Colorado landowner’s claim against EPA advances after judge denies motion to dismiss | Your money
Washington, DC, Aug. 30, 2022 (GLOBE NEWSWIRE) — Today, Judge Armando Bonilla of the United States Federal Claims Court issued a decision from the bench in favor of NCLA’s client and dismissing a motion to dismiss in Todd Hennis v. The United States of America. Mr. Hennis sued the United States for the physical forfeiture of his property without just compensation, in violation of the Fifth Amendment to the United States Constitution. The Environmental Protection Agency (EPA) caused an environmental disaster that preceded and culminated in the invasion, occupation, seizure and confiscation of Mr. Hennis’ downstream property, an action for which he has since sought redress. This decision means that the United States Federal Court of Claims allows Mr. Hennis’ lawsuit to proceed to discovery and, ultimately, to trial.
On August 5, 2015, the EPA destroyed the gate of the Gold King mine, located in Silverton, Colorado. In doing so, the agency dumped a toxic sludge of more than 3,000,000 gallons of acid mine drainage and 880,000 pounds of heavy metals into the Animas River watershed. The EPA was completely unprepared to prevent or control the contaminated streams that gushed out once it passed through the Gold King mine gate. The EPA eventually mobilized supplies and equipment to Mr. Hennis’ downstream property to address the immediate aftermath of his actions. Ignoring Mr. Hennis’s explicit instructions and the extent of the access granted, the EPA built a multi-million dollar water treatment facility on his land. The United States government has never paid Mr. Hennis compensation for the flooding or the appropriation of his property for public purposes. Instead, he squatted on his land for seven years and more.
Mr. Hennis did not voluntarily give the EPA permission to construct and operate a water treatment facility on his property. The EPA built the facility without his knowledge or consent, and then coerced him into allowing access to his land by threatening him with exorbitant fines (over $59,000 a day) if he exercised his property rights. Mr. Hennis ultimately refused to sign an access document, so the EPA is currently occupying his property under the agency’s administrative order and threatening him with fines if he disputes it.
The United States has incurred well over $44,500,000 in past response costs related to the environmental disaster it caused when it destroyed the Gold King mine gate. He estimated that he will incur an additional $20.7 million in future intervention costs at this site. None of these costs include compensation to Mr. Hennis for the physical taking of his property. As long as the EPA operates the water treatment facility, stores the wastes from those operations, conducts other investigative and remedial activities, and otherwise accesses and occupies Mr. Hennis’ property, it cannot not use it or take substantial steps to develop it. By denying the US government’s motion to dismiss, the US Federal Claims Court finally gave Mr. Hennis his day in court to challenge the EPA’s violation of his constitutional rights.
NCLA released the following statements:
“Today the Federal Court of Claims recognized what we have known for a long time. The EPA must answer for the wrong decisions it has made and the illegal actions it has taken since 2015. We are pleased that Mr. Hennis’ case is moving forward, and we look forward to presenting the facts about what the EPA made him – and took him.” — Kara Rollins, litigation attorney, NCLA
“Mr. Hennis has waited more than seven years for the EPA to be held accountable not only for the environmental disaster it created, but also for its decision to take his property without paying for it. With today’s decision Mr. Hennis will finally have the opportunity to pursue his claims against the United States and assert his constitutional rights.—Harriet Hageman, senior litigation attorney, NCLA
“While Mr. Hennis is eager and willing to help rectify the EPA’s tragic mistake, he must be compensated for the cost of doing so.” — Greg Dolin, senior litigation attorney, NCLA
ABOUT THE NCLA
NCLA is a nonpartisan, nonprofit civil rights group founded by a prominent jurist Philip Burger protect constitutional liberties against violations by the administrative state. NCLA’s public interest litigation and other pro bono advocacy works to tame the illegal power of state and federal agencies and foster a new civil liberties movement that will help restore the basic rights of Americans.
Judy Pino New Civil Liberties Alliance 202-869-5218 [email protected]
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