsuit called Irene Allen v. United States, challenging their exposure to the downwind radiation from the AEC testing.  After a remarkable 13-week bench trial, Judge Jenkins issued a 225-page decision finding in favor of claims by 24 “bellwether” plaintiffs against the federal government. 588 F.Supp. 247 (D. Utah 1984). The trial transcript spans over 7,000 pages, with more than 54,000 pages of exhibits.  Judge Jenkins spent 17 months preparing his written decision.

 The government appealed Judge Jenkins’ ruling to the Tenth Circuit, which reversed, holding that the government could not be sued for such claims because of sovereign immunity concepts, and the Supreme Court declined to hear the case.  816 F.2d 1417 (10th Cir. 1987), cert denied, 484 U.S. 1004 (1988). Judge Jenkins’ ruling nevertheless prompted Congress to pass the Radiation Exposure Compensation Act in 1990 to create a trust fund to compensate Downwinders.

 In this podcast episode Judge Jenkins reflects on the complex trial testimony in Allen, and on scientific uncertainty and the evolution of scientific knowledge. He also discusses how he approached learning about the scientific concepts the Allen case required him to consider. Judge Jenkins also comments on the Tenth Circuit’s reversal of his decision, which paradoxically prompted Congress to act to provide reimbursement to the injured downwinders.

Transcript

Leah C. Schwartz  00:09

Hello and welcome to Tales from the 10th, a podcast about the rich history, culture and contributions of the 10th circuit courts. I'm your host, Leah Schwartz, a Wyoming lawyer and former 10th Circuit law clerk, 

Tina Howell  00:21

And I'm producer Tina Howell, the Emerging Technologies librarian for the 10th Circuit.

Leah C. Schwartz  00:36

On today's episode, we are joined by the Honorable Judge Bruce S. Jenkins, Senior U.S. District Court Judge for the District of Utah. He is here to tell the story of Allen v. United States, which is the historic case filed by over two dozen plaintiffs who suffered various cancers and leukemia, they claimed as a result of nuclear fallout from government weapons testing in the Yucca Flats area of Nevada, aka the Nevada Test Site. The case was filed in 1979. And Judge Jenkins issued his opinion in 1984, finding that the U.S. government violated a duty of care to the plaintiffs known as the downwinders., and that many of them were entitled to damages under the Federal Tort Claims Act. The U.S. later appealed, and the 10th Circuit reversed Judge Jenkins ruling. Nevertheless, the decision stands today as an incredible example of how our courts can hold actors including the most powerful to account.

Judge Jenkins  01:40

Thank you very much for being with us here today. Judge, it's a pleasure to see you.

Leah C. Schwartz  01:46

You were appointed, as you say to the US District Court for the District of Utah in 1978. Less than a year later, I believe you took on the case of Alan v. U.S., which is the subject of our interview today. And I can only imagine that that case must still stand as one of the most significant of your career. Is that right?

Judge Jenkins  02:12

Significant. The most intellectually challenging.

Leah C. Schwartz  02:19

Allen V. US has been described as a blockbuster case; I know that the trial was attended by various media outlets from all over the world really? Did you have a sense when the case first began that it would garner a lot of attention?

Judge Jenkins  02:36

I thought it was an important case, but I really lacked the understanding of interest all over the world. But that's the way it developed.

Leah C. Schwartz  02:47

Do I understand correctly that there was an early challenge, Judge, with respect to your assignment to the case or your fitness to hear the claims,

Judge Jenkins  02:56

We had a nice young lawyer out of Washington D.C. representing one of the agencies Atomic Energy Commission, who wanted me to stay the case. While they did a background check to see if I were fit to be concerned with matters of some sensitivity that were secret. I denied his motion, telling him that I had just undergone a very extensive background check on the part of the FBI, who searched back as far as my grade schoolteachers and found me fit to be appointed. And I thought we could go ahead.

