Todd Hennis v. The United States of America

CASE SUMMARY

On the morning of August 5, 2015, the U.S. Environmental Protection Agency (EPA) dug away tons of rock and debris that blocked the portal of the Gold King Mine near Silverton, Colorado. By breaching the closed portal of the mine, without taking proper precautions or obtaining the owner’s permission, EPA triggered a massive blowout that released over 3,000,000 gallons of acid mine drainage and 880,000 pounds of heavy metals onto the private property below and into the waterways downstream (including the Animas River). It took the form of a bright, yellow-orange toxic sludge, and the pollution lingers to this day.

Easily one of the largest environmental catastrophes EPA ever created, the incident became known as “the yellow river seen round the world.” NCLA filed a lawsuit, Todd Hennis v. The United States of America, in the U.S. Court of Federal Claims, challenging the government’s physical invasion, occupancy, use, taking, and contamination of Mr. Hennis’s property.

In conducting its catastrophic failure at the Gold King Mine, EPA, the very agency entrusted to protect the environment, violated its own directives, protocols, and procedures, while also ignoring well-understood risks of a flooded mine under pressure. For essentially every decision they made that day, the EPA employees erred. Shortly after EPA caused the Gold King Mine blowout, NCLA’s client, Todd Hennis, verbally authorized the government to temporarily use a portion of his property for an emergency staging area for equipment and supplies, recognizing that time was of the essence to mitigate the environmental disaster of EPA’s own making.

Rather than thank Mr. Hennis for his quick cooperation and compensate him for the use of his land, EPA took advantage of him. Without so much as a phone call or email to Mr. Hennis, EPA constructed a $2.3 million dollar water treatment facility on a concrete slab on Hennis’s property. Worse yet, EPA has repeatedly refused—across three presidential administrations—to pay him anything for the privilege. Mr. Hennis never granted EPA permission to construct a water treatment facility on his property, nor did he authorize EPA to occupy, use, and pollute his property indefinitely. Yet that is exactly what the agency has done.

Since November 2015, EPA has continuously treated the discharge of acid mine drainage from the Gold King Mine at its water treatment plant, thereby taking Mr. Hennis’s property without just compensation. EPA’s water treatment operations also involve the storage of mine waste, solids, and other contaminants on Mr. Hennis’s property, again without paying to do so. The government has thus seized his real property in violation of his most basic Fifth Amendment constitutional rights.

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CASE STATUS: Active

CASE START DATE: August 3, 2021

DECIDING COURT: U.S. Court of Federal Claims

ORIGINAL COURT: U.S. Court of Federal Claims

CASE DOCUMENTS

August 30, 2022 | Oral Argument Transcript
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August 30, 2022 | Order From Judge Armando O. Bonilla
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July 15, 2022 | Order Scheduling Oral Argument
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January 28, 2022 | Defendant’s Reply to Plaintiff’s Response in Opposition to the United States’ Motion to Dismiss
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January 5, 2022 | Plaintiff’s Brief in Response to Defendant’s Motion to Dismiss
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November 15, 2021 | Motion to Dismiss for Failure to State a Claim in the United States Court of Federal Claims
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August 3, 2021 | Complaint for Damages and Injunctive Relief
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PRESS RELEASES

August 30, 2022 | Colorado Landowner’s Takings Claim Against EPA Advances After Judge Denies Motion to Dismiss

Washington, DC (August 30, 2022) – Today, Judge Armando Bonilla of the U.S. Court of Federal Claims issued a decision from the bench in favor of NCLA’s client and denying a motion to dismiss in Todd Hennis v. The United States of America. Mr. 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. The Environmental Protection Agency (EPA) caused an environmental catastrophe that preceded and culminated in the invasion, occupation, taking, and confiscation of Mr. Hennis’s downstream property, an action for which he has been seeking redress ever since. 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.     

