State, Department of Health v. Mill
887 P.2d 993
Colo.
1994
Check Treatment

*1 Colorado, DEPARTMENT STATE Petitioner, HEALTH,

OF MILL, partnership, THE limited

Respondent. No. 93SC418. Colorado, Supreme Court En Banc. Dec. 1994. Rehearing Denied Jan. *4 appeals, court of it was consolidat-

tag appeal by The Mill in an eminent ed with an brought by pursuant to domain action Tailings Radiation the federal Uranium (UMTRCA), Act 42 U.S.C. sections Control (1988), corresponding to 7942 -305,11A statute, sections 25-11-301 to state C.R.S. action, regulatory taking
In the the court It ruled appeals upheld the trial court. by CDH that use limitations recommended during correspondence the Mill regulatory taking and re constituted total just com manded for new determination Colorado, pensation. The Mill v. State of (Colo. Health, P.2d 1099 Department action, eminent domain App.1993). the trial court and held the court reversed *5 against enhanced value1 that Colorado’s rule apply in condemnation actions under did not deconta and that evidence of the UMTRCA property must be minated value of the Mill’s its fair mar in order to determine admitted reasons discussed ket value. Id. For the below, rul appeals’ the court of we reverse di ings on both issues and remand with rections.

I. a 61- in this case is

The at issue milling opera- uranium parcel acre on which Norton, Gen., Atty. Stephen K. A. Gale pursuant to an conducted tions were once Gen., ErkenBrack, Deputy Atty. Timo- Chief (AEC) Energy license. Commission Atomic Goad, Gen., Jerry thy Tymkovieh, M. W. Sol. Thirty-six property were covered acres of the Gen., Atty. Natural Resources First Asst. remaining tailings. mill The uranium Section, Denver, petitioner. for yard. twenty-five the mill acres were used as P.C., Polk, George Holley, & Albertson ceased, milling operations After Denver, Torgersen, Holley, Eric E. for Alan tailings disposal mill an uranium was used as respondent. site, pursuant license. In also to AEC 1968, authority to the delegated the AEC delivered the Justice MULLARKEY regulate ma- of radioactive State Colorado Opinion of the Court. jurisdiction license over the AEC terials Then, 1971, transferred to the state. cases. was is a consolidation two This case tail- the license. The taking ini- the state terminated regulatory action The first was a Mill, subject uranium ings pile remained to state respondent, tially brought by The 1973, regulations. In after re- mill Department petitioner, the Colorado against records,2 The Mill (CDH). viewing available state pend- that case was of Health While Denver, stipulated to the trial court City County facts submitted & 1. See Williams license, that, 171, due to termination 195, 198-202, stated mill 173-75 (1988). Colo. yard use. authorized for unrestricted 24-56-117(l)(c), (1961); § 10B C.R.S. testimony CDH and documents taken from Trial the mill structure was indicate files 1986, parcel. against From In The Mill filed an action purchased the entire 61-acre that, claiming CDH because of the restric- storage. the site was used for 1973 to 1983 placed yard, tions on the use of the mill time, actively monitored During this CDH put could not be reasonable tailings pile maintenance of the The Mill’s pled grounds for economic use. yard. of the mill and the condition condemnation, regulatory relief inverse tak- 1978, Congress passed In the Uranium ing, estoppel. The trial court dismissed Tailings Mill Radiation Control Act. UMTR- claim found the inverse condemnation but up designation and clean CA mandated state effected a tak- had processing uranium sites. Pursuant $200,000 ing and awarded to The Mill in lost- UMTRCA, parcel belong- the entire 61-acre during period necessary use value for designated ing to The Mill was аs a uranium appeal, the decontamination. On court processing testing In on the en- site. appeals reversed the dismissal of the inverse parcel tire indicated that contamination exist- claim all condemnation and held that other tailings pile yard in both the ed claims were subsumed in the inverse con- qualify up sufficient to the site for clean Department demnation claim. The Mill v. under UMTRCA. Health, (The (Colo.App.1989) 787 P.2d 176 I).Mill This court reversed the court of The Mill leased the mill appeals’ decision and remanded the case for $7,000 Company per O.C. Coal month for regulatory taking of The consideration Mill’s storage. The Mill coal notified CDH of estoppel Department claims. Health met on March lease and CDH (Colo.1991) (The Mill, v. The 809 P.2d 434 parties precautions both to discuss certain II). spread avoid the of radioactive contamination appeal, While those issues were on CDH agreed-upon precau- proper- filed an action to condemn The Mill’s tions were confirmed letters sent *6 11—303(l)(d), ty under section 11A C.R.S. 25— Company to The Mill and O.C. Coal on (1989). action, parties stipulated In this precautions March 1983. These limited that the market value of the in its storage por- the area available for to those zero, contaminated state was and the trial tions of the where contaminated judgment vesting court entered a title to the July not mix with the coal. soils would On appealed in the Mill state. The summary sent The Mill a of a CDH judgment. The condemnation action and the inspection which routine indicated non-com- regulatory taking action were consоlidated tailings regulations pliance with CDH includ- appeals. for consideration the court of ing warning signs post failure to on the action, In the consolidated court of property, gates tailings pile, no to secure the appeals regulatory found that both The Mill’s signs grazing piles. on and horses taking estoppel and claims were “subsumed” addition, CDH notified The Mill that coal had disposition pro- of the eminent domain contrary to been stored the terms of the ceeding monetary arising because the award agreement documented in the March 15 let- of the claims could not exceed the ter. These letters are the basis for the property. fair market value of the The court alleged regulatory taking. regulatory taking found that issue was prematurely O.C. Coal terminated its lease only relevant to the eminent domain action time, May 1984. After that under the use point it determined at what was CDH, (1) urged by restrictions the income from taken. The court affirmed the trial fell to ruling between and regulato- $500 $700 court’s that there had been a (2) per argues ry taking; sponte month. The Mill stipu- sua set aside the that, grounds not a reasonable economic return on the lation of zero value on for property. purposes pursuant of condemnation acceptable equipment decontaminated "to levels for transfer nation of the contaminated requiring

not licensure” and that the AEC license buildings constituting the Gunnison uranium mill,” number SUA-809 was terminated. That license equipment. and transfer of certain mill "possession, storage, authorized and decontami-

999 UMTRCA, property, of its a court must take into economic use fair market value must competing public private in- value of the balance the account the decontaminated regulatory a remanded for a new deter- to determine whether property; and terests taking v. Under this just compensation. Mill nevertheless occurred. mination of Health, test, balancing The Mill asserts that the let- Department III). (The peti- regulatory CDH constituted a (Colo.App.1993) ters issued CDH granted taking. certiorari tioned for review and we taking regulatory

