Calhoun: Wake-Up Call

Rocky Flats property owners won't get their $924 million, Supreme Court says

Plutonium lasts forever, and so do the legal actions emanating from Rocky Flats Nuclear Weapons Plant, which operated sixteen miles upwind from Denver for close to forty years. Yesterday, the U.S. Supreme Court declined to reinstate the $926 million judgment that 12,000 property owners near the plant thought they'd won six years ago.

The property owners originally filed suit back in 1990, a year after the FBI raided Rocky Flats, searching for evidence of environmental crimes at the federal facility that was then operated for the Department of Energy by Rockwell International, and had previously been run by Dow Chemical Company.

Both Dow and Rockwell were named in the suit, which finally made it to U.S. District Judge John Kane's courtroom in late 2005. And after months of testimony -- including an appearance by Jon Lipsky, the FBI agent who'd led the raid, and weeks of deliberation, the ten jurors considering the case of Merilyn Cook, et al., vs. Rockwell International Corporation and the Dow Chemical finally reached a verdict.

On February 14, 2006, the jurors announced that they'd found in favor of the plaintiffs -- a class of 12,000 property owners who'd owned land around Rocky Flats in 1990 -- and awarded them $554 million, a record judgment in this state, for the damage done to their property. For the damage done to their lives. For the damage done by the lies.

The defendants -- whose pricy defense was covered by the government, which had indemnified the companies when they were running Rocky Flats -- appealed, arguing that Kane had improperly instructed the jury and claiming that scientific studies have shown no harm to residents' health or property. But when the 10th U.S. Circuit Court of Appeals heard the arguments in 2010, the members couldn't hear from many of those residents: They'd passed away while waiting to see justice done. So had one of the lead attorneys. So had Judge Sherman Finesilver, who in 1992 had signed off on the deal that let Rockwell and DOE officials off the hook for any actions at Rocky Flats -- the grand jury considering evidence seized during the raid had wanted to indict eight individuals -- and instead let Rockwell just pay an $18.5 million fine, less than the company had been paid in bonuses.

Justice was denied in the property-owners' case, too: The appeals court threw out the jury's verdict, which by then had grown to $926 million. So the plaintiffs asked the U.S. Supreme Court to review that opinion: "A landowner whose property is devalued because of plutonium contamination has suffered both an invasion of his property and genuine, immediate economic harm," the lawyers argued.

But yesterday, as the court released a flurry of decisions, including its ruling on SB-1070, Arizona's immigration law, it also noted, without further comment, that it had declined to consider reinstating the $926 million judgment. The plaintiffs must now decide if they want to start over....22 years after they first filed suit.

I wonder what they're thinking this morning. I wonder what Judge Kane is thinking. And I remember what he told the jurors right before the verdict was read in his courtroom more than six years ago:

"Through this trial, I had a clipping from one of the newspapers that said -- the headline was 'Rocky Flats Gets Its Day in Court.' It's a typical newspaper understatement," he told the jurors. "What you had is 69 days of this trial spread out from October 3 to the present time, and you deliberated all or part of seventeen days....

"So today is the last day of this, and I want -- I don't know how to say this as evocatively, as forcefully as I really want to, but we are all committed to the jury system in this country, and to allow citizens to be in this particular venue of the courtroom with a jury, to be government by the people, of the people, and you have served in that capacity far more than most other jurors do because of the length and time and the complexity of the case. You have set an example and a standard that all of us respect, and I want you to carry with you the notion that you are doing something to preserve, protect and defend the integrity of our government system by the work that you've put in, the concentration, the effort and the time."

Too bad the Supreme Court couldn't do the same.

Rocky Flats is being turned into a wildlife refuge, but you can still visit the old payroll office -- which is now the Rocky Flats Lounge, one of the town's great dive bars. Read about it and more in "Denver's best dive bars: old saloons for a new year."