Leah C. Schwartz  03:42

That's a brave motion to file at the start of a case I should say. Well, what experiences and resources then did you draw on in considering how to approach not only the decision but the procedural management and the trial of the case?

Judge Jenkins  04:00

I have had some personal experience in the political world. I've been President of the State Senate, and so that I was educated in some of the challenges of dealing with a number of people. And I thought we could manage the matter in a fashion that would be hopeful and helpful. We had excellent attorneys that were attorneys on both sides that were very capable, very sharp, very nice, very energetic, and we had really in the consolidated case 1,192 named plaintiffs and as the latter progressed through preliminary motions, matters of that time, it became apparent that we needed to figure out how to handle the matter. So, I suggested the council's they get together and identify on an agreeable basis, the quantity of plaintiffs. They chose 24 and selected 24 and I occurred in their selection as to those that would be fully tried in the case. Hopefully to provide commonality in the event that we went on, had to deal with the remaining group in the 1,192.

Leah C. Schwartz  05:21

So those plaintiffs, then those 24 emerged as the quote unquote, Bellwether plaintiffs or test cases.

Judge Jenkins  05:30

They were selected by the lawyers. 

Leah C. Schwartz  05:32

I see. And you tried all 24 of those individual's claims in their entirety within the consolidated case of Allen v U.S. Is that right?

Judge Jenkins  05:43

That's correct.

Leah C. Schwartz  05:45

I find that incredible. 24 separate cases essentially rolled into one. I have a few stats about the trial that I'd like to share for our listeners. The case lasted 13 weeks, during which you heard testimony, I believe, from 98 witnesses whose testimony actually spanned 7,000 pages in the trial transcript. You reviewed 54,000 pages of written material in the form of the actual admitted trial exhibits. That is epic. What can you tell us about the length and the scope of the trial and the impact it had on your chambers and your docket and in your life at the time?

Judge Jenkins  06:32

We were busy. But I fortunately, had great clerks gifted clerks. I would say in retrospect, were extremely helpful to the court. And we just plowed ahead and set aside the time and kept up with the rest of the stuff as best we could. And we had a lot to do. And that's one of the reasons once we tried the matter in 1982 from September to middle of December, we survived.

Leah C. Schwartz  07:08

Because the action was against the United States, it was required under the Federal Tort Claims Act to be tried by statute to you as the court without a jury. And I'm wondering if you had wished that you had had the ability to submit the case to a jury. I know from listening to prior interviews with you that you're a big fan of juries, respect juries.

Judge Jenkins  07:33

Juries serve a very useful function. I've been an admirer of juries since the beginning of my tenure. In this particular case, I think that the demand for time on 12 or 14, citizens dealing with an esoteric subject was better off to be handled by the court rather than by simply because of the nature of the challenge, particularly the intellectual challenge.

Leah C. Schwartz  08:06

The testimony of the witnesses, you heard from all 24 claimants, I understand. These are the individuals described in your decision as those seeking, quote, solace for their test blame sorrow. I just had to share that turn of phrase, I think it's so great. But you also heard from, as I mentioned, some 70 Other witnesses. I'm wondering what testimony particularly stands out in your memory regarding the trial?

Judge Jenkins  08:35

Its been a while it's 38 years or more 43 years. There are a number of witnesses who stand out. As far as those who are named plaintiffs, I remember one mother who talks about a dying child. And children were particularly vulnerable to fall out and ended up with leukemias that were fatal. And I remember her mother's speaking of her child die, how she held that child in her arms, and blood was flowing from her eyes. That's what I remember graphically. And then the experts, the plaintiff's experts, particularly Dr. Carl Morgan, who was the director of the Tennessee atomic establishment, and a scholar from California, Dr. Goffman, who is a student of low level radiation and a close student were extremely competent and extremely believable for both their prior work at their ongoing work and their testimony in reference to the kinds of damages that could result not just from high level radiation but from the low level race, many of the witnesses were excellent, able and thoughtful. I could give you some more, but the whole record is now back in the National Archives.

