Cook, et al v. Rockwell International Corp., et al

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[9794745] Reversed and Remanded; Terminated on the merits after oral hearing; Written, signed, published; Judges Murphy (authoring), Anderson and Holmes. Mandate to issue. [08-1224, 08-1226, 08-1239]

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Cook, et al v. Rockwell International Corp., et al Case: 08-1224 Document: 01018490355 FILED Date Filed: 09/03/2010 Page: 1 Doc. 0 U n i t e d States Court of Appeals T e n t h Circuit S e p t e m b e r 3, 2010 PUBLISH U N I T E D STATES COURT OF APPEALS T E N T H CIRCUIT E l i s a b e t h A. Shumaker C l e r k of Court M E R I L Y N COOK; WILLIAM S C H I E R K O L K , JR.; DELORES S C H I E R K O L K ; RICHARD BARTLETT; L O R R E N BABB; GERTRUDE BABB; M I C H A E L DEAN RICE; BANK W E S T E R N ; THOMAS L. DEIMER; R H O N D A J. DEIMER; STEPHEN S A N D O V A L ; PEGGY J. SANDOVAL; S A L L Y BARTLETT, Plaintiffs-Appellees Cross-Appellants, v. R O C K W E L L INTERNATIONAL C O R P O R A T I O N and DOW CHEMICAL COMPANY, Defendants-Appellants Cross-Appellees, ___________________________ A M E R I C A N NUCLEAR INSURERS; N U C L E A R ENERGY INSTITUTE, INC., A mi c i Curiae. N o s . 08-1224, 08-1226 a n d 08-1239 A P P E A L FROM THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF COLORADO ( D . C . NO. 1:90-CV-00181-JLK) Dockets.Justia.com Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 2 C h r i s t o p h e r Landau, P.C., Kirkland & Ellis LLP, Washington, DC (John K. C r i s h a m and Philippa Scarlett, Kirkland & Ellis LLP, Washington, DC; David M. B e r n i c k , P.C., Douglas J. Kurtenbach, P.C. and Steven C. Seeger, Kirkland & E l l i s LLP, Chicago, IL, with him on the briefs), Attorneys for DefendantsAppellants/Cross-Appellees. M e r r i l l G. Davidoff, Berger & Montague, P.C., Philadelphia, PA (Peter Nordberg a n d David F. Sorensen, Berger & Montague, P.C., Philadelphia, PA; Gary B. B l u m and Steven W. Kelly, Silver & DeBoskey, P.C., Denver, CO, with him on t h e briefs), Attorneys for Plaintiffs-Appellees/Cross-Appellants. M a r j o r i e J. Berger, American Nuclear Insurers, Glastonbury, CT; Simon A. Steel, H a r k i n s Cunningham LLP, Washington, DC; and John G. Harkins, Jr., Harkins C u n n i n g h a m LLP, Philadelphia, PA, on the brief for American Nuclear Insurers, A mi c u s Curiae. E l l e n C. Ginsberg, Esq, Michael A. Bauser, Esq., Anne W. Cottingham, Esq., and J e r r y Bonanno, Esq., Nuclear Energy Institute, Inc.; Donald E. Jose, Esq., Jose & A s s o c i a t e s , Malvern, PA; and Charles F. Rysavy, Esq., K&L Gates LLP, Newark, N J , on the brief for Nuclear Energy Institute, Inc., Amicus Curiae. B e f o r e MURPHY, ANDERSON, and HOLMES, Circuit Judges. M U R P H Y , Circuit Judge. I. INTRODUCTION T h e owners of property near the former Rocky Flats Nuclear Weapons P l a n t ("Rocky Flats") filed a class action against the facility's operators under the P r i c e - A n d e r s o n Act ("PAA"), alleging trespass and nuisance claims arising from t h e release of plutonium particles onto their properties. The district court c o n d u c t e d a lengthy trial, resulting in a jury verdict in favor of the plaintiff class. -2- Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 3 A f t e r a series of post-trial motions, the district court entered judgment in favor of P l a i n t i f f s , awarding a total of just over $926 million, inclusive of compensatory d a ma g e s , punitive damages, and prejudgment interest. Defendants, Dow C h e mi c a l Company ("Dow") and Rockwell International Corporation ( " R o c k w e l l " ) , timely appealed the judgment, and the class members filed a timely cross-appeal. Exercising appellate jurisdiction pursuant to 28 U.S.C. 1291, this court R E V E R S E S and REMANDS the case to the district court. We DIRECT the d i s t r i c t court to vacate the judgment and conduct further proceedings not i n c o n s i s t e n t with this opinion. II. BACKGROUND R o c k y Flats, located near Denver, Colorado, was established by the United S t a t e s Government in the 1950s to produce nuclear weapon components. The g o v e r n me n t contracted with Dow to operate the facility from 1952 to 1975, and t h e n with Rockwell from 1975 to 1989. Operations at Rocky Flats ceased in June 1 9 8 9 after the Federal Bureau of Investigation and the Environmental Protection A g e n c y searched the facility. Rockwell was subsequently charged with, and u l t i ma t e l y pleaded guilty to, certain environmental crimes at the site. The facility h a s since undergone remediation efforts and is now designated as a wildlife refuge. -3- Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 4 P r o p e r t y owners, whose properties lie within a thirty square mile area east o f Rocky Flats, filed this class action on January 30, 1990, alleging a public l i a b i l i t y action under the PAA involving trespass and nuisance claims against D o w and Rockwell. A public liability action is an action asserting legal liability a r i s i n g from a nuclear incident. 1 Plaintiffs' most recent amended complaint a l l e g e d the release of plutonium at Rocky Flats resulted in the contamination of t h e class members' properties. Plaintiffs sought compensatory damages, me a s u r e d by the diminution of property values, as well as punitive damages. I n October 1993, the district court certified a class consisting of "[a]ll p e r s o n s and entities owning an interest (including mortgagee and other security i n t e r e s t s ) in real property situated within the Property Class Area, exclusive of g o v e r n me n t a l entities, defendants, and defendants' affiliates, parents, and s u b s i d i a r i e s " as of June 7, 1989. In May 2005, the district court split the certified c l a s s into two subclasses: T h e first sub-class shall consist of all Class members who owned p r o p e r t y within the Class Area on the later of: (i) January 30, 1990, t h e date this action was filed; or (ii) the date on which the jury, per R e s t a t e me n t [(Second) of Torts] 930(1), finds it appeared the t r e s p a s s and/or nuisance asserted by Plaintiffs would continue T h o u g h the PAA provides a federal cause of action, Congress has not e l i mi n a t e d considerations of state law in the PAA context. The PAA provides: "A p u b l i c liability action shall be deemed to be an action arising under section 2210 o f this title, and the substantive rules for decision in such action shall be derived f r o m the law of the State in which the nuclear incident involved occurs, unless s u c h law is inconsistent with the provisions of such section." 42 U.S.C. 2014(hh). -41 Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 5 i n d e f i n i t e l y . . . . The second sub-class consists of all other Class me mb e r s . T h e district court generally referred to the first subclass as the "Prospective D a ma g e s Subclass" and the second as the "Non-Prospective Damages Subclass." After over fifteen years of litigation, the district court conducted a fourmo n t h jury trial between October 2005 and January 2006. In accordance with the d i s t r i c t court's construction of Colorado law, 2 the jury instructions did not require P l a i n t i f f s to establish either an actual injury to their properties or a loss of use of t h e i r properties. With respect to the nuisance claims, the district court instructed t h e jury that Plaintiffs could establish Defendants' conduct interfered with the use a n d enjoyment of the class properties by proving Defendants' conduct exposed P l a i n t i f f s to "some increased risk of health problems" or caused conditions "that p o s e a demonstrable risk of future harm to the Class Area." As to Plaintiffs' t r e s p a s s claims, the district court instructed the jury, "Plaintiffs are not required t o show that plutonium is present on the Class Properties at any particular level or c o n c e n t r a t i o n , that they suffered any bodily harm because of the plutonium or that t h e presence of plutonium on the Class Properties damaged these properties in s o me other way." P l a i n t i f f s ' evidence regarding the effects of plutonium on their properties c o n s i s t e d of expert testimony indicating any plutonium exposure, no matter how 2 S e e supra n.1. -5- Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 6 s ma l l , increases the risk of cancer. Plaintiffs' experts did not testify, however, r e g a r d i n g the level of risk of developing cancer from exposure to plutonium r e l e a s e d at Rocky Flats. Rather, they suggested any increased risk was small and unquantifiable. T h e jury deliberated for three weeks and ultimately returned a verdict in f a v o r of the plaintiff class on each of the trespass and nuisance claims. The jury a w a r d e d $176,850,340.00 in compensatory damages on the trespass claims and a w a r d e d the same amount on the nuisance claims, based on the diminution of the v a l u e of the properties. The jury also awarded punitive damages totaling $ 1 1 0 , 8 0 0 , 0 0 0 . 