to review both rejected appeals ripe- The court of CDH’s rulings. eminent domain and, argument upon weighing ness by regulation private interests affected II. property, that the restric- of The Mill’s found the trial placed property by The court of affirmed on use of the tions ruling correspondence taking. is court’s that CHD effected a We do CDH appeals’ analysis. and The Mill effected agree sued to O.C. Coal with the court of regulatory taking proper Mill’s total of The regulation A land-use constitutes III, ty. P.2d at 1110. On taking and United under Colorado States court, argues review to this CDH certiorari prevents economically if constitutions it all that its letters to O.C. Coal and The Mill did — Lucas, property. viable use of the U.S. regulation and thus not rise to the level of -, 2893; v. S.Ct. Van Sickle regulatory taking claim must fail The Mill’s (Colo.1990). 1267, ‍​​‌‌​​​‌‌​​​‌‌‌​​‌​​​‌​​​​‌‌​‌​‌​​​‌​​‌​​​‌​‌​‌‌‍1271 Boyes, Reg Furthermore, ripe. it is not CDH because prevent all ulation which does not economic inability put proper argues, The Mill’s may taking goes if it use also constitute ty economic use was not a to reasonable Mahon, Pennsylvania far.” “too Coal Co. actions, but rather of the result of CDH’s 393, 415, 158, 160, 67 L.Ed. 260 U.S. S.Ct. on the For that contamination (1922). of whether a The determination reason, argues, fail the claim should regulation goes purposes far” for “too of causation. also contends that lack CDH hoc, essentially Fifth Amendment is an “ad property re economic uses for the viable inquiry. Bancorp v. factual” Golden Pacific main, but, remaining even if there were no (Fed.Cir. States, 1066, 1072 United 15 F.3d uses, any placed on the economic restrictions — (citation denied, 1994) omitted), cert. U.S. compensa- property by did not effect a -, 420, 130 L.Ed.2d 335 115 S.Ct. *7 taking Lucas v. Carolina ble under South - however, Court], has identi- Council, -, -, [Supreme The 112 U.S. Coastal (1992), factors that should be taken 2886, 2901, fied several 120 L.Ed.2d 798 S.Ct. (1) determining when whether a into account the restrictions were consistent because gone beyond governmental action has background principles and of nuisance with “taking.” law, “regulation” and effects a property the restrictions re and Among are: “the character of those factors recognition of the flected recent scientific action, economic im- governmental the its by radio presented hazards to human health pact, and its interference with reasonable materials. active expectations.” investment-backed rec- Mill counters that because CDH The Shopping (citing un- PruneYard Center property that its was not Id. ords indicated 2035, 2041, Robins, 74, 83, 100 purchase 447 U.S. S.Ct. by at the time of der license CDH (1980); 741 Kaiser Aetna v. Unit property restrictions 64 L.Ed.2d that the had no use and States, 175, 383, 164, 100 by 444 U.S. S.Ct. imposed later ed place, in the restrictions (1979); 390, 332 Penn Central proper- in 62 L.Ed.2d not inhere its title CDH did 104, City, 438 U.S. Furthermore, Trans. v. New York ty. argues, The its actual Co. Mill 2646, 2659, 124, L.Ed.2d 631 constitute com- 98 S.Ct. did not use Co., (1978)); Publishing Kirk v. Denver complied with mon law nuisance because (Colo.1991). 262, Supreme The Mill guidelines. The also all of the CDH weighing these recognized that in effect has argues even if action did not Court may the third factor be factors the force of taking by depriving The Mill of all per a se disposes dangerous highly regulated at overwhelming ... that it of the were both “so questions.” Ruckelshaus v. Monsan the taking's the state and federal level as was use 986, 1005, 2862, Co., 104 S.Ct. to 467 U.S. the itself.5 While at the time The 2874, That purchased property, L.Ed.2d 815 Mill scientific knowledge concerning case here.3 the hazards of radia now, sophisticated tion not as as it is was investment-backed The “reasonable an awareness that there nevertheless existed party expectations” regulated is the posed by the hazards radiation were severe. analysis dispositive takings in when factor radiation control statute in ef Colorado regulated party is “on notice” of the acknowledged fect at the time that sites regulatory au government’s extent of the present “will where radioactive materials are example, in thority For over represent continuing perpetual respon a Monsanto, Supreme found that Court health, sibility involving safety no reasonable investment- Monsanto had 66-26-3(h) general welfare.” 1963 C.R.S. expectations that data submitted backed (1967 Supp.). early Congres As a kept EPA be confidential because would began investigate sional subcommittee was on notice of the manner “Monsanto dаngers by presented the use of uranium mill to use and dis which EPA was authorized tailings purposes. for The evi construction appli turned over to it close data presented hearings a dence those led to registration.” cant 467 U.S. at program from Colorado remove Similarly, the S.Ct. at 2874. Golden Pacific sites and structures Grand Junction in highly regulated nature of court found “the 1480(1), H.R.Rep. Cong., 1972. See No. 95th banking industry” dispositive to be (1978), reprinted 2d Sess. 11-12 in 1978 1074. taking issue. 15 F.3d at “Put most Moreover, U.S.C.C.A.N. wrote, simply,” “Golden Pacific the court stipulated parties regu facts reasonably expected have that the could not latory taking action Mill indicated appli government ‘would fail to enforce the property, including (cita knew that the entire regulations.’” cable statutes and Id. subject yard, omitted). had been federal licens short, expectations un tion ing regulation since 1962 due to the regulated when an ex use are unreasonable presence of radioactive contamination. place tensive scheme is at the time of investment.4 that, Although parties stipulated also purchased

The Mill was “on notice” at the time The present radioactive materials on the the mill was authorized for recognized, higher degree ques proper- 3. As the court of of state control than real However, analysis. estoppel ty. tion of is subsumed in this the real in this case was expectations, knowledge Like reliance on that it investment-backed former agency existing mailings pile. reasonable before the uranium mill site with an action must be infra, agency taking contrary milling opera- estoрped action. As detailed from the time sites, *8 Meyer, Health Care v. were authorized the Committee Better tions on these sites for Investments, (Colo. 1992); subject tight analogous P-W Inc. became to controls more Westminster, City personal property regulation to than to the limit- of (Colo.1982) (unreasonable rely regulation traditionally applied to on mere issu ed levels of to tap repre properly permits a ance of water and sewer as real on which sensitive activities had Accordingly, sentation that service would be available indefi never been conducted. we find that Thus, nitely). by determining regulatory expectations whether The Mill’s a distinction between the expectations concerning regulation personal property inappro- the future of of real and owners is purposes priate were reasonable for of tak in this case. ings analysis, question we also resolve the of taking regu estopped whether CDH was a may support 5.The record the trial court’s find- latory posture contrary position reflected ing that The Mill was unaware of contamination purchased in state records at the time The Mill However, yard question on the mill itself. property. expecta- before court is whether The Mill’s regulation tion there would be no further of that regulation yard 4. We note Monsanto involved the mill is reasonable. This determination which, personal property depend subjective the Lucas deci- does not on the belief of The as out, points traditionally subject objective sion has been to Mill. It is an determination. thereof, thorium, any use, any or combination in important to view that it is unrestricted 1.6; 3.2; Testimony in the rec- RH RH stipulation physical context. or chemical form.” specific tailings that no restrictions ord indicates RH mill were ex- 3.3.3. Uranium yard as imposed on the mill insofar licensing requirements were empt from these a require not The Mill to obtain CDH did they compliance “provided are in with the any portion proper- specific license for provisions regulations set forth CDH [the preferred compli- ty because CDH to obtain governing tailings].” mill RH 3.19.2.4. Un- voluntary record through means. The ance regulations, was authorized to der CDH that there was some confusion also shows “impose upon any require- licensee ... such mill department concerning whether the ments in addition to those established subject yard general to a license. How- was appropriate it or regulations these deems ever, authority regulate to this site was necessary danger to minimize place purchase, at the time of the whether safety property.” RH 1.14. health and or or it was exercised at that time. not Likewise, required to allow licensees were inspect their facilities and sources of contamina- CDH To the extent that radioactive RH property, property. on the it radiation on them 1.10. Given tion fact still existed subject environment, regulatory to broad author- unreason- remained ity. The radiation control statute Colorado Mill to claim it had no notice of able for The authority “develop gave and conduct regulation significant risk of further programs for evaluation and control of haz- the site.6 all with the use of ards associated as a owner “on no Just radioactive materials and other sources authority government regulatory tice” can ionizing radiation.” 1963 C.R.S. 66-26-3 reasonably expect regulation, to avoid (1967 Comprehensive regula- Supp.) state reasonably can a owner ex neither materials, specifi- governing tions radioactive pect put to a use constitutes cally, maintenance of uranium nuisance, if that economi even is the

piles possession of radioactive mate- property. “In cally viable use for the accord rial, already were in effect at the time intuition, ordinary government need not with 6 C.C.R. See pay complete or destruc even takeover (1970). pur- At the time The Mill 1007-1 for justified by if the latter is the owner’s tion site, copies of these CDH sent chased injure using property to insistence on his and, that, after regulations to new owner people property.” or them Laurence other monitor the mill continued to both Tribe, Law 593 H. American Constitutional tailings pile. (citations omitted) (New 1988) (empha York regulations, these radiation control Under added). Supreme particular, sis receive, use, possess, person shall “[n]o regulatory action holds that where a Court dispose of radioactive material transfer or proscribe productive use that does not general specific in a except as authorized previously permissible under relevant was pursuant regulations.” these license issued principles ... [t]he and nuisance 3.1, regula- RH 6 C.C.R. 1007-1 properties what are now of these use imposed “general license” tions ahuays expressly prohibited purposes was filing applications without the “effective unlawful, (subject to other constitu licensing docu- or the issuance of [CDH] limitations) open it was to the State receipt tional particular persons” upon ments to implication of material, any point to make the e.g., “uranium or title to source *9 Furthermore, report that was the first indication indicates whether this evidence in the record 6. stated, effect, knowledge may general he have had actual a license in that there was 1983, authority. ongoing regulatory writing first indication that I have "This is the inspection report mill owners received may been any of. There have I have recollection stating inspection performed that the was people with of the conversations some some general pursuant to RH 3.2.1. under a license license, general an issue that is a but it’s about Bishop general partner Marcus was vague to me. I still don't understand still pri- responsible inspecting CDH records Mill general license.” property. purchasing the When asked or to