Leah C. Schwartz  10:10

Well, no, those are wonderful examples. And the two experts you mentioned Morgan and Goffman, you've described those gentlemen, in high terms, of course, long after the trial had been concluded and the decision fully rendered. I believe you were asked to provide some sort of commentary as to their contribution to your decision. And you mentioned them both as persons of quote, historic dimension and great merit. 

Judge Jenkins  10:42

Yes. 

Leah C. Schwartz  10:43

Mr. Kaufman sent you the book, The angry Genie. When the book was sent to you. It was accompanied by a note that said, for Judge Bruce Jenkins, my deepest respect and appreciation for exemplary devotion to what America really stands for real justice, warmest regards. Speaking of children, I read that Senator Orrin Hatch met with several impacted families in St. George Utah, while the case was pending, and he learned that children there would play under the trees and shake the fallout on their heads and bodies, thinking that they're playing in the snow. That is a chilling image, in addition to the one you just described, provoking, no doubt quite a bit of sympathy for these affected individuals. I'm wondering if you could also share, however, whether you felt any sympathy or what your response was to hear from the government witnesses, those charged by their nation to research and achieve progress in the field of atomic science.

Judge Jenkins  11:50

I was impressed there were good people who were endeavoring to do the best they can, I suppose. I found in the case itself, a different point of view as to when people were exposed and the consequences of exposure. The government's position traditionally, has been one suggesting that Fallout has to reach a degree of intensity that they'd like to call the threshold in order for damage biologically to occur. And of course, both Morgan and Goffman were outliers to begin with, in reference to the concept of threshold. Both Morgan and Goffman indicated that any exposure to fallout radiation of a particular  kind would cause damage, to visit question of how much damage with the concept of threshold was an inappropriate concept. And of course, it's interesting that after the case was done, that the threshold concept in the United States kept going down and down and down. The scientific proposition that Fallout can cause damage to a person, or an animal became the primary and accepted description of that particular consequence.  Speaking earlier of notoriety, or newsworthiness, when I finally filed with the clerk in May, of '84 the opinion, which was than almost 500 typewritten pages, as a result of being invited to give some speeches in Africa, I got an airplane and went to Africa to Liberia and to Nigeria, and believe it or not, in the local press in Liberia, and in Nigeria, there was a reference to the Allen case. And the lawyers and judges to whom I talked, were interested in not necessarily the case that they were interested in the fact that I had the courage and the temerity to call the government to account in both countries at that time, they had experienced fairly recently, military coup, and then Liberia, members of the prior government had been taken to the beach and shot. I was there to talk about liberty, freedom. But I became with that group, kind of like a rock star. Because I had the temerity to call the government to account. That's just aside.

Leah C. Schwartz  14:34

That's yeah, no, that's incredible. Judge, thank you for sharing that. And it does speak to just the reach of the opinion, which I'm glad you mentioned, because I'd like to talk a little bit about the the actual decision you wrote the memorandum of opinion, In Westlaw I think it's over 200 pages. It's truly one of the most incredible pieces of legal writing that I've ever come across and I know I'm not alone in that opinion. I really encourage everyone to read it if they have yet to encounter Judge Jenkins, Allen v. United States decision. It includes multiple appendices, and it turns internal tables. It also provides a full background on not only the hydrogen bomb, but nuclear fission, taking the reader all the way back to the discovery of the atom. It starts out very eloquently. And I'm wondering Judge, if you might do us the favor of reading the introductory paragraphs of your decision.