0 0 against Dow and $89,400,000.00 against Rockwell. After a long series of post-trial motions, the district court entered a final j u d g me n t against Defendants on June 2, 2008, pursuant to Federal Rule of Civil P r o c e d u r e 54(b). Including prejudgment interest, the court ordered compensatory d a ma g e s against Dow in the amount of $653,313,678.05 and against Rockwell in t h e amount of $508,132,861.39. The judgment further stated, however, the total c o mp e n s a t o r y damages recovered by the plaintiff class shall not exceed $ 7 2 5 , 9 0 4 , 0 8 7 . 0 0 . Punitive damages were ordered in the same amounts the jury a w a r d e d . Thus, the judgment awarded a total of just over $926 million to the p l a i n t i f f class, including prejudgment interest. The district court's judgment, -6- Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 7 h o w e v e r , did not allocate damages to individual class members. 3 Rather, the d i s t r i c t court attached a Plan of Allocation to the judgment, which provides for t h e appointment of a claims administrator to make recommendations as to how the l u mp sum identified in the judgment should be distributed. The Plan of A l l o c a t i o n also provides a framework for calculating each class member's share a n d distributing any unclaimed funds. Dow and Rockwell timely appealed the d i s t r i c t court's judgment and the class members filed a timely cross-appeal. III. A. DISCUSSION Jurisdiction B e f o r e addressing the merits of an appeal, this court's first obligation is to a s s u r e itself of jurisdiction to do so. 1mage Software, Inc. v. Reynolds & R e y n o l d s Co., 459 F.3d 1044, 1048 (10th Cir. 2006). This appeal involves two j u r i s d i c t i o n a l issues: whether the district court properly exercised subject matter j u r i s d i c t i o n over this action and whether the district court entered an appealable f i n a l judgment. T h e parties indicated a desire to appeal prior to determining how damages s h o u l d be distributed to individual class members. Plaintiffs sought a final a p p e a l a b l e judgment under Federal Rule of Civil Procedure 54(b), while D e f e n d a n t s sought an interlocutory appeal as to certain orders only, pursuant to 2 8 U.S.C. 1292. The district court opted to enter a final judgment under Rule 5 4 ( b ) . In doing so, it determined the total amount of compensatory and punitive d a ma g e s , as well as the amount of prejudgment interest due from each Defendant. Execution of the judgment was stayed to permit Defendants to appeal. The j u d g me n t also includes the district court's Rule 54(b) certification that "there is n o just reason for delay[ing]" entry of judgment. -7- 3 Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 8 1 . Subject Matter Jurisdiction T h i s court sua sponte raised the issue of whether the district court properly e x e r c i s e d subject matter jurisdiction over this action. 4 The court's concern arose f r o m the language of 42 U.S.C. 2210(n)(2), which provides: "With respect to a n y public liability action arising out of or resulting from a nuclear incident, the U n i t e d States district court in the district where the nuclear incident takes place . . . shall have original jurisdiction without regard to the citizenship of any party o r the amount in controversy." At first glance, the statute appears to require p r o o f of a "nuclear incident" 5 to permit federal subject matter jurisdiction over a P A A action. Even assuming it imposes a jurisdictional requirement, however, T h i s court ordered the parties to submit supplemental briefing directed to t h e question of whether 42 U.S.C. 2210(n)(2) imposes the jurisdictional r e q u i r e me n t of establishing a "nuclear incident." See Fed. R. Civ. P. 12(h)(3) ("If t h e court determines at any time that it lacks subject-matter jurisdiction, the court mu s t dismiss the action."); Estate of Harshman v. Jackson Hole Mountain Resort C o r p . , 379 F.3d 1161, 1164 (10th Cir. 2004) ("Because lack of federal j u r i s d i c t i o n cannot be waived or be overcome by an agreement of the parties, we mu s t satisfy ourselves not only of our own jurisdiction, but also that of the lower c o u r t s in the cause under review." (quotations omitted)); Citizens Concerned for S e p a r a t i o n of Church & State v. City & County of Denver, 628 F.2d 1289, 1301 ( 1 0 t h Cir. 1980) ("A federal court must in every case, and at every stage of the p r o c e e d i n g , satisfy itself as to its own jurisdiction, and the court is not bound by t h e acts or pleadings of the parties."). Supplemental briefing was also ordered on t h e state of the record and whether remand is necessary, assuming 2210(n)(2) i mp o s e s a jurisdictional requirement. " N u c l e a r incident" is defined as "any occurrence . . . causing . . . bodily i n j u r y , sickness, disease, or death, or loss of or damage to property, or loss of use o f property, arising out of or resulting from the radioactive, toxic, explosive, or o t h e r hazardous properties of source, special nuclear, or byproduct material." 42 U . S . C . 2014(q). -85 4 Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 9 c l o s e r inspection indicates 42 U.S.C. 2210(n)(2) is not the sole source of federal j u r i s d i c t i o n over a PAA action. Although the complete history of the PAA need not be repeated, a brief o v e r v i e w of its evolution, which this court described more fully in Kerr-McGee C o r p . v. Farley, 115 F.3d 1498, 1503-04 (10th Cir. 1997), is helpful. See also In r e TMI Litig., 193 F.3d 613, 624 n.7 (3d Cir. 1999), amended by 199 F.3d 158 (3d C i r . 2000); O'Connor v. Commonwealth Edison Co., 13 F.3d 1090, 1095-97 (7th C i r . 1994). In 1954, Congress enacted the Atomic Energy Act ("AEA") "to f a c i l i t a t e a transition from a federal government monopoly over the production a n d use of atomic materials to a regime in which private industry also would have a role in their production and use." Kerr-McGee Corp., 115 F.3d at 1503. To f u r t h e r encourage private development in the nuclear energy field, Congress a me n d e d the AEA in 1957 by enacting the PAA, which "creat[ed] specific p r o t e c t i o n s from tort liability for the nuclear industry." Id. At that time, h o w e v e r , Congress opted not to create a federal cause of action for nuclear torts, b u t instead permitted tort recovery under traditional state causes of action. Id. Accordingly, unless the diversity statute applied or the action resulted from an " e x t r a o r d i n a r y nuclear occurrence," 6 nuclear-related tort claims typically could " E x t r a o r d i n a r y nuclear occurrence" is defined as: any event causing a discharge or dispersal of source, special nuclear, or b y p r o d u c t material from its intended place of confinement in a mo u n t s offsite, or causing radiation levels offsite, which the (continued...) -96 Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 10 n o t proceed in federal court. See In re TMI Litig. Cases Consol. II, 940 F.2d 832, 8 5 3 n.18 (3d Cir. 1991). T h e PAA was amended several times in subsequent years, most notably in 1 9 8 8 when Congress created a federal cause of action for nuclear torts, thereby e x p a n d i n g federal jurisdiction over such claims. Kerr-McGee Corp., 115 F.3d at 1 5 0 3 . 