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. EPA was entirely unprepared to prevent or control the contaminated flows that gushed out once it breached the Gold King Mine portal. EPA eventually mobilized supplies and equipment onto Mr. Hennis’s downstream property to address the immediate after-effects of its actions. Ignoring Mr. Hennis’s explicit instructions and the scope of the access that was granted, EPA constructed a multimillion-dollar water treatment facility on his land. The U.S. Government has never paid Mr. Hennis any compensation for either flooding or appropriating his property for public use. It has instead squatted on his lands for seven years and counting.

Mr. Hennis did not voluntarily give EPA permission to construct and operate a water treatment facility on his property. EPA built the facility without his knowledge or consent, and it later coerced him into allowing access to his lands by threatening him with extortionate fines (over $59,000 per day) should he exercise his property rights. Mr. Hennis eventually refused to sign an access document, so EPA is currently occupying his property by operation of the agency’s own administrative order—and threatening him with fines if he challenges it.

The United States has incurred well over $44,500,000 in past response costs related to the environmental disaster that it created when it destroyed the Gold King Mine portal. It 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, conducts other investigative and remedial activities, and otherwise accesses and occupies Mr. Hennis’s property, he cannot use or take any substantial steps toward development of it. By denying the U.S. Government’s motion to dismiss, the U.S. Court of Federal Claims has finally given Mr. Hennis his day in court to challenge the EPA’s violation of his constitutional rights.

NCLA released the following statements:

“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. 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.”
Kara Rollins, Litigation Counsel, NCLA

“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. With today’s decision, Mr. Hennis will finally have an opportunity to pursue his claims against the U.S. and vindicate his constitutional rights.”
Harriet Hageman, Senior Litigation Counsel, NCLA

“While Mr. Hennis is eager and willing to help rectify EPA’s tragic mistake, he must be compensated for the cost of doing so.”
Greg Dolin, Senior Litigation Counsel, NCLA

For more information visit the case page here and watch the case video here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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August 5, 2022 | Video: Seven Years After EPA’s Gold King Mine Spill, Agency Still Refuses to Compensate Landowner

Washington, DC (August 5, 2022) – Todd Hennis spent decades building his nest egg as owner of the Gold King Mine near Silverton, Colorado. But on a day like today, seven years ago, the U.S Environmental Protection Agency (EPA) destroyed the entrance to the mine that was holding back water trapped inside, causing a breach and releasing a toxic sludge of over three million gallons of acid mine drainage and 880,000 pounds of heavy metals. Called the “orange river seen around the world,” the rush of contamination snaked down the Animas River. A video, released today by the New Civil Liberties Alliance, a nonpartisan nonprofit civil rights group, shows the foreseeable, destructive aftermath of EPA’s deliberate actions at the mine entrance and elsewhere.

 

EPA not only destroyed the environment it is entrusted to protect, but it also violated its own directives, protocols and procedures, while stripping Todd Hennis of access to and use of his hard-earned property. To try to clean up the mess of its own creation, EPA built a gigantic water-treatment facility on another parcel of Mr. Hennis’s land adjacent to the Animas River, but it has refused to compensate him for using and occupying this property. NCLA represents Mr. Hennis in his lawsuit, Todd Hennis v. The United States of America, which seeks compensation for the years EPA has been squatting on his property without his permission and in violation of the Fifth Amendment’s Takings Clause, which forbids “private property [to] be taken for public use, without just compensation.” Oral argument on the Government’s motion to dismiss Mr. Hennis’s takings claim is scheduled to be heard on August 30, 2022 in the U.S. Court of Federal Claims in Washington, DC.

Excerpts from the video:

“My dream for the end of this is to create a clear, legal precedent to prevent EPA from doing this to anybody else, and to prevent other government agencies from replicating EPA’s actions.”
— Todd Hennis, Plaintiff, Todd Hennis v. The United States of America

“Every decision the EPA made that day was a comedy of errors. Without a warning, EPA constructed a $2.3 million water treatment facility on his property and has refused to pay him a dime ever since.”
Kara Rollins, Litigation Counsel, NCLA

“The EPA could have constructed this water treatment facility on federal land, but chose not to. They chose to take Todd Hennis’s property instead, and threaten him with fines of $59,000 a day if he did not allow them access to his property and to continue to operate the water treatment facility.”
Harriet Hageman, Senior Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