Judge Jenkins  15:40

I'm happy to read.  In a sense, this case began in the mind of a thoughtful resident of Greece named Democritus, some twenty-five hundred years ago, In response to a question put two centuries earlier by a compatriot, Thales, concerning the fundamental nature of matter, Democritus suggested the idea of atoms. This case is concerned with atoms, with the government, with people with legal relationships and with social values.  This case is concerned with what reasonable man in positions of decision-making in the United States government, between 1951 and 1963, knew or should have known about the fundamental nature of matter.  It is concerned with the duty, if any, that the United States government had to tell it to people, particularly those in proximity to the experiment side, what it knew or should have known about the dangers to them from the government's experiments with nuclear fission conducted above ground the brush lands of Nevada during those critical years.  This case is concerned with the perception and the apprehension of its political leaders of international dangers threatening the United States from 1951 to 1963. It is concerned with high level determinations as to what to do about them, and whether such determinations will legally excuse the United States from being answerable to a comparatively few members of its population for injuries allegedly resulting from open air nuclear experiments conducted in response to such perceived dangers. It is concerned with the method quantum of proof of the cause, in fact, of claim to biological injury is concerned with the passage of time, the attended diminishment of memory, the availability of contemporary information about Open Air testing the application of a statute of repose.  it is concerned with what plaintiff's layman, not experts knew or should have known about the biological consequences that could result from open air nuclear tests and when each player knew or should have known of such consequences. It is ultimately concerned with who in fairness should bear the cost in dollar of injury to those persons whose injury is demonstrated to have been caused more likely than not by nation-state conducted open air nuclear events.  The complaint in this action alleges that each plaintiff, or his predecessor, has suffered injury or death as a proximate result of exposure to radioactive fallout that drifted away from the Nevada's test site and settled upon communities of isolated populations in southern Utah, Northern Arizona, and southeastern Nevada. Each of the plaintiffs or their descendants resided in that area. Each claims serious loss due to radiation-caused cancer or leukemia. Each assert that the injury suffered resulted from the negligence of the United States in conducting open-air nuclear testing, in monitoring testing results, in failing to inform persons at hazard have attempted that ensures from such testing that in failing to inform such persons, how to avoid or minimize or mitigate such numbers.

Leah C. Schwartz  20:12

What a compelling start, thank you for reading that judge. I get goosebumps hearing you read that. And I've got to say it's such a wonderful break from my normal day as a trial lawyer to get to speak with you. So thank you.  I'm wondering why you felt it was so important to give the reader the background in science? Why you personally felt as factfinder it was so vital to understand the principles to the degree you did? I mean, I can understand why any judge would feel that there would need to be some basic grasp of the principles. But both of the experts Goffman and Morgan that we mentioned, have commented in their work subsequent just the degree to which you felt it was so important to really understand this. So why was that?

Judge Jenkins  21:02

In order to really understand the problem for decision, it seemed to me that not only the reader, but the judge needed to be able to converse in language that was used to describe the problem. So that on a primary level, it seemed to me absolutely essential for me to understand what people were talking about. And to that extent, it was an educational opportunity for me, but also an educational challenge, so that I could converse using the language of rads, berg's so that I can understand what was happening when a nucleus was fragmented, where I could understand what was falling out and falling down and the half-life of dangerous particles. And it seemed to me in order for one to be able to decide, you had to be able to use at least in a primary way, the language of science in order to accurately pinpoint what it is that people were complaining about. And it's a challenge. All of those things motivated us. They asked my staff at that point to provide the state primary scientific background, so that those that began to deal with the actual problems, as characterized the language of science knew what they were talking about. And that's one thing that people should understand. I think, while we use words, words use us, and we have to be in a position to get behind the words in order to understand what the problem really is. That was the effort that was the challenge, provide at least an introduction to both the method and language science. That's why maybe we shouldn't have done it.

Leah C. Schwartz  23:17

No, it's, it's a wonderful education, it flows so logically, and what do you mean by those words, use us.

Judge Jenkins  23:26

The dialogue that's occurring in the national debate is a perfect example of asserting, with no factual footing, and people began to think that the word as a word standing alone means something. But you have to get behind the word to say, what are you talking about? What are you really talking about? In order for a word to have meaning you have to understand what the subject is. And if you stop with the word itself, particularly with generalizations, and particularly with assertions of historic facts, when there is no history, nearly all of us get into trouble. Words should have integrity. And the manner in which you describe something with exactly two specificity is absolutely essential.

