The determination that no charges will be brought against Hillary Clinton for using a private email server that could have (and probably did) result in compromising highly classified material bothers me on several levels. I and others at the Rocky Flats Plant were required to carefully protect classified information. It was made abundantly clear that carelessness with classified reports could have dire consequences, to include loss of your clearance (and therefore your job) and possible criminal charges. I’ve never believed Ms Clinton’s assertion that she had never sent classified information on her private server and that nothing ever sent was marked classified. We were briefed on what would be classified, and we treated incomplete reports as classified from the moment we began drafting a report. It was deemed “born classified.” I’m confident Ms. Clinton didn’t need a secret or top secret stamp on much of the information to know it was classified and should be treated as such.

On another level, it is easy compare this situation to the FBI raid on Rocky Flats that found nothing alleged in the search warrant. The Justice Department persisted in continuing the investigation with a Grand Jury in a desperate search for why they conducted the raid. They refused to give up and admit they were wrong. They eventually forced Rockwell to plead guilty to crimes that would not have been crimes anywhere else. Almost all of the items in the plea bargain referred to environmental issues that had been reported in detail by the plant well before the raid and, in the words of the plea bargain, had no negative offsite effects. All the raid accomplished was frightening local citizens, but the Justice Department persisted in forcing a guilty plea that helped save their reputations. Apparently Clinton’s reputation was judged to be more important than the reputation of the FBI.

Why did the FBI not find a “Martha Stewart” type of violation in Hillary’s case? Stewart had been accused of insider trading, no evidence was found to support the claim, but she was convicted of lying to federal investigators (or at least giving them conflicting information). Why was Hillary given a pass despite the fact she repeatedly lied? The only logical answer is that Hillary was treated differently because of her political position.

This makes me very sad for the country. The laws are apparently really only for the “Little People.” To paraphrase Orwell’s Animal Farm, we “Little People” have naively believed all people are equal. We now know that some people are more equal than others.

I posted a commentary two weeks ago about the tentative $375 million settlement of a lawsuit filed about 26 years ago by landowners near the plant (it requires approval by a judge). I was unaware that the settlement had been in the works for almost a year. A June 24, 2015 article by Alison Frankel gives details of the history of what has come to known as the Cook V Rockwell Case and what led to the recent announcement. A quick summary is that:

• In 2005 a jury decided a class of property owners near Rocky Flats deserved multi-million dollar compensation for damage the plant had done to their property
• In 2011 the 10^th U.S. Circuit Court of Appeals overturned the verdict, ruling the “…trial judge was too expansive in instructing the jury about what constitutes a nuclear incident” and that there was no proof of actual damage
• In June 2015 a different 10^th Circuit panel ruled two to one to “…gave back what the appeals court took away in 2011”

I’ll provide my simplistic (with help from people closer to the case) explanation. The jury verdict was based on the fact that the original lawsuit was filed under the Price-Anderson federal law involving claims against nuclear facilities for “nuclear incidents.” The jury verdict in favor of the homeowners was overturned because Price-Anderson requires proof of actual damage, and not just a “perception of damage.” The ruling by the new panel determined that the restrictions on determining damages should be based on Colorado “nuisance laws,” which have a much lower burden of proof. The plaintiff lawyers told the panel “…they didn’t need to retry the nuisance claims because the jury had already reached a nuisance verdict…” (I’ll argue with that, since the reason the jury’s verdict was vacated was that the judge had given incorrect instructions.)

Regardless of what happened previously, apparently Dow, Rockwell, and the Department of Energy determined that new determination by the 10^th Circuit panel forced them to settle a case that had no real legal basis or actual damages. My warning to them, made with no actual knowledge of legal things, is that they have opened up new liabilities that are already being worked. A group calling themselves “Rocky Flats Downwinders” have initiated “…a community survey designed to compile health impacts of those living in the area.” They say they are “…hoping to hear from anyone who lived here during the time of 1952 through 1992,” They think publicity from the settlement between Rocky Flats and homeowners will spark more interest, “We think we can piggy back on that in terms of using the information that is going to be learned through the claimant process.” Metro State University of Denver, University of Colorado and Colorado State University professors will study the surveys and compile the data from the former residents, who must have lived in the area from the plant east to Interstate 25 during the years the plant was in operation.

My prediction is that trial attorneys all over Colorado are studying the nuisance laws and licking their chops over the idea court awards can be made against companies and individuals who can be sued for perceived or maybe even real nuisances. I’m curious about the amount of my eventual award regardless of the fact I was well informed about the lack of any risk from Rocky Flats when I bought our current home downwind of the plant and moved in with my family. I doubt this is the last of the story.

Two operators of the Rocky Flats Plant have agreed to settle a lawsuit filed by nearby homeowners in 1990 after the Justice Department raid of the plant. The announced settlement is $375 million. The homeowners had accused Rockwell International (now owned by Boeing) and Dow Chemical of devaluing their property with plutonium releases. The settlement, if it is approved by a federal judge, would involve as many as 15,000 homeowners in an area involving neighborhoods surrounding Standley Lake. The people who owned property in that area must have owned the home on June 7, 1989, which was the first day of the Justice Department raid. Anyone who sold their property before that date or bought property after that date will be excluded. Approval of the settlement and establishing a claims process could be “months away.”

There are several aspects of the settlement that make no sense to me. A jury ruled in favor of the plaintiffs in 2006 after at least one juror who had been against that ruling was thrown off the case after complaining to the judge about harassment from those who favored the ruling. The primary “evidence” that had been presented was that (and I give attribution to someone else who offered this) was that “…the FBI had raided the plant, thus something bad HAD to have been going on…and lots of people had negative things to say about the plant…” The judge awarded $926 million, but the award was thrown out by the appeals court based on improper instructions from the judge. The rejection was based on the fact that an irrational fear was not adequate proof of harm. The Supreme Court refused to take the case. Thus we have the mystery of why Dow and Rockwell agreed to a settlement when it had been legally determined the plaintiffs weren’t damaged unless the plaintiffs went back to trial and proved damage they couldn’t prove in the first trial.

One part of the answer to why the two companies settled is that the Department of Energy is expected to pay the bill because federal contract law indemnifies the companies. DOE agreed to the settlement, so taxpayers will ultimately pay something to about 15,000 homeowners after the attorneys subtract their nice multimillion dollar fee from the total award. There’s at least one more mystery. Most actual environmental damage occurred while Dow was managing the plant and Rockwell has agreed to pay most of the settlement.

See my book “An Insider’s View of Rocky Flats, Urban Myths Debunked” if you want to learn more about releases from the plant and the raid. The Kindle version costs $3.99, and it has some great pictures including two different kinds of multi-kilogram plutonium ingots. You might want to entertain yourself by reading 25 reviews of the book on Amazon. The reviews can serve as a primer for the controversies surrounding the Rocky Flats Plant. One review gives the book a “Poorly written” one star. Another gives it a “Good Read” and five stars. (The average of the 25 is 4 stars.)

After that bit of self promotion, perhaps the judge will refuse to approve the settlement, which I believe would be the reasonable thing to do. However, I’ve learned there is seldom anything that is based on reason when it involves the Rocky Flats Plant. I observe in my book that the real cause of fear from landowners around Rocky Flats was the raid, which found nothing that hadn’t already been known and didn’t identify anything that should concern the neighbors of the plant. I would agree if the settlement had been made against the Justice Department officials who raided the plant based on bad information and then didn’t have the courage to admit they had been duped.