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Colorado Federal Appeals Court Vacates Rocky Flats $926 Million Landowners' Award

As reported in the Denver Post, the Tenth Circuit Court of Appeals in a September 10, 2010 opinion reversed a $926 million award made to an estimated 15,000 owners of property south of the former Rocky Flats nuclear weapons plant, a short distance northwest of Denver.
The award was made in a lawsuit filed in 1990 and tried in a four- month long trial in 2006. The plaintiffs showed that their property had been polluted by plutonium from the weapons plant. The appeals court remanded the case to the U.S. District Court in Colorado because of erroneous jury instructions. In effect, the court held that the plaintiffs were required to prove actual damage to their property caused by the plutonium contamination, rather than merely proving that their property values decreased.
Dow Chemical Co. and the former Rockwell International Corp. successively operated the plant for the Department of Energy from the 1950s until 1989, when the plant was closed for safety and environmental reasons.
The appellate court said, “on remand, Plaintiffs will be tasked with producing additional evidence that could support that a nuclear incident occurred, in the form of ‘loss of or damage to property or loss of use of property.’ ”
This 46-page opinion starkly demonstrates that the strict letter of the law and plain old common sense sometimes do not go hand-in-hand. And we say this with the utmost of respect for the law, the courts and the judges.
Hypothetically, if you are a landowner whose property has been polluted by plutonium and you want to sell the land, would a prospective buyer who is aware of the pollution really care if the property has in fact been damaged, irrespective of the niceties of the law? Who should bear the cost of the diminished value of the property, even if it is caused by the buyer’s honest, yet perhaps speculative fear that the property has been damaged? Why should the innocent landowners have to wait 20 years and another unknown number of years for this litigation to end?

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