Leah C. Schwartz  24:19

Thank you for that judge. Thank you. You confess, in the opinion that the concepts of Radiation Physics and even its basic language did not come naturally to you? What particular background did you have in science before you were confronted with the case? Are you just a naturally curious person? How did you come to understand this and be able to recite it so well,

Judge Jenkins  24:45

My area of interest in school was not in the physical or scientific world. It was really in the world of how we treat one another. But I'm curious and I'm willing to be educated. This was an opportunity didn't need to hear from people who knew what they were talking about. So, we accumulated texts. My background was high school physics, some physical science when I had a brief stint in the Navy towards the end of World War Two, and the use of a very busy library card not Yes. Besides haunting the used bookstore.

Leah C. Schwartz  25:24

The opinion describes the problem of uncertainty and speaks to the differences between judicial and scientific processes. You write in the opinion; we remain uncertain still of our scientific certainties. What can you tell us about that tension between scientific truth and justice?

Judge Jenkins  25:48

Knowledge expands but knowledge changes. The concept of atoms twenty-five hundred years ago is different than the concept of atoms today. Knowledge expands knowledge changes. And even in the world of science, we learn something new every day, that changes what we've thought, not only for decades, but for centuries. And we have to understand knowledge itself is a moving target. In the litigation business, we're resolving a specific problem involving usually specific people or specific entity. We're dealing ordinarily with conduct, we're dealing ordinarily with portioning, who gets to pay for what bad things are done. But science itself is different in the 20th century, or the 21st century , the 22nd century. That is in the 16th century, we have to recognize that, we have to say, what did we know at this point in time. One of the problems in this case, in my opinion, is the failure to educate people, to inform people to warn people of the danger. And the different kinds of activities that exist, the kinds of preventing things that existed at Oak Ridge, or up in the state of Washington, or atomic energy was being dealt with. And people were told how to use film badges to alert them that they may have overexposure, how to use Geiger counters, how to wash themselves, how to go under house roofs, among other things, to limit the kind of access atomic fallout has. Once you're exposed, how you minimize the consequence, and to recognize that the consequence from Fallout will manifest itself sometimes for decades, as long as 25 or 30 years, you suddenly discover you've got cancer? And you wonder why. So that's a long way of saying knowledge changes, and we try to keep up with what we know and do the best we can with informing. 

Leah C. Schwartz  28:16

I see. Well, we know the final chapter of litigation, the government appealed, and the 10th Circuit reversed your ruling. And I'd like to just ask a simple human question. After all the work you put into this case, and the actual written decision, how did that feel?

Judge Jenkins  28:38

Well, I'm a pragmatist in the sense that I tried to do my job, and they tried to do their job. That's their job. As far as the practical aspect of it is concerned. I was disappointed, because I thought, the all-embracing the concept of discretion was one of those words that you have to get behind, discretion at a particular level is entirely different than discretion at a higher level. I have no problem with the fact that if those in charge said we need to conduct open air experiments, and we're going to hurt people, let's try to relieve them of what possible hurt exists. But if as a matter of policy, we recognize and understand we're going to hurt people. We got to tell them, we got to warn them. We got to educate them. And the discretion at a particular level of operations is considerably different than discretion at a high level of policy. So, I thought that at this point, quite frankly, the quoted supreme court matters, one of which came down after we had heard the case that the Supremes, I think, wouldn't let him in the door when somebody tried for sure.

Leah C. Schwartz  30:03

That's right. Cert, cert was denied. 