1002 background principles of nuisance solid

those waste laws enacted before The Mill explicit. law purchased § the site. See 1963 C.R.S. 36- (1967 23-10(d), — Supp.). -14 Lucas, at -, 112 U.S. S.Ct. at 2901. may always Accordingly, the state restrict principles Under these of Colorado nui- by regulation or statute when such uses uses law, right any sance to make use of the previously were forbidden under common law property public that would create a hazard to part principles. These uses were never by spreading health radioactivе contamina- rights the landowner’s “bundle of that are tion was excluded from The at Mill’stitle commonly property.” as Kai characterized onset. The radioactive contamination at the Aetna, 176, at ser U.S. 100 S.Ct. 391. present prior site a was as result of uranium Thus, it is unreasonable for a landowner to milling activities. It was a condition of the expect that such uses would never be formal disap- that did not either arise or

ly prohibited. pear any a result of classification or corre- spondence by The relevant Colorado common Accordingly, any issued CDH. principles permit law would not a landowner by suggested use limitations to CDH avoid engage spread radioactive activities spreading of radioactive contamination contamination.7 Under Colorado common taking could not have constituted a because law, duty prevent landowners have a activ lawfully those uses were never available to ities and conditions on their land from creat The Mill even in the absence of CDH action.8 ing an unreasonable risk of harm to others. analysis, Based on this we conclude that Glass, Moore v. Standard Paint & 145 Colo. right processing way to use the site in a (1960) 151, 155, 33, (emphasis spread that would radioactive contamination added). public doing A nuisance is the or did not a constitute reasonable investment- something injuriously failure to do af expectation.9 backed Because we find The health, safety, fects or morals of the expectations Mill’s highly to have been un- public annoyance, or works some substantial reasonable, overwhelming” this faсtor is “so inconvenience, injury public. Spe or dispose taking purposes as to issue for law, cifically, under Colorado common land determining just compensation. Monsan- pollution uses that cause constitute a nui to, 467 U.S. at S.Ct. O’Mines, sance. Wilmore Chain 96 Colo. 319, 325-26, 44 P.2d III. (“Whatever might rights by be claimed owners, they justify 25-11-301 defendant cannot Sections 11A stream.”). (1989), right pollute govern claim participation of a C.R.S. the state’s implementation nuisance Under Colorado’s statute enacted a federal of UMTRCA. Un 303(d)(III), year process before The der section CDH is authorized to site, ing “[a]ny pollution acquire processing by unlawful or contami site condemnation proceedings necessary. § nation of surface subsurface waters if 25—11— 303(d)(III). ... ah’” pro or of the constitutes a nuisance. Fair market value these Improperly ceedings 1963 C.R.S. 39-13-305. han is to be “in determined accordance dled, in particular radioactive materials were with the criteria established section 24-56- 117(l)(c), C.R.S., as a provisions treated nuisance under Colorado 7.Although trial court did not address the 8. Because we find that the uses restricted question CDH action were not within The Mill’s reason- whether CDH restrictions were con- expectations property, able for use of the we will principles prop- sistent of nuisance and questions not address the of whether the CDH erty law in existence at the time of The Mill’s correspondence with The Mill rose to the level of site, processing purchase of the this determina- regulation "regulation” or whether CDH de- question appellate tion is of law that an court stroyеd all economic value in the Romer, may independently. resolve See Evans v. (Colo.1993) (where an issue agree 9. We the Mill’s actual use of the only legal questions, involves and not factual nuisance, property did not constitute but that judgment subject independent lower court's precisely complied because The Mill with the court). appellate review the CDH limitations. *10 contrary to the intent of UMTRCA and re- Tailings Radiation federal ‘Uranium ” disparate sulted in unfair and treatment of 24-56- Act of 1978.’ Id. Section Control designated the owners of sites. The Mill (1988), 117(l)(c), codifies the Col- 10B C.R.S. III, Specifically, 868 P.2d at 1103. the court against enhanced value. The rule orado rule financing found that the scheme of UMTRCA disregard any change in requires the state to pay property an intent that owners indicated property caused fair market value of the the thus, cleanup, nothing for for the state to by public improvement for which the collect the difference between the contami- determining- property being acquired is property nated and decontaminated values § property. 24- just compensation for the contrary would be to the intent of the stat- 56-117(l)(c).10 that the ute. Id.11 It found further Colora- action, eminent domain implementation do scheme under UMTRCA appeals stipula found that the the court of similarly- disparate treatment of resulted by owners, into The Mill and CDH set tion entered property since those whose situated prop ting the fair market value of The Mill’s up by agree- property is cleaned consensual erty in contaminated state at zero was pay nothing, property its while owners ment against value by property acquired by dictated the rule enhanced the state must whose is stipulation. appli Because market value repurchase property and set aside their at its of the rule would limit The Mill’s Id. The court of cation a decontaminated state. property appeals prior decision compensation to the value of declined to follow Co., state, Mining Department the court concluded Health v. Hecla its contaminated the extent (Colo.App.1989), P.2d 122 against the rule enhanced value was only against requires provides enhanced value The rule 10. The statute property present valued in its condi- that the be negotiations acqui- the initiation of for Before regard any increase or decrease tion without property, an amount shall be sition of real gov- projected upon completion of the in value reasonably it believed is established which is therefor, property project was con- ernment for which just compensation and such amount 56—117(l)(c). § It does not property. demned. See for the In no event shall be offered 24— necessarily approved property lose than the mean that a owner will shall such amount be less prop- appraisal value of the fair market of such investment in the As dis- initial erty. Any infra, acquisition decrease or increase in the fair under site is envisioned cussed prior property real to the date market value of those instances where the initial UMTRCA in by public improvement of valuation caused purchase price property reflected on-site of the acquired, by property for which such Presumably, the rational and in- contamination. acquired that the would be likelihood purchased would not have formed site owner improvement, than that due to for such other despite or value remained site unless some use physical deterioration within the reasonable market value deter- the contamination. The fair owner, disregarded shall be control the more- mined under the rule would reflect proper- determining compensation for the Moreover, if value of those uses. than-nominal ty. ac- The owner of the real to be price the site at a the site owner quired provided a written state- shall be contamination, the value deter- reflected on-site summary of and of the basis for ment the owner to under the rule would allow mined just compensation. established as amount investment. recover that initial compensation appropriate, just for Where case, the value of the was set In this damages acquired and for the real remaining by stipulation parties; it was not at zero separately shall be real what it state law. The Mill took dictated stated. 24-56-117(l)(c), strategic position prop- thought on was the best 10B C.R.S. value, erty its initial investment as forfeited ap- strategy. Neither the court of result of that contrary found it 11. The court of also peals’ prior Department Health v. decision in invariably UMTRCAthat site owners the intent of Co., (Colo.App.1989), Mining Hecla 781 P.2d 122 their initial investment under the rule would lose against value allows the nor the rule enhanced erroneоusly against The court enhanced value. pay less than to condemn a site and then state against application the rule en- assumed that property at that time. fair market value of the finding value would dictate a of nominal hanced Accordingly, whether we will address value in condemnation actions or zero market apply rule UMTRCA to consistent with always pursuant that owners to UMTRCA so against ac- enhanced valuation to condemnation proper- their initial investment in would lose compensation prop- tions to the extent that it excludes repurchase ty, their as well as be forced resulting from remedial increased value erty after decontamination at fair market value government. action completed. *11 1004 Cir.1990). (10th 1486, Congressional ruling ease. 1494 its in this with inconsistent plain primarily from the intent is determined agree. not We do statute, secondarily from language of rejecting the court of addressing ‍​​‌‌​​​‌‌​​​‌‌‌​​‌​​​‌​​​​‌‌​‌​‌​​​‌​​‌​​​‌​‌​‌‌‍and In history. Mass v. legislative the statute’s will examine first analysis, we appeals’ 1530, F.Supp. Corp., Marietta 805 Martin enhanced Colorado’s alleged between conflict (D.Colo.1992). 1534 federal law. Then we

value statute protection implica- equal consider the will that the of found The court of the rule by application tions caused value is an against rule enhanced Colorado value. against enhanced accomplishment and execution to the obstacle not objectives of We do

