Takings Case: Judge allows EPA to be hauled into court over 2015 Gold King Mine disaster

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The party responsible for the biggest environmental disaster in U.S. history may soon have to defend itself in court thanks to a recent ruling by a federal judge in Washington, D.C. in response to a lawsuit filed by the New Civil Liberties Alliance (NCLA).

What makes the case unique is that the accused polluter is none other that the U.S. Environmental Protection Agency (EPA), whose handling, or mishandling, of the August 2015 Gold King Mine disaster is being challenged by a Colorado resident who suffered harm as a result of the agency’s action.

EPA’s botched effort, using a contractor paid by the agency, to seal a long-abandoned goldmine near Silverton in Southwest Colorado resulted in a blowout that sent 3 million gallons of acid mine drainage and sludge and 880,000 pounds of metal spilling into the nearby Animas River. The river turned yellow, and the waste and other gunk were carried downstream into New Mexico and as far as Lake Powell in California. Not only was the environmental damage significant, but people with properties in the path of the disaster were caught up in the spill.

One of those was Colorado resident Todd Hennis on whose property the old Gold King Mine was located. In the aftermath of the spill, EPA moved supplies and heavy equipment onto Hennis’s land and installed a multi-million-dollar water treatment facility there – all without the property owner’s permission.

Physical Taking of Property Without Just Compensation

It took EPA seven years to clean up the mess it had made during which time it was an uninvited guest on Hennis’s property. Hennis says EPA “squatted” on his land and kept him from developing his property. With NCLA’s backing, he is now suing EPA for the physical taking of his property without just compensation in violation of the Fifth Amendment to the U.S. Constitution.

“Mr. Hennis has been waiting over seven years for EPA to be held accountable not only for the environmental disaster it created, but its decision to take his property without paying for it,” Harriet Hageman, senior litigation counsel fir the NCLA said in a statement. Applauding Federal Claims Court Judge Armando Bonilla’s decision to allow the suit to go forward, Hageman added, “With today’s decision, Mr. Hennis will finally have the opportunity to pursue his claims against the U.S. and have his constitutional rights vindicated.”

Fir its part, EPA says the water treatment plant was built to mitigate the damage from the spill, and that the agency had come to an oral agreement with Hennis on the matter that is memorialized in at least 16 written, Cowboy State Daily reported (Sept. 12).

Hennis says this agreement was coerced and is invalid because EPA threatened him with fines of up to $59,000 per day if he didn’t comply. Cowboy State Daily also notes that there are court documents showing Hennis warned EPA that its proposed mine cleanup would lead to a natural disaster four years before the blowout occurred. This takings case with a twist could well wind up being resolved in the Supreme Court, a process that could take another couple of years.

After defeating Rep. Liz Cheney in the Republican primary in August, NCLA attorney Hageman, who specializes in water and land issues, was elected to Congress from Wyoming on Nov. 8 and will begin her term in January. Washington, D.C.-based NCLA is a nonpartisan, nonprofit is a civil right organization dedicated to protecting constitutional freedoms from violations from the administrative state.

  • Bonner Cohen, Ph. D.

    Bonner R. Cohen, Ph. D., is a senior policy analyst with CFACT, where he focuses on natural resources, energy, property rights, and geopolitical developments. Articles by Dr. Cohen have appeared in The Wall Street Journal, Forbes, Investor’s Busines Daily, The New York Post, The Washington Examiner, The Washington Times, The Hill, The Epoch Times, The Philadelphia Inquirer, The Atlanta Journal-Constitution, The Miami Herald, and dozens of other newspapers around the country. He has been interviewed on Fox News, Fox Business Network, CNN, NBC News, NPR, BBC, BBC Worldwide Television, N24 (German-language news network), and scores of radio stations in the U.S. and Canada. He has testified before the U.S. Senate Energy and Natural Resources Committee, the U.S. Senate Environment and Public Works Committee, the U.S. House Judiciary Committee, and the U.S. House Natural Resources Committee. Dr. Cohen has addressed conferences in the United States, United Kingdom, Germany, and Bangladesh. He has a B.A. from the University of Georgia and a Ph. D. – summa cum laude – from the University of Munich.

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