Judge Jenkins  30:06

That's been re-looked at since then. And indeed, had we been later on, I think that things would have been different. But they were what they were. But there was fallout from that social sense. And we ended up with Judge Mackay in his concurring opinion suggesting that Congress take a look at it. Senator Hatch thought as much and Stew Udall, who is one of the plaintiffs’ attorneys and Dale Harrison made good use of the opinion in approaching Congress. And Congress ended up after 23 years finding the King had a conscience and passed the first bill. And one virtuous thing they did was to enlarge those who are eligible for compensation from the United States. And just this year, they extended that, and I'd forgotten how far ahead they put it. But I think at least a couple of years. To enable people who've been in those thoughts, to make an application and receive, they've now paid out under the congressional action in excess of $2 billion. So, if the king finally had a conscience. And that's a virtue that we have to give them credit for and recognize that perhaps an expanded quantum the People have in medicine, by the recognition that the king can do no wrong concept. If you trace that back in history, they finally begin to believe their own material. They thought they were Gods agent on earth. God couldn't make a mistake. And they could make a mistake, because they are God's nature unless we're insulated from the reach of the law of growth and the law, the expansion of the law, and fortunately, final recognition on the part of decision makers that, hey, if we've hurt people, in conducting our own activity, we ought to recognize that we need to compensate people. So that's a plus and I take solace personally in the fact that we helped open the door to enable people to find things that you could get hurt even with low level radiation. That's why your weeks banned to include miners mining uranium, while you expand their science groves as well, the Goffman Morgan concept of hurt that extinguishes the concept of threshold is now well recognized, well, right. In scientific literature, maybe they were better off losing that point.

Leah C. Schwartz  33:01

Right. Actually, the trial lawyer that you mentioned, Dale Harrelson, who actually I think was awarded trial lawyer of the year in 1983. His work in this case, he represented the plaintiffs along with a larger group, but he was quoted as having said, I have to say that it is probably better that we didn't win, because if we had won, this act, being the Radiation Exposure Compensation Act would not have passed and compensation paid would have been limited to the few clients that we represented. Consequently, it is probably fortuitous that we ultimately lost litigation so that these people could be compensated, as you just said. And Dale Harrelson also notes you as, quote, the most fantastic trial judge he ever had the honor of appearing in front of, so I have to get that in there too.  Circling back to this concept of discretion that you were talking about ,Judge the 10th circuit reversed on grounds that the government's conduct fell within the, quote discretionary function exception to the tort claims act. Can you just briefly explain that exception for our listeners who might not be familiar with that? And I'm sorry, I'm kind of putting you on the spot. I'm sure it's been some time since you've looked at this and your...

Judge Jenkins  34:27

Well, the idea is that it's the government effects of policy, high level government, Congress agencies, they're given the responsibility of making policy of deciding objectives. They have power to exercise judgment, they have power at that level, the highest of level to exercise judgment and in doing so, in exercising their responsibility, they are insulated for  the government judgments that they make at that level, and high levels of policymaking. Now, when you get down to actual application where you're dealing with operations, you make your decision as to how you drive for example, your automobile, do you drive it carelessly, negligently, haphazardly, or do you drive it carefully? At that point, you have a duty to do things carefully. And while you exercise judgment, the judgment that your exercises is of a different kind, you have a duty to be careful. You have a duty to live up to a limitation or standard. And if you don't do it, the government has said under tort claim, the government's vulnerable liable. The effort is to have the government accountable for the decisions that they make at that particular level, policy level, atomic energy have at it. But if you're going to say at policy level, we're going to run an experiment, open air, and we're going to kill or maim or hurt. Let's understand what we're doing. And if we're doing that at a policy level, then we have to explain to people on how to be careful how to use the film badge, how to stay indoors, how to take a shower, not invite people to come explore and view explosions that occur. Tell people in nearby cities to warn them on an operation level, this is dangerous. We don't want to hurt people. We don't want to kill people. We don't want to have a consequence where there and it doesn't show up for 20 or 30 years. We want people to be safe. Well, what did you tell the folks outside? Different was what you told the folks inside? That's the illustration of the kind of decision making. You can call it discretion if you want to. But you have to recognize the discretion of that level. If you get behind the word as to what to correct, that you're talking about two different animals. Same word, different context. That's the best I can do at this point.

