Here in the West, we take property rights seriously.
So when the Environmental Protection Agency (EPA) made a motion to dismiss the case known as Todd Hennis v. The United States of America, which would have legitimized their “taking” of property owned by Todd Hennis below the Gold King Mine, located in Silverton, Colorado, we took note.
On Tuesday, August 30, Judge Armando Bonilla of the U.S. Court of Federal Claims issued a decision from the bench in favor of New Civil Liberties Alliance’s (NCLA) client and denying a motion to dismiss in Todd Hennis v. The United States of America.
“Today, the Court of Federal Claims recognized what we have long known. EPA must answer for the bad decisions it has made and the unlawful actions it has taken since 2015, said New Civil Liberties Alliance (NCLA) Litigation Counsel Kara Rollins. “We are pleased that Mr. Hennis’s case is moving ahead, and we look forward to presenting the facts about what the EPA did to him—and took from him.”
Hennis filed a lawsuit against the United States for the physical taking of his property without just compensation in violation of the Fifth Amendment to the United States Constitution. He took this step after years of waiting for action. On August 5, 2015, EPA destroyed the portal to the Gold King Mine, located in Silverton, Colorado. Upon doing so, the agency released a toxic sludge of over 3,000,000 gallons of acid mine drainage and 880,000 pounds of heavy metals into the Animas River watershed.
According to Hennis, the Environmental Protection Agency (EPA) caused an environmental catastrophe that preceded and culminated in the invasion, occupation, taking, and confiscation of Hennis’s downstream property. Ever since, he has been trying to recover damages. This ruling means the U.S. Court of Federal Claims is allowing Mr. Hennis’s lawsuit to go forward to discovery, and ultimately to trial.
Looking at the situation with some perspective since 2015, it appears the EPA was entirely unprepared to prevent or control the contaminated flows that gushed out once it breached the Gold King Mine portal.
It eventually mobilized supplies and equipment onto Hennis’s downstream property to address the immediate after-effects of its actions, but it apparently ignored Hennis’s explicit instructions on how to protect the land and the scope of the access that he granted.
Instead, the EPA constructed a multimillion-dollar water treatment facility on his land, without permission, compensation, or even following a procedure to appropriate his property for public use. After seven years, Hennis says the U.S. Government has been “squatted on his lands”, and he wants financial compensation.
Hennis says he didn’t voluntarily give EPA permission to construct and operate a water treatment facility on his property. It was built without his knowledge or consent, and it later coerced him into allowing access to his lands by threatening him with exorbitant fines (over $59,000 per day) should he exercise his property rights. When Hennis refused to sign an access document, the EPA preceded to occupy his property by operation of the agency’s own administrative order—and threatening him with fines if he challenges it.
The cost to the United States of the cleanup of the environmental disaster is already well over $44,500,000 related to the destruction of the Gold King Mine portal. The EPA has estimated that it will incur an additional $20.7 million in future response costs at this site.
None of those costs include compensating Mr. Hennis for the physical taking of his property. So long as EPA operates the water treatment facility, stores the waste from such operations, conduct other investigative and remedial activities, and otherwise accesses and occupies Mr. Hennis’s property, he cannot use or take any substantial steps toward the development of it, let alone cleaning it up from the environmental impacts. By denying the U.S. Government’s motion to dismiss, the U.S. Court of Federal Claims has given Mr. Hennis his day in court to challenge the EPA’s violation of his constitutional rights.
“Mr. Hennis has been waiting over seven years for EPA to be held accountable for not only the environmental disaster it created, but its decision to take his property without paying for it: said NCLA Senior Litigation Counsel Harriet Hageman. “With today’s decision, Mr. Hennis will finally have an opportunity to pursue his claims against the U.S. and vindicate his constitutional rights.”
Featured image: FILE – In this Aug. 6, 2015 file photo, people kayak in the Animas River near Durango, Colo., in water colored from a mine waste spill. New Mexico officials said Thursday, Jan. 14, 2016 that they plan to sue the federal government and the owners of two Colorado mines that were the source of a massive spill last year that contaminated rivers in three Western states. An EPA cleanup crew accidentally triggered the spill in August at the inactive Gold King mine near Silverton, Colo.(Jerry McBride/The Durango Herald via AP, File)
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