Tenth Circuit sides with plaintiffs in epic litigation over nuclear facility.
Scott Flaherty, The National Law Journal June 29, 2015
After 25 years of litigation over contamination from the Rocky Flats nuclear weapons plant in Colorado, a federal appeals court has ruled that Dow Chemical Co. and Rockwell International Corp. should be on the hook for nuisance claims by neighboring property owners that combined could total hundreds of millions of dollars.
In an unusual move, the U.S. Court of Appeals for the Tenth Circuit on June 23 ordered the lower court to reverse its ruling and enter judgment for the plaintiffs, instead of sending the case back for reconsideration. The court cited in part the extraordinary delay in resolving the case, noting the “titanic” amount of time and expense it has taken up, including a 2006 trial.
“We can imagine only injustice flowing from any effort to gin up the machinery of trial for a second pass over terrain it took 15 years for the first trial to mow through,” Judge Neil Gorsuch wrote for the majority.
Merrill Davidoff (near left) of Berger & Montague argued the appeal for the plaintiffs, roughly 12,000 Colorado property owners. Kirkland & Ellis’ Christopher Landau (far left) argued for the two defendant companies.Davidoff welcomed the Tenth Circuit’s ruling, saying the defense had employed “scorched earth” tactics throughout the entire litigation and noting that his clients have stuck it out for decades. “I feel especially good for them,” he said of the clients. “The class representatives really deserve applause.”
FURTHER APPEALS POSSIBLE
A Dow spokeswoman said in a written statement that the company was disappointed and considering further appeal options. She also said Dow is entitled to be indemnified by the U.S. Department of Energy because it operated Rocky Flats under a government contract.
Dow operated the Rocky Flats plant from 1952 to 1975, when Rockwell took over. In 1989, the Federal Bureau of Investigation found evidence that plant workers had for years mishandled radioactive waste, allowing it to leach into soil and bodies of water. The plant was shut down and Rockwell later pleaded guilty to environmental crimes.
The value of nearby property plummeted and, in January 1990, local landowners lodged a putative class action against Dow and Rockwell under state nuisance law and the federal Price-Anderson Act, which applies to lawsuits that allege liability for nuclear incidents. Price-Anderson limits companies’ liability in certain cases, with the government paying a portion of any damages.
After years of pretrial wrangling, a jury in early 2006 sided with the plaintiffs and awarded $377 million in damages. On appeal, the companies argued that the district court’s jury instructions included an overly broad definition of what constitutes a nuclear incident under Price-Anderson. In 2010 the Tenth Circuit agreed that the jury instructions were too permissive.
When the case went back to the district court, Berger & Montague engaged in “a little judicial jiu-jitsu,” as Gorsuch put it in his ruling. Conceding that the plaintiffs couldn’t prove that a nuclear incident had taken place, they abandoned the Price-Anderson claim, but continued pursuing the nuisance claim. They maintained that the 2006 jury verdict should allow the district court to enter judgment in the plaintiffs’ favor on that state law claim, without the need for a new trial.
PRE-EMPTION ARGUMENT REJECTED
The district court sided with Dow and Rockwell, which had argued that the plaintiffs’ earlier pursuit of federal Price-Anderson claims pre-empted their state nuisance claims. The Tenth Circuit panel rejected that argument. (None of the three judges involved in the ruling was part of the first appellate panel.)
“Dow and Rockwell appear to have persuaded even the plaintiffs that this case does not involve a nuclear incident within the meaning of the Price-Anderson Act,” Gorsuch wrote. “But that does not mean the defendants are insulated from any liability — or that the jury’s verdict is a pointless piece of paper.”
In a concurring opinion, Judge Nancy Moritz agreed that the case deserved a remand, but wrote that she would have sent it back for a new trial on the nuisance claim.
By Lisa De Bode, Al Jazeera America
04 June 15
In an interview with Al Jazeera America, Rice reflects on prison life, Iran and the fight against nuclear weapons
egan Rice, an 85-year-old nun who broke into the Y-12 National Security Complex in Oak Ridge, Tennessee, in 2012, along with fellow anti-nuclear activists Michael Walli and Gregory Boertje-Obed, was charged with sabotage and damaging federal property and spent about two years in federal prison. They were released on May 16 after the 6th U.S. Circuit Court of Appeals overturned their sabotage convictions while upholding their convictions for the less serious crime of injury to government property and ordering the original court to resentence them on the lesser crime. They don’t regret their actions, and remain devoted to their cause. “We accomplished what we set out to do.” Walli said. In an interview with Al Jazeera America in Queens, New York, on June 3, Rice reflects on her work.