42 U.S.C. 2210(n)(2) now provides: With respect to any public liability action arising out of or resulting f r o m a nuclear incident, the United States district court in the district w h e r e the nuclear incident takes place . . . shall have original j u r i s d i c t i o n without regard to the citizenship of any party or the a mo u n t in controversy. Upon motion of the defendant or of the [ N u c l e a r Regulatory] Commission or the Secretary [of Energy], as a p p r o p r i a t e , any such action pending in any State court (including a n y such action pending on August 20, 1988) or United States district c o u r t shall be removed or transferred to the United States district c o u r t having venue under this subsection. A c c o r d i n g l y , the 1988 Amendments made it clear that any action asserting public l i a b i l i t y can be originally filed in or removed to the appropriate federal district c o u r t . In doing so, Congress also designated the particular venue in which any s u c h action must be tried if it is to proceed in federal court; i.e., "the United S t a t e s district court in the district where the nuclear incident takes place." These (...continued) N u c l e a r Regulatory Commission or the Secretary of Energy, as a p p r o p r i a t e , determines to be substantial, and which the Nuclear R e g u l a t o r y Commission or the Secretary of Energy, as appropriate, d e t e r mi n e s has resulted or will probably result in substantial damages t o persons offsite or property offsite. 42 U.S.C. 2014(j). -106 Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 11 A me n d me n t s , however, did not create exclusive federal jurisdiction over PAA a c t i o n s . Kerr-McGee, 115 F.3d at 1504-05. Indeed, the express language of 42 U . S . C . 2210(n)(2) makes it clear state courts are free to resolve PAA actions u n l e s s a defendant, the Nuclear Regulatory Commission, or the Secretary of E n e r g y opts to remove the action to federal court. As indicated, this court was concerned that 42 U.S.C. 2210(n)(2) could be r e a d as limiting federal jurisdiction to public liability actions "arising out of or r e s u l t i n g from a nuclear incident," thus requiring proof of a nuclear incident as a j u r i s d i c t i o n a l element. We see no indication, however, that Congress intended 42 U . S . C . 2210(n)(2) to be the sole source of federal jurisdiction over PAA actions. Rather, Congress expanded federal jurisdiction to ensure that actions involving a " n u c l e a r incident" can proceed from their inception in federal court, even if the p a r t i e s cannot otherwise establish the requirements of 28 U.S.C. 1332. Congress d i d not, however, eliminate a party's right to proceed in federal court when other j u r i s d i c t i o n a l bases exist. Accordingly, a plaintiff need not establish a "nuclear i n c i d e n t " under 42 U.S.C. 2210(n)(2) in order to proceed in federal court with a P A A action when another basis for federal jurisdiction is present. 7 B e c a u s e any jurisdictional requirements in 42 U.S.C. 2210(n)(2) only a p p l y to federal courts, a remarkable anomaly would arise if 2210(n)(2) was the s o l e source of federal jurisdiction, demanding proof of a nuclear incident as a j u r i s d i c t i o n a l prerequisite. If a plaintiff was unable to establish a nuclear i n c i d e n t , the federal district court would be compelled to dismiss for lack of s u b j e c t matter jurisdiction. The jurisdictional dismissal would not, however, (continued...) -117 Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 12 I n d e e d , jurisdictional grounds will always exist for a plaintiff's properly p l e a d e d PAA claim. As we previously explained, Congress's 1988 Amendments c r e a t e d a new federal cause of action, known as a "public liability action." 42 U . S . C . 2014(hh) provides: The term `public liability action,' as used in section 2210 of this title, me a n s any suit asserting public liability. A public liability action s h a l l be deemed to be an action arising under section 2210 of this t i t l e , and the substantive rules for decision in such action shall be d e r i v e d from the law of the State in which the nuclear incident i n v o l v e d occurs, unless such law is inconsistent with the provisions of s u c h section. A s a result, any suit "asserting public liability" under 42 U.S.C. 2210 is a civil a c t i o n arising under the laws of the United States over which a federal court has s u b j e c t matter jurisdiction pursuant to 28 U.S.C. 1331. Accordingly, we need not decide whether the district court had subject ma t t e r jurisdiction under 42 U.S.C. 2210(n)(2), because the district court clearly h a d subject matter jurisdiction under 28 U.S.C. 1331. 8 (...continued) n e c e s s a r i l y prevent a plaintiff from proceeding with their PAA action in state c o u r t , where any jurisdictional language in 2210(n)(2) would be inapplicable a n d proof of a nuclear incident would have no jurisdictional relevance. The s t r a n g e result would be that no federal court could exercise subject matter j u r i s d i c t i o n ; only state courts could reach the merits of the plaintiff's federal c a u s e of action under the PAA. Such a result would make no sense given C o n g r e s s ' s intent to permit plaintiffs to pursue public liability actions in federal c o u r t . C.f. infra Section III(B) (holding a plaintiff must nonetheless always e s t a b l i s h a nuclear incident as a threshold element of a PAA claim). 8 7 P l a i n t i f f s ' complaint alleged subject matter jurisdiction under the PAA, 42 (continued...) -12- Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 13 2 . Finality of the Judgment H a v i n g concluded the district court's exercise of subject matter jurisdiction w a s proper, we now turn to Defendants' motion to dismiss this appeal for lack of s u b j e c t matter jurisdiction. Specifically, Defendants argue the district court's j u d g me n t is not sufficiently final to warrant certification under Federal Rule of C i v i l Procedure 54(b). Rule 54(b) allows the district court to "direct entry of a f i n a l judgment as to one or more, but fewer than all, claims or parties" so long as " t h e district court expressly determines that there is no just reason for delay." The g e n e r a l rule, however, is that an order which "determines liability but leaves d a ma g e s to be calculated is not final." Harbert v. Healthcare Servs. Group, Inc., 3 9 1 F.3d 1140, 1145 (10th Cir. 2004). Nonetheless, in Strey v. Hunt International R e s o u r c e s Corp., this court explained that when damages are not allocated to s p e c i f i c class members, the resolution of class liability claims may warrant Rule 5 4 ( b ) certification if "the district court establishes both the formula that will d e t e r mi n e the division of damages among class members and the principles that w i l l guide the disposition of any unclaimed funds." 696 F.2d 87, 88 (10th Cir. 1982). (...continued) U . S . C . 