Leah C. Schwartz  37:35

That's great. That's great Judge. And I just have to say I really appreciated the way you explain this exception in your decision with the analogy you put forward, you say, "The government misperceived the intent of the act, for example, we choose the objective Rome, we choose the road the apian way, discretionary choice is both but then how we travel the way," is where what you're explaining is no longer a policy choice. I just really appreciated that analogy.  So, the 10th circuit came to an alternate conclusion about this discretionary function, as I mentioned, but in the decision of reversal says, "There was ample evidence for you as the trial judge to have found the people who designed the downwind safety program quote deviated from optimum practices based on available scientific knowledge." There are then several pages of the decision dedicated to all the various deviations that might otherwise support liability in the normal tort context or if this discretionary function exception had not been deemed to apply. But the court concludes, well, we have great sympathy for the individual cancer victims who have borne along the cost of the AEC's choices, the atomic energy Commission's choices, their plight is a matter for Congress. And I suppose that's the paragraph you mentioned that Senator Hatch and others seized upon to get across that legislative effort. 

Judge Jenkins  39:18

Oh, that's correct. 

Leah C. Schwartz  39:20

What about the subsequent activities and protest at the Nevada Test Site? Did you follow those? And I'm wondering, in particular, your reaction when the government put a hold on full scale weapons testing in, I believe it's 1992?

Judge Jenkins  39:37

I think it became a widespread appreciation in the scientific world that was attached to government. To recognize that we needed to be awfully careful, even today.

Leah C. Schwartz  39:51

Anything else, Judge, that you'd like to share about your experience with the case of Allen v. U.S. for our listeners?

Judge Jenkins  39:58

Well, it says what it says, we did the best we could with what we had to work with. And in the pragmatic world of fact, the court is limited but the record passes judgement without the problem and dispute resolution, whether in complex matters or not demands rational decision, not perfect knowledge, resolving cases so that people can spend their time doing something useful. That's one of the amazing things in the court system in the United States that you seldom find  anywhere else in the world. That's one of the areas where we need to be very circumspect, proud, helpful, affirmative. It's wonderful to have a place where people can come to get help in resolving personal problems, whether it be with government, corporate structures, or otherwise, I think the fallout cases, frankly, enlightened me in more ways than one, and made me appreciate the chance that people have of bringing their attention needed the attention they need, let's put it that, in help in resolving problems. I'm very proud of the follow up case and the consequence that it seems to have had the foundation for people to become acquainted with what's actually going on. Using the fancy language, I should say, whether it is in major wonder whether it is in plain process, whether complex or otherwise, it's the same process. You try to make the best judgment you can with the information that you have. And that's about it.

Leah C. Schwartz  41:48

Well, you should be very proud Judge. And I'm so grateful for your time today and speaking with us. Thank you for being so thoughtful in the words you have chosen in your career on the bench. We have used your words to great positive effect, I think in many contexts, so thank you very much.

Judge Jenkins  42:08

Oh, you're sure Welcome. I'm reaching the point where I've been around a long time.

Leah C. Schwartz  42:15

How old are you judge? If you don't mind my asking.

Judge Jenkins  42:17

I'm 95.

Leah C. Schwartz  42:19

Incredible. I just feel very lucky that you took the time to chat with us today and I feel so fortunate that I was the one who got to ask you these questions. I know you've been asked them before, but I think you gave a fresh spin. I think this will reach some listeners who might not have had a chance to hear you know your YouTube interview or some of your other interviews that you've done. So this is just really going to be great for the society.

Judge Jenkins  42:43

Thank you, thank you, thank you, I appreciate that very much.

Leah C. Schwartz  42:49

This episode was produced and edited by Tina Howell. Subscribe and download at the Historical Society's website 10th circuit history.org Or at Apple podcasts, Spotify or Stitcher

Tina Howell  43:02

Special thanks to Greg Kerwin Brent Cohen, Stacey Guillon, and Diane Bauersfeld.

Leah C. Schwartz  43:07

Thanks so much for listening