U.S. appeals court backs claim under state law in Rocky Flats saga

DENVER (Reuters) - A U.S. appeals court ruled on Tuesday a decades-old pollution case over nuclear weapons production in Colorado should be sent back to the district court which in 2006 ordered companies that ran the facility to pay damages of $353 million.

“This long lingering litigation deserves to find resolution soon,” wrote one of the judges, Neil Gorsuch, about a case dating back to the 1980s, when Dow Chemical Co and a unit of Rockwell Automation Inc were involved in operating the Rocky Flats plant.

After a four-month trial nine years ago, a federal jury awarded the nine-figure damages to 12,000 property owners who said their land was contaminated by the facility, which made triggers for nuclear bombs 16 miles (26 km) northwest of downtown Denver.

The companies appealed, arguing the district court failed to instruct the jury properly. The 10th U.S. Circuit Court of Appeals agreed and in 2010 it vacated the judgment and remanded the case for further proceedings.

The companies had successfully argued that the plaintiffs failed to prove a “nuclear incident” took place under the terms of the federal Price-Anderson Act, which among other things can limit operators’ liability.

But the property owners countered that they had proved a nuisance claim case under state tort law. The companies challenged those assertions, and the district court sided with them, returning the case to the appeals court.

Writing for the majority in Tuesday’s verdict of a three-judge panel, 10th Circuit Judge Gorsuch said that in two separate appeals spanning many years the defendants had found “no lawful impediment to the entry of a state law nuisance judgment on the existing verdict.”

He said the lawsuit took a “titanic” 15 years to reach the jury the first time round, and he said all parties had endured staggering delays and expenses.

“We can imagine only injustice flowing from any effort to gin up the machinery of trial for a second pass over terrain it took fifteen years for the first trial to mow through.”

When the district court receives this case, Gorsuch wrote, “it should proceed to judgment on the existing nuisance verdict promptly.”

Dow Chemical spokeswoman Rachelle Schikorra said the company was disappointed by the decision.

“We are reviewing our further appellate options, including seeking rehearing by the Tenth Circuit and/or review by the U.S. Supreme Court,” Schikorra said.

“Because Dow operated Rocky Flats under a government contract, it is indemnified by the Department of Energy,” she said. “As a result, any defense costs and/or judgments will have no financial impact on Dow.”

Representatives of Rockwell did not immediately respond to a message seeking comment.

Reporting by Daniel Wallis; Editing by Eric Walsh and Eric Beech