2210(n)(2), the federal question statute, 28 U.S.C. 1331, and the d i v e r s i t y jurisdiction statute, 28 U.S.C. 1332. Plaintiffs' complaint also alleged j u r i s d i c t i o n under the Comprehensive Environmental Response, Compensation, a n d Liability Act ("CERCLA"), 42 U.S.C. 9613(b). Plaintiffs make no a r g u me n t on appeal that CERCLA is the source of federal jurisdiction, and they o n l y presented their PAA trespass and nuisance claims to the jury. -138 Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 14 H e r e , the district court purported to enter judgment under Rule 54(b), s t a t i n g the total damages against each Defendant and determining there is no just r e a s o n for delaying entry of judgment. The judgment did not, however, distribute t h e aggregate class award among individual members. Instead the district court a t t a c h e d a Plan of Allocation to the judgment, which provides a thorough f r a me w o r k for determining each individual class member's damages. Having t h o r o u g h l y reviewed the Plan of Allocation, we conclude it complies with the r e q u i r e me n t s of Strey. The Plan of Allocation provides for the appointment of a claims a d mi n i s t r a t o r , who is directed to determine the proper allocation of damages based o n specific data. The claims administrator must determine ownership of each class p r o p e r t y as of the relevant dates as well as each property's assessed value based o n county property and tax records. This value is to be expressed as a fraction of t h e total value of all properties within the same category, specifically residential, c o mme r c i a l , or vacant property. The class administrator is directed to use this f r a c t i o n to determine the total damages to be allocated to each property and make r e c o mme n d a t i o n s to the district court based on this calculation. The Plan of A l l o c a t i o n also provides for the distribution of any unclaimed funds. The Plan of Allocation simply requires the application of mathematical p r i n c i p l e s to a formula involving identifiable property records and the jury's v e r d i c t . In doing so, the Plan of Allocation directs the method of allocating -14- Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 15 d a ma g e s among the individual class members, while also explaining how u n c l a i me d funds shall be distributed. Contrary to Defendants' argument, the Plan o f Allocation does not require resolution of complex issues or calculations. While i t is true that certain class members may wish to challenge the ultimate allocation o f damages to them, the guidelines provided by the Plan of Allocation are s t r a i g h t f o r w a r d and mechanical. Moreover, any such challenges would not affect t h e total damages owed by Defendants, which are clearly identified in the j u d g me n t . Consequently, this court concludes the Plan of Allocation's basic f o r mu l a for determining individual damages sufficiently complies with Strey and t h e Rule 54(b) judgment entered by the district court is final. Defendants' motion t o dismiss for lack of appellate jurisdiction is therefore denied. B. Threshold Elements of a PAA Claim T u r n i n g to the merits of the appeal, Defendants argue the district court erred b y refusing to instruct the jury that in order for Plaintiffs to prevail on their PAA c l a i ms , they must establish a "nuclear incident" occurred by showing "loss of or d a ma g e to property, or loss of use of property." As an initial matter, we note that a n issue was raised at oral argument as to whether or not Defendants forfeited this a r g u me n t . It is arguable Defendants failed to preserve the issue of whether a " n u c l e a r incident" must be established as a threshold element of a plaintiff's PAA c l a i m. Nonetheless, Plaintiffs themselves failed to adequately present any such f o r f e i t u r e argument in their appellate brief. At oral argument, Plaintiffs admitted -15- Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 16 t h e y did not expressly raise a forfeiture argument, but instead asserted that their b r i e f sufficiently presented the argument by generic references to Defendants' " n o v e l Price-Anderson argument" and Defendants' failure to "identify with clarity t h e specific rulings of which [they] seek review, or the locations in the record w h e r e [their] points were raised." We disagree. Plaintiffs' brief only makes r e f e r e n c e to Defendants' lack of citations to rulings below in explaining the d i f f i c u l t y they had in responding to certain arguments. The brief does not raise a f o r f e i t u r e challenge. Accordingly, Plaintiffs have themselves forfeited any f o r f e i t u r e argument they may have on this issue, and this court will consider the me r i t s of Defendants' argument. See United States v. Heckenliable, 446 F.3d 1 0 4 8 , 1049 n.3 (10th Cir. 2006) (explaining the government "waived the waiver" b y failing to argue defendant forfeited his challenge on appeal); see also Soo Line R . Co. v. St. Louis Sw. Ry. Co., 125 F.3d 481, 483 n.2 (7th Cir. 1997) (holding p l a i n t i f f "waived any waiver defense it might have had" by failing to argue d e f e n d a n t forfeited its appellate argument due to a judicial admission). This court "review[s] de novo whether, as a whole, the district court's jury i n s t r u c t i o n s correctly stated the governing law and provided the jury with an a mp l e understanding of the issues and applicable standards." Martinez v. C a t e r p i l l a r , Inc., 572 F.3d 1129, 1132 (10th Cir. 2009) (quotation omitted). As w e previously mentioned, the 1988 Amendments to the PAA created a federal c a u s e of action known as a "public liability action." A "public liability action . . . -16- Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 17 me a n s any suit asserting public liability." 42 U.S.C. 2014(hh). In turn, "public l i a b i l i t y " is defined as "any legal liability arising out of or resulting from a nuclear i n c i d e n t . " 42 U.S.C. 2014(w). In keeping with these definitions, Defendants argue Plaintiffs must establish t h a t any liability does in fact arise out of or result from a nuclear incident. A " n u c l e a r incident" is defined as "any occurrence . . . causing . . . bodily injury, s i c k n e s s , disease, or death, or loss of or damage to property, or loss of use of p r o p e r t y , arising out of or resulting from the radioactive, toxic, explosive, or other h a z a r d o u s properties of source, special nuclear, or byproduct material." 42 U.S.C. 2014(q). Consequently, Defendants argue Plaintiffs must prove as a threshold e l e me n t of their PAA claims that they suffered one of the injuries enumerated in 4 2 U.S.C. 2014(q). This court analyzed a similar question in June v. Union Carbide Corp., 577 F . 3 d 1234 (10th Cir. 2009). There, defendants' uranium mining and milling o p e r a t i o n s exposed nearby residents to radiation to such an extent that the c o mmu n i t y had to be evacuated and all structures were razed as part of the r e me d i a t i o n effort. Id. at 1236-37. One-hundred-fifty-two plaintiffs claimed the mi n i n g and milling operations increased their risk of developing radiation-related i l l n e s s e s and pursued medical monitoring claims to help detect the onset of d i s e a s e . Id. at 1237. This court affirmed the dismissal of the medical monitoring -17- Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 18 c l a i ms because they did not implicate "bodily injury," which was the only p o t e n t i a l l y applicable injury under 2014(q). Id. at 1248-52. T h o u g h June did not expressly determine the circumstances in which a p l a i n t i f f must establish injury, 9 we now confirm that the occurrence of a nuclear i n c i d e n t , and thus a sufficient injury under 2014(q), constitutes a threshold e l e me n t of any PAA claim. Consequently, we reject Plaintiffs' suggestion that t h e y need only assert liability arising out of a nuclear incident. The presence of a n u c l e a r incident is the hallmark of a public liability action. Were a plaintiff only r e q u i r e d to plead the presence of a nuclear incident, but never establish one, a " p u b l i c liability action" would be completely indistinguishable from whichever s t a t e tort claim a particular PAA action incorporates. In creating a federal cause o f action under the PAA, however, Congress made clear its intention to limit r e c o v e r y to the discrete group of injuries enumerated in 2014(q) while I n June, the district court dismissed the medical monitoring claims without p r e j u d i c e for lack of subject matter jurisdiction under 42 U.S.C. 2210(n)(2). See June v. Union Carbide Corp., 577 F.3d 1234, 1248 (10th Cir. 2009). On a p p e a l , defendants argued dismissal should have been with prejudice because " b o d i l y injury" is an element of a PAA claim rather than a jurisdictional r e q u i r e me n t . Id. at 1248 n.8. This court, however, did not resolve whether " b o d i l y injury" is a jurisdictional requirement because defendants had not crossa p p e a l e d with respect to that issue. Id. Additionally, this court noted the s t a n d a r d of appellate review is the same regardless of whether "bodily injury" is t r e a t e d as a jurisdictional requirement or an element of a plaintiff's PAA claim. Id. -18- 9 Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 19 s i mu l t a n e o u s l y utilizing state law to frame the "substantive rules for decision." 