of the UMTRCA. A. plain language that agree. We find both legislative history indi and its of UMTRCA Inconsistency the Federal Statute with legislative intent not inconsistent12 cate a of- Supremacy Clause Under against enhanced val rule Colorado Constitution, statutes state States United subject to requires ue which are invalid. federal statutes that conflict with proceedings be valued condemnation Comm’rs, County 652 Brubaker v. Board Williams, 147 unimproved Colo. state. (Colo.1982); 1050, Housing Auth. 1054 173-75; § 198-202, 24-56- 363 P.2d at (10th States, F.2d 631 980 v. United 117(l)(c). Cir.1992). preempts state law Federal law expresses clear intent Congress when law; outright there is preempt state when Language Federal of the Statute law; federal and state conflict between actual plain language of the Turning with both federal and state first to the compliance when statute, purpose there is of UMTRCA is to impossible; when the stated physically law is processing up law to state uranium within federal clean and stabilize implicit barrier area; danger when federal to alleviate the regulation particular in a sites comprehensive occupy as to legislation posed radiation emitted is so sites, 42 regulation; or when state radioactive waste at such field of and other the entire end, gov- accomplish § the federal an obstacle to the 7901. To this law stands as U.S.C. objectives pay per full centum of the of the ernment “shall 90 ment and execution Airlines, action, including Inc. v. United actual cost of such remedial Congress. Frontier (and Lines, Inc., F.Supp. acquiring 1407 such site 758 the actual costs Air therein) (D.Colo.1989). However, ... shall exercise of federal interest state non- presumed lightly. pay remainder of such costs from supremacy not to be 7917(a). Brubaker, begin must P.2d at 1055. We Federal funds.” police powers by assuming that the historic possible act two addresses by any superseded be are not to state cleanup with the consent cleanup scenarios: con regulations unless that federal laws or owner, 7913(c), and section clearly Dantus gressional purpose is shown. acquisition accomplished after the cleanup Ass’n, Savings & Loan v. First Federal the state which the site (D.Colo.1980). F.Supp. 7914(a). located, deciding In whether section other, the proceed by one method or the construing to make statutes in the statute to objec sole factor enumerated Congressional this determination Secretary Energy and UMTRCA, federal give which the enacting we must tives must Regulatory Commission language the Nuclear intent reflected effect to the “prevention of wind give consideration is the legislative process. of the enactment Co., Id. If profits” owner. Mining 916 F.2d fall Colorado v. Idarado and state analysis begins find that the federal court need not Supremacy Clause 12. Because consistent, regulation they assumption state is not are with the statutes are Brubaker, regulation, superseded by federal inconsistent. 1054, Dantus, F.Supp. at P.2d at *12 meaning. commonly accepted the to understood cleanup will result in a windfall the owner, to District property the state will be directed East Lakewood Sanitation Dist. v. (Colo.1992). site, id,., Court, option to sell acquire the the to the property back the decontaminated interpretation Mill’s fails to The value. market original owner fair “sensibly” “harmoniously” construe the 7914(e)(2). to § If the not directed state is First, profit if the ad statute. windfall site, may into a the enter acquire the state merely by the cost of dressed UMTRCA is agreement property with the owner consent costs, action, acquisition including remedial of which will States “releas[e] United impossible “pre then it would be to consider liability “hold[] or claim thereof’ and by profits required vention” of windfall as ... against any harmless claim United States cleanup all would section since effort performance any such arising out of the of 7913(c)(2). property in some windfall own result to action.” UMTRCA remedial Secretary Nucle Energy The of and the er. distinguishes property owners thus between only Regulatory ar Commission could consid accrue and whom a windfall benefit would to Second, of profits. would er “limitation” windfall property owners to whom a windfall cleanup, cleanup profits” the cost of determining sce- treat “windfall as not accrue which recommends, as The Mill would read consen nario to follow. 7913(c) cleanup sual under section out of argues that re statute. Since all remedial action would perceived ‘windfall’is the cost associ- [t]he prevention windfall of profit, sult some ated with the remedial action undertaken the sole factor for con which is enumerated have been by DOE which otherwise could 7914(a), presumably under section sideration However, property borne owner. Secretary Nuclear Energy of specific purpose is to obli- [UMTRCA’s] acqui Regulatory require Commission would costs, ‘but gate DOE to absorb these since most, all, Finally, if of not sites. sition gave rise the Federal contracts which for’ acknowledge interpretation alsо fails to Mill’s tailings which these contaminate may not property owners benefit sites, properties likely be free would avoiding cleanup (including the cost of from uranium contamination. arising pollution), liability future from on-site Mill, According the admonition also from the increased value but 7914(a) profits is against windfall in section government-funded property after the clean attempt It merely an to limit costs. does clearly complete. up is While the statute differential of mandate treatment require govern state designed to federal and by con- is remediated owners whose cleanup, is no ment to bear the cost of there acquired and those whose sent provide it was intended to evidence the state before remediation. secondary as benefits to landowners these prof- does not “windfall UMTRCA define Accordingly, identify we a satis must well. Department Energy of nor its.” Neither factory alternative construction. Regulatory has is- Nuclear Commission enunciating factors on regulations sued commonly under A “windfall” is require a its determination to which it bases gain unexpected to mean “an or sudden stood site, acquire processing or elabo- state to Inter advantage.” Third New or Webster’s profits” may be identi- rating how “windfall Dictionary “Prof national 2619-20 Thus, interpret must the term with- fied. we it,” in the context of financial matters such statutory regulatory guidance. or out these, generally the “the excess means expenditure over in a transaction returns required reading In are statute we Thus, Id. at 1811. series of transactions.” interpretation gives “consis adopt a transac profit” must occur where tent, “windfall effect” to all harmonious sensible excess of re produces unexpected some provisions. Bd. tion State the statute’s Colorado Saddoris, expenditures. In the context turns over Medical Examiners v. (citation omitted). (Colo.1992) statute, question must Fur transaction by the state thermore, acquisition their give words be the the court must 7914(a), against enhanced value is The rule since, it is deter- “[i]n under section policy of not inconsistent with UMTRCA’s to ac- require State mining whether preventing profits windfall interest processing site or quire designated fact, rule furthers UMTRCA owner. given to therein, shall be consideration [that] property owner were allowed policy. If the profits.” prevention windfall property in value of the to collect the added). 7914(a) (emphasis *13 state, property the owner decontaminated only spared expense the of the definition, would not be prof windfall Under cleanup, would also receive the increase but property owner as a accrue to a its would cleanup. resulting in from the property market value cleanup only where the result require property does not While the statute property in its contami purchased the owner itself, cleanup as indi pay to for the the owners price at a which reflected nated state then, by placing the full cost on the federal cated without presence of contamination and 7917(a), governments in section cleanup, could and state any expenditures for making therein, that the against rule enhanced value assures at a property, or interest resell the through con property owner cannot collect in value due to price reflecting an increase profits” “windfall proceedings demnation in market cleanup. an increase Such property acquisition of the necessarily be that state cleanup would value due to “windfall,” prevent. if intended to unexpected, because and thus cleanup plans had been government-funded known, price prop market

publicly erty state would have been in a contaminated History of Legislative similar, uncontaminat comparable to that of Federal Statute property. ed legislative history of UMTR- profits,” or cleanups in a CA does not define “windfall all would result such