What did a typical day in prison look like?
I would start with my own personal meditation time, as of 4 a.m. in the morning. I would be free and everybody would still be asleep. Breakfast would begin to be served between 6:30 and 7a.m. I joined everybody for that. Not too many wanted to go to that breakfast, they would sleep through it. It was very quiet at that time. Some people, very few, would be ready to go to a job, mostly in laundry. Some would go and clean. There weren’t enough jobs.
Did you have a job?
No, nobody ever asked me to.
What did you do?
I was writing letters, mostly, or reading, or composing, or reading the excellent articles that people would send, which was part of reading the letters, and responding. And it was possible to email from there. That was the only thing, we couldn’t be on the Internet, but we could receive and send emails. I was also meeting up with people, wanting to talk about personal problems, spiritual matters or their cases.
If we can go back to the moment when you broke into the Y-12 facility …
We don’t use the word “break in” because we didn’t break in. We entered the Y-12 facility, legally. And I’d just like to make the statement that all citizens are required to expose and oppose known crimes, equally responsible, according to their ability, and according to their situation. And we had known well of the crime of nuclear weapons, and we knew what was happening at Y-12, so we entered Y-12 through illegal fences, built for an illegal project, and therefore we had to enter in the way we could, others might enter through various other ways, but we found ourselves unable and we had waited so many years to do this, not consciously knowing but feeling it should be done. So we easily entered the base, in a very simple way, taking no time to cut a little slit that was very neat and to crawl through uninhibited, the four fences, the last three in about 15 minutes.
So when you entered that facility, and you got arrested, what went through your mind?
Thank goodness, we’re able to expose and oppose a known crime, in a very short period of time, in the most comprehensive way, that we could think about, which was using symbols, we labeled the building, and we suggested the effects of this building.
How do you look back on your action?
With great satisfaction. We did what we had planned to do, and we never dreamed we could ever do that.
What has resulted from that?
Well, obviously, it was misinterpreted as revealing a breach in the security system. And it is the breach of the security of the planet itself, so they’ve just attributed their crime to us.
What happens next? For you, for the anti-nuclear cause?
I’m not any more involved in this than any other human being in the world, I just happen to be able to at this point to be consciously involved in it because I’m not having children or grandchildren, being in a retired state, and yet having very good health.
But you’ll continue your activism?
Certainly, as long as I live. As long as it exists it’s going to be a focus, as it is for everybody.
What would you tell nuclear non-proliferation negotiators?
I think it could only be this: Let’s get down to brass tacks and just ban nuclear weapons, as many nations, I think 103, have decided to do. … If nobody had them nobody would want them. Nobody would need them.
Most people in the U.S. aren’t worried about nuclear proliferation on a daily basis.
Many people don’t even know we continue in this, unless there is the proper reporting. But the mainstream press in the U.S. had not even reported that it was happening.
What would you tell them?
Stop being under the control of the military industrial complex, corporate entities that profiteer from the plans at a false need for security or a false pursuit of security, for the sake of profiteering only. So let us transform these industries into that which is enhancing life and not destroying life. And it’s very possible. It would be far more profitable for everybody, not just the corporate elites.
How do you and your community plan to take that message forward?
We haven’t planned specifically [laughs], we’re going to continue, carry on what we’re doing, we’re writing newsletters, we focus on this, if we’re calling up people, say, how are you praying about the ban on nuclear weapons, comprehensive ban on nuclear weapons? Just spreading and planting seeds in people’s minds that this is possible, according to each one’s gifts.
What should have gone better in the Non-Proliferation Treaty negotiations?
There is always the effort of the major powers the U.S., Britain, France, the major nuclear powers, the Soviet Union, to hang on to the profiteering that this is providing, not to countries, but to international corporations that are profiteering off the manufacture of nuclear weapons. The rest of the world is being impoverished and polluted, actively destroyed as long as we keep this up, and don’t actively try to decontaminate and demilitarize, dismantle in a way that people get their just wages and they don’t all go into the top, less than one percent that hold the world’s economy.
What is your opinion on the political debate over lifting sanctions on Iran?
The U.S. has always had to have a Goliath created because it has played the role of Goliath, and to distract it from its superpower drive, it has to have somebody it’s defending itself against. Iran is just one of those, I would say, that has been selected, and of course the oil competition between the two countries has gone back to the turn of the century. But it’s Middle Eastern oil, not U.S. oil. Iranians are just like Americans, human beings, and they’ve been maligned. I’ve met many, many; they’re not too happy with the way some of their leaders are, but we’re not happy with the way some of our leaders are.