10 42 U.S.C. 2210(hh). Plaintiffs provide no reason why we should render the s t a t u t e ' s nuclear incident requirement superfluous outside of the pleading stage. See 42 U.S.C. 2014(w). Accordingly, we conclude a plaintiff must establish an i n j u r y sufficient to constitute a nuclear incident as a threshold, substantive element o f any PAA claim. The only injuries listed in 2014(q) which can establish a nuclear incident i n the case at hand are "loss of or damage to property" and "loss of use of p r o p e r t y . " 11 This court has never defined these terms either individually or in a ma n n e r that would differentiate one from the other. Our recent decision in June, h o w e v e r , provides significant guidance. As we previously noted, the plaintiffs in J u n e claimed the defendants' uranium operations increased their risk of d e v e l o p i n g health problems and thus pursued medical monitoring claims. 577 F . 3 d at 1237. The district court determined medical monitoring claims do not i n v o l v e a "bodily injury" and dismissed the action. Id. at 1248. This court I n d e e d , 42 U.S.C. 2014(hh) provides that state law provides the s u b s t a n t i v e rules for decision, "unless such law is inconsistent with the provisions o f [42 U.S.C. 2210]." A "public liability action" arising under 2210, h o w e v e r , incorporates definitions provided by 2014, including 2014(q) which d e f i n e s "nuclear incident." P l a i n t i f f s have never argued their claims involve "bodily injury." Indeed, t h e i r decision to pursue classic property tort claims, trespass and nuisance, makes i t clear they seek recovery for injuries to a property interest rather than "bodily injury." -1911 10 Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 20 a f f i r me d and held "DNA damage and cell death" do not constitute a bodily injury i n the absence of the manifestation of an actual disease or injury, despite the i n c r e a s e d risk of developing disease in the future. Id. at 1248-49. In short, June ma k e s clear that only an existing physical injury constitutes "bodily injury" under t h e PAA; the mere subclinical effects of radiation exposure are insufficient. Id. at 1249. O u r characterization of "damage to property" is informed by the analysis in J u n e , as the logic applies equally to the issue before us in this appeal. Just as an e x i s t i n g physical injury to one's body is necessary to establish "bodily injury," so t o o is an existing physical injury to property necessary to establish "damage to p r o p e r t y . " Without a demonstrable manifestation of injury, the presence of p l u t o n i u m can, at best, only establish a risk of future damage to property. As this c o u r t indicated in June, however, mere risk of future damage is insufficient. Id. at 1 2 4 9 . Rather, the physical damage must actually be manifest at the time the PAA c l a i m is asserted. This requirement does not heighten a plaintiff's burden of p r o o f , but simply provides that a plaintiff wishing to sue under the PAA for a n u c l e a r - r e l a t e d property injury involving "damage to property" must first establish a c t u a l damage to the property in question. H e r e , Plaintiffs argue the mere presence of radioactive plutonium particles o n their property establishes the requisite damage. In their supplemental brief, P l a i n t i f f s point out a "nuclear incident" is defined as any enumerated injury -20- Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 21 " a r i s i n g out of or resulting from the radioactive, toxic, explosive, or other h a z a r d o u s properties of . . . special nuclear . . . material." 42 U.S.C. 2014(q). Without question, "special nuclear material" includes plutonium. 42 U.S.C. 2014(aa). According to Plaintiffs, this compels the conclusion that plutonium c o n t a mi n a t i o n itself is enough to establish "damage to property." This argument mi s s e s the point. The statute does not indicate that the mere presence of p l u t o n i u m is per se injurious to property. If mere contamination without actual d a ma g e were enough, Congress could have easily listed "contamination" as an i n j u r y falling within 42 U.S.C. 2014(q)'s definition of "nuclear incident." Instead, Congress required a showing of "damage to property." In order to prove plutonium-related "damage to property," Plaintiffs must n e c e s s a r i l y establish that plutonium particles released from Rocky Flats caused a d e t e c t a b l e level of actual damage to the class properties. 12 Jury Instruction No. 3.3 I n their supplemental brief, Plaintiffs also suggest that diminution of their p r o p e r t y values establishes "damage to property" or "loss of use of property." Diminution of value, however, cannot establish the fact of injury or damage. Otherwise, reduced value stemming from factors unrelated to any actual property i n j u r y , such as unfounded public fear regarding the effects of minor radiation e x p o s u r e , could establish "damage to property" and "loss of use of property." Public perception and the stigma it may attach to the property in question can d r a s t i c a l l y affect property values, regardless of the presence or absence of any a c t u a l injury or health risk. Instead, courts have traditionally utilized diminution o f value as a measurement of damages rather than proof of the fact of damage. See, e.g., Restatement (Second) of Torts 929(1)(a); Smith v. Kan. Gas Serv. Co., 1 6 9 P.3d 1052, 1061-62 (Kan. 2007) (collecting cases in the nuisance context). Plaintiffs have cited no cases from any jurisdiction suggesting a different a p p r o a c h should apply here. We conclude the PAA requires a showing of actual (continued...) -2112 Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 22 c o n f i r me d that Plaintiffs must prove the presence of plutonium on class properties to prevail on their trespass claim. The language of Instruction No. 3.3, however, u n d e r s c o r e d the limited nature of that proof: "Plaintiffs are not required to show t h a t plutonium is present on the Class Properties at any particular level or c o n c e n t r a t i o n , that they suffered any bodily harm because of the plutonium or that t h e presence of plutonium on the Class Properties damaged these properties in s o me other way." Accordingly, Plaintiffs were never required to, and did not, p r e s e n t evidence of actual physical damage to the property. " D a ma g e to property" is not, however, the only property injury that a p l a i n t i f f can prove to establish the PAA threshold element of a nuclear incident; a p l a i n t i f f who establishes a "loss of use of property" may also recover under the P A A . The express statutory language indicates that more than a mere interference w i t h an owner's use is necessary; a particular use of the property must actually be lost. P l a i n t i f f s did present evidence relevant to a loss of use. Specifically, they t r i e d their nuisance claims under the theory that the presence of plutonium p a r t i c l e s on their properties places them at an increased risk of health problems. We agree that when the presence of radioactive materials creates a sufficiently h i g h risk to health, a loss of use may in fact occur. For instance, a residential or (...continued) p h y s i c a l injury to the properties themselves rather than a mere decline in the p r o p e r t i e s ' value. -2212 Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 23 b u s i n e s s use may be lost due to an increased risk to health so high that no r e a s o n a b l e person would freely choose to live on or work at the property. Similarly, agricultural use may be lost where the soil can no longer produce crops t h a t are safe for consumption due to the presence of the radioactive substance. In s h o r t , where the evidence indicates the property has been affected by the r a d i o a c t i v e material to such an extent that an otherwise appropriate use of the p r o p e r t y is lost, a plaintiff has established the threshold injury element of his PAA c l a i m. 13 H e r e , Plaintiffs were never required to establish a "loss of use of property." Instead, Jury Instruction No. 3.6 only required the jury to find that Defendants " i n t e r f e r e d with Class members' use and enjoyment of their properties" in one of t w o ways: (1) "[b]y causing Class members to be exposed to plutonium and p l a c i n g them at some increased risk of health problems" or (2) "[b]y causing o b j e c t i v e conditions that pose a demonstrable risk of future harm to the Class A r e a . " Plaintiffs' experts merely testified that any exposure to plutonium w h a t s o e v e r increases the risk of health problems to some degree. Without an a c c o mp a n y i n g estimate or calculation of the increased risk, however, this evidence i s insufficient to establish a loss of use under 42 U.S.C. 2014(q). Plaintiffs must W e note the instant case does not require, and the examples provided do n o t necessarily represent, development of a complete list of circumstances in w h i c h a plaintiff can establish a "loss of use." -23- 13 Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 24 i n s t e a d prove that the particular level of risk created by Defendants' conduct had t h e effect of actually depriving them of a specific use. During supplemental briefing, this court directed Plaintiffs to identify any e v i d e n c e presented at trial that could establish a loss of use of property. 14 Plaintiffs' supplemental brief confirms they attempted to make out their PAA c l a i ms solely by establishing an increased health risk. Plaintiffs' submissions, h o w e v e r , do not reveal evidence of an increased health risk that would be s u f f i c i e n t to permit a reasonable fact-finder to find a loss of use. Indeed, P l a i n t i f f s ' experts testified only that the actual dosage of radiation to which P l a i n t i f f s have been exposed creates a small and unquantifiable increased risk of h e a l t h problems. Nonetheless, we need not review the sufficiency of the evidence, a s the jury was never properly instructed on the threshold elements of Plaintiffs' P A A claims. On remand, Plaintiffs will be tasked with producing additional e v i d e n c e that could support a jury's finding that a nuclear incident occurred, in the f o r m of "loss of or damage to property, or loss of use of property" under 42 U.S.C. 2014(q). B e c a u s e the jury was not properly instructed on an essential element of P l a i n t i f f s ' PAA claims, the verdict must be set aside and the case remanded for f u r t h e r proceedings not inconsistent with this opinion. T h o u g h the purpose of this inquiry pertained to the related jurisdictional i s s u e , see supra n.4, the ultimate question of whether Plaintiffs suffered a loss of u s e is the same. -2414 Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 25 C. F e d e r a l Preemption D e f e n d a n t s also challenge the district court's ruling that federal nuclear s a f e t y standards do not preempt state tort standards of care under the PAA. 15 Essentially, Defendants argue they are exempt from liability if their conduct c o mp l i e d with federal nuclear safety standards, even if they could be held liable u n d e r a more restrictive state tort standard of care. Whether federal law preempts s t a t e tort law is a question of law which this court reviews de novo. Dobbs v. A n t h e m Blue Cross & Blue Shield, 475 F.3d 1176, 1177 (10th Cir. 2007). Plaintiffs argue the language of 2014(hh) makes it clear state tort s t a n d a r d s of care apply to a PAA action. Defendants argue, on the other hand, that b e c a u s e state tort standards of care conflict with the PAA scheme, they are p r e e mp t e d by federal nuclear safety regulations. 42 U.S.C. 2014(hh) provides: A public liability action shall be deemed to be an action arising under s e c t i o n 2210 of this title, and the substantive rules for decision in s u c h action shall be derived from the law of the State in which the n u c l e a r incident involved occurs, unless such law is inconsistent with t h e provisions of such section. W h i l e this court's ruling that Plaintiffs must establish the existence of a n u c l e a r incident as a threshold element of their claims independently warrants r e ma n d , it is proper to nonetheless decide questions of law raised in this appeal t h a t are certain to arise again in the event of a re-trial in order to guide the district c o u r t on remand. See Colo. Visionary Acad. v. Medtronic, Inc., 397 F.3d 867, 8 7 6 (10th Cir. 2005). -25- 15 Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 26 W e agree with the district court that 2014(hh) does not expressly preempt state l a w . The clear meaning of this section is that state law is only expressly p r e e mp t e d when it is inconsistent with the provisions of 2210. See June, 577 F . 3 d at 1237; Lujan v. Regents of Univ. of Cal., 69 F.3d 1511, 1518 (10th Cir. 1 9 9 5 ) . The parties agree 2210 itself contains no federal safety standards that c o u l d provide the standard of care in a PAA action. Instead, 2210 primarily a d d r e s s e s the indemnification and limitation of liability components of the PAA. Accordingly, 2014(hh) does not expressly preempt state tort law. Defendants' remaining preemption arguments focus on conflict p r e e mp t i o n . 16 State law is preempted due to its conflict with federal law "where it i s impossible for a private party to comply with both state and federal r e q u i r e me n t s , or where state law stands as an obstacle to the accomplishment and e x e c u t i o n of the full purposes and objectives of Congress." English v. Gen. Elec. C o . , 496 U.S. 72, 79 (1990) (citation and quotations omitted). Defendants argue t h e federal government's regulation of nuclear safety conflicts with the application o f state tort law in a public liability action. While the Supreme Court has i n d i c a t e d only the federal government can directly regulate nuclear safety, neither t h i s court nor the Supreme Court has analyzed whether state tort standards of care, D e f e n d a n t s allude to field preemption in their brief, but never develop the i s s u e . At oral argument, counsel was given an opportunity to clarify the nature of D e f e n d a n t s ' argument and expressly stated their argument is premised on conflict p r e e mp t i o n only. Accordingly, this court does not address field preemption. -26- 16 Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 27 w h i c h may have some indirect effect on nuclear safety, are preempted by federal l a w . See Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. C o m m ' n , 461 U.S. 190, 208 (1983). Because Defendants advocate preemption, they bear the burden of showing t h a t federal and state law conflict. See Silkwood v. Kerr-McGee Corp., 464 U.S. 2 3 8 , 255 (1984). The court is sympathetic to Defendants' generic argument that d i r e c t i n g a nuclear facility to comply with federal safety regulations, while also p e r mi t t i n g tort recovery under a generic state tort standard of care, may lead to c o n f u s i o n regarding the levels at which the facility must operate to avoid l i a b i l i t y . 17 The existence of such a conflict could defeat one of the PAA's primary p u r p o s e s , the encouragement of private nuclear development. The record, h o w e v e r , is not clear as to the particular federal regulations or statutes Defendants b e l i e v e actually conflict with any applicable state tort standards of care during the r e l e v a n t periods. Nor do Defendants pinpoint any state tort standards of care in t h e trespass and nuisance context they believe have been displaced by federal n u c l e a r safety regulations. T h e district court's orders shed no additional light on this issue. The district c o u r t never fully conducted this analysis because it believed the Supreme Court's W e note, however, Silkwood recognized Congress's willingness to accept t h e tension between the federal government's exclusive regulation of nuclear s a f e t y and the pre-1988 PAA's incorporation of state-law remedies. Silkwood v. K e r r - M c G e e Corp., 464 U.S. 238, 255-56 (1984). -27- 17 Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 28 d e c i s i o n in Silkwood established Congress's intent that state tort law broadly g o v e r n public liability actions. In Silkwood, the Supreme Court concluded p u n i t i v e damages could be awarded against the operator of a nuclear facility b e c a u s e under the then-existing statutory scheme, including the pre-1988 PAA, C o n g r e s s intended to permit any tort remedies available under the applicable state l a w . Id. at 256. Applying that principle here, the district court determined the 1 9 8 8 Amendments did not alter this regime, but rather expressly maintained the a p p l i c a b i l i t y of state tort law in PAA actions. See 42 U.S.C. 2014(hh). But the PAA's requirement that "the substantive rules for decision in . . . [a p u b l i c liability action] shall be derived from the law of the State in which the n u c l e a r incident involved occurs" does not displace otherwise applicable federal l a w . 42 U.S.C. 2014(hh). It merely provides that the PAA itself does not d i s p l a c e state law, unless there is a conflict with 2210. There are other possible s o u r c e s of federal law that might preempt state law, and the PAA does not e x p r e s s l y make these standards irrelevant to resolving a plaintiff's PAA action. If D e f e n d a n t s are able to identify federal statutes, regulations, or other binding safety s t a n d a r d s that controlled their conduct with respect to the class properties during t h e relevant time period, the district court must determine whether those particular s t a n d a r d s are in conflict with any applicable state tort standard of care. 18 P l a i n t i f f s ' brief describes the documents which Defendants presented to t h e district court. These documents appear to reference the applicable safety (continued...) -2818 Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 29 O n remand, the district court shall permit Defendants to identify the p a r t i c u l a r federal regulations or statutes they believe preempt state law. Specifically, the district court shall consider whether the federal standards D e f e n d a n t s identify carry the force of law or controlled Defendants' conduct with r e s p e c t to the off-site contamination that occurred here. Defendants must also i n d i c a t e the particular standards of care applicable to a state law trespass or n u i s a n c e claim they believe are in conflict with any such regulations. Finally, the d i s t r i c t court must determine whether any such federal standards actually conflict w i t h the relevant state tort standards of care. 19 (...continued) s t a n d a r d s Defendants believe control. The documents include various letters, h a n d b o o k s , manuals, memos, and Department of Energy Orders. Although it is n o t clear that any of the standards mentioned in these documents have the force of l a w or would have controlled the sort of off-site contamination that occurred here, t h e s e issues have not been adequately presented to this court. Without a thorough a n a l y s i s of the statutes or regulations Defendants believe governed their conduct, t h i s court cannot determine whether any conflict exists. T h i s court is aware that at least five other circuits have concluded federal n u c l e a r safety standards control in a PAA action, rather than traditional state tort s t a n d a r d s of care. See In re Hanford Nuclear Reservation Litig., 534 F.3d 986, 1 0 0 3 (9th Cir. 2008); Roberts v. Fla. Power & Light Co., 146 F.3d 1305, 1308 ( 1 1 t h Cir. 1998); Nieman v. NLO, Inc., 108 F.3d 1546, 1552-53 (6th Cir. 1997); O ' C o n n o r v. Commonwealth Edison Co., 13 F.3d 1090, 1100 (7th Cir. 1994); In r e TMI Litig. Cases Consol. II, 940 F.2d 832, 859-60 (3d Cir. 1991). In these c a s e s , however, it appears the courts' holdings were responsive to arguments i n v o l v i n g field preemption. As previously mentioned, supra n.16, Defendants h a v e not presented a field preemption argument in this appeal. Rather, they have p r e s e n t e d only a conflict preemption argument. This court is unable to find any c i r c u i t decision based on the conflict preemption argument Defendants present in t h i s appeal. -2919 18 Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 30 D. Plaintiffs' Nuisance Claims D e f e n d a n t s next argue the district court's instructions on Plaintiffs' n u i s a n c e claims were legally incorrect. Specifically, Defendants argue Colorado l a w does not permit a risk-based theory of nuisance which lacks scientific f o u n d a t i o n . Defendants also argue that in order to prove they substantially and u n r e a s o n a b l y interfered with Plaintiffs' use and enjoyment of their property, C o l o r a d o law requires Plaintiffs to show Defendants' emissions exceeded any r e l e v a n t federal or state safety standards. The court reviews these questions of law d e novo. Martinez, 572 F.3d at 1132. 1. Irrational Fear as a "Substantial" and "Unreasonable" Interference U n d e r Colorado law, a plaintiff asserting a nuisance claim must establish an i n t e r f e r e n c e with the use and enjoyment of his property that is both "substantial" a n d "unreasonable." 20 Public Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377, 391 ( C o l o . 2001). The district court instructed the jury that Plaintiffs could meet their b u r d e n of establishing an interference with the use and enjoyment of their p r o p e r t i e s if they proved plutonium contamination from the activities at Rocky F l a t s exposed them to either "some increased risk of health problems" or "a O n its face, the state-law "interference with use" standard presents a l o w e r threshold than the PAA's "loss of use" standard. Accordingly, if a plaintiff e s t a b l i s h e s a "loss of use" under the PAA, he necessarily establishes an " i n t e r f e r e n c e with use" under Colorado law. This does not, however, relieve a p l a i n t i f f of his burden of establishing the additional nuisance requirements under C o l o r a d o law that any interference must also be "substantial" and "unreasonable." -30- 20 Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 31 d e mo n s t r a b l e risk of future harm." We agree with the district court that a jury ma y find the presence of radioactive contamination creates an actual risk to health a n d thereby interferes with a plaintiff's use or enjoyment of his land if the c o n t a mi n a t i o n disturbs the plaintiff's comfort and convenience, including his p e a c e of mind, with respect to his continued use of the land. See Cook v. Rockwell I n t ' l Corp., 273 F. Supp. 2d 1175, 1203-04 (D. Colo. 2003). But that is not the e n d of the inquiry. Any interference with a plaintiff's use and enjoyment of his p r o p e r t y must be both "substantial" and "unreasonable." Under Colorado law, an i n t e r f e r e n c e is deemed "substantial" if "it would have been offensive or caused i n c o n v e n i e n c e or annoyance to a reasonable person in the community." Saint J o h n ' s Church in Wilderness v. Scott, 194 P.3d 475, 479 (Colo. App. 2008). In d e t e r mi n i n g whether an interference is "unreasonable," the jury "must weigh the g r a v i t y of the harm and the utility of the conduct causing that harm." Van Wyk, 27 P . 