Not acquisition pro the criteria for property owner. For exam- address windfall to the However, nothing legis purchased cessing sites. ple, property owner where the history rule lative indicates that the Colorado state before tract an uncontaminated is place pursuant against fed- enhanced value inconsistent milling operations took “Section-by-Section Anal contracts, In its cleanup property mere- UMTRCA. eral Comments,” ysis House Re at the and Committee ly property returns the state port No. 1480 states that the “affected State purchase.13 initial The same would time of acquire processing site before re property [shall] owner be true where the acquisition action is initiated if such is to take remedial medial the tract after the decision Secretary appropriate by ac- determined made or after remedial action had been 1480(11) price H.R.Rep. No. begun, purchase that the the NRC.” tion had so reprinted 7464. The value of the in 1978 U.S.C.C.A.N. reflected the decontaminated specifically ac Presumably, Report “[s]uch circum- indicates these quisition accomplished pursuant Secretary Energy is to be stances the law.” Id. This reference to state law Regulatory would not State Nuclear Commission Congress for the processing- indicates that intended require acquire the state to policies proce to utilize the same prior performing remedial action. state site value that accrues to these addressed under Increased 13. The uranium mill milling op- owners as a result of remedial action produced uranium UMTRCAwere (1) profit a windfall because at the does not constitute erations under federal contracts. Because in a underway contamination resulted milling operations the tail- on-site hazardous time were hazard, purchase value after ings a health decrease were not believed to be created which offsets the increase in value cost-plus for site cleanup; federal contracts allowed compensation tailings disposal. cost calculated very expenditure small for milling during cost-plus margins ac- under federal contracts under the contracts did not Profit recog- operations did account for decontamination cleanup expenses now commodate cleanup expenses. docs not necessary public safety. Governmental thus nized as to assure 1480(11) reprinted unexpected double-benefit to these result in an H.R.Rep. in 1978 No. property owners. U.S.C.C.A.N. 7477-78. types incentive and thus more consistent with in this context as it uses other be dures Colorado, Congressional intent. rule acquisition. of land applica generally against enhanced value B. acquisition by the state in of land ble (“Any § 24-56-117 state other contexts. See Equal Protection agency political or subdivision of the state applying The court of found program acquires which real rules, such traditional condemnation as the financial assis project or for which federal value, against rule enhanced ac- pay any part tance will be available to all or dispa- quisitions under UMTRCA resulted program project of the cost of such shall similarly-situated property rate treatment of following policies:”); comply with result, found, “fur- owners. This the court Williams, 198-202, 363 P.2d at 147 Colo. at ther the traditional evidence enhance- *14 173-75. apply ment rule was not intended to under III, The Mill 868 P.2d at 1105. UMTRCA.” The committee also noted that where property Because we find that owners whose consent, cleanup accomplished by is subject property proceed- to condemnation is property owner will benefit from the ings property property owners whose is and voluntary provided by action remedial subject cleanup to consensual remedial are Clearly, act. the committee does not want situated, similarly disagree. we that at later date the United to find some equal protection guarantees The is faced with a claim from such States under the Colorado United States consti owner, heirs, assigns con- his successоrs like treatment of all who are tutions assure arising cerning remedial action or such Const, II, 25; similarly Colo. art situated. such action. from Const, 14.; Mayo v. National U.S. amend. 1480(11) H.R.Rep. reprinted No. at Co., Property Casualty Farmers Union Thus, 7464. the commit- U.S.C.C.A.N. (Colo.1992). persons alleg If liability part tee viewed the waiver of that is similarly ing disparate treatment are not sit agreement partial of a consent to be at least uated, equal protection challenge to a to consideration for the benefit that accrues Lath, statute must fail. Western Medical property interpreta- owner. Under Inc., Supply, Inc. v. Acoustical & Constr. Mill, urged by property owner tion (Colo.1993). only would receive not the benefit of above, the As discussed decision cleanup proper- and the attendant increase property, opposed entering into acquire value, ty providing would also avoid but arrangement cleanup, is a consensual releasing the States from lia- waiver United prevention profits of windfall based on the bility would have been re- which otherwise By agreement owner. with the quired if the site had been decontaminated required government, the state is federal agreement. a consent Such an inter- under acquire only processing sites where the those every pretation would create incentive for Regu Secretary Energy and the Nuclear cleanup, property owner to resist consensual latory already have made a Commission processing the state to condemn the force that owners threshold determination action, perfоrm remedial site order profit if to make a windfall would stand up program costs. Since the com- thus drive proceed under a action were to remedial ac- “concerned about the cost of mittee was agreement. finding This alone consensual expect[ed] section and quisition under this groups indicates that the two necessary,” it be utilized when similarly situated. Accord owners are not 1480(11) 38, reprinted in H.R.Rep. No. challenge to the ingly, any equal protection 7465, such a construction 1978 U.S.C.C.A.N. against rule enhanced val application of the legislative clearly contrary to the intent fail. ue must legisla- expressed in the Act’s UMTRCA as language and examination of the history. against After this Application of the rule tive UMTRCA, we conclude legislative intent of this adverse enhanced value would eliminate against value codified I that the rule enhanced 56—117(l)(c) fully consistent section 24— parcel (property) The 61-aere of land Congressional enacting intent issue in this case consists of a 25-acre mill UMTRCA. tailings pile. and a 36-acre Pursuant to (AEC) Energy li- Atomic Commission IV. cense, operated as a urani- reasons, foregoing For the we find processing storage um mill and for of urani- correspondence between CDH and The um mill until the late 1950s regulatory taking in not constitute a did delegated regulato- 1962. AEC and Colorado violation of United States ry authority of the radioactive materials and application constitutions. We also find Colorado, the AEC license to the State of against rule enhanced value of the Colorado which the license for the terminated contrary proceedings in condemnation is not adjoins Airport. in issue that the Gunnison UMTRCA, thus, to the intent of that the stipulation entered into of zero value may Accordingly, Mill and stand. we time, Department At that the Colorado of. (1) appeals’ holdings the court of on reverse (CDH) imposed Health had no restrictions on issues, return the ease to the court both the use of the Radioactive con- *15 appeals of for remand to the district court tamination of the mill in was found regu- with instructions to dismiss The Mill’s 1978, Congress 1976. In enacted UMTRCA claims, latory taking estoppel and and twenty-two to decontaminate inactive urani- appeals return the case to the court of for protect um mills to from the health judgment of reinstatement of the the Gunni- radioactivity hazards associated with the of County granting title son District Court uranium mills. After radioactive contamina- to CDH. tion of the was confirmed The Mill leased the J., ERICKSON, specially concurs. Company in O.C. Coal 1983. The Mill noti- agreement, of fied CDH the lease and CDH SCOTT, J., dissents. responded advising with a letter The Mill specially concurring: Justice ERICKSON safety precautions and O.C. Coal of that were granted to review We certiorari both the recommended because of the radioactive con- regulatory taking and eminent domain rul property. tamination of the Colorado, ings Depart in The Mill v. State of O.C. Coal terminated the lease Health, (Colo.App.1 ment 868 P.2d 1099 of contends the CDH letters set- 993).14 majority agree I with the that the ting requirements safety forth caused O.C. appeals finding regulatory court of erred brought Coal to terminate the lease and taking рroperty. agree Mill’s I of The also against claiming regu- action CDH in statute, that the enhanced value section 24- latory taking. regulatory takings While 117(l)(c), (1988), dispositive 10B C.R.S. 56— appeal, case was on CDH initiated a condem- determining in this case in whether the de proceeding nation in accordance with UMTR- contaminated value of a should be applicable CA and the Colorado statute. purposes of eminent domain considered (1989 11—303(1)(d), 11A C.R.S. & 1994 pursuant Tailings Mill to the Uranium Radia 25— Supp.). In the (UMTRCA), condemnation action under Act tion Control U.S.C. (1993 UMTRCA, parties stipulated Supp.). §§ I 7901-7942 concur property in market value of the its contami- majority opinion separately and write on the zero, nated state trial applicability of the enhanced value rule in was court this case. vested title to the in CDH. The previously promissory 14. We reviewed inverse condemna- court for further consideration of es- regulatory taking tion and issues in State Colo- toppel regulatory taking claims asserted of rado, Mill, Department Health v. The 809 P.2d The Mill. of (Colo.1991) and remanded to the district cleaning program in taking minimize the costs of the regulatory appealed both uranium sites.17 up radioactive court of decisions to the the condemnation appeals. key out the elements Hecla set history legislative and stated: regu- consolidated the appeals The court of history legislative shows latory takings the eminent domain case with Act enacted due to Radiation Control appeal, court In case. the consolidated posed health threat concern over the taking had appeals that a held inactive uranium unstable and ‍​​‌‌​​​‌‌​​​‌‌‌​​‌​​​‌​​​​‌‌​‌​‌​​​‌​​‌​​​‌​‌​‌‌‍uncontrolled stipulation occurred and set aside any legal not to meet mill market value of the parties that the fair gov- obligation part on the of the federal state was zero. property in its contaminated remedy hazardous situa- ernment remand, appeals court of directed On over costs of at such sites. Concern tions based that fair market value be determined prompted Congress pro- program property, on the decontaminated value of sites, par- acquisition of vide for state just and ordered a new determination ticularly if decontamination would result compensation. ' who retained profits to an owner windfall after decontamination. site II Hecla, appeals 124. The court of 781 P.2d at pro- in a condemnation in Hecla held that Mining Department v. Hecla Health pres- ceeding, property must be valued Co., (Colo.App.1989), the condition, regard govern- ent without do not find court of stated: “We necessity for purpose supporting the mental support [the] in the federal law for assertion contamina- or the radioactive condemnation to meet an purpose [UMTRCA] that the Accord, tion of the Williams remedy government-initiated obligation to Denver, County City and Colo. history legislative contamination.”15 *16 24-56-117(l)(c). (1961); § 363 P.2d 171 congressional not intent UMTRCA reflects proper- proceeding, the or state In a condemnation either the federal to overburden ty at its fair actual cash clean-ups.16 taken is valued governments with the cоsts of the at the time of trial or when investment of the market value protecting Rather than the 38-1-114, § owner, 16A C.R.S. property to is taken. Congress’ concern was property legislation subject to federal appeals subsequently The Mill is also in Hecla 15. The court of imposes liability for non- on mill owners that stated: compliance with radon emission standards. forth, expressly the ... set [UMTRCA] The (1993). 61.222(b) § The cost of deconta- C.F.R. legislation, protection purpose the for the property has been estimated mination of The Mill health, public safety, the and welfare from the $40 million. significant haz- potential radiation health and tailings.... This is an of uranium mill ards disparate ap- the a concern eliminates 17.Such purpose.... undisputable public options pearance decontamination of the two omitted); (citations see 42 U.S.C. Id. may provided A contaminated site in UMTRCA. 7901(b)(1) (stating purpose the § the (1) through agreement up either be cleaned and control ... UMTRCAis "to stabilize 7913(a), owner, by § 42 U.S.C. or with the environmentally and sound manner in a safe and Secretary the purchase when health haz- or condemnation eliminate radiation to minimize or Energy, of the Nuclear public... with the concurrence to the ards Commission, Regulatory determines that decon- the costs of decontami- UMTRCAdivides 16. profits” "windfall would lead to tamination (90%) government the federal nation between 7914(a) (e)(2). §§ 42 U.S.C. and the owner. (10%). government 42 U.S.C. and state the options are intended to reduce The two contrast, 7917(a). Comprehensive Envi- § In by public preventing program of the costs Response, Compensation, Liabili- and ronmental profits” receipt to landowners. of "windfall (1993 (CERCLA), §§ ty 9601-9675 Act 42 U.S.C. Allowing such as The Mill to recover owners liability upon Supp.), imposes "the owner land, pur- after value of their uncontaminated "any person facility," operator or who of a ... chasing property in a contaminated condi- disposal substance hazardous the time of tion, provide a windfall and would the owners any facility operated at which such owned or ” contrary program, disposed would increase the cost were of.... hazardous substances congressional 9607(a)(l)-(2). intent. §§ (1982 sarily speculative prospective and thus Supp.); v. Farm- see & 1994 Mulford Co., Hecla, Irrigation 62 Colo. 781 P.2d at 126. The & inadmissible.” ers’ Reservoir price Market value is present 161 P. 301 in the case declared court of it offered for bring when is will dispositive that Hecla was of value determi obligated but is not by who desires sale one nation of fair market value and of the issues desires, by sell, bought one who but is possession hearing, at the immediate raised necessity buy property. is under no value rule in but held that the enhanced Schulojf 167 Colo. Dep’t Highways v. inapplicable Hecla and that Williams (1968). The value of the land P.2d 402 as inconsistent with would not be followed present conditions and not based on taken is by the scheme established UMTRCA. development future on the UMTRCA, appeals misinterpreted court of Id. following erred in not Hecla.18 UMTRCA, Congress it di- When enacted dispositive is The enhanced value statute accomplished pur- acquisitions be rected The contaminat- of the condemnation issue. H.R.Rep. law. No. 95- suant to state Mill, in ed value of the land was zero. The (1978), 1480(11), Cong., 2d at 37 95th Sess. proper- acquiring property, knew of the reprinted 7464. When U.S.C.C.A.N. mill, processing ty’s prior as a uranium use Assembly agreed to General Colorado building which contaminated both of UMTRCA and the financial commitments effectively The Mill was limited soil. im- participate authorized the CDH it make of its land because of the use could plementation, specifically it directed a limitation radioactive contamination. Such pursuant acquisitions be conducted such however, compensable, on use because is 25- domain laws Colorado. the eminent of The would value Mill’s 303(l)(d). particular, General As- 11— improvements effected be as the result of the enhanced value cri- sembly directed that clean-up that would restore the land to its 24-56-117(l)(c), be followed in section teria former condition. The was contam- condemning property under UMTRCA. when acquired by The Mill. inated when was 56—117(l)(c)provides in relevant Section 24— decontaminating Because the cost of pai’t: “Any or increase in the fair decrease property exceeds the value of property prior to the market value of real clean-up, after the the value of the caused im- date of valuation zero, against value and the rule enhanced property is ac- provement for which such applicable. disregarded ... in determin- quired shall be *17 property.” ing compensation for the 24-56-117(l)(c) statutory is the codi-