 

August 3, 2021 | NCLA Files Suit Against U.S. for Taking of Private Property After EPA’s Gold King Mine Catastrophe

Washington, DC (August 3, 2021) – On the morning of August 5, 2015, the U.S. Environmental Protection Agency (EPA) dug away tons of rock and debris that blocked the portal of the Gold King Mine near Silverton, Colorado. By breaching the closed portal of the mine, without taking proper precautions or obtaining the owner’s permission, EPA triggered a massive blowout that released over 3,000,000 gallons of acid mine drainage and 880,000 pounds of heavy metals onto the private property below and into the waterways downstream (including the Animas River). It took the form of a bright, yellow-orange toxic sludge, and the pollution lingers to this day.

Easily one of the largest environmental catastrophes EPA ever created, the incident became known as “the yellow river seen round the world.” Today, the New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed a lawsuitTodd Hennis v. The United States of America, in the U.S. Court of Federal Claims, challenging the government’s physical invasion, occupancy, use, taking, and contamination of Mr. Hennis’s property.

In conducting its catastrophic failure at the Gold King Mine, EPA, the very agency entrusted to protect the environment, violated its own directives, protocols, and procedures, while also ignoring well-understood risks of a flooded mine under pressure. For essentially every decision they made that day, the EPA employees erred. Shortly after EPA caused the Gold King Mine blowout, NCLA’s client, Todd Hennis, verbally authorized the government to temporarily use a portion of his property for an emergency staging area for equipment and supplies, recognizing that time was of the essence to mitigate the environmental disaster of EPA’s own making.

Rather than thank Mr. Hennis for his quick cooperation and compensate him for the use of his land, EPA took advantage of him. Without so much as a phone call or email to Mr. Hennis, EPA constructed a $2.3 million dollar water treatment facility on a concrete slab on Hennis’s property. Worse yet, EPA has repeatedly refused—across three presidential administrations—to pay him anything for the privilege. Mr. Hennis never granted EPA permission to construct a water treatment facility on his property, nor did he authorize EPA to occupy, use, and pollute his property indefinitely. Yet that is exactly what the agency has done.

Since November 2015, EPA has continuously treated the discharge of acid mine drainage from the Gold King Mine at its water treatment plant, thereby taking Mr. Hennis’s property without just compensation. EPA’s water treatment operations also involve the storage of mine waste, solids, and other contaminants on Mr. Hennis’s property, again without paying to do so. The government has thus seized his real property in violation of his most basic Fifth Amendment constitutional rights.

Adding insult to injury, the government has threatened Mr. Hennis with soul-crushing civil penalties should he attempt to exercise his constitutional rights to exclude EPA from his property. When Mr. Hennis refused to sign an eight-year “Consent for Access to Property” that would have paid him nothing, EPA issued a civil enforcement action against him. The agency has threatened that he will be subject to penalties of up to $59,017 per day for any period of time during which EPA believes he is not complying with its demands.

In short, the federal government invaded Mr. Hennis’s property nearly six years ago in August 2015 and it has been squatting there ever since. EPA has made a bargain-basement offer for future rental payments, ignoring the actual value of the property, and refusing to pay for the property’s use for the last six years altogether.

The Fifth Amendment to the U.S. Constitution provides that “nor shall any person … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.” Where the government requires an owner to suffer a permanent physical invasion of his property—however minor—a takings under the Fifth Amendment has occurred, and the government must provide just compensation. Mr. Hennis is entitled to be fully and completely compensated for the government’s invasion, occupancy, use, taking, and contamination of his property by an inept federal agency.

NCLA released the following statement:

“It is simply unfathomable to believe that EPA could breach Mr. Hennis’s mine, unleash an environmental hell on him and everyone downstream, ensure that no public employee is held accountable, construct a water treatment facility on his property without notice or permission, and refuse to compensate him as required by the Fifth Amendment. This case is about EPA’s horrific environmental negligence and the civil liberties abuse that it has inflicted upon Mr. Hennis and his property while trying to clean up their mess. Americans deserve better.”
— Harriet Hageman, Senior Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

OPINION