Good Fund, Ltd.-1972 v. Church
| Decision Date | 27 May 1982 |
| Docket Number | 75-M-1162 and 75-M-1296.,Civ. A. No. 75-M-1111 |
| Citation | 540 F. Supp. 519 |
| Parties | The GOOD FUND, LTD.—1972, a Texas limited partnership, and Good Financial Corporation, a Texas corporation, Plaintiffs, v. Marcus F. CHURCH and Marcus F. Church, Trustee; the Dow Chemical Company, a Delaware corporation; Rockwell International Corporation, a Delaware corporation; and the United States of America, Defendants. Perry S. McKAY, Charles C. McKay and the First National Bank of Denver, Personal Representative of the Estate of Marcus F. Church, Deceased, Successor to Marcus F. Church; Perry Sidway McKay, Successor to Marcus F. Church, Trustee, Plaintiffs, v. William C. ACKARD; Samuel Butler, Jr.; and Butler Investments, Ltd., a limited partnership, Intervenors, v. UNITED STATES of America; Dow Chemical Company; and Rockwell International Corporation, Defendants. GREAT WESTERN VENTURE, a Colorado Limited Partnership, Plaintiff, v. UNITED STATES of America; Dow Chemical Company and Rockwell International Corporation, Defendants. |
| Court | U.S. District Court — District of Colorado |
COPYRIGHT MATERIAL OMITTED
Douglas Tisdale, Brownstein, Hyatt, Farber & Madden, Denver, Colo., for The Good Fund, Ltd. and Good Financial Corp.
Howard K. Holme, Charles J. Beise, Peter F. Breitenstein, Fairfield & Woods, Denver, Colo., for Marcus F. Church and Marcus F. Church, Trustee, Perry S. McKay, Charles S. McKay and The First National Bank, and William C. Ackard, Samuel Butler and Butler Investments, Ltd.
William F. Schoeberlein, Sherman & Howard, Denver, Colo., for Rockwell Intern. Corp.
Jake J. Chavez, Sp. Asst. U. S. Atty., Sherman & Howard, Denver, Colo., for The United States of America.
James E. Elliott, Jr., Larry R. Martinez, Elliott, Martinez & Allman, Denver, Colo., for Dow Chemical Co.
Robert G. Pierce, Butler, Landrum, Pierce & Turner, Lakewood, Colo., Robert Montgomery, Montgomery, Little, Young, Campbell & McGrew, P. C., Denver, Colo., for Great Western Venture.
Malcolm M. Murray, Asst. Atty. Gen., Denver, Colo., for State of Colo.
H. Lawrence Hoyt, Asst. County Atty., Golden, Colo., for Jefferson County, Colo.
The extraordinary nature of the issues involved in this litigation has caused unique problems of case management. From the beginning it has been apparent that the traditional procedural model for pleading, discovery and trial would not be functional. Accordingly, for more than six years, I have directed the parties to proceed in particular phases, with differing emphases on the facts and the law. The objective has been to define and delimit the claims for relief in a manner which would permit a focus on the challenges to jurisdiction without exhausting the litigative resources of the parties and the court.
Of particular importance to an understanding of the process by which I have come to the conclusion that most of the claims in these consolidated cases must be dismissed for lack of jurisdiction is a recognition that the operative facts have been evolving while these cases have been in this court. Indeed, it may well be that ultimately the plaintiffs' present dilemma will be resolved through the actions of other branches and levels of government and that their freedom to act without judicial intervention will facilitate that result.
On October 22, 1975, plaintiffs, The Good Fund, Ltd.—1972, a Texas limited partnership whose purpose was to invest in underdeveloped land, (on March 25, 1977, Good Fund Investment Co., a Texas corporation, became successor in interest to the Good Fund, Ltd.—1972), and Good Financial Corporation, a Texas corporation, incorporated in 1969, which served as a general partner of Good Fund, Ltd., ("Good Fund"), filed the lawsuit designated 75-M-1111, based upon diversity jurisdiction, against Marcus F. Church, Marcus F. Church, Trustee, ("Church"), and the Dow Chemical Company. The subject matter of their complaint concerned the 1973 purchase by Good Fund from Church of certain real estate located in Jefferson County, Colorado, near the Rocky Flats Nuclear Plant. Plaintiffs alleged that because the land had been substantially contaminated from plutonium, americium and uranium, it was unfit for intended residential or commercial development. Based upon common law property theories, plaintiffs sought rescission, actual, and punitive damages from Church. Asserting claims of common law torts of ultra-hazardous activity, negligence, nuisance and trespass, and inverse condemnation under the Colorado Constitution, plaintiffs sought actual and punitive damages from Dow.