Section Ill against rule enhanced value. fication of the decontaminating The Mill’s The cost of Colo, Williams, 199-200, See property is borne the state and federal appeals The court of dismissed at 173-74. proper- governments. A consideration of the policy” “general as section 24-56-117 purposes of ty’s decontaminated state for yield court stated was the must to what the calculating grant fair market value would (protecting the owner’s “ends” of UMTRCA acquired pur- The Mill more than it when it investment). Mill, P.2d at The 1106. 1973, grant and would chased exception is not an UMTRCA profits,” profits the landowner “windfall rule, incorporates enhanced but rather value Congress enacting which intended to avoid Hecla, In into its framework. the rule UMTRCA. of the appeals held that evidence court land, application against of the rule Because value of the “because it decontaminated enhanced value is in accordance with con- the actual condition of the fails to reflect gressional of the Gener- taking, of the is neces intent and the intent property at the time applying interpretation Judge opinion erred in a different authored the of the court case 18. Smith appeals opinion in this panel employed in Hecla and the court of case, UMTRCAthan a different of the panel the other members of the were but in Hecla. appeals panel in this not the same. The court separate parcels: into in was divided two Assembly, court of erred al property’s pile” yard.” “mill Prior to “tailings of the and the ordering a determination following lot, and in not purchasing value The Mill searched the decontaminated appeals also erred in Hecla. The court of Department records Colorado stipulаtion that the setting parties’ (CDH) 1971, aside that in Health and discovered present in its condi- property had no value the mill of Colorado had removed State tion. licensure, yard authorized its unre- use, yard considered the mill not stricted dissenting:

Justice SCOTT such as contaminated and free for lawful uses contemplated by those The Mill.20 Based on Mill, majority that The the own- holds . files, review of the information in CDH’s its property, er of did not have “reasonable real yard parcel mill indicated that the was which expectations” investment-backed and safe for unrestricted decontaminated yard” “mill contemplated use of the because use, subject property [was] “an extensive scheme July of 1973. investment,” maj. op. place time of at the 999-1000, and, any taking consequence, as a vari- From 1973 to CDH conducted require compensation. by the does not State prop- tailings pile located on ous tests impermissibly Because I believe such rule erty adjacent point, Mill. At to The some takings between of real blurs the distinction yard. mill also conducted tests of the personal property improperly per- In radioactive contamina- CDH found compensation in takings viola- mits without time, yard. throughout the mill At that tion mandates, constitutional and because tion of finding Mill of its CDH informed The support I a con- believe the record does precautionary measures advised it to take expectations that The Mill’s were clusion regard yard. to the mill Both the unreasonable,” “highly respectfully I dissent. yard tailings pile designated for were Moreover, the lower court’s deter- because clean-up under the Uranium radiation deprived that The Mill was of its mination Tailings Radiation Act of Control in the entire economic interest 95-604, Pub.L. No. U.S.C. record, I hold the supported would (“UMTRCA”). that it The Mill was informed assuming compensable, actions of the State a “candidate for remedial action” regulatory taking The Mill can establish a premised upon compliance with directives The Mill notified CDH that had com- agency set forth in letters and similar yard the mill to O.C. Coal. CDH then leased Accordingly, the anal- munications. because The Mill and O.C. sent several letters both ysis employ requires I that we exam- would “existing mill informing them of the Coal address, majority I ine the issues the fails to lim- yard contamination” and the radioactive respectfully dissent.19 put. the mill could be ited uses to which had been a The trial court found that there

I other ac- taking because of the letters and CDH, in compensation tions of and awarded Mill, 1973,respondent, purchased a $200,000, a total loss the amount of based on Colorado, Gunnison, previ- had lot in which use, a of valua- of rather than loss mill ously used as a uranium and dis- been tailings. posal uranium mill The lot tion. site for use, removal, or decontamination of the raised in the emi- transfer 19. I do not address the issues prema- buildings it would be equipment nent domain action because manner.” In in and/or my analysis takings light issue. ture in of allow for trans- the license was amended to 1968 persons equipment to not of contaminated fer in 1964

