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?