On October 30, 1975, plaintiffs, Marcus F. Church, and Marcus F. Church, Trustee, (in 1979, Marcus Church died and January 4, 1980, Perry S. McKay, Charles C. McKay, and the First National Bank, personal representatives for the estate of Marcus F. Church, were substituted as the party by the court), filed the lawsuit designated 75-M-1162 against the United States of America, the Dow Chemical Company, and North American Rockwell Corporation (designated Rockwell International in the Amended Complaint), ("government defendants"), with jurisdiction under 28 U.S.C. §§ 1331, 1332, and under the Federal Tort Claims Act, 28 U.S.C. §§ 1346 and 2671 et seq. Church alleged that from 1953 to the present, he and his family have owned 1,440 acres and certain water rights in Jefferson County, Colorado, adjacent to the Rocky Flats Plant. Operations at the plant include processing radioactive materials, primarily plutonium. There have been admitted escapes of unknown amounts of such material with an uncertain degree of deposition on the subject land. The plaintiffs contend that the presence of radioactive material on the land presents a health hazard and makes the property unusable.
On November 12, 1975, the Church defendants filed a motion in 75-M-1111 for summary judgment on claims one through three (mutual mistake, failure to disclose, and express misrepresentation), and to dismiss claims four through seven (express warranty of marketable title, and joinder of Church to prosecute tort actions against the United States). A hearing was held on this motion July 1, 1976, and the matters were taken under advisement. A ruling on those motions was deferred because of the dependence of those claims upon the factual issues involved in 75-M-1162.
On December 4, 1975, plaintiff Great Western Venture, ("Great Western"), a Colorado limited partnership, filed the lawsuit designated 75-M-1296, against the United States of America, Dow Chemical Company, and Rockwell International Corporation, based upon jurisdiction under 28 U.S.C. §§ 1331, 1332, and under the Federal Tort Claims Act, 28 U.S.C. §§ 1346 and 2671, et seq. Great Western alleged that on or about November 9, 1970, it purchased 243 acres in Jefferson County, Colorado, adjacent to the Rocky Flats Plant, which property has been contaminated by radioactive substances, destroying its value, for which all defendants are liable on common law theories of negligence and strict liability. It is also alleged that Dow and Rockwell are liable on theories of trespass and nuisance, and for exemplary damages.
On December 30, 1975, answers were filed by the government defendants in all three cases.
On April 16, 1976, counsel for Good Fund filed an amended complaint in 75-M-1111, adding Rockwell and the United States as defendants on claims for common law torts of strict liability for ultrahazardous activity, negligence, nuisance and trespass. Additionally, claims were alleged against Rockwell for taking and inverse condemnation under the state constitution based on diversity jurisdiction, and punitive damages are sought against Rockwell.
After a hearing on June 7, 1976, all three actions were found to have common questions of law and fact, and they were consolidated by an order entered June 8, 1976.
Initially, it was the view of this court that the complexity of this litigation could be reduced by placing the primary focus on the factual questions of what was on the subject land, in what amounts and with what effects on the use of that land.
Accordingly, at a pretrial conference on November 16, 1976, the parties discussed a proposal that the government carry out a soil sampling and testing program to assess what radioactive materials were present upon plaintiffs' lands and to provide reasonably reliable scientific data on the amounts and significance of such deposits. The government took the initiative to design and conduct procedures to provide that data. The traditional burden of proof upon the plaintiff was altered because, as agreed by the parties and the court, the necessary testing was beyond the means of a private party, both economically and with respect to access to the necessary scientific technology, including qualified laboratories. There was disagreement about the sampling and testing protocol. To resolve those disputes and to lay a foundation for admitting the data summaries as evidence in the ultimate trial, some 20 days of evidentiary hearings were held, including a tour of the Rocky Flats Plant. Those hearings were on Saturdays between January 8, 1977, and September 13, 1977, and a mass of documentary exhibits was received. The concerns in those hearings involved the manner in which samples were to be collected, the preparation of the samples for analysis, the methods of analysis and the elements to be analyzed. On November 4, 1977, the parties entered into a stipulation concerning quality controls in the defendants' soil testing program. The sampling and testing program proceeded during 1978 and 1979. The raw data was submitted in Exhibit A to the government's First Pre-Trial Statement, filed January 17, 1979. After additional testing in July, 1979, the Church plaintiffs filed a statement of their position on admissibility. They agreed to accept the raw...
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