20. had been licensed provided deconta- possessing an AEC license that (AEC). Energy Pursu- the Atomic Commission accomplished accordance with mination was in license, the was authorized: ant to the equip- AEC Decontamination of the standards. storage only equip- the contaminated "[f]or buildings authorized. ment and was also buildings constituting the Gunnison ment and license does not authorize uranium mill. This 1012 justification “simply, as appeals affirmed the trial for the rule was

The court depri suggested, Brennan that total correspondence Justice ruling that the CDH court’s is, of beneficial use from the landown vation regulatory taking. A a total amounted to view, point equivalent physical er’s reverses, and, in majority of this court now —Lucas, at -, appropriation.” 112 U.S. clearly effect, ignores the distinction so (citing Diego at 2894 San Gas & Elec. S.Ct. personal property in real and drawn between 621, 652, 101 Diego, v. 450 S.Ct. Co. San U.S. and, jurisprudence takings its federal 1304, (Brennan, 1287, 67 L.Ed.2d 551 adoption of “an exten- place, holds that then, J., dissenting)). Essentially, Justice trumps the funda- sive scheme” opined, prop Scalia “when the owner of real right just compensa- mental constitutional erty upon has been called to sacrifice all consequence government of a tak- tion as economically beneficial uses the name majority that conclusion of the ing. It is to is, prop good, common that to leave his exception. I that take idle, erty economically a tak he has suffered — Lucas, at -, ing.” 112 at U.S. S.Ct. II In Lucas v. South Carolina Coastal Coun court, argued, appeal On to this - cil,, -, 2886, 112 120 U.S. S.Ct. majority agreed, that the court of (1992), the L.Ed.2d 798 United States Su exception failing apply erred stated holding its in Penn preme Court reaffirmed if compensation in Lucas that no is due Mahоn, 393, sylvania v. 260 U.S. 43 Coal Co. merely duplicate the result that restrictions 158, (1922), 67 L.Ed. 322 where Justice S.Ct. have been achieved in the courts could Holmes, Court, writing opined that Lucas, through nuisance or law. may regulated be to a cer “while — at -, 112 at 2901. That U.S. S.Ct. extent, regulation goes if far it will tain too however, exception only applies, where the — Lucas, recognized taking.” as a be U.S. putting is barred from land to a use “owner at -, Mahon, (citing at 2893 260 S.Ct. proscribed by existing that is those rules 160). 415, Writing at for the U.S. at 43 S.Ct. understandings.” Id. The Lucas Court es Lucas, majority in acknowl Justice Scalia tablished that the State seeks to “[w]here seventy years edged Supreme regulation deprives all sustain land of takings jurisprudence has been essen Court use, economically may beneficial we think hoc, tially by inquiries. ad factual The Court compensation only logically if the ante resist has, however, regulatory takings found “com- inquiry cedent into the nature of the owner’s inquiry pensable case-specific without into proscribed estate shows that the use inter support interest advanced part begin ests were not of his title to with.” it has “found restraint” instances which -, (emphasis Id. S.Ct. regulation [by ... all state] denied eco added). At the time The nomically productive beneficial or use of contemplated land in use of the Tiburon, (citing Agins land.” Id. v. U.S. (storage) proscribed by any land 255, 260, 100 2138, 2141, 65 L.Ed.2d 106 S.Ct. understanding at that rules or that existed (1980); Nollan v. Coastal California anticipated time. The investment-backed Comm’n, 825, 834, 483 U.S. 107 S.Ct. unlawful, was not use of ‍​​‌‌​​​‌‌​​​‌‌‌​​‌​​​‌​​​​‌‌​‌​‌​​​‌​​‌​​​‌​‌​‌‌‍(1987); Keystone Bitu 97 L.Ed.2d prop itself had since the State declared DeBenedictis, minous Coal Ass’n U.S. By erty authorized for unrestricted use. 470, 495, 107 1232, 1247, S.Ct. 94 L.Ed.2d 472 1983, however, actions in was in State (1987); Virginia Mining Hodel v. & Surface hence, effect, changing effect the uses and Inc., Ass’n, Reclamation 452 U.S. 295- understandings developed *19 reflect more 101 S.Ct. 69 L.Ed.2d understanding of the hazards of radiation— omitted)). (footnote years pur all of which occurred after the fact, categorically Thus, exception In the Court has held chase. the Lucas that “the deny economically takings part which all ben proscribed use interests were not of with,” i.e., require compensation. Noting begin title to [The Mill’s] eficial use rule, application at hand. categorical suggested has no to the case Justice Scalia respect to owner ex- despite early its infatuation unrestricted use. With Importantly, uses,” pectations, or reliance the Lucas Court stated: “harmful or noxious with law, the Lucas Court reversed upon nuisance regula- Where the State seeks to sustain Supreme Court because the South Carolina deprives economically of all tion that land upon judgment premised a determi its use, may we think it resist com- beneficial proposed property nation that owner’s logically pensation if the antecedent nuisance, public, harmful to the use was a inquiry into the nature of the owner’s es- and, taking would render a consequence, as a proscribed tate shows that the use inter- , — subject compensation. not Lucas part begin of title to with. ests were not his at -, 112 S.Ct. at 2897-98. U.S. accords, think, “takings” we with our This Instead, reasoned, the Court “noxious-use traditionally jurisprudence, ivhich has logic a touchstone to distin cannot serve as understandings guided been our of require guish regulatory ‘takings’ —which regarding the content citizens of compensation regulatory deprivations —from poiver rights” over the “bundle State’s compensation.” a require that do not Id. they acquire they when obtain title to -, Continuing, the 112 S.Ct. at 2899. t — “A recita [state’s] Court held: fortiori — Lucas, at -, at 2899 U.S. S.Ct. justification cannot be a tion of a noxious-use added). concept (emphasis Continuing the categorical departing basis for from our rule expectations, the Court noted a dis owner regulato'ry takings com that total must be personalty realty: tinction between added). (emphasis The ma pensated.” Id. personal property, in the And case jority holding into account.21 fails to take this traditionally high de- reason of the State’s dealings, commercial gree Ill of control over ought possibility aware of the he to be Supreme The Court has United States might regulation new even render his tak- identified several factors that should be economically property worthless.... determining whether a en into account when however, land, think the the case of we taking. to a governmental action amounts ... that title is somehow held sub- notion Among those factors are “the character ject “implied limitation” that action, impact, governmental its economic may subsequently eliminate all eco- State with reasonable invest- and its interference with nomically valuable use is inconsistent expectations.” PruneYard ment-backed compact recorded in the Tak- the historic Robins, 74, 83, Shopping Ctr. U.S. part of our ings that has become Clause 2035, 2042, I 64 L.Ed.2d 741 S.Ct. constitutional culture. majority that the rea- agree would with the physical occupation” “permanent expectations of Where sonable investment-backed concerned, dispositive land is ive have regulated party is a factor refused however, government to decree it anew disagree, with allow the this case. I would (without compensation) no matter how majority’s that The Mill’s ex- conclusion unreasonable, “public interest” in- light weighty the asserted pectations in were ... believe similar treatment volved. We that the of the CDH determination confiscatory regulations, must be accorded and was available for was not contaminated by majority emphasizes princi- cases relied on majority In the nuisance in this case holding, stating "un- ples nuisance law in its it was the conduct of owner law, nuisance, land owners have a der Colorado common duty not the character of the that caused the prevent and conditions on their activities itself, which the owner had no over creating of harm an unreasonable risk land from bar, however, The Mill is In the case control. majority Maj. op. sets at 1002. The to others.” putting noxious use not further, ordinary intu- "[i]n forth accord storage facility. merely using it as a all—it is ition, complete pay government even in need engaging any act that makes Mill is not justified by if the latter is takeover or destruction dangerous; property itself using property to on his the owners insistence dangerous already it is contaminated because Maj. op. property'.” injure people other or their with radiation. Tribe, (citing Con- Laurence H. American at 1001 1988)). (Nеw Law 593 York stitutional *20 1014 important cases

