A friend loaned me a pamphlet he received about the settlement, which had been sent from the United States District Court for the District of Colorado. The proposed $375 million dollar settlement involves people who owned property near the Rocky Flats Plant on June 7, 1989 or are heirs to someone who did. A rough area of the settlement area begins from the plant and extends to slightly below 120th on the north, a bit beyond Wadsworth but not to Highway 36 on the east, and more or less to 72nd on the south in a sort of circular outline. There is a website that allows you to enter an address to see whether it is included in the area.
The class action lawsuit was originally filed January 30, 1990 under the Price-Anderson Act and under the Colorado state nuisance and trespass law. The jury found for the plaintiffs, but the Tenth Circuit Court of Appeals vacated the judgment in 2010. “The Tenth Circuit held that the Price-Anderson Act required Plaintiffs to prove additional and more severe harm than would be required under Colorado state nuisance law.” My interpretation of the ruling was that Price-Anderson required actual damages to have occurred and that perceived damages were inadequate to justify an award. It was also ruled that jury instructions were correct for some aspects but incorrect in others.
The complicated legal tussles continued with the plaintiffs asking the U.S. Supreme Court to overturn the Tenth Circuit’s action. I thought the Court had decided not to hear the case, but the pamphlet states that the settlement was reached “…before the Supreme Court issued a ruling on the petitions… The plaintiffs asked the Tenth Circuit to consider an award under the Colorado nuisance law, and the Court agreed, ruling “…that Plaintiff’s nuisance claims were not preempted by the Price-Anderson Act.”
Paragraph 7 of the pamphlet has some interesting information under the title of “Why is there a Settlement with Dow and Rockwell?” “Without this proposed Settlement, there is a risk of years of more delay, and a risk that Class Members would never recover anything, depending on how the Supreme Court and/or the District Court might rule on motions pending before those courts…If the Supreme Court, for example, agreed to review the case, the result could have been that the Plaintiff’s claims were preempted, and so Class Members would recover nothing. Even if the Supreme Court ruled for the Plaintiffs, the District Court could have ruled against class certification or ruled that Plaintiff’s claims were preempted by federal standards.” “In short, there was risk of not recovering anything, and risk of years more of delay.” The risks to the plaintiffs cause me to wonder why Dow, Rockwell, and DOE (the agency that will have to pony up the money) decided to settle. I think I can see why the lawyers for the plaintiffs agreed to the settlement. They could either get 40 percent of the $375 million or wait years and risk that some court would come to logical conclusion that no award should be made.
The pamphlet discusses what could be paid to those who owned land in the area of the settlement on June 7, 1989. Attorney’s fees of 40% and other expenses will be deducted before the remaining money is allocated. One expense will be “service awards” totaling $780,000 divided among five “Class Representatives.” The money remaining will be awarded based on records of appraisals in 1989. Residential properties will receive 81.537%, commercial 3.167%, and vacant land 15.267%.
Let’s review. Dow and Rockwell weren’t found to have caused actual damages to homeowners or the value of their property. The plant didn’t become a nuisance until the FBI and EPA scared all the local residents with a widely publicized raid of the plant that found nothing to substantiate the claims in their search warrant. The absurdity of the eventual legal settlement that followed is described in my book “An Insider’s View of Rocky Flats, Urban Myths Debunked.”
People calling themselves “Downwinders” are positioning themselves to go after “free government money.” I predict that group will extend to folks living in Limon, Colorado, although it might go to Goodland, Kansas or even Topeka. In fact, why stop there when only a perception of damage is required? I’m going to be watching very carefully for instances where I can file a lawsuit under the nuisance act. I don’t have to suffer any damages. Only a perception of damages is required, and I’m going to be sharpening my perception skills.
I find it interesting that I received a messages from relatives in Phillipsburg and Topeka, Kansas after typing that the “Downwinders” might want to extend the next lawsuit to across Kansas (or beyond). The ad telling people to sign up for the settlement had just aired on local television. The lure of “free government money” attracts significant attention!