3 d at 391. T h e jury was properly instructed on the elements of a nuisance claim as well a s the definitions of "substantial" and "unreasonable." While the resolution of t h e s e issues typically involves questions of fact, a scientifically unfounded risk c a n n o t rise to the level of an unreasonable and substantial interference. To the e x t e n t Plaintiffs rely on anxiety from an increased risk to their health as an i n t e r f e r e n c e with the use and enjoyment of their properties, that anxiety must arise f r o m scientifically verifiable evidence regarding the risk and cannot be wholly -31- Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 32 i r r a t i o n a l . The district court concluded otherwise in light of its review of R e s t a t e me n t (Second) of Torts 821F, cmt. f, which states: I n determining whether the harm would be suffered by a normal me mb e r of the community, fears and other mental reactions common t o the community are to be taken into account, even though they may b e without scientific foundation or other support in fact. Thus the p r e s e n c e of a leprosy sanatarium in the vicinity of a group of private r e s i d e n c e s may seriously interfere with the use and enjoyment of land b e c a u s e of the normal fear that it creates of possible contagion, even t h o u g h leprosy is in fact so rarely transmitted through normal contacts t h a t there is no practical possibility of communication of the disease. T h i s court previously cast doubt on whether Colorado would follow this rule, g i v e n the potential for anachronistic results. Boughton v. Cotter Corp., 65 F.3d 8 2 3 , 832 n.13 (10th Cir. 1995). Instead, we suggested in Boughton that Colorado c o u r t s would "require[] some evidence to substantiate the fears." Id. Otherwise, a p l a i n t i f f could state a viable nuisance claim any time neighboring property owners c o n t r a c t e d a misunderstood disease, whether contagious or not. Such a result w o u l d be absurd. P l a i n t i f f s are unable to point to any Colorado case in the fifteen years since B o u g h t o n that has endorsed the Restatement's position. More importantly, the R e s t a t e me n t conflicts with Colorado's "unreasonableness" requirement, which e x p r e s s l y requires the trier of fact to "weigh the gravity of the harm and the utility o f the conduct causing that harm." Van Wyk, 27 P.3d at 391. No reasonable jury c o u l d find that irrational anxiety about a risk that cannot be scientifically verified t i p s this balance so as to render the interference unreasonable. Accordingly, we -32- Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 33 n o w confirm what we previously suggested in Boughton and predict that the C o l o r a d o Supreme Court would not permit recovery premised on a finding that an i n t e r f e r e n c e , in the form of anxiety or fear of health risks, is "substantial" and " u n r e a s o n a b l e " unless that anxiety is supported by some scientific evidence. The d i s t r i c t court erred in concluding otherwise. 2. The Role of Federal and State Safety Standards D e f e n d a n t s also argue the district court erred in trying the nuisance claims w i t h o u t reference to applicable federal and state safety regulations. Specifically, D e f e n d a n t s argue the jury should have been instructed that if plutonium c o n t a mi n a t i o n in the property class area falls within the applicable federal or state s a f e t y levels, it cannot be deemed "unreasonable." The Defendants point to the C o l o r a d o Supreme Court's decision in Van Wyk, where the plaintiffs claimed the d e f e n d a n t ' s upgrades to electrical lines created an intentional nuisance due to i n c r e a s e d noise, electromagnetic fields, and radiation particles invading the p r o p e r t y . Id. at 382. The defendant argued the relevant agency's approval of the v o l t a g e involved in the upgrades rendered any interference per se reasonable. Id. a t 393. The Colorado Supreme Court indicated that to the extent an agency's r e g u l a t i o n s actually quantify the standard of reasonableness for the particular c o n d u c t involved, this determination controls in the nuisance context. Id. Under t h e facts of Van Wyk, however, the court concluded the agency's determination of r e a s o n a b l e n e s s "lacked any specificity with respect to electromagnetic fields and -33- Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 34 n o i s e " such that the complaint stated a viable nuisance claim because it alleged the d e f e n d a n t ' s conduct was unreasonable to the extent it exceeded the noise and e l e c t r o ma g n e t i c fields the agency anticipated might occur. Id. at 393-94. Under t h e circumstances, the court concluded the plaintiffs sufficiently pleaded a n u i s a n c e claim. I n light of Van Wyk, Defendants proposed jury instructions stating D e f e n d a n t s ' release of plutonium could only be found unreasonable if the release d i d not comply with controlling state and federal standards. The district court r e j e c t e d this instruction, concluding Van Wyk dealt with quasi-judicial d e t e r mi n a t i o n s that differ in nature from the federal and state regulations i d e n t i f i e d in Defendants' proposed jury instructions. The district court believed t h e safety regulations offered by Defendants were more akin to zoning regulations a n d ordinances and, under Colorado case law, compliance with zoning statutes d o e s not insulate a defendant from nuisance liability. Hobbs v. Smith, 493 P.2d 1 3 5 2 , 1354-55 (Colo. 1972). This court need not decide whether Van Wyk applies here because we agree w i t h the district court's alternative ruling that none of the regulations referenced in D e f e n d a n t s ' proposed jury instructions are on point. For instance, Defendants rely o n a regulation issued by the Colorado State Board of Health which states, " C o n t a mi n a t i o n of the soil in excess of 2.0 disintegrations per minute (0.03 Bq) of p l u t o n i u m per gram of dry soil . . . presents a sufficient hazard to the public health -34- Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 35 t o require the utilization of special techniques of construction upon property so c o n t a mi n a t e d . " 6 Colo. Code Regs. 1007-1:4.60. This regulation says nothing a b o u t the minimum level at which such contamination becomes unreasonable. It me r e l y indicates special care must be taken for construction on property c o n t a mi n a t e d at the particular level indicated. Similarly, Defendants point to d o c u me n t s issued by the Atomic Energy Commission and the Department of E n e r g y . It is not clear whether any of these documents have the force of law or a p p l y to safety levels outside a nuclear facility, and the issue is inadequately b r i e f e d for resolution here. 21 Accordingly, Defendants have failed to establish that any of the state or f e d e r a l standards referenced in their proposed jury instructions overcome the g e n e r a l rule that the jury must determine whether a given interference is " u n r e a s o n a b l e " by weighing the harm against the utility of the interference. E. Plaintiffs' Trespass Claims D e f e n d a n t s next argue the district court erred in failing to require Plaintiffs t o prove physical damage to the property as part of their trespass claims. According to Defendants, this is because Plaintiffs can only pursue intangible A s we previously noted, it is unclear whether Defendants seek to rely on t h e s e particular documents as preempting state law. As the issue has not been b r i e f e d , the court declines to address the question of whether these documents c r e a t e a conflict between federal and state law. -35- 21 Case: 08-1224 Document: 01018490355 Date Filed: 09/03/2010 Page: 36 t r e s p a s s claims, given the nature of the contamination at issue. The court re

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