i.e., prohibit all economi- There have been three regulations that Any limitation cally use of land. jurisdiction beneficial in this which deal with decided newly legislated or so severe cannot be expectations. concept of owner See Ford (without compensation), but must decreed Comm’rs, Leasing County 186 v. Board of already ... in the title itself inhere (1974); 418, Nopro P.2d v. Colo. 528 237 Co. ownership. place[d] upon land 217, Cherry Village, 180 Colo. 504 P.2d Hills (ci at -, 112 S.Ct. at 2899-900 Id. (1972); Run, Ltd. v. Board 344 Gold of omitted) (emphasis add tations and footnotes Comm’rs, 44, County Colo.App. P.2d 38 554 ed). analysis is consistent The Court’s with (1976). cases, In each of these three 317 historically sharp drawn be distinction example, For in No- harm was self-inflicted. property and tween the treatment of real case, pro, zoning “Nopro’s a the court held Property personal property. See Tax Ad knowledge in full land investment was made Geophysical, 860 ministrator v. Production zoning of the limitations. It took the calcu (Colo.1993). 514, example, For we 519 zoning lated risk that it could break the use in of frauds to interests real apply the statute thereby profit barrier and double the personal in property but not to interests 227, Nopro, its investment.” 180 Colo. (1963)) (§ 38-10-108, 16A C.R.S. P.2d at 349. The court concluded “if'hard performance generally is direct specific voluntarily by ship exists ... it was incurred concerning ed in the sale of land contracts Nopro concerning personal the choice of and was self-inflicted.” but not contracts See, e.g., City En property. Likewise, Atchison v. Leasing Id. in Ford and Gold of 367, (1977); glewood, 568 P.2d 13 193 Colo. Run, emphasized the court the fact that the Palmer, 146, Radetsky 199 P. 70 Colo. bought property having full knowl owner drawing a The basis for such distinc edge existing zoning, ren of restrictive thus every parcel of real is tion is that dering hardship self-inflicting. unique. Co. v. Estate See Mt. Sneffels Scott, 464, case, (Colo.App.1989). majority 789 P.2d that The asserts Hence, property interest is that when the Mill was on notice that the radioactive mate land, ownership associated with present highly on the were rials takings analysis personalty, our opposed to level, regulated at both the state and federal guided by the landowner’s under must be stating stipulated by parties “the facts rights standings regarding the bundle of he regulatory taking action indicated the title to the acquires or she property, including yard, the entire — Lucas, at-, 112 S.Ct. at 2899. U.S. subject licensing had been to federal here, majority contrary, assumes To the regulation presence since 1962 due to the comprehensive regula that the existence of Maj. op. radioactive contamination.” at 1000. tory impute we requires scheme land majority maintains that even purchase, today’s owners at the time of lot, when The there “ex by knowledge harm caused radiation. posed by isted an awareness that the hazards expectations are unreasonable Such owner potentially radiation were severe.” Id. The fully years of radiation are before the effects majority’s fairly observation fails to take into understood; majority’s position does not (1) important account two realities: comport previous treatment of own with our by potential posed the extent of the hazards inconsistency еxpectations. er understood; fully was not radiation by majority’s position reflected its state is knowledge Maj. op. at 1000 n. 4.22 The Mill had no of the site’s ment footnote "expectations toiy undisputed majority Yet it is that in that 22. The asserts that of un scheme. See, compensation required. e.g., regulated is use are unreasonable when an exten situation place County at the time of Cottonwood Farms v. Board Comm’rs sive scheme is Maj. op. picture County, (Colo.App. 725 P.2d the investment.” 1000. The of Jefferson Run, different, however, 1986); County majority Ltd. v. drawn is no see also Gold Board of Comm’rs, 44, 46, acquired Colo.App. from a in which is situation (1976) (when existing zoning zoning confiscatory permissible it rises to a use under ordi change "taking” private property requiring compensa subsequently "taken” nances tion). zoning existing regula- ordinances within the *21 trial, is introduced at radiation purchase due which was at the time of its contamination any degree. potentially harmful in findings that the considered upon CDH to its reliance yard uncontaminated and available mill was 1973, property in purchasing the Before contemplated by Mill.23 These The for uses fully possibility the The Mill researched by court can facts found the trial and other by reviewing contamination on that site findings of the ignored. Where the not be February The Mill found files in of 1973. record, supported by the those trial court are time, regulated at one that the site had been accepted on review unless findings must be parcel, the but that the state had delicensed M.D.C./Wood, clearly they are erroneous. contaminated, representing that it was not (Colo. Mortimer, 1380, 866 P.2d Inc. v. After authorizing its unrestricted use. and 1994). consistently disap have Because we examination, regulatory the state demon- factual proved of new of the substitution storage con- approval its use strated findings by reviewing courts for those made Mill, any templated by as well as other Clark, court, Page 197 Colo. by the trial that uses. The record reflects reasonable (1979), 306, 313, 792, and be on an The Mill the based clearly supports the find cause the record by government. Giv- expectation created the court, inappropri ings the trial it would be knowledge that “scientific con- en the fact to fail to take such facts into ate on review cerning hazards of radiation was not as consideration. now,” 1000, maj. op. at sophisticated as it is representations were conceivable. state’s with what was The facts of this case deal The Mill’s reliance on those It follows during regulatory “a described the trial as Thus, representations was reasonable. time to framework which has evolved over yard mill despite the fact that knowledge our increase in of radia- deal with subject regulation, The to federal remained by dangers.” As found the trial tion and its contemplated Mill’s use of court, up areas such as the the need to clean by govern- storage, contemplated a use also not “an over- Gunnison uranium site was examination, after ment officials early Testimo- riding concern” 1970’s. was reasonable. 1971, cleanup were ny that in efforts shows buildings equipment, done related disputed that the mill It is not alpha emphasis at that time on con- by regulated be contaminatеd should testimony That same indicates taminations. should The issue comes down to who state. grown for concerns have government’s since interven- bear the cost of contamination, in- types party. private other of radiation When tion —the state or contamination, progeny cluding government radon records and radon citizen relies on daughters gamma changes position, radiation. government called radon later equip- government to proper only logical is for the Although there were tools solution other involved. testing types for these bear costs ment for problems in there was not radiation at that time for the dan-

sufficient concern IV other radiation hazards. gers from these investment- I find that the Thus, part would therefore they were not of the examination upon expectations based prior backed done to the delicensure that was highly un- fact, were not testimony in information from CDH indicated findings the trial court’s question reasonable. Since when remaining material facts licensure, respect to the not even with CDH did removed record, find a by I would supported are important enough regulate consider taking requiring that compensable yard. Today, potentially the mill tailings pile, let alone ma- hand, testimony issues not reached according we determine on the other . contamina- purchased, that there was radioactive there held that The Mill "knew 23. The trial court site; finding sup- and knew mill on that had been a uranium what was still mill site itself.” This tion on the there; say, that is to ported the record. know, that it pile. at the time did not [Mill] *22 reasons, respect- jority. foregoing I For

fully dissent. of the

The PEOPLE State Colorаdo, Complainant, MURRAY, ‍​​‌‌​​​‌‌​​​‌‌‌​​‌​​​‌​​​​‌‌​‌​‌​​​‌​​‌​​​‌​‌​‌‌‍Jr., Mack Edward Attorney-Respondent.

No. 94SA161. Colorado, Supreme Court of En Banc. Dec. 1994. Rehearing Denied Jan. Counsel, Donnelly, Disciplinary

Linda Gleason, Counsel, Disciplinary John S. Asst. Denver, complainant. Jr., Murray, pro

Mack Edward se. Gross, Denver, Richard S. amicus curiae. Chief Justice ROVIRA delivered the Opinion of the Court. hearing panel Supreme

A of the Court unanimously approved Grievance Committee findings majority fact of a hearing and the recommendation that board disbarred, respondent1 be be ordered to respondent Although Respon- 1. The was admitted to the bar of this there is no evidence that the 17, 1990, registered court on December and is dent has been convicted of a serious crime and attorney upon although this court’s official records. the evidence offered to establish con- 30, 1993, September respondent might properly On was tem- version of funds be more char- porarily suspended practice from the of law be- acterized as failures to refund unearned fees funds, many allegations properly cause contained in the account for trust there complaints formal which are the basis of this is sufficient evidence to establish reasonable proceeding. respondent Respondent causing C.R.C.P. 241.8. to believe that the cause petitioned private for dissolution or amendment of the immediate and substantial suspension Following practice immediate order. Id. harm because his in the conduct hearing tion, respondent’s petition poses on the for dissolu- law an immediate threat to the effective hearing justice. administration of officer concluded: