Good Fund, Ltd. -- 1972 v. Church

Good Fund, Ltd. — 1972 v. Church

Civ. A. Nos. 75-M-1111; -1162; -1296 (540 F. Supp. 519) (D. Colo. May 27, 1982)

ELR Digest

The court dismisses for lack of jurisdiction all claims against the United States and its contractors for radioactive contamination of land near the Rocky Flats Nuclear Plant weapons facility. This case began in 1975 as an action by a land buyer against the seller and a government contractor over radioactive contamination, but soon grew to include successors in interest to the parties, other contractors, and the government itself. Through the course of the litigation, the court considered motions to dismiss negligence, strict liability, nuisance, and trespass claims against the government and its contractors. The court now sees those claims as presenting two general issues: (1) defendants' duty of care and (2) the court's jurisdiction to define that duty. In addressing these issues, the court considers whether (1) sovereign immunity extends to protect contractors, (2) the government can be held strictly liable for any acts, (3) state tort law has been preempted by the Atomic Energy Act (AEA), (4) an action will lie for trespass, (5) fear of future harm can be a redressable injury, and (6) the claims amount to inverse condemnation over which only the Court of Claims has jurisdiction. However, the court decides the claims entirely on jurisdictional grounds.

The court rules that the doctrine of primary jurisdiction requires it to bow to the special competence of the Environmental Protection Agency (EPA) to determine whether the radioactive emissions from Rocky Flats have damaged plaintiffs' lands. Under EPA's "Proposed Guidance on Dose Limits for Persons Exposed to Transuranium Elements in the General Enplaintiffs argued that the guidelines are not final, without legal effect, scientifically inaccurate, and promulgated in response to this litigation. Other plaintiffs added that the EPA guidelines are inapplicable because the United States by agreement transferred to Colorado exclusive authority to regulate the general environment for public health and safety with respect to uranium and plutonium, and the Colorado standard is stricter than the EPA standard. The court rules that although the AEA allows state-federal agreements, the United States cannot transfer authority to regulate discharges from nuclear facilities. Thus, EPA may still rule on the safety to discharges from Rocky Flats. Further, Colorado's existing standards apply only to exposure of construction workers. All other charges against the proposed guidance are not ripe for review, because the guidance is not yet final.

However, having decided that federal rather than state agencies have the power to determine whether plaintiffs have been injured, the court declines to review EPA's standards relating to Rocky Flats. The court holds the safety of the plant to be a political question. Noting the lack of judicial expertise in policy making and the traditional deference the courts give to legislative and executive judgments on military affairs, the court rules that it lacks jurisdiction to review the government's findings on the safety of the facility. The court dismisses all claims against the government and its contractors.

The full text of this opinion is available from ELR (30 pp. $4.25, ELR Order No. C-1303).

Counsel for Plaintiffs
Douglas Tisdale
Brownstein, Hyatt, Farber & Madden
Suite 1880, 410 17th St., Denver CO 80202
(303) 534-6335

Counsel for Defendants Church et al.
Howard K. Holme, Charles J. Beise, Peter F. Breitenstein
Fairfield & Woods
1600 Colorado Nat'l Bldg., 950 17th St., Denver CO 80202
(303) 534-6135

Counsel for Defendant Rockwell Int'l Corp.
William F. Schoeberlein
Sherman & Howard
2900 First of Denver Plaza, 633 17th St., Denver CO 80202
(303) 893-2900

Counsel for Defendant United States
Jake J. Chavez, Special Ass't U.S. Attorney
Sherman & Howard
2900 First of Denver Plaza, 633 17th St., Denver CO 80202
(303